Yesterday, CDREA filed a class complaint with the DHHS Office for Civil Rights alleging that differences in EPSDT policy from state to state were violating the civil rights of children with disabilities.
Here is part of the text of that complaint:
EPSDT is currently being enforced to different sets of standards in different states. CMS has been updating federal Medicaid law as recently as January 10, 2010. Some states are putting the new regulations into place, like Georgia, North Carolina and Idaho.
States like Hawaii appear, at least in the case of my daughter and other children that I know, to be blatantly ignoring these new federal regulations.
I have gone through the updated version of title 42, and would like to bring the following regulations to your attention:
438.58 effective January 2010 requires safeguards against conflicts of interest.
438.210 says MCOs are required to provide the same “amount, duration, and scope that is no less than the amount, duration, and scope for the same services furnished to beneficiaries under fee-for-service Medicaid” [Hawaii's Medicaid program is run by for-profit managed care organizations which have been trying to cut home services by up to 90%]
438.100 makes it clear an MCO still has to obey federal Medicaid law and honor civil rights law.
441.18 prohibits “providers of case management services from exercising the agency’s authority to authorize or deny the provision of other services under the plan.” [Hawaii's private MCO for EPSDT is refusing to provide my daughter, and others like her, with case managers. Case management is defined in 42 C.F.R.440.169]
441.61 makes it clear that state Medicaid must handle referral assistance “for treatment not covered by the plan, but found to be needed as a result of conditions disclosed during screening and diagnosis.”
431.52 states the State plan “must provide that the State will pay for services furnished in another State to the same extent that it would pay for services furnished within its boundaries if……the State determines, on the basis of medical advice, that the needed medical services or necessary supplementary resources, are more readily available in the other State.”
440.130 makes it clear the purpose of EPSDT preventive and rehabilitative services is to prolong life, promote physical and mental health, and restore a child to “his best possible functional level.”
I am attaching recent notice the state of Georgia has issued to physicans regarding referrals for EPSDT services, North Carolina’s January 2010 revised EPSDT policy, CMS’s policy on case management and the inability of the state to “deny, limit or reduce” medically necessary services from a written corrective direction to Idaho.
Federal rights do not change from one state to another. Federal regulations do not give an MCO any more leeway in limiting services to my daughter than is allowed under federal and civil law. I know you said that OCR cannot tell an MCO how to spend its money. But surely there is some way to prevent a company receiving federal funds from violating federal law.
This desperately needs to be enforced. Right now, my daughter’s right to her “best possible functional level” is being violated. The medical and specialist services she needs are covered under EPSDT, and the purpose of EPSDT, per the 2001 DHHS letter to state Medicaid Directors, is to promote Olmstead by keeping children living in their homes and communities.
