CDREA has been posing the question to federal regulators for the past couple of weeks of the extent to which EPSDT could be considered as providing civil, constitutional rights to children with disabilities.
The response has just come back in writing: yes, there are civil rights issues related to EPSDT.
The implications of this for children with disabilities and the parents and families who care for them could be enormous.
For instance, any denial of home care and nursing services for children on Medicaid just became a civil rights violation.
A Federal instruction report to state Medicaid officials back in 2001 stated “EPSDT must include access to case management, home health, and personal care services”.
That means that if the school or your Medicaid system don’t provide your child with disabilities with what is medically necessary for them to remain at home with their parents and in their communities, you have a civil rights complaint. It’s not a complaint with the Department of Education, or Medicaid, or (in Hawaii) UnitedHealth and Wellcare. It’s a complaint with the Federal Department of Health and Human Services’ Office for Civil Rights.
Here is a list of everything your child on Medicaid is entitled to under EPSDT if it is medically necessary.
“Medical necessity” is to be determined by your child’s treating providers. States are not allowed to limit or deny services defined as “medically necessary.”
If Medicaid, your state or your department of education deny or reduce anything on that list to the point where it has an impact on your child’s ability to live at home and in their community, then your child’s civil rights may have been violated.
As a result of today’s disclosure, two interesting questions are raised:
First, EPSDT law requires extensive outreach and education on behalf of state Medicaid agencies to ensure that every child who might need EPSDT is enrolled in Medicaid. The question is whether a state Medicaid agency or its contractor who fails to provide the required outreach is potentially violating the civil rights of a child with disability.
Second, does this mean that retaliation against a parent for advocating on behalf of behalf of their child’s rights under EPSDT is a federal civil rights violation? This would include parents advocating both with their child’s school as well as with their individual state or Medicaid agency.
I work with several school districts and would like to see any correspondence that you have received concerning the EPSDT program and the issue of civil rights.
PS/My research indicates that most Special Ed kids can qualify for Medicaid, regardless of their family’s income. Have you run across any info on that topic?
i apologize for the delay in getting back to you.
There is a document that DHHS sent out to all the state Medicaid director in 2001 that makes it clear that EPSDT is an important element of any state’s Olmstead plan.
There are several other documents that consistently refer to the responsibility of states and the schools to notify “Medicaid eligible” children of all the services that are available to them under EPSDT. An interesting question is how states are using Medicaid money to pay for IEP services. I find it hard to believe that schools are paying out of their own pockets if they can bill Medicaid instead. IDEA and Medicaid require certain parental knowledge and permissions for billing but I don’t know that states necessarily always follow those guidelines.
Since you posted your question, OCR has agreed to investigate my state of Hawaii for EPSDT violations. I’ll get the letter up on scribd soon, if that will help you.