February 24, 2004

Prepared by: James R. Sheldon, Jr.
Supervising Attorney
National Assistive Technology Advocacy Project
Neighborhood Legal Services, Inc.
295 Main Street, Room 495
Buffalo, New York 14203
716-847-0650 ext. 262 (0227 fax)
jsheldon@nls.org www.nls.org

Jane Perkins
Legal Director
National Health Law Program
211 N. Columbia Street
Chapel Hill, North Carolina 27516
919-968-6308 (8855 fax)
perkins@healthlaw.org www.healthlaw.org

        The following is a list of federal and state court decisions from the 2001 through 2003 period. The focus is on Medicaid decisions that either deal with assistive technology (AT) or deal with an issue of pivotal importance to AT advocacy (e.g., cases dealing with other categories of service). Earlier AT decisions are cited at the end of this document. This list will not attempt to cover the many Medicaid court decisions that deal with other issues, even though they may impact on the ability of attorneys to access the courts to enforce Medicaid provisions. Many of those decisions are summarized in other handouts from the authors.

        The decisions will be listed under two categories: federal court decisions and state court decisions. Within each category, we list the decisions in reverse chronological order, with the most recent decisions listed first.

S.D. v. Hood, 2002 WL 31741240 (E.D. La. Dec. 14, 2002) (on appeal). Plaintiff is a 16-year-old with spina bifida who brought an action under 42 U.S.C. § 1983 to assert his federal statutory right to "necessary" services (incontinence underwear) pursuant to EPSDT requirements. The district court found that the state’s policy of refusing to provide incontinence underwear for Medicaid beneficiaries for whom such "medical assistance" has been found medically necessary by EPSDT screenings violates the federal Medicaid Act, 42 U.S.C. § 1396d(r)(5). The court compared this medical assistance to the plaintiff’s wheelchair, which allows him to move about his home, travel, and engage in age appropriate activities.

State Court Decisions:

Webster v. Dep’t of Children and Families, 852 So.2d 363 (Fla. App. 5th Dist. Aug. 15, 2003). This short opinion affirms the decision of the state Medicaid agency to deny coverage of certain computer software to assist the plaintiff with his language development skills. The court agreed that the computer was "not medically necessary" and did not constitute "durable medical equipment" as those terms are defined in state regulations and program manuals. The plaintiff was enrolled in a home and community-based waiver program.

Burnham v. Washington Dep’t of Social and Health Servs., 115 Wash. App. 435 (Ct. App. Feb. 7, 2003). The court affirmed the state agency’s refusal to cover the costs associated with a service animal, finding that the dog was neither "durable medical equipment" nor a "prosthetic device." The plaintiff was a 27-year-old woman suffering from several mental disorders, with symptoms that included anxiety and panic attacks. The service dog was trained to respond to her symptoms of a panic attack and provide focus and companionship. Upon the dog’s arrival, the plaintiff noted a lessening of her symptoms. Nevertheless, the court found that service animals and the expenses associated with their care were not DME because the dominant characteristic common to all DME was that it is manufactured rather then an animate life form. The court held the animal was not a prosthetic device because those devices must correct a physical deformity or malfunction, not mental problems.

Cushion v. Dep’t of PATH, 807 A.2d 425 (Vt. July 2, 2002). Vermont’s Supreme Court ruled that the state agency’s exclusion of all coverage for partial dentures was an impermissible limitation of services under the optional dental services provisions, 42 U.S.C. § 1396d(a)(10); 42 C.F.R. § 440.100. The agency covered full dentures and oral surgery but not cover partial dentures. The state unsuccessfully argued that it had discretion, under federal Medicaid law, to cover the optional dental services category and then limit the scope of services it covered under that category. The court extensively cited its 1997 decision in Brisson v. Dep’t of Social Welfare, 702 A.2d 405, 408 (Vt. 1997) (holding that refusal to cover a closed circuit television or CCTV, under optional vision services category, was an impermissible limitation on the amount, duration and scope of the vision service category because the state failed to provide for those in greatest need of that service). The Cushion court held that "the Department’s exclusion of partial dentures fails to provide service to those in the greatest need." 807 A.2d at 428, citing White v. Beal, 555 F.2d 1146, 1151 (3d Cir. 1977).

Blue v. Bonta, 121 Cal. Rptr. 2d 483 (Cal. App. 1st Dist. June 26, 2002). Court ruled that the state’s agency cannot, by regulation, specifically exclude stairway chair lifts (sometimes referred to as stair glides) from the scope of coverage under Medi-Cal’s durable medical equipment (DME) category. The plaintiff was a woman with severe physical disabilities who had difficulty going up and down stairs to use the home’s only bathroom. The court pointed out that Ms. Blue had once fallen while attempting to climb the stairs, which forced her to remain on the upper floor, unable to leave the home in the event of a daytime emergency when her daughter out of the home working.

The decision turned on whether the device in question met California’s definition of DME, with the state arguing that the chair lift does not serve a "medical" purpose. In finding that this device meets California’s DME definition (very similar to the Medicare definition), the decision contains some good language that attorneys may find useful, e.g.: "A stairway chair lift alleviates a medical condition such as osteoarthritis by restoring the ability to move about the different levels of a home, where this is medically necessary for a patient." "As in the case of a wheelchair, a stairway chair lift restores mobility lost as a result of a medical condition or disability, enabling the patient to reside at home rather than in an institution." "The evil to be remedied by the relevant Medicaid and Medical statutes is the denial of necessary medical equipment for use in home health care, leading to unnecessary disability or institutionalization."

Surprisingly, the court did not address the issue of this regulation acting as an exclusive list.

Sorrentino v. Novello, 744 N.Y.S.2d 592 (N.Y.A.D. 4th Dept. June 14, 2002). This decision awards Medicaid funding for an LCM standing power wheelchair. Although the decision is very brief, it does recite evidence and testimony that supported this man’s need for the standing device to promote circulation, bone density, bladder and bowel function, and prevent pressure sores, loss of muscle mass, and muscle atrophy.

Zatuchni v. Dep’t of Public Welf., 784 A.2d 242 (Pa. Cmmnwlth. Sept. 27, 2001). This case affirmed a Medicaid managed care plan’s denial of a wheelchair lift-equipped van for a 15-year-old Medicaid recipient who had cerebral palsy and a seizure disorder. The recipient’s argued that a state regulation required the van to be "deemed approved" because the request for coverage had not been acted on within 21 days. In somewhat circular fashion, the court found that when an item is not a covered Medicaid service, there is no deemed approval under the rule.

Trott v. Wis. Dep’t of Health & Family Servs., 242 Wis.2d 397 (Ct. App. Feb. 27, 2001). The court reversed the state agency’s denial of prior authorization for a power wheelchair. The plaintiff was a 58-year-old man residing in a nursing home and suffering from multiple sclerosis. He was "non-ambulatory" and "unable to mobilize in any kind of manual chair." The court found limited regulatory exceptions to the general rule that wheelchairs are reimbursed through the nursing home daily rate, including an exception for medically necessary custom adaptive wheelchair positioning systems and powered wheelchairs where personalized in nature, custom-made to fit only one recipient, and justified by the diagnosis and occupational/vocational activities of the recipient.

T.L. v. Colorado Dep’t of Health Care Policy and Finance, 42 P.3d 63 (Colo. App. 2001), rehearing denied (Jan. 15, 2002). The court declared illegal the state agency’s use of a list of items that cannot be approved as DME. This decision relies heavily on the September 4, 1998 letter from the federal Health Care Financing Administration (now the Centers for Medicare and Medicaid Services, CMS), which states that pre-approved DME lists are only allowed for administrative convenience and a state’s policy must allow for a "reasonable and meaningful procedure for requesting items that do not appear on a State’s pre-approved list." The letter noted that a list that does not allow for a procedure for obtaining items not on the list is inconsistent with 42 U.S.C. § 1396a(a)(17), 42 C.F.R. § 440.230(b), and 42 C.F.R. § 440.230(c).

At issue in T.L. was a prior approval request (PAR) for a hot tub which was prescribed for therapeutic purposes to treat an arthritic condition causing constant hip pain. The facts indicated that T.L. was also HIV positive with various fungal skin viruses as a result. The PAR sought approval as a medically necessary item of DME. The state Medicaid agency rejected the PAR, without reaching the issue of medical necessity, based on a state regulation that specifically excluded hot tubs from coverage. However, the court ruled that, "by expressly excluding home health [i.e., DME] coverage for hot tub or jacuzzi acquisitions under all circumstances and without regard to medical necessity," the state regulation "violates federal law and the objectives of Title XIX [of the Social Security Act] and is therefore invalid." The court remanded to the administrative law judge to determine: i) whether the hot tub meets the DME definition; ii) whether the hot tub is medically necessary for T.L.; iii) whether, and at what cost, T.L. could obtain that therapy outside the home (i.e., whether the home-based therapy is the least costly alternative); and iv) whether the primary purpose of the hot tub is "to enhance the personal comfort of T.L."

Nichols v. Office of Medical Assistance Programs, 171 Ore. App. 255 (Ct. App. Dec. 6, 2000). The court reversed the Medicaid agency’s decision that changes in the plaintiff’s bed and mattresses were not "actions" that entitled her to prior notice and a hearing under state and federal rules. Using a Synergy Dynamic bed, plaintiff’s decubitus ulcer improved and she was more comfortable and able to sleep. Thereafter, the Medicaid HMO replaced the bed with a TriCell air-powered pressure reducing mattress and subsequently a GeoMatt mattress. Plaintiff requested a hearing claiming that her services had been reduced under 42 C.F.R. § 431.201 (defining "action’ for Medicaid due process purposes). The request was denied on the grounds that only a "change in treatment modality" had occurred and that "a change in surface was not a change in services." The court disagreed, holding the bed surfaces were medical equipment constituting home health services under the applicable rules and that the plaintiff was entitled to notice and a hearing before any "reduction" in the services could occur.

Esteban v. Cook, 77 F. Supp. 2d 1256 (S.D. Fla. 1999) (holding state monetary limit for wheelchairs provided to persons over 21 violated Medicaid Act requirement that services be sufficient in amount, duration, and scope to fulfill statute’s purpose; denial based on age was arbitrary and unreasonable).

DeSario v Thomas, 139 F.3d 80 (2nd Cir. 1998), vacated and remanded sub nom. Slekis v. Thomas, 525 U.S. 1098 (1999) (Supreme Court vacated and remanded to the Second Circuit for further consideration in light of the interpretive guidance issued by HCFA on September 4, 1998, stating the exclusive lists for DME were impermissible; in DeSario, the Second Circuit had held that the state satisfied its obligation under 42 U.S.C. § 1396a(a)(17) to set reasonable standards when it adopted an exclusive list of DME and thus specifically excluded certain equipment and appliances from coverage even if the treating doctors said they were medically necessary).

NOTE: Pragano v. Wilson-Coker, No. 3:02-CV-01968 (D. Conn., Dec. 29, 2003) (settlement and order), was a follow up case contending that that if an item of DME was not on the agency’s pre-approved list, the practice was to rely exclusively on Medicare’s Durable Medical Equipment Regional Carrier (DMERC) Manual and deny coverage if the requested DME is excluded under the DMERC. Under this approach, the state Medicaid agency denied the plaintiff’s claims for a low air loss mattress, a stair glide lift system, and an environmental control unit. The case settled when the state agreed to revise its policy for approval specifically to state that, while the DMERC may be consulted, it is not the only tool for determining whether a requested item fits the definition of DME. Therefore, if the item is not included in the agency listing or the DMERC, the agency may look to other sources of information, including academic research and additional documentation from the prescribing provider. The state also agreed to pay for the items of DME requested by the named plaintiffs.

Ladd v. Thomas, 962 F. Supp. 284 (D. Conn. 1997) (finding that state agency violated federal Medicaid laws when it did not provide: (1) reasonably prompt notice to beneficiaries requesting prior authorization for durable medical equipment that their requests had not been acted upon; (2) notice to beneficiaries that a request for prior authorization had been approved in modified form; and (3) notice to beneficiaries that a request for prior authorization had been denied orally), same case, 14 F. Supp. 2d 222 (1998) (denying permanent injunction based on Medicaid commissioner’s good faith representations that she would issue timely approvals and comply with due process when denials occur).

Fred C. v. Texas Dep’t of Human Servs., 988 F. Supp. 1032 (W.D. Tex. 1997) (holding that Texas Medicaid agency could not arbitrarily exclude coverage of augmentative communication devices from Medicaid because it had chosen to cover home health care (including DME) and prosthetic device services).

Ralabate v. Wing, 1996 U.S. Dist. LEXIS 9410 (W.D. N.Y. 1996) (holding in payment case that plaintiffs did not show that the Medicaid agency’s policies denied the plaintiffs equal access to custom wheelchairs).

Hunter v. Chiles, 944 F. Supp. 914 (S.D. Fla. 1996) (finding that augmentative communication devices provided the only means of oral speech for the applicants and because Florida covered home health care services in its Medicaid program, it was required to provide ACDs).

Meyers v. Reagan, 776 F.2d 241 (8th Cir. 1985) (finding that, once Iowa chose to offer "physical therapy and related services" as an option Medicaid services, it bound itself to comply with the Medicaid Act and regulations. Applicable regulation provides that individuals are entitled to equipment provided by or under the direction of a speech pathologist that is necessary to correct her speech disorder. Thus, state could not arbitrarily exclude augmentative communication devices from Medicaid coverage).

Taher v. Novello, 278 A.D.2d 809 (N.Y. Sup. Ct., App. Div. 2000) (upholding department’s denial of recipients’ requests for medical equipment based on its determination that the cost of the equipment was included in the skilled nursing facility’s reimbursement rate).

Bell v. Agency for Health Care Admin., 768 So. 2d 1203 (Fla. Ct. App. 2000) (citing September 4, 1998 letter from HCFA re: durable medical equipment lists, finding Medicaid agency committed error when it did not cover insulin pump supplies or provide a procedure for adult Medicaid beneficiaries to seek insulin pump supplies; also finding that coverage of the service for persons under 21 created a disparity that discriminated against adult Medicaid beneficiaries)

Rinaldi Convalescent Hosp. v. Dep’t of Health Servs., 72 Cal. Rptr. 2d 606 (Ct. App. 2 App. Dist. 1998) (finding that skilled nursing facility could exclude from medically needy patients’ income the cost of adult diapers prescribed by their doctors to prevent scratching and opening wounds in the genital and rectal area; holding that state properly rejected an allowance for nutritional supplements because they were food and not a medically necessary drug even when used as a treatment for decubitus ulcers).

Wolan v. Thomas, 1998 Conn. Super. LEXIS 843 (Super. Ct. 1998) (affirming agency decision that Dynovox device was neither prosthetic nor speech pathology service).

Bristol v. R.I. Dep’t of Human Servs., 1997 R.I. Super. LEXIS 14 (Super. Ct. 1997) (finding substantial evidence that patients required incontinence supplies which were medically necessary; state had not overcome presumption in favor of the physicians’ medical judgment; state policy to exclude incontinence supplies from its discretionary scope of services, regardless of the medical necessity of those supplies was arbitrary and capricious).

Ohlson v. Weil, 953 P.2d 939 (Colo. Ct. App. 1997) (finding that it was arbitrary and capricious for the state Medicaid agency to exclude coverage for an external brace that was medically necessary to enable Ms. Ohlson to sit up and breathe properly; agency had excluded brace on the basis that durable medical equipment did not include equipment needed in the home for a finite period of time, court noted that purchase of the equipment was less costly than renting).

Davis v. Schrader, 687 N.E.2d 370 (Ind. Ct. App. 1997) (holding that state Medicaid agency had to cover medically necessary orthopedic shoes).

Return to Table of Contents | NLS Home Page | Feedback | Search the NLS Website