DeSario v. Thomas

• Decision Date: 10 January 1997
• Docket Number: No. 396cv646 (JBA).,396cv646 (JBA).
• Citation: 963 F.Supp. 120
• Parties: Concetta DeSARIO, Betty Emerson, and Caroline Stevenson, Individually and on Behalf of all Others Similarly Situated v. Joyce A. THOMAS, Commissioner, Connecticut Department of Social Services, in her Official Capacity v. Donna SHALALA, Secretary, United States Department of Health and Human Services, in her Official Capacity.
• Court: U.S. District Court — District of Connecticut

963 F.Supp. 120

Concetta DeSARIO, Betty Emerson, and Caroline Stevenson, Individually and on Behalf of all Others Similarly Situated v. Joyce A. THOMAS, Commissioner, Connecticut Department of Social Services, in her Official Capacity v. Donna SHALALA, Secretary, United States Department of Health and Human Services, in her Official Capacity.

No. 396cv646 (JBA).

United States District Court, D. Connecticut.

January 10, 1997.

Order Reconsidering Class Certification and Clarifying Injunction February 13, 1997.

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Shelley A. White, New Haven Legal Assistance, New Haven, CT, for plaintiffs Concetta DeSario and Betty Emerson.

Sheldon V. Toubman, New Haven Legal Assistance, New Haven, CT, for intervenors-plaintiffs Caroline Stevenson and Howard Wolan.

Hugh Barber, Richard J. Lynch, Judith A. Merrill, Attorney General's Office, Health & Human Services, Hartford, CT, for defendant Joyce A. Thomas.

Lauren M. Nash, U.S. Attorney's Office, New Haven, CT, for third-party defendant HHS.

RULING ON PLAINTIFFS' MOTIONS FOR PRELIMINARY INJUNCTION (DOCS. 3 & 68)

ARTERTON, District Judge.

This suit concerns the defendant's Medical Equipment, Devices and Supplies (MEDS) fee schedule. The plaintiffs, who receive benefits under the Medicaid program, have brought this action against Joyce Thomas, Commissioner of the Connecticut Department of Social Services (DSS), alleging that she has improperly administered Connecticut's Medicaid program, as it relates to the prior authorization procedure for payment of durable medical equipment (DME). Under the defendant's regulations, prior authorization for DME is required for all rentals regardless of cost, all replacement equipment, and any purchase item costing over $100. Connecticut Medical Assistance Provider Manual ("Conn. MAP Manual"), § 189.F.II.a. To obtain prior authorization, a vendor for DME submits a form along with a prescription from a physician to the Department of Income Maintenance for review. Id.; Conn.State.Agencies § 17-2-80.

In this suit, plaintiffs challenge the legality under the Medicaid Act and the Due Process Clause of the Fourteenth Amendment of two of the defendant's regulations. The two regulations are Conn. MAP Manual, § 189.E.II.a, which permits the defendant to deny coverage to Medicaid recipients for any items of durable medical equipment not listed on the defendant's MEDS fee schedule, and Conn. MAP Manual, § 189.E.III.a, which excludes specific pieces of durable medical equipment from coverage including air conditioners, air purifiers, and room humidifiers.

Plaintiffs filed their Complaint on April 11, 1996, together with a Motion for Preliminary Injunction and a Motion for Class Certification. Oral argument and an evidentiary hearing were held on April 24, 1996, and May 20, 1996. Defendant Thomas has filed a Third-Party Complaint against Donna Shalala, Secretary of the Department of Health and Human Services, who also has filed a brief, which has been considered.

Intervenor Thomas Slekis moved for a preliminary injunction on December 13, 1996. Oral argument and an evidentiary hearing on the motion were held on December 30, 1996, and January 9, 1997. Meanwhile, the Court granted plaintiffs' Motion for Class Certification on January 7, 1997.

For the reasons set forth below, plaintiffs' Motion for Preliminary Injunction (Doc. 3) and intervenor Slekis's Motion for Preliminary Injunction (Doc. 68) are GRANTED.

I. BACKGROUND

The Medicaid program, enacted in 1965 as Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq., is a joint state and federal medical assistance program that provides health care to specified categories of individuals and families who are financially and categorically eligible for these services. The State of Connecticut participates in the Medicaid program, see Conn.Gen.Stat. § 17-134 et seq. (authorizing the State of Connecticut to participate in the federal Medicaid program), and as a participating state must ensure that its state medical assistance plan complies with federal Medicaid law. Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 501, 110 S.Ct. 2510, 2513, 110 L.Ed.2d 455 (1990); Bethphage Lutheran Service, Inc. v. Weicker, 965 F.2d 1239, 1240 (2d Cir.1992); Caldwell v. Blum, 621 F.2d 491, 494 (2d Cir.1980).

Under the Medicaid Act, the defendant must provide services to adults with severe disabilities who are unable to work due to a medical condition or combination of conditions. 42 U.S.C. § 1396d(a). The Medicaid Act provides a list of federally reimbursable services that a state Medicaid plan must include, one of which is home health services, see 42 U.S.C. § 1396a(a)(13)(B)-(C), and a list of federally reimbursable services that a state Medicaid plan may include at its option, see 42 U.S.C. §§ 1396a(a)(1)-(17). The Medicaid Act also requires that a state plan for medical assistance must include "reasonable standards ... to the extent of medical assistance" in accordance with the objective of the Medicaid statute, 42 U.S.C. § 1396a(a)(17), and the defendant must provide "safeguards as may be necessary to assure that eligibility and services under the plan will be determined ... in a manner ... consistent with the best interests of the recipients." 42 U.S.C. § 1396a(a)(19).

The right of a recipient to health care under the Medicaid program is not limitless. The Supreme Court has stated:

Medicaid programs do not guarantee that each recipient will receive the level of health care precisely tailored to his or her particular needs. Instead, the benefit provided through Medicaid is a particular package of health care services ... That package of services has the general aim of assuring that individuals will receive necessary medical care, but the benefit provided remains the individual services offered — not "adequate health care."

Alexander v. Choate, 469 U.S. 287, 303, 105 S.Ct. 712, 721, 83 L.Ed.2d 661 (1985). A state may place "appropriate limits on a [covered] service based on criteria such as medical necessity or utilization control." 42 C.F.R. § 440.230(d). If such limits are imposed, the service provided must be "sufficient in amount, duration, and scope to reasonably achieve its purpose." Id. at § 440.230(b). Moreover, the Medicaid agency "may not arbitrarily deny or reduce the amount, duration, or scope of a required service ... to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition." Id. at § 440.230(c).

Among the services covered under the category of home health services are "medical supplies, equipment, and appliances suitable for use in the home." 42 C.F.R. § 440.70(b)(3). Federal law does not define the term "medical equipment"; however, any Medicaid item or service must be involved in "direct patient care" and be "for the express purpose of diagnosing, treating, or preventing ... illness, injury or other impairments to an individual's physical or mental health." See State Medicaid Manual § 4385.B. In the absence of binding federal interpretation of the term "medical equipment," states may employ reasonable definitions of the term which are consistent with the provisions of the Medicaid statute. See 42 U.S.C. § 1396a(a)(17).

The defendant has promulgated her own definition of durable medical equipment. Under Connecticut law, durable medical equipment is equipment which meets all of the following requirements:¹

1. Can withstand repeated use

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

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

4. Excludes items that are disposable.

Conn. MAP Manual, § 189.E.B.

In furtherance of the administration of its Medicaid program, the defendant has developed the Medical Equipment, Devices and Supplies (MEDS) fee schedule, which comprises the exclusive list of items of durable medical equipment which the defendant will provide to Medicaid recipients. Under the defendant's regulations, Medicaid recipients must submit their requests for DME through an approved vendor, along with a physician's prescription. The defendant will only grant the required prior authorization for payment for equipment itemized on the MEDS list. Conn. MAP Manual, § 189.E.II.a.

At the May 20, 1996, evidentiary hearing, Elizabeth Geary, a Health Program Supervisor in the Medical Operations Division of the Department of Social Services,² testified that DSS developed a MEDS fee schedule in 1993 and that a new fee schedule was scheduled to go into effect in June 1996. (May 20 Hearing Trans. at 103.) Between 1993 and June 1996, no items were added to or removed from the fee schedule. (Trans. at 204.) In addition, Ms. Geary stated that there is no regular procedure for periodically updating the fee schedule, and DSS has no formal procedure for securing input from Medicaid recipients or from other persons or agencies outside of DSS with respect to items to be included on the MEDS fee schedule. The items that the named plaintiffs have requested (the Simplicity ECU — Series VII, air conditioner, air purifier, and room humidifier) are still not approved items on the defendant's current MEDS fee schedule. Moreover, air conditioners, air purifiers, and room humidifiers are explicitly excluded under the defendant's regulations. Conn. MAP Manual, § 189.E.III.a.

II. Claims and Relief Sought

Plaintiffs argue that defendant's exclusion of the durable medical equipment prescribed for them violates federal law in that it:

a) constitutes an unreasonable standard for determining eligibility for covered services which is inconsistent with the objectives of the Medicaid Act in violation of 42 U.S.C. § 1396a(a)(17);

b) violates the requirement that defendant provide Medicaid coverage for medically-necessary home health services, 42 C.F.R. §§ 440.70, 441.15, in sufficient amount, duration, and scope to reasonably achieve the purpose of such services, 42 C.F.R....