Federal Court in Georgia Protects Children’s Skilled Nursing Hours: Overturns Attempts to Wean Children off Program
October 31, 2013 10:08 AM
On September 27, the United States District Court for the Northern District of Georgia Atlanta Division, in Hunter v. Cook, issued an order (the Order) to the Georgia Department of Community Health (GDCH) to prevent it from providing less than 18 hours per day of skilled nursing care to two severely disabled children (the Plaintiffs) following attempts by the State to cut hours for the Plaintiffs. The Plaintiffs are beneficiaries of Early and Periodic Screening, Diagnostic and Treatment services (EPSDT). Additionally, they are enrolled in the Georgia Pediatric Program (GAPP), which the Order defined as “a Georgia Medicaid program that provides continuous skilled nursing care to medically fragile children.”
This follows a June 19, 2012 order in the same court ordering GDCH to not cut skilled nursing hours to a 2-year old beneficiary of GAPP from 84 to 77 to 70 hours per week. The plaintiff in this case was originally in the Hunter v. Cook case, which initially involved five plaintiffs. The remaining two plaintiffs settled with GDCH this September. For the June 2012 order, click here.
Facts of the Case
Clinical Conditions of Plaintiffs
Plaintiff 1 (R.E.) is a 16-year old suffering from both spastic quadriplegia and cerebral palsy, and her condition renders her wheelchair-bound for most of the day. In addition, her quadriplegia severely compromises her respiratory system to the degree that she depends on 24-hour suctioning and oxygen. R.E. also suffers from gastroesophageal reflux disease (GERD) and requires nutrition through a jeunostomy (J) tube through her small intestine. R.E. suffers from frequent seizures, many of which have caused her to be hospitalized. She is also severely developmentally disabled and is unable to speak. According to her treating pediatrician, Dr. Elizabeth LeDuc, these conditions are permanent.
Under the GAPP, R.E. was receiving 60 hours of skilled nursing care a week. Dr. LeDuc requested that hours be increased to 84 hours per week, which was denied.
Plaintiff 2 (Marketric Hunter) is a 12-year old suffering from severe brain damage and spastic quadriplegia from a near drowning incident when she was 18-months old. In addition, Marketric has compromised pulmonary function to the extent that he “requires secretion suctioning every one to two hours,” and occasionally requires a chest vest that could collapse his lung if not used properly. He needs to be moved frequently day and night for proper secretion and to prevent skin ulcers. He is also fed through a gastrostomy (G) tube, has GERD, and is severely developmentally disabled.
In Marketric’s case, the GDCH sent his adoptive mother-caregiver a letter stating that hours would be reduced from 84 to 77 hours a week, and then from 77 to 70 hours a week.
Inadequate care: In addition to its weaning policy, the Order demonstrated that the GAPP program, in emphasizing family care over professional care, compromised the health and safety of beneficiaries. According to GAPP policies, the GAPP was meant to be a program for parents and caregivers of beneficiaries to become educated in clinical care in the absence of a nurse, not a permanent skilled care program.
In R.E.’s case, Dr. LeDuc testified that it was impossible for R.E.’s mother-caregiver to provide the necessary care for R.E. for the parts of the week where R.E. was not cared for by the GAPP. Despite being able to provide many services for R.E., Dr. LeDuc stated that R.E.’s mother could not provide the needed quality of care of a skilled nurse. In addition, Dr. LeDuc stated that R.E.’s mom could not sufficiently provide 108 hours of care required outside of the GAPP, even if she was a skilled nurse.
In Marketric’s case, his 73-year old adoptive mother testified that she doesn’t feel comfortable performing suctioning, which the beneficiary’s physician felt was a reasonable concern. In addition, Marketric’s physician stated that his mother cannot physically or emotionally care for Marketric to the extent needed.
Risk of Institutionalization: The Order also discussed how GAPP policies put R.E. at risk of institutionalization. According to the Order, R.E.’s mother-caregiver was considering institutionalizing R.E. as caring for R.E. became so overwhelming. The Order later concluded that both Plaintiffs faced a high risk of institutionalization due to lacking a medically necessary level of care.
Applying a standard used in Moore ex rel. Moore v. Reese (637 F.3d 1220 (11th Cir. 2011)), the Court held that determining if private duty hours are sufficient is a function of the state’s ability to “place appropriate limits on a service based on such criteria as medical necessityâ€¦” and that the care is “sufficient in amount, duration, and scope to reasonably achieve its purpose.” Under EPSDT, a state Medicaid program must offer a scope of benefits equal to the highest level permitted under federal law. The only limitation allowed is one based on medical necessity.
The Court held that there is no evidence that in either case, for both Plaintiffs, the proposed cuts were based on medical necessity, or that the hours were sufficient. In fact, Dr. LeDuc stated that 60 hours a week of skilled nursing care put R.E. at a great risk of frequent hospitalizations, and even death. With both Plaintiffs, the Order established that the parent-caregivers were unable to provide adequate care.
Reduced hours governed by weaning policy, not medical necessity: For both Plaintiffs, the court found that the state did not provide evidence that the rejected increase/proposed reduction was based on medical necessity. Instead, the Order maintained that GAPP’s decisions to limit hours were governed instead by a policy of decreasing skilled nursing hours for children, and weaning them off the program entirely if possible.
For a link to the Order, click here.
Precedent for Medicaid Necessity Determination in EPSDT
The ruling in this case echoed previous case law on medical necessity determinations for EPSDT beneficiaries. In Moore v. Cooke(U.S. District Court, N.D. Ga., Doc. No. 1:07-CV-631-TWT, April 20, 2012), the court held that reducing private duty nursing hours for a severely disabled 17-year old from 94 to 84 hours per week was not “sufficient in amount, duration and scope to reasonably achieve its purpose.” The court found that the beneficiary was “a medically fragile child who require[d] skilled care 24 hours a day 7 days a week” and that the reduction in hours was “arbitrary and capricious and was not based on medical necessity,” nor the clinical needs of the beneficiary, but rather on GAPP’s weaning policy.
In Hunter v. Meadows (N.D. Ga., No. 1:08-CV-2930-TWT, Feb. 17, 2010), the court held that the state was required to provide the Plaintiff’s physician’s requested care of 24 hours of skilled nursing care a day for six to eight weeks while the plaintiff was in a body cast recovering from hip dysplasia surgery, and 18 hours a day following the removal of the cast to prevent respiratory infection, skin breakdown, and other complications. The state had originally denied this request and instead approved 24 hour care for three days, followed by 18 hours for four days, 84 hours a week for five weeks, and 70 hours a week for the remainder of the certification period.
In Moore v. Medows (11th Cir., No. 08-13926, Apr. 24, 2009, reversing N.D. Ga., No. 1:07-CV-631-TWT, June 4, 2008), the court held that both the state and the beneficiary’s physician “have roles in determining what medical measures are necessary to ‘correct or ameliorate’ [the beneficiary’s] medical conditions.” The court also held that the state can put “appropriate limits” on services based on medical necessity.
More robust pediatric home care benefits needed. The National Council on Medicaid Home Care – a NAHC Affiliate - agrees with the Order’s ruling recognizing that private duty nursing must be covered by Medicaid to whatever level is medically necessary. Further, arbitrary standards that shift care responsibilities to parents and siblings put pediatric patients at high risk.
The Council not only advocates for providing access to home care services for pediatric patients with more intensive care needs, but also for improving Medicaid reimbursement requirements for pediatric home care under Medicaid. See pages 36-37 of our policy blueprint, here.
Greater oversight to prevent arbitrary limitation of benefits. The Council also promotes greater oversight mechanisms in states’ Medicaid programs, so that the programs cannot arbitrarily and capriciously limit care for beneficiaries in a way that compromises their health and safety. The Council encourages providers to advocate for these mechanisms in their state associations, as well as through state and federal governments.
GAPP policies hindering rebalancing. GDCH’s website states that one of GAPP’s main goals is to promote rebalancing towards home and community-based services (HCBS), in that it provides “[s]ervices are provided in their homes and communities and in a 'medical' daycare setting as an alternative to placing children in a nursing care facility.” However, as the Order suggests, GAPP has policies in place that often has the reverse effect. By not providing adequate hours of skilled nursing care, GAPP creates an increased risk that severely developmentally disabled children like the Plaintiffs will be hospitalized or institutionalized.
The Order, in addition to the above mentioned cases, supports the conclusion made in Senator Harkin’s Report that the victory of Olmstead, a case brought against the state of Georgia fourteen years ago, is incomplete. Home care providers should be aware that despite large national strides towards rebalancing, there is still unmet demand for private duty nursing caused by such short-sighted policies like Georgia’s, and HCBS more broadly. As the Department of Justice suggested in a recent litigation in Florida, states can adjust to this demand through cost-effective, “reasonable modifications,” such as providing more HCBS options/funding and pro-active HCBS screenings.
The Council encourages providers to continue to advocate for greater support of HCBS through their state associations, as well as through state and federal governments. Home care providers are encouraged to keep abreast of HCBS developments in their states, and nationally, and to contact the Council with any questions or concerns.