S.D. ex rel. Dickson v. Hood, No. 03-30007.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Dennis
• Citation: 391 F.3d 581
• Decision Date: 15 November 2004
• Docket Number: No. 03-30007.
• Parties: S.D., by and through his next friend, Richard DICKSON, Plaintiff-Appellee, v. David HOOD, in his capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant-Appellant.

391 F.3d 581 S.D., by and through his next friend, Richard DICKSON, Plaintiff-Appellee,
v.
David HOOD, in his capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant-Appellant. No. 03-30007. United States Court of Appeals, Fifth Circuit. November 15, 2004.

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David Holman Williams (argued), Laurie Peller, Peller & Williams, New Orleans, LA, for Plaintiff-Appellee.

Caroline Montrose Brown (argued), Nathan A. Brown, Covington & Burling, Washington, DC, Richard Lee Henley, Dept. of Health & Hospitals for the State of Louisiana, Baton Rouge, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN^*, District Judge.

DENNIS, Circuit Judge:

This appeal challenges the district court's judgment enforcing a Medicaid recipient's right of action under the Civil Rights Act, 42 U.S.C. § 1983, based on a state Medicaid agency's deprivation of his federal statutory right to medical assistance under the Medicaid Act, 42 U.S.C. § 1396 et seq. The issues are: (1) whether the Louisiana Department of Health and Hospitals (LDHH), the state Medicaid agency, unlawfully denied the recipient's claim under the Medicaid Act's program for "early and periodic screening, diagnostic, and treatment services" (EPSDT) by refusing to pay for his medically prescribed disposable incontinence underwear that is necessary to ameliorate his physical and mental conditions caused by spina bifida, which results in his total bowel and bladder incontinence, loss of sensation, and continual risk of infection; and, if so, (2) whether LDHH's violation of the statute deprived the recipient of a right secured by federal statute for which he may bring an action for redress under 42 U.S.C. § 1983.

I. A.

The plaintiff, S.D., a sixteen-year-old Medicaid recipient, is afflicted with spina bifida, a congenital defect characterized by imperfect closure of the spinal column. Because of his birth defect, S.D. has total bowel and bladder incontinence and does not have sensation below his waist. Thus, he cannot sense potentially infectious skin irritations resulting from incontinence. S.D. also has two club feet and has trouble walking. He requires leg braces, forearm crutches, and a swing gate to move over short distances. He requires a wheelchair to move over long distances.

As an infant, S.D. was placed in foster care. He was adopted by his parents, and he receives Medicaid benefits pursuant to a federal policy to encourage the adoption of special needs children. He is a qualified recipient of Medicaid's EPSDT program, under which states provide, in accordance with federal law, screening, diagnosis and treatment services to individuals under age twenty-one. Before S.D. moved to Louisiana with his family, he was provided with disposable incontinence underwear by the Virginia Medicaid program.

In 2002, S.D.'s Louisiana physician, Dr. Ernest Edward Martin, Jr., Chairman of the Department of Family Medicine of the Ochsner Clinic, prescribed disposable incontinence underwear as health care that is necessary to ameliorate S.D.'s mental and physical conditions. Specifically, Dr.

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Martin concluded that the prescription of such underwear "was physically necessary because it draws moisture away from the skin which prevents chronic irritation and infection from urine wetness." R. 191. According to Dr. Martin, "[t]his protection is especially important due to S.D.'s lack of sensation below the waist. Because of this lack of sensation, S.D. would not be aware if he developed an infection and an infection could then progress quickly." Id. Finally, Dr. Martin determined that without such a prescription, S.D. would be home bound, isolated, and unable to attend school or engage in other age-appropriate activities. Thus, the prescription was necessary from a mental health standpoint as well. S.D. submitted a claim for medical assistance for the cost of the prescription to LDHH under the Louisiana State Medicaid Plan.

LDHH denied S.D.'s claim stating that "the appliance, equipment, supplies or service is available through another agency,"¹ "the item is not considered medically necessary" and that it was a "non-medical supply not covered by Medicaid." S.D. appealed administratively. The state administrative law judge ruled in favor of LDHH without referring to the Medicaid EPSDT provisions. Rather, the administrative law judge concluded that LDHH properly denied coverage because "diapers" are "specifically excluded from coverage" under the Louisiana State Medicaid Plan.

S.D. brought this action in the district court against LDHH under 42 U.S.C. § 1983 seeking injunctive and declaratory relief. On cross motions for summary judgment, the district court granted S.D.'s motion and denied that of LDHH. The district court concluded that under the Medicaid Act's EPSDT program a qualified recipient is entitled to the health care, services, treatment and other measures described in § 1396d(a) of the Act when such care or services are necessary for corrective or ameliorative purposes; the EPSDT provisions of the Medicaid Act create rights enforceable by § 1983; and LDHH deprived S.D. of his federal right to EPSDT benefits in violation of the Medicaid Act. Accordingly, the district court rendered summary judgment declaring that S.D. is entitled to medical assistance for the prescribed disposable incontinence underwear under the EPSDT program and ordering LDHH to provide medical assistance to S.D. for that purpose. LDHH appealed.

We review the district court's decision de novo, both because it is a summary judgment, and because it requires us to answer issues of statutory interpretation. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir.1995) (en banc); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999). Summary judgment is appropriate only when the record indicates "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. Because there is no dispute as to any material issue of fact in this appeal, our review is limited to whether the plaintiff is entitled to judgment as a matter of law.

B.

Medicaid is a cooperative federal-state program through which the federal government provides financial aid to states that furnish medical assistance to eligible low-income individuals. See 42 U.S.C. § 1396 et seq.; see also Atkins v. Rivera,

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477 U.S. 154, 156, 106 S.Ct. 2456, 91 L.Ed.2d 131 (1986); Louisiana v. United States Dep't. of Health and Human Servs., 905 F.2d 877, 878 (5th Cir.1990). States electing to participate in the program must comply with certain requirements imposed by the Act and regulations of the Secretary of Health and Human Resources. See Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908, 915 (5th Cir.2000) ("The [Medicaid] program is voluntary; however, once a state chooses to join, it must follow the requirements set forth in the Medicaid Act and in its implementing regulations.") The Secretary has delegated his federal administrative authority to the Centers for Medicare and Medicaid Services ("CMS"), an agency within the Department of Health and Human Services. See Louisiana v. United States Dep't of Health and Human Servs., 905 F.2d at 878.²

To qualify for federal assistance, a state must submit to the Secretary and have approved a "state plan" for "medical assistance," 42 U.S.C. § 1396a(a), that contains a comprehensive statement describing the nature and scope of the state's Medicaid program. 42 CFR § 430.10 (1989). "The state plan is required to establish, among other things, a scheme for reimbursing health care providers for the medical assistance provided to eligible individuals." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990).

The Medicaid Act defines "medical assistance" as "payment of part or all of the cost of ... care and services" included in an enumerated list of twenty-seven general health care categories ("medical assistance categories"). 42 U.S.C. § 1396d(a). Some of the categories must be included within state plans (mandatory categories) while others may be included at the option of the state (optional categories). 42 U.S.C. § 1396a(a)(10)(A).

The Act requires that each state plan provide EPSDT health care and services as a mandatory category of medical assistance. The Act describes EPSDT as "early and periodic screening, diagnostic, and treatment services (as defined in subsection (r) of this section) for individuals who are eligible under the plan and are under the age of twenty-one;". 42 U.S.C. §§ 1396a(a)10(A), 1396d(4)(B). Subsection (r) further defines EPSDT services as, inter alia, "[s]uch other necessary health care, diagnostic services, treatment, and other measures described in [§ 1396d(a)] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5).

Thus, EPSDT is a comprehensive child health program designed to assure the availability and accessibility of health care resources for the treatment, correction and amelioration of the unhealthful conditions of individual Medicaid recipients under the age of twenty-one. See CMS State Medicaid Manual § 5010.B [hereinafter "SMM"]. A principal goal of the program is to "[a]ssure that health problems found are diagnosed and treated early, before they become more complex and their treatment more costly." Id.

Louisiana's State Medicaid Plan was approved by CMS. As part of its state plan, Louisiana proposed and CMS approved the provision of the optional medical assistance category of "home health care services"

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to Louisiana's general adult Medicaid population. See ...