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11th Circuit: Doctors Don't Trump State on Medicaid Care for Children With Disabilities
Fulton County Daily Report
April 28, 2009
A federal appeals panel has declared that treating doctors don't have the final say in how much nursing care the state must provide children with disabilities under Medicaid.
Friday's ruling by the 11th U.S. Circuit Court of Appeals reversed a district judge's decision that had said the state must provide the amount of nursing care that a North Georgia girl's doctor said she needs.
Despite a slew of amicus briefs by state governments and Medicaid plan administrators, the panel dispatched the case in a two-page, unpublished, unsigned opinion that came out a month after oral argument.
Holland & Knight partner Robert S. Highsmith Jr., who represented a pro-state friend of the court that provides managed care services for Medicaid programs, said his client, WellCare of Georgia, had been concerned about language in U.S. District Judge Thomas W. Thrash Jr.'s ruling that suggested anything ordered by a treating physician is medically necessary under the law. "That one sentence just had to get reversed," said Highsmith. "We are very excited that they saw and reversed that clear error."
But an advocate for the teenage girl at the center of the case, Atlanta Legal Aid Society General Counsel David A. Webster, said Monday that the decision "doesn't mean much" and says little about the relationship between the state and the treating physician. "That's going to be open for future litigation," said Webster. Webster said the case of his client, Anna C. Moore, will go back to Thrash for the judge to consider the matter again. Moore, a teenager living in North Georgia who goes by "Callie," has been receiving in-home nursing care paid for by Medicaid for about a decade. The state has been trying to cut the number of hours of care she receives each week.
The 11th Circuit interpreted a federal law that says states participating in the Medicaid program must provide "early and periodic screening, diagnostic and treatment services" that are necessary to "correct or ameliorate defects and physical and mental illnesses" in Medicaid-eligible children. The primary ways children become eligible for Medicaid are that they come from a low-income family or have a disability, according to Joshua H. Norris, another one of Callie's lawyers.
Georgia's Department of Community Health operates a program to administer Medicaid-funded nursing services for several hundred children who need nursing care. It delegates the decisions about approval of such services to an organization called the Georgia Medical Care Foundation.
According to Thrash's order, Callie is disabled because of a stroke she experienced in utero and suffers from various chronic conditions, including mental retardation and cerebral palsy. She lives at home and, according to the state's brief, attends an elementary school in Athens, Ga., three days a week. Her lawyers have said she requires constant care.
The state's lawyers have said that nursing hours can be reduced when the patient's medical condition stabilizes, positing that a goal of the program is to teach parents and other caregivers to take care of their children on their own. The Moores' lawyers have contended that the state's system of "weaning" patients off their nursing services as long as they're staying out of the hospital and not getting worse follows a different standard than that set by federal law.
In 2006, the state informed Callie's mother that it was reducing Callie's nursing hours from 94 hours a week to 84, contrary to the recommendation of Callie's primary care physician. Callie's mother filed suit.
The Moores' lawyers convinced Thrash that the reduction was improper. After issuing multiple injunctions in Callie's favor, he denied the state's motion for summary judgment and granted the Moores' motion in part, concluding the state must provide for the amount of skilled nursing care that Callie's treating physician deems necessary. The panel that ruled in favor of the state in its appeal was comprised of Senior 11th Circuit Judge R. Lanier Anderson III, 11th Circuit Judge Gerald B. Tjoflat and U.S. District Judge Lisa Godbey Wood, visiting from the Southern District of Georgia.
The panel said both the state and Callie's physician have roles in determining what's medically necessary to correct or ameliorate Callie's medical conditions. It cited a federal regulation that says a Medicaid agency "may place appropriate limits on a service based on such criteria as medical necessity or utilization control procedures."
"A private physician's word on medical necessity is not dispositive," the panel concluded.
Assistant Attorney General Virginia B. Fuller made the successful oral argument for the state last month. Attorney General Thurbert E. Baker's spokesman, Russ Willard, said in an e-mail that the state "is appreciative of the Court of Appeals decision recognizing the role of the Medicaid program in providing for this treatment."
Norris, who also is director of legal advocacy for a nonprofit that advocates for people with disabilities, said the 11th Circuit gave Thrash an opportunity to say more about the roles of treating doctors and the state in deciding what care the state needs to provide. Norris noted that Thrash wrote on the subject last year in another nursing care case about a Savannah, Ga., boy who nearly drowned when he was 2.
Thrash barred the state from enforcing a policy of not providing nursing care for patients requiring 16 to 24 hours per day for more than one week; he said that criteria isn't based on what's medically necessary under federal Medicaid law.
On the other hand, Thrash denied the plaintiff's request, based on the treating physician's recommendation, for 24-hour-a-day private nursing services for an indefinite period of time. Thrash deemed such a prescription "an abuse of the Medicaid system."
The state has limited discretion to deny a provider's request for care under the "early and periodic screening, diagnostic and treatment services" portion of the Medicaid Act, said Thrash. He added that "[t]he state's discretion is limited to a review of the request for fraud, abuse of the Medicaid system, and whether the service is within the reasonable standards of medical care."
The 11th Circuit case decided Friday is Moore v. Medows, No. 08-13926.
