Medicaid Suit Could Determine Who Decides Care: Doctor or State


Richard Moore

Medicaid Suit Could Determine Who Decides Care: Doctor or State

Alyson M. Palmer


State governments and Medicaid plan administrators have shown keen interest in a case argued before Atlanta’s federal appeals court on Tuesday that could determine whether doctors or state officials get to decide how much medical care a Medicaid recipient needs.

But at the center of the case is a young disabled girl living in North Georgia.

Neither side suggests Anna C. Moore, a teenager who goes by “Callie,” shouldn’t have Medicaid-funded nursing care in her home. As her lawyer explained to a panel of the 11th U.S. Circuit Court of Appeals on Tuesday, she has frequent seizures and difficulty breathing. She’s been receiving in-home nursing care paid for by Medicaid for about a decade.

At issue is whether the state properly reduced the number of hours that she receives such care. Callie’s mother filed suit in 2007 after the state told her it was reducing Callie’s number of paid nursing hours from 94 hours a week to 84.

The Moores’ lawyers convinced U.S. District Judge Thomas W. Thrash Jr. that the reduction was improper. The judge concluded the state must provide for the amount of skilled nursing care that Callie’s treating physician deems necessary.

Thrash’s June 4, 2008, ruling has states and Medicaid plan managers up in arms. They say that Thrash’s order means that states won’t have the flexibility they need and the discretion the law allows to allocate Medicaid resources fairly.

Federal law requires states participating in the Medicaid program to provide care that’s necessary to “correct or ameliorate defects and physical and mental illnesses” in lower-income children under the age of 21. The state points to a federal regulation that says Medicaid agencies may place limits on service based on “medical necessity.”

The state Department of Community Health operates a program to administer Medicaid-funded nursing services for several hundred children who need nursing care. It delegates the decisions about approval of such services to an organization called the Georgia Medical Care Foundation. That organization made the decision to reduce Callie’s hours of nursing care, contrary to the recommendation of Callie’s primary care physician.

The state says in its briefs that nursing hours can be reduced when the patient’s medical condition stabilizes, positing that a goal of its program is to teach parents and other caregivers to care for the child on their own. The Moores’ lawyers at theGeorgia Advocacy Office, a nonprofit that advocates for disabled people, contend that the state’s system of “weaning” patients off their nursing services as long as they’re staying out of the hospital and not getting worse follows a different standard than that set by federal law.

According to Thrash’s order, Callie is disabled due to a stroke she experienced in utero and suffers from various chronic conditions, including mental retardation and cerebral palsy. She lives at home and, according to the state’s brief, attends an elementary school in Athens three days a week. Her lawyers say she requires constant care.

When state authorities notified Callie’s mother that her nursing hours were being reduced, they cited, among other things, a policy that the cost of in-home nursing care should be less than the cost of providing that care in an institution. But the state denies in its brief that it considered cost in determining what nursing hours Callie will receive. It says its experts simply disagreed with the judgement of Callie’s doctor on how many nursing hours Callie needs.

After Thrash issued multiple injunctions in Callie’s favor, he denied the state’s motion for summary judgment and granted the Moores’ motion in part.

The state’s appeal of the summary judgment ruling came before the 11th Circuit on Tuesday.

Assistant Attorney General Virginia B. Fuller told the three-judge panel that Thrash’s order means private primary care physicians have unfettered discretion to spend public money.

Holland & Knight partner Robert S. Highsmith Jr. argued on behalf of WellCare of Georgia, an amicus siding with the state that provides managed-care services for Medicaid programs. He echoed Fuller’s remarks, saying Thrash’s order essentially says a doctor’s decision is unreviewable by the state.

Senior Judge R. Lanier Anderson III jumped in: Assuming the state gets to determine what’s medically necessary, “What deference does the state owe the treating physician?”

The state will consider doctors’ determinations, responded Highsmith, but the state is the “final arbiter.”

Judge Gerald B. Tjoflat wanted to know who had the burden of proof in a dispute.

The plaintiff has the burden to prove a violation of the law, Highsmith responded.

Tjoflat continued that line of questioning with Atlanta Legal Aid Society General Counsel David A. Webster, who appeared for the Moores. Webster allowed that the state might properly decide there’s no factual basis for a treating physician’s determination.

Anderson remarked that a state is required to pay only for necessary services — and the regulations say the state determines what’s necessary.

A question by U.S. District Judge Lisa Godbey Wood, visiting from Brunswick, clarified the position of Webster, who confirmed that his argument is the state cannot decide on an individual, case-by-case basis what’s necessary. The presumption is that the doctor is correct, he said.

But, interjected Tjoflat, in federal court the plaintiff has the burden of proof.

“The treating physician knows the patient best,” Webster replied.

Anderson said his problem with the case is that the briefs don’t discuss who has the burden of proof, suggesting that Thrash didn’t consider which side carried the burden.

“There’s a reason for that,” responded Webster. The district court didn’t need to get into who had the burden, because the state didn’t make a reasoned decision and instead applied its “weaning program.”

Anderson suggested a weaning mechanism sounded reasonable.

Webster replied that it might be reasonable if the child or the parents’ ability to care for the child was improving, but that wasn’t what happened in Callie’s case. Instead, he said “we have this continual squeeze,” in which the state makes a policy decision, rather than a medical decision, to cut care.

“There is no medical basis for the review team’s decision to cut hours in this case,” Webster argued.

With her rebuttal time, Fuller attempted to minimize the effect of the state’s decision on the care of Callie. “We are talking about 10 hours of care,” said Fuller.

The Georgia Medical Care Foundation is an “objective” team, she added. But, she said, the district court gave more weight to the physician’s view.

The case is Moore v. Medows, No. 08-13926.