A preliminary injunction was awarded by a district court in Missouri to stop the state from denying Medicaid coverage for incontinence supplies for people 21 and older. The court held that the plaintiffs were likely to succeed on the merits of their claim that the denial of coverage for adult diapers violates (1) the reasonable standards provision of the Medicaid statute, (2) the mandatory home health services requirement of the Medicaid Act, and (3) the integration mandate of the Americans with Disabilities Act and the Rehabilitation Act. The court further held that the plaintiffs had met all the other requirements for a preliminary injunction. The decision is not presently available on Westlaw and is therefore attached. Hiltibran v. Levy, Case No. 10-4185-CV-C-NKL (C.D. Mo. Dec. 27, 2010). The judge was nominated by President Clinton. 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. The Department of Justice also filed a Statement of Interest on behalf of the United States of America with regard to the ADA and Rehabilitation Act claims. The United States argued that plaintiffs were likely to succeed on the merits of their community integration claims and that they had met all of the other elements needed for a preliminary injunction.
Missouri’s Medicaid program has a policy, codified in a state regulation, that the state provides Medicaid coverage of diapers for disabled children between the ages of 4 and 21 and disabled adults who are in institutions. Disabled adults over the age of 20 who live in the community did not receive coverage for diapers under this policy, even though their doctors “determined that incontinence briefs are medically necessary for plaintiffs to prevent skin deterioration and infections and to maintain plaintiffs’ ability to live in the community.”
The court held that it was “likely” that the exclusion of adult diapers was arbitrary and therefore the policy violated the Medicaid reasonable standards provision, 42 U.S.C. § 1396a(a)(17). The court noted that the policy did not “account for recipients’ diagnosed conditions, prescribed treatment, and the medical community’s knowledge” but rather “would deny medically necessary incontinence briefs to participants based on their age and living situation.” Also, the state’s unrebuttable presumption that adult diapers were items of personal hygiene denied the plaintiffs a meaningful procedure for requesting non-covered items. The court relied heavily on the Eighth Circuit’s opinion in Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006), which addressed the Medicaid reasonable standards provision in the context of a prior limitation on durable medical equipment (DME) coverage.
Among other things, the state argued that adult diapers are not DME, because they are single use items and a state regulation defines DME as “equipment that can withstand repeated use.” The court noted that state manuals and bulletins were to the contrary. Furthermore, the state classified diabetic supplies and oxygen supplies as DME, even though those are not used repeatedly. Meanwhile, one of the plaintiffs was forced to “repeatedly use” her own diapers because she could not afford to purchase a sufficient amount given her limited income.
The court’s conclusion that incontinence supplies are DME led the court to further hold that the policy violated the home health services requirement of the Medicaid statute, which specifies that Medicaid coverage includes “[m]edical supplies [and] equipment.” 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(4)(A), 1396a(a)(10)(D); 42 C.F.R. §§ 440.70(b)(3), 441.15, 440.210. The court noted that the plaintiffs were supported by a letter from the US Centers for Medicare and Medicaid Services and by the language of the state Medicaid plan.
The court also held that the coverage of adult diapers only for adults residing in nursing homes violated the integration mandate of the ADA and Rehabilitation Act, as established in Olmstead v. L.C., 527 U.S. 581 (1999). The court stated: “Persons at risk of institutionalization may make an integration mandate challenge without having first been placed in institutions.” The court observed that the plaintiffs obtained adult diapers through donations from charity and family members, and one plaintiff reused her supply because she could not afford to pay for them. The plaintiffs established that there was no fundamental alteration since the cost of their diapers is far below the cost of institutionalization. The court concluded that “under Olmstead, Defendants are required to provide incontinence briefs to non-institutionalized adults if they provide briefs to institutionalized adults.”
Plaintiffs established the likelihood of irreparable harm based on the risk of skin deterioration and infections. The court also found that the balance of hardships tipped in plaintiffs’ favor and an injunction was in the public interest.
