M.D. Tenn: EPSDT provisions enforceable and require delivery of services

On remand from the Sixth Circuit decision, the District Court for the Middle District of Tennessee vacated some paragraphs of a consent decree regarding Medicaid Early and Periodic Screening, Diagnostic & Treatment (EPSDT) services but left most of the decree intact. The court held that two EPSDT provisions are enforceable under 42 U.S.C. § 1983.  Even though the Sixth Circuit had stated that Medicaid requires only payment not services, the district court nevertheless ruled that, in regard to the relevant EPSDT provisions, the new statutory definition of Medical Assistance establishes that Medicaid requires the delivery of services.    John B. v. Emkes, 2011 WL 795019 (M.D. Tenn. Mar. 1, 2011).  The initial district judge, nominated by Carter, recused himself at the state’s request in 2006.  The Sixth Circuit removed a Clinton nominated district judge in its 2010 decision.  The new district judge was nominated by Carter.

The Sixth Circuit had vacated paragraphs of the consent decree that were based on the Equal Access provision of Medicaid, 42 U.S.C. § 1396a(a)(30)(A), holding that this provision is not enforceable under § 1983.  The appellate court held that one relevant EPSDT provision, 42 U.S.C. § 1396a(a)(43)(A) is enforceable under § 1983, but left for remand the question of whether 43(B), (C), and (D) are enforceable.  The Sixth Circuit also remanded the question of the application of its ruling that other provisions, specifically §§ 1396a(a)(8) and (10), require only payment and not the delivery of services.

The plaintiffs conceded that § 1396a(a)(43)(D) is not enforceable under § 1983, and so the court focused on the other two provisions, (B) and (C).  Looking for rights-creating language as required by Gonzaga v. Doe, 536 U.S. 273 (2002), the district court stated that (B) and (C) were similar to (A), which the Sixth Circuit had held was enforceable.  Sections (B) and (C) were directed to a specific group of individuals and phrased in mandatory language.  These sections did not have an aggregate focus.  The court noted that other courts evaluating these provisions had reached the same conclusion.

The Sixth Circuit had acknowledged that the definition of Medicaid had been changed to include not only payment for services but also the delivery of care and services.  But the Sixth Circuit stated that this was not relevant to its analysis of §§ 1396a(a)(8) and (10), because those provisions could be fulfilled by paying for services.  The district court held that the new definition of Medicaid, as applied to §§ 1396a(a)(43)(B) and (C), did require the provision of services.  These provisions explicitly require that the state “provide or arrange for the provision of” screening services and corrective treatment.  The court concluded that this “language cannot reasonably be construed to mean only payment for services, particularly in light of the amended definition of ‘medical assistance.’”  The court also referenced the legislative history of the change in the definition to buttress its holding.

Further, the court reviewed two regulations that provided a basis for the consent decree.  The court held that 42 C.F.R. § 441.56(a) was well within the scope of the Medicaid statute, § 43(A), and therefore enforceable under § 1983.  However, 42 C.F.R. § 441.61(c) was found to be beyond the bounds of § 43(C), as well as vague and amorphous.  The court held that § 441.61 could not be enforced under § 1983 and vacated paragraphs of the consent decree that were based on that regulation.

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