1. Children’s Health Services: Medicaid EPSDT
Wayne
September 25, 2017

2. About NHeLP
National non-profit law firm committed to improving health care access and quality for underserved individuals and families
State & Local Partners:
Disability rights advocates – 50 states + DC
Poverty & legal aid advocates – 50 states + DC
National partners, e.g.
Network for Public Health Law
Center for Children & Families
Offices: CA, DC, NC
WV Medicaid Summit

3. Overview What is EPSDT? What does EPSDT require? Enforcing EPSDT
Screening
Services
Treatment
Enforcing EPSDT
EPSDT Example
WV Medicaid Summit

4. GUARANTEED The Medicaid Promise Federal-state partnership –
States pay part of the costs
On average 57% paid by the federal government but up to 75% in states with lowest per capita income
Enhanced federal match for systems upgrades, services for newly eligible adults, family planning, preventive services
No waiting lists (except for some waiver programs)
As an “entitlement” Medicaid is a “property interest” under the Constitution and cannot be taken away without due process
GUARANTEED
Note here that Congress creates incentives for states with enhanced federal match
Even people on waiting lists for HCBS or other waiver services still qualify and receive full Medicaid benefits
Examples of states with highest FMAP – Mississippi, South Carolina, Idaho

5. Medicaid – It’s not me, it’s you
“an aggravated assault on the English language, resistant to attempts to understand it.”
Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981)
“a virtually impenetrable thicket of legalese and gobbledygook.”
Lamore v. Ives, No B, 1991 WL , at *2 (D.Me. July 19, 1991)
“one of the most completely impenetrable texts within human experience…dense reading of the most tortuous kind.”
Rehab. Association of Virginia v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994)
“almost unintelligible to the uninitiated”
Friedman v. Berger, 547 F.2d 724, 728 (2nd Cir. 1976)
WV Medicaid Summit

6. Medicaid managed care basics
70% of WV Medicaid enrollees are in managed care
Capitation = per member/per month payment
MCOs assume risk
More services = less MCO profit
“Children enrolled in managed care plans…are entitled to the same EPSDT benefits they would have in a fee for service.”
Single state agency ultimately responsible
“Because of the pecuniary incentives that MCOs have for denying, suspending, or terminating care […] enrollees need strong due process protections to protect themselves from inappropriate denials of health care.”
Daniels v. Wadley, 926 F. Supp (M.D. Tenn. 1996)
168,000 children as in 2015 6

7. Medicaid EPSDT Early - Identifying problems early, starting at birth
Periodic - Checking children's health at periodic, age-appropriate intervals
Screening - Doing physical, mental, developmental, dental, hearing, vision, and other screening tests to detect potential problems incl. EBLLs
Diagnostic - Performing diagnostic tests to follow up when a risk is identified, and
Treatment - Treating the problems found
WV Medicaid Summit

8. Why EPSDT?
“the early years are the critical years…Our goal must be clear–to give every child the chance to fulfill his promise”
– Lyndon B. Johnson, Feb. 8, 1967
“The goal of EPSDT is to assure that individual children get the health care they need when they need it—the right care to the right child at the right time in the right setting.”
– CMS, EPSDT – A Guide for States
EPSDT Coverage Guide is available at : (June 2014)
Children are not little adults
Adolescents are not big children
Children in low income households are more likely to have:
Vision, hearing and speech problems
Untreated tooth decay
Elevated lead blood levels
Sickle cell disease
Behavioral health problems
Asthma
And more . . .
WV Medicaid Summit

9. EPSDT Requirements: Medical, vision, hearing, dental screening
EPSDT Medical Screen=
Health and developmental assessment;
Unclothed physical exam;
Immunizations;
Lab tests, including lead blood tests; and
Health education and anticipatory guidance
Finding: Providers using clinical judgment failed to identify 83% of children with a diagnosable behavioral problem
Vision, including eyeglasses
Hearing, including hearing aids
Dental, including relief of pain, restoration of teeth and maintenance of dental health
WV Medicaid Summit

10. EPSDT Requirements: Medical, vision, hearing, dental screening
Periodic Screens
Set according to age
Set by medical and dental experts
Different for medical, dental, hearing and vision
Interperiodic “as needed” screens
Any encounter
State must provide or arrange for the provision of screening services in all cases there they are requested
No cost sharing or prior authorization
Appointment and transportation assistance
Periodicity schedule: AAP Bright Futures (
WV Medicaid Summit

11. EPSDT: Medical Necessity
“Such other 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 USC 1396d (r)(5)
WV Medicaid Summit

12. EPSDT: Federal Scope of Benefits
Mandatory services
Optional Services
Physician services
In-patient hospital
Laboratory/x-ray
Outpatient hospital
Nursing facility services
Home health care
EPSDT
Prescription drugs
Rehabilitation services
Physical, speech, & other therapies
Other licensed practitioners
Home health care*
Personal care services
Private duty nursing
Case management
Transportation
WV Medicaid Summit

13. EPSDT Treatment Requirements
States must arrange, directly or through referral, for corrective treatment needed
O.B. v. Norwood, No , 2016 WL (7th Cir. Sept. 23, 2016) (finding the Medicaid Act required Illinois to not only pay for home nursing services, but to also provide or arrange for such services).
Federal scope of benefits
Federal definition of medical necessity
WV Medicaid Summit

14. 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
WV Medicaid Summit

15. EPSD “T” Features Coverage of short-term & long-term services
No waiting list for services
No monetary cap on total cost
No limit on number of hours or units
No limit on number of MD, DDS, therapist, clinician visits
No copayments
No experimental
Written justification from physician (e.g. Rx pad) & treatment team
Patient history
Diagnosis/prognosis
Medical justification
Alternatives that have been tried/rejected
Description of benefits to fit into a Medicaid “box”
Incontinence supplies=home health
Basic living skills=home health, rehabilitation
Length of time service/treatment is needed
Statement that request is under EPSDT to “correct or ameliorate” the child’s condition
WV Medicaid Summit

16. EPSDT Enforcement:
Addressing Stubborn Barriers
WV Medicaid Summit

17. EPSDT Major Laws & Guidance
42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43), 1396d(a)(4)(B), 1396d(r)
42 C.F.R. §§
CMS, State Medicaid Manual, part 5
CMS, EPSDT- A Guide for States: Coverage in the Medicaid Benefit for Children and Adolescents Youth (June 2014),
WV Medicaid Summit

18. EPSDT: Monitoring Annual reporting required—CMS Form 416
Report by age (<1, 1-2, 3-5, 6-9, 10-14, 15-18, 19-20)
Children screened
Children referred for corrective treatment
Children receiving dental treatment
Children receiving lead blood testing
WV Medicaid Summit

19. Monitoring State/managed care organizations must make available:
Independent External Quality Review
Healthcare Effectiveness Information & Data Set (HEDIS®)
Well child & adolescent visits
Adolescent vaccines
Asthma management
WV Medicaid Summit

20. Due Process Written notice Opportunity to be heard
Statement of and reasons for action
Specific legal authority
Explanation of hearing rights
Explanation of continued benefits
Opportunity to be heard
Right to a fair hearing
The United States Constitution, 14th Amendment
The Supreme Court, Goldberg v. Kelly
Federal laws, 42 USC 1396a(a)(3); 42 CFR
State laws
WV Medicaid Summit

21. Enforcement
O.B. v. Norwood (IL): arranging for in home nursing services (w/ADA)
T.R. v. Dreyfus (WA): intensive community based services for children in juvenile/institutional settings
Chisholm v. Hood (LA) and K.G. v. Dudek (FL): Applied Behavioral Analysis Therapy
Salazar v. D.C. (DC): clinical guidelines for in-home services
Sam H. v. Baker (MA): orthodontic care
NHeLP Medicaid EPSDT Litigation –Case Trends
WV Medicaid Summit

22. Non-discrimination Americans with Disabilities Act (ADA)
Integration mandate/least restrictive setting
Methods of administration
Rehabilitation Act, § 504
Affordable Care Act, § 1557
Incorporates Title VI (race, color, national origin), Title IX (sex), Age Discrimination Act (age), and Section 504 of the Rehabilitation Act (disability)
Prohibits discrimination on the basis of:
race
color
national origin - LEP
sex - including gender ID, (sexual orientation), pregnancy, sex stereotyping
age
disability - ADA amendments definition
WV Medicaid Summit

23. Blood Lead Level Screening & Treatment
EPSDT Example:
Blood Lead Level Screening & Treatment

24. Universal Lead Screening
Federal law requires BLL assessment “appropriate for age and risk factors” for children under age 21
“All children are considered at risk and must be screened for lead poisoning”-- children at 12 and 24 months of age must be screened for elevated blood levels of > 10 μg/dL
States required to provide case management and treatment services, as appropriate depending on the lead levels detected as a result of the test
WV Medicaid Summit

25. Outdated State Policies
In 2012, CDC replaced the 10 μg/dL “level of concern” with a new reference value based upon the 97.5th percentile of the BLL distribution of children 1-5 years old in the United States.
Currently calculated at 5 μg/dL and will be updated every 4 years
No “safe” level of lead in children
Lower IQ
Long-term behavioral health problems
Diminished school performance
535,699 children in the United States estimated to have BLLs higher than this reference value
CMS has not yet adopted the new reference value
Scheduled to be updated this year
WV Medicaid Summit

26. Investigation of Exposure Source
Medicaid pays for a health professional’s time and activities during an on-site investigation of a child’s home (or primary residence)
Providers use their professional judgment for patient management and treatment
Medicaid does not pay for any testing of substances (water, paint, etc.) which are sent to a laboratory for analysis
Reimbursement is not available for remediation
WV Medicaid Summit

27. Who’s responsible for lead screening?
Parents
Primary Care Providers
Managed care companies
Local health departments
Lead poisoning centers
Head Start and WIC programs
Schools
Centers for Disease Control and Prevention
State and local Depts. of Environment
Building code enforcement
SINGLE STATE AGENCY
WV Medicaid Summit

28. THANK YOU