July Q & A: The Eighth Circuit’s decision in Lankford v. Sherman
Jamie D. Brooks and Sarah Somers
Question: What is the significance of the recent Eighth Circuit decision in Lankford v. Sherman?
Answer: The Court of Appeals reversed a denial of a preliminary injunction in a challenge to a Missouri Medicaid regulation. The rule strictly limited coverage of medical equipment, supplies and appliances for some Medicaid beneficiaries. While the Court held that beneficiaries did not have a private right of action to enforce Medicaid’s reasonable standards requirement through Section 1983, it also held that this federal requirement preempted conflicting state law.
Discussion
Background
The plaintiffs in Lankford filed suit to challenge a Missouri regulation governing the coverage of durable medical equipment, supplies and appliance (DME). The regulation, which became effective September 1, 2005, eliminated coverage of many items of DME for Medicaid recipients who are aged or disabled, but not blind. Under the new regulation, Medicaid recipients who are blind or pregnant are still entitled to the full scope of coverage. In contrast, adult Medicaid recipients who are not blind or pregnant can no longer receive coverage for many important items of DME including artificial larynxes, CPAPs, BiPAP, and IPPB machines; nebulizers; suction pumps; apnea monitors; or wheelchair accessories or scooters – regardless of whether their health care providers determined that these devices were medically necessary. Accordingly, thousands of Medicaid beneficiaries were at risk of increased illness and suffering.
The situation of lead plaintiff Susan Lankford is typical. Ms. Lankford suffers from a variety of medical conditions, including chronic obstructive pulmonary disease, bronchitis, asthma, emphysema, sleep apnea, irritable bowel syndrome, colonitis, diverticulitis and acid reflux. Ms. Lankford needs a number of items of DME for which coverage was eliminated, including a CPAP machine. Her health care provider had told her that going without the CPAP would increase her risk of premature death. Ms. Lankford has no way of paying for the machine without Medicaid coverage. Similarly, plaintiff Joey Everett, 21, was in a car accident that left him paralyzed with traumatic brain injuries. He was left with no purposeful movement, no ability to swallow and no speech. Further, he had very limited mental comprehension and required constant care. The new regulation eliminated coverage for many items that he needed, including catheters and equipment for a suctioning machine. His doctor had filed for an exception to the DME restrictions, which was denied.
Plaintiffs based their suit on violations of two Medicaid requirements. Plaintiffs argued that Missouri’s regulation violates Medicaid’s requirement that (1) benefits be comparable among categories of recipients because the state covers a greater scope DME benefits for blind recipients than it does for other adult Medicaid recipients and (2) that state Medicaid plans to include reasonable standards for determining eligibility for, and the extent of, medical assistance.
Plaintiffs argued that these statutory provisions could be enforced through an individual private right of action under 42 U.S.C. § 1983 and also that, under the Supremacy Clause, these statutory provisions conflicted with and therefore preempted Missouri’s regulation.
The District Court Decisions
In response to the motion for preliminary injunction, the defendant stated that Missouri had applied to the Centers for Medicare and Medicaid Services (CMS) for permission to waive the federal comparability requirement and argued that the court should therefore find that the plaintiffs were not likely to prevail on their claims. Additionally, the defendant claimed that the plaintiffs could still obtain necessary DME if they qualified for “home health” benefits under Missouri law or, sought an exception for non-covered DME items through the exceptions process. Accordingly, because these options are in place, the DME regulation did not cause irreparable harm to plaintiffs The court did not consider the reasonable standards claim but focused solely on the comparability claim. The district court accepted the defendant’s claims that a waiver would be granted by CMS. Further, the court held that because there was an exceptions process, the plaintiffs would not be harmed by the new regulation. Lankford v. Sherman, No. 05-4285-CV-CDW (Order, Sept. 13, 2005). Accordingly, the court denied the injunction and the plaintiffs appealed.
Missouri then filed a motion to dismiss the complaint due to a lack of jurisdiction and failure to state a claim. Among other things, Missouri argued that the comparability and reasonable standards were not enforceable by Medicaid beneficiaries. The district court rejected these arguments and denied the motion to dismiss. Lankford, (Order, Nov. 22, 2005).
While the plaintiff’s appeal was pending, CMS denied Missouri’s request for a comparability waiver. Missouri then informed CMS that it would not seek federal financial participation for DME for the blind but would instead use state funds. Thus, Missouri argued, the federal Medicaid requirements would not apply. Missouri then filed a motion to supplement the record claiming the plaintiff’s argument was now moot.
Tragically, Joey Everett, died while the appeal was pending. His doctor could not say whether the lack of necessary DME contributed to his death.
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