Q. My client has an 11-year-old daughter whose doctor requested coverage for 80 hours per week of private duty nursing. The state Medicaid agency denied the request, stating that 80 hours were unnecessary and authorizing 30 hours per week. The state?s attorney cited Moore v. Reese. Please explain this case and how it could affect my clients who depend on EPSDT.
A. Moore v. Reese is a recent case decided by the Eleventh Circuit Court of Appeals. The case requires the impartial decision-maker (administrative or judicial) to weigh both the treating provider and the state?s arguments when there is a disagreement as to the proper amount of a covered Medicaid service.
Discussion
Moore v. Reese was filed after the Georgia Medicaid agency reduced coverage of Callie Moore?s private duty nursing services from 94 to 84 hours per week over the objection of Callie?s long-time treating physician. See Moore v. Reese, 637 F.3d 1220, 1224-29 (11th Cir. 2011) (petition for rehearing denied, May 15, 2011).
Sixteen-year-old Callie is severely disabled and requires continuous treatment, monitoring and interventions by her caregivers. The Medicaid agency?s medical director testified that Callie?s services were reduced based on community norms regarding medical necessity and the cost of care. He also testified that Callie?s condition was relatively stable and her mother could assume responsibility for her care. Id. at 1227-28. After hearing testimony in the case, the district court determined that the state agency needed to defer to the recommendation of the treating physician and granted summary judgment for Callie. According to the district court,
[t]he state must provide for the amount of skilled nursing care which the Plaintiff’s treating physician deems necessary to correct or ameliorate her condition. The Defendant may not deny or reduce the hours of skilled nursing care that is medically necessary based upon cost or the lack of a secondary caregiver.
Moore v. Medows, 563 F. Supp. 2d 1354, 1357 (N.D. Ga. 2008). The district court relied on 1989 amendments to the Medicaid Act?s Early and Periodic Screening, Diagnostic and Treatment (EPSDT) provisions, which require states to cover necessary services listed in the Medicaid Act (§ 1396d(a)) when needed to ?correct or ameliorate? a child?s physician or mental condition. Id. (citing 42 U.S.C. § 1396d(r)(5)). The court concluded that these amendments strictly limited the state?s discretion not to provide physician-prescribed treatments for individuals under age 21. Id.
The state agency appealed the decision to the Eleventh Circuit Court of Appeals, which reversed and remanded the case in a brief, unpublished order. 324 F. App?x 773 (11th Cir. 2009). The Court held the state was not excluded from the determination of medical necessity, the private doctor?s word was not the final decision, and both the state and provider had roles to play. Left unanswered were questions as to exactly what these roles are when there are conflicting opinions between the doctor and the state?s medical experts about the amount of care that Medicaid will cover. On remand, the district judge recognized the state?s role in the coverage review but limited that role to determining whether the treating physician?s recommendation was the result of fraud or in conflict with reasonable standards of medical care. 674 F. Supp. 2d 1366, 1370 (N.D. Ga. 2009).3
Again, the state agency appealed. On April 7, 2011, the Eleventh Circuit once again reversed and remanded the case. See Moore v. Reese, 636 F.3d 1220 (11th Cir. 2011). The Court?s opinion focuses on the ?hotly disputed? issues concerning what amount of private duty nursing hours the state must provide under the Medicaid Act, the parameters of the roles played by the treating physician and the state Medicaid agency in making that determination, and what happens when the treating physician and the state?s medical expert disagree as to the amount of services that are necessary. Id. at 1235. The Eleventh Circuit takes a methodical, if not entirely correct, approach to reviewing these questions. The Court assesses the 1989 Medicaid EPSDT amendments, 42 U.S.C. § 1396d(r)(5); federal regulations that require states to cover a sufficient amount duration and scope of services and allow them to place limits on services based on medical necessity, 42 C.F.R. § 440.230; and CMS, State Medicaid Manual § 5122, which provides that states must cover EPSDT services to ?correct or ameliorate? conditions, but also notes, ?You [the state] make the determination as to whether the service is necessary. You are not required to provide any items or service which you determine are not safe and effective and which are considered experimental.? Id. (quoting CMS, State Medicaid Manual § 5122); See also Id. (stating § 440.230 allows states to establish amount, duration, and scope of benefits, so long as the limits are reasonable and comport with the statutory ?correct or ameliorate? requirements). The Court also reviewed previous cases that decided Medicaid coverage disputes: Beal v. Doe, 432 U.S. 438 (1977) (allowing state?s Medicaid plan to limit coverage of non-therapeutic abortions); Curtis v. Taylor, 625 F.2d 645 (5th Cir. 1980) (allowing state?s Medicaid plan to impose three visit per month limit on physician services);4 Rush v. Parham, 625 F.2d 1150 (5th Cir. 1980) (holding state Medicaid agency may adopt a reasonable definition of medical necessity and exclude experimental treatments); and Pittman v. Department of Health and Rehabilitative Services, 998 F.2d 887 (11th Cir. 1993) (holding EPSDT required coverage of medically necessary organ transplant). Ultimately, the Court joined these legal strands together to form guiding principles for decision makers:
- Georgia is required to adhere to the Medicaid EPSDT provisions and must cover private duty nursing services under EPSDT when they are medically necessary to correct or ameliorate a child?s condition.
- The state?s Medicaid plan must include reasonable standards for determining the extent of medical assistance that must be consistent with Medicaid?s objectives, specifically EPSDT.
- The state can adopt a definition of medical necessity that places limits on a service based on medical necessity, therefore limiting a physician?s discretion so long as the state does not discriminate based on condition. The state can also establish standards for a physician to use when determining what services are necessary in a particular case.
- The state can establish the amount, duration and scope of services required under EPSDT (citing 42 C.F.R. § 440.230 and the State Medicaid Manual) and is not required to provide medically unnecessary, though desired, EPSDT services.
- The treating physician assumes the primary responsibility for determining the child?s treatment needs, but both the state and physician have roles to play. If there is a dispute over the proper amount of a service that Medicaid will cover, the decision-maker should review the recommendation of the treating physician on a case-by-case basis and allow the state agency to present its own evidence of medical necessity.
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