DeSario v. Thomas

Decision Date24 February 1998
Docket NumberNo. 289,D,289
Citation1998 WL 107858,139 F.3d 80
Parties, Medicare & Medicaid Guide P 46,134 Concetta DeSARIO and Betty Emerson, Individually & o/b/o all others similarly situated, Plaintiffs-Appellees, Caroline Stevenson and Thomas Slekis, Intervenors, v. Joyce A. THOMAS, Commissioner CT Dept. of Social Services, Defendant-Third-Party Plaintiff-Appellant, Donna Shalala, Commissioner, United States Department of Health and Human Services, Third-Party Defendant. ocket 97-6027.
CourtU.S. Court of Appeals — Second Circuit

Judith A. Merrill, Assistant Attorney General, Hartford, CT (Richard Blumenthal, Attorney General of the State of Connecticut, Richard J. Lynch, Assistant Attorney General, of counsel), for Defendant-Third-Party Plaintiff-Appellant.

Sheldon V. Toubman, New Haven, CT (Shelley A. White, New Haven Legal Assistance Association, Inc., Sue Garten, Legal Aid Society of Hartford County, Inc., of counsel), for Plaintiffs-Appellees and Intervenors.

Before: JACOBS and CALABRESI, Circuit Judges, and BRIEANT, District Judge *.

JACOBS, Circuit Judge:

This appeal requires us to consider the latitude afforded the states under the Medicaid program to establish the scope of their Medicaid coverage. The Medicaid program, enacted as Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. ("Title XIX"), is a joint state and federal program that administers health care to financially and medically needy individuals. The program is run primarily by the states, in conformity with federal guidelines, on the basis of each state's Medicaid plan. Title XIX lists certain services that the state Medicaid plan must or At issue on this appeal is Connecticut's coverage of durable medical equipment ("DME"). The MAP Manual, the state manual which explains Connecticut's coverage of the items listed in its title, defines "Durable Medical Equipment" as follows:

may provide. One of them is "home health care services," 42 U.S.C. § 1396d(a)(xi)(7), which the federal regulations define to include "[m]edical supplies, equipment, and appliances suitable for use in the home," 42 C.F.R. § 440.70(b)(3) (1996); the regulations contain no further explanation of these services. Coverage of "home health care services" is mandatory for certain groups of eligible individuals and optional for others; however, Connecticut has chosen to provide these services to all Medicaid recipients. State of Connecticut, Department of Income Maintenance, Connecticut Medical Assistance Provider Manual for Medical Equipment, Devices and Supplies § 189.D ("MAP Manual ").

"DME" means equipment which meets all of the following requirements:

a. Can withstand repeated use

b. Is primarily and customarily used to serve a medical purpose

c. Generally is not useful to a person in the absence of an illness or injury

d. Excludes items that are disposable.

MAP Manual § 189.B; see also Conn. Agencies Regs. § 17-2-80B. Section 189.E.II.a of the MAP Manual limits covered DME "to those [items] listed in the Department's fee schedule." The fee schedule, adopted in June 1993, and then revised in June 1996, contains over 100 different items of DME. MAP Manual § 189.E.III.a specifically excludes certain equipment and appliances from coverage:

Durable Medical Equipment and Related Services not Covered:

a. DME, including, but not limited to:

1. Roomsize humidifiers, purifiers (including electronic air filters), and dehumidifiers

2. Air conditioners

3. Stair glides....

(emphasis added). In order to obtain reimbursement, a Connecticut Medicaid recipient must obtain prior authorization for all DME rentals, replacement DME, and all DME costing over $100. MAP Manual § 189.F.II.a.

Plaintiffs, as representatives of similarly situated Medicaid recipients, challenge decisions by the Connecticut Department of Social Services ("DSS" or "Connecticut"), based on MAP Manual §§ 189.E.II.a and 189.E.III.a, denying their prior authorization requests seeking Medicaid reimbursement for certain items to which they claim entitlement as DME. The defendant Joyce A. Thomas is Commissioner of DSS. 1 The district court certified two subclasses of plaintiffs:

The "Emerson subclass," which consists of Medicaid recipients whose requests for DME were denied based on MAP Manual § 189.E.III.a. DeSario v. Thomas, 963 F.Supp. 120, 141 (D.Conn.1997). The representative plaintiffs for this subclass are Elizabeth Emerson, who requested prior authorization for an air purifier and an air conditioner, and Caroline Stevenson, who sought prior authorization for an air purifier and a roomsize humidifier; both suffer from multiple chemical sensitivity.

The "Desario subclass," which consists of Medicaid recipients whose DME requests were denied based on MAP Manual § 189.E.II.a, i.e., because the requested DME were not on DSS's fee schedule. DeSario, 963 F.Supp. at 141. The representative plaintiff is Concetta DeSario, who is a quadriplegic and who requested payment for an environmental control unit, an electronic device that centrally controls many appliances and costs approximately $7000-$8000.

In addition, Thomas Slekis intervened in the action; he suffers from severe skin breakdown and sought payment for a "RIK" mattress (a mattress filled with an oil-based liquid and covered with exceptionally loose-fitting sheets that costs approximately $840 a Plaintiffs moved for a preliminary injunction. The district court found that plaintiffs failed to establish a likelihood of success on their claim that the use of a list to determine covered DME was a per se violation of Title XIX. DeSario, 963 F.Supp. at 131-32. However, the court found that the particular fee schedule used by DSS improperly limits the amount, duration and scope of medically necessary DME because: (i) "the defendant does not have any procedure for systematically, timely, or effectively updating this dispositive list as new equipment comes on the market even if the new items meet the defendant's general definition of 'durable medical equipment' "; and (ii) "the defendant's policies and operation of the prior approval system lack any mechanism by which a recipient can demonstrate that an item of unlisted but medically necessary equipment otherwise meets the definition of DME, such that it can be added to the list or otherwise be considered for prior approval." Id. at 130.

month to rent). Slekis sought approval for his request and temporary injunctive relief ordering DSS to provide the mattress during the course of the litigation. After an evidentiary hearing, the district court granted the requested temporary relief.

Further, the district court found that the regulation excluding air conditioners, air purifiers and roomsize humidifiers from coverage--MAP Manual § 189.E.III.a--violated Title XIX because "the defendant may not categorically exclude a piece of DME without considering the medical necessity of an item either on a 'macro' or 'micro' level," DeSario, 963 F.Supp. at 133, and the court found that the defendant had not evaluated the medical necessity of this equipment on any level. Id. at 133-34. The court stated:

[T]he defendant has never stated in her briefs or through the testimony of Elizabeth Geary that air conditioners, air purifiers, and room humidifiers are never of sufficient medical necessity to treat certain medical conditions. Instead, the defendant has taken the position that the requested equipment [is] excluded from coverage under her definition of DME because the items are useful to individuals in the absence of illness or injury.

Id. at 133.

Accordingly, the court enjoined DSS "from using Conn. MAP Manual § 189.E.II.a and § 189.E.III.a as the exclusive determinant of plaintiffs' preauthorization requests for durable medical equipment" and ordered that plaintiffs be permitted to resubmit their requests. Id. at 140. The court also ordered that the state pay the cost of Slekis's RIK mattress during the pendency of the litigation. Id. at 141. Having won the opportunity to resubmit their requests, plaintiffs moved for clarification of the order to address DSS's requirement--imposed as a condition to approval of prior authorization requests for DME that is not scheduled on the fee schedule--that applicants demonstrate that the scheduled medical equipment is inadequate with respect to the needs of the Medicaid population. The district court ruled that DSS could not impose that precondition in the future. Id. at 142-43. Finally, the district court expanded the injunction to cover all members of the Emerson and DeSario subclasses.

On appeal, DSS claims that the district court erred in finding that plaintiffs were likely to succeed in proving that DSS's regulations violated Title XIX of the Social Security Act and its regulations. Because the district court misinterpreted Title XIX and miscalculated the likelihood of plaintiffs' success on the merits, we vacate the injunction and remand for further proceedings.

DISCUSSION

We first address two threshold issues raised by the defendant, and then consider the propriety of the relief ordered by the district court.

I
A. Adequate Remedy at Law

Defendant first claims that an adequate remedy at law is afforded by the availability of a state appeal from DSS's decision to deny plaintiffs' prior authorization requests, and that although the district court In Potwora, the plaintiff sought the return of allegedly obscene books that had been confiscated by state authorities. We noted that the state provided a remedy for the return of property seized through an unlawful search and seizure and that if this remedy was adequate, we would be precluded from ordering the state to return the books. We relied heavily on the Supreme Court's decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled on other grounds, Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which...

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