Detsel by Detsel v. Sullivan, 164
| Decision Date | 02 October 1989 |
| Docket Number | D,No. 164,164 |
| Citation | 895 F.2d 58 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | 58 Ed. Law Rep. 897, 28 Soc.Sec.Rep.Ser. 449, Medicare&Medicaid Gu 38,374 Melissa DETSEL, a handicapped child, by her mother, Mary Jo DETSEL, Plaintiff-Appellant, v. Louis SULLIVAN, M.D., as Secretary of the U.S. Department of Health & Human Services, Cesar Perales, as Commissioner of the N.Y. State Department of Social Services, Stefan Bandas, as Commissioner of the Cayuga County Department of Social Services, Defendants-Appellees. ocket 88-6227. |
Lewis A. Golinker, Legal Services of Central New York, Inc., Syracuse, N.Y., for plaintiff-appellant.
Elizabeth Dusaniwskyj, New York City, Asst. Regional Counsel, U.S. Dept. of Health and Human Services, (Annette H. Blum, Chief Counsel of Dept. of Health and Human Services, New York City of counsel), for defendant-appellee Louis W. Sullivan. M.D., Secretary of U.S. Dept. of Health and Human Services.
Robert A. Forte, New York City, for defendant-appellee Cesar Perales, Commissioner of the New York State Dept. of Social Services.
Frederick R. Westphal, Auburn, N.Y., for defendant-appellee Stefan Bandas, Commissioner of the Cayuga County Dept. of Social Services.
Miriam Berkman, New Haven, Conn. (Stephen Wizner, J.L. Pottenger, Jr., Mary McCarthy, Jerome N. Frank Legal Services Organization, New Haven, Conn., of counsel, William Dodge, Andrew S. Golub, Student Counsel, on the brief), for Jerome N. Frank Legal Services Organization, Council for Exceptional Children, National Ass'n of School Nurses, and Ass'n of Rehabilitation Nurses, amici curiae.
Leslie Salzman, New York City (Herbert Semmel, New York City, New York Lawyers for the Public Interest, Inc., of counsel), for New York State Com'n on Quality of Care for the Mentally Disabled, Association for Retarded Citizens of the U.S., Center for Law and Educ., Inc., Disability Rights Education and Defense Fund, Federation for Children with Special Needs, National Ass'n of Protection and Advocacy Systems, Inc., National Network of Parent Centers, New York State Ass'n for Retarded Children, Inc., New York State Nurses Ass'n, SKIP of New York, Inc., and the Center on Human Policy, amici curiae.
Before NEWMAN, PRATT, and MAHONEY, Circuit Judges.
This appeal presents a novel issue under the Medicaid program. We must decide whether a handicapped child who receives Medicaid-covered nursing services 24 hours a day in her home can reasonably be denied those services during the time she attends public school. According to the Secretary of Health and Human Services, denial is compelled by 42 C.F.R. Sec. 440.80, the Medicaid regulation that defines "private duty nursing services". The United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, agreed with the secretary and dismissed the complaint of Melissa Detsel, a severely handicapped child who, suing by her mother, had challenged this interpretation as arbitrary and capricious. Although we give administrative agencies considerable deference in interpreting their own regulations, we believe that the secretary has failed to advance any reasonable basis for his decision here. Accordingly, we reverse the judgment of the district court, and remand for entry of judgment in favor of Melissa Detsel.
Melissa Detsel is an eleven-year-old girl who suffers from multiple physical impairments Despite her physical handicaps and the constant presence of nurses and life-sustaining equipment, Melissa has been able to attend public school since kindergarten. Her educational plan includes traditional academic subjects as well as various special programs such as speech and physical therapy. In an affidavit filed with the district court, Robert Brannigan, a school administrator, reported:
involving her heart, lungs, digestive system, back, and feet. Melissa was born with an incomplete diaphragm that allowed her abdominal organs to move upward, hindering the development of her lungs. As a result, Melissa's lungs cannot expand and contract sufficiently on their own, and she is unable to breathe without the assistance of a mechanical ventilator. When Melissa was very young, gastrointestinal abnormalities required doctors to perform a "jejunostomy", or gastronomy. Later attempts to correct Melissa's digestive problems were unsuccessful, and she now receives all her food and medication through a "J-tube". Melissa also suffers from several heart defects and orthopedic problems, including congestive heart failure, scoliosis, and club feet. Because of the severity of her disabilities, Melissa requires the services of a trained nurse 24 hours a day.
Melissa has benefitted greatly from her school programs. She has advanced academically and socially; her reading is at the third grade level [as of February 1988]; her speech is greatly improved; and the activity level of her classes has strengthened her physically. * * * Presently, Melissa is having her best year yet. She really enjoys the school experience and the opportunity to interact with and learn from her classmates. * * * Melissa's presence in school also has carryover benefits to her classmates. Her determination and participation in classroom activities provides a very positive example for any under-achievers in her classes; her teachers report that Melissa is "magic" to have in the classroom. * * * Overall, Melissa is quite an extraordinary child. Although her handicaps are extremely severe, she has great aspirations and determination to succeed. She is competitive and independent and she thrives on the learning and other experiences school provides.
Although Melissa's school district can fulfill its educational obligations by providing at least one hour of home instruction per day, 18 N.Y.C.R.R. Sec. 200.6(g), Dr. Gregory Liptak, Melissa's treating physician, insists that such limited home tutoring would be "medically devastating" for Melissa. Dr. Liptak notes that the physical involvement and general activity level of Melissa's school program would be impossible to duplicate at home. Maximizing Melissa's physical development and stamina is essential, according to Dr. Liptak, "to better prepare her for the rigors of transplant surgery if her respiratory function deteriorates." Dr. Liptak also describes the psychological and social benefits of exposing handicapped children to normal experiences, and believes that Melissa's growth in these areas depends on her continuation in school. The secretary does not dispute Dr. Liptak's assertions; he opposes only Medicaid's responsibility for providing Melissa's nursing care in settings other than her home or an institution.
When Melissa enrolled in kindergarten in 1983, it was unclear whether the school district, Medicaid, or neither would be responsible for her nursing care during school hours. Melissa's mother initially sought a declaration that the nursing care was a "related service" under the Education of All Handicapped Children Act (the "EHA"), 20 U.S.C. Sec. 1401(18), and thus within the responsibility of the school district. In that action, however, a panel of this court decided that the constant and intensive nature of the care brought it within the "medical services" exclusion to the EHA, 20 U.S.C. Sec. 1401(17), in contrast to the more routine medical procedures that courts had recently found to be "related services" under the act. Detsel v. Board of Educ., 820 F.2d 587 (2d Cir.1987) (per curiam), aff'g, 637 F.Supp. 1022 (N.D.N.Y.1986), cert. denied, 484 U.S. 981, 108 S.Ct. 495, 98 L.Ed.2d 494 (1987). Cf. Irving The present action addresses the question of whether the cost of Melissa's nurse in school is covered by Medicaid. Medicaid was created in 1965 when congress added Title XIX to the Social Security Act, 42 U.S.C. Sec. 1396 et seq., and was designed as a joint state-federal program to help needy individuals pay for medical care. Once a state elects to participate in the program, it must provide a list of "mandatory services", such as inpatient hospital care, and may also offer one or more "optional services", including private duty nursing. The State of New York includes private duty nursing in its Medicaid plan, and Medicaid currently pays for Melissa's nurses around the clock as long as they care for her at home or in an institution.
Independent School Dist. v. Tatro, 468 U.S. 883, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984) (); Department of Educ. v. Katherine D., 727 F.2d 809 (9th Cir.1983) (), cert. denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 260 (1985).
The secretary's position in this case is based on his interpretation of 42 C.F.R. Sec. 440.80 ("Sec. 440.80"), which reads in full as follows:
Sec. 440.80 Private duty nursing services.
Private duty nursing services means nursing services for recipients who require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of the hospital or skilled nursing facility. The services are provided--
(a) By a registered nurse or a licensed practical nurse;
(b) Under the direction of the recipient's physician; and
(c) To a recipient in one or more of the following locations at the option of the State--
(1) His or her own home;
(2) A hospital; or
(3) A skilled nursing facility.
A substantially identical version of this definition appeared in the original Medicaid regulations, published in 1966 as the Handbook of Public Assistance Administration, Supplement D. Unfortunately, any documents that might shed light on the rationale for the definition were lost or destroyed in 1977, when the records of...
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