Medicaid EPSDT Case Developments
This docket provides citations to significant cases published from 2004 to date, summarizes case trends, and offers summaries of the major cases.
Case Citations
A.G. ex rel. Giddens v. Arnold, No. 5:05CV2790C10GRJ, 2006 WL 334218 (M.D. Fla. Feb. 13, 2006).
Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456 (D. Neb. 2007) (finding EPSDT provisions privately enforceable; granting state?s motion to dismiss based on Younger abstention).
C.F. v. Dep?t Children and Families, 934 So.2d 1 (Fl. Dist. Ct. App. 2005).
Clark v. Richman, 339 F. Supp. 2d 631 (M.D. Penn. 2004), later decision, No. 4:00-CV-1306 (M.D. Penn. Aug. 17, 2005.
Ekloff v. Rodgers, 443 F. Supp. 2d 1173 (D. Ariz. 2006).
Equal Access for El Paso v. Hawkins, 428 F. Supp. 2d 585 (W.D. Tex. 2006), appeal docketed, No. 3:03CV00440 (5th Cir. Nov. 6, 2006).
Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006), cert denied, 127 S.Ct. 1039 (2007), later decision, No. 3:93CVO65WWJ (E.D. Tex. July 9, 2007) (settlement) (previous citations omitted).
Hawkins v. Comm?r, No. Civ. 99-143-JD, 2004 WL 166722 (D. N.H. Jan. 23, 2004).
Health Care for All v. Romney, No. 00-10833-RWZ, 2005 WL 1660677 (D. Mass. July 13, 2005).
Jacobus v. Dep?t of PATH, 177 Vt. 496, 857 A.2d 785 (S.Ct. 2004).
J.D. ex rel. Devantier v. Sherman, No. 06-4153-CV-C-NKL, 2006 WL 3163053 (W.D. Mo. Oct. 27, 2006).
Katie A., ex rel. Ludin v. L.A. County, 481 F.3d 1150 (9th Cir. 2007), rev?g & remanding, 433 F.Supp.2d 1065 (C.D. Cal. 2006).
Lawson ex rel. Lawson v. Dep?t of Health and Soc. Servs., No. Civ. A. 02A09002HDR, 2004 WL 440405 (Del. Super. Feb. 25, 2004).
Memisovski ex rel. Memisovski v. Maram, No. 92-C-1982, 2004 WL 1878332 (N.D. Ill. Aug. 23, 2004).
Moore ex rel. Moore v. Medows, No. 1:07-CV-631-TWT, 2007 WL 1876017 (N.D. Ga. June 28, 2007) (rejecting state?s abstention request and families? preemption claim).
Okla. Chapter of Am. Acad. of Pediatrics v. Fogarty, 472 F.3d 1208 (10th Cir. 2007), rev?g, No. 01CV0187CVE-SAJ, 2006 WL 1623529 (N.D. Okla. June 6, 2006), petition for cert. filed, 75 U.S.L.W. 3622 (U.S. May 7, 2007) (No. 06-1482).
Pediatric Specialty Care v. Ark. Dep?t Human Servs., 443 F.3d 1005 (8th Cir. 2006), cert. granted, judgment vacated in part, remanded with instructions to dismiss appeal as moot sub nom. Selig v. Pediatric Specialty Care, _ S.Ct. _, 2007 WL 1802012 (June 25, 2007).
Radaszewski v. Garner, 805 N.E.2d 620 (Ill. App. Ct. 2003), appeal denied, 823 N.E.2d 978 (Ill. 2004).
Rosie D. v. Romney, No. 01-30199MAP, 2007 WL 51340 (D. Mass. July 16, 2007) (judgment), earlier decision, 474 F. Supp. 2d 238 (2007) (adopting state?s proposed plan with provisos), same case, 410 F.Supp.2d 18 (2006) (judgment for children as to liability), same case, 256 F.Supp.2d 115 (2003) (regarding discoverable documents), same case, 310 F.3d 230 (1st Cir. 2002) (denying state?s motion to dismiss).
S.A.H. ex rel. S.J.H. v. Dep?t of Soc. & Health Servs., 149 P.3d 410 (Wash. Ct. App. 2006).
S.D. ex rel. Dickson v. Hood, 391 F.3d 581 (5th Cir. 2004), aff?g., No. Civ. A. 02-2164, 2002 WL 31741240 (E.D. La. Dec 05, 2002).
Semerzakis v. Wilson-Coker, 873 A.2d 911 (Conn. 2005), rev?g, No. CV030520876S, 36 Conn. L. Rptr. 237, 2003 WL 23177501 (Conn. Super. Dec 24, 2003).
Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir. 2006), aff?g in part and rev.g in part,368 F.Supp.2d 740 (E.D. Mich. 2005) (previous citations omitted).
Case Trends
Individual beneficiaries are successfully enforcing the EPSDT statutes (e.g. S.F., Ekloff, Jacobus, S.D.). 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.
Individuals with behavioral health needs are looking to EPSDT for help (e.g. Katie A., Rosie D). 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.
Courts are requiring extensive evidentiary proof in cases alleging a systemic breakdown of the EPSDT program (e.g. Frazer, Katie A., Memisovski, Rosie D.). Advocates have obtained favorable decisions in cases challenging systemic problems with EPSDT programs. 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.
Judges are looking at whether children and their families should have access to the federal courts to enforce the EPSDT provisions (e.g. Clark, Carson P., Ekloff, Health Care for All, Memisovski, Oklahoma Chap. of Am. Acad. of Pediatrics, S.D., Westside Mothers, Moore). To date, courts have fairly consistently held or expressly assumed that the EPSDT provisions, 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43), 1396d(a)(4)(B), and1396d(r), can be privately enforced through 42 U.S.C. § 1983. An exception is the Florida case, A.G. v. Arnold. In that case, the court correctly refused to rule on the plaintiffs? state law claims (based upon current Supreme Court sovereign immunity doctrines) and also found that the plaintiff had failed to show that the EPSDT provisions ?created a federal right to a power wheelchair.?
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.
In another disturbing development, states are increasingly asking the federal courts to abstain from deciding Medicaid claims to allow administrative law judges or state courts to rule on the issue (e.g. Carson P., Moore). To date, most courts have rejected these requests; however, this issue should be monitored closely.
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