Docket of Medicaid Cases to Improve Dental Access

Executive Summary

Docket of EPSDT dental cases

This memorandum provides an annotated listing of Medicaid dental provider participation cases. It does not address the hundreds of cases involving the amount, duration and scope of dental services. 
Snapshot of findings:
We located a total of 27 cases, from 21 jurisdictions: Arkansas, California, Connecticut, District of Columbia, Florida, Illinois, Indiana, Kentucky, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, and West Virginia. 
The complaints in these cases cite a number of Medicaid Act provisions but focus on the following:
  • 42 U.S.C. § 1396a(a)(8) (the ?reasonable promptness? requirement that Medicaid to be provided with reasonable promptness)
  • 42 U.S.C. § 1396a(a)(30)(A) (the ?equal access? requirement that payments to be consistent with efficiency, economy, quality of care and assure equal access) 
  • 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43), 1396d(a)(4)(B), 1396d(r) (the ?EPSDT? requirement for comprehensive Early and Periodic Screening, Diagnosis and Treatment (EPSDT) for children and youth under age 21) and implementing regulations, e.g. 42 C.F.R. §441.61(b) (requiring states to ?make available a variety of individual and group providers?) 
Historically, most cases have settled without a trial. The settlements typically have addressed payment rates and include provisions to address other barriers, such as claims processing, transportation, and lack of awareness among beneficiaries of the availability of dental services through Medicaid. Recently, however, states have been challenging the plaintiffs? right to enforce the Medicaid Act and/or refused to negotiate, thus requiring the issues to be decided by a trial. 

Trends in enforcement
 
1. Medicaid recipients? and providers? rights to bring Medicaid cases are being strenuously challenged in court. To date, the majority of decisions have maintained Medicaid beneficiaries? access to the courts. Most courts continue to allow private enforcement of four of the most critical Medicaid protections: 
 
  • 42 U.S.C. § 1396a(a)(10) (requiring states to provide medical assistance to all individuals who meet the listed qualifications)?all five circuit court rulings since 2002 enforcement;1
  • 42 U.S.C. § 1396a(a)(8) (requiring states to provide medical assistance with reasonable promptness)?all three circuit courts rulings since 2002 have allowed enforcement, 
  • 42 U.S.C. § 1983a(a)(3) (requiring states to assure individuals receive the opportunity for a fair hearing when their claim is denial or not acted on with reasonable promptness)?the only circuit court ruling since 2002 allows enforcement; and 
  • 42 U.S.C. §§ 1396a(a)(43), 1396d(a)(4)(B), and 1396d(r) (providing that Medicaideligible children will receive Early and Periodic Screening, Diagnostic and Treatment (EPSDT) and information about EPSDT)?all four circuit court rulings since 2002 have allowed enforcement. 
By contrast, private enforcement of other Medicaid provisions and by Medicaid providers is being sharply curtailed. The most affected provision is 42 U.S.C. § 1396a(a)(30)(A), which requires states to establish payments that are sufficient to ensure that Medicaid beneficiaries have access to covered services at least to the extent of the general population. Known as the ?equal access provision,? this requirement was enforced in federal court by Medicaid beneficiaries and/or providers during the 1990s. Since 2002, however, four circuit courts have refused to allow private enforcement of the provision. Only the Eighth Circuit has ruled otherwise, and that case was vacated by the Supreme Court this past Term. 
2. Courts are reviewing enforcement questions on a provision-by-provision basis. Early on, three opinions seemed to adopt a sweeping application of Gonzaga to find that the Medicaid Act could not be enforced at all. The first of these decisions, Sabree v. Houston, formed the basis for the other two. Notably, Sabree was reversed by the Third Circuit Court of Appeals in 2004. And, at this point, the courts are fairly uniformly applying a provision-byprovision analysis. Although the provision-by-provision assessment does exact more painstaking briefing and analysis from the parties and the court, it is the consistent with the Supreme Court?s teachings. 
 
3. Courts are holding that federal regulations cannot be privately enforced by recipients or providers. On the other hand, courts continue to cite regulations as evidence of Congressional intent and have enforced regulations that flesh out the terms of a statute that creates federal rights. For example, in S.D. v. Hood, a case involving the Medicaid Early and Periodic Screening, Diagnostic and Treatment provisions, the Fifth Circuit Court of Appeals found that ?the rights-creating language relied upon by the plaintiff is contained in the statute itself. Furthermore, the regulations implementing the statute . . . are authoritative interpretations of the statute and are enforceable by § 1983.?2

 
4. Individual beneficiaries are successfully enforcing the EPSDT statutes. In a number of cases, individuals challenge the state Medicaid agency?s refusal to cover a needed service. These cases involve clear facts establishing the need for the service and that the service has been denied by the state or by a managed care organization contracting with the Medicaid program. While the service needed by the child may not be mentioned by name as a covered service in the Medicaid Act, these cases establish that the service can nevertheless be covered if it can be fit into a Medicaid box?that is, the service can properly be described as one of the Medicaid services listed in the Act, 42 U.S.C. § 1396d(a). For example, incontinence supplies may be covered as a home health, rehabilitative, or preventive service.3
5. Individuals with behavioral health needs are looking to EPSDT for help. Children with mental and behavioral health needs can benefit from the comprehensive package of benefits that EPSDT offers. Case management, care consistency, and a range of home and community based services are essential ingredients to maximize outcomes for these children. The recent cases have reiterated that EPSDT will cover many of the behavioral health services that children need, provided that those services can be fit within a Medicaid box. 
6. Courts are requiring extensive evidentiary proof in cases alleging a systemic breakdown of the EPSDT program. Advocates have obtained favorable decisions in cases challenging systemic problems with EPSDT programs, particularly where those cases were filed prior to 2002. In contrast to much of the EPSDT advocacy of the 1980s, however, a number of these cases have involved years of hard work, including extensive discovery, evidence gathering, and expert testimony. 
7. A disturbing string of recent cases raises another question: What is Medicaid? For example, in Oklahoma Academy of Pediatrics the Tenth Circuit finds that Medicaid is defined as ?medical assistance,? which is ?payment for all or part of? the care and services listed in the Medicaid Act. See 42 U.S.C. § 1396d(a). According to the Court, the only obligation on the state Medicaid program is to provide for prompt payment of claims for care and services when (and if) they are submitted, and there is no obligation to see that the care and services are actually provided promptly. The effect of this reasoning on EPSDT is not clear. The EPDST provisions call for the state to provide for screening and treatment services. See 42 U.S.C. § 1396a(a)(43). Notably, the Tenth Circuit expressly did not rule on the EPSDT provisions when it issued its otherwise negative decision. 
 

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