D. Medicaid Services and Long Term Care
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D. Medicaid Services and Long Term Care
For planning purposes, elder law attorneys and their clients need to understand that Medicaid is a limited medical program. Not all services are covered. Vision and dental services are two major services not covered under South Carolina's Medicaid State Plan, with limited exceptions including an exception for children. Also, some services have caps, like the number of prescriptions drugs which are provided. While Medicaid is a life-saving program for many South Carolinians, it does not necessarily serve all the medical needs of those who qualify.11
1. Medicaid Services
Federal law divides Medicaid services between optional services and mandatory services. The federally mandated Medicaid services are the following:
• Inpatient and outpatient hospital services
• Early Period Screening Diagnosis and Treatment (EPSDT) Services for Children (up to age 21)
• Nursing facility services
• Home health services for any individual entitled to receive nursing facility services (includes nursing services, personal care services, and medical supplies, but is not for long term care)
• Physician services
• Rural health clinic (RHC) 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, if licensed or recognized by the state, which South Carolina does not.
• Transportation to medical care
• Tobacco cessation counseling for pregnant women
• Tobacco cessation
42 U.S.C. §§ 1396d(a) & 1396a(a)(10). Essentially, most other medical services can be included in the State Plan as an optional service. Id. Some of the optional benefits provided in South Carolina include:
• Rehabilitative Behavioral Health Services
• Durable Medical Equipment
• Prescription drugs
• Clinic services
• Certain Enhanced Services
o Diabetes Management Services• Hospice
o Preventative and Rehabilitative Services for Primary Care Enhancement (disease management and education and may be used for dental services in certain circumstances)
• Inpatient Psychiatric Care for those under age 21
• Targeted Case Management
Each service provided by Medicaid "must be sufficient in amount, duration, and scope to reasonably achieve its purpose." 42 C.F.R. § 440.230(b). The Medicaid agency may "not arbitrarily deny or reduce the amount, duration, or scope of a required service ... to an otherwise eligible beneficiary solely because of the diagnosis, type of illness, or condition." Id. at (c). However, the agency may place appropriate limits on a service "based on such criteria as medical necessity or utilization control procedures." Id. at (d).
2. EPSDT Services
One category of services, which must be included in the state plan, is "early and periodic screening, diagnostic, and treatment services . . . for individuals who are eligible under the plan and are under the age of 21." 42 U.S.C. § 1396d(a)(4)(B). For individuals eligible for Medicaid and under age 21, the EPSDT provisions of the Medicaid portions of the Social Security Act and the implementing regulations provide the vehicle for accessing services in the home. Children receive special status under Medicaid law. 42 U.S.C. §§ 1396a(a)(43); 1396d(a)(4)(B); 1396d(r). Federal Medicaid law places an affirmative duty upon the state Medicaid agency to not only make available all medically necessary services to "correct or ameliorate defects" identified by the child's physician, but to also arrange for those services to be provided to the Medicaid eligible child. See 42 U.S.C. §§ 1396d(r)(5); 1396a(a) (43)(C); Doe v. Pickett, 480 F.Supp. 1218, 1221 (S.C.W.Va. 1979)(EPSDT "imposes on the states an affirmative obligation to see that minors actually receive necessary treatment and medical services."). The goal of children's Medicaid is to "provide comprehensive health care at an early age, so that [children] will develop fewer health problems as they get older." Salazar v. Dist. of Columbia, 954 F.Supp. 278, 303 (D.D.C.1996).
EPSDT services are mandatory for all states that participate in the Medicaid program. 42 U.S.C. § 1396d(a)(4)(B). A state may not reduce medically necessary Medicaid services for children. 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(r). Services for children must include all of the services listed in § 1396d(a) which are "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). "[T]o correct or ameliorate" includes preventing regression. A.M.T. v. Gargano, 781 F.Supp.2d 798, 807 (S.D. Ind. 2011). Essentially, DHHS must provide to children "any other medical care, and any other type of remedial care recognized under State law, specified by the Secretary." 42 U.S.C. § 1396d(a)(29).
The standard for determining whether services are covered by EPSDT is medical necessity. "Although the standard of 'medical necessity' is not explicitly denoted in the Medicaid Act, it has become a judicially accepted component of the federal legislative scheme." Moore v. Reece, 637 F.3d 1220, 1232 (11th Cir. 2011). With regard to EPSDT services, the objective of the act is to "correct or ameliorate" defects in children's development or health. 42 U.S.C. § 1396d(r). Medical necessity has been interpreted broadly when Medicaid cases involve children. See S.D. v. Hood, 391 F. 3d 581, 597 (5th Cir. 2004)(holding the EPSDT provisions of the Medicaid Act included incontinence supplies even though they are not specifically listed as a category in 42 U.S.C. § 1396d(a)); Collins v. Hamilton, 349 F.3d 371, 376 (7th Cir. 2003)(The availability of short-term acute care in psychiatric hospitals did not remove the medical necessity of longer-term, less restrictive treatment provided in a psychiatric residential treatment facility.).
The most vital decisionmaker in the process of determining medical necessity is the treating physician. See, e.g., Pediatric Specialty Care v. Arkansas Dept. of Human Servs., 293 F.3d at 480 (finding medically necessary treatment for children must be provided when prescribed by a physician); Weaver v. Reagen, 886 F.2d 194, 200 (8th Cir. 1989)("The Medicaid statute and regulatory scheme create a presumption in favor of the medical judgment of the attending physician in determining the medical necessity of treatment."); Pinneke v. Preisser, 623 F.2d 546, 550 (8th Cir. 1980) ("The decision of whether or not certain treatment or a particular type of surgery is 'medically necessary' rests with the individual recipient's physician and not with clerical personnel or government officials."); see also Moore v. Reese, 637 F.3d 1220 (11th Cir. 2011)(carefully analyzes the Medicaid Act's EPSDT mandate and the role of the treating physician in determining the extent to which services are medically necessary for children). The Medicaid agency's obligation to provide services recommended by a treating physician is not without limit. See 42 C.F.R. § 440.230(d) ("The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures."). However, when the agency places limits on children's services, those limits must still comport with the Medicaid Act.
3. Long Term Care
For the elder law attorney, whose clients are elderly or individuals with disabilities of all ages, the most common reason to discuss Medicaid is as a way to finance long term care. Understanding the Medicaid delivery system for long term care is necessary to be able to advise clients who will make choices based upon this delivery system. In South Carolina, Medicaid funds long term care for both children and adults who meet a level of care demonstrating a need for institutional care. Long term care is funded by Medicaid in the following:
• Homes...
• Group Homes
• ICF/IDs
• Nursing Facilities
• Psychiatric
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