Fact Sheet on Medicaid EPSDT Litigation

The Early and Periodic Screening, Diagnostic and Treatment (EPSDT) provisions are among the most specific in the Medicaid Act. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43), 1396d(a)(4)(B), 1396d(r). Over the years, states have not adhered to these clearly articulated responsibilities, and litigation has resulted. This issue brief discusses case trends and summarizes recent cases in an annotated case docket.
Case Trends
Individuals with developmental and behavioral health needs are enforcing EPSDT to gain access to community-based and evidence-based services and therapies. EPSDT establishes a broad scope of benefits?all the services listed within the Medicaid Act at 42 U.S.C. § 1396d(a)?and a uniform medical necessity definition?services needed to ?correct or ameliorate? the child?s physical or mental conditions. 42 U.S.C. § 1396d(r)(5).
Advocates are citing these broad treatment requirements to obtain coverage for a range of services that children need to live at home and in the community, including rehabilitative services, case management, home health care, and personal care services. Successful litigation involves clear facts establishing the need for the service and that the service has been denied by the state Medicaid agency or a managed care organization contracting with the state Medicaid program.
A child?s treating providers may not prescribe services using Medicaid terms. The provider is making a clinical decision, not a legal one. While the prescribed service may not be mentioned by name as a covered service in the Medicaid Act, case law establishes that the service must 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. Applied behavioral analysis for a child with autism may be covered as a rehabilitative service. A cochlear implant may be covered as a prosthetic device.

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