Morgan v. Cohen

• Decision Date: 24 June 1987
• Docket Number: Civ. A. No. 85-3411.
• Citation: 665 F. Supp. 1164
• Parties: Carolyn MORGAN, et al. v. Walter W. COHEN, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

665 F. Supp. 1164

Carolyn MORGAN, et al. v. Walter W. COHEN, et al.

Civ. A. No. 85-3411.

United States District Court, E.D. Pennsylvania.

June 24, 1987.

David A. Super, Philadelphia, Pa.

John O.J. Shellenberger, Philadelphia, Pa., for Com. of Pennsylvania.

MEMORANDUM AND ORDER

FULLAM, Chief Judge.

This is a class action. Plaintiffs are Pennsylvania residents eligible to attend psychiatric partial hospitalization services subsidized by the medical assistance (Medicaid) program under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.¹ Defendants are Pennsylvania Department of Public Welfare (DPW) officials who run the Medicaid program in this Commonwealth. Plaintiffs challenge proposed modifications to, and past implementation of, defendants' plan that regulates Medicaid transportation services. I will grant equitable relief based on the following findings of fact and conclusions of law.

I.

A moderate to severe mental illness afflicts each plaintiff who, to attend a psychiatric partial hospitalization service, under 55 Pa.Code § 1153.52(b)(1), must:

(i) Have a mental disorder diagnosis that has been verified by a psychiatrist.

(ii) Have a psychiatric condition requiring more intensive treatment than that provided by an outpatient clinic.

(iii) Have a psychiatric condition requiring provision of a supervised, protective setting for a prescribed time period to prevent institutionalization or ease the transition from inpatient care to more independent living.

With such conditions, psychiatric partial hospitalization service patients are too sick to be treated in short, infrequent visits to therapists, but need not be kept in state mental hospitals.

Many such people have, however, at times been inpatients at state mental hospitals. Adults and children manifest diverse symptoms and may suffer additional handicaps, including mental retardation or physical disability.

All told, about 20,000 patients at any given time attend psychiatric partial hospitalization services. These services aim to increase patients' ability to function in society, to bring them back to and keep them in their community using the least restrictive therapy. 55 Pa.Code § 5210.6. Available therapy differs at different services, because certain providers specialize; for example, some fill particular needs for children or adults or the elderly, persons suffering acute crises or chronic illnesses or mental retardation, or the physically disabled or drug abusers. Such specializations can facilitate therapy, because otherwise tensions between subpopulations — such as the acutely and chronically ill or the young and old — may disturb patients and distract providers from their primary tasks and because specialization allows providers to implement particularly effective therapies.

The therapy at all services — described generally in 55 Pa.Code Chap. 1150, Appendix A, as limited by 55 Pa.Code § 1153.14 — typically requires attendance at sessions three to five days per week. Each visit lasts between three and six hours. 55 Pa. Code § 1153.53(2).

These sessions may continue over a short or long time, depending on a patient's response. Success depends on both the total amount of time in therapy and the frequency of therapy.

If therapy is cut off (or cut down) prematurely, as the time without (or with reduced) treatment lengthens, patients become increasingly likely to harm themselves or others. For example, children may establish patterns of juvenile delinquency and adults may become homeless. Significant deterioration of mental health, including activation of psychoses, can occur within two weeks without treatment, leading to a need for increased drug therapy, emergency care, or institutionalization. Sometimes the lost capacity cannot be recovered when therapy resumes. Even to the extent that later treatment can re-establish patients' equilibrium, during the interim the patient and society suffer.

This cannot be avoided by increased use of inpatient or outpatient psychiatric services, the former being excessively restrictive for patients and expensive for society, the latter being ineffective. Psychiatric partial hospitalization services' inclusion within Pennsylvania's Medicaid program reflects awareness of the vital purposes fulfilled by this intermediate level of therapy.

The availability of psychiatric partial hospitalization services, and the regularity of therapy provided, significantly depend on patients' access to transportation. Transportation needs reflect patients' mental and physical condition, personal resources, and proximity to an appropriate service.

Many patients can walk, ride public transportation, drive or be driven to their services. Others — either because of confusion when beginning therapy or because they are experiencing an acute phase of mental illness, or because of disability, age, or great distance to travel — require paratransit, transport to a service by vans that may come with special equipment (such as wheelchair lifts) or with attendants.

Whatever their means of transportation, some psychiatric partial hospitalization therapy patients can pay the necessary costs using family money or medical insurance. Few such resources exist for plaintiffs, however, whose therapy is funded through the Medicaid program.

This program serves only poor people. See 42 U.S.C. § 1396a(a)(10 & 17). Their aid is paid for in part by the Commonwealth and, so long as the Commonwealth provides services in compliance with a plan approved by the Secretary of the United States Department of Health and Human Services (the Secretary), in part by the federal government. 42 U.S.C. § 1396. The relative share of costs depends on the type of service provided. 42 U.S.C. § 1396b(a). Medical services, under 42 U.S.C. § 1396b(a)(1), are more than half-paid-for by the federal government while administrative services, those "found necessary by the Secretary for the proper and efficient administration of the State plan" under 42 U.S.C. § 1396b(a)(7), are half-paid-for by the federal government.

In Pennsylvania, ambulance transport is provided as a medical service, but all other transportation is provided as an administrative service. See 55 Pa.Code § 1101.31. For many years DPW has paid for ambulance transport under 55 Pa.Code § 1245.51 et seq., but for other Medicaid transportation over the past few years DPW has changed reimbursement plans several times.

Before November 1983, under 55 Pa. Code § 175.23(b)(2)(ii) (superseded), DPW authorized cash grants to Medicaid recipients paying for necessary transportation, including transportation to psychiatric partial hospitalization services. Ultimately, this system proved too costly in DPW's view, providing little opportunity for either cost-containment or service coordination.

By November 1983, DPW replaced the old rules governing transportation with the Public Assistance Transportation Block Grant plan. This plan provided for DPW to offer each county, through the commissioners, a sum of money to pay for all Medicaid recipients to be carried to their health-care providers; in those counties rejecting the offer, DPW would offer non-governmental contractors the same deal; if neither county nor contractor accepted, DPW would reimburse Medicaid recipients as under the prior system. See 13 Pa.B. 2876-78 (September 24, 1983) and 55 Pa. Code Chap. 2070.

Under this Block Grant plan, the name notwithstanding, if counties or contractors exhausted their funds for transportation during a year then they could apply to DPW for a supplemental grant. This process was not well publicized, however, and with DPW's encouragement various county-based transporters placed improper limits on the time, frequency, area, and mode of transportation services provided. When supplemental grants were requested by the contractor in Philadelphia, DPW failed to provide funds in a timely manner so that several times this contractor almost ceased operations. Thus, disrupted or reduced transportation services under the Block Grant plan harmed certain plaintiffs.

Other plaintiffs, however, seem to have fared reasonably well under this system. The structure of county-based planning and coordination is praised by plaintiffs, who point out that under the Block Grant plan DPW's overall transportation outlays stopped escalating rapidly and, in spite of demand for psychiatric partial hospitalization services by recently de-institutionalized plaintiffs, held down (and probably cut) DPW's outlays for plaintiffs' transportation. Savings were augmented by DPW's commitment to audit one contractor, and additional savings probably would have been realized if DPW had made a reasonable commitment to monitoring and supervising other county-based transporters. This was not done, however. Instead, based on limited operating experience with respect to plaintiffs, DPW concluded that the Block Grant plan cost more than desired.

In May 1985, DPW decided to implement a new transportation plan called the Medical Assistance Transportation Program. The Transportation Program clarified that county-based transporters could obtain supplemental grants, but otherwise did not differ much from the Block Grant plan with respect to most Medicaid recipients. With respect to plaintiffs, however, the initial proposal would have required each service provider to assure round-trip transportation, in return for which the provider would receive $1.45 per plaintiff-hour of treatment in addition to the sums — $6.50 per child-hour and $5.50 per adult-hour — that previously had been paid for therapy sessions. This, for plaintiffs, constituted the first version of DPW's special transportation plan.

The terms were incorporated in agreements that DPW sent out in June for acceptance by psychiatric partial hospitalization service providers. The providers' old agreements were set to expire June 30, 1985.

Meanwhile, on June 1, 1985, plaintiffs commenced this...