637 F.3d 1220 (11th Cir. 2011), 10-10148, Moore ex rel. Moore v. Reese

Docket Nº:10-10148.
Citation:637 F.3d 1220
Opinion Judge:HULL, Circuit Judge:
Party Name:Anna C. MOORE, a minor child, by and through her mother and natural guardian Pamela MOORE, Plaintiff-Appellee, v. Clyde L. REESE, III, in his official capacity as Commissioner of the Department of Community Health, Defendant-Appellant.
Attorney:Paula Rafferty Miller, Joshua H. Norris, GA Advocacy Office, Decatur, GA, Gerald R. Weber, Southern Ctr. for Human Rights, Atlanta, GA, for Moore. Michelle Townes, Penny L. Hannah, Atlanta, GA, for Reese. Robert S. Highsmith, Jr., Kimberly Renee Ward, Holland & Knight, LLP, Atlanta, GA, for Amicu...
Judge Panel:Before HULL and MARCUS, Circuit Judges, and WHITTEMORE,[*] District Judge.
Case Date:April 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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637 F.3d 1220 (11th Cir. 2011)

Anna C. MOORE, a minor child, by and through her mother and natural guardian Pamela MOORE, Plaintiff-Appellee,

v.

Clyde L. REESE, III, in his official capacity as Commissioner of the Department of Community Health, Defendant-Appellant.

No. 10-10148.

United States Court of Appeals, Eleventh Circuit.

April 7, 2011

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Paula Rafferty Miller, Joshua H. Norris, GA Advocacy Office, Decatur, GA, Gerald R. Weber, Southern Ctr. for Human Rights, Atlanta, GA, for Moore.

Michelle Townes, Penny L. Hannah, Atlanta, GA, for Reese.

Robert S. Highsmith, Jr., Kimberly Renee Ward, Holland & Knight, LLP, Atlanta, GA, for Amicus Curiae, Wellcare of Georgia, Inc.

David A. Webster, Charles Richardson Bliss, Atlanta, GA, for Atlanta Legal Aid Society, Inc., Amicus Curiae.

Appeal from the United States District Court for the Northern District of Georgia.

Before HULL and MARCUS, Circuit Judges, and WHITTEMORE,[*] District Judge.

HULL, Circuit Judge:

Plaintiff Anna " Callie" Moore (" Moore" ) sued Defendant Clyde Reese, Commissioner of Georgia's Department of Community Health (" DCH" ),1 for allegedly violating the Medicaid Act (" the Act" ) by reducing Moore's Medicaid-funded private duty nursing care from 94 to 84 hours per week. The district court granted Moore's motion for partial summary judgment and denied DCH's cross-motion for summary judgment. This appeal concerns the extent to which a state Medicaid agency may review Moore's treating physician's determination of medical necessity under 42 U.S.C. § 1396d(r) of the Medicaid Act. After review and oral argument, we reverse and remand for further proceedings.

I. FACTUAL BACKGROUND

A. Moore's Medical Conditions

Plaintiff Callie Moore is a 16-year-old Medicaid recipient who is severely disabled. Due to a stroke suffered in utero, Moore developed numerous chronic conditions, including spastic quadriplegic cerebral palsy, refractory seizure disorder, mental retardation, gastroesophageal reflux disease, central apnea, cortical blindness, dysphagia, and restrictive lung disease.2 This complex and extensive combination of maladies requires that Moore receive continuous treatment, monitoring, and interventions by her caregivers and skilled nurses.

Even with her medical conditions, Moore is enrolled part-time in school, where she receives special education services. At school, she practices using a communication device to interact with others, including school staff and " lunch buddies" from the student body. A nurse paid for by the school accompanies Moore on the school bus and at school. Outside of school,

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Moore is able to participate in a limited range of activities. For instance, with the accompaniment of her mother, Moore regularly attends church and sometimes visits the mall with a friend.

B. Moore's Nursing Requirements

Beginning in 1998 when she was three years old, Moore has received Medicaid-funded private duty nursing services at home.3 To be eligible for these nursing services, Moore must " require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of [a] hospital or skilled nursing facility." 42 C.F.R. § 440.80. Since 2002, DCH has employed the Georgia Pediatric Program (" GAPP" ) as its service-delivery model for providing nursing care in the home to medically fragile children with multiple systems diagnoses, such as Moore.4 As discussed later, Moore is a GAPP member, and DCH publishes a manual that sets forth the policies and procedures for GAPP, including the process for requesting and receiving private duty nursing hours. See PART II POLICIES AND PROCEDURES FOR THE GEORGIA PEDIATRIC PROGRAM (" GAPP Manual" ).

Dr. Charles L. Braucher, Jr.5 has treated Moore since she was an infant. He examines Moore approximately six to eight times a year. In a 2007 deposition, Dr. Braucher detailed the myriad duties Moore's nurse or caregiver must perform, including, among other tasks: (1) monitoring her seizures to determine what medication is needed, (2) checking her oxygen levels, (3) assisting with gastric tube feedings, (4) administering a complex regimen of medications, and (5) repositioning her body approximately every two hours to prevent pressure sores.

Dr. Braucher estimated that there was not a four-hour period in which Moore did not require the services of a skilled nurse or someone with comparable training and experience, such as Moore's mother Pam.6 Although Moore suffers occasional health setbacks, her care and treatment needs have largely stabilized during the previous eight years.7

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C. Dr. Braucher's Weekly Nursing Hours Requests

Over the years, Dr. Braucher, as the treating physician, has provided assessments of Moore's weekly nursing requirements to DCH, along with its predecessors and contractors. Dr. Braucher files documentation, including a " Letter of Medical Necessity" detailing Moore's diagnosis and care needs, with the Georgia Medical Care Foundation (" GMCF" ).

DCH retains GMCF as a third-party vendor of medical experts, including doctors and nurses.8 GMCF's medical experts (" GMCF Medical Review Team" ) examine whether GAPP members have met eligibility requirements, assess whether requested services are medically necessary, and determine the amount of services (here, the number of private duty nursing hours) that should be provided to qualifying GAPP members, also based on medical necessity. The GMCF Medical Review Team maintains and reviews the medical records of GAPP members. In Moore's case, the medical records span a period of years. GMCF has no financial incentive to reduce the nursing hours it authorizes, nor does DCH influence or provide recommendations to GMCF.

At various stages in Moore's treatment, Dr. Braucher modified his nursing hours recommendations due to changes in Moore's condition or other external circumstances. For instance, in 2002 Dr. Braucher requested additional nursing hours when Moore experienced severe diarrhea. In 2003, Dr. Braucher requested a reduction from 96 to 84 skilled nursing hours, with an additional 12 hours of care provided by a trainable certified nursing assistant in lieu of skilled nursing. Dr. Braucher's change was prompted by his understanding that Georgia policy allowed Moore to be institutionalized if the care provided in the institution was less expensive than the same amount of home care.9 Between 2005 and 2006, however, the GMCF Medical Review Team regularly authorized 94 hours of private duty nursing care for Moore, based upon Dr. Braucher's recommendations.

Dr. Braucher explained the criteria used for his nursing hours recommendations. He estimates the total hours of care Moore requires and subtracts the hours of care her family can provide.10 In estimating the family hours, Dr. Braucher described how he factors in a caregiver's work schedule,

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along with sleeping, shopping, and homemaking obligations. 11

In October 2006, Dr. Braucher requested that Moore continue receiving 94 hours of nursing care per week. Dr. Braucher cited five problems requiring 94 nursing hours. Dr. Braucher noticed the first problem in 2001, when Moore began experiencing acute respiratory distress, erratic breathing patterns, and increased risk of airway obstructions and seizures. Since this respiratory problem has neurological roots, Moore's pulmonologist recommended behavioral management to treat the problem, as opposed to more drastic measures. This requires nursing interventions when episodes occur.

Second, Dr. Braucher cited Moore's inability to move herself during sleep, which requires Moore to be repositioned during the night to prevent damage to skin integrity or obstruction of airways. The third problem surfaced in 2002, when Moore developed rotovirus gastroenteritis, necessitating multiple hospitalizations and nurses to monitor her hydration and quickly intervene.

Fourth, Dr. Braucher noted that Moore's seizures were increasingly difficult to manage and required constant monitoring. Fifth, Dr. Braucher explained that Moore suffered recurrent acute urinary retention, which necessitated frequent monitoring of her bladder size and occasional catheterization.

D. GMCF Reduces Moore's Nursing Hours in 2006

In November 2006, GMCF notified the Moores that, effective December 2006, Callie's nursing care would be reduced from 94 to 84 hours per week. The GMCF Medical Review Team determined that now 84 hours, not 94 hours, were medically necessary to correct or ameliorate Moore's medical condition.

In its " Letter of Notification of Approved Skilled Nursing Hours," GMCF cited four policies in the GAPP Manual to support its revised 84 hours allotment:

Chapter 701: The cost analysis should be made to determine that the cost of caring for the member in the home & community is below cost of providing the same care in an institution.

Chapter 702.2 part b. The Primary caregiver must assist with the member's care in the home.

Chapter 702.2 C. The availability and ability of caregiver(s) or significant other to actively participate in the care of the member.

Chapter 702.2 E. The expectation that the primary caregiver(s) will become competent to assume some responsibility to care for the child.

GAPP Medical Director Dr. Joseph M. Rosenfeld12 served on the GMCF Medical Review Team that assesses GAPP members'

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medical necessities. Dr. Rosenfeld made the final decision to reduce Moore's nursing care from 94 to 84 hours per week.

In a 2007 deposition, Dr. Rosenfeld testified about his definition of medical necessity, explaining that it is " based upon the general accepted medical practices in the community" and can vary by regional expectations. Dr. Rosenfeld derived this standard from the GAPP Manual and from the...

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