Stating there was “no dispute” that there is a private right of action directly in the Medicaid statute, 42 U.S.C. § 1396a(a)(10), the district court for the Southern District of Indiana issued a permanent injunction against state laws held to violate federal Medicaid law.
The state laws required a denial of Medicaid reimbursement for physical and occupational therapies for children after two years, if future progress is expected to be minimal. The court held that the state’s failure to consider possible regression without further therapy violated the requirement of the Early and Periodic Screen Diagnostic & Treatment program (EPSDT) to “to correct or ameliorate defects and physical and mental illnesses and conditions.” 42 U.S.C. § 1396d(r)(5). A.M.T. v. Gargano, 2011 WL 590304 (S.D. Ind. Feb. 10, 2011). The judge is an Obama nominee. The ACLU of Indiana brought the case.
The defendants argued that there was no private right of action to proceed under 42 U.S.C. § 1983 for claims under 42 U.S.C. §§ 1396a(a)(8) and (a)(17), but did not seek judgment on the § 1396a(a)(10) claim. The court interpreted the defendants’ position as not challenging a private right of action in the Medicaid statute to enforce § 1396a(a)(10). The court cited Indiana Protection and Advocacy Services v. Indiana Family & Soc. Serv. Admin., 603 F.3d 365, 380 (7th Cir. 2010) (en banc), in which the court held that there is an implied private right of action for a state Protection and Advocacy organization to enforce a totally different statute, the Protection and Advocacy for Individuals with Mental Illnesses Act. The court declined to address the plaintiff class’s “alternative” claim of enforcing § 1396a(a)(10) utilizing § 1983, and therefore the court declined to award fees under the companion statute of 42 U.S.C. § 1988.
Turning to the merits, the court noted that § 1396a(a)(10) requires the state to provide EPSDT services to children. Then § 1396d(r)(5) defines mandatory EPSDT services to include services which “correct or ameliorate” the problems identified in EPSDT screenings. The court viewed the issue as whether the state’s refusal to consider possible regression in children with chronic conditions without further therapy violates the requirement to provide services to correct or ameliorate conditions. The court relied on two district court decisions interpreting the phrase “correct or ameliorate,” including one from the southern district of Indiana that was affirmed by the seventh circuit. Collins v. Hamilton, 231 F.Supp.2d 840 (S.D.Ind. 2002), aff’d, 349 F.3d 371 (7th Cir. 2003); Ekloff v. Rogers, 443 F.Supp.2d 1173 (D.Ariz. 2006). The court stated that these cases supported the finding that therapies which prevent regression are covered by the EPSDT program.
The court further concluded that a “comprehensive definition” complied with Congress’s intent for an “inclusive” EPSDT program. The court found that the defendants’ position was unreasonable and contrary to the purpose of EPSDT of providing preventative health services to children.
The court concluded that state laws permitting denial of coverage after children had reached a functional plateau without consideration of possible regression violated the federal Medicaid statute. The court issued a permanent injunction enjoining enforcement of the state laws.