MEDICAID, AT, and KIDS

1. MEDICAID, AT, and KIDS James R. Sheldon, Jr., Supervising Attorney, National AT Advocacy Project Diana M. Straube, Attorney, National AT Advocacy Project Neighborhood Legal Services, Inc. jsheldon@nls.org dstraube@nls.org

2. This Session Will Focus On: EPSDT Expanded Medicaid coverage for kids under 21 Expanded coverage of AT for kids under 21

3. This Session Based on Winter 2008 AT Advocate Extensive citations On Conference CD Available at: www.nls.org/av/winter08.pdf Hard copies sent to PAAT staff

4. Overview of the Medicaid Program Joint federal-state venture Participating state must comply with federal statute and regulations. Services must be: sufficient in amount, duration and scope to reasonably achieve their purpose [42.C.F.R. § 440.230(b)]

5. “Reasonably Achieve Their Purpose” Whose purposes are to be served (i.e., state’s versus federal)? Courts are divided. • Services may be limited by: • medical necessity or • utilization control procedures such as prior approval • Definition of medical necessity may exclude experimental services • Services may be limited to least costly alternative

6. Required Medical Services Include: inpatient hospital outpatient hospital services nursing facility services physician services laboratory and x-ray services

7. States May Provide Optional Services, Including: physical and occupational therapy dental services prescribed drugs prosthetics private duty nursing “Durable Medical Equipment” (DME) fits within medical service called “home health service”.

8. Is “Home Health Service” and Therefore DME, a Mandatory or Optional Category? Courts are divided. A state plan must provide “home health services” to any individual eligible for skilled nursing services. Skilled nursing services is a mandatory service for categorically eligible individuals. Advocates have argued: DME is therefore a mandatory service. But, some courts have held that DME is optional.

9. An Item of Assistive Technology May Fit Within More Than One Medical Service Category: Wheelchair may be: DME Prosthetic Augmentative communication device may be: • DME • Prosthetic devices • Speech-language pathology equipment

10. Must “Optional” Services Be Sufficient in Amount, Duration, and Scope? Some courts have said “yes” See, Lankford v. Sherman, 451 F.3d 496 (8th cir. 2006)

11. History of EPSDT Program Congress passed amendments to the Medicaid Act in 1967: Created a category of services called the Early, Periodic Screening, Diagnosis and Treatment Program Applies to Medicaid recipients under the age of 21

12. EPSDT Amendment Provided For: Early and periodic screening and diagnosis to ascertain physical or mental defects, and Such health care, treatment or other measures to correct or ameliorate defects and chronic conditions discovered by the screen Purpose was to diagnose and treat conditions early, before they become more complex and expensive

13. Amendments of the Medicaid Act in 1989 Strengthened and Expanded EPSDT States required to provide EPSDT services “whether or not such services are covered under the State plan”. 42 U.S.C. § 1396d(r)(5) All optional services become mandatory services for Medicaid recipients under the age of 21

14. EPSDT Program Is Comprehensive and Preventative Health Care Program outreach and informing screening diagnosis treatment adequate provider participation reporting States’ EPSDT programs must include: See: CMS State Medicaid Manual, Part 5 (www.cms.hhs.gov/manuals, under “Paper- based Manuals”)

15. Assessments (Screenings) Must Include the Following Elements: gross and fine motor development communication skills or language development self-help or self-care skills social-emotional development ability to engage in social interaction cognitive skills, focusing on problem solving or reasoning

16. As Children Age, Assessments Should Include: visual-motor integration visual-spatial organization visual sequencing processing skills auditory sequential memory

17. Assessments for Adolescents Should Include: identification of potential learning disabilities peer relations psychological/psychiatric problems vocational skills

18. EPSDT Broadens Definition of “Medical Necessity” maximize child’s opportunity for cognitive development allow him to be more responsible for own self-care and safety foster his learning capacity foster his general ability to explore his environment “as is necessary for any child his age” Matter of J.P., NY FH # 3689971R; Sip-and-puff mechanism for wheelchair was necessary to:

19. C.F. v. Dept of Children and Families, 934 S.2d 1 (Fla.App.2005) State is required to provide services that support and sustain rather than treat. State failed to incorporate EPSDT requirements into definition of “medical necessity.”

20. S.D. ex rel Dickson v. Hood, 391 F.3d 581 (5th Cir. 2004) Without incontinence supplies child would be homebound, isolated, unable to attend school, or engage in other age-appropriate activities. Congress did not grant states discretion to define the types of services available pursuant to EPSDT.

21. Matter of John, NY FH # 4337314K Decision rejected agency’s argument that child always had a caregiver present who could push him. Continued reliance on caregivers to push him would be developmentally inappropriate for child.

22. Department of Community Health v. Freels, 576 S.E.2d 2 (Ga. 2002) Federal law did not require proof that: hyperbaric oxygen therapy (HBOT) is the accepted standard of medical practice, or that it meets the definition of medical necessity reserved for adult Medicaid recipients • Department should have focused on whether HBOT was necessary to correct or ameliorate this child’s condition.

23. Jackson v. Millstone, 801 A.2d 1034 (Md. 2002) Two children required life-saving liver transplants. Medicaid approved funding for one, and denied funding for the other, claiming a transplant was not “appropriate” because of two prior failed transplants. • The state’s “appropriateness” criteria exceeded the dictates of federal law under EPSDT.

24. EPSDT Mandates a Broad Range of Services Some categories that might include AT: • home health care services (DME) • physical and occupational therapy and speech language pathology (all include necessary equipment) • prosthetic devices • eyeglasses • other... preventive and rehabilitative services

25. CMS Policy Letters March 7, 1996; “State Agency Letter Number 93-25. Devices that fall directly under a service category and determined to be medically necessary must be provided to Medicaid recipients under the age of 21.

26. CMS Policy Letters,continued Pursuant to EPSDT, following services are available if medically necessary: • computers, such as the Apple II Computer with printers, computer software • exercise equipment including exercise bikes, swing sets, and tricycles • communication devices such as the Dynavox • specialized eating utensils and other daily living aids

27. Enforcement of EPSDT State court enforcement of state and federal claims; Federal court: § 1983 (section specific) Supremacy Clause

28. Statutes: 42 U.S.C. § 1396a(a)(10)(A), (D) 42 U.S.C. § 1396d(a)(1)-(5), (17), (21) 42 U.S.C. § 1396d(a)(4)(B) 42 U.S.C. § 1396d(r)(5) 42 U.S.C. § 1396d(a)(7), (11), (12), (13)

29. Regulations: 42 C.F.R. §§ 440.10-440.50, 440.210, 440.165, 440.166 42 C.F.R. § 440.70(b)(3) 42 C.F.R. § 440.110 42 C.F.R. § 440.230 42 C.F.R. § 441.50 et seq 42 C.F.R. § 441.56

30. Cases: Friedman v. Berger, 409 F. Supp. 1225-26 (D.C.N.Y. 1976) Friedman v. Berger, 547 F.2d 724, 727, N. 7 (2nd Cir. 1976), cert. denied, 430 U.S. 984 (1977) Charpentier v. Kizer, 1990 WL 252191 (E.D. Cal. 1990) Ohlson v. Weil, 953 P.2d 939 (Colo. App. 1997) Fred C. v. Texas Health & Human Services Comm, 924 F. Supp. 788 (W.D. Tex. 1996) William T. ex rel Gigi T. v. Taylor, 465 F. Supp. 2d 1267 (N.D. Ga. 2000)

31. Cases, continued Meyers by Walden v. Reagan, 776 F.2d 241 (8th Cir. 1985) Lankford v. Sherman, 451 F.3d 496, 511 (8th Cir. 2006) Brisson v. Dept. of Social Welfare, 701 A.2d 405 (Vt. 1997) Callen v. Rogers, 168 P.3d 907 (Az. App. Div 1, 2007) Esteban v. Cook, 77 F. Supp. 2d 1256 (S.D. Fl. 1999) Frew v. Gilbert, 109 F. Supp. 2d 579, 662 (E.D. Tex. 2000)