Stanton v. Bond, 74-1409
| Decision Date | 30 October 1974 |
| Docket Number | No. 74-1409,74-1409 |
| Citation | 504 F.2d 1246 |
| Parties | Wayne STANTON et al., Defendants-Appellants, v. Louise BOND et al., Plaintiffs-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Theodore L. Sendak, Atty. Gen., and A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellants.
Lawrence G. Albrecht, Milwaukee, Wis., Seymour Moskowitz, Gary, Ind., Ivan E. Bodensteiner and Michael Mulder, Law Student, Valparaiso, Ind., for plaintiffs-appellees.
Before SWYGERT, Chief Judge, and FAIRCHILD and SPRECHER, Circuit Judges.
We are asked to determine whether failure of a state to comply with the requirements of the early and periodic screening, diagnosis and treatment (for persons under 21 years of age) provisions of the Social Security Act justifies injunctive relief.
Plaintiffs, representing the class of persons under age 21 who are eligible for medical benefits under Title XIX of the Social Security Act, brought this action under 42 U.S.C. § 1983, against various Indiana state officials, challenging their failure to implement a mandatory federal health program for needy children.
On March 22, 1974, the district court partially granted plaintiffs' motion for summary judgment and enjoined the state officials from continuing to administer the state program in violation of the statute and regulations, and ordered that a complying program be instituted by July 1, 1974. The defendants have appealed.
In 1965 Congress added Title XIX to the Social Security Act, which created a comprehensive program of medical assistance for the needy (popularly called Medicaid. 1 The medical assistance program is administered by the states 2 with the federal government participating through financial grants to the states. 3 States are not required to operate medical assistance plans, but if they elect to do so they must comply with the requirements of Title XIX. 4
Title XIX requires 5 that each state plan provide five basic services: inpatient hospital services, outpatient hospital services, laboratory and x-ray services, skilled nursing home services and physicians' services. 6 Originally nine other medical services were optional with the states, 7 and additional optional categories of care have been added by Congress from time to time.
In 1967 Congress amended one of the five mandatory requirements to, in effect, require each participating state to furnish a sixth basic service. 8
(E)ffective July 1, 1969, such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary.
The addition of "early and periodic screening and diagnosis" and "treatment" (EPSDT) of persons under the age of 21 was the result of a growing need for child health care among the needy. 9
Early in 1967, President Johnson recommended to Congress a comprehensive program for American children, one recommendation calling for programs providing early diagnosis and treatment of children with handicaps. 10 The President pointed out that over 3.5 million children who needed medical help and another million crippled children did not receive the needed medical services. 11
Studies have shown that one out of every three poor children in the United States is so anemic as to require immediate medical attention. Severe malnutrition causes permanent brain damage, stunted physical growth, and increased susceptibility to disease. 12
Senator Mondale pointed out to the Senate in 1972 that in Mississippi, the first state to aggressively implement EPSDT, "examination of 1,178 youngsters revealed 1,301 'medical abnormalities.' " These included 305 cases of multiple cavities, 241 cases of anemia, 97 cases of faulty vision, 217 cases of enlarged tonsils, and significant numbers of hernia, intestinal parasites and poor hearing cases. 13
Most childhood handicaps can be prevented or cured or corrected if detected early enough. One-third of the chronically handicapped conditions of children in the United States could be corrected or prevented by preschool care, and continuing care to age eighteen would correct or prevent 60 percent. 14
Despite the urgency of the need for EPSDT and despite the July 1, 1969 deadline for its proposed effective date as established by Congress, final regulations by the Department of Health, Education and Welfare, implementing Title XIX, were not published in the Federal Register until November 9, 1971, 15 did not become effective until February 7, 1972, and gave the states further leeway by providing that by February 7, 1972 16
(T)he State plan must provide that screening, diagnosis, and such additional treatment will be available to all eligible children under 6 years of age, and must specify the progressive stages by which screening, diagnosis, and such additional treatment will be available to all eligible individuals under 21 no later than July 1, 1973.
Except for the extreme leniency shown in extending the time for full compliance by the states for four years beyond the congressional date, the HEW regulations are fairly stringent. They commence by providing that "(a) State plan for medical assistance under Title XIX of the Social Security Act must . . . (s) pecify that at least the first five items of medical and remedial care and services, set forth in paragraph (b)(1) through (5) of this section, will be provided to the categorically needy." 17
Paragraph (b)(4)(ii), which provides for EPSDT, 18 falls within the mandatory category. Paragraph (a)(3) then states that any plan must provide, with respect to the item of care set forth in paragraph (b)(4)(ii), four areas of coverage. 19
The regulations seek "to assure that individuals under 21 years of age who are eligible for medical assistance may receive the services of such facilities . . ." 20 and "assuring that such individuals are informed of such services. . . ." 21 States are required to enter into "agreements to assure maximum utilization of existing screening, diagnostic, and treatment services provided by other public and voluntary agencies. . . ." 22 State plans are to assure that the necessary services "will be available to all eligible individuals under 21 years of age. . . ." 23
The final regulation guidelines for the EPSDT program were issued by HEW on June 28, 1973, as part of the Medical Assistance Manual, Part 5, Section 5-70-00 et seq. (MSA-PRG-21). The guidelines begin with the following introduction:
The 1967 amendments to title XIX of the Social Security Act added a requirement to Medicaid that was intended to direct attention to the importance of preventive health services and early detection and treatment of disease in children eligible for medical assistance. This corresponded to a similar amendment to title V of the Act. Through this amendment Congress intended to require States to take aggressive steps to screen, diagnose and treat children with health problems. Congress was concerned about the variations from State to State in the rates of children treated for handicapping conditions and health problems that could lead to chronic illness and disability. Senate and House Committee reports emphasized the need for extending outreach efforts to create awareness of existing health care services, to stimulate the use of these services, and to make services available so that young people can receive medical care before health problems become chronic and irreversible damage occurs.
MSA-PRG-21, § 5-70-20(A) (emphasis added).
There follows comprehensive descriptions of what is required in the nature of case finding, screening, diagnosis and treatment. The guidelines include the following:
The State agency must have an outreach program to inform AFDC families and other eligible individuals about the screening program and to encourage them to take advantage of this service.
The State agency must seek out and develop agreements with facilities and practitioners throughout the State that can provide screening and diagnostic services for early casefinding purposes.
To actively seek out eligible individuals for the EPSDT program, the State agency should develop procedures: (a) to inform parents that these services are available for their children, and when and where they are provided; (b) to make sure that they understand the nature and purpose of the screening program; (c) to enlist the help of other community agencies in casefinding activities; and (d) to assure that families are helped, if they need such assistance, to obtain transportation to the screening center and for diagnostic studies and treatment.
Id. §§ 5-70-20(B)(6), (B)(7), (D)(1).
Congress, as part of the Social Security Amendments of 1972, enacted a penalty for failure to provide child health screening services under Medicaid: 24
(2) provide or arrange for the provision of such screening services in all cases where they are requested, or
(3) arrange for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services.
The mandatory obligation upon each participating state to...
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