EPSDT Cases (2007)

Executive Summary

EPSDT case docket 2007

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.
Case Annotations
A.G. ex rel. Giddens v. Arnold, No. 5:05CV2790C10GRJ, 2006 WL 334218 (M.D. Fla. Feb. 13, 2006).
Background: A Medicaid EPSDT recipient with various conditions, including developmental delay, scoliosis, paraplegia, hydrocephalus, and spina bifida, requested coverage of a power wheelchair with a lift system.  The claims were based on 42 U.S.C. § 1396 (stating purpose of the Medicaid Act), § 1396d(r) (requiring coverage of all Medicaid coverable services needed to correct or ameliorate problems); and § 1396a(a)(10)(B)(I) and 42 C.F.R. § 440.220 (regarding amount, duration and scope of medical assistance).  The plaintiff did not specifically base her claims on any of the EPSDT provisions.  The defendant moved to dismiss, arguing that the provisions cited by the plaintiffs were not enforceable through Section 1983 because they did not create a federal right to the type of power wheelchair she sought.  
The Court?s Decision:   The court dismissed the claims, holding that the Medicaid provisions were not enforceable because they did not provide evidence of Congressional intent to impose a binding obligation on the defendant to provide the plaintiff with a power wheelchair. Moreover, according to the court, amendment of the complaint would be futile. 
C.F. v. Dep?t Children and Families, 934 So.2d 1 (Fl. Dist. Ct. App. 2005).
Background: Plaintiff is a nine-year-old Medicaid EPSDT recipient with severe disabilities, including mental retardation, brain damage, bronchopulmonary dysplasia and ADD.  He receives numerous Medicaid-covered services including six hours of personal care services per day.  After a review of his case, his personal care services hours were reduced to four per day, based on the state?s medical necessity definition.  Despite the testimony of the plaintiff?s treating physician stating six hours of services were medically necessary, the reduction was upheld by an administrative hearing officer.
The Court?s Decision: The court reversed this decision, holding that it improperly applied a narrower definition of medical necessity than that contained in the federal EPSDT statute.  Under the state?s definition, in order for services to be medically necessary, they 

must meet the following conditions: (1) be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; (2) be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs; (3) be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; (4) be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and (5) be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.  Fl. Admin. Code R. 59G-1.010(166) (emphasis added).  The court held that this was significantly narrower than EPSDT?s requirement that a service simply be necessary ?to correct or ameliorate? a physical or mental illness or condition.  42 U.S.C. § 1396d(r)(5).  In addition, the court held that the definition of ?personal care services? applied was narrower than the federal statutory definition.  Finally, the court held that the hearing officer failed to give appropriate deference to the opinion of the plaintiff?s treating physician. In August, 2006, the judge denied a subsequent rehearing. C.F., rehearing denied, (Fla. App. Aug. 10, 2006).
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.
Background: A class of individuals with disabilities (including children and youth under age 21) claimed that state Medicaid program denied access to Medicaid-covered dental services.  Plaintiffs argued that defendant had violated a number of Medicaid provisions, including: 42 U.S.C. § 1396a(a)(10)(A), § 1396a(a)(8) and 42 C.F.R. § 435.930 (requiring that medical assistance be provided with reasonable promptness); 42 U.S.C. § 1396a(a)(30)(A) (requiring adequate rates); and 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43), 1396d(a)(4)(B), and 1396d(r) (requiring EPSDT).  Both sides filed motions for summary judgment.
The Court?s Summary Judgment Decision: On October 7, 2004, the court denied plaintiff?s summary judgment motion, and partially granted defendant?s.  It held that each of the provisions cited by the plaintiffs conferred rights enforceable through Section 1983.  It granted defendant summary judgment on plaintiffs? reasonable promptness claim, reasoning that the statutory section only guaranteed the right to payment for services, not to the provision of services themselves.  The court did, however, acknowledge that the EPSDT provisions require more than mere payment for services and impose affirmative obligations to ?play a more direct role.?  The claims of inadequate rates and EPSDT violations were allowed to proceed to trial.  
The Court?s Trial Decision: After an eight day trial, on August 17, 2005, the court ruled in favor of the defendant, finding that plaintiffs failed to carry their burden of proving violations of the EPSDT and equal access provisions.  Among other things, the court held that: (1) the defendant had a proper periodicity schedule for screenings that had been formulated in consultation with the Pediatric Dental Association and the Academy of Pediatricians; (2) the defendant complied with the informing requirements, evidenced by managed care organizations? compliance with the informing requirements in their contracts and the fact that defendant mailed out informational letters, handbooks and brochures; made and fielded phone calls from recipients; and maintained a website with ?a wealth of information.?  Slip. Op. at 85.  Finding no violation of the treatment requirements, the court discounted general statements that recipients had difficulty finding treatment as ?at best abstract observations of areas needing continued attention and improvement.?  Slip. Op. at 85.  
Ekloff v. Rodgers, 443 F. Supp. 2d 1173 (D. Ariz. 2006). 
Background: As a result of their disabilities, the Plaintiff children were bowel and/or bladder incontinent and needed briefs in order to avoid skin breakdown and infection and to enable them to participate in social, community, therapeutic, and educational activities. The question was whether briefs for preventive purposes fit within the EPSDT provision under the phrase "to correct or ameliorate."  42 U.S.C. § 1396d(r)(5). The U.S. Congressional record reflected the broad nature of the intent for the program to assure that health problems were diagnosed early, before they became more complex and costly. The briefs were meant to prevent skin sores before they became more open wounds, which would be more expensive to treat and painful to the children. There was a very strong inference that the provision was meant to be inclusive rather than exclusive. 
The Court?s Decision: The court held that the State was obligated under 
§ 1396d(r)(5) to cover the briefs and to reimburse the parents.  A permanent injunction enjoined the State from denying the briefs for preventive purposes. Defendant was ordered to reimburse the parents for their out-of-pocket expenses for providing the briefs and for costs associated with litigation of the case.
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). 
Background:  In 2000, a class of more than one and one-half million indigent, EPSDT-eligible children in Texas moved to enforce multiple provisions of a consent decree with which defendants allegedly had not complied. The district court found that abundant evidence was presented showing defendants? violations. The evidence was sorted into five categories:  evidence of class members' lack of knowledge of defendants' services, evidence related to defendants' transportation system, evidence that plaintiffs do not often obtain services after having received outreach contacts, evidence of plaintiffs' low participation in defendants' programs, and evidence of defendants' insufficient staffing of their outreach programs.
The Courts? Decisions:  In 2002, Fifth Circuit Court of Appeals found that the district court had exceeded its jurisdiction by enforcing the consent decree where the plaintiffs had failed to show any violation of the Medicaid statute and the state did not waive sovereign immunity. The U.S. Supreme Court reversed the circuit court?s holding finding that the federal courts had the authority to enforce their orders, and the case was remanded for further proceedings. See Frew v. Hawkins, 540 U.S. 431 (2004). On remand, the district court denied defendant?s motion to dissolve the consent decree. 
On appeal, the Fifth Circuit affirmed the trial court?s refusal to dissolve the decree. Contrary to defendants' claim, compliance with federal law was not the sole object of the consent decree. Instead, the object was to require defendants to implement the Medicaid statute in a highly detailed way. Because the object of the decree was not satisfied, the court affirmed the denial of the motion.

On July 9, 2007, District Judge William Wayne Justice approved a settlement of the 14-year-old class action case.  The approval followed a decision by the Texas Legislature to allocate more than $700 million over the next two years to improving children?s health services.  The settlement contains eleven corrective measures, including agreements by the state to improve transportation services, increase dental and physician payments, provide case management services to children who request them, and to improve outreach efforts to families.  The state also agreed to hire more case workers.  The corrective actions plans are posted at http://www.hhs.state.tx.us. 
Hawkins v. Comm?r of the N.H. HHS, 2004 DNH 23, No. 99-143-JD, 2004 WL 166722 (D. N.H. Jan. 23, 2004).
Background and The Court?s Decision:  Plaintiff children filed suit on behalf of a class of current and future EPSDT-eligible individuals enrolled in New Hampshire?s Medicaid program, alleging that defendants failed to adhere to EPSDT requirements in the provision of dental services. The parties reached a settlement that certified the class and required: (1) defendant to comply with federal EPSDT statutes and regulations, listing each requirement specifically in the settlement; (2) allocation of $1.2 million for EPSDT dental services; (3) retained jurisdiction for five years, with an additional sixth year for measuring compliance.  The court approved the class certification and the settlement.
Health Care for All v. Romney, No. 00-10833-RWZ, 2005 WL 1660677 (D. Mass. July 13, 2005).
Background:  Plaintiffs, children eligible for Medicaid and an organization representing Massachusetts residents seeking dental care, sued defendants.  Plaintiffs alleged violations of a number of Medicaid provisions, including EPSDT requirements to inform individuals about EPSDT benefits and to provide for necessary treatment.  In an earlier proceeding, the court found the Medicaid requirements at issue to be enforceable through Section 1983.  Health Care for All, No. Civ.A.00-10833-RWZ, 2004 WL 3088654 (D. Mass., October 01, 2004).
The Court?s Decision: The court held that Massachusetts? low Medicaid payment rates for dentists significantly contributed to a lack of available providers for children. This provider shortage, in large part, led the court to find the State in violation of the Medicaid Act requirements for prompt provision of EPSDT services. 
Plaintiffs detailed the hardships they experienced in finding dentists who would accept Medicaid and who would do so in a timely manner. Defendants argued that their responsibility under the Medicaid Act was to provide prompt medical assistance (i.e. payment), not to ensure prompt receipt of medical care. They argued that any shortcoming on their part should be addressed by the federal government, not by the courts, insisting that they only had to substantially, not fully, comply with the statute. Finally, defendants asserted that any differences between Medicaid recipients? and privately insured patients? use of dental care should be attributed, not to a lack of Medicaid providers, but to cultural and educational differences between the two populations.
The court disagreed with each of the Defendants? arguments. For example, while recognizing that there might be other contributing factors, the judge discussed at length the effect of low reimbursement rates on dentists? willingness to become Medicaid providers, finding that dentists will usually forgo this option because accepting Medicaid means accepting a loss. The court struck a middle ground between the Defendants? assertion that they had no responsibility to ensure the promptness of medical care and the Plaintiffs? argument that the Defendants should be ?ultimately responsible? for service delivery, stating, ?[a] state may not circumvent a statutory duty for prompt payment by under-funding a mandatory Medicaid service to the degree that no health care practitioners can afford to provide the service. Setting reimbursement levels so low that private dentists cannot afford to treat Medicaid enrollees effectively frustrates the reasonable promptness provision by foreclosing the opportunity for enrollees to receive medical assistance at all, much less in a timely manner.? 
Plaintiffs further alleged that the Defendants failed in their responsibility to inform them of the EPSDT program; to ensure adequate provision of dental screens and services; and to recruit and retain sufficient providers to meet the EPSDT dental needs. Finding for the Plaintiffs, the court, noting that the State?s literature and customer service were often outdated and incorrect, said, ?[n]otices that accurately inform an enrollee about the need for screening but then inaccurately explain the means to obtain such screening do not satisfy defendants? obligation to notify.? The court noted that its holding did not rely on the theory of inadequate reimbursement to providers; instead, the judge relied on the evidence of inadequate and inaccurate materials, the high volume of customer complaints, and the ?shockingly low? numbers of children enrolled in Medicaid versus children enrolled in a private insurance plan who received dental services.
Finally, the court found that, because of the negative effect of the Defendants? reimbursement on the availability of Medicaid providers, Medicaid enrollees were unable to find participating providers and thus unable to take advantage of the periodic treatment at reasonable intervals outlined in the State?s EPSDT dental protocol. Recognizing the similarity between the reasonable intervals and reasonable promptness issues, the judge said, ?A child who cannot find a participating provider certainly cannot obtain dental care at the prescribed intervals.?  The court ordered the parties to confer and develop a joint remedial program.
The Joint Remedial Program:  The parties submitted a First Joint Report on Proposed Remedial Program which outlined the program.  Further details were provided in the court?s Judgment, dated February 3, 2006.  Among other measures, the Remedial Program requires:
  • member assistance and intervention, which includes assistance in making and keeping appointments and with transportation;
  • developing and maintaining a provider network, including instituting a practice of contacting any provider announcing intent to withdraw and attempting to discover why and to convince them not to do so;
  • appropriations in FY 2007 to increase reimbursement rates, followed by subsequent study to determine whether further increase is necessary;
  • instituting a practice of sending out information at six month intervals, 60 days after eligibility determination and redetermination, and sending targeted information to individuals for whom there has been no Medicaid claim in the past year;
  • appointing a monitor; and 
  • requiring reports from the parties and the monitor to the court
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