Consider the following scenario: Under the Medicaid program for children (called Early and Periodic Screening, Diagnostic, and Treatment, or EPSDT), each enrolled child under age 21 should be promptly screened for health problems. The screening must occur at periodic, pre-set intervals. So what if the child didn’t have the right to prompt treatment for needs revealed by these screenings? That can’t be right—practically or legally. Yet, that’s what the State of Massachusetts is arguing in a Medicaid case now pending at the First Circuit Court of Appeals. The case, Rosie D. v. Baker, concerns EPSDT Treatment services needed by children with serious emotional disturbances (SEDs). One of these services is Intensive Care Coordination, or ICC. According to standards developed by health care providers along with the State in Massachusetts who work with affected children, ICC services should begin within 14-days. Timely ICC services are pivotal because they tie the child to other necessary behavioral health services and supports.
The National Health Law Program recently filed an amicus (or “friend of the court”) brief in Rosie D, joined on the brief by the American Academy of Pediatrics, the Massachusetts Chapter of the AAP, Judge David L. Bazelon Center, and National Center for Youth Law. Our brief details the legislative and administrative history of EPSDT to explain to the court that Congress could not have intended timely EPSDT to stop with a diagnosis and promise of treatment.
For example, when he introduced the EPSDT law, President Johnson explained it was rooted in the right to prompt treatment, stating: “The problem is to discover, as early as possible, the ills that handicap our children. There must be continuing follow-up and treatment so that handicaps do not go untreated.” After EPSDT was enacted in 1967, the federal Medicaid agency issued guidance documents making it clear that states must ensure that necessary treatment is promptly provided. The agency’s Medical Assistance Manual explained the basic EPSDT obligations. Among them: states were to enlist a range of health providers so that EPSDT can achieve “early casefinding and diagnosis, as well as prompt and effective treatment. . . .” Regulations issued in 1983 included, in the words of the agency, “a set of requirements directed at assuring that services are delivered to children in timely fashion.” One of these regulations, 42 C.F.R. § 441.56(e), says the state Medicaid agency must consult with medical professionals to set standards for the timely provision of EPSDT and “employ processes to ensure timely initiation of treatment, if required, generally within an outer limit of 6 months after the request for screening services.” According to the agency, the regulation is intended “to make clear that States must employ methods to ensure timely delivery and assure providers’ compliance with their agreements.”
Congress amended the EPSDT provisions in 1989 to clarify and strengthen them, for example requiring states to “arrang[e] for (directly or through referral to appropriate agencies, organizations, or individual) corrective treatment” that a child needs. Again, the federal Medicaid agency issued controlling guidance. The agency’s State Medicaid Manual describes states’ obligations to operate EPSDT as “a comprehensive child health program of prevention and treatment, to systematically . . . [a]ssess the child’s health needs through initial and periodic examinations and evaluation, and [a]ssure that health problems found are diagnosed and treated early, before they become more complex and their treatment more costly.” Most recently, the agency’s 2014 EPSDT Coverage Guide for States provides that
[t]he goal of EPSDT is to assure that individual children get the health care they need when they need it–the right care to the right child at the right time in the right setting. . . . The affirmative obligation to connect children with necessary treatment makes EPSDT different from Medicaid for adults . . . [and] . . . is a crucial component of a quality child health benefit.
Acceptance of the State’s argument would mean that federal EPSDT law, which was enacted to ensure that children’s mental and physical conditions are found and treated as early and effectively as possible, does not actually require timely treatment. A court’s acceptance of the State’s argument would make EPSDT a rather meaningless promise for Medicaid-enrolled children: Children would know what their problems are and what is needed to correct or ameliorate them … but would have to wait until some unknown time when the State, or its managed care agents, decided they were ready, willing, and able to actually provide the services that the child needs. Given the positive results that Rosie D. has generated for thousands of children with SEDs, the State should continue to run toward full compliance with the law, not ask a court to allow it to back away from it.
The First Circuit has set February 3, 2020 for the oral argument in Rosie D. The children in this case are represented by the Center for Public Representation in Northampton, Massachusetts.
