C.D.Mo: Permanent Injunction prevents denial of Medicaid coverage for incontinence supplies

A district court granted permanent injunctive relief against the Missouri Department of Social Services preventing the state’s Medicaid program from denying Medicaid coverage for incontinence supplies for people aged 21 and older. Hiltibran v. Levy, No. 10-4185-CV-C-NKL (C.D. Mo. June. 24, 2011). In December of 2010, the court granted a preliminary injunction against the defendants (see our posting here), which prompted an interim policy that allowed coverage of incontinence supplies on a case-by-case basis upon a finding of medically necessity. Joel Ferber of Legal Services of Eastern Missouri represents the plaintiffs, along with the St. Louis University Law Clinic, the Kennedy Law Firm and the National Health Law Program.

Prior to the preliminary injunction, Missouri’s Medicaid program covered incontinence supplies for disabled children between ages four through twenty and disabled adults who live in institutions.  Despite physicians’ determinations that incontinent briefs were medically necessary to prevent skin deterioration and infection and maintain the plaintiffs’ ability to live in the community, the state originally denied coverage to all four plaintiffs under its Exceptions Process (reserved for items deemed essential medical services or otherwise exceeding the limitations of the state Medicaid plan) on the grounds that the briefs were personal hygiene products.  One plaintiff received a Prevention Waiver, which serves individuals with severe disabilities and covers incontinent briefs. However the waiver serves a maximum of 399 individuals and continuation of receipt of the waiver is not guaranteed.

The standard for a permanent injunction is the same as the standard as a preliminary injunction, except that a permanent injunction must show actual, rather than likely, success on the merits.  The court adopted its previous findings that the plaintiffs showed irreparable harm, that the balance of hardships tipped in their favor, and that an injunction was in the public interest.  The court then held that the plaintiffs showed actual success on the merits of their claims.

The plaintiffs argued that the defendants violated the Medicaid Act because their policy violates the “reasonable standards” requirement of the Act mandating that state plans must include reasonable standards without arbitrarily limiting the amount, duration, or scope of required services. 42 U.S.C. § 1396a(a)(17); § 440.230(c).  The court previously held, in Lankford v. Sherman, 451 F.3d 496, 511 (8th Cir. 2006), that “[b]ecause Missouri has elected to cover DME as an optional Medicaid service, it cannot arbitrarily choose which DME items to reimburse under its Medicaid policy.” The state argued that incontinent supplies are not DME, but are personal hygiene items; however the state repeatedly referred to incontinent supplies as DME in provider bulletins and Medicaid manuals.  The court refused to ignore Missouri’s choice to voluntarily refer to incontinent briefs as DME or the plaintiffs’ physicians’ documentation of continuing medical need.  The court found that incontinent briefs were DME and medically necessary, and the state’s policy of denying coverage for briefs for adults not living in an institution was arbitrary, in violation of the “reasonable standards” provision of Medicaid.

The plaintiffs asserted that the defendants violated the mandatory “home health services” requirement of the Medicaid Act. 42 U.S.C. §§1396a(a)(10)(A); 1396a(a)(10)(D); Mo. Rev. Stat. § 208.152.1(4); 42 C.F.R. §§ 440.70(b)(3), 440.210, 441.15. Under the state program, all Medicaid recipients are entitled to home health services, which include medical supplies and equipment.  Because both parties conceded that incontinent briefs are either equipment or supplies, the court held that they are covered by Medicaid if they are medically necessary and a state violates the mandatory Medicaid requirement if it does not cover an individual’s medically necessary incontinent briefs.

Under Missouri’s Medicaid policy, disabled adults living in the community were denied coverage for incontinent briefs because they were “non-medical,” but individuals living in institutions, regardless of age, retained coverage for incontinent supplies.  Plaintiffs argued that, under this policy, in order to obtain Medicaid coverage for such supplies, they had to submit to institutionalization, which violated the ADA and Section 504 of the Rehabilitation Act.  The “integration mandate” of the ADA, outlined in Olmstead, prohibits public entities from excluding qualified individuals, by reason of their disability, from participation in their services or to deny the benefits of the programs or activities of the entity to such individuals; the Rehabilitation Act prohibits the same conduct from any program that receives federal financial assistance. 42 U.S.C. §§ 12131-12134; §12132. Missouri did not dispute that the plaintiffs’ claim met the criteria of Olmstead, but argued that its waiver program was sufficient to prevent institutionalization.  Since the state failed to show that each of the plaintiffs was eligible for the program, that there were enough waiver spots available for each plaintiff, or that continued coverage under the waiver program was guaranteed, the court found that the state did not prove that its waiver program was a viable alternative to institutionalization.  The court concluded that, pursuant to Olmstead, the state was required to provide Medicaid coverage of incontinent briefs to individuals in the community, if such briefs were covered for individuals in institutions.

Finding that the state violated the “reasonable standards” requirement and “home health services” requirement of the Medicaid Act and violated the integration mandate of the ADA and Rehabilitation Act, the court issued a permanent injunction barring the state from instituting its current unlawful policies and mandating the state to create fair policies that would allow all adult Medicaid recipients to receive medically necessary incontinent briefs.


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