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Medicaid and EPSDT: Brief Overview

Medicaid and EPSDT: Brief Overview. MAY 21, 2008 Joel Ferber, Managing Attorney, Health and Welfare Unit Legal Services of Eastern Missouri . Background: What is Medicaid?.

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Medicaid and EPSDT: Brief Overview

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  1. Medicaid and EPSDT: Brief Overview MAY 21, 2008 Joel Ferber, Managing Attorney, Health and Welfare Unit Legal Services of Eastern Missouri

  2. Background: What is Medicaid? • Medicaid is the nation’s primary health insurance program for low-income children, families, seniors, and people with disabilities. • Established by Title XIX of the Social Security Act. • Medicaid covers a quarter of all children and over 60 percent of poor children. • Medicaid is an entitlement program – people who meet the eligibility criteria are covered. They have a legal right to have payments made to their providers for the covered services they need. • Federal legal standards apply (e.g., the right to apply for benefits, notice and hearing rights, applications processed with “reasonable promptness” – 45 days, 90 days if disability determination, right to an ex parte redetermination). Legal Services of Eastern Missouri

  3. Federal and State “Cooperative” system* • Department of Health and Human Services/Center for Medicare and Medicaid Services (CMS) (Formerly HCFA) • Single State Agency • Participating states must follow federal rules • State Medicaid Plans • Individual entitlement for all eligible individuals • State entitlement to federal Matching dollars for expenditures *Source, Lourdes Rivera, National Health Law Program, Overview of Federal Medicaid Rules, March 3, 2004. Legal Services of Eastern Missouri

  4. Medicaid Services: Some key principles and standards • Sufficient amount, duration, and scope to reasonably achieve the service’s purpose. • Furnish with reasonable promptness. • Comparability—to what others receive. • Statewideness—rules must be applied in all parts of the state. • Freedom of choice—choose one’s own providers. • Managed care waives this requirement. • Medicaid is payer of last resort. • Medicare and private insurance pay first. • Medicaid is Payment in Full (Providers cannot “balance bill” Medicaid patients). • New Deficit Reduction Act provides flexibility regarding some of these requirements (e.g., comparability, statewideness). (Adapted From Manju Kulkarni and Randy Boyle, Medicaid Basis, National Health Law Program, December 2, 2007) Legal Services of Eastern Missouri

  5. Legal Framework for Medicaid/MO HealthNet • U.S. and Missouri Constitution (e.g., Due Process Requirements, Supremacy Clause). • Federal Law and regulations (Medicaid Act and Civil Rights laws) (42 U.S.C. §§ 1396 et seq., 42 C.F.R. §§ 430 et. seq.). • Federal Agency Guidance from CMS (Centers for Medicare and Medicaid Services, State Medicaid Manual and Policy Letters. • State Medicaid Plan. • Missouri law and regulations. • MO HealthNet Division Provider Manual and Provider Bulletins. • Family Support Division Income Maintenance Manual and Policy Memoranda. (Adapted from Rivera overview) Legal Services of Eastern Missouri

  6. Medicaid in Missouri (now MO HealthNet) • Until recently, in Missouri, “Medical Assistance” described programs for seniors, people who are blind, people with disabilities. • MC+ described Medicaid for children, families and pregnant women. • These programs have new names.* *See IM-#102, 10/19/07, available at: http://www.dss.mo.gov/fsd/iman/memos/memos_07/im102_07.html Names Legal Services of Eastern Missouri

  7. Medicaid in Missouri (continued) • Medicaid is administered by the Missouri Department of Social Services (the “single state agency” under federal law). • Family Support Division (FSD) determines eligibility (FSD offices in every county). • MO Health Net Division (formerly the Division of Medical Services) pays for services or contracts with managed care organizations to provide services. Legal Services of Eastern Missouri

  8. Medicaid Financing • The federal government pays 63 cents out of every dollar spent on Medicaid services (73% in SCHIP) and 50 cents on every dollar spent on Medicaid administration in Missouri. • General Revenue funds represent only about half of the “state match” in Missouri. • The remainder of the state matching funds come from “provider taxes” -- including the Federal Reimbursement Allowance (FRA), and other sources. Legal Services of Eastern Missouri

  9. Medicaid Spending • While elderly and disabled beneficiaries make up about a quarter of the Missouri Medicaid population, they account for about 65% of the expenditures. • While children constitute 59 percent of the Medicaid program, they account for 26 percent of the State’s expenditures. Legal Services of Eastern Missouri

  10. Optional v. Mandatory • Not all state Medicaid spending is mandatory – States have great flexibility in the eligibility and services categories that they cover. • “Optional” coverage and services were reduced in Missouri in 2005 (some restorations since then). • “Optional” just means that the coverage or service is not required by federal law, not that it is unimportant (e.g., prescription drugs is an “optional” service but every state covers it). Legal Services of Eastern Missouri

  11. Examples of Mandatory Coverage Groups: Children, families, pregnant women, aged, blind and disabled up to certain income levels (e.g., families covered under 1996 AFDC eligibility standards), families eligible for transitional Medicaid, Medicaid spenddown recipients (in Missouri). Examples of Optional Coverage Groups Children, pregnant women, aged, blind and disabled above the mandatory income levels, disabled workers, individuals covered under some federal waivers. Mandatory and Optional Coverage Groups (General description) Legal Services of Eastern Missouri

  12. Hospital inpatient Hospital outpatient Rural health clinic Federally qualified health clinics (FQHC) Labs & X-rays Nursing facilities *from Manju Kulkarni and Randy Boyle, National Health Law Program, Medicaid Basics, December 2, 2007. **to extent authorized under State law or regulation. EPSDT Pregnancy-related (including post-partum) Family planning Physician services Nurse-midwife services** Pediatric or family nurse practitioner** Home health services Federal Mandatory Services* Legal Services of Eastern Missouri

  13. Podiatry Optometry, eyeglasses Prescription drugs Chiropractics Home health for non-nursing facility people Private duty nursing Clinical services rendered outside a clinic TB-related drugs & care Targeted case management Non-emergency medical transportation services (from Kulkarni and Boyle) Dental services, dentures Physical therapy Other rehabilitative services Hospice Case management Respiratory care Community care Personal care services PCCM Alcohol & drug treatment Certain care for people in mental institutions or for people with mental disabilities Federal “Optional” Services Legal Services of Eastern Missouri

  14. Medicaid Services Services are for “medically necessary” care States must cover “medically necessary” treatment for covered services, including optional services. Children—states must apply EPSDT definition of “medical necessity.”

  15. What is EPSDT? • Early and Periodic Screening, Diagnosis and Treatment. • In Missouri, EPSDT is sometimes referred to as HCY (Healthy Children and Youth). • Mandatory Service for Medicaid-eligible children and youth up to Age 21. • EPSDT is the comprehensive package of Medicaid benefits for children – especially important for children with disabilities. • More comprehensive than traditional private insurance. • Requiring these prevention-oriented services will enable the early identification of conditions that can impede children’s natural growth and development so as to avoid the health and financial costs of long-term disability. Legal Services of Eastern Missouri

  16. Why EPSDT? * Poor children are more likely to have health problems than children in families with higher incomes, including: • Vision, hearing and speech problems • Untreated tooth decay • Elevated lead blood levels • Sickle cell disease • Behavioral health problems • Anemia • Asthma • Other health problems ** Special needs children on Medicaid are more likely to need services like PT, OT, speech therapy, respiratory care, personal care services mental health and substances abuse services, durable medical equipment – sometimes excluded or limited in private coverage. *Adapted From Sarah Somers, National Health Law Program, EPSDT Essentials, March 1, 2005. Legal Services of Eastern Missouri

  17. Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) What does EPSDT require? • States must provide for comprehensive health and developmental assessments and vision, dental and hearing services to children and youth up to age 21. • States must provide all necessary treatment. Legal Services of Eastern Missouri

  18. EPSDT Medical Screens • Comprehensive Health and Developmental History. • Comprehensive Physical exam. • Appropriate Immunizations (according to age and health history). • Lab tests, including lead blood tests • Health education. Legal Services of Eastern Missouri

  19. EPSDT: Additional Required Services • Vision, including eyeglasses • Hearing, including hearing aids • Dental, including relief of pain, restoration of teeth and maintenance of dental health Legal Services of Eastern Missouri

  20. Early and Periodic Screening • Periodic Screens • Set according to age • Set by medical experts and dental experts • Different for medical, dental, hearing and vision • Periodicity schedules set according to professional standards (e.g., AAP, AMA, AAPD). • Interperiodic Screens – checkups that occur outside of the regular periodicity schedule (e.g., when a problem is suspected). • Need for interperiodic screen can be determined by people outside the system (e.g., parents, teachers). • Basically any encounter between a health care professional and child is a screen. Legal Services of Eastern Missouri

  21. EPSDT: What about Treatment? • Definition of “medical necessity”: Any “necessary health care, diagnostic services, treatment and other measures…to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan” 42 U.S.C. § 1396d(r)(5). • Under this definition, kids must receive “medically necessary” services that are “optional” for adults – Missouri still provides services that were eliminated for adults. (adapted from Kulkarni and Boyle) Legal Services of Eastern Missouri

  22. EPSDT criteria “Ameliorate” means to: • Improve or maintain the recipient’s health in the best condition possible, • Compensate for a health problem, • Prevent it from worsening, or prevent the development of additional health problems. ** Does not require “improvement” as long as medically necessary! Adapted from North Carolina Division of Medical Assistance, Early and Periodic Screening, Diagnostic and Treatment (EPSDT): Medicaid for Children, 8/24/07, based on federal documents. Legal Services of Eastern Missouri

  23. Determining Medical Necessity Under EPSDT • Deference to the treating provider “… the physician is the key figure in determining utilization of health services …. It is a physician who is to decide upon admission to a hospital, order, tests, drugs and treatments and determine the length of stay.” S. Rep. No 404, 89th Congress, 1st Session. • Presumption in favor of the treating physician’s medical judgment in determining medical necessity: Weaver v. Reagen, 886 F.2d 194, 200 (8th Cir. 1989); J.D. v. Sherman 2006 U.S. Dist LEXIS 878446, *10 (W.D.MO 2006) Legal Services of Eastern Missouri

  24. EPSDT Services Required • Prescription drugs • Dental Services • Physical and other therapies • Private duty nursing • Home health care • Rehabilitation services • Personal care services • Case management • Transportation • Any service that fits within a Medicaid box or category *Adapted from Somers Legal Services of Eastern Missouri

  25. EPSDT requirements: Outreach and Informing • Effective and Aggressive – inform all eligible children or their families about EPSDT, benefits of preventative care, services available under EPSDT. • Oral and written, non-technical language. • Translated (state must effectively inform individuals who are blind or deaf, or who cannot read or understand English). • Also targeted outreach (e.g., to pregnant teens, non-users). • Transportation and appointment scheduling assistance (Prior to screening due date) • State must coordinate activities with other agencies (e.g. Title V, WIC, Head Start). Legal Services of Eastern Missouri

  26. EPSDT Reporting – CMS Form 416 • Submitted annually. • States report, by age grouping: • Number of eligible children; • Percentage of eligible children screened; • Number referred for corrective treatment; • Number receiving dental services; • Number receiving lead blood tests; and • Number enrolled in managed care. * from Sarah Somers Legal Services of Eastern Missouri

  27. What about managed care? • Medicaid (MO HealthNet) Managed care plans have to comply with EPSDT-- it’s in their contracts. • Includes screening and immunization requirements, treatment, transportation and scheduling assistance, and EPSDT definition of medical necessity. • Plans must comply with federal requirements to provide 80% of eligible members with EPSDT screens (“well child visits”). • Pro rata adjustments (upward or downward) to capitation rates if plans exceed 80% or do not meet 80%. • Must comply with federal EPSDT reporting requirements. Legal Services of Eastern Missouri

  28. What about Managed Care plans: Medical necessity • Plans must provide services “necessary to treat or ameliorate” defects, illnesses or conditions. • Plans must provide services necessary for prevention, diagnosis or treatment of an illness or condition, to achieve age appropriate growth and development or designed to minimize regression of conditions or to help “…attain, maintain or regain functional capacity. Legal Services of Eastern Missouri

  29. Role of Litigation • Over the years, parents and advocates have sued the states for failing to fulfill the EPSDT mandate. • Cases may address the failure to provide an individual service or more widespread compliance problems (program-wide failures and deficiencies). • Failure of managed care plans to provide EPSDT services – state is not off the hook for EPSDT compliance when it contracts with managed care plans. Legal Services of Eastern Missouri

  30. Some case examples • S.D. v. Hood: 391 F.3d 581 (5th Cir. 2004) EPSDT violated where State denied recipient with spina bifida causing bowel and liver incontinence, incontinence services prescribed by his treating physician. • Pediatric Specialty Care v. Ark. Dept of Human Servs., 293 F.3d 471 (8th Cir. 2002): Court invalidated Arkansas’s elimination of “early intervention treatment” services as violating the “treatment” component of EPSDT. • French v. Concannon: Children with several mental impairments needing home or community-based services to treat their impairments, alleging state failure to provide EPSDT services, including case management, in-home aides, medication monitoring, and mental health counseling in a timely manner -- comprehensive settlement reached revising several aspects of the state’s EPSDT policies and practices. • Collins v. Hamilton, 349 F.3d 571 (7th Cir. 2003): successfully challenged Indiana’s refusal to cover long-term psychiatric residential treatment facility services for children under 21 – included within the ambit of EPSDT services, state can’t exclude medically necessary services). • Chisolm v. Hood, 133 F.Supp. 2d 894 (E.D. La. 2001): enforcing state’s obligation under EPSDT law to provide psychological and behavioral services to children with autism– court found these services must be provided to correct or ameliorate conditions, ordered parties to develop a remedial plan. Legal Services of Eastern Missouri

  31. More case examples • J.D. v. Menke: Case addressed lack of outreach and informing, failure to provide screening and diagnostic services and failure to provide needed treatment, from wheel chairs to home-based mental health services --comprehensive Settlement required Tennessee Managed Care plans to comply with EPSDT requirements. • Health Care for All v. Romney: 2005 WL 1660677 (D.Mass. July 13, 2005): Court found that Massachusetts’ low payment rates for dentists significantly contributed to a lack of available providers for children. State violated Medicaid Act requirements for prompt provision of EPSDT services, resulted in comprehensive settlement). • Memisovski v. Maram: 2004 WL 1878332 (N.D. Ill. Aug. 23, 2004): Medicaid-eligible children in Illinois could not find pediatric care providers in violation of EPSDT, State failed to effectively inform plaintiffs of the availability of EPSDT services, failed to provide screenings in compliance with its periodicity schedule, and pediatric care not adequately available to children on Medicaid. • Rosie D. v. Romney, 2007 WL 51340 (D.Mass, July 16, 2007), earlier decision, 474 F.Supp2d 238 (2007): State failed to provide service coordination, crises services, and adequate in-home supports for Medicaid-eligible children with serious emotional disturbances. • Georgia Dep’t of Community Health v. Freels, 258 Ga. App. 446, 576 S.E.2d 2 (Ct. App. 2002)” State denied coverage of hyperbaric oxygen therapy for children with cerebral palsy, state applied the wrong standard to determine medical necessity. Legal Services of Eastern Missouri

  32. Missouri Litigation: Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006) (Challenging Cuts to Durable Equipment for Adults • The Eighth Circuit Court of Appeals found that (1) the State’s policy of limiting DME to a narrow list of items appeared to be “unreasonable;” (2) failure to provide coverage of non-experimental, medically necessary services within a covered Medicaid category is both per se unreasonable and inconsistent with the stated goals of Medicaid;” (3) Missouri “cannot arbitrarily choose which DME items to reimburse under its Medicaid policy. • Not an EPSDT case but reaffirmed Medical Necessity requirement in the Eighth Circuit. Legal Services of Eastern Missouri

  33. Some other relevant Missouri Cases • J.D. v. Sherman 2006 U.S. Dist. LEXIS 78446, *10 (W.D.MO 2006)(requiring the State to provide coverage and payment for a liver transplant based on the medical necessity determinations of treating professionals – Case decided on “reasonable standards” rather than EPSDT). • Lawson v. Department of Social Services (challenges Missouri’s reliance on narrow screening criteria that deny medically necessary orthodontic treatment). • McNeil-Terry v. Roling, 142 S.W. 3rd 828 (Mo App. 2004) and Nemnich v. Stangler 1992 WL 178963 at *2-*3 (W.D. MO. 1992) (Missouri could not limit adult dental services solely to situations involving mouth trauma, pain relief or narrow emergency criteria). • Reform Organization of Welfare v. Stangler: Challenged Missouri’s failure to provide non-emergency medical transportation as violation of EPSDT and other Medicaid requirements. Legal Services of Eastern Missouri

  34. EPSDT and Therapies • Managed Care plans denying services for failure to make progress or improve conditions. • Violates EPSDT requirement to provide care necessary to maintain functioning. • Limits the Scope of medically necessary Services. Legal Services of Eastern Missouri

  35. EPSDT Under the Deficit Reduction Act (DRA) of 2005. • EPSDT is still a required service under the DRA. • State can provide “benchmark plans” to certain groups but must provide EPSDT as a “wrap around” service to children under 19 if not included in “benchmark plans.” • Governor’s “Insure Missouri” would have excluded EPSDT from the benefits package (i.e., for 19 and 20 year-old parents). Legal Services of Eastern Missouri

  36. Assistance with MO HealthNet (Medicaid) for Children and Families (In Eastern Missouri) • Advocates for Family Health (formerly the MC+ Consumer Advocacy Project) (Legal Services of Eastern Missouri). Problems in obtaining health care services. Problems with enrollment in MO HealthNet (Medicaid). Other Problems related to MO HealthNet (Medicaid) for children and families. Call: 314-534-1263 or 1-800-444-0514, ext. 1252 • In Western Missouri, call Advocates for Family Health (formerly the MC+ Advocacy Project) at: (816) 474-6750 (Legal Aid of Western Missouri). Legal Services of Eastern Missouri

  37. Medicaid and EPSDT: A Brief Overview May 21, 2008 Joel Ferber, Managing Attorney, Health and Welfare Unit Legal Services of Eastern Missouri

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