D. Medicaid Services

LibraryA Practical Guide to Elder and Special Needs Law in South Carolina (SCBar) (2021 Ed.)

D. MEDICAID SERVICES

Elder law and special needs attorneys need to understand both the availability of benefits and the limitations of the South Carolina Medicaid programs. Certainly, Medicaid provides a lifesaving program for many South Carolinians, but it does not necessarily meet all of the medical needs of those who qualify. Attorneys should be familiar with the services that may - and may not - be covered by Medicaid programs in South Carolina. Clients often have the mistaken impression that once a child or spouse is "on Medicaid," all of that loved one's medical needs will be met by "the state." For years, Medicaid-funded case managers advised families that once a dependent child qualifies for a Medicaid waiver program, the family should drop the child from the parents' employee insurance plans. Absent a careful analysis of all of the needed services and the interaction of Medicaid and private insurance, the family should keep the private insurance.12 Not only are there important services not covered by Medicaid, it is often difficult, if not impossible to find providers willing to accept Medicaid clients in some specialties, like psychiatry and neurology.

Medicaid services are provided based on medical necessity, a term which is not defined in the Medicaid Act. However, the state regulations provide the following definition:

Medically Reasonable and Necessary ("medically necessary") -means procedures, treatments, medications or supplies ordered by a physician, dentist, chiropractor, mental health care provider, or other approved, licensed health care practitioner to identify or treat an illness or injury. Procedures, treatments, medications or supplies must be administered in accordance with recognized and acceptable medical and/or surgical discipline at the time the patient receives the service and in the least costly setting required by the patient's condition. All services administered must be in compliance with the patient's diagnosis, standards of care, and not for the patient's convenience. The fact that a physician prescribed a service or supply does not deem it medically necessary.

S.C. Code Ann. Regs. 126-425(9) (1976). This regulation appears to conflict with the Americans with Disabilities Act (ADA), to the extent that the ADA requires a more nuanced analysis, generally requiring services be provided in the least restrictive setting, which is typically also the least expensive, but not always.13 The ADA requires services to be provided in the least restrictive setting, which may or may not be the least costly setting. Olmstead v. L.C., 527 U.S. 581 (1999). The intersection of the ADA and Medicaid services is more fully discussed later in this Chapter.

1. Medicaid Services Provided Through the State Plan

The Medicaid Act "offers the States a bargain: Congress provides federal funds in exchange for the States' agreement to spend them in accordance with congressionally imposed conditions." Armstrong v. Exceptional Child Ctr., 575 U.S. 320 (2015). In return, states are required to comply with all federal statutes, regulations and policies of the Center for Medicare and Medicaid Services (CMS), the federal agency responsible for administering and overseeing all Medicaid programs.

All of Medicaid programs are outlined in the preceding sections of this Chapter. Some of those programs do not provide comprehensive medical care, but they target a particular need. For example, the Specified Low Income Medicare Beneficiaries (SLMB) program only covers the Medicare Part B Premium. For those programs which do provide comprehensive medical care, then what care will be provided is outlined in the "State Plan." These comprehensive programs are also sometimes referred to as "regular Medicaid." The Medicaid Act requires states to provide certain services through "regular Medicaid," or the "State Plan," called "Healthy Connections" in South Carolina.14

The Medicaid Act requires states to submit a separate application to the CMS for each Medicaid program it operates. Each application identifies the services covered and describes eligibility requirements. "Regular Medicaid," the State Plan, must provide services to all persons meeting eligibility criteria. Medicaid waiver programs, on the other hand, may limit the number of participants. Some waiver programs have years-long waiting lists. These programs provide services to targeted groups in addition to those provided through the State Plan.

The Medicaid Act requires that all states must provide the following Medicaid services in the State Plan:15

• Inpatient hospital services;16
• Outpatient hospital services;
• EPSDT: Early and Periodic Screening, Diagnostic, and Treatment Services;
• Nursing Facility services;
• Home health services;
• Physician services;
• Rural health clinic services;
• Federally qualified health center (FQHC) services;
• Laboratory and X-ray services;
• Family planning services;
• Nurse Midwife services;
• Certified Pediatric and Family Nurse Practitioner services;
• Freestanding Birth Center services (when licensed or otherwise recognized by the state);
• Transportation to medical care;17
• Tobacco cessation counseling for pregnant women.

42 U.S.C. §§ 1396d(a) & 1396a(a)(10).

The Medicaid Act allows states, in their discretion, to provide a wide range of additional optional services. South Carolina regulations identify the following services as being "covered by the Medicaid Program," but they do not appear to be required by the Medicaid Act. S.C. Code Ann. Regs. 126-301 (1976):

• Audiology services;
• Community long term care services (Home and Community-Based Waiver Services);
• Dental services;
• Durable medical equipment;18
...

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