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Click here for the full text of this decision FACTS:S.D. is a 16-year-old boy with spina bifida. Among other things, his condition has rendered him incontinent and he has no sensation below the waist. S.D. receives Medicaid benefits under the “early and periodic screening, diagnostic and treatment services” program (EPSDT) for certain claimants under the age of 21. Before moving to Louisiana with his family, S.D. received disposable incontinence underwear from the Virginia Medicaid program. The underwear is needed to draw moisture away from S.D.’s skin. Because he lacks sensation below his waist, he cannot detect when skin irritation or infection from urine may be occurring, so the underwear is needed to ameliorate S.D.’s condition. Once S.D. moved to Louisiana, his doctor, Dr. Ernest Edward Martin, prescribed the disposable underwear for the same reasons. He also found that the underwear was necessary from a mental health standpoint because without it, S.D. would likely be homebound, isolated and unable to attend school or engage in other age-appropriate activities. S.D. filed a claim for medical assistance for the cost of the prescription with the Louisiana Department of Health & Hospitals (LDHH) under the state’s Medicaid plan. LDHH denied S.D.’s claim saying the underwear was available through another agency, was not considered medically necessary and was a nonmedical supply not covered by Medicaid. S.D. filed an administrative appeal, in which LDHH’s decision was upheld without reference to the EPSDT provisions. The administrative law judge found that “diapers” are “specifically excluded from coverage” under the state Medicaid plan. S.D. filed suit a civil rights suit in federal court, asking for injunctive and declaratory relief. The district court granted S.D.’s motion for summary judgment and denied LDHH’s. The district court concluded that 1. 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; 2. the EPSDT provisions of the Medicaid Act create rights enforceable by 42 U.S.C. 1983; and 3. LDHH deprived S.D. of his federal right to EPSDT benefits in violation of the Medicaid Act. On appeal, LDHH does not dispute that S.D. is eligible to receive EPSDT services and that the medical assistance for the prescription of disposable incontinence underwear he seeks is necessary to ameliorate his unhealthful conditions discovered by screening within the terms of the EPSDT program. Instead, LDHH makes five arguments: 1. the district court overstated the scope of the EPSDT mandate by adopting the “convenient shorthand” or “erroneous assumption” that a state is required to provide EPSDT children with any service that could be provided for in a state plan, even if the service is not one that the state has elected to provide; 2. the medical prescription of disposable incontinence underwear, although necessary to ameliorate S.D.’s condition for EPSDT purposes, does not constitute a health care, service, treatment or measure “described in Section 1396d(a)” of the Act; 3. Louisiana’s State Medicaid Plan, as approved by the Centers for Medicare and Medicaid Services (CMMS), excludes incontinence supplies from coverage under the EPSDT program; 4. LDHH had the implied authority or discretion to exclude this type of health care or service without the approval of CMMS; and 5. 42 U.S.C. 1983 does not provide S.D. with a right of action to sue LDHH because the provisions of the Medicaid Act upon which S.D. relies do not create an enforceable “right” within 1983′s meaning. HOLDING:Affirmed. The court first explains how Medicaid is a federal-state program through which the federal government gives states financial assistance to furnish medical assistance to eligible low-income individuals. Participating states must comply with certain requirements of the federal act, and the state’s regulations must be approved by the Secretary of Health and Human Resources. The programs are administered by CMMS. Section 1396a(d) of the Medicaid Act defines the medical assistance a state must give to eligible recipients as “payment of part or all of the cost of . . . care and services” that are included within a list of 27 general health-care categories, some of which are mandatory and some of which are optional. The act also requires a state to have EPSDT benefits for recipients under the age of 21. The court also points out that while the Medicaid medical assistance plan approved for Louisiana does not include payment coverage for incontinence supplies for recipients older than 21, the EPSDT neither explicitly nor implicitly exclude such coverage. The court then turns to the five issues raised by LDHH. The court points outthat LDHH’s assertion that the district court’s ruling was based on an erroneous assumption that a state provide “any” service under the EPSDT, even services the state has elected not to provide, is incorrect. The district court stated only that states are required to provide medical assistance under the EPSDT program only for health care, services, treatments and other measures described in 1396d(a), that are necessary to correct or ameliorate defects and physical or mental illnesses and conditions discovered by the screening services. Even though LDHH’s argument is based on an incorrect characterization, the court goes on to detail its understanding of the nature and scope of the EPSDT mandate. Based on Congressional intent, interpretation by CMMS and case law from other circuit courts, the court concludes that medical assistance made available to EPSDT children must be for health care described in the list of 27 categories set forth in 1396d(a), modified by the requirement that it must be necessary for corrective or ameliorative EPSDT purposes, further modified by the statutory mandate that it must be provided whether or not it is covered under the state plan. The court then turns to LDHH’s second argument and finds that under the plain meaning of the statute, disposable incontinence underwear necessary to ameliorate S.D.’s condition is the type of medical assistance “described in” 1396d(a). The court also notes that CMMS has approved other state Medicaid plans that expressly provide such supplies under the category for home health care medical assistance. The court addresses LDHH’s third and fourth arguments together. In response to LDHH’s third argument, the court observes that Louisiana’s state plan does not explicitly or implicitly exclude the prescription of disposable incontinence underwear from EPSDT coverage. An exclusion from coverage for “diapers and blue pads” in the general state plan for 21-and-up recipients cannot be ascribed to the EPSDT program for recipients under the age of 21. The court then rejects LDHH’s fourth argument that the Medicaid Act grants LDHH the implied authority, without CMMS review, to make reasonable exclusions from EPSDT coverage. But, assuming for the sake of argument that such authority does exist, the court points out that LDHH did not based its action on such implied authority (the denial was based on the availability through other agencies, no medical necessity and outside the scope of Medicaid, as mentioned above). The court finally takes up LDHH’s fifth argument, that S.D. cannot bring a claim under 42 U.S.C. 1983. The court cites Blessing v. Freestone, 520 U.S. 329 (1997), for the proposition that a 1983 claim can be made not just when there is a violation of federal law, but when there is a violation of a federal right. The court rules that EPSDT program provisions on treatment evidence a congressional intent to confer a right to the health care, services, treatments and other measures described in 1396d(a), when necessary for EPSDT ameliorative purposes, upon the plaintiff. This “rights-creating language” is enough to establish the existence of a federal right that can be enforced through a 1983 action. “Furthermore, the regulations implementing the statute, and defining”home health care services’ to include”medical supplies’, are authoritative interpretations of the statute and are enforceable by 1983. Finally, as discussed [above], medically necessary incontinence supplies fall within the natural and plain meaning of the term”medical supplies’ and [CMMS] has interpreted the”home health care services’ category as specifically including such supplies. Accordingly, the federal statutory right asserted by the plaintiff is enforceable under 1983.” OPINION:Dennis, J.; King, C.J., Dennis and Lynn, JJ.

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