Jeneski v. Myers

• Decision Date: 21 December 1984
• Citation: 209 Cal.Rptr. 178,163 Cal.App.3d 18
• Court: California Court of Appeals Court of Appeals
• Parties: , 8 Soc.Sec.Rep.Ser. 844, Medicare & Medicaid Guide P 34,514 Anna JENESKI, William Swain, Edith Pantilla, and Arthur Colvin, Plaintiffs and Appellants, v. Beverlee A. MYERS, Director of the Department of Health Services; Edmund G. Brown, Jr., Governor of the State of California; State of California, a political entity, Defendants and Respondents. Civ. B001328.

Page 178

209 Cal.Rptr. 178

163 Cal.App.3d 18, 8 Soc.Sec.Rep.Ser. 844,

Medicare & Medicaid Guide P 34,514

Anna JENESKI, William Swain, Edith Pantilla, and Arthur Colvin, Plaintiffs and Appellants, v. Beverlee A. MYERS, Director of the Department of Health Services; Edmund G. Brown, Jr., Governor of the State of California; State of California, a political entity, Defendants and Respondents.

Civ. B001328.

Court of Appeal, Second District, Division 3, California.

Dec. 21, 1984.

As Modified Dec. 28, 1984.

Hearing Denied Feb. 14, 1985. ^*

Marks & Stevenson and Ronald S. Marks, Beverly Hills, for plaintiffs and appellants.

John K. Van de Kamp, Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., Anne S. Pressman and Louis Verdugo, Jr., Deputy Attys. Gen., for defendants and respondents.

National Health Law Program, Inc., Michael C. Parks and Michael A. Dowell, and Legal Aid Foundation of Los Angeles and Bruce Iwasaki, Los Angeles, for amicus curiae.

LUI, Associate Justice.

Plaintiffs and appellants are Medi-Cal recipients who sought to have the trial court enjoin respondent Department of Health Services (Department), its director, and the Governor from implementing a statute and regulations that deleted certain drugs from a list of those for which Medi-Cal would reimburse and put other drugs on a list for which prior authorization was required. ¹ The trial court initially granted an order to show cause re preliminary injunction and a temporary restraining order, limited to the named Medi-Cal recipients. ² The hearing on the order to show cause was set for September 22, 1982. After the first amended complaint was filed, a second judge issued a new order to show cause regarding the preliminary injunction. The temporary restraining order, dated September 2, 1982, restrained respondents from "[i]mplementation of Section 53(2) of AB799 and implementation of Title 22, California Administrative Code sections 59999 a-e (Drug Formulary Section) and Title 22, California Administrative Code sections 51003 and 51056 (TAR and Emergency Sections) as they apply to Section 59999 a-e." ³

On September 22, 1982, a hearing was held pursuant to the order to show cause. In an order dated October 1, 1982, Judge Leon Savitch ordered that respondents are "hereby enjoined and restrained pending Responding to appellants' request to extend the injunction so that the Department could evaluate the comments made at public hearings on November 18 and 19, 1982, the court issued an order modifying the preliminary injunction and extended the force and effect of its October 1 order to December 3, 1982. However, a further request by appellants to modify the injunction (1) to extend its effect until the regulations were adopted and (2) to enjoin deletion of dermatological anti-inflammatory and hypnotic/sedative classifications, currently subject to the prior approval process, as well as anti-arthritic drugs, was denied in an order filed December 9, 1982. In addition, the court also ordered that the preliminary injunction issued October 1, as modified on November 16, "is hereby dissolved."

                the completion of [163 Cal.App.3d 23] public hearings pursuant to Government Code section 11346.1(e) from removing or deleting from the Medi-Cal Program drugs contained in the following classifications under the authority of Assembly Bill No. 799, section 53(2) or the regulations promulgated in connection therewith:  [p] 1. Anticholinergic agents (parasympatholytics), except atropine, belladonna alkaloids with phenobarbital.  [p] 2. Antihistamines, antihistamine-containing combinations, and antipruritics.  [p] 3. Narcotic analgesics (other than codeine), alone or in combination, except those requiring triplicate prescriptions.  [p] 4. Cough preparations, expectorants, and nasal decongestants, alone or in combinations.  [p] 5. Non-narcotic analgesics."  (Emphasis added.)   All other relief was denied without prejudice
                

Appellants' notice of appeal states that the appeal is from "the judgment of the above-entitled Court ... entered December 3, 1982 [sic], dissolving the Preliminary Injunction issued on September 22, 1982, and denying Plaintiffs' request to modify said Preliminary Injunction as prayed for in Plaintiffs moving papers."

GENERAL BACKGROUND

Title XIX of the Social Security Act, 42 U.S.C. section 1396, et seq., "establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons. The statute requires participating States to provide qualified individuals with financial assistance in five general categories of medical treatment." (Fns. omitted; Beal v. Doe (1977) 432 U.S. 438, 440, 97 S.Ct. 2366, 2368, 53 L.Ed.2d 464.) "If the state wishes to maintain a more comprehensive program, it may provide seven of sixteen listed benefits [including prescription drugs] ⁴ to the less poor, characterized as the 'medically needy.' 42 U.S.C. § 1396a(a)(13)(C). A state providing specific services for the 'medically needy' must also provide them for the 'categorically needy.' [Citations.] Moreover, all persons within a given category must be treated equally." (White v. Beal (3d Cir.1977) 555 F.2d 1146, 1149.)

"A state may pay 'part or all of the cost ... of care and services,' 42 U.S.C. § 1396d(a), but it 'may not 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.' 42 C.F.R. § 440.230(c)(1) (1978). Although a state 'may place appropriate limits on a service based on medical necessity or on utilization control procedures,' id. § 440.230(c)(2), '[e]ach service must be sufficient in amount, duration, and scope to reasonably achieve its purpose.' Id. § 440.230(a)." (Simpson v. Wilson (D.Vt.1979) 480 F.Supp. 97, 100.)

Courts have noted "[t]he significance of Medicaid, and the individual and collective human suffering which it ameliorates, rehabilitates, and forestalls ...." (Bass v. Richardson (S.D.N.Y.1971) 338 F.Supp. 478, 483.) And, while courts are cognizant of the need for fiscal economy, "budgetary constraints cannot excuse a failure to comply with federal standards." (California

Ass'n of Bioanalysts v. Rank (C.D.Cal.1983) 577 F.Supp. 1342, 1353, fn. 14.)

FACTS ⁵

Appellants filed numerous declarations in support of their requests for injunctive relief and modification. Medi-Cal recipients, doctors, and pharmacists declared the hazards of removing antihistamines, topical dermatological preparations, cough and cold preparations, and other prescription drugs from the Medi-Cal formulary. One dermatologist declared the system a "mockery of any attempt to impart any rational health care to the needy." Another physician stated that the new system constituted a "clear class sytem of medical treatment" and a "double standard of health care." Another doctor stated that the new system would "severely restrict my ability to effectively treat my patients, and is a rather insensitive and callous act on the part of the Legislature." Another dermatologist deemed it "pure idiocy."

They detailed the hazards to patients, including "dire life-threatening effects." ⁶ In addition, they asserted that the new plan would be more costly in that minor problems would not be handled and thus would escalate into more serious medical problems that would require hospitalization and more expense for the state. The dangers of the alternative drugs were also outlined.

Declarations filed by appellants and in the companion case of Fabach v. Myers (No. C 432321) attempt to demonstrate that prior authorization approvals are "essentially unavailable." The added documentation for physicians and pharmacists is seen as unduly time consuming. As one dermatologist declared, it "makes it totally impractical for me to continue even attempting to treat these patients." Others declared that an overwhelming percentage of TAR requests were rejected on the basis that the patient's ailment was not "life threatening" and some believed that the TAR offices were utilizing delaying tactics in order to discourage applications for TARs. Some believed that it would be virtually impossible for the TAR offices to process the requests in a timely manner and that for all intents and purposes TARs will be unavailable to the Medi-Cal recipient.

As stated in the memorandum of points and authorities in opposition to the OSC re preliminary injunction in the Fabach case respondents conceded that there is no "joy in implementing the required cutbacks." Nevertheless, declarations in support of respondents' position stated that the basis for the reduction was the legislative standard of "cost, critical therapeutic importance in relation to the universe of available pharmaceuticals, safety, efficacy, and need." The purpose, which respondents believe they achieved, was to effect the required savings with the least possible adverse impact upon the beneficiary community. A declaration of respondent Myers states that the Department sought to promulgate a plan "least harmful of all possible alternatives to the health, safety and wellbeing of the beneficiary community."

Dr. Toshiko Iwata, a physician and pharmacist employed as a senior medical consultant in the Medical Policy and Standards Section of the Benefits Branch in the Department of Health Services, stated that the elimination of various categories of drugs "will not have dire life-threatening effects upon the Medi-Cal population ...." Rather, he believes that " 'the injudicious use of medication should be discouraged ...' " and that, in any event, many of the drugs are over-the-counter drugs that historically have not been reimbursed by the Other declarations provided by respondents corroborate the careful planning by the Department of Health in making the necessary decisions and in refuting appellants' position that the TARs would be virtually unobtainable.

                program and that other drugs

...