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The below explains what your state is required to provide to your child on Medicaid and references some legal cases enforcing these requirements.
 
 
Children MEDICAID AND EPSDT
Maureen O'Connell & Sidney Watson
March 2001
Source: National Health Law Program
I. Introduction
 
The Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) service is Medicaid's comprehensive and preventive child health program for individuals under the age of 21. EPSDT has always been part of the Medicaid regulations, however, many states were slow to implement its provisions. To correct this problem, Congress amended the Medicaid statute in 1989 to make EPSDT a statutory requirement. See, Omnibus Budget Reconciliation Act of 1989 (OBRA 89). Today, EPSDT is the most comprehensive child health program in either the public or private sector.
 
EPSDT requires states to provide Medicaid-eligible children with periodic screening, vision, dental, and hearing services. It also requires states to provide any medically necessary health care that falls within the scope of services listed at 42 U.S.C. 1396d(e) to a child, even if the service is not available under the State's Medicaid plan to adults.
 
II. Early and Periodic
 
EPSDT requires states to assess a child's health needs through initial and periodic examinations and evaluations to assure that health problems are diagnosed and treated early, before they become more complex and their treatment more costly. States must perform medical, vision, hearing, and dental check-ups according to standardized schedules, called "periodicity schedule. By statute, states must consult with recognized medical organizations to determine the appropriate scheduling. In addition, "interperiodic screens"-ones outside the periodicity schedule-must also be conducted, as medically necessary.
 
III. Screening
 
Screenings-or well-child checkups-are the foundation of the EPSDT program. By statute, the state "must provide or arrange for" four separate screens: medical, vision, hearing, and dental. 42 U.S.C. 1396a(a)(43). This means that the state must assure that children receive the check-ups required by EPSDT.
 
Screenings must include the following components listed at 42 U.S.C. 1396(r)(1)(B):
 
  • Comprehensive health and developmental history, including assessment of both physical and mental health development;
  • Comprehensive unclothed physical exam;
  • Appropriate immunizations according to age and health history;
  • Laboratory tests including a lead toxicity screening;
  • Health Education, including anticipatory guidance;
  • Vision and hearing screens; and
  • Dental screens
 
Salazar v. D.C., 1997 WL 306876, at 8 (D.D.C). Court order requires the District of Columbia to establish a tracking system to assure that Medicaid- eligible children receive all age-appropriate screens and services as well as follow-up treatment.
 
IV. Diagnosis and Treatment
 
EPSDT also requires states to provide treatment. 42 U.S.C. 1396a(a)(43)(C). While health care must be made available to treat, correct or ameliorate defects and physical and mental illnesses or conditions discovered by the screening services, conditions need not be newly discovered during a screen. All conditions must be treated.
 
States are required to cover all medically necessary services listed in the Medicaid statute at 42 U.S.C. 1396d(a) "whether or not such services are covered under the State plan." 42 U.S.C. 1396d(r)(5). This means that EPSDT must provide all optional Medicaid services for children, even if the state does not cover these services for adults.
 
Mandatory Categories
 
Inpatient hospital care
Outpatient hospital care
Physician's services
Nurse midwife services
Pediatric and family nurse practitioner services
Federally qualified health center ("FQHC")
Laboratories and x-ray services
Rural health clinic services
Prenatal care
Family planning services
Skilled nursing facility services for persons over age 21
Home health care services for persons over 21 who are eligible for skilled nursing services (includes medical supplies and equipment)
Early and periodic screening, diagnosis, and treatment for persons under age 21 ("EPSDT")
Vaccines for children
 
Optional Categories
 
Podiatrists' services
Optometrists' services and eyeglasses
Chiropractic services
Private duty nurses
Clinic services
Dental services
Physical therapy
Occupational therapy
Speech, hearing and language therapy
Prescribed drugs
Dentures
Prosthetic devices
Diagnostic services
Screening services
Preventive services
Rehabilitative services
Transportation services
Services for persons age 65 or older in mental institutions
Intermediate care facility services
Intermediate care facility services for persons with MR/DD and related conditions
Inpatient psychiatric services for persons under age 22
Christian Science schools
Nursing facility services for persons under age 21
Emergency hospital services
Personal care services
Hospice care
Case management services
Respiratory care services
Home and community-based services for individuals with disabilities and chronic medical conditions

V. States must assure that children receive EPSDT service
 
EPSDT requires states to do more than merely offer to cover services. States are obligated to actively arrange for treatment, either by providing the service itself or through referral to appropriate agencies, organizations or individuals. 42 U.S.C. 1396a(a)(43)(C)
 
Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D.Tx 2000). This reported decision is an action to enforce a consent decree. The original action challenged the state's failure to provide case management services to all children and the state settled the action agreeing to develop a case management system for children"who have a health condition or risk, have special health care needs, or whose physical conditions are medically complex or medically fragile." The court found the state in violation of the decree because only 0.3 percent of Medicaid eligible children were receiving case management services, a figure well below even the state's low estimate of the number of children in need of case management services (7 percent). The opinion does a nice job of explaining that EPSDT requires states to assure that children obtain services not just that services are available. The court examines the state's obligations to provide outreach and notification of services, and to assure that there are sufficient providers available.
 
Chisholm v. Hood, 110 F. Supp. 2d 499, 508 (E.D.La. 2000). EPSDT requires the state to assure that children who need personal care services actually receive them. The court refused to order the state to create a tracking system to monitor referrals for treatment because a new case management system had only been in place for seven months and the court wanted to give the system a chance to work. The court noted that only 109 out of 3381 children with MR/DD were using the personal care services. The opinion provides details about Louisiana's new case management system.
 
Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D.Tx 2000). The state remains responsible for assuring that EPSDT services are delivered when using Medicaid managed care.
 
Timely Treatment
 
States must ensure timely EPSDT treatment, generally within an outer limit of six months after the request for screening services. 42 C.F.R. 441.56(e).
 
French v. Concannon, No. 97-CV-24-B-C- (D.Me.)(July 1998, Order of dismissal and agreement)(settlement agreement available on line at www.healthlaw.org). Medicaid eligible children with severe mental health diagnoses used the EPSDT provisions to challenge long waits for services. The state settled the case agreeing to: (1) create a position within the state Department of Mental Health to identify children who are waiting for services and to ensure that treatment is being implemented; (2) revise the EPSDT brochure and EPSDT screening forms, (3) hire additional case managers; (4) streamline the prior authorization process, and (5) create a new provide category "behavioral health specialist" to increase availability of home care providers.
 
Risinger v. Concannon, 117 F. Supp. 2d 61 (D.Me. 2000). This is a follow up case to French, supra. Plaintiffs are children with severe mental health diagnoses. The action alleged that the state violated EPSDT requirements because of insufficient behavioral health services, including a lack of case managers, behavioral health providers, and screening and treatment services. The reported decision denies a motion to dismiss holding that the French settlement does not bar the action based upon res judicata and that the Maine P & A agency has standing.
 
Chisholm v. Hood, Civil. Action No 97-3274 (E.D.La. (Feb. 16, 2000, Stipulation and Order of Partial Dismissal). Plaintiffs challenged waiting lists for services for children with mental retardation and developmental disabilities. The state settled the case agreeing to increase the availability of case management services and assure that case managers possess minimum qualifications, handle a caseload of only 35 clients, and are trained on Medicaid and EPSDT services. Portions of the settlement agreement are described at Chisolm v. Hood, 110 F. Supp. 2d 499, 504 (E.D.La. 2000)
 
Limits on EPSDT Services
 
1. Medical necessity
 
EPSDT only covers medically necessary services. However, the Medicaid Act's definition of medical necessity for EPSDT is much broader than that used by private insurance.
 
Under EPSDT, state Medicaid programs must cover "necessary health care, diagnostic services, treatment and other measures...to correct or ameliorate defects and physical and mental illnesses and conditions." 42 U.S.C. 1396d(r)(5) Services must be covered if they correct, compensate for, or improve a condition, or prevent a condition from worsening-even if the condition cannot be prevented or cured.
 
2. "Tentative" Limits on Services
 
States may place "tentative" limits on EPSDT services, for example, 14 days of hospital care. However, the state must have an expeditious process in place to allow children to obtain treatment services beyond the tentative limits. States may not use absolute caps as they do with adult services. The only absolute limits that may be placed on EPSDT services are those based upon medical necessity. See, HCFA, State Medicaid Manual, EPSDT Services, 5110.
 
3. "The Most Economic Mode"
 
HCFA allows states to limit EPSDT treatment settings and provider types to the "most economic mode." However, these limits should not apply if there is an inadequate supply of the less expensive treatment or provider, or if the less costly treatment is less effective.
 
Chisholm v. Hood, 110 F. Supp. 2d 499 (E.D.La. 2000). Louisiana's policy of limiting Medicaid eligible MR/DD children to occupational, speech, and audiological services provided by their resident school boards violated children's freedom to choose from a "variety" of providers. Freedom of choice provisions requires that class members have a variety, or choice, of providers. Moreover, the state's policy completely precluded homebound class members from obtaining necessary medical treatment.
 
Determining Medical Necessity for EPSDT Service
 
The determination that a service is medically necessary lies primarily with the child's treating physician or other health care provider. The state may review the physician's determination as to medical necessity. However, the state must defer to the recommendation of the treating physician. S.Rep. No. 404, 89th Cong., 1St Sess., reprinted in 1965 U.S.C.C.A.N. 1943, 1986 ("the physician is to be the key figure in determining utilization of health services...it is the physician who is to decide upon admission to a hospital, order tests, drugs , and treatments[.]").
 
Weaver v. Reagen, 886 F.2d 194 (8th Cir. 1989). State must defer to treating physician.
 
Hilburn by Hilburn v. Maher, 795 F.2d 252 (2d Cir. 1986). State must defer to treating physician.
 
Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997) (in social security and SSI disability determination the opinion of the treating physician must be given substantial or considerable weight unless "good cause" is shown).
 
Obtaining EPSDT Services
 
EPSDT services must be prescribed by a physician or other qualified medical care provider as medically necessary and services must be provided by a Medicaid-qualified provider. Proper medical documentation is often the key to EPSDT services.
 
The materials that should accompany a health care professional's request for EPSDT Medicaid services are:
 
A physician's order, and
A letter of medical necessity from the physician or other qualified person. This letter should include:
    a patient history
    a diagnosis and prognosis
    a medical justification for the services requested
    a description of the benefit to the patient (This is particularly important and should be very thorough.)
    the length of time the patient will need the services.
 
VI. Outreach and Informing
 
EPSDT also contains outreach requirements. The state must seek out eligible children and inform them of the benefits of prevention and the health services and assistance available, and help them and their families use health services. 42 U.S.C. 1396a(a)(43)
 
Chisholm v. Hood, Civil. Action No 97-3274 (E.D.La. (Feb. 16, 2000, Stipulation and Order of Partial Dismissal). As part of a settlement agreement, the state agreed to mail notices of the availability of case management services to Medicaid-eligible families.
 
Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D.Tx 2000). The court discusses at length the notice and outreach requirements, and the use of statistical reporting to assess compliance with EPSDT.
 
Salazar v. D.C., 1997 WL 306976 (D.D.C.). District must provide "effective" notice of EPSDT services to Medicaid eligible teens as well as their parents, and notice must be given to individuals who are blind, deaf and illiterate. The district was also ordered to establish a Spanish language help line to explain EPSDT services.
 
DISCLAIMER
The information from this (source) web site is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from State to State, so that some information in this web site may not be correct for your jurisdiction. Finally, the information contained in this web site is not guaranteed to be up to date. Therefore, the information contained in this web site cannot replace the advice of competent legal counsel licensed in your state.