ACCEPTED
03-15-00226-CV
6056931
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/14/2015 12:54:37 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00226-CV
_________________________________
FILED IN
IN THE 3rd COURT OF APPEALS
AUSTIN, TEXAS
THIRD COURT OF APPEALS 7/14/2015 12:54:37 PM
AUSTIN, TEXAS JEFFREY D. KYLE
_________________________________ Clerk
TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Appellant,
v.
LINDA PUGLISI,
Appellee.
_________________________________
On Appeal From
The 53rd Judicial District Court of Travis County, Texas
Trial Court Case No. D-1-GN-14-000381
The Honorable Judge Gisela D. Trianna
_________________________________
BRIEF OF APPELLEE
_________________________________
MAUREEN O’CONNELL
Texas Bar No. 00795949
SOUTHERN DISABILITY LAW CENTER
1307 Payne Avenue
Austin, Texas 78757
T: 512.458.5800
F: 512.458.5850
moconnell458@gmail.com
Attorney for Appellee
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................i
TABLE OF AUTHORITIES ................................................................................... iii
ISSUES PRESENTED............................................................................................... x
LEGAL FRAMEWORK OF THE MEDICAID PROGRAM .................................. 2
STATEMENT OF FACTS ........................................................................................ 4
SUMMARY OF THE ARGUMENT ........................................................................ 9
ARGUMENT ........................................................................................................... 11
A. The Trial Court Correctly Denied HHSC’s Motion to Dismiss ................. 11
B. The Trial Court Correctly Reversed and Remanded the Case
to HHSC for Further Proceedings Consistent with Its Decision ................ 16
C. Deference is Not Owed to HHSC’s Post-Hoc Interpretation of
Agency Rules .............................................................................................. 18
D. The Trial Court Correctly Determined that HHSC’s Hearing
Decision Fails to Comply with Medicaid Law ........................................... 20
E. The Trial Court Correctly Determined that HHSC’s Hearing
Decision is Arbitrary, Capricious, Unreasonable and
Unsupported by Substantial Evidence ........................................................ 22
1. The trial court properly addressed the two reasons
Molina denied Linda Puglisi’s prior authorization request ................. 22
2. HHSC failed to address Linda Puglisi’s medical need for
a custom power wheelchair with integrated standing
feature .................................................................................................. 24
3. HHSC failed to employ the correct test for determining
Medicaid coverage of DME ................................................................ 34
i
F. HHSC Violated Linda Puglisi’s Procedural Due Process
Rights .......................................................................................................... 45
1. Medicaid beneficiaries have a protected property interest
in their Medicaid benefits .................................................................... 45
2. Molina’s denial notice does not comport with due
process and HHSC failed to address this issue ................................... 47
3. HHSC’s administrative review does not comport with
State law and further compounded the due process
violations in this case .......................................................................... 49
PRAYER .................................................................................................................. 49
CERTIFICATE OF COMPLIANCE ....................................................................... 50
CERTIFICATE OF SERVICE ................................................................................ 51
ii
TABLE OF AUTHORITIES
CASES
Ability Center of Toledo v. Lumpkin,
808 F.Supp.2d.1003 (N.D. Ohio 2011) .............................................................. 46
Allegent Health v. Amer. Farm Ins., Inc.,
656 N.W.2d 906 (Neb. 2003) ............................................................................. 12
Alvarez v. Betlach,
572 F. App’x 519 (9th Cir.) ................................................................................ 36
Baker v. Commonwealth of Pa. Dept. of Pub. Welfare,
502 A.2d 318 (Pa. Commw. 1985) ...............................................................36, 37
Bell v. Agency for Health Care Admin.,
768 So.2d 1203 (FL. App. 2000) ..................................................................36, 37
Blue v. Bonta,
99 Cal.App. 4th 980, 121 Cal.Rptr.2d 483 (Cal App. 2002) .............................. 36
Bowers v. Thompson;
No. 89-2-00553-8 (Wash. Super. Ct. Thurston County Oct. 15, 1990) .......36, 37
Brisson v. Dep’t of Social Welf.,
702 A.2d 405 (VT. 1997)..............................................................................36, 37
Bristol v. R.I. Dept. of Hum. Serv.,
1997 WL 839884 (R.I. Super. Jan. 30, 1997) ..................................................... 36
Combs v. Entertainment Publications, Inc.,
292 S.W. 3d 712 (Tex. App.—Austin 2009, no pet.) ......................................... 42
Davis v. Shah,
2012 WL 1574944 (W.D.N.Y. May 3, 2012)..................................................... 36
Davis v. Shrader,
687 N.E.2d 370 (Ind. App. 1997) .................................................................36, 37
iii
DeSario v. Thomas,
139 F.3d 80 (2d Cir. 1998) ................................................................................. 37
Detgen v. Janek,
945 F. Supp. 2d 746 (N.D. Tex. 2013) ............................................................... 23
Detgen v. Janek,
752 F. 3d 627 (5th Circuit 2014) ............................................................35, 36, 37
El Paso Hosp. Dist. v. Texas Health and Human Servs. Comm’n,
247 S.W. 3d 709 (Tex. 2008) ............................................................................. 43
Evanston Hosp. v. Hauck,
1992 WL 205900 (N.D. Ill. 1992) ...................................................................... 12
Fishman v. Daines,
743 F.Supp.2d. 127 (E.D. N.Y 2010) ................................................................. 46
Frank v. Thomas,
No. 3:98CV00306(GLG), U.S. Dist. Ct., D. Conn. 1998................................... 15
Fred C. v. Texas Health & Human Services Comm’n,
988 F.Supp. 1032 (W.D.Tx. 1997) ..................................................................... 36
Goldberg v. Kelly,
397 U.S. 254 (1970) ............................................................................................ 45
Gray Panthers v. Schweiker,
652 F. 2d 146 (D.C. Cir. 1980) ........................................................................... 47
Hamby v. Neel,
368 F.3d. 549 (6th Cir. 2004) .......................................................................45, 46
Hiltibran v. Levy,
793 F.Supp.2d 1108 (W.D. Mo. 2011) ............................................................... 36
Hunter v. Chiles,
944 F.Supp. 914 (S.D. Fl. 1996) ...................................................................36, 37
iv
Jasset v. R.I. Dept. of Hum. Serv.,
2006 WL 2169891 (R.I. Super. July 31, 2006) .................................................. 36
Johnson v. Guhl,
91 F.Supp. 2d 754 (D. N.J. 2000) ....................................................................... 46
Johnson v. Minn. Dept. of Human Serv.,
565 N.W.2d 453 (Minn. App. 1997) ............................................................36, 37
Jonathan C. v. Hawkins,
2006 WL 3498494 (E.D. Tex. Dec. 5, 2006) ..................................................... 45
Koenning v. Janek,
539 Fed. Appx. 353 (5th Cir. 2013).................................................................... 39
Koenning v. Suehs,
897 F. Supp.2d 528 (S.D. 2012) ......................................................................... 39
Ladd v. Thomas,
962 F. Supp 284 (D. Conn. 1997) .................................................................45, 46
Lankford v. Sherman,
451 F.3d 496 (8th Cir. 2006) ..................................................................34, 36, 37
Ledet v. Fischer,
638 F. Supp. 1288 (M.D. La. 1986)..............................................................36, 37
Liberty Mut. Ins. Co. v. Texas Dep't of Ins.,
187 S.W. 3d 808 (Tex. App. Austin 2006, pet denied) ...................................... 46
Mayhew v. Town of Sunnyvale,
964 S.W.2d 922 (Tex.1998)................................................................................ 11
Meyers v. Reagen,
776 F.2d 241 (8th Cir. 1985) .............................................................................. 36
Myers v. State of Mississippi,
3:95 CV 185 LN (Slip Op. S.D. Miss. 1995) ...............................................36, 37
v
Neuwrith v. Louisiana State Bd. of Dentistry,
845 F. 2d 553 (5th Cir. 1988) ............................................................................. 46
Ohlson v. Weil,
953 P.2d 939 (Colo. App. 1997) ...................................................................36, 37
Patterson v. Planned Parenthood of Houston & Se. Texas, Inc.,
971 S.W.2d 439 (Tex. 1998) .............................................................................. 11
Perry v. Del Rio,
66 S.W.3d 239 (Tex. 2001)................................................................................. 16
Public Utility Commission v. South Plains Electric Cooperative, Inc.,
635 S.W.2d 954 (Tex.App.—Austin 1982, writ ref'd n.r.e.) .............................. 44
Rastetter v. Weinberger,
379 F.Supp. 170 (D.AZ. 1974) ........................................................................... 12
Rodriguez v. Serv. Lloyds Ins. Co.,
997 S.W.2d 248 (Tex. 1999) ........................................................................21, 43
Roe v. Norton,
522 F.2d 928 (2d Cir. 1975) ............................................................................... 12
Skubel v. Fuoroli,
113 F.3d 330 (2d Cir. 1997) ............................................................................... 12
Slekis v. Thomas,
525 U.S. 1098 (1999) .......................................................................................... 38
Stanford v. Butler,
181 S.W.2d 269 (Tex.1944)................................................................................ 19
Sw. Pharmacy Solutions, Inc. v. Texas Health & Human Servs. Comm’n,
408 S.W.3d 549 (Tex. App. 2013)...................................................................... 18
Tarrant Appraisal Dist. v. Moore,
845 S.W.2d 820 (Tex. 1993) .............................................................................. 19
vi
Texas Alcoholic Beverage Comm’n v. Amusement & Music Operators of
Tex., Inc.,
997 S.W.2d 651 (Tex. App.—Austin 1999, pet. dism’d w.o.j.) ......................... 41
Texas State Bd. of Pharmacy v. Witcher,
447 S.W.3d 520 (Tex. App. 2014)...................................................................... 43
Thompson v. Roob,
2006 WL 2990426 (S.D. Ind. Oct. 19, 2006) ...............................................45, 48
T.L. v. Colorado Dept. of Health Care Policy & Fin.,
42 P.2d 63 (Colo. App. 2002) ............................................................................. 36
Waco Indep. Sch. Dist. v. Gibson,
22 S.W.3d 849 (Tex. 2000)................................................................................. 11
Weaver v. Reagan,
886 F. 2d 194 (8th Cir. 1989) ............................................................................. 25
Wilder v. Virginia Hospital Association,
496 U.S. 498 (1990) .............................................................................................. 2
Will T. v. Taylor,
465 F.Supp.2d 1267 (N.D. Ga. 2000) ................................................................. 36
Woody v. Dallas,
809 F. Supp. 466 (N.D. Tex. 1992) .................................................................... 46
REGULATIONS
1 TEX. ADMIN. CODE § 354.1031 .......................................................................20, 39
1 TEX. ADMIN. CODE § 354.1031(b)(12).............................................................. 3, 20
1 TEX. ADMIN. CODE § 354.1035 .................................................................20, 21, 39
1 TEX. ADMIN. CODE § 354.1039 .................................................................20, 21, 29
1 TEX. ADMIN. CODE § 354.1039(a) ..................................................................18, 19
vii
1 TEX. ADMIN. CODE § 354.1039(a)(4)(A) ........................................................18, 19
1 TEX. ADMIN. CODE § 354.1039(a)(4)(D) ..............................................4, 20, 24, 38
1 TEX. ADMIN. CODE § 354.1040 .............................................. 13, 20, 21, 39, 40, 42
1 TEX. ADMIN. CODE § 354.1040(d)(3).................................................................... 13
1 TEX. ADMIN. CODE § 354.1040(g) ........................................................................ 13
1 TEX. ADMIN. CODE § 354.1041 ............................................................................. 12
1 TEX. ADMIN. CODE § 354.1041(2)(B) ................................................................... 13
1 TEX. ADMIN. CODE § 354.2321(b) ........................................................................ 14
1 TEX. ADMIN. CODE § 354.2321(f) ......................................................................... 14
1 TEX. ADMIN. CODE § 355.8021(b)(2-3) ................................................................ 13
1 TEX. ADMIN. CODE § 357.3(b)(1)(E) ..............................................................46, 47
1 TEX. ADMIN. CODE § 357.9 ................................................................................... 27
1 TEX. ADMIN. CODE § 357.703 ................................................................................. 8
1 TEX. ADMIN. CODE § 357.703(b)(3)...................................................................... 42
42 C.F.R. § 431.10(e)(1) ............................................................................................ 2
42 C.F.R. § 200 ........................................................................................................ 47
42 C.F.R. § 431.210(b) ......................................................................................31, 47
42 C.F.R. § 431.210(c).................................................................................18, 31, 47
42 C.F.R. § 435.930 ................................................................................................... 4
42 C.F.R. § 438.210(a)(4)(i) .................................................................................... 28
viii
42 C.F.R. § 438.404 ................................................................................................. 47
42 C.F.R. § 440.70(b)(3) ............................................................................................ 3
42 C.F.R. § 440.230(b) ..................................................................................3, 38, 44
42 C.F.R. § 440.230(c)...................................................................................3, 38, 44
42 C.F.R. § 440.240(a)............................................................................................. 34
STATUTES
42 U.S.C. § 1396 ........................................................................................................ 2
42 U.S.C. § 1396a(a)(3) ........................................................................................... 47
42 U.S.C. § 1396a(a)(5) ............................................................................................. 2
42 U.S.C. § 1396a(a)(8) ............................................................................................. 4
42 U.S.C. § 1396a(a)(10(B) ..................................................................................... 34
42 U.S.C. § 1396a(a)(17) ...............................................................................3, 38, 44
42 U.S.C. § 1396d(a)(7) ............................................................................................. 3
42 U.S.C. § 1396w2 ................................................................................................... 2
42 U.S.C. § 1396-1..................................................................................................... 2
TEX. GOV’T CODE § 531.019(c) ............................................................................. 1, 8
TEX. GOV’T CODE § 531.021(a) ................................................................................. 2
TEX. GOV’T CODE § 2001.003(6) ............................................................................. 41
TEX. GOV’T CODE § 2001.023.................................................................................. 43
ix
TEX. GOV’T CODE § 2001.030.................................................................................. 43
TEX. GOV’T CODE § 2001.038............................................................................39, 40
TEX. GOV’T CODE § 2001.171.................................................................................... 1
TEX. HUM. RES. CODE § 32.0425 .................................................................19, 40, 42
OTHER AUTHORITIES
In the Matter of Mary A., New York Dept. of Social Services................................ 14
RESNA Position on the Application of Wheelchair Standing Devices,
Assistive Technology, 21:161-168, 2009 ................................................................... 6
x
ISSUES PRESENTED
1. Did the trial court correctly deny HHSC’s motion to dismiss?
2. Did the trial court correctly reverse and remand the case to HHSC for further
proceedings consistent with the court's decision?
3. Did the trial court correctly determine that HHSC’s post hoc interpretation of
agency rules is not entitled to deference?
4. Did the trial court correctly determine that HHSC’s hearing decision fails to
comply with Medicaid law?
5. Did the trial court correctly determine that HHSC’s hearing decision is
arbitrary, capricious, unreasonable and unsupported by substantial evidence?
6. Did HHSC violate Linda Puglisi’s procedural due process rights as a Medicaid
beneficiary?
xi
No. 03-15-00226-CV
_________________________________
IN THE
THIRD COURT OF APPEALS
AUSTIN, TEXAS
_________________________________
TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Appellant,
v.
LINDA PUGLISI,
Appellee.
_________________________________
On Appeal From
The 53rd Judicial District Court of Travis County, Texas
Trial Court Case No. D-1-GN-14-000381
The Honorable Judge Gisela D. Trianna
_________________________________
BRIEF OF APPELLEE
_________________________________
To the Honorable Third Court of Appeals:
This appeal arises out of a Medicaid hearing decision issued by the Texas
Health and Human Services Commission (HHSC) denying Linda Puglisi’s request
for Medicaid prior authorization of a custom power wheelchair with integrated
standing feature. Linda filed a Petition for Judicial Review in the Travis County
District Court to challenge this denial. TEX. GOV’T CODE §§ 531.019(c) and
2001.171 et seq. The trial court reversed the agency’s decision, finding it arbitrary,
capricious, unreasonable, and unsupported by substantial evidence. The trial
court's decision should be affirmed.
LEGAL FRAMEWORK OF THE MEDICAID PROGRAM
In 1965, Congress enacted Title XIX of the Social Security Act to establish
Medicaid, a federal-state program designed to provide medically necessary health
care to low income families and individuals with disabilities. 42 U.S.C. §§ 1396-
1396w2. The purpose of this program is to enable states “to furnish…rehabilitation
and other services to help such families and individuals attain or retain the
capability for independence or self-care.” 42 U.S.C. § 1396-1. State participation
in Medicaid is optional, however, “once a state chooses to join, it must follow the
requirements set forth in the Medicaid Act and its implementing regulations.”
Wilder v. Virginia Hospital Association, 496 U.S. 498, 502 (1990).
The Centers for Medicare and Medicaid Services (CMS) provide federal
oversight of state Medicaid programs, however, each state must designate a single
state agency to administer its Medicaid program. 42 U.S.C. § 1396a(a)(5). HHSC
is the designated Medicaid agency in Texas. TEX. GOV’T CODE § 531.021(a). As
the single state agency, HHSC must comply with all federal Medicaid
requirements when promulgating rules and establishing policy and cannot delegate
its authority on program matters to its contracted entities. 42 C.F.R. § 431.10(e)(1).
HHSC’s contracted entities, which include managed care organizations and the
2
Texas Medicaid and Healthcare Partnership (TMHP), must comply with all
Medicaid legal requirements when deciding whether requested medical services
will be approved for eligible beneficiaries.
At issue in this case is medical equipment, a required component of the
Medicaid home health category of service. 42 U.S.C. § 1396d(a)(7); 42 C.F.R. §
440.70(b)(3). Federal law does not presently define the term durable medical
equipment (DME), however, the Health Care Financing Administration (now
CMS) issued official guidance in 1998 concerning this mandatory Medicaid
benefit. HHSC App. 6. Known as the DeSario Letter, this guidance clarified that
state Medicaid programs must comply with the Medicaid Act’s reasonable
standards requirement, 42 U.S.C. § 1396a(a)(17), and amount duration, and scope
rule, 42 C.F.R. § 440.230(b-c), in administering the DME benefit. In 2013, CMS
reaffirmed the continuing application of this federal policy when it wrote to
HHSC’s Medicaid Director to explain that Texas Medicaid must provide DME
when the requested item: (1) is a covered benefit; and (2) is medically necessary
for the individual requesting it. Puglisi App. 1.
An item of medical equipment is covered by Medicaid if it meet HHSC’s
definition of DME. Puglisi App. 1. By rule, 1 TEX. ADMIN. CODE §
354.1031(b)(12), DME is defined as:
3
[m]achinery or equipment which meets one or both of the following
criteria: (A) the projected term of use is more than one year; or (B)
reimbursement is made at a cost of more than $ 1,000.
Texas Medicaid policy, TMPPM DME Handbook 2.2.2, further defines DME as:
Medical equipment or appliances that are manufactured to withstand
repeated use, ordered by a physician for use in the home, and required
to correct or ameliorate a client’s disability, condition or illness.
HHSC App. 4, 5.
An item of DME is medically necessary when “required to correct or
ameliorate the individual’s disability, medical condition, or illness” or in
exceptional circumstances, found to “serve a specific medical purpose.” TMPPM
DME Handbook 2.2.2; 1 TEX. ADMIN. CODE § 354.1039(a)(4)(D). HHSC App. 4,
5. Once these criteria - coverage and medical necessity - are met by an eligible
beneficiary, HHSC or its contracted entity must prior authorize the requested item
of DME with reasonable promptness. 42 U.S.C. § 1396a(a)(8); 42 C.F.R. §
435.930.
STATEMENT OF FACTS
The facts underlying Linda Puglisi’s request for Medicaid prior
authorization of a custom power wheelchair with integrated standing feature were
largely uncontested at HHSC’s hearing. In 2011, Linda sustained a C1-4 spinal
cord injury during surgery to remove a tumor from her neck. Puglisi App. 2, p.50.
This injury left her paralyzed, dependent upon a ventilator to breathe and a feeding
4
tube for sustenance. Following months of hospitalization and inpatient
rehabilitation, the ventilator and feeding tube were discontinued. Linda remained
paralyzed however, and is no longer able to walk. She requires a custom power
wheelchair for all mobility. Puglisi App. 2, p. 50; App. 3, pp. 63-64; AR 310.
In February 2013, Linda was admitted to TIRR Memorial Hermann Hospital
for physical rehabilitation. While there, she underwent a comprehensive
wheelchair assessment, which provides extensive information concerning her
disability and the numerous medical conditions she faces as a result. Puglisi App.
3, pp. 63-71: HHSC App. 2, Finding of Fact 3; App. 3, Finding of Fact 4. This
evaluation explains that Linda has “impaired integumentary sensation, respiratory
function, neurogenic bowel, and neurological pain.” She also faces an “increased
risk for bone density loss and compromised soft tissue integrity secondary [due] to
not being able to bear weight through [her bilateral lower extremities].” Puglisi
App. 3, p. 64.
The evaluation team recommended a custom power wheelchair with
integrated standing feature to address Linda’s many medical conditions and to
allow her to “independently perform pressure relief and weight bearing through her
[lower extremities] preventing skin breakdown and bone density loss, as well as
enhancing biomechanical alignment throughout the entire body on a daily basis,
5
which helps to prevent further impact of spasticity on joints in upright postures.” 1
Puglisi App. 3, p. 68-69. Linda’s attending physical medicine and rehabilitation
specialist attested to her medical need for the recommended wheelchair with
standing feature.2
As required, a Medicaid-enrolled DME supplier requested prior
authorization of the recommended wheelchair from Molina Healthcare of Texas
(Molina), a managed care organization under contract with HHSC. HHSC App. 2,
Findings of Fact 1, 4; App.3, Findings of Fact 1,5. Molina referred the request to a
third-party entity “for review of medical necessity…” HHSC App. 2, Finding of
Fact 5. This reviewer informed the DME supplier that it would have to substitute a
different wheelchair base and remove the seat elevator and standing feature before
Molina would approve a power wheelchair for Linda. AR 132-133. In response,
the DME supplier submitted extensive documentation, including several
professional publications explaining the medical benefits of standing for people
with spinal cord injuries and their use of wheelchairs with integrated standing
1
Custom wheelchairs with integrated standing systems are well-recognized in the rehabilitation
profession as a means of addressing the “painful, problematic, and costly secondary
complications” that result from prolonged sitting. These wheelchairs “allow for more frequent,
random, and independent performance of standing” than separate standing devices. See RESNA
Position on the Application of Wheelchair Standing Devices, Assistive Technology, 21:161-168,
2009. Puglisi App. 4.
2
The recommended wheelchair has an integrated multi-positional standing system. This
wheelchair requires a Group 4 base to accommodate the standing feature and several additional
power seat functions, including tilt and recline, center mount articulating elevating leg rests,
stand and drive leg rest assembly, and seat elevation, all of which are required to operate the
standing function. Puglisi App. 5, ¶5.
6
features. AR 47-117. This documentation also included additional medical
justification by Linda’s attending physician who further explained Linda’s
diagnoses and functional status, the secondary medical conditions she faces as a
result of prolonged sitting (12 hours) in her wheelchair each day, her need to stand
numerous times throughout the day without risk of transfer injuries, her inability to
independently use a separate stander, and the underlying rationale for
recommending a custom power wheelchair with integrated standing feature as the
only item of equipment that will address Linda’s complex medical needs.3 Puglisi
App. 2, p. 50-52. The DME supplier also explained why certain components could
not be “removed” from the recommended wheelchair as requested by Molina’s
outside reviewer. AR 49.
On May 30, 2013, the reviewer provided his “itemized collection of thoughts
on the equipment in question.” He did not dispute Linda’s medical conditions or
refute the professional opinions of her medical providers. He acknowledged that
Linda’s medical providers “offered very detailed benefits of standing” and “they
note that the member is unable to reap these benefits unless they have the stander
on their chair… .” AR 118-119.
3
There are two general types of standing devices. One is a non-mobile separate stander that
requires the user to transfer in and out of the device whenever he or she needs to stand. The
other is a standing feature integrated into a custom wheelchair, which allows for independent
standing without assistance from care providers and the risk of transfer injuries.
7
On June 6, 2013, Molina denied Linda’s wheelchair request, stating among
other things, that the standing feature was neither covered by Medicaid nor
medically necessary and the seat elevator was not medically necessary. Molina did
not contest Linda’s medical need to stand throughout the day as recommended by
the evaluation team. HHSC App. 1.
A Medicaid fair hearing was requested on June 24, 2013, and was held on
October 30, 2013. AR 267; 19. For the purpose of this hearing, TIRR’s attending
physician provided an additional letter of medical necessity explaining Linda’s
medical need for the recommended wheelchair and further advising that “the team
responsible for conducting Linda’s wheelchair evaluation in February 2013
continues to support their recommendation for a custom power wheelchair with
integrated standing feature for Linda.” Linda’s physician also reaffirmed that a
separate stander would not be effective in addressing the numerous secondary
medical conditions she faces due to her spinal cord injury. Puglisi App. 6.
In November 2013, HHSC’s hearing officer sustained Molina’s prior
authorization denial. HHSC App. 2. Linda requested an administrative review of
this decision pursuant to TEX. GOV’T CODE § 531.019(c) and 1 TEX. ADMIN. CODE
§ 357.703. AR Tab 16, 1-14. On January 14, 2014, an HHSC attorney sustained
the hearing officer’s decision and upheld Molina’s denial of the recommended
wheelchair. HHSC App. 3. Having exhausted her administrative remedies, Linda
8
filed a Petition for Judicial Review on February 7, 2014. CR3-31. While this case
was pending in the trial court, HHSC informed Linda that, effective May 2014, she
would be dually eligible for both Medicaid and Medicare. This dual eligibility
status is known as a Medicaid Qualified Medicare Beneficiary (MQMB). Five
months later, HHSC filed a motion to dismiss, claiming the case was not ripe
because of Linda’s dual eligibility. CR 199. The trial court denied this motion in
November 2014. CR 314. On January 15, 2015, the court reversed HHSC’s
hearing decision, finding that Linda was entitled to Medicaid prior authorization of
the recommended wheelchair. CR 348-349.
SUMMARY OF THE ARGUMENT
The trial court correctly determined it had subject matter jurisdiction of this
case and properly denied HHSC's motion to dismiss. The facts underlying this
case were ripe when it was filed and continue to be ripe today. No intervening
event, including Linda’s dual eligibility for Medicaid and Medicare, has rendered
this case unripe for adjudication.
The trial court properly tailored its decision on the merits to HHSC’s denial
of Medicaid prior authorization for the recommended wheelchair and remanded the
case for further action consistent with its decision. The court was not required to
remand the case to allow HHSC to “change its findings and decision.” Nor was
the court obligated to defer to HHSC’s post hoc interpretation of agency rules or to
9
consider “regulatory prerequisites” that were not identified during the
administrative proceeding as the basis for Molina’s denial of Linda’s prior
authorization request.
Molina identified two reasons for its prior authorization denial - - Medicaid
coverage of the recommended standing feature and Linda’s medical necessity for
the standing feature and seat elevator. The first is a legal question the trial court
resolved by finding that “HHSC’s administrative decision fails to comply with the
controlling federal and state law, and thus, is arbitrary, capricious, and
unreasonable.” The second is a question of fact the trial court resolved based upon
the evidence submitted by Linda’s treating medical providers and Molina’s failure
to refute this evidence. On this issue, the trial court correctly determined that
HHSC’s decision was not supported by substantial evidence.
At the fair hearing, Molina had the burden to prove that the reasons for
denial cited in its notice of adverse action were factually accurate and legally
correct, but failed to meet this burden. Like Molina, HHSC failed to employ the
correct test for determining Medicaid coverage of DME and to apply the agency’s
own medical necessity standards established in rule and policy. Finally, Linda’s
due process rights as a Medical beneficiary were violated in this case, first by
Molina’s failure to provide legally sufficient notice, and then by HHSC’s attorney
10
who based his decision on grounds that were not identified in Molina’s denial
notice. The trial court’s decision is correct and should be affirmed.
ARGUMENT
A. The Trial Court Correctly Denied HHSC’s Motion to Dismiss.
HHSC’s claim that the trial court lacked subject matter jurisdiction has no
merit. The court correctly rejected HHSC’s assertion that Linda’s dual eligibility
for Medicaid and Medicare rendered her case unripe and properly denied the
agency’s motion to dismiss. While ripeness is a “threshold issue that implicates
subject matter jurisdiction,” Patterson v. Planned Parenthood of Houston & Se.
Texas, Inc., 971 S.W.2d 439, 442 (Tex. 1998) citing Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), there is no question this case was ripe
when filed and continues to be ripe today. This case does not involve “uncertain or
contingent future events that may not occur as anticipated or may not occur at all.”
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000). Rather, the
facts of this case “have developed sufficiently so that an injury has occurred…”
439 S.W.2d at 442. (citations omitted). This injury – denial of Medicaid prior
authorization of a power wheelchair with integrated standing feature – occurred
prior to the filing of this action and continues to date.
Contrary to HHSC’s claim, Linda’s dual eligibility is not a “significant
intervening event” that renders her case for Medicaid prior authorization unripe.
11
HHSC Brief, p.10. It does not matter that “Texas law requires HHSC to analyze
claims submitted under Medicaid to ensure claims are submitted first under
Medicare to the extent allowed by law.” (emphasis added) HHSC Brief, p.9. This
case is not about the payment of claims: it is about the unlawful denial of prior
authorization of a Medicaid service. Medicare’s primary payor status does not
dictate any particular order for securing prior authorization of the recommended
wheelchair.4
HHSC’s assertion that Linda “is required to avail herself of the CMS prior
authorization process and procedure in the first instance” is wrong. HHSC Brief,
p. 11. HHSC does not identify any authority to support this claim and for good
reason – no such requirement exists in either Medicare or Medicaid law or policy.5
These are separate programs, enacted with distinct purposes and established with
different coverage and medical necessity standards.6
4
For dually eligible individuals, Medicare is the primary payor, while Medicaid is secondary. 1
TEX. ADMIN. CODE § 354.1041.
5
The DME MAC Supplier Manual cited by HHSC offers no support for the agency's assertion
that Medicare prior authorization must be obtained “in the first instance.” HHSC App. 11.
6
Numerous courts have recognized the differences between Medicaid and Medicare. See e.g.,
Skubel v. Fuoroli, 113 F.3d 330, 336 (2d Cir. 1997), aff’g 925 F.Supp. 930, 941(D.Conn.
1996)(rejecting reliance on Medicare regarding scope of Medicaid coverage of home health care
services); Roe v. Norton, 522 F.2d 928, 933-34n.5 (2d Cir. 1975)(does not infer medical need is
analogous between Medicare and Medicaid); Rastetter v. Weinberger, 379 F.Supp. 170, 172
(D.AZ. 1974)(Medicaid is a different law with a different purpose than Medicare); Allegent
Health v. Amer. Farm Ins., Inc., 656 N.W.2d 906, 911 (Neb. 2003)(Medicare is a program with a
different purpose and different standards than Medicaid)(citing Evanston Hosp. v. Hauck, 1992
WL 205900 (N.D. Ill. 1992)(Medicare and Medicaid are entirely separate programs with
different purposes and standards; federal Medicare enactments do not provide any mandates for
state Medicaid practices.) aff’d 1 F.3d 540 (7th Cir. 1993), cert. den. 510 U.S. 1091 (1994)).
12
Importantly, Linda’s MQMB status does not limit the Medicaid services to
which she is entitled as she remains eligible for the full scope of Medicaid benefits,
in addition to her Medicare benefits. If an item of DME is not available through
Medicare, Medicaid remains a source for this service. 1 TEX. ADMIN. CODE §§
354.1041(2)(B); 355.8021(b)(2-3). Moreover, Linda’s MQMB status does not
alter the fact that she is required to follow the same process for obtaining a custom
power wheelchair through Medicaid as all other beneficiaries. A description of
this process, which consists of four sequential steps, demonstrates the ripeness of
Linda’s case. 1 TEX. ADMIN. CODE § 354.1040.
First, a Medicaid beneficiary must undergo a clinical assessment by a
licensed occupational or physical therapist and a qualified rehabilitation
professional (QRP). Next, a Medicaid-enrolled DME supplier must submit a prior
authorization request, including the clinical assessment, a physician’s attestation of
medical necessity, a detailed description of the wheeled mobility system and all
medically necessary components or accessories, and any other documentation
required to explain the medical necessity of the requested equipment. 1 TEX.
ADMIN. CODE § 354.1040(d)(3). If prior authorization is granted, the DME
supplier orders and delivers the authorized wheelchair to the beneficiary. Once the
wheelchair is delivered, the DME supplier completes the final step – submission of
the claim for payment. 1 TEX. ADMIN. CODE § 354.1040(g). In instances where “a
13
third party health insurer is identified, [suppliers] are required to bill the third party
health insurer before submitting a claim for payment to the Commission…”7 1
TEX. ADMIN. CODE § 354.2321(b).
Here, HHSC’s ripeness argument erroneously conflates the prior
authorization step in this process, which occurs before the wheelchair is provided,
with the final step, payment of the supplier’s claim. This argument is not new. In a
similar administrative case, New York Medicaid refused to process the DME prior
authorization request of a dually-eligible beneficiary claiming she “was required to
explore Medicare approval first because [Medicaid] is the payor of last resort.”
Rejecting this argument, the Commissioner explained:
The issue here is a request for prior approval, not a request for
payment. Although the Medical Assistance program is the payor of
last resort, the question of payment is not relevant to the issue of prior
approval . . . [t]he Appellant is entitled to have the Agency determine
whether the walker is medically necessary, which is a separate and
distinct question from the amount of Medical Assistance payment, if
any.
Puglisi App. 7.
Similarly, Connecticut settled a lawsuit challenging this same practice by the
state’s Medicaid program, clarifying in statute that the DME prior authorization
7
“The Commission may be billed for the difference between the amount paid by the third party
health insurer and the Medicaid payable amount…” 1 TEX. ADMIN. CODE § 354.2321(f).
14
process must be available to dually eligible beneficiaries.8 As explained in Conn.
Gen. Stat. Sec. 17b-281a, “[a]ccess to [the DME preauthorization process] shall
not be denied to a recipient on the basis that a Medicare determination has not been
made prior to the submission of a request for preauthorization to the
commissioner.”
Regardless of Linda’s MQMB status, the facts underlying HHSC’s unlawful
denial of Medicaid prior authorization remain ripe. Until HHSC authorizes the
recommended wheelchair, Linda is unable to proceed any further in the agency’s
four-step process for obtaining a custom power wheelchair. The DME supplier
cannot deliver the wheelchair or request payment first from Medicare, the primary
payor, and then from Medicaid, the secondary one.
On the merits of the case, the trial court correctly found that HHSC’s
decision sustaining Molina’s prior authorization denial failed “to comply with
controlling and applicable federal and state law, and thus, is arbitrary, capricious,
and unreasonable.” The court properly limited its decision to this issue, stating that
“[b]ecause this DME item must [be] prior authorized from Texas Medicaid, the
Court reverses the administrative decision of the Texas Health and Human
Services Commission on [the] prior authorization [question] presented.” HHSC
8
Frank v. Thomas, No. 3:98CV00306(GLG), U.S. Dist. Ct., D. Conn. 1998 (class action brought
by an individual with a disability who was denied Medicaid prior authorization of a standing
wheelchair because of her dual eligibility status.
15
App. 10. Once HHSC issues Medicaid prior authorization, the wheelchair can be
provided to Linda. Only then can the DME supplier request payment, first through
Medicare and then through Medicaid.
In determining the ripeness of a case, courts may consider “the importance
of the interest advanced [and] the extent of the injury…” Perry v. Del Rio, 66
S.W.3d 239, 251-52 (Tex. 2001), citing 13 Charles Alan Wright, Arthur R. Miller,
& Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 3532.1, at
130 (2d ed.1984). Here, the injury caused by HHSC's erroneous hearing decision
is a harsh one. Linda first requested prior authorization of the recommended
wheelchair in April 2013. During this time, she has had to rely upon a loaner
wheelchair that is not customized to meet her needs. Requiring her to begin the
process again, starting with a new evaluation and a new request for Medicaid prior
authorization, would subject her to further delay during which time she will not
have access to the medically necessary wheelchair she requires to address her
many medical conditions. The facts underlying this case are ripe and the trial
court's decision denying HHSC's motion to dismiss should be affirmed.
B. The Trial Court Correctly Reversed and Remanded the Case to HHSC
for Further Proceedings Consistent with Its Decision.
HHSC takes issue with the trial court’s reversal of the agency’s hearing
decision and remand for agency action consistent with this decision. According to
HSHC, the “REVERSAL component of the order [ ] is in conflict with the
16
‘REMAND’ component.” HHSC Brief, p. 12. This is incorrect. The trial court
was careful to consider and decide the central issue before it - whether HHSC
erroneously sustained Molina’s denial of Linda’s prior authorization request.
Having properly found that HHSC’s hearing decision was “arbitrary, capricious,
and unreasonable” and “unsupported by substantial evidence,” the trial court
correctly remanded the case for the agency to issue Medicaid prior authorization of
the recommended wheelchair.
HHSC’s claim that the agency should have the opportunity to take additional
evidence on remand is wrong. HHSC Brief, p.13. There is no dispute that Linda
became eligible for Medicare in May 2014 or that she is entitled to the full scope
of benefits available through Medicaid and Medicare. Moreover, there is no law or
policy that requires Medicare authorization of DME to be requested before seeking
prior authorization from Medicaid. Finally, there is no question that once the
recommended wheelchair has been delivered to Linda, the DME supplier must first
bill Medicare before submitting a claim to Medicaid.
Linda’s MQMB status has no bearing on her right to Medicaid prior
authorization of the requested wheelchair. Thus, the trial court correctly rejected
HHSC’s request to remand the case so it could “change its findings and decision.”
HHSC’s Brief, p.13. There are no new facts to be determined, no new legal
requirements to be applied in this case. Given the express language of the court’s
17
order, HHSC’s assertion that “the trial court failed to consider Puglisi’s dual
eligible status in the context of the suit for judicial review” has no merit. HHSC
Brief, p. 12.
C. Deference is Not Owed to HHSC’s Post-Hoc Interpretation of Agency
Rules.
HHSC next maintains the trial court failed to defer to the agency’s
interpretation of 1 TEX. ADMIN. CODE §§ 354.1039(a) and 354.1039(a)(4)(a) in
reversing its hearing decision. Again, this argument has no merit. Neither of these
rules were identified by Molina as the legal basis for denying Linda’s prior
authorization request. HHSC App. 1. Yet, federal Medicaid regulations require the
Medicaid agency or its designee to identify the “specific regulations that
support…the action” in its notice of adverse action. 42 C.F.R. § 431.210(c).
Similarly, neither HHSC’s hearing officer nor reviewing attorney mentioned these
rules, let alone cited them as the legal basis for sustaining Molina’s prior
authorization denial. HHSC App. 2, 3. HHSC has no credible complaint that the
trial court failed to defer to the agency’s interpretation of rules that were never
identified as the basis for HHSC’s hearing decision.
This Court’s decision in Sw. Pharmacy Solutions, Inc. v. Texas Health &
Human Servs. Comm’n, 408 S.W.3d 549 (Tex. App. 2013), review denied (Nov.
22, 2013) does not support HHSC’s position. The present case is not about
construction of a statute or rule that expressly excludes wheelchair standing
18
features as no such law exists. To the contrary, applicable statute and rules
specifically support Medicaid coverage of this specialized component. It is only
TMHP policy that states otherwise, in conflict with Texas Medicaid law. As this
Court explained, “an agency’s interpretation of a statute it is charged with
enforcing is entitled to ‘serious consideration,’ so long as the construction is
reasonable and does not conflict with the statute’s language…" "We defer to an
agency’s interpretation of its own rules unless it is plainly erroneous or contradicts
the text of the rule or underlying statute.” (citations omitted) Id. at 557-58. See
also Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823, (Tex. 1993) citing
Stanford v. Butler, 181 S.W.2d 269, 273 (Tex.1944).
Here, the agency’s post hoc interpretation of the above-cited rules
contradicts the plain language of TEX. HUM. RES. CODE § 32.0425 and 1 TEX.
ADMIN. CODE § 354.1040, which broadly define custom wheelchairs to include
other complex or specialized components. HHSC’s claim that 1 TEX. ADMIN.
CODE § 354.1039(a) allows the agency to exclude complex or specialized
wheelchair components is wrong and is not entitled to “serious consideration” or
deference by any court.
The same is true about HHSC’s interpretation of 1 TEX. ADMIN. CODE §
354.1039(a)(4)(A), which requires, among other things, that DME be medically
necessary. Molina did not apply either medical necessity standard established in
19
Medicaid rule and policy in this case. AR 326, Response to Interrogatory No. 6.
Nor did HHSC’s hearing officer and reviewing attorney. HHSC App. 2, 3.
Nowhere does HHSC determine whether the recommended power wheelchair with
all prescribed components is required “to correct or ameliorate [Linda’s] disability,
medical condition, or illness, 2013 TMPPM DME Handbook §2.2.2, or will “serve
a specific medical purpose.” 1 TEX. ADMIN. CODE § 354.1039(a)(4)(D). The trial
court’s judgment that HHSC’s hearing decision is arbitrary and capricious is fully
supported by the administrative record in this case.
D. The Trial Court Correctly Determined that HHSC’s Hearing Decision
Fails to Comply with Medicaid Law.
HHSC also defends its hearing decision by claiming it complies with 1 TEX.
ADMIN. CODE §§ 354.1031, .1035, .1039 and .1040 but fails to explain how this is
so. In fact, there is no credible support for this claim. The first rule, 1 TEX.
ADMIN. CODE § 354.1031(b)(12), defines DME and governs whether an item of
medical equipment is “covered” by Texas Medicaid. As explained by CMS,
medical equipment satisfying the state’s DME definition is “to be provided to
individuals (of any age) meeting the State’s medical necessity criteria." Puglisi
App. 1. Yet, neither Molina nor HHSC applied the state's DME definition to the
wheelchair standing feature to determine whether it is covered through the home
health benefit. HHSC App. 1, 2, 3.
20
Next, 1 TEX. ADMIN. CODE § 354.1035 sets out the qualifications for home
health services, only two of which - coverage and medical necessity - were
identified as the basis for Molina’s denial of Linda’s prior authorization request.
HHSC’s argument to the contrary is incorrect.
Finally, both 1 TEX. ADMIN. CODE §§ 354.1039 and .1040 fully support
Medicaid coverage of the requested wheelchair and its components, not HHSC’s
finding of non-coverage. These rules define custom wheelchairs available through
Texas Medicaid to include “medically justified equipment” and “complex or
specialized components.” The application of these rules to the requested
wheelchair standing feature establishes its coverage as DME. HHSC’s decision to
the contrary is arbitrary and capricious. See Rodriguez v. Serv. Lloyds Ins. Co.,
997 S.W.2d 248, 255 (Tex. 1999) (stating an agency’s action will be reversed as
arbitrary and capricious when the agency fails to follow “the clear, unambiguous
language of its own regulation.”)
HHSC’s claim that Linda failed to satisfy the necessary prerequisites for
prior authorization of DME is wholly unsupported by the administrative record.
Moreover, the agency’s suggestion that Linda is not eligible for the requested
wheelchair because “the home health agency must obtain prior authorization”
completely misses the point of this case. From the outset, Linda has challenged
Molina’s denial of prior authorization for the custom wheelchair recommended by
21
her treating medical providers. The trial court correctly found Linda has
established her right to Medicaid prior authorization of this wheelchair.
E. The Trial Court Correctly Determined that HHSC’s Hearing Decision is
Arbitrary, Capricious, Unreasonable and Unsupported by Substantial
Evidence.
1. The Trial Court Properly Addressed the Two Reasons Molina Denied
Linda Puglisi’s Prior Authorization Request.
Molina’s denial of Linda’s prior authorization request for a custom power
wheelchair with integrated standing feature raised two issues. HHSC App. 1. The
first - Medicaid coverage of the standing feature - is a legal question the trial court
correctly resolved by finding that “HHSC’s administrative decision fails to comply
with the controlling federal and state law, and thus, is arbitrary, capricious, and
unreasonable.” The second – Linda’s medical need for the recommended
wheelchair - is a question of fact the trial court resolved based upon the probative
evidence submitted by Linda’s medical providers and Molina’s failure to refute
this evidence. On this issue, the trial court correctly determined that HHSC’s
decision was not supported by substantial evidence. HHSC App. 10, CR 348-349.
On appeal, HHSC claims the trial court failed to decide the “salient question
[ ] whether Puglisi is required to satisfy all or only part of the regulatory
prerequisites necessary to acquire the requested DME.” HHSC’s Brief, p. 17. This
is wrong. The trial court correctly decided the two issues raised by Molina in its
22
denial notice, addressed by Molina at the hearing, and decided in the agency’s
hearing decision.
HHSC’s description of additional “regulatory prerequisites” is also wrong.
Linda was not required to establish, nor was the trial court required to determine,
that the recommended wheelchair is “reimbursable DME.” As explained in
Detgen v. Janek, 945 F. Supp. 2d 746, 758 (N.D. Tex. 2013), “claimants ought not
be required to assure HHSC during the prior authorization process that [federal
reimbursement] will be available for items they request.” HHSC App. 12. This is
particularly true given that CMS directly informed HHSC that “federal
reimbursement is available to the state to the extent that [an] item is determined to
be covered.” Puglisi App. 1. Simply put, Medicaid reimbursement is available for
medical equipment that meets the state’s definition of DME.9
HHSC’s assertion that the trial court failed to decide if there was adequate
documentation of “appropriateness” is equally unpersuasive. Molina did not deny
Linda’s prior authorization request on this basis and HHSC did not address
“appropriateness” in its decision. Clearly, the trial court was not obliged to do so
either.
9
Linda’s undisputed evidence established that integrated standing features have been reimbursed
by Texas Medicaid under the miscellaneous DME code (E1399) and the code for wheelchair
standing features (E2301). See Declaration of Britt Sitzes, AR 289-290, ¶4; Declaration of
Nancy Rice, AR 291-292, ¶¶ 5&6.
23
Finally, HHSC’s claim that the trial court failed to consider whether Linda
“had received prior authorization” once again ignores the fact that Linda's
entitlement to Medicaid prior authorization of the recommended wheelchair was
the central issue before the trial court. It goes without saying that Linda had not
received Medicaid prior authorization before filing this case in the district court.
HHSC’s claim that the trial court erred by “discarding” these additional
“regulatory prerequisites” has no merit.
2. HHSC Failed to Address Linda Puglisi's Medical Need for a Custom
Power Wheelchair with Integrated Standing Feature.
HHSC failed to apply its own medical necessity standards to determine
whether the evidence submitted by Linda’s medical providers established that a
custom power wheelchair with integrated standing feature will correct or
ameliorate her disability or medical condition or will serve a specific medical
purpose for her. 2013 TMPPM DME Handbook, §2.2.2; 1 TEX. ADMIN. CODE
§354.1039(a)(4)(D). To be clear, HHSC made no decision whether the standing
feature of the recommended wheelchair is medically necessary for Linda even
though standing is the essential wheelchair function she requires to address her
numerous medical conditions caused or exacerbated by prolonged sitting day in
and day out. The agency failed to address this critical issue, and instead, limited its
medical necessity determination to the wheelchair base and seat elevator, two parts
of the wheelchair that are required to operate the standing function of the
24
recommended wheelchair. This fundamental error, and others, justified the trial
court's reversal of HHSC’s decision
The administrative record demonstrates that Linda’s well-qualified health
care providers submitted ample evidence of her medical need for the recommended
wheelchair.10 This documentation established that Linda suffers from numerous
medical conditions secondary to quadriplegia and prolonged sitting (12 hours) in a
wheelchair every day. These conditions include osteopenia and an increased risk
for bone density loss, compromised soft tissue integrity, impaired integumentary
sensation and respiratory function, neurogenic bowel, and neurological pain.
Puglisi App. 2, p.50, ¶2. As a result, Linda has a medical need to stand numerous
times throughout the day to address the adverse effects of these serious medical
conditions. According to Linda’s physician:
This increased frequency of standing will maximize the medical
benefits of standing, including but not limited to, providing complete
pressure relief from prolonged sitting, maintaining bone density,
10
In the Medicaid program, treating medical professionals play a central role in determining
their patient's medical needs. As described in the legislative history of the Medicaid Act:
The committee’s bill provides that the physician is to be the key figure in
determining utilization of health services - and provides that it is a physician who
is to decide upon admission to a hospital, order tests, drugs and treatments, and
determine the length of stay. For this reason the bill would require that payment
could be made only if a physician certifies to the medical necessity of the services
furnished.
S.Rep. No. 404, 89th Cong., 1St Sess., reprinted in 1965 U.S.C.C.A.N. 1943. See Weaver v.
Reagan, 886 F. 2d 194, 200 (8th Cir. 1989), (“[t]he 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.)
25
decreasing muscle tone, improving circulation, increasing respiratory
function, and maintaining/improving range of motion to hips, knees,
and ankles. Reducing or eliminating the occurrence of these medical
complications from prolonged sitting will help Linda maintain her
health and well-being and decrease the associated costs of her future
medical care. Puglisi App. 2, p.51, ¶4.
Linda’s physician further made clear that “[w]ith the recommended
wheelchair, Linda will be able to stand more often and for shorter periods, making
each standing opportunity more effective in preventing bone loss and promoting
bone density.” Puglisi App. 2, p.51, ¶3. Her occupational therapist also explained
that the recommended wheelchair will enhance Linda’s “biomechanical alignment
throughout the entire body on a daily basis, which helps to prevent further impact
of spasticity on joints in upright postures.” Puglisi App. 3, p.69, ¶1.
Additionally, Linda’s physician described why a separate stander will not
meet her medical needs:
Unlike a separate stander that would require Linda to have caregiver
assistance each time she uses the device, the recommended wheelchair
will allow Linda to independently stand as often as possible and in
any location, whether at home or in the community. Research
demonstrates that short, frequent standing is more effective in
improving bone density than one long standing episode. With the
recommended wheelchair, Linda will be able to stand more often and
for shorter periods, making each standing opportunity more effective
in preventing bone loss and promoting bone density.
Puglisi App.2, p.51, ¶ 3.
Finally, Linda’s evidence established that the recommended wheelchair
requires several components, including tilt and recline, center mount articulating
26
elevating leg rests, a stand and drive leg rest assembly, and seat elevation, for the
standing feature to function. As explained, the standing system is not operational
without these components, all of which must be accommodated by a Group 4
wheelchair base. Puglisi App.2, p. 51, ¶1; App. 5, p. 293, ¶5. According to Linda’s
physician,
[T]he specific wheelchair recommended for Linda - Permobil
C500VS - requires a Group 4 base, with seat elevation and integrated
standing feature to permit the user to independently stand. As such,
these components cannot be “removed” from the prior authorization
request without substantially changing the nature of the wheelchair.
At the fair hearing, Molina failed to prove the accuracy of the medical
necessity determinations identified in its denial notice.11 Nor did Molina offer any
evidence that its medical necessity decision was made by qualified medical
professionals. While Molina’s denial notice suggests that a physician made this
decision, HHSC App. 1, their evidence established that Linda's wheelchair request
was sent to a third-party entity to determine medical need. HHSC App. 2, Finding
of Fact 5. This third-party reviewer was not a physician, an occupational therapist
or a physical therapist.12 AR 118.
Molina also was clear it did not apply Texas Medicaid’s medical necessity
standards to Linda’s prior authorization request. As they explained:
11
Pursuant to 1 TEX. ADMIN. CODE § 357.9, Molina had the burden to prove by a preponderance
of the evidence that the reasons for denial identified in its notice of adverse action were factually
accurate and legally correct.
12
Texas Medicaid requires that wheelchair evaluations be conducted by a licensed physical or
occupational therapist or physician. 2015 TMPPM §2.2.15.10.
27
Molina utilizes the standards set forth by the National Committee for
Quality Assurance (NCQA). Accordingly, the definition of “Medical
Necessity” as set by NCQA as follows:
Determinations on decisions that are (or which could be considered to
be) covered benefits, including determinations defined by the
organization; hospitalization and emergency services listed in the
Certificate of Coverage or Summary of Benefits and care or service
that could be considered either covered or non-covered depending on
the circumstances.13
AR 326, Response to Interrogatory No. 6.
Molina’s denial contained several erroneous statements. As to the standing
feature, Molina claimed it “is not considered medically necessary because driving
standing up is not a medical necessity.” HHSC App.1. However, Molina offered
no credible evidence to support this statement. In fact, this assertion completely
misconstrues the purpose and function of the wheelchair standing feature. Linda’s
medical professionals did not recommend this feature so Linda could drive her
wheelchair while standing.14 They recommended this feature so that Linda can
independently stand throughout the day to address the many medical conditions
she experiences as a result of prolonged sitting.
As to the seat elevator, Molina claimed “the documentation submitted did
not indicate how the power seat elevator system would promote independence.”
13
Federal Medicaid law prohibits managed care organizations from applying a more restrictive
medical necessity standard than the one established in “State statutes and regulations, the State
Plan, and other State policy and procedures.” 42 C.F.R. § 438.210(a)(4)(i).
14
Linda’s evidence established that “[t]he standing feature of the Permobil C500 can be used
while the wheelchair is stationary or while moving at low speeds.” See Affidavit of Amy
Morgan, PT. Puglisi App. 5, ¶10.
28
HHSC App.1. This statement was based on a TMHP policy governing power seat
elevators required to facilitate independent transfers. TMMPM §2.2.15.15. HHSC
App. 5. However, this policy has no relevance to Linda’s medical need for a
standing wheelchair as the seat elevator was not requested for transferring. It was
requested because the standing feature of the recommended wheelchair will not
operate without it.
Importantly, Molina did not refute the medical evidence submitted by
Linda’s medical providers or dispute their professional opinions that frequent daily
standing is required to address her numerous medical conditions. In fact, Molina
conceded Linda’s medical need to stand by suggesting she obtain a separate
standing device.15 HHSC App. 2, Finding of Fact 10.
Moreover, Molina did not dispute the evidence establishing that Linda
cannot access a separate stander on her own due to the severity of her disability
and that she lacks sufficient personal care providers to assist her with using such
equipment numerous times throughout the day. Puglisi App. 2, p. 50, ¶3; HHSC
App. 2, Finding of Fact 10. Even Molina’s third-party reviewer did not conclude
that a separate stander was sufficient to meet Linda’s needs. Rather, he
acknowledged the opinion of Linda’s medical providers “that the member is unable
15
According to Texas Medicaid policy, separate standers are approved to address medical needs
like those experienced by Linda, e.g. “improve digestion, increase muscle strength, decrease
contractures, increase bone density, and minimize decalcification (this list is not all inclusive).”
TMPPM DME Handbook, §2.2.15.22.1.
29
to reap [the] benefits [of standing] unless they have the stander on their chair…”
AR 118, ¶4.
Like Molina, HHSC failed to apply the agency’s medical necessity standards
established in Texas Medicaid rule and policy. HHSC did not determine whether
the recommended custom power wheelchair with integrated standing feature will
correct or ameliorate the medical conditions documented by Linda’s medical
professionals or will serve a specific medical purpose for her. HHSC did not
address Molina’s assertion that “driving while standing is not a medical necessity”
and ultimately, made no decision whether the standing feature is medically
necessary for Linda. It is this essential feature, however, that was recommended
by Linda’s medical providers to address her numerous medical conditions caused
or exacerbated by prolonged sitting day in and day out.
HHSC also erroneously determined that a seat elevator is not medically
necessary because it “will not facilitate independent transfers to and from the
wheelchair for Appellant.” HHSC’s App. 2. Again, this determination ignores the
critical fact that a seat elevator was included in the prior authorization request
because the recommended wheelchair will not stand without it. Certainly, Molina
made no attempt to disprove Linda’s evidence that the seat elevator ensures “the
anterior stability of the wheelchair by allowing the caster wheels to be in contact
with the ground” when standing. Puglisi App. 5, ¶ 5.
30
Although HHSC’s hearing officer limited his medical necessity
determination to the seat elevation device, HHSC’s reviewing attorney went one
step further. Completely ignoring Linda’s medical need for the standing feature,
he determined that Linda did not qualify for the Group 4 base on the recommended
wheelchair. HHSC App. 3. While acknowledging that “the integrated standing
feature and seat elevation system are not available with the Group 3 custom power
wheelchair, HHSC App. 3, Finding of Fact 7, he ignored the fact that Molina did
not deny prior authorization of the Group 4 base on the basis of medically
necessity. Faced with insufficient medical evidence to support Molina’s denial,
HHSC’s reviewing attorney fashioned a new rationale for the denial, in violation of
Linda’s due process right to timely and adequate notice of all reasons for the
denial, with supporting legal citation, prior to the fair hearing. 42 C.F.R §§
431.210(b-c).
The bottom line is that the administrative record contains no credible
evidence refuting the professional opinions of Linda’s medical providers that a
custom wheelchair with integrated standing feature will address the “numerous
secondary medical conditions Linda faces due to her spinal cord injury” and that “a
separate stander will not provide the same medical benefits for Linda.” Puglisi
Apps. 2, 3, 6.
31
In this appeal, HHSC’s defense of its hearing decision begins with the
erroneous assertion that Linda was required to prove her medical need for a Group
4 wheelchair base. This is incorrect. As explained above, this claim was not part
of Molina’s medical necessity denial, but rather, was the post hoc invention of
HHSC’s reviewing attorney. HHSC App 3. HHSC cannot ignore the fact that
Molina’s evidence wholly failed to refute Linda’s medical need to stand and her
inability to use a separate stander and then concoct a new basis for denial after the
fair hearing. Molina’s denial notice does not cite TMPPM 2.2.14.12.5 as support
for its decision and HHSC’s argument concerning this policy has no bearing on the
outcome of this case. Molina recognized that the Group 4 wheelchair base “was
requested in order to accommodate the Power Stand and Drive function.” HHSC
App. 1. And as Molina’s outside reviewer noted, the requested wheelchair only
comes with a Group 4 base and the difference between a Group 3 and 4 base is not
a question of medical necessity. AR 118.
HHSC’s assertion that Linda was required to demonstrate that a Group 4
wheelchair base is medically necessary, i.e. will correct or ameliorate her
disability, condition, or illness, is nonsensical. The recommended wheelchair
requires many components to be operational and there is no requirement that
medical necessity be demonstrated for each and every one. The undisputed
evidence established that several identified components, as well as the Group 4
32
wheelchair base, are required to operate the standing feature of the wheelchair.
Puglisi App. 5.
HHSC’s defense of its medical necessity decision concerning the seat
elevation system fails for the same reason. It is undisputed that the power seat
elevator, like the Group 4 wheelchair base, is required to operate the standing
feature of the recommended wheelchair. HHSC cannot deny Linda’s medical need
for a custom power wheelchair with integrated standing feature because she lacks
the functional ability to perform “uphill transfers.” The agency’s reliance upon
TMPPM 2.2.14.15 to deny the recommended wheelchair wholly ignores the fact
that Linda has a medical need to stand throughout the day and the recommended
wheelchair is the only item of DME that will meet her medical needs.16
Moreover, HHSC’s argument concerning medical necessity for a seat
elevator creates an impermissible distinction between Medicaid beneficiaries based
on the severity of their disabilities. As such, individuals who have a medical need
to stand and who can perform independent transfers, “particularly uphill transfers,”
can obtain a standing wheelchair, while those with more severe disabilities who
have the same medical need to stand but lack the functional ability to self-transfer,
cannot. Under HHSC’s analysis, individuals with quadriplegia would never qualify
16
HHSC suggests Linda’s documentation “did not demonstrate how the power seat elevator
system would promote independence.” This is inaccurate. Linda’s physician specifically advised
that “the specific wheelchair recommended for Linda - Permobil C500VS - requires a Group 4
base, with seat elevation and integrated standing feature to permit the user to independently
stand.” (emphasis added) Puglisi App. 2, ¶1.
33
for a wheelchair with integrated standing feature due to the severity of their
disabilities and their functional inability to self-transfer. While this distinction
between Medicaid beneficiaries makes no medical sense, it also violates the
Medicaid Act’s comparability requirement and its prohibition against diagnosis-
based decision making.17 HHSC cannot deny eligibility for standing wheelchairs
based upon severity of disability when there is no medical rationale to support this
distinction.
HHSC’s medical necessity arguments concerning the Group 4 power base
and seat elevator are a futile attempt to evade the fact that its hearing decision
failed to address Linda’s medical need for a custom power wheelchair with
integrated standing feature. The trial court correctly determined that HHSC’s
hearing decision is unsupported by substantial evidence.
3. HHSC Failed to Employ the Correct Test for Determining Medicaid
Coverage of DME.
Medical equipment is covered through Medicaid’s home health benefit when
the item fits within the state's DME definition. Puglisi App. 1. HHSC concedes
this is the proper test for DME coverage, HHSC Brief, p.30, but ignores the fact
that both its hearing officer and reviewing attorney failed to apply this test to the
recommended wheelchair standing feature. Instead, they erroneously presumed
17
42 U.S.C. § 1396a(a)(10)(B); 42 C.F.R. § 440.240(b); See Lankford v. Sherman, 451 F.3d 496
(8th Cir. 2006) (comparability requirement violated when state covers items of DME for certain
individuals with disabilities but not for others.)
34
non-coverage based upon TMHP’s policy exclusion of standing features and
sustained Molina’s coverage determination on this basis. HHSC App. 2, 3.
Contrary to HHSC’s claim, Linda has never suggested that Medicaid
coverage of the recommended standing feature should be “assumed.” Instead, she
maintains that HHSC cannot lawfully apply TMHP’s presumption of non-coverage
as it did in this case.18 Here, there is no question the standing feature meets the
state’s DME definitions and its definition of wheeled mobility systems.
HHSC relies upon Detgen v. Janek, 752 F. 3d 627 (5th Circuit 2014), to
defend its failure to correctly determine Medicaid coverage of the recommended
wheelchair component, however, this reliance is misplaced. Detgen upheld the
state’s exclusion of ceiling lifts, finding that a state can choose “by definition” to
exclude ceiling lifts from coverage. Id. at 632. Here, the opposite is true and
necessarily compels a different outcome. The Texas Legislature chose to define
custom wheelchairs to include wheelchairs with complex or specialized
components like the standing feature at issue in this case. TEX. HUM. RES. CODE §
32.0425.
Next, Detgen found the exclusion of ceiling lifts to be “reasonable” because
of the availability of “more cost effective alternatives.” According to the Court, “a
18
HHSC acknowledges that CMS reminded the agency of this specific test for DME coverage,
yet inexplicably claims that TMHP’s exclusion of wheelchair standing features complies with
federal policy. HHSC Brief, p. 30. HHSC makes no attempt to explain the contradiction
between these two statements.
35
categorical exclusion based upon the availability of cost effective alternatives
cannot mean that the state has denied a medically necessary device.” Id. at 632.
Here, however, HHSC’s exclusion of wheelchair standing features means the state
has denied Linda a medically necessary device for which there is no alternative
that will meet her medical needs. It is undisputed that Linda cannot transfer to a
separate stander numerous times each day to correct or ameliorate her many
medical conditions caused by prolonged sitting.
Finally, Detgen is not dispositive in Linda’s case because this decision is
wrong. It is an outlier among dozens of case rejecting states’ efforts to exclude a
wide array of DME items and uniformly holding such DME exclusions to be
unlawful.19 As explained in Lankford v. Sherman, 451 F.3d 496, 511 (8th Cir.
19
See e.g., Alvarez v. Betlach, 572 F. App’x 519 (9th Cir.) cert. denied, 135 S. Ct. 870
(2014)(rejecting Arizona Medicaid’s exclusion of incontinence briefs); Lankford v. Sherman,
451 F.3d 496 (8th Cir. 2006) (rejecting Missouri Medicaid’s restrictions on DME coverage);
Fred C. v. Texas Health & Human Services Comm’n, 988 F.Supp. 1032 (W.D.Tx. 1997),
affirmed per curiam 167 F.3d 537 (5th Cir. 1998) (requiring coverage of augmentative
communication devices as DME and prosthetic devices); Meyers v. Reagen, 776 F.2d 241 (8th
Cir. 1985)(requiring coverage of augmentative communication devices that fit within the scope
of the equipment included in Medicaid’s speech-language pathology service); Davis v. Shah, No.
12-CV-6134 CJS, 2012 WL 1574944, (W.D.N.Y. May 3, 2012) (rejecting exclusion of
orthopedic footwear and compression stocking as DME for certain beneficiaries) Hiltibran v.
Levy 793 F.Supp.2d 1108 (W.D. Mo. 2011)(granting preliminary injunction requiring coverage
of incontinence aids for adults as medical equipment); Jasset v. R.I. Dept. of Hum. Serv., 2006
WL 2169891 at * 5 (R.I. Super. July 31, 2006) (citing Bristol v. R.I. Dept. of Hum. Serv., 1997
WL 839884, at *5 (R.I. Super. Jan. 30, 1997)(prohibiting intent to go to work or school as a
coverage criterion for a wheelchair because neither is related to medical necessity)); Blue v.
Bonta, 99 Cal.App. 4th 980, 121 Cal.Rptr.2d 483 (Cal App. 2002) (requiring coverage of
stairway elevator based on Medi-Cal DME definition); T.L. v. Colorado Dept. of Health Care
Policy & Fin., 42 P.2d 63 (Colo. App. 2002) (prohibiting express exclusion of whirlpool bath
from consideration as DME and without consideration of medical need); Will T. v. Taylor, 465
F.Supp.2d 1267 (N.D. Ga. 2000)(requiring coverage of speech generating devices as DME,
36
2006), “[a] state’s failure to provide Medicaid coverage for non-experimental,
medically necessary services within a covered Medicaid category is both per se
unreasonable and inconsistent with the stated goals of Medicaid.”
Ignoring these many cases, the Detgen court reached a conclusion that does
not square with federal Medicaid case law or policy. This is particularly true
concerning its interpretation of the DeSario Letter. HHSC App. 6. Contrary to the
plain language of this federal guidance, the Court concluded that states are
authorized to maintain a "never approved" list of DME. Id. at 632-633. If this were
correct, the Second Circuit’s decision in DeSario v. Thomas upholding the state's
list of DME exclusions would still be good law. 139 F.3d 80 (2d Cir. 1998). But it
is not good law precisely because CMS clarified that exclusions of medical
equipment meeting the state’s definition of DME violate the Medicaid Act's
prosthetic devices and equipment under the speech-language pathology benefit); Bell v. Agency
for Health Care Admin., 768 So.2d 1203 (FL. App. 2000)(requiring coverage and provision of
insulin pumps when medically necessary); Johnson v. Minn. Dept. of Human Serv., 565 N.W.2d
453, 456 (Minn. App. 1997) (requiring coverage of a stand-up wheelchair to meet recipient’s
specific medical needs); Davis v. Shrader, 687 N.E.2d 370 (Ind. App. 1997) (requiring coverage
of orthopedic shoes; precluding use of irrebuttable presumptions against coverage of specific
types of treatment within covered services); Ohlson v. Weil, 953 P.2d 939 (Colo. App.
1997)(requiring coverage of body brace that meets Medicaid’s DME definition); Brisson v.
Dep’t of Social Welf., 702 A.2d 405 (VT. 1997)(prohibiting exclusion of closed circuit television
because it meets Medicaid’s definition of eyeglasses); Hunter v. Chiles, 944 F.Supp. 914 (S.D.
Fl. 1996)(requiring coverage of speech generating devices as DME); Myers v. State of
Mississippi 3:95 CV 185 LN (Slip Op. S.D. Miss. 1995)(requiring coverage of speech generating
devices as DME); Bowers v. Thompson; No. 89-2-00553-8 Stipulation & Agreement & Consent
Order (Wash. Super. Ct. Thurston County Oct. 15, 1990) (class action consent decree
establishing medical necessity as decision-making standard for durable medical equipment,
prosthetic devices and non-durable medical supplies); Ledet v. Fischer, 638 F. Supp. 1288, 1291
(M.D. La. 1986) (requiring coverage of eyeglasses regardless of diagnosis); Baker v.
Commonwealth of Pa. Dept. of Pub. Welfare, 502 A.2d 318 (Pa. Commw. 1985) (requiring
coverage of wheelchair with 500-pound carrying capacity).
37
reasonable standards requirement and implementing amount, duration and scope
rule. 42 U.S.C. § 1396a(a)(17); 42 C.F.R. § 440.230(b-c). Relying upon this
federal guidance, the Supreme Court vacated the Second Circuit’s decision
upholding Connecticut Medicaid’s list of DME exclusions. Slekis v. Thomas, 525
U.S. 1098 (1999).20
Moreover, HHSC cannot claim to be in compliance with the DeSario
Letter’s requirement that states establish “reasonable and meaningful” procedures
for making individualized determinations of DME coverage, while arguing that
Linda’s access to this process was not warranted. HHSC Brief, p. 26. According to
1 TEX. ADMIN. CODE § 354.1039(a)(4)(D), medical equipment may be covered
when it is medically substantiated that the requested item would “serve a specific
medical purpose on an individual case basis.” (Emphasis added.) Molina failed to
apply this standard to Linda’s wheelchair request.21 HHSC failed to do so, as well.
HHSC cannot evade this fact by claiming that “Puglisi did not request exceptional
circumstances review of her request for an integrated standing feature.” HHSC
Brief. p. 25-26. It was incumbent upon Molina and HHSC to apply the correct
medical necessity standards to Linda's prior authorization request.
20
The Supreme Court Order stated: [P]etition for certiorari granted. Judgment vacated, and case
remanded to the United States Court of Appeals for the Second Circuit for further consideration in
light of the interpretive guidance issued by the Health Care Financing Administration on
September 4, 1998. (emphasis added).
21
When asked in discovery whether an exceptional circumstances review of Linda’s prior
authorization request had been conducted, Molina objected to the question and provided no
response. AR 327, Response to Interrogatories No. 10 and 11.
38
HHSC’s assertion that Linda relies upon a “vacated opinion and judgment”
to support her position that a wheelchair standing feature is covered by Medicaid is
incorrect.22 HHSC Brief, p.28. As explained above, Linda relies on federal
Medicaid policy and dozens of federal and state court decisions spanning more
than 30 years, all of which make clear that states must cover items of medical
equipment that meet their DME definitions. See n.19 supra. And as explained
above, CMS recently reminded HHSC of this Medicaid test for DME coverage.
Puglisi App. 1. There is no excuse for HHSC’s failure to apply this DME coverage
test in Linda’s case.
HHSC devotes a considerable amount of its brief defending its erroneous
coverage determination by attempting to refute an argument Linda has never made.
To be clear, Linda did not file a rule challenge pursuant to TEX. GOV’T CODE §
2001.038. CR 3-31. Nor did she ask the trial court to invalidate Medicaid rules, 1
TEX. ADMIN. CODE §§ 1031, .1035, .1039, and .1040, or “to modify the Medicaid
Home Health Services program.” HHSC Brief, p. 30-31. As explained in Section
D. above, Linda has no complaint with these rules as each supports her entitlement
22
HHSC acknowledges that the three “errors” identified by the Fifth Circuit in Koenning v.
Suehs, 897 F. Supp.2d 528 (S.D. 2012), vacated and dismissed as moot, sub nom. Koenning v.
Janek, 539 Fed. Appx. 353 (5th Cir. 2013) did not relate to the merits of the decision. HHSC
Brief, p. 28. Moreover, the Fifth Circuit found the case was moot because, on remand, Medicaid
had approved standing wheelchairs for two of the plaintiffs and afforded a fair hearing to the
third plaintiff on the issue of medical necessity. As described by the district court, two of the
plaintiffs had significant spinal cord injuries and severe functional limitations. 897 F. Supp. 2d
at 545-536. These functional limitations are much like those experienced by Linda Puglisi, yet
Texas Medicaid eventually authorized standing wheelchairs for all of the Koenning plaintiffs.
39
to Medicaid prior authorization of a custom power wheelchair with integrated
standing feature. Rather, Linda asked the trial court to reverse HHSC’s hearing
decision because the agency failed to properly apply these rules, and the criteria
established therein, to her prior authorization request. HHSC’s protracted
arguments concerning rule challenges under TEX. GOV’T CODE § 2001.038,
including the redundant remedies doctrine and the constitutional separation of
powers requirement, have no bearing on this case and require no response.
HHSC’s Brief, pp. 30-41.
While Linda does not challenge the legality of HHSC’s DME rules, she does
maintain that TMHP’s policy excluding wheelchair standing features from
Medicaid coverage conflicts with these rules, and as such, is an invalid basis for
HHSC’s decision on this issue. Failing to apply the correct test for Medicaid
coverage of the recommended standing feature, HHSC regarded TMHP’s policy
exclusion of wheelchair standing features as binding on its decision and concluded
that “mobile standers, power standing systems on a wheeled mobility device are
not a benefit of Home Health Services.” HHSC App. 2, Conclusion of Law; App.
3, Conclusion of Law 3. The agency ignored the fact that the recommended
standing feature is a specialized wheelchair component and specialized
components for custom wheelchairs are authorized for Medicaid coverage by
40
statute and rule. TEX. HUM. RES. CODE § 32.0425; 1 TEX. ADMIN. CODE §
354.1040.
TMHP’s exclusion of wheelchair standing features meets all of the criteria
of a “rule” identified in the Texas Administrative Procedures Act (APA), but was
not promulgated in compliance with the Act. Pursuant to TEX. GOV’T CODE §
2001.003(6), a “rule” is defined as:
(A) a state agency statement of general applicability that:
(i) implements, interprets, or prescribes law or policy; or
(ii) describes the procedure or practice requirements of a
state agency;
(B) includes the amendment or repeal of a prior rule; and
(C) does not include a statement regarding only the internal
management or organization of a state agency and not affecting
private rights or procedures.
TMHP’s policy clearly meets these criteria. First, this exclusion is a
“statement of general applicability” interpreting law or policy and affecting all
Medicaid beneficiaries in need of this custom wheelchair. See Texas Alcoholic
Beverage Comm’n v. Amusement & Music Operators of Tex., Inc., 997 S.W.2d
651, 658 (Tex. App.—Austin 1999, pet. dism’d w.o.j.) (finding statements in
agency memoranda were rules because they imposed binding instructions affecting
private rights of all similarly situated persons.) As HHSC’s decision demonstrates,
this policy exclusion dictates a specific result - a finding of non-coverage of the
standing feature - without regard to the required test for Medicaid DME coverage.
41
Both HHSC’s hearing officer and reviewing attorney regarded this policy as
binding on their decision concerning Medicaid coverage in this case.23
Next, TMHP’s policy limits the scope of custom wheelchair coverage and
essentially amends Texas law defining both DME and custom wheelchairs. The
plain language of TEX. HUM. RES. CODE § 32.0425 and 1 TEX. ADMIN. CODE §
354.1040 makes clear that Medicaid coverage of custom power wheelchairs
includes wheelchairs with “complex or specialized components” like the one
recommended by Linda’s treating medical providers.
Finally, this policy is not a “statement regarding only the internal
management or organization” of HHSC, but rather, is a bright-line rule the agency
claims is dispositive on the question of Medicaid coverage of wheelchair standing
features. See Combs v. Entertainment Publications, Inc., 292 S.W. 3d 712, 722
(Tex. App.—Austin 2009, no pet.) (holding Comptroller’s policy statement invalid
because it was not properly promulgated pursuant to the APA.)
Neither HHSC nor its contractors can limit the scope of the custom
wheelchair benefit by establishing a policy that conflicts with the express language
of state law and agency rules. Yet, TMHP’s exclusion of wheelchair standing
components does just that. This policy fits squarely within the Texas APA’s
23
Pursuant to 1 TEX. ADMIN. CODE § 357.703(b)(3), HHSC’s attorney was required to “review[ ]
the hearing decision for errors of law and fact . . . .” Like the hearing officer, however, he failed
to apply the test for DME coverage established in federal policy and to determine the legality of
TMHP’s policy exclusion of wheelchair power standing features.
42
definition of a rule, but was not promulgated pursuant to law.24 As such, it is an
invalid basis for the agency’s decision that the requested wheelchair standing
feature is not a covered benefit. See El Paso Hosp. Dist. v. Texas Health and
Human Servs. Comm’n, 247 S.W. 3d 709, 714 (Tex. 2008) (holding HHSC’s
policy establishing a cut-off date for Medicaid hospital claims that did not appear
in the agency’s base-year rule was not properly promulgated under the APA.)
This Court’s recent decision in Texas State Bd. of Pharmacy v. Witcher, 447
S.W.3d 520, 535 (Tex. App. 2014), supports this conclusion. There, the plaintiff
sought review of the Texas Board of Pharmacy’s final administrative decision
suspending her license. Witcher argued that the Board’s reliance on a policy
mandating this penalty was arbitrary and capricious and the result of improper ad-
hoc rulemaking. Agreeing with Witcher, this Court upheld the district court’s
decision finding that the Board’s “policy” was, in fact, an improperly promulgated
“rule” under the APA, and an invalid basis for the imposed penalty.
The same is true here. There is no statute or regulation that supports
HHSC’s decision concerning Medicaid coverage of the requested standing feature.
To the contrary, the requested wheelchair component fits within the applicable
24
The APA requires state agencies to provide notice and the opportunity for public comment so
that affected persons can be heard on proposed rules. See TEX. GOV’T CODE §§ 2001.023–.030.
“The Legislature delegates formal rulemaking power to an agency in the expectation that an
agency will ordinarily adopt rules of general application through that power.” Rodriguez v. Serv.
Lloyds Ins. Co., 997 S.W.2d 248, 255 (Tex. 1999).
43
definitions found in state law and regulation. Yet, HHSC treated TMHP’s policy
exclusion as binding on its decision concerning Medicaid coverage. “Arbitrary
and capricious agency action [ ] may be found when an agency improperly bases
its decision on non-statutory criteria.” Public Utility Commission v. South Plains
Electric Cooperative, Inc., 635 S.W.2d 954, 957 (Tex.App.—Austin 1982, writ
ref'd n.r.e.).
In sum, HHSC failed to apply the longstanding test for Medicaid coverage of
DME, and instead, relied upon an unlawful exclusion that violates the requirements
of both the Texas APA and the reasonable standards requirement of the Medicaid
Act. 42 U.S.C. § 1396a(a)(17). HHSC ignored the scope of the custom wheelchair
benefit established by the Texas legislature and violated the Medicaid Act’s
amount duration and scope rule. 42 C.F.R. § 440.230(b-c). The recommended
wheelchair, with all of its custom components, meets HHSC’s DME definitions
and fits within the custom wheelchair benefit established in state law. HHSC’s
conclusion that the recommended standing feature is not covered through the
Medicaid home health benefit is wrong. CR 348-349. Having found that HHSC’s
decision failed “to comply with controlling applicable federal and state law,” the
trial court correctly reversed the agency’s decision on the issue of Medicaid
coverage.
44
F. HHSC Violated Linda Puglisi's Procedural Due Process Rights.
It is well established that individuals who apply for or receive public
assistance such as Medicaid are entitled to certain due process protections,
including legally sufficient notice and the opportunity for a fair hearing, when they
are denied this assistance by the state. Goldberg v. Kelly, 397 U.S. 254, 90
S.Ct.1011, 25 L.Ed.2d 287 (1970); U.S. CONST. amend. XIV; 42 U.S.C. §
1396a(a)(3); 42 C.F.R. § 431.200 et seq. While the trial court did not address the
due process violations asserted in this case, the hearing record demonstrates that
HHSC failed to enforce Linda’s due process right to legally sufficient notice and
further exacerbated this violation by sustaining the denial of Linda’s prior
authorization on grounds not identified in Molina’s notice of adverse action.
1. Medicaid Beneficiaries Have a Protected Property Interest in Their
Medicaid Benefits.
HHSC’s assertion that Linda has no protected property interest in her
Medicaid benefits is incorrect. As explained in Jonathan C. v. Hawkins, No. CIV
A 9:05-CV-43, 2006 WL 3498494,*12 (E.D. Tex. Dec. 5, 2006):
Courts view welfare entitlement more like “property”, rather than a
“gratuity”, and such benefits are a matter of statutory entitlement for
persons qualified to receive them. Therefore, under the law,
beneficiaries do, in fact, have a constitutionally protected property
interest in Medicaid benefits. (Citations omitted)
See also Hamby v. Neel, 368 F.3d. 549, 559 (6th Cir. 2004); Thompson v. Roob,
2006 WL 2990426, at *5-6 (S.D. Ind. Oct. 19, 2006); Ladd v. Thomas, 962 F.
45
Supp 284, 289 (D. Conn. 1997); Ability Center of Toledo v. Lumpkin, 808
F.Supp.2d.1003 (N.D. Ohio 2011); Fishman v. Daines, 743 F.Supp.2d. 127,146
(E.D. N.Y 2010).
HHSC’s next assertion that Linda “has never acquired the benefits of this
Medicaid program” is also incorrect. Unlike the Medicaid applicants in Johnson v.
Guhl, 91 F.Supp. 2d 754 (D. N.J. 2000), Linda has received Medicaid benefits
since shortly after her injury in 2011. Moreover, Medicaid beneficiaries denied
DME requested through the state’s prior authorization procedures are entitled to
due process. See Ladd v. Thomas, 962 F. Supp. 284 (D. Conn. 1997) (holding
Hamby v. Neel, 368 F.3d 549, 559 (6th Cir. 2004), (holding plaintiffs had a
property interest in the [Medicaid] coverage for which they hope to qualify.)
HHSC’s own rule also establishes this right. 1 TEX. ADMIN. CODE §
357.3(b)(1)(E).
HHSC’s reliance on case law involving the denial of professional licenses,
Neuwrith v. Louisiana State Bd. of Dentistry, 845 F. 2d 553 (5th Cir. 1988),
termination from employment, Woody v. Dallas, 809 F. Supp. 466 (N.D. Tex.
1992), or the distribution of insurance payments, Liberty Mut. Ins. Co. v. Texas
Dep't of Ins., 187 S.W. 3d 808 (Tex. App. Austin 2006, pet denied) is misplaced
and has no bearing on Linda’s due process rights as a Medicaid beneficiary.
46
2. Molina's Denial Notice does not Comport with Due Process and
HHSC Failed to Address this Issue.
HHSC and its contracted entities are required to afford due process to
Medicaid beneficiaries when their “claim for medical assistance under the plan is
denied or not acted upon with reasonable promptness.” 42. U.S.C. § 1396a(a)(3);
42 C.F.R. § 431.200 et seq.; 42 C.F.R. § 438.404; 1 TEX. ADMIN. CODE §
357.3(b)(1)(E). Included within these due process rights is the right to legally
sufficient notice that contains, among other things, “the reasons for the intended
action” and the “specific regulations that support…the action.” 42 C.F.R §§
431.210(b) and (c). The reason for this required content is clear. As explained by
the court in Gray Panthers v. Schweiker, 652 F. 2d 146, 158 (D.C. Cir. 1980):
It is universally agreed that adequate notice lies at the heart of due
process. Unless a person is adequately informed of the reasons for
denial of a legal interest, a hearing serves no purpose and resembles
more of a scene from Kafka than a constitutional process. Without
notice of the specific reasons for denial, a claimant is reduced to
guessing what evidence can or should be submitted in response and is
driven to responding to every possible argument against denial at the
risk of missing the critical one altogether.
Here, Molina’s denial notice failed to provide the required specificity
concerning the reasons it determined the recommended wheelchair was not
covered by Medicaid or was not medically necessary for Linda. This notice also
failed to include citations to the statutes and rules that support the cursory
explanation it did provide. In Thompson v. Roob, 2006 WL 2990426 (S.D. Ind.
47
Oct. 19, 2006), the court held that the notices issued by the Indiana Medicaid
program “violated Plaintiffs’ due process rights as a matter of law” because “[i]n
the public benefit context, procedural due process requires “ascertainable
eligibility standards” to be articulated and implemented, in order to guarantee
objectivity and provide adequate notice.” Id. at *7. Molina’s notice included no
ascertainable standards upon which its perfunctory denial was based and Linda’s
repeated request for these standards went ignored. As such, Molina’s notice of
adverse action violated Linda’s due process right to legally sufficient notice.
HHSC seeks to excuse Molina’s due process violation by pointing out that
the notice stated that Linda had the right to “obtain a copy of the guidelines used
by MHT to decide the outcome.” HHSC Brief, p. 46. Notably, the agency
overlooks the fact that Molina failed to provide the requested policies despite
repeated requests by Linda’s counsel. AR 267, 268, 276. Like Molina, HHSC also
failed to respond to Linda’s repeated requests to the hearing officer concerning
Molina’s legally insufficient notice. AR 283, 284, 285. HHSC has established
specific procedures for its hearing officers to follow when a Medicaid beneficiary
questions the legal sufficiency of a Medicaid denial notice, but HHSC ignored
these procedures in this case. Puglisi App. 8.
3. HHSC’s Administrative Review Does Not Comport with State Law
and Further Compounded the Due Process Violations in this Case.
48
The final decision issued by HHSC’s reviewing attorney further
compounded the due process violations in this case. HHSC does not dispute this
point, but merely recites several provisions of state law and agency rules governing
the administrative review process. These provisions are irrelevant here as there is
no dispute that Linda filed a timely request for administrative review or that
HHSC’s reviewing attorney issued a written decision representing the final
decision of the agency. What is relevant is the action by HHSC’s attorney to go
beyond the reasons for denial identified in Molina’s notice of adverse action to
shore up support for the hearing officer’s decision in this case. HHSC App. 3,
Finding of Fact 11. Due process requires timely and adequate notice of all reasons
for the denial, with supporting legal citation, prior to the fair hearing. 42 C.F.R §
431.210(b-c). HHSC’s final decision violated this important protection for Linda
Puglisi.
PRAYER
Appellee, Linda Puglisi, respectfully requests this Court to affirm the trial
court’s decision in her favor. Appellee further requests all other relief to which she
may be entitled.
49
Respectfully Submitted,
/s/ Maureen O’Connell
MAUREEN O’CONNELL
Texas Bar No. 00795949
SOUTHERN DISABILITY LAW CENTER
1307 Payne Avenue
Austin, Texas 78757
(512) 458-4800 (Phone)
(512) 458-5850 (Fax)
moconnell458@gmail.com
Attorney for Appellee
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Tex. R. App.
P. 9.4(i)(2)(B) because it contains 12,058 words, excluding the parts of the brief
exempted by Tex. R. App. P. 9.4(i)(1).
2. This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word in 14 point Times New Roman.
/s/ Maureen O’Connell
MAUREEN O’CONNELL
50
CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of July, 2015, a true and correct copy of
the foregoing document was electronically filed, and that a true and correct copy of
the foregoing document was served by electronic mail on the same date to:
Eugene Clayborn
Assistant Attorney General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711
/s/ Maureen O’Connell
MAUREEN O’CONNELL
51
No. 03-15-00226-CV
_________________________________
IN THE
THIRD COURT OF APPEALS
AUSTIN, TEXAS
_________________________________
TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Appellant,
v.
LINDA PUGLISI,
Appellee.
_________________________________
On Appeal From
The 53rd Judicial District Court of Travis County, Texas
Trial Court Case No. D-1-GN-14-000381
The Honorable Judge Gisela D. Trianna
_________________________________
APPELLEE’S APPENDIX
_________________________________
MAUREEN O’CONNELL
Texas Bar No. 00795949
SOUTHERN DISABILITY LAW CENTER
1307 Payne Avenue
Austin, Texas 78757
T: 512.458.5800
F: 512.458.5850
moconnell458@gmail.com
Attorney for Appellee
APPENDIX INDEX
CMS Letter to Texas Medicaid, May 21, 2013 ................................................. Tab 1
Letter of Medical Necessity, Dr. Lisa Wenzel................................................... Tab 2
TIRR Wheelchair Evaluation ............................................................................. Tab 3
RESNA Position on the Application of Wheelchair Standing
Devices, Assistive Technology, 21:161-168, 2009 ............................................ Tab 4
Affidavit of Amy Morgan, PT, ATP .................................................................. Tab 5
Letter of Medical Necessity, Dr. Lisa Wenzel................................................... Tab 6
In the Matter of Mary A., New York Dept. of Social Services.......................... Tab 7
HHSC Fair and Fraud Hearings Handbook (Excerpt) ....................................... Tab 8
TAB 1
DEPARTMENT OF HEALTH & HUMAN SERVICES
Centers for Medicare & 1-fedicaid Services
7500 Security Boulevard, MailStop S2-14-26
Baltimore, Maryland 21244-1850
Center for Medicaid and CHIP Services
Disabled and Elderly Health Programs Group (DEHPG)
May 21, 2013
Kay Ghahremani
State Medicaid Director
Texas Health and Human Services Commission
Brown-Heatly Building
4900 N. Lamar Blvd.
Austin, TX 78751-2316
Dear Ms. Ghahremani:
The Centers for Medicare & Medicaid Services (CMS) is writing to clarify our policy on the
medical supplies, equipment and appliances (often referred to as Durable Medical Equipment, or
DME) that will receive Federal reimbursement.
DME is a component of the home health benefit, which is a mandatory service within the
Medicaid program. As such, items ofDME meeting the state's definition of such coverage is to
be provided to individuals (of any age) meeting the State's medical necessity criteria. In
addition, CMS issued a letter to State Medicaid Directors on September 4, 1998 (see attached)
interpreting state re&ponsibilities in providing medical equipment in response to the DeSario
~ court decision. This guidance requires states to have a reasonable process for beneficiaries to
request items ofDME not on a pre-approved list, and the ability for a beneficiary to request a fair
hearing to appeal negative determinations.
We understand that the State of Texas is not approving requests for ceiling lifts provided to adult
Medicaid beneficiaries, due to prior CMS guidance indicating that Federal reimbursement is not
available. We are clarifying here, in a way that supersedes prior CMS guidance on this topic,
that coverage of ceiling lifts under the medical equipment benefit is an issue that states must
determine consistent with the process described in the September 4, 1998 guidance, and that
federal reimbursement is available to the state to the extent that the item is determined to be
covered. This means that medically necessary ceiling lifts will be reimbursed by CMS as part of
the Texas home health benefit if these lifts meet the state's definition of DME.
In addition, we would like to make sure you're aware of a Notice of Proposed Rulemaking
issued July 12, 2011. That regulation proposed changes to the home health benefit to not only
codify face-to-face encounters required at section 6407 of the Affordable Care Act, but to also
propose definitions of a medical supply, equipment and appliance. Also included was a proposal
that any item meeting any of those definitions. must be covered under the state plan, and may not
be reserved for coverage under a 1915 (c) home and community based services waiver. We are
working now to issue a final regulation. We encourage you to familiarize yourself with the
provisions of that proposed rule.
l
'127 I P-18
000303
~
J
Page 2 - Ms. Kay Gha.hremani
We hope this alleviates any confusion. Don't hesitate to contact me with any questions.
Sincerely,
Isl
Melissa Harris
Director
Division of Benefits and Coverage
Cc: Billy Bob Farrell, Dallas Regional Office
·--------... ···------·----·-·----·-------·--------
P-18
000304
TAB 2
J Page 4of 68 received on 5110120131:33:08 PM IPacme oa~lght TlmeJ ~004/1!8
·.~1'
·-·- Piuientl · · --·-u11c1a Pugl~I .. ·-· -····---.. ---· .. --- ···-
- - .------
.(la~ Qf· Bli(b: ~·!!liililllll
Dlfi3hosbt'. Nouroi1bron1etosls 'l'ypo.h1 Quadrlplogla·Ol·C~ lnoo111plete .
Sub]eat: Jl~spo111e to Molln~J;l~e.lthQa:e's p~i!dlii1l:/10tl9•. fi!t9.l/4tom·wh'1"lohalr w.m;
pqwer stannlbll andc seat olevatton l'ohture1. ·
Ta whom if mil)' ooncotn:
Lind" Pust isl is twenty-siK years- old and has an urgent need for th~ ~ustorrr powe,·wh"l'lohair
that wauec.enl!y.;eoorilmended :fur hO!!. Wldlo Molina Healtho-la requcsting·t~a! w<>·exclude
th• "sei!t.elevc.tor" and "•tan.dins featuto and alf acoompanylnQ con;pononts" for Ms. Puglisi; wo
do not •jlte•with iliese changes, ,i.s expfailJ"d b•low, 11 Is our pr.~feM.lonal epfolon: 1b3t tho .
reoonmianded Wheolqhalr wtrh lnlegretod·st1µ1dlti3 f?IUre-.l11 m~loally n=sary fot thfa patlent
Oil it wm tlllow h¢r to Independently. stand multl~l•·llmet eat1h day·whllo at home or fn.ttte
oonihlunfty, Tll!s uooess Jo fleqµen{ atand.IJli;'fa na'l11'splity to-e9trec\ lit. Msfcoponlo and ls Ill rlsk {or oontinJ.lod
Jo" ot'\>onO'dens(ty. Llrida ls ah!o at inoroad6d ri•k tbr pressure so~•• due to oompromisod.s~ft
tlswe'lntegrl1¥, Linda also ~xportemm Imp•~ mplratory tunolfon, nourogonto bowel,
neuralogl~iil paln,.md Impaired lntp,11.umenlar;' a¢nslillon. Reconlly, Lind!!. w~• ajso di•~nosed
with NaU!oilbl'o'n\atosls '.l'ype 11 (NF2).
Due \o 1!>~ n~tura \!lid severity of Illnda" 1~iuitl .oorlifr!J~ry, sM.Js.,depoJt.de.rir.on :a !!OWer.
l'ltleclohaf\"for fn®pendeni mobllll)'• Tn·additfott; Lhtda0 requlm caregiver mlstanco kl itansfer
!~ and"Qut cif her bod.1µ1d ytheelohaii;. She ~!so utl!fzen L~fl Mobile Ann Support ti>.lnorelj!lo
fiet l'unctfiinala&llltles and to partlolpat<> In actlvlt!ef of·dally. llvlna, With ild"!JldSl1'1t the apo~lflb wl1\lGl~halr
roeoll)tn~nc1~d tbr.Lfod1t- tllo•l?equo'btl CJ~O,(} VS.-:roquh'i;s a Qroup-.4 busii-. ..WJfl1.scnB~fovntien
and·int~grated standi11g. fontu~ \0 ·p~Wmlt lhe.vaer to;indop&1de11tly .a rand. AHuoh,.tl\ese
cotnP,on-antB'. Qannot be "'lel'Y fat' Lindu, we write lo ~rovld'e:.fudher
jusHffoijtJon for·the re<(U0,9ted wheeJohnlr:
Medlon! JuMjf!~afjQn for llcco11im·C1lcl•d Custom Power WhqelQbbll'
A-s pr.evla~sly ttcttatl. slnndlng is critib!ll for 'undo to p>'OVent 11.trthar lass of bqn·e density imd rfol1
of bon• l\·actures: d.em-oaso.musol« tone 1u1d spn•Hoilyi nia!nialn splMI 1tllgnme11t .und
delay/avoict HRele1al defonn!Ues; exlend hor uppor lrunk ·10 roouo.o p1·ess1ml oi1 lntomnl ol'gans;
maintoi111·a11ge ofinot!urt: h1cteasd-ff.o~lblllty.itnd pt«>v.~rit.~~tt~·uotut'll~ ~-~th~ lll)l1,knee, and
unlcle')oll\mi prev.Qntpr~ssur,j. sotear Jmp1·ove"tltlim1'~· h'ilot d1·11111nge ~nd renal :l.'lu:iotlon: acldross
i;us!rolt1tesmr11~ 1-asp.fi:nttiry, '!\l\tf~pwel:J\Jn~tlo(l) •nd innf!lt~ltt 91.irdt~vaao(1l~r h~Jtlr, ;fulitmna
ArvR1 ~t nl., R/16WA. Po:1.l(lrm, 1m tM tf.pplt~(Jlfpn ofJT1hqd/oft<1fr:"/f1amltng J;)ovlco~, ·21 AsHisUve
·reohrioloi;y, 1111-168 ~2009)
Accoriling to llBSNA, ib<;-reccmmendcd f!•cq11e11ey·6f standing foraohl!:\!fn!J thes~ m'edlca!
bon¢fris la""a$ ~t\:cn.ua the t1~er·on11.!"0ler(lle aoo.l'!hftably; ... ," U.rilikO'a aepurote,atnndei· li1nr
wouleill llllprovJng boncden!if)' 11\ni1 one lonfrstandfng episode, ·wltl1 th~ .
l"oconlmended wheel.obair, Linda wifl be able to. ~tnnd moi·eoften and for ~l1ortor p6riod$,'making
enoti $llliltllttg op1Jortun!ty mere effective hi preventing bon1> loss and Pl'Qll\oliug ~une clenslt~.
Acldillonally, th~ reoommended wheelolmlr Y?lll pl'ovfole Lindi! with xopanto\{ oppo1·tu11f(les tor
"dynamic Jondlng" of the bones lt\.hcr lowot o•tromJlie.9, For example, dymunio lonrllng occiu·s
tlul'lng tho fUahsllfon fibll! Sitting to atoniUhg_. lflln htdiv.ti:lual staods fn a sepo1•ale;s'tander fon one ·
ham·, dynmnro· 1ondi11g ooout~.onl,yonoo. f!etn h1dlvid\ld( gMU :froin s!LClng· 1.6" sturoclJ11g111.\lnof,(lua
llmes·evory·doy, more dy.1ia01!0.Jcntllng 000U1:s1 with grertt bo11etlno the user'ir.qvernlJ bone
henlth. · · · · ··--~-·-···-- ·
Jt ill imponnnt to e11lpl\asfa:e that.Llild.n pm'l16ipat~d llL n fl'lal of the Pel'll1obll t10wer star1der wlih
sucees~iu stondihg 011d d'rivil11> tire' chair. WiU1 rtw·recommouded wheelchair; LitJda·w.HI be 11ble
lu lm;!op~ndon!IY attmq 1>mltlJ1l~ limes enoh dny, withoutdsk Qf t1:nn•fer inj1try; Md 1·ouardlosa of
her loonti6fi at h61he oi: in \fiecc11m1t'1llt}'. This Increased frequency of stoodi~g .will nrnxlmfze
the r11ediC11I (l¢~clflls 6"f stancllng, including l1utno1 limlt~ct to, providihg com'(llete firossui-o 1<1t1er
from prolonged si tl!ng; 111nh1t).(7' page13.) 1.. ..
•t~!ftot'·oita:~~\{·?i!f.;~!~~~~~'(~ili~:
····'!ti!; q .~" ·-!:J'.( ·'·t-·~~;~~J.;~;. • ~, '·'~~-
t ....... _,.
;~ ··~!. ~11-?f~-J~t>?l~:.s ·.:~~ ·-~r w:f·'i1·1 ·~·,,, . ~!-"''¥ :. ~:,~1--~:n1:\,:·~·•.•·.~.;
, ' .•!!' . i\ • . , llo'f
A outrvnt.-wh~ell!halrl'-CO<>.tor/•!roll~r se~Ung •••~••m•nt,i:<>OPUd\•d by- b p~yalelen or • phys[C.f dr
aoou~aUonal tti~raplet iml•t·t>e com~iet•d for puroh••• of or meJor modllldall¢n• (ln,luolng MW sbatlh~
systeli'l&) lb awheeled moblllty ~al~m. A.Quallfled·Reh.abllltatlorr Proiesslonal (QRP) mvstbo ptessnt
end partlelpate In Ille seating ••••,.m•~l (ar •II Whe~l•d moblllly .sysl•fl\S and major mad1H~tf9no.
P,le~Qd :attaoh:rnanur•oluf!lr·lororpi~l!Qn, do~orlptl•nJ.<0nd an itarnlOl!slti.
/
tle~fi~•.:ll•nf~ mual>I~ JqM! Llnqa ·hl!)l lne~••!!Jld tog~ln RUl:,enq LJ!':,wh1ch flU.014•Jea a~d o~...
•pooma at.tl!]t,..,. ·$Ji~•llo~ Is pre¢11l'livl>Ull~<1UI !ha·i(Uf: "1111-~L6'"1 a~ter1orehd1'••l"W
mUSCllla!qre-ol the olbow, wtl>t, fingers and.litp; ..,)'lolf &HhbU!derlnJernal ro~ kl\~~·•xten~~rs1
•rr! pl•ntar ri•xo11; M tnor,e,.. lb i)iuaele•llfn~ i..pi:01•n\ ID· L111R add40)or11> knee.f!alow ext$ntiorv, and for wHst
········ ··--:-·
& :tlnger ffaxldn/e~lanslori, · ·
Detcrlbe-passfYa·mGvamenta.e'ffeoteO.by. mueClGlone; Passlv.a ·rnFJ\tements-aff!!!C:ted b.~ muacJe tQnQ
lncfude.bllatefBI shoulder. fle>rlan and extension, shou!de'r_ abdUCtlon 1 external rotallel'\; and bllal&ra{ hip'
abducHon and enlUa-doraiffaxlan.
.. - ----------~-~---------~·-------- ·--···-···----
44
·--~··--·-----·--------------------------····-·---------~-------·--
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--·---·-. - -···-- - ·-· ·-·----- --·· -- ---·-- - ...
. .. __ ___ Daeollbe. reflexes prase~E._]"hrOyQh_q~_e!J !!'.!~.PY ~~!_~J1S, Linda has not demonatratad any proteclJl/e
- - - -1or poetureJ fefleX.ee, ---:-·----- --- ·------- · --
'
;rrvJJk 9.QPl(ol: 0Good 0 F.alr· 0 Npn~:
\.JpP,at exlhltnltles: Qn:mqsF/Je
m~.d~ f9r.tt.b•.ak f!l•~:Pl'QV(dea,1S_~blo•l(nff:~"l!$.lf(~ntn~u((.~fiq{(gn,m~flt ae t~~"!l>l~o ~ pl'W~nt
rotld\a11•aP culY'!furrF ~~~ani!~IY,'·lll l(f!Sf~(Qn/ng. 'J,ind,R11t'Nfgnlfll)anl/y.i!~cro~sed htp ,!lliiM Jo•r wotg/Jt·tl!rou h Bt:&,
tl 0 sorlb~ ·otherphyafo~I 11mllatlons or ooocartt• (le., 1aapltotocy}: 'P.stl~n.t has ·!nipalred'integumsnlliry
sensatlqn 1 respJra[ocrfUnoUon 1 neur.ogenlo bowel, ~t\d l'\Sbrclogloel,paln. .
Oa~orfba any recant· or axpeolod changes In medlcaVph\'•ical/tupcllonal sia\us: Than~ ate no ra 0eni or
0xpaoled changes Jn mBdloa1 etabJs. Pallenf has regained some muscle fun·cuan slnae the onset or her
fnJury; the1efo1e her funottonal •tatu• may otranga·over.ume, ·
If sur9sfy. f;.en)lolpaled, plea.as Indicate lhe·prodedure and·&xpeetad dater .NO·SU(\i10ry_la·anUci~ ad at
!hie tln>e. ·
~ --~ ---~--
45
------ ------------·-------~----~-----·--·---:--------·---- -·--·--··-·· -·
000064
' ) '
@016/QOS
Page 16 of 68 received on 5120/20131:33:06 PM !?acme Oa~lghl Time)
®·NOnambu(alory-. -· __ --· _Q_WJ)h.a~slatonqOot•B
0 e~¢e~t~d In Mure WJlhl~ years
.1 .1 l =~-~~1~~~',,,.""'l'JU.""'"""""""""'""""""""'""""'-""""""""""""''""".c;:.;_~~"""~
Wheel<>bair Ambulatton!
I• eUent t<\talJY·de~El)JJlenl upon whaelc~alr? t8I Y•s O No
If no, pie.as& e).erfolJ)'led'Wh fo ln wheelohaJr.,Groomfng ahi:f hr,!jlen& a.otlvi~\!.~. ll~ ~re4~1~d.
~erba/ a.nd.techno11191cal O'omh1urtl0'1tlon, voldlhg, andihetapeuttc aetlvtt •• lncludl~g ROM,
strengt~enlng, an~ weJg~tboarlng ac!Mtles are.all completed by Linde in the wheelo~alr.
ls-lhe homo' aoc;essitif~-le (he Wheelchalr'I !8l Yes 0 No
fire ramP• ovE!lli!blo Jn lho home sett!ngJ1· Uill:Y•• 0 No
CleSGrlbe (ha cllont's·edUcatidt1aVVooef/onal satt/n~: L/n~a I~ unemployed ~acoMaty to her olsabillty.
I• Iha schO"o/ aoceaolbla lo the·wheeloholr? O Yea !81 No
-~..c--------·----------------·---~--4.6_________________,___
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.
- ,Ar~.tb•lo. ramp~·~v~n~~I• In.Itta Mtto.ol •~ltl.na2 GJ Y.es ~ N9
lf·cli•nt·l• l~:~clibal;'has a acMol ln~raplsrbaanJnyoNad·ln thd,as••••inen\? .D Yes 181 No· - .. ·~
·•
N•ma ofacnoQf.theranlsU NIA
N•m~ of $choo[: NIA
b;St:iib."Wh_er_e_'~lh~e-w~h-ee~lb~h-•71r-w~ll~l.b-a-a7fu-re~d7(~h-om-e-.-.n-d~~-r-s~oh-oo...,_.l)r~h-o-m-e---·----·-,
1--,---.,.------...,---,.--:-~;;-.,...,,-__,, _ _,~=-------· .. -·• ..,,_, __ _
D•••!ibe·w~y current soatlng system ls.not mooUng ·oll•nV'~ needs: -NIA
Descrlbe lhe medical nacasslly for moblltty. bas~ and seeURg, system-req~astad:• . --- -
Determined vta,extenolve tnals1 the sealing aystom ollnlcelly rneommendad fbr Lfn~a .lnaludos:
Pef!1iO.blle C6QQ VS· Stend01r pbwor mobility base, requ~•d to enable f\lnctlons of.the Whe•lohair ••a
whole arid lhu$:·anow ~Inda to mano~~•r Within her homo Independently In a as(!; end reliable manner.
i'i"t.$ealWldlh, ~:!~.~~•l depth •.bt~rdlng lo ciln!di>l maa~urartiehl•Uated below..
~-n•t remoia.joyatiok, color djsplay with mono·Jao~s (mounted on the left, as Lind'~ has ae!lv~ "•e·af
these fingers.using.her DIP joints) lo allow Linda to qpereta·lhe wheelohalr-ln ell dltootlons·~nd a~gage
the power1 Ult1 reol!ne, and stantlln~ fe:ittvres.
R"1el rettaotabla )oyetlck mount aUMJiea·U1e)oysfti:!(IO ttta vlheeloh~it.foi o~erallon.
. .
~partl!El~Jir.contrOI '!11th h~me.$S to lo opereto the fqgg)e swllehee !Or pdweffuncttone.
611~/hg oackresJ kit..with lil/~ln9 ba'OJStarlQrly. T~a'l'fl(M pUt(lr. •rc.tre'm!Ues ln·&O,!Jtrel
allgoment In 111mn~ and sta"rldlnl)', .
AdNstabfo che~t bar (10' wide): oaoe'ssary for u•o wllh s!andlng fl)atwo lo vre~ont Ratient from fiilllng
forward.
BodypofntMonoflex CMsl Strap (medium):' recommended sa a safety Faatura during standing, and
d\Jrt~g
transpor,tallon when riding In tM Whoelchelr.
i;ta~lth oomrort:Plus helli;Jrast (10' Wido) with ramo.vable hardware to maintain oer1loal.aflgnment end
pi'evant-.lrtJUry In t!lr during pressure rellera.
Pswer •eat elevator: required when vslng standing. featu,,., Power seat ala.valor will alad dect~~se
oaraglvor "uroen when assisting the patient with late rid l1a~slera fly adj usu nu tHa' •••I h~illlil ta mak~ tho
transfor.cio.'!mhll!. TJ\a aeat.aleva!Qr·aflows for Linda to .accoea Items In upper oablhals ~nd. ,9auntertop$ .·.
lhafshe would otherwise ba·.unable to reaoh. l='atlent-ma:y also use e:eat elavator·lo lmptavs .. I
lndependenoa with ·and fUnot/opal reach aotlvltles es her neuro1ogloal funotJon continues to Improve. l
Sl~ndln!l fB!ltute: THi>.atand1ng·teature.allOW• tlmfa to ~aarwelghi through s~i::a.as b.eca'asa1¥·tndlng feetvr•'~l~o'!llOWs hel MPl3••·16'.ltble hardw•t•
P.OW~t·.aat eleV~W .
1'S"Wl4~. 16' tall Maitl~ .el1t.e1d!f~~ ·~~pk(e'at
17" x.ze" lnvscar~ ·stablttta Oll•~fon
Qesoribo·Jha groWlji pbtontlal or ~qUlil\tla~traqu~at~d In hUtTiber pf yeero: LJ~da has'l(Jet ~P.PfOXlmall>ly q '.
p1111)' an1tl/l~ a ~owerwhaolehialr s~lely end WIUiY~epetlt to
olh~rs?
181 Y.e 0 No
I.• tho oaregfve1 capable 'Of caring !Qr a power whe'elcheilr.and un'dats)andlnl) haw It operates?•
i8l Yes 0No ·
Hew w1111ra1111ng·fpr lh•'Jl<\ll!ers11u1p1Mnt be>'!il~n1~11ahGd? :Untje·h·a~ t>'eWt trl2illn~.aj)UW.E!( wnoalGhalr
With ~ln111ar dh'tfen~Jon·~n\1 ~ohtrol unlt~~urlnS M~ ~dmieOlon el 1Ne liO•l>itill. She ttas tlom6Mtiated·lh•
ability lo safely oper.ate the eoaUng eystom In et
1: 31..B' 1'op Of Mad !tr bott fro in
ATP~ 4 Marl:( S~hmia;ljr, flhO, '
the lltcta~. Npporting tlii> U$<·ofwh•oldµ!r •tllntfor<;
OTR/L~ ATP/"Btad bldanno,
MO/Mike !iobloec·,:omi, · KE!"i:WORQS PO'lie.t features, reltribllltatloti, stlindlng, wheeh:halr
ABDA. ATP,' am! ll>"ron
Rosen, P.i, MPT, ATP*
1nsPort LLrZ, Ket'lnewl.;k.
Washington•
21ndepilrldgnt.Consultant, INTRODUCTION
Mal}'lruid
!lch!ldreti't Hospital of oenvet, The·purposc·oHhls :uticlo Ir fo fh•r~ lypfcal ciinka! nppllc11tioft1 ns W•ll ii>
Denver, C-o!or~do provide rJ.vide.nce from d\q li~ro.turis supportlng th~ appUca'tiqq bfwb·~ctchalt
4Mount Sinai Mospltal, .standing P,c:yiCes to. !lSSls~ ptns:P.tlonc.rt in.di:=cl.rlon mnlclng rind justJ.Eioa1ion.. [t _
New York, New York is not i11tended to replae vlt»I etg•n cap•olty
' Reduce the oocnlrretni;.i:: ofuri11iu:y tmct in.fcctionf (UTis)
Atidtcn «itrot"andence to J.ofi;sf\nn " Mnintl'lJn bone mlnei:o.1 dendly
AN4, MS, R.O!kOIJI~ 11.G, 1/1, l!Othip~ft
o Improve cfrculatlon
1f22. Hun~;:r)',
~-mall: J11rv1'9Ulttit.t:om "' Tm.prove po.!i;iva r~ngc of tnotion
101
JI
···---·-··--··---·--·--------·-·--------.§1-
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.JJ
\ll032/0oS
Page 32 of 68 recelled on 1120/20131:33:06 PM ~aclftc Oa~lghl Time!
·····-··-- ---- ... ,,. Reduc~·
·· ··--· ···--·---;.·Red~iti~•
-----•·-81thanco psycliologloal we·t1-bcing- ···· ·· ·· - ··
such nt wh~n .•hoppinr for grocod/,Cllob1il)•likJo
peifeQn at.anding from one1s-wheolohttir-1lho 'ftlln.ii'rli?.¢s _
·-
.
·------
tra.ntfer.s.- thiircby .enhancing: n~.f,fty, cons1qVfn-g.ener-gy 1
Sp·eetnl ptt!cnutioO.$ nHt.St. be exie:rcl$ad when uti)lz4ii; ~nd reduciri~ dcpen.d4:rtcy. Ro·s-eJu:ch suggi:ists. ~hi\t \n
S:tandcts is1 order. to :i.vold the risk of. infudeo such. as ·l\i:fditlon to·¢:: nnd back• 19.9~). Mony pcop)c in whcolohal" h•v• Hmit•tlld with the wheel·
•ltting; througft gradu•I anglo cn~ngos fr6111 • faylnB ,hail' b~;•·nllow. thw:n to perform this l111part;t;\t nctlYitY
position, or a cornbinntiori l)f t11e~o._pcsltlo11,s. Mo.&t 6tt thelt own ·And with l\Jghe~ frequ~ncy, S~anding,
whodchllir •landers ·•llow for full or portlal me11doJ\ tiowever, ~hpuld not be caniidarad l\.'i " .wbs·iitute fbr
of th~ hiil and icneo jo~1tl nud tull up rig lit or portially therapy.
tllttJ positions. Wheelchair sbmdcts .,. •vailable 011
manual or power wboclchoir bnm. Wb.colchlllt stand·
ing·.dtviccit p;dclress tha· mod.lo~l :tlld fquctionAI needs Vital Organ Capacity
described ht the sections to follow. · Dudng standing,. the pelvis tends to M!lllfn:c A. ntoro
;lntO:rfor tllt or nCutral,p~sitipn,_ 11.lluwlng: for.;in incre:uc
Functiliinal Rea·ch and Access to ADLs lrt lumbnt lorddris as comp111'e.P. ta sitling. '!his in htt1t
helps cstabll•.h • bqttor a11gi1mcnt oF the' wine ~,,,;1
Stnading addt 11. .dg:riifioan~ wiounc _of. vertical extend tho uppo.r truhk, Bxtemion of tho upper tmnk
·ncc<;:ss. Sln.cc the li'~th1tt Jurfi\ce moves llil"o.J! .vertical results in reduced pressure!! on t,h.e j11renia[ org:o.i-is~· tha:rdby
. po•ltion, typkally the atno\1nt of addition.I -v.:peri'efice in1provc'd lung.
(uncfiou. An ·iittc$rnted whcc(chnir stander system capacity when st.anding oftcll. Studies: .hnvc qhown
11Uows: for moving about while in n .standing 1;osition, th.at those who stnrid frequently in ·stnnding power
ttnd standing cnn bcco1ne lln iniegni.l and func.1ional whi:.clchoirs have l~sser or deln7cd o~nri:nt:e ofrc$•
prtrt of the d11y 11nd the wcr_ci\n·pcl'fOnn \l vllrid~ of pir~tOry complication$ lll1d improved resptrotory
ADLs while !11th• stmding.position, combining func· vol~me (Eng et al., ZOO!). StAnding aon oho help
tlonal ond inc:dic:al benefits. A sttt11ding podtinn ~n reduce congestion and cou,e-f1ing (Stuinsby a; Thon1ton 1
b~ a~suJncd as needed, both for indoor nnd outdo·or 199!1),
J. Arva et 111.
"
--·-·-·-----·-···--·--·--~------ - - - - - ------ 6 2 -
000081
----------- ------------- ------- - ...
·.·.'.')·.·.
..,_
i'·-
Page 33 of 68 recelVed on 5120120131 :33:06 PM [Pac me DaWglit Time)
- ·· · -- ---_. Gt:11lrfJl1u1stimJ ptablems,• Stttrtdfng wha~lchain· u1:1eu · BM)) leveI11 will continua: to decrcas· le, mCJttinlly or fully JUPP.ort tho body'r weight l?8SJ Dtlnkwotor, 1994), Wlth •rnndUa intCJ!1'l't•d
ogse, th< useds ttot dcpondanto\1
bCltdni activity thorefur~ Jnvolvi1 some impact or clraumst:tncas (such as carcg\vc< 'VRli•bttity) ro. con-
lQrc~ being 11'i!U5utllted I<> tho skeleton during woight tinue standing-, Cousoqu~tly, m~inton•ncc of a
be.iring. Stmding pt0vide.s me rcducod or limited woight ~ei!rlng.
• Dy~dmic /a#i"3: l'urther studier clarify th.t stnnding Clrculatlon
'ho'11d be dyn•mlc Qiighor multltu'de •nd vorlcd Usett have Rl!lo axpe:r.i•E!nccd imprOV"cment in lqwe1r
magnitude) in order to fully prmdor (l\)ig o~ al., 2001). Ono benefit i•
b lo,. effieict\t th"1\ dynamic [o~ding Jn preyentlon reduc~ swelling in the lcg.t end r~ct.
of BMP lo" (Frltton et al., 20001 Lanyon, 1986:
l.1tnyon & Rubin. 1984: McLeod et tll 1 1"9.88; Rubin &;
L.;nyon, 1984). A .recent rtudy ot chJldrcn with
disrt:bling uonditiana: fuund tha.t o: 6-1no11th stnnd.ing
program wlth a statiomuy staifder lrilf re•ulted in Whccfchair staU:dt:rr al~o ;ld in rtduoPon of eX"Ce.R$
UMD reduction {of 6.3%), while utlllzlng'vlbroring 111uscle tonei re.Se1uch indk~t.es th1u muscle Stretch.
plat!::I underneath the s:t"i1.11ders 11ctunUy h1cr1Ji1.setJ combined with weight loadh1g redUc.e.s muscle ·tone
B!Y{P (by ll.9lfo) in tho subjects (Ward ct :11., 2004). more than stretch~ alone (32% vs. 17%) (Odeen &
Thi.s i& of uttno$"t impol'mnc:a rc:gardirig standing °K'llUts!bri, 1281). Some llSera experience .tone reduc-
wltcclch.a.irs1 ,thice they offer dynamic lotdln.g in a. tion ·in their upper extremities due to better skalc.tal
v;:u:ie~ of ways. Wh.en udns: a mobil(I wheelchair alignml!Ilt in Cl 4ts.nding poritf.on. 'fhi!J _may trnu~lara
bMtJ during ~t11n~ingo, vibratlon occu{S due to ·the !nto improved s~1;ch o.11d b~tt:cr hru1d and ann func-
1novement of the whe.Jchair opplying dynamic tion to perform ADLs. Tone rcductlon can improve
loRd$ to tb.e bQ11es ot'lha lower extremltio~. In addt.. comfurc, mlnitn.lzc frutb.er rnngc of.1notlon loss:~~.
. tion; sm.all obs:tttdcs (~g. 1 carpet e.dges,'doorthr~h· .. hnproV~ l'uo.ction~ a~d ~onscr.ve ~ne.rgy•
. olds, tilo edge,s) prov'id< dynllmia inp\JI when the
user drlvc! over tham. Standers integrated with a
wheelchair base also allow for fr~quant log et •l., 2001). 'l11is helpv with lt>nsfort,
c;ccrcUa to be. elfective1 tbe rnech~nical s.trt:sR placet! can aid ln better $l~¢p, redQt:c.'i fatigue nnd paih, and ·
011 the bone 1nu~t cxcood the level to which tl)c hnprovas posit:fonlng in tha whaol.chair. Stnnd.ia~ hns nn
bot1ttcd fQ transfet in, rnd o(lt of the .wlml\':h•lr
m)l Improving the RbUity to J'dllge< ind'opendcntly
atid peiform ADLs.
Skeletal Deformities • Back pain 1U1d rl$ their alert11"s :111d/or their upper
the femur uaunlly ends lip better scntcd.ln the acetabu- cxtr~mity function.
lum. which ·ix imf)Orf"ant cspcdalfy for children to pro· • Mnny child~ who ullc- n1cblllty aqulpme.nt through-
m.Qte healthy skelet.i:l ~lig,1tinl!nt us well ·
-------•ch.nir..rnight bo cc;intralndlcnted_w_icli.Qut appr be lhu· ~hha~lng. 1ndependcnc., 1111d prod,iJ.ctivit~ maintnin·
itod mecl1"nionlly· orltti11g •oropr.iati! 11\lpport fot &t;t.. CASE l!'XAMPLES
bility nnd funt;tio1i,. so sp<1:'4fo.l accommodntioni n1ay
hl\ve to be }UovJded for people with significant J, 0. ;., n 19-Y«tr•old male with spastic atheroid
dcfo:rn,iti¢5!, C$"pcclally it' those defo.ru1ltll!~ ri.ra not quadtlploglc cerebral palsy, H. h;u been drlvlng n
flexible. s.kelct•l •lig~mcl1 t •hould bo c enh.il-t1C~ independenc:.e::, and to reduce his
.stnndlng fur o. ~~11i!.ica_i'lt amount of time (s:cb.i;dulcs
vuy _by perso1' and ·circumstnnccs)~ rt is n<*uaty to mother's bac.kpitln, which ih~ developad due to fre ..·
o{;ta-ln a f>b.)'&tcian1a apptov:J t1nc::i t-Q.,t 11. 4llu1urcd ~eatlug sys- atrcct. Following co.refill asscurnc11t and an extc:ndvc
tem$ doe to shl!nr. · 'Uinl of a st11oder1 lie·Wll.$ p.i:D'Vide.d wi'th I\ po~r wh~ol~
i;;hait ~quipped 'vitb a pl\s&ive sbtudar as well a11 tilt In
'$:pt1cll, tecliJting backto~t, and elevn.t1ng.lcgre$ts. A-t il
frequency of Standing 6..montJi. fa,llow·up assessm.crtt, his teport no noted cde1na ht hi.!ii.l'lWe.i'..!}-Xl:(croitie$'~and...hc-
aonnre~.S.L'1~9it}-h~O$tl!:d~hdno'll0ak:ol'dlas1T~)kiP.vhlls:hll1g. -
reported far fcw~r bowei And bJadd~ t.t.ccidcnts td the OAIJ!::y, G,.; StotRe, Ku Et\Sill'\I, A, S/a1opqlgky, !-~'lder t. ~ .• & S.lrgii, ~:I
-------- I ·. - ' . ·-- ·--(:l-981!J,:..Wel9ht·b.e<1rfno cxor~h&·tta.ln.lng- iln!f·h.lli'Lb.fr b9ht miner al
o nt wH~ro he .,Vt1s c.Om.fb.ttahle g:ohig out Ul the com.~ ronlenf ,In postmenop11usal \~m~(I'. Af}l1;1h at tnCtfNf Mcd/'1/ia,
.n\unily on n weekly b:t~h.
He demoiufrl\tUi.1 il'riprovcd 108, 8~4-s'zs; ·
'(' '· ·d •-- ·d'ffi ..r DMrrld:, J:, WtJo@.ri, G., !ft '5ll(:i(t1 ~. (f~). fffed$ of ln\fllQfxliza1f0J1
ab ~ Jty to nmcw an cnrry out ta.sK.:t ar. J erent SUrrl\ce \l?¢!1 v~rk,i.~ rnmb.Qlk and p!lydploWc fU(l(;tlOnj o/ noumd fl\Oo,
.hm~bt,, Wl\C observad to be able ta slt- in.ore Uprl~ht . AJ.11ei{'3nJownMofM1dklTJo, 4,"3,
with. less kypha.rl.s, artd demolistrat~d imprOV!!d affect. OOMJ.dsoJ\ c. L, Hl.fl*Y!.s. h.,;vO£Jd, I. M,. Hl!l.tttJcc, R. s.. S'1~B. 1. H.• &
Mr. D. •1.:s a J6 ta11
· \n lils fo,:,.,,,, pl•n• Th' led to d sJ•..~if:ican~ dueronse. {SATMU)-Rer(.t1~g Wolff's law: TM bone·mix:tellog p1t1b!a1r1. 17iQ
l\"f a "'' '' ~ ~ Amrofl'!k4/Re«1td1 226, 403"""41.3
iu cornph1.in.ti of sh.ouldc.r po.irt 11.nd imp.roved upper Goomaor&.: s.•. Van Laott, M., De ·NIM.I, f", & burman, J, M. {1~).
extren.\Jt-ll'fun Clion, Bonis mineral 51111.11& fn p.11\lpiook 1laVt11ts wflo do.or tJo nt;it pqrlurrn
1 sU11dr~ Ostr:tJporos/$/nr«tMUo1uJ,.tJ, ta&~t'41.
HanQartllu, 1. U: {1'9:9!il. onaoporo~s t;hl1f to d'rsuil!. /'liydW Mrdl!ii11~
and Reh,J.,/Jirc1.lf"" r:611Ja of North Amfflca,.. 6, 57g...594
ACKNOWLEDGMEN'rS HobSOOi D. A (19.112). Cornpva1N• 41ff~ of p~1Wt on prenure 1t1d
f!1e11r " tht bcdy'fo~l lllt.offacs. Joum\ll of kMrbl/Jc111fon. /lesearrh
This •ttklo was dev.eloped tnrough RBSNA'r Spe· ;indDe~t, ~", .SB, 308..J 14.
flit/on. 6S,.S37-541. M~rtin, A. P.. & Hovston., c. s. (19an. OsraoporOJls, caldum nndphi,isl-
l}t..iQ:., E. {i. (JSS1). No1,opor11tlvt trt:1irMnt qf o~t1tog11nesi:s. lmpu(ll.d~: ciJI acrMly. Csnad/4n Medlt41 A1t~at1M Joum~. /16, SS7-S$1,},
OrlhoUt. lll'ld l'tlObfflly mam1Qtrot-l'lt. a1111c,,1 Orthop~d/CJ Q; R11latMI Mardn, A 0,, & MtCutkich, R. (), (1981), Bone lf(,flarn!cs: .Hrim. Sin.Jin
Remrrh, 1S9, If 1-122. and fracrurl!>. /(J(Jht11J of Spr::r/it .StftJ11m-t, !i, 155-63,
------------------ 67 - -
-----
----------~--- ---·----~--
-- ----------- -------·----·----··
000086
'}'
: --_,.,
- :\"1-
@03S/QG8
Page 38 of 68 received on 5/2012013 I:33:06 PM Wac inc Daylight TlmeJ
--··-· __ M:i?l!u, ll. e., &. l/v>hvdon, Cj, D. (19$3). lminobH1211don ahd bone. C;r/ch, ___Thom~•. C•. {{., A9onl, S, It,, DWo<'.lfe,· H, ·A.. flfer-MoS!tr.: ·t. M.; ··
fled 11.uue lllterna1(011al, 35, 26S-:tG7. LOO:tturt, T. t., ·& tod:h:it~ t, A. (2000}. Fi;om tfoitr Ii~.&.!: F.1f111;1" of--- -- -:-----·-- - · ··
McK!rll11y, W. o., Jn(~fot't, A. B., Cilrdell<\F, o. 0. 1 !Ii D11VJYO, M. I, (1999), dyr.at'1'4:~1ght baar'~ of\ !aJ.l!f ~l!mity b?iie'trJili'~I d,..n.sityl/l·d1R•
-------tot'1·tom,m«11u_l)'Stems IU\Jl.lyslt. Arch/yes of Physki/ MKl1"'ne & Trud~ G,, &;lllltfloH, f-4. !<. (2000). Conlf.!ctu-91 soca~ tqJmncliiUtt:
-------,fleh.&b/Jlt'arlon, 80, '1402-1410. _ 13.IM tintHt.1J9i1 :irtt(l).llr ~- rnygyiari.k> ~pefiment.11L lont'l-r:::5--,--------,-pr_n15:r-------
000293
Aug 2713 04:38p Amy Morgan
) p.2
contact with the grounel - creating this anterior stability for safety. The Permobil
C500 VS cannot be ordered without the power seat fimctions. listed above and must
also include the multiple seat function control kit as it utilizes multiple power seat
functions. (E2311)
6. The medical benefits of standing for individuals with spinal cord injuries is well
·documented. In 2009, the Rehabilitation Society of North America (RESNA)
published a peer-reviewed article entitled RESNA Position on the Application of
W11eelchair Standing Devices, Assistive Technology 21 :3,161-168 (Attachment B)
7. Ibis article reviews the scientific and clinical evidence regarding the medical,
functional, and psychosocial benefits of wheelchair standing devices and concludes
that this type of wheelchair is medically necessruy for certain individuals to maintain
vital organ capacity, improve circulation and passive range of motion, reduce the
occurrence of urinary tract infections, avoid Joss of bone mineral density, decrease
abnormal muscle tone and spasticity, prevent the occurrence of skeletal deformities
and reduce the occurrence of pressure sores.
8. As noted in this report, "standing is an effective way to counterbalance many of tbe
negative effects of constant sitting" The medical benefits of standing areachieved
by;
• Allowing the wheelchair user to extend' his or her hip and knee join1s in order to
decrease the development of contractures in the lower extremities;
• Providing better alignment of the spine and extension of the upper trunk, resulting
in reduced pressure on the wheelchair user's internal orgatls, and avoiding the
onset of respiratory c.,-mnplications often experienced by prolonged sitting in a
wheelchair.
• Allowing a wheelchair user to more completely empty his or her bladder, thus
decreasing the onset of hypercalcemia and urinary tract and kidney infections.
• Reducing the occurrence of chronic constipation, which can lead to bowel
obstruction.
• Addressing the loss of bone mineral density, which causes osteoporosis and an
increased risk of :fractures.
• Improving blood circulation in the lower extremities and reducing swelling in the
lower extremities.
• Aiding In the reduction of excess muscle tone and muscle sprurucity to reduce
pain, improve comfort and function, and minimize loss in range of motion.
.. - - - - - - - - -- -----------~~-·---------·---
...._~15~-·-·----.
- - - - - - - - - - . . i - 1-15~--------,.p
000294
l\ug 2713 04:38p Amy Morgan ) 85!'":}60877 p.3
.; ~__...~
\
I • Providing complete pressure relief on the isclrial tuberosities, which can decrease
the occurrence of pressure ulcers.
9. A wheelchair with integrated stander enables the user to independently move from a
silting position to standing through gradual angle changes and allows him or her to
obtain full upright or partially tilted positions to address the many adverse secondary
medical complications that result from prolonged sitting.
10. The standing feature of the Permobil C500 can be used while the wheelchair ig
stationary or while moving at low speeds. It provides numerous opportunities for
dynamic loading of the lower extremities and is more effective in reducing the risk of
loss of bone mineral density (BMD) as well as promoting improvement in BlvID. As
stated in the RESNA report, "integrated standers allow for standing nearly any time
for any length of time, and therefore weight loading is more likely to be of random
distribution, which appears to be superior in BMD loss prevention."
11. Separate standers do not provide dynamic loading and are less effective in reducing
· the risk of bone loss than wheelchairs with integrated standing features. For some
.individuals, use of a separate stander requires one or more caregivers to assist with
transferring the individual into the standing device. As a result, the wheelchair user's
ability to stand is limited by the availability of assistance to transfer him or her into
the equipment. In contrast, independent standing from one's own wheelchair
decreases dependency on others, minimizes the risk of transfer injuries, and increases
the opportunities for standing in multiple locations throughout the day, which has
been shown to be more dfective for physiological function (ei.:. BMD,
Bowel/Bladder function/Gastrointestinal motility, Range of Motion/Spasticity
management/Cardio-Respiratory function/etc.)
SUBSCRIBED AND SWORN TO before me, the lUldersigned authority, on the 8-"1 day
of August, 2013.
,--.
~()~ <§,' 6 1-J'/l. Q
NPublic
.JESSICA LUCAS
Notary Public, Kentucey
State At Large
My commission EXpires
February 13, io1E>
Nolaf'/ IDff 460283
17 P-16
000295
TAB 6
)
/
BCM
B;iylor O:illegcGf.Mc:d!cioe
LlSA R. WENZEL, M.D.
Auistant Pro!c:uor
SplneJ Cord. llljury Proif&lll
Physic:a.J MedlcitJc A Rehabilitation
Date: September 26, 2013
Pt: Linda Puglisi
DOB: ?5!??"221
LETTER OF MEDICAL NECESSITY
To Whom It May Concern:
My name Ls Dr. Lisa Wenzel I am an assistant professor of Physical Medicine .and
Rehabilitation at Baylor College of Medicine and a splna! cord injury jlttending at TIRR
Memorial Hermann Hospital I am also a member of the American Academy of Physical
Medicine and Rehabilitation and the American Spinal Cord Injury Association.
In my position at TIRR Memorial Hermann Hospital, I am responsible for both the inpatient and
outpatient care of individuals with spinal cord injuries, including management of such conditions
as neurogenic bowel and bladder, pressure ulcera, spasticity, and neuropathic pain.
Ia. February 2013, I was the attending physician for Linda at TIRR Memorial Hermann Hospital
During thi.s inpatient stay, Linda underwent a comprehensive evaluation for a power wheelchair.
As a res:ult of this evaluation, we recommended a custom power wheelchair with an integrated
standing feature for Linda. l provided the required attestation of medical necessity of the
recommended power wheelchair on a form provided by Texas Medicaid.
I also provided additional medical support for the recommended wheelchair on May 9, 2013, in
an earlier Letter of Medical Necessity. This letter explains the numerous secondary medical
conditions Linda's faces due to her spinal cord injury and how these medical conditions can be
managed by frequent independent standing throughout the day. The letter also explains that a
separate stander is not equally effective in addressing these medical conditions and will not
provide the same medical benefits for Linda.
;--~· - ···-·--: ... ---·----·--------------------·----··· .. ---~- -- ------
P-13
000287
BCM
:SayJor College o/Medicint;
LISA R. WENZEL, M.D.
Assist:ant Pmfes~or
Spiaat Cord Injury Program
Phy~ical l\.fedicine & Rd1abilituion
The team responsible for conducting Linda's wheelchair evaluation in February 2013 'continues
to support their recommendation for a custom power wheelchair with integrated standing feature
for Linda. The Pennobil C500 VS is recommended to address Linda's medical needs and is not
recommended for her convenience or the convenience of her caregivers.
Sincerely,
LisaR. Wenzel,MD
Attending PhysiCian
Physical Medicine and Rehabilitation
Spinal Cord Jnjury Program
TIRR/Memorial Hermann Hospital
Baylor College of Medicine
000288
TAB 7
RBQUBST UULy ~~, •~~~
PRIOR APPRO~ # none
S'l'A'l'E OF NEW YORK CME# BJ7\l;i:ass
.DEPJIR'l'MEN'l' OF SOCIAL SERVICES CEN'l'ER# OHSlf
FH# 185S$18J
In the Matter of the Appeal of
Mary k Dl!CISION
Ali'\l'ER
FA~R
HEARING
from a determination by the Office of Health
Systems Management of the New York State Department of
Health (hereinafter referred to as the Agency or OHSM)
JURISDICTION
Pursuant to Section 22 of the New York State Social Services Law
(hereinafter Social Services Law) and P;zrl: 358 of the Regulations of i:he New -~'
York State Department of Social Services (Title lS NYCRR, hereinafter "
Regulations), a fair hearing was held on September 16, 1992, in Dutchess
County, before Lewis J. Nestle, ·Administrative Law Judge. The following
persons appeared at the hearing:
For the Appellant
Andrew Alter and Barbara Nectow (Mid-Hudson Legal Services), Appellant's
Representative
For the Office of Health Systems Management
Submitted, personal appearance waived.
I
Was the Agency's determination not to process the Appellant's vendor,
Daves Wheelchair, Inc.•s prior approval request correct?
FACT FINDING
t
An opportunity to be heard having been afforded to all interested
parties.and evidence having been taken and due deliberation having been had,
it is hereby found that:
1. The Appellant has been in receipt of a Medical Assistance
authorization. The Appellant.is also eligible for Medicare benefits. !I
'
1
f
2. On June 25, 1992, the Appellant's vendor, Daves Wheelchair, Inc. !
requested prior approval for an Avant wheeled walker for the Appellant. i
3. On June 26, 1992, the Agency determined to return the Appellant's l..
~
j.
vendor, Daves Wheelchair, Inc.'s prior approval request on the grounds that
the vendor must bill Medicare first. j
'i .
I!
Il
i
FH# 1858S18J
4. On July 24, 1992, the Appellant requested this fair hearing.
APPLICABLE +.AW
Section 3.65-a of the Social Services Law provides in part:
2. "Medical Assistance" shall mean pal'lllent of part or all of th•f ·
cost of medically necessary medical, dental and remedial care,
services and supplies, as authorized by this title or the
regulations of the department, which are necessary to prevent,
diagnose, correct or cure conditions in the person that cause
acute suffering, endanger life, result in illness or infi:rmity,
interfere with such person's capacity for normal activity, or
threaten some significant handicap and which are furnished an
eligible person in accordance with this title and the regulations
of the department.
Section 364.2 of the Social Services Law provides in part, as follows:
The department of health shall be responsible for
{b) establishing and maintaining standards for all non-institutional
health care and services rendered pursuant to this title,
* * *
Section 2.1.4 of the New York State Medicaid Management Information
System {]@ilS) Durable Medical Equipment Provider Manual defines prior
approval as the process of evaluating the aspects of a plan of care which
may be for a single service or an ongoing series of services in order to
determine the medical necessity and appropriateness of the care requested.
Section 2.2.2.B. of the MMIS Durable Medical Equipment Provider Manual
and, effective February 20, 1991, Department Regulations at 18 NYCRR
sos .s {a} (l.} define "Durable Medical Equipment" as:
devices and equipment, other than prosthetic or orthotic appliances,
which have been ordered by a qualified practitioner in the treatment of
a specific medical condition and which have all of the.following
characteristics:
Can withstand repeated use for a pr0 tracted period of
time1
Are primarily and customarily used for medical purposes;
Are generally not useful to a person in the absence of an
illness or injury; and
Are usually not fitted, designed or fashioned for a
particular individual's use.
Where equipment is intended for use by only one patient,
it may be either custom made, or customized.
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"Custom-made" means fabricated soJ.ely for a particular individual and
cannot be readily changed to conform to another recipient's needs. It
usually requires the recipient to be measured for custom fitting and/or
molding of components.
"Customized" refers to a stock item that has modifications made and/or
attached (to it} to meet a recipient's needs. These modifications may be
changed (by adding or deleting items such as armrests, etc.} to return the·
item to stock.
Section 360-7.2 of the Department's Regulations provides:
Where a third party, such as a health insurer or responsible
person, has a legal liability to pay for MA-covered services on
·behalf of a recipient, the department or social servlces district
will pay only the amount by which the MA reimbursement rate for
the services exceeds the amount of the third party liability.
The department or social services district will also pay if the
third party payment will not be made within a reasonable time.
The department or social services district will seek
reimbursement for any payments for care and services it makes for
which a third party is legally responsible. They will seek
re~rnbursement to the extent of the third party's legal liability
unless the amount reasonably expected to be recovered is less
than the cost of making the recovery.
Section 360·7.3 of the Department's Regulations provides for the use of
health, hospital or accident insurance. A recipient must use health,
hospital or accident insurance benefits to the fullest extent in meeting
his/her medical needs.
Section 2.2.l2f of the .MMIS Provider Manual states, in part:
When a procedure requires prior approval, prior approval must be
obtained by the provider when a recipient has both Medicare and
Medicaid coverage in order to receive Medicaid payment for
Medicare deductibles and coinsurances except when the request
involves rentals •.•
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DISCUSSION
It should initially be noted that the Agency had requested a waiver of
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personal appearance which was opposed by the Appellant's counsel. The
material in support of the request and in opposition to the request was I
carefully reviewed and it was determined that the waiver would be granted
because of the absence of any factual issues. The matter was discussed at
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the hearing and the Appellant's Representative elected to proceed with the
hearing in the absence of the Agency. ·
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The Appellant receives both Medicare and Medical Assistance benefits.
The Agency, in its submission, contended that the Appellant was required to
explore Medicare approval first because the Medical Assistance Program is
the payor of last resort.
The.Agency's contention is not persuasive. The issue here is a request
for prior approval, not a request for payment. Although the Medical
Assistance Program is the payor of last resort, the question of payment is
not relevant to the issue of prior· approval. Section 2.1.7 of the Manual
states that payment will not be made for medical care and services for which
third parties e.g., Medicare are liable. Similarly, Section 2.1.9 of the
Manual speaks to the provider·' s responsibility to bill all applicable
insurance sources before submitted a claim for payment under the Medical
Assistance Program. However, the Appellant is entitled to have the Agency
determine whether the walker is medically necessary which is a separate and
distinct question from the amount of Medical Assistance payment, if any.
Under these circumstances, the Agency will be required to process the
Appellant's request for prior approval and determine the medical necessity
of the walker.
The Appellant's Representatives requested that the question of medical
necessity be resolved at this hearing and submitted a copy of a letter dated
June 15, 1992 from the Ms Comprehensive Care Center in support of the
request. This request is denied. The Agency sununary indicated that the
Agency had granted prior approval to make repairs to the Appellant's
wheelehair. As set forth in the cited legal authority, it is the Agency's
responsibility to determine medical necessity for the·purchase of durable
medical equipment. Under these circumstances, the appropriate remedy when
there has been an improper failure to act or when the Agency has returned a
prior approval request for an improper reason, is.to require the Agency to
process the request and to make a determination.
The Appellant's Representatives further contended that the rate of
reimbursement set forth in the MMIS Provider Manual in this type of
situation is contrary to federal law. The Manual provides that
reimbursement is the lesser of the difference between what Medicare pays and
·the Medicare approved amount (the co-pay) or what Medica~e pays and the
Medical Assistance rate. The Appellant's Representative contended that this
limitation violates federal Title XIX requirements regarding amount, scope
and duration of benefits and that a similar policy had.been enjoined in
California. However, inasmuch as no determination has been made as to prior
approval of the walker, it would be premature to address the question as to
the amount of payment in this decision.
DECISION AND ORDER
The determination of the Agency not to process the Appellant's vendor,
Daves Wheelchair, Inc.•s prior approval request is not correct and is
reversed.
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The Agency is directed to detem~~Ef:\Yh,'i,the~ t~? ~y~t wh~el walk;ls ~t i.a ?n'CR.R asa-6 .. 4, the AgenGr ' ·
must comply immediately with the d.ire.ctiirl!s set :f¢r~h ¥P\'El· ·.
DATED: Albany, New York
ocr oI 1992 NEW YORK STATE DEPARTMENT
OF SOCIAL SERVICES
By
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Commissioner's Designee
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TAB 8
HHSC Fair and Fraud Hearings Handbook
(Excerpt)
1565 Agency Action Notice Issues
Revision 11-4; Effective June 1, 2011
Whenever an adverse action is taken, programs are required to send an adequate notice to the
client. Federal law sets out what is to be included in adverse action notices. If the appellant raises
an issue at the hearing questioning the sufficiency of the notice, the hearings officer must address
the issue at that time. The hearings officer may direct the agency to send a con-ected notice, in
accordance with all legal requirements. The appellant may choose to waive any notice issues and
continue with the hearing.
Notices are of particular impo1tance in nursing facility discharge hearings and in Personal Care
Service hearings and adequacy of the notices must be addressed as an issue within the hearing in
addition to other issues listed as the basis for the intended adverse action. In these appeals, if the
notice issue is not raised by the appellant, the hearings officer must develop the record to include
information to determine the legal adequacy of the notice.
1565.1 When Appellant Raises a Notice Issue
Revision 10-1; Effective January 15, 2010
If the appellant raises a notice issue, either directly or indirectly, it must be dealt with by the
hearings officer on the record. The appellant has the right to receive adequate notice. However,
the appellant can waive any notice issues and continue with the hearing. It is the hearings
officer's responsibility to establish if the appellant wants to waive any issues on adequate notice.
If the appellant waives any notice issue, then the hearing can proceed and notice is no longer an
issue.
If the hearings officer determines that the notice is not adequate and appellant does not waive his
right to receive adequate notice, the hearings officer instructs the agency representative to
prepare a new notice and provide it to the appellant. After the new notice is provided, the
hearings officer reconvenes the hearing.
Notice issues raised and how they were resolved should be noted in the hearings officer's
decision under Procedural History.