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From Medicaid to MO Health Net: Missouri’s New Directions

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From Medicaid to MO Health Net: Missouri’s New Directions
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 is the nation’s primary health insurance program for lowincome 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).
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Federal and State “Cooperative” system*
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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.
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Medicaid Services: Some key
principles and standards
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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.
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Managed care waives this requirement.
Medicaid is payer of last resort.
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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)
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Legal Framework for Medicaid/MO HealthNet
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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)
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Medicaid in Missouri (now MO
HealthNet)
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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
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Medicaid in Missouri (continued)
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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.
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Medicaid Financing
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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.
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Medicaid Spending
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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.
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Optional v. Mandatory
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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).
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Mandatory and Optional Coverage
Groups (General description)
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).
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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.
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Federal Mandatory Services*
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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.
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EPSDT
Pregnancy-related (including
post-partum)
Family planning
Physician services
Nurse-midwife services**
Pediatric or family nurse
practitioner**
Home health services
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Federal “Optional” Services
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Podiatry
Optometry, eyeglasses
Prescription drugs
Chiropractics
Home health for nonnursing facility people
Private duty nursing
Clinical services rendered
outside a clinic
TB-related drugs & care
Targeted case
management
Non-emergency medical
transportation services
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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
(from Kulkarni and Boyle)
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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.”
What is EPSDT?
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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 longterm disability.
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Why EPSDT?
* Poor children are more likely to have health problems than children in
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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.
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Early and Periodic Screening,
Diagnosis, and Treatment (EPSDT)
What does EPSDT require?
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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.
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EPSDT Medical Screens
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Comprehensive Health and
Developmental History.
Comprehensive Physical exam.
Appropriate Immunizations (according to
age and health history).
Lab tests, including lead blood tests
Health education.
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EPSDT: Additional Required
Services
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Vision, including eyeglasses
Hearing, including hearing aids
Dental, including relief of pain,
restoration of teeth and maintenance of
dental health
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Early and Periodic Screening
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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.
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EPSDT: What about Treatment?
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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)
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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.
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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.
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Presumption in favor of the treating physician’s
medical judgment in determining medical necessity:
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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)
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EPSDT Services Required
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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
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EPSDT requirements: Outreach and
Informing
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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, nonusers).
Transportation and appointment scheduling assistance
(Prior to screening due date)
State must coordinate activities with other agencies
(e.g. Title V, WIC, Head Start).
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EPSDT Reporting – CMS Form 416
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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
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What about managed care?
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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.
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What about Managed Care plans:
Medical necessity
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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.
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Role of Litigation
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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.
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Some case examples
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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.
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More case examples
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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): Medicaideligible 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.
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Missouri Litigation: Lankford v. Sherman, 451 F.3d 496
(8th Cir. 2006) (Challenging Cuts to Durable Equipment
for Adults
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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.
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Some other relevant Missouri Cases
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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.
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EPSDT and Therapies
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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.
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EPSDT Under the Deficit Reduction
Act (DRA) of 2005.
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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).
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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
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In Western Missouri, call Advocates for Family Health
(formerly the MC+ Advocacy Project) at: (816) 4746750 (Legal Aid of Western Missouri).
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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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