UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

STEVEN HILTIBRAN, by and through his )

mother and guardian, Debra Burkhart;

)

NICHOLAS TATUM, by and through his )

mother and next friend, Stacy Tatum;

)

RONALD COONTZ, by and through his )

mother and guardian, Patricia Coontz; and )

NENA HAMMOND,

)

)

Plaintiffs,

)

)

v.

)

)

)

RONALD J. LEVY, in his official capacity )

as Director of the Missouri Department of )

Social Services; and

)

IAN M cCASLIN, M.D., in his official )

capacity as Director of the MO HealthNet )

Division,

)

)

Defendants.

)

Case No. 10-4185-CV-C

COMPLAINT ________________________________________________________________________
I. PRELIMINARY STATEMENT 1. Plaintiffs bring this action to com pel the Missouri Depa rtment of Soc ial Services to cover medically necessary incontinence briefs for them through the Medicaid program. Plaintiffs suffer from a range of disabilities, including cerebral palsy, multiple sclerosis, liver diseas e, and brain dam age and, as a result of their disabilities, are completely incontinent. Plaintiffs’ physicia ns have prescribed incontinence brief s as medically necessary to preven t skin breakdowns and infecti ons and to m aintain their ability to live in the c ommunity. Plain tiffs are low-incom e Missouri residents who

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receive their health services through Missouri’s Medicaid program, also known as M O HealthNet. Defendants’ policy is to cover incontinence briefs for individuals age 21 and over only when they live in institutions.
2. Defendants have also prom ulgated a regulation, 13 C.S.R. § 70-60.010, and policy that restrict Medicaid coverage of incontinence briefs to tho se recipients who are over age 20. As a re sult, several Plaintiffs lost coverage upon turning 21 and will be left without coverage un less they go into an institutional setting. Plaintiffs face a high likelihood of hospitalizations to address infections and m ay be forced into ins titutional settings, such as hospitals, nursing homes, or rehabilitation centers in order to receive the necessary care. Such choices should not have to be made because the state rules violate federal Medicaid and disability discrimination laws.
3. Plaintiffs seek declaratory and injunctive relief to enjoin Defendants from implementing the inv alid state reg ulation and policy, and thereby violating federal Medicaid and disability discrimination mandates.
II. JURISDICTION AND VENUE 4. This action arises under Title XIX of the Social S ecurity Act, Title II of the Americans with Disabilities Act, and Section 504 of the Reha bilitation Act. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 which gives district courts original jurisdiction over all ci vil actions arising under the Consti tution, laws, or treaties of the United States and 28 U.S.C. §§ 1343(a)(3) and (4) which give district courts original jurisdiction over suits to redr ess the deprivation under color of state law of any rights, privileges, or immunities guaranteed by the Cons titution or acts of Congress. Plain tiffs’
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action for declaratory, injunctive, and other appropriate relie f is authorized by 28 U .S.C. §§ 2201 and 2202.
5. Venue is proper under 28 U.S.C. § 1391(b). III. PARTIES
Plaintiffs 6. Plaintiff Steven Hiltibran is a 22- year-old Missouri Medicaid recip ient
living with his mother and guardian Debra Burkhart in Springfield, Missouri. He suffers from a variety of m edical conditions, in cluding cerebral palsy, psy chosis, multiple sclerosis and scoliosis. As a result of his disability, Steven is substantially limited in his physical and cognitive abilities and requires assistance with activities of daily living, including dressing, feeding, mobility and bowel and bladder care.
7. Plaintiff Ronald Coontz is a 30-yea r-old MO HealthNet recipient living with his mother and guardian Patricia Coontz in St. Louis, Missouri. He suffers from a variety of medical conditions, including anoxia, static encep halopathy (permanent brain damage), and a seizure disorder. As a resu lt of his disability, Ronald is substantially limited in his lif e activities and requires assistance with activities of daily liv ing, including feeding, dressing, bathing, walking, and bowel and bladder care.
8. Plaintiff Nicholas Tatu m is a 22-year-old MO H ealthNet recipient living with his mother Stacy Tatum in St. Louis, Missouri. He suffers from a variety of medical conditions, including Alagille Syndrome, liver disease, and mental disabilities. As a result of his disability, Nichol as is substantially limited in his life activities and requires assistance with activities of daily living, including eating, dressing, bathing, and bowel and bladder care.
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9. Plaintiff Nena Hammond is a 49-year-old Miss ouri Medicaid recipient living by herself in O’Fallon, Missouri. She suffers from a variety of medical conditions, including a spinal cord injury, cysts in her kidneys and liver, and occasional spasticity in her limbs and body. As a result of her disability, Nena is su bstantially limited in her life activities but is able to care for herself in her own home. Defendants
10. Defendant Ronald J. Levy is the Director of the Missouri Departm ent of Social Services (hereinaft er, “DSS”) and, as such, is responsible for the general administration and implementation of laws concerning the social welfare of the people of the State of Missouri, including the Medi caid program. Defendant Levy is the chief administrative officer of DSS and is respons ible for adm inistration of the single state agency for the Missouri Medicaid program. Defendant Levy is charged with the ultimate control and adm inistration of DSS, includ ing the du ty to adm inister the Missouri Medicaid program in co mpliance with the Medicaid Act, the ADA, and Section 504 o f the Rehabilitation Act. He is sued in his o fficial capacity. His principal office is located in Jefferson City, Missouri.
11. Defendant Ian McCaslin, M.D., is the Director of MO HealthNet, a division of DSS, and, as such, is responsib le for the administra tion of the Missouri Medicaid program, with the excep tion of determination of elig ibility for the prog ram. Defendant McCaslin h olds ultimate administrative power within the MO HealthNet Division subject to the supervision of Defe ndant Levy. He is sue d in his official capacity. His principal office is located in Jefferson City, Missouri.
IV. STATUTORY AND REGULATORY FRAMEWORK
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Medicaid 12. Title XIX o f the Social Security A ct, codified at 42 U.S.C. §§ 1396– 1396w-2 (hereinafter, “Medicaid Act”), establishes the Medicaid program. The objective of the Medicaid Act is to enable eac h State to furnish medical assistance to families with children and to aged, blind, or disabled in dividuals whose incom es and resources are insufficient to meet the costs of necessary m edical services and to furnish “rehabilitation and other s ervices to h elp such f amilies and individua ls attain or re tain capability for independence or self-care.” 42 U.S.C. § 1396. 13. The Medicaid program typically does not directly provide health care services to eligible individuals, nor does it provide beneficiaries with m oney to purchase health care directly. Rather, Medicaid is a vendor payment program, wherein Medicaidparticipating providers are reim bursed by the program for the serv ices they prov ide to recipients. 14. Medicaid is a cooperative federal-state program designed to cover necessary medical services for poor people. Pa rticipation in the Medicaid program is not mandatory for the states, but once they choose to participate, they must operate their programs in conformity with federal statutor y and regulatory requirem ents. 42 U.S.C. § 1396a. 15. Each state choosing to participate in the Medicaid program must designate a single s tate agency which is resp onsible for administering the program. 42 U.S.C. § 1396a(a)(5).
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16. The Medicaid Act includes m andatory and optional elig ibility groups and mandatory and optional serv ice coverage requirem ents. 42 U.S.C. §§ 1396a(a)(10), 1396d(a).
17. The Act requires states to cove r individuals who are “categorically needy.” 42 U.S.C. § 1396a(a)(10)(A). The categorically needy include persons who are aged, blind, or disabled, work ing disabled individuals, and certain children and pregnant women who meet federal poverty level standards, and families and children who meet the eligibility standards of the n ow-repealed AFDC program . 42 U.S.C. § 1396a(a)(10)(A)(i).
18. States, like Missouri, that have el ected to provide Medicaid using m ore restrictive definitions of blindness or dis ability or m ore restrictive financial eligibility standards than are cu rrently used by the federal Sup plemental Security In come (hereinafter “SSI”) program, must also cover aged, blind, a nd disabled individuals with incomes exceeding the c ategorical income eligibility levels w hen those individuals incur sufficient medical expenses to “spend down” to Medica id eligibility levels. 42 U.S.C. § 1396a(f). These individuals are also “categorically needy.” Id.
19. Under the State plan, categorically needy individuals are entitled to nursing facility services. 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a); 42 C.F.R. §§ 440.70, 440.210(a)(1), 441.15(b)(1). States m ust “provide … for the inclusion of hom e health services for any individual who, under the St ate plan, is entitled to nursing facility services….” 42 U.S.C. § 1396a(a)(10)(D).
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20. Home health services are provided to the Medicaid recipient at his place of residence, and include “m edical supplies, eq uipment, and a ppliances suitable for use i n the home.” 42 C.F.R. § 440.70(a)(1), (b)(3); 42 C.F.R. § 441.15(a)(3).
21. Incontinence briefs are m edical supplies and, thus, a hom e health service. Defendants recognize that incontinence briefs are a m edical supply. Missouri Department of Social Services, Provider Bulletin Vo. 31, No. 52, March 6, 2009.
22. A participating state m ust establish reasonable standards, consistent with the objectives of the Medicaid Act, for determining the extent of coverage of home health services and other m edical assistance. 42 U.S.C. § 1396a(a)(17) (the “reasonable standards” requirements).
23. A participating state m ust ensure that the amount, duration, and scope of coverage are reasonably suffici ent to ach ieve the purpose of the service. 42 C.F.R. § 440.230(b). Furtherm ore, a State m ay not impose arbitrary lim itations on m andatory services, such as hom e health services, based solely on diagnosis, typ e of illness, or condition. 42 C.F.R. § 440.230(c).
24. Controlling precedent requires the State to co ver all non-experim ental, medically necessary services within a covered Medicaid category. Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006); Weaver v. Reag en, 886 F.2d 194, 198 (8th Cir. 1989). “[A] state’s failure to cover non-experim ental, medically necessary services with in a covered Medicaid category is both per se unreasonable and in consistent with the stated goals of Medicaid.” Lankford, 451 F.3d at 511.
Americans with Disabilities Act
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25. The Americans with Disabilities A ct, codified at 42 U.S.C. §§ 12101 – 12181 (hereinafter “ADA”) was enacted with the “elimination of discrimination against individuals with disabilities” as its purpose and objective. 42 U.S.C. § 12101(b)(1).
26. Title II of the ADA prohibits di scrimination against in dividuals with disabilities by public e ntities, including state and local governm ents, their departm ents and agencies. 42 U.S.C. §§ 12131, 12132. “[N]o qualified individual with a disability shall, by reason of such disability, be exclude d from participation in or be denied the benefits of the servi ces, programs, or activities of a pub lic entity, or be sub jected to discrimination by any such entity.” 42 U. S.C. § 12132; 28 C.F.R. §§ 35.130(b)(1)(iv), 35.130(b)(7), 35.130(b)(8), 35.130(d).
27. The ADA prohibits segregation of people with disabilities into institutions and requires services, program s and activities of state a nd local governm ents to be administered in “the most integr ated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
28. The ADA r equires state governm ents and agencies to m ake reasonable modifications to policies, practices and procedures to avoid discrimination on the basis of disability. 28 C.F.R. § 35.130 (b)(7).
Section 504 of the Rehabilitation Act 29. Section 504 of the Rehabilitatio n Act, 29 U.S.C. § 794 (hereinafter, “Section 504”), prohibits discrim ination against individuals with disabilities by any program or activity, including any department or agency of a State government, receiving Federal financial assistance. 29 U.S.C. § 794(a),(b). “No otherwise qualified individual with a disability … shall, solely by reason of her or his disabili ty, be excluded from
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participation in, be denied the benefits of , or be subjected to discrimination under any program or activity receiving Federal financial assistance....” 29 U.S.C. § 794; 45 C.F.R. §§ 84.4(a), 84.4(b)(1)(i), (iv), & (vii); 84.4(b)(2); 84.52(a)(1), (4) & (5).
30. Section 504 prohibits segregation of people with disabilities into institutions and requires services, program s and activities of stat e and local governm ents to be adm inistered in “the m ost integrated setting appropriate to the needs of qua lified individuals with disabilities.” § 28 C.F.R. § 45.51 (d).
31. Section 504 requires federally funde d state governm ents and agencies to make reasonable m odifications to policie s, practices and procedu res to avo id discrimination on the basis of disability. 29 U.S.C. § 794(a).
V. STATEMENT OF FACTS 32. The State of Missouri has elected to participate in the Medicaid program and has designated DS S as the single state Me dicaid agency. DSS is a department of state government. 33. The federal governm ent shares the cost of the Missouri Medicaid program by providing funding to the S tate of Missouri. During fiscal year 2010, the S tate will receive enhanced federal funding as a result of the American Recovery and Reinvestment Act of 2009. During fiscal year 2010 and the first half of fi scal year 2011, the federal government is paying more than 70 cents of each dollar spent on Medicaid services in Missouri, including more than 74 cents of each dollar for the second quarter of fiscal year 2010. 75 Fed. Reg. 22807-08 (April 30, 2010). The federal government would normally pay approximately 64 cents of each dollar spent on Medicaid services in Missouri. Id.
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34. All individuals who are Medicaid re cipients under the Missouri Medicaid program are “categorically needy.”
35. Missouri’s Medicaid statute requires coverage of prescribed m edically necessary durable medical equipment. Mo. Rev. Stat. § 208.152.1(19) . The law further requires that an “electronic we b-based prior authorization system using best m edical evidence and care and treatm ent guidelines con sistent with national standards sha ll be used to verify medical need.” Mo. Rev. Stat § 208.152.1(19).
36. A state regulation, 13 C.S. R. 70-60.010, prom ulgated by the MO HealthNet Division of the DSS, excludes “inc ontinence briefs” as a covered serv ice for non-institutionalized adults in the Missouri Medicaid program. The MO HealthNet Division’s DME Provider Manual and Bulletins “are incorporated by reference and made a part of this rule.” 13 C. S.R. 70-60.010(6) (covered servic es). “Covered services are limited as specified in the DME provider manual and bulletins.” 13 C.S.R. 70-60.010(2).
37. The MO HealthNet Provider Manual and provider bulletins im plement mandatory policies of the MO HealthNet Divi sion. Physicians and other Missouri health care providers m ust follow these provisions in order to receive Medicaid paym ent for their services.
38. The Missouri Medicaid Program ’s Durable Medical Equipm ent Provider Manual indicates that in continence briefs ar e covered for individuals age four through twenty years. Missouri Durable Medical Equipment Provider Manual, § 31.22.B., at http://manuals.momed.com/collections/collection_dme/Durable_Medical_Equipment_Se ction13.pdf.
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39. For individuals ages 4 through 20, D SS covers incontinence briefs where the items are prescribed and determ ined to be appropriate when th ere is presen ce of a medical condition causing bowel/bladder incontinence. Documentation of the qualifying condition must be m aintained in the provider’s record. A com bination of incontinence products that exceed 186 per month must be prior authorized. Prior authorization “ must include documentation of medical need from a physician, indicating a condition causing excessive fecal or urine output.” Missouri Durable Medical Equipment Provider Manual, § 31.22.B (emphasis added).
40. On March 6, 2009, Defendants issu ed a Provider Bulletin entitled “Physician and Durable Medical Equipm ent” that established policy concerning Medicaid coverage of inc ontinence briefs. Provider Bulletin Vo. 31, N O. 52, March 6, 2009, at http://www.dss.mo.gov/mhd/providers/pdf/bulletin31-52_2009mar06.pdf (hereinafter “DME Provider Bulletin”).
41. According to the DME provider bulle tin, incontinence briefs are covered for individuals ages 4 through 20. Effective fo r dates of services on or after March 24, 2009, the Provider Bulletin established new pr ior authorization criteria for obtaining approval of underpads, diapers/briefs, and protective underwear for individuals aged 4 through 20. The Provider Bulletin states that “[i]n order to be approved, participants must be between ages 4 through 20 and m eet the medical criteria established by the MO HealthNet Division (MHD).” Id. (emphasis added).
42. The purpose of the new prior aut horization criteria is “[t]o allow a consistent and streamlined process for aut horization for diapers, pull-ons and underpads
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for participants ages 4 through 20.” The new prior authorizati on criteria also include the

following statement:
Senate Bill 577 passed by the 94 th General Assem bly directs MO HealthNet ... to authorize Durable Medical Equipment using best medical evidence and care and treatment guidelines, consistent with national standards to verify medical need.

MO HealthNet Division, MO H

ealthNet PA Criteria, at

http://www.dss.mo.gov/mhd/cs/dmeprecert/pdf/diapers.pdf; Mo. Rev. Stat. § 208.152.1

(19) (emphasis added).

43 The DME Provider Bulletin also establish es medical necessity criteria for

coverage. Medical criteria for coverage of incontinence briefs include the requirement

that there be a “ medical condition causing bowel/bladder incontinence.” MO HealthNet

PA criteria. The cr iteria include the following question for the physician who prescribes

incontinence briefs: “What is the “m edically necessary quantity p er month? ___

(quantities over 186 require subm ission of a separate pre-certification and detailed

medical justification)” Id.

44. According to the Defendants’ m edical prior authorization criteria, one of

the “denial criteria” for these incontinence supplies is that “Patient is age 21 or over.” Id.

45. Individuals over ag e 20 are not allo wed to establish “medical necessity”

for incontinence briefs nor are they allowed to use the State’s prio r authorization process

to “verify m edical need.” Once an indivi dual turns 21, these m edical supplies are

deemed to be a “personal hygiene item ” as a matter of state policy. Missouri Durable

Medical Equipment Provider Manual, § 31.22.B, DME Provider Bulletin, MO HealthNet

Prior Authorization Criteria.

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46. The Missouri Medicaid program uses an “Exceptions Process” for services that are not norm ally covered by the Mi ssouri Medicaid program . The Exceptions Process is set forth at 13 C.S.R. 70-2.100. Th e Exceptions Process is only available for items that the Missouri Medicaid program considers to be essential medical services or items that would otherwise exceed th e limitations of the Missouri Medicaid program. 13 C.S.R. 70-2.100. The Exceptions Process allows for exceptions to be made on a “case by case basis to lim itations and restrictions ” on the receipt of benefits in the Miss ouri Medicaid program. Id.
47. Defendants do not cover incontin ence briefs through Missouri’s Exceptions Process because Defendants consid er them to be “personal hygiene item s” rather than “essential medical items” for individuals over age 20.
48. On April 28, 2009, Defendant McCaslin stated in an electronic m ail communication that adult incon tinence supplies are not a covered service for individuals age 21 and older. Defendant Mc Caslin stated that these items are a co vered service for individuals aged 4 through 20 when those services are pr ior authorized by the MO HealthNet Division.
49. On July 15, 2009, Defendant McCas lin stated that while “the determination of m edical necessity is key for particip ants under age 21,” m edical necessity is “not the g uiding principle” for determining whether adu lts can rec eive a service pursuant to the State’s Medicaid Exception Process.” Defendant McCaslin stated that adults cannot obtain incontinence briefs pursuant to the State’s “Exceptions Process” because “diapers are a personal hy giene item, not an essential medical item, they are not approved by the Exceptions Process.”
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50. The Missouri Medicaid Program does not cover adult incontinence briefs for disabled individuals ove r age 20 who reside in the community. DME Provider Bulletin.
51. Missouri Medicaid recipients over age 20 who reside in the community are not permitted to demonstrate th e “medical criteria” that would establish the ne ed for coverage for incontinence supplies prescribed for them by their health care providers.
52. The Missouri Medicaid program covers adult diapers for individuals over age 20 who reside in n ursing homes or other institu tional settings. In continence briefs are a covered supply for individuals receivi ng long-term care services, including nursing home services, and are included in Missouri’s per diem rate for those services. 13 C.S.R. §§ 70-10.010(5) and 70-10.015(5) (L), Appendix A.
53. On February 23, 2010, Special Counsel for the Missouri Departm ent of Social Services stated as follows:
Incontinence supplies are non-covered for adults through MO HealthNet’s DME program. Diapers are considered a personal hygiene item , not an essential medical item, and have never been a covered service for adults in Missouri . . . Incontinence supplies, other than diapers, may be covered through the exception process on a case by case basis. . . . Incontinence Supplies and diapers f or any age p articipant in an institu tional nursing facility or hospital are included in the facility’s per diem rate. Plaintiff Steven Hiltibran 54. Plaintiff Steven Hiltibran is 22 y ears old and lives with his m other and guardian Plaintiff Debra Burkhart. 55. Steven suffers from severe cerebral palsy, psychosis, m ultiple sclerosis, scoliosis, and chronic pain, muscle spasms and contractures. He is completely bed-bound and terminally ill.
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56. Because of his disabilities, Steven is unable to work and receives SSI benefits of $674.00 per m onth. He also receives Medi caid MO H ealthNet benefits from the Missouri Department of Social Services based on his disability. He has been covered by the Missouri Medicaid program since approximately age one.
57. Due to his disabilities, Steven is completely incontinent of both bladder and bowel.
58. Steven lives in the community with his family. 59. According to Steven’s treating health care providers, the m ost appropriate place for Steven to receive care and to live is in his home, where he has lived all his life. Steven’s disabilities make him highly susceptible to respiratory and other life-threatening infections, and placement in an institution would expose him to such infections. 60. Steven needs incontinence briefs to prevent skin breakdown and infections. His treating physicians have pres cribed incontinence briefs to prevent skin breakdowns and ulcers that result from sitting in wet and soiled undergarments. 61. The Missouri Medicaid program covered incontinence briefs as medically necessary for Steven until he turn ed 21 years of age. Steven’s m edical condition did not change or improve when he turned age 21. 62. Steven’s treating physicians wrote le tters to the MO HealthNet Division on January 6, June 19, and June 24, 2009, docum enting his m edical need for adult diapers. 63. On March 2, 2009, the MO HealthNet Division denied Steven’s physician’s prior authorization request for coverage of these medical supplies.
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64. On or about April 15, 2009, the MO HealthNet Division denied his physician’s request to obtain coverage for the medical supplies th rough the Exceptions Process. T he Division’s reason for denying Steven’s request was th at diapers are a “personal hygiene item” for adults, not a m edical item, and “for this reason, diapers are not approved by the Exceptions Unit.”
65. Debra Burkhart appealed this de nial and DSS upheld the denial on October 6, 2009. The decision wa s signed by Defendant Ian Mc Caslin, the Director of the MO HealthNet Division.
66. Defendant McCaslin found that “disposable diapers are a personal hygiene item, not a medical item” and that Steven “did not meet the burden of proof to show that disposable diapers are an essential medical item.” Id.
67. Incontinence briefs are required for the treatment of Steven’s m ultiple medical impairments and conditions consistent with his diagnoses, in accordance with the determinations of his treating physicians.
68. Steven’s incontinence briefs will be covered by the MO HealthNet program if he moves into a nursing home.
69. The Missouri Department of Health and Senior Services has already found that Steven meets the “level of care” requ irements for cov erage in a nursing facility or other such institution.
70. Steven’s incontinence supplies cost approxim ately $80 per month, while nursing facility care would cost approximately $4,000 per month.
71. Paying for these supplies out of pocket causes financial and em otional stress for Steven’s fam ily who m ust forego basic necessities in order to pay for adult
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diapers. His m other is af raid that she will n ot be able to continue paying f or these diapers. Plaintiff Ronald Coontz
72. Plaintiff Ronald Coontz is 30 years old and lives with his mother and guardian Plaintiff Patricia Coontz.
73. Ronald suffers from anoxia, sta tic encephalopathy (perm anent brain damage) and a seizure disorder. He can no longer walk unassisted and has severe balance problems. He is completely dependent on others for his care.
74. Because of his disabilities, Ro nald is unable to work and receives Social Security Disability Insurance benefits of $562.00 per month and SSI benefits of $132.00 per month. He also receives Medicaid MO HealthNet benef its from the Missouri Department of Social Services based on his disability. He has been covered by the Missouri Medicaid program since approximately age fifteen.
75. Due to his disabilities, Ronald is completely incontinent of both bladder and bowel.
76. Ronald lives in the community with his family. 77. According to Ronald’s treating health care providers, the most appropriate place for Ronald to receive care a nd to live is in his hom e, where he has lived all his life. Adult diapers make it possible for him to be cared for at home by his mother. 78. Ronald needs incontinence briefs to prevent skin breakdown and infections. His treating physicians have pres cribed incontinence briefs to prevent skin breakdowns and infections.
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79. The Missouri Medicaid program covered incontinence briefs as medically necessary for Ronald until he turned 21 years of age. Ronald’s medical condition did not improve or change when he turned age 21.
80. Ronald’s treating physicians have written letters docum enting his continuing medical need for adult diapers.
81. To the best of Ronald’s mother’s recollection, Ronald’s treating physician submitted a letter requesting an “exception” to continue coverage of adult diapers shortly after he reached the age of 21 but the State denied the request.
82. In 2005, R onald’s mother provided to his caseworker a letter from Ronald’s treating physician indicat ing that he was still incont inent and that diapers were still medically necessary. The caseworker told Ms. Coontz that Medicaid would not cover Ronald’s incontinent supplies. Ms. Coont z has received the same response from several other caseworkers.
83. Incontinence briefs are required for the treatm ent of Rona ld’s multiple medical impairments and conditions consistent with his diagnoses, in accordance with the determinations of his treating physicians.
84. Ronald’s incontinence briefs will be covered by the MO HealthNet program if he moves into a nursing home.
85. The Missouri Department of Health and Senior Services has already found that Ronald meets the “level of care” require ments for coverage in a nursing facility or other such institution.
86. Ronald’s incontin ence supplies cost approxim ately $300 per m onth, while nursing facility care would cost approximately $4000 per month.
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87. Paying for these supplies out of pocket has caused financial hardship and emotional stress for the Coontz fam ily which is struggling to pay for Ronald’s adult diapers while m eeting other basic needs. R onald’s mother Patricia Coontz fears that Ronald will have to en ter a nursing home to continue receiving the incon tinent supplies he needs. Plaintiff Nicholas Tatum
88. Plaintiff Nicholas Tatum is 22 years old and lives with his mother Plaintiff Stacy Tatum.
89. Nicholas suffers from Alagille Syndrome, liver disease and m ental disabilities.
90. Because of his disabilities, Nicholas is u nable to wo rk and receives SSI benefits of $547.00 per month. He also receives Medicaid MO HealthNet benefits from the Missouri Department of Social Services based on his disability. He has been covered by the Missouri Medicaid program since approximately age two.
91. Due to his disabilities, Nicholas is completely incontinent of both bladder and bowel. His mother and his teachers have tried to teach Nicholas to use the bathroom without success.
92. Nicholas lives in the community with his family. 93. According to Nicholas’ treating hea lth care provider, he can be served appropriately in the community as long as he receives adult diapers. 94. Nicholas needs incontinence brie fs to prevent skin breakdown and infections. His treating physicians have pres cribed incontinence briefs to prevent skin breakdowns and infections.
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95. The Missouri Medicaid program covered incontinence briefs as medically necessary for Nicholas u ntil he turned 21 years of age. Nicholas’ m edical condition did not change or improve when he turned age 21.
96. Nicholas’s mother asked his Medi caid caseworker and his St. Louis Regional Center caseworker if there was a way for him to continu e receiving the incontinence supplies. The caseworkers were not able to help Nicholas and referred him to Catholic Charities. Catholic Charities did not provide the requested diapers.
97. Incontinence briefs are required for the treatm ent of Nicholas’ m ultiple medical impairments and conditions consistent with his diagnoses, in accordance with the determinations of his treating physicians.
98. Nicholas’ incontinence briefs wi ll be covered by the MO HealthNet program if he moves into a nursing home.
99. The Missouri Department of Health and Senior Services has already found that Nicholas meets the “level of care” requ irements for coverage in a nursing facility or other such institution.
100. Nicholas’s incontinence supplies cost approximately $100 per m onth, while nursing facility care would cost approximately $4000 per month.
101. Paying for these supplies out of pocket has caused financial hardship and emotional stress for the Tatum family. Nicholas’s mother even has to do without eating some months in order to pay for adult diapers and Nicholas’s other medical needs. Plaintiff Nena Hammond
102. Plaintiff Nena Hammond is 49 years old and lives on her own in O’Fallon, Missouri.
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103. Nena suffers from a spinal cord inju ry, cysts in her kidneys and liver, and occasional spasticity in her lim bs and body. Sh e is paralyzed and m ust use a wheelchair to get around.
104. Because of her d isabilities, Nena is unable to work and receives SS I benefits of $380.00 per m onth and SSDI benef its of $314 per m onth. She receives $60 per month in Food Stamp benefits. She also receives Medicaid MO HealthNet benefits from the Missouri Departm ent of Social Serv ices based on her disabi lity. She has been covered by the Missouri Medicaid program since September 1998.
105. Due to her disabilities, Nena is incontinent of both bladder and bowel. 106. Nena lives in the community. 107. According to Nena’s treating health care providers, the m ost appropriate place for Nena to receive care and to live is in the communi ty rather than a nursing home or other such institution. 108. Nena needs incontinence briefs to prevent skin breakdown and infections. Her treating physicians have determined that incontinence briefs are medically necessary to prevent skin breakd owns and ulcers that result f rom sitting in wet and so iled undergarments. She is not always able to purchase all of the diapers she needs and sometimes suffers from skin infections. 109. As a result of multiple skin infections, Nena has becom e allergic to m any of the m ost common antibio tics and taking antibiotics causes her to experience side effects, including severe vom iting. Nena’s physician reports that she has lim ited treatment options and faces a higher risk of hospitalization with each infection.
21 Case 2:10-cv-04185-NKL Document 1 Filed 08/23/10 Page 21 of 28

110. Nena’s adult diapers help prevent sk in infections and reduce the need for using antibiotics to tr eat skin inf ections as well as th e risk of hospitalization and/or institutionalization.
111. The Missouri Medicaid program has never covered incontinence briefs for Nena because she is over the age of 20.
112. Incontinence briefs are required f or the treatm ent of Ne na’s multiple medical impairments and conditions consistent with her diagnoses, in accordance with the determinations of her treating physicians.
113. Nena’s incontinence briefs will be covered by the MO HealthNet program if she moves into a nursing home.
114. In October 2009, Nena asked her Me dicaid caseworker for financial assistance for the cost of adult diapers and was told that no help was available.
115. Nena’s incontinence supplies cost anywhere from $18 to $90 per m onth depending on her health, while nursing facility care would cost approximately $4,000 per month.
116. Paying for these supplies out of pocket causes financial and em otional stress for Nena who must forego basic necessities in order to pay for adult diapers. She is afraid that she will not be able to continue paying for these diapers. Nena lives in fear of embarrassment and pub lic humiliation if she is forced to g o out of the house with out adult diapers as well as fear of hospitalization or other such institutionalization as a result of skin infections related to her incontinence.
117. Institutionalization of Plaintiffs due to incontinence al one is m edically inappropriate treatment for this condition.
22 Case 2:10-cv-04185-NKL Document 1 Filed 08/23/10 Page 22 of 28

118. There is no m edical basis for covering adult diapers for P laintiffs if they reside in a nursing home but not if they live in the community.
119. Defendants have failed and refused, af ter request from Plaintiffs, to cover their doctors’ requests for incontinence briefs.
120. Defendants have not taken reasonabl e actions to ensure that Medicaid services are provided in the most integrated setting appropriate for Plaintiffs.
121. At all tim es relevant, Defendants ha ve acted under color of state law in failing and refusing to provide coverage of m edically necessary incontinence briefs for Plaintiffs.
122. There is no plain, adequate, or complete remedy at law to prevent or redress the harm suffered by Plain tiffs as a result of Defendants’ failure and refusal to provide coverage of medically necessary incontinence briefs.
123. Plaintiffs are suffering and will su ffer irreparable harm as a result of Defendants’ ongoing unlawful failure to cover incontinence briefs.
VI. CLAIMS FOR RELIEF First Claim for Relief
124. Plaintiffs restate and incorporate by reference paragraphs 1 through 123 above.
125. Defendants’ regulation, 13 C. S.R. § 70-60.010, and policy, Missouri Durable Medical Equipm ent Provider Manu al, § 31.22.B, which exclude incontinent supplies for adults who live in the ir homes and communities, ar e in c onflict with the reasonable standards requirements of federal Medicaid Act, 42 U.S.C. § 1396a(a)(17), its
23 Case 2:10-cv-04185-NKL Document 1 Filed 08/23/10 Page 23 of 28

implementing regulations and interpretive federal guidelines, and are preem pted by the Supremacy Clause of the United States Constitution, art. VI.
Second Claim for Relief 126. Plaintiffs restate and incorporate by reference paragraphs 1 through 125 above. 127. Defendants’ regulation, 13 C.S. R. § 70-60.010, policy, Missouri Durable Medical Equipment Provider Manual, § 31.2 2.B, and practice of denying Plaintiffs coverage of incontinence briefs violates the Medicaid Act’s home health requirement, 42 U.S.C. §§ 1396a(a)(10)(A), 1396a (a)(10)(D), 1396d(a)(4), enforceable by Plaintiffs pursuant to 42 U.S.C. § 1983, in that it elim inates coverage of a m andatory home health service—medical supplies—for the categorically needy Medicaid Plaintiffs.
Third Claim for Relief 128. Plaintiffs restate and incorporate by reference paragraphs 1 through 127 above. 129. Defendants’ regulation, 13 C. S.R. 13 C.S.R. § 70-60.010, and policy, Missouri Durable Medical Equipm ent Provider Manual, § 31.22.B, which elim inate coverage of m andatory home health serv ices, including m edical supplies, for categorically needy individuals, including Plai ntiffs, is in conflict with the m andatory service coverage requirements of th e federal Medicaid Act, 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(10)(D), 1396d(a)(4) and im plementing regulations, and is preempted by the Supremacy Clause of the United States Constitution, art. VI.
Fourth Claim for Relief
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130. Plaintiffs restate and incorporate by reference paragraphs 1 through 129 above.
131. Each of the Plaintiffs is “a qualified individual with a disability” within the meaning of 42 U.S.C. § 12131(2). Each o f the Plaintiffs has multiple dis abilities which significantly lim it their life activ ities in profound ways, including m obility, the ability to pr ovide self-care, the ab ility to communicate, and their bo wel and bla dder control, among other major life activities.
132. Defendants’ policy of providing inc ontinence briefs to those living in institutions, such as nursing homes, but not those living in the communi ty, violates the Americans with Disabilities Act, 42 U.S.C. § 12131-12134, and its im plementing regulations, which prohibit discri mination on the basis of disabi lity, require that services be made available in the community, rather than in institutions, where to do so m eets the needs of qualified individuals with disabilities, and require that re asonable modifications be made to state programs to avoid discrimination on the basis of disability.
133. Defendants have utilized criteria and methods of administering the Missouri Medicaid program that subject the Plaintiffs to discrimination on the basis of disability by (1) arbitrarily refusing to m ake their Medicaid Exception P rocess available under any circumstances to Plaintiffs; and (2) covering adult diapers for adults residing in nursing homes and other such institutions but not the Plaintiffs who reside in the community.
Fifth Claim for Relief 134. Plaintiffs restate and incorporate by reference paragraphs 1 through 133 above.
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135. The Plaintiffs are qualified individuals with disabilities under Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a).
136. The Missouri Department of Social Services receives federal financial assistance.
137. Defendants’ policy of providing inc ontinence briefs to those living in institutional settings, such as nursing hom es, but not to those living in the community, violates Section 504 of the Rehabilitation Ac t, 29 U.S.C. § 794(a) and its im plementing regulations, which prohibit discri mination on the basis of disabi lity, require that services be made available in the community, rather than in institutions, where to do so m eets the needs of qualified individuals with disabilities, and require that re asonable modifications be made to the Federally funded program to avoid discrim ination on the basis of disability.
138. Defendants have utilized criteria and methods of administering the Missouri Medicaid program that subject the Plaintiffs to discrimination on the basis of disability by (1) arbitrarily refusing to m ake their Prio r Authorization Process or their Medicaid Exception Process available under any circumstances to Plaintiffs; and (2) covering adult diapers for adults residing in nursing hom es and other such institutions but not the Plaintiffs who reside in the community.
REQUEST FOR RELIEF A. Assume jurisdiction over this action; B. Issue a declaratory judgm ent holding that: (1) Mo. Rule 13 C.S.R. 13 C.S.R. § 70-60.010 and policy violate the mandatory service coverage requirements of the Medicaid Act, 42 U.S.C. §§ 1396a(a)(10)(A ), 1396a(a)(10)(D), 1396d(a)(4), and are
26 Case 2:10-cv-04185-NKL Document 1 Filed 08/23/10 Page 26 of 28

thus invalid; (2) Mo. Rule 13 C.S.R. 13 C.S.R. § 70-60.010 and policy are inconsistent

with the reasonable standards and mandatory service coverage requirements of 42 U.S.C.

§§ 1396a(a)(10)(A), (B), & (D ); 1396a(a)(17); and 1396d(a )(4), their im plementing

federal regulations and guidelines, and are thus preempted by the Suprem acy Clause of

the United States Cons titution, art. VI; and (3) Mo. Rule 70-60.010 and policy, and

Defendants’ failure to m ake reasonable modifications in that rule violate the AD A, 42

U.S.C. § 12132, and Section 504, 29 U.S.C. § 794, and are thus invalid;

C. Grant preliminary and perm anent injunctions that prohibit

Defendants Levy and McCaslin from implementing and enforcing Mo. Rule 13 C.S.R.

70-60.010 and from refusing to provide Med icaid coverage of m edically necessary

incontinence briefs for Plaintiffs as determined by their physicians;

D.

Award Plaintiffs their reasonable attorneys’ fees and costs; and

E. Grant such other and further relief as may be just and proper.

Respectf

ully submitted,

Daniel Robert Legal 4232 St. (314) (314)
John Saint

/s/ Joel Ferber Joel Ferber # 35165
Claggett # 26982 Swearingen # 33339 Services of Eastern Missouri, Inc. Forest Park Avenue Louis, Missouri 63108 534-4200 telephone 534-1028 facsimile jdferber@lsem.org declaggett@lsem.org rlswearingen@lsem.org
/s/ John J. Ammann J. Ammann # 34308 Louis University Legal Clinic

27 Case 2:10-cv-04185-NKL Document 1 Filed 08/23/10 Page 27 of 28

321 St. (314) (314)
Thom
230 St. (314) (314)
National
(919) (919)

N. Spring Street Louis, Missouri 63108
977-2778 telephone 977-1180 facsimile ammannjj@slu.edu
/s/ Thomas E. Kennedy, III as E. Kennedy, III # 46617
Law Offices of Thomas E. Kennedy, III, L.C.
S. Bemiston Avenue Louis, Missouri 63105
872-9041 telephone 872-9043 facsimile tkennedy@tkennedylaw.com
/s/ Jane Perkins Jane Perkins
Health Law Program, Inc. 101 East Weaver St., Suite G-7 Carrboro, North Carolina 27510
968-6308 telephone 968-8855 facsimile perkins@healthlaw.org
ATTORNEYS FOR PLAINTIFFS

28 Case 2:10-cv-04185-NKL Document 1 Filed 08/23/10 Page 28 of 28

 
 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

STEVEN HILTIBRAN, by and through his )

mother and guardian, Debra Burkhart;

)

NICHOLAS TATUM, by and through his )

mother and next friend, Stacy Tatum;

)

RONALD COONTZ, by and through his )

mother and guardian, Patricia Coontz; and )

NENA HAMMOND,

)

Plaintiffs,

)

v.

)

RONALD J. LEVY, in his official capacity )

as Director of the Missouri Department of )

Social Services; and

)

IAN M cCASLIN, M.D., in his official )

capacity as Director of the MO HealthNet )

Division,

)

Case No. 10-4185-CV-C-NKL

Defendants.

)

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Joel Ferber # 35165 Daniel Claggett # 26982 Robert Swearingen #33339 Legal Services of Eastern Missouri 4232 Forest Park Avenue St. Louis, Missouri 63108 (314) 534-4200 telephone (314) 534-1028 facsimile jdferber@lsem.org; declaggett@lsem.org rlswearingen@lsem.org

John J. Ammann # 34308 Saint Louis University Legal Clinic 321 N. Spring Street St. Louis, Missouri 63108 (314) 977-2778 telephone (314) 977-1180 facsimile ammanjj@slu.edu

Thomas E. Kennedy, III # 46617 Law Offices of Thomas E. Kennedy, III, L.C. 230 S. Bemiston Avenue St. Louis, Missouri 63105 (314) 872-9041 telephone (314) 872-9043 facsimile tkennedy@tkennedylaw.com

Jane Perkins National Health Law Program, Inc. 101 East Weaver St., Suite G-7 Carrboro, North Carolina 27510 (919) 968-6308 telephone (919) 968-8855 facsimile perkins@healthlaw.org

ATTORNEYS FOR PLAINTIFFS

Case 2:10-cv-04185-NKL Document 7 Filed 08/24/10 Page 1 of 41

TABLE OF CONTENTS
Table of Contents…………………………………………………………….…………....i Table of Authorities ……………………………………………………………………...iii Preliminary Statement…………………………………………………………………….1 Background on the Medicaid Program ….………………………………………………. 2 Missouri’s Incontinence Supplies Policy………………………………………………… 3
Argument ……………………………………………………………………………..4 I. Standard for Preliminary Relief …………………………………………………. 4 II. Plaintiffs Are Likely To Succeed On The Merits Of Their Claims…………...5
A. Defendants’ Regulation and Policy Likely Violate the “Reasonable Standards” Requirement…………………………………………………….5 1. Missouri’s Regulation and Policy Employ Unreasonable Standards by Imposing Standards that are More Restrictive than Medical Necessity...6 2. Plaintiffs’ Adult Diapers are Medical Supplies that Must be Covered When Medically Necessary……………………………………………..8 3. Plaintiffs are Prohibited from using the “Exceptions Process" for Coverage of Adult Incontinence Briefs………..………………………12
B. Defendants’ Policies Likely Violate the Mandatory Home Health Services Requirement of the Medicaid Act …………………….………………......12
C. Plaintiffs are Likely to Succeed on the Merits of their Claims that Defendants are violating the ADA and Section 504 of the Rehabilitation Act .……..………………………………………………………………….14 1. The ADA and Section 504 prohibit discrimination against individuals with disabilities .………………………………………...14 2. The “integration mandate” of the ADA and Section 504 prohibit unjustified and unnecessary institutionalization ……………….. 15 3. Defendants are likely violating the integration mandate ….…….18
i Case 2:10-cv-04185-NKL Document 7 Filed 08/24/10 Page 2 of 41

4. Defendants are likely violating the ADA and Section 504 methods of administration requirements ………………………………….22
III. The Plaintiffs Are Suffering Irreparable Harm as a Result of the Defendants’ Failure to Cover Adult Incontinence Briefs …………………………………23
IV. The Threat of Serious, Health-Related Injury to the Plaintiffs Clearly Outweighs any Potential Harm to Defendants ………………………………27
V. An Injunction is in the Public Interest……………………………………… 29 VI. No Bond Should Be Required ……………………………………………....30 Conclusion……………………………………………………………………………….31
ii Case 2:10-cv-04185-NKL Document 7 Filed 08/24/10 Page 3 of 41

Cases

TABLE OF AUTHORITIES

Allison v. Dept of Corrections, 94 F.3d 494 (8th Cir. 1996)............................................ 15

Amisub (PSL) Inc v. Colo. Dept of Social Services, 879 F.2d 789 (10th Cir. 1989)....... 29

Ark. Med. Soc., Inc. v. Reynolds, 6 F.3d 519 (8th Cir. 1993).......................................... 27

Ball v. Rodgers, No. CV 00-67-TUC-EHC, 2009 U.S. Dist. LEXIS 45331

(D. Ariz. April 24, 2009)………………………………………………….…………...17

Barnes v. Gorman, 536 U.S. 181 (2002)........................................................................... 15

Beal v. Doe, 432 U.S. 438 (1977)....................................................................................... 5

Bell v. Agency for Health Care Admin., 768 So.2d 1203 (Fla. Ct. App. 2000)............. 6, 7

Bragdon v. Abbott, 524 U.S. 624 (1998).......................................................................... 15

Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009) .................... 17, 23, 24

Bristol v. R.I. Dept of Human Serv., No. 95-6605, 1997 R.I. Super. LEXIS 14

(R.I. Super Ct. Jan. 30 1997) .......................................................................................... 7, 8

Crabtree v. Goetz, NO. 3:08-0939, 2008 U.S. Dist. LEXIS 103097

(M.D. Tenn. Dec. 18, 2008) ............................................................................................. 20

Dataphase Sys. v. C L Sys., Inc., 640 F.2d 109 (8th Cir. 1981) ......................................... 5

Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289 (E.D.N.Y. 2009)................ 15

Disability Advocates, Inc., v. Paterson, 653 F. Supp. 2d 184 (E.D. N.Y. 2009).............. 16

Eckloff v. Rodgers, 443 F. Supp. 2d 1173 (D. Ariz. 2006) ............................................ 8, 9

Edmonds v. Levine, 417 F. Supp 2d 1323 (S.D. Fla. 2006) ............................................. 24

Esteban v. Cook, 77 F. Supp. 2d 1256 (S.D. Fla. 1999)..................................... 6, 7, 11, 13

Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003). ............. 16, 17, 19, 20

Fred. C. v. Tex. Health and Human Serv. Comm’n, 924 F. Supp. 788 (W. D.Tex 1996).10

iii Case 2:10-cv-04185-NKL Document 7 Filed 08/24/10 Page 4 of 41

Glenwood Bridge, Inc. v. Minneapolis, 940 F.2d 367 (8th Cir. 1991)............................. 29 Gooding Rehabilitation, No. 1834, 2008 HHSDAB LEXIS 110 (Dept. of Health & Human Services, Aug. 26, 2008) ...................................................................................... 26 Grooms v. Maram, 563 F. Supp. 2d 840 (N.D. Ill. 2008)........................................... 20, 21 Harmony Court v. Leavitt, 188 Fed.Appx. 438 (6th Cir. 2006) ....................................... 19 Haskins v. Stanton, 794 F.2d 1273 (7th Cir. 1986) .......................................................... 28 Heather K. v. Mallard, 887 F. Supp. 1249 (N.D. Iowa 1995) .......................................... 29 Hern v. Beye, 57 F.3d 906 (10th Cir. 1995) ....................................................................... 7 Herweg v. Ray, 455 U.S. 265 (1982).................................................................................. 5 Hodges v. Smith, 910 F. Supp. 646 (N.D. Ga. 1995) ................................................. 11, 14 Hodgson v. Bd. of County Comm’rs, 614 F.2d 601 (8th Cir. 1980) .................................. 7 Hunter v. Powell, 944 F. Supp. 914 (S.D. Fla. 1996) ....................................................... 10 Ill. Hosp. Ass’n v. Ill. Dept of Public Aid, 576 F. Supp. 360 (N.D. Ill. 1983)................ 28 Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644 (9th Cir. 2009) ......... 30 J.D. v. Sherman, No. 06-4153-CV-C-NKL, 2006 U.S. Dist. LEXIS 78446 (W.D. Mo. 2006)…………………………………………………………………………11 Kaepa, Inc. v. Achilles Corp., 76 F.3d 624 (5th Cir. 1996) .............................................. 30 Kai v. Ross, 336 F.3d 650 (8th Cir. 2003)........................................................................ 24 Kan. Hosp. Ass’n v. Whiteman, 835 F. Supp. 1548 (D. Kan. 1993).................... 27, 29, 30 Kerr v. Holsinger, No. 03-68-JMH, 2004 U.S. Dist. LEXIS 7804 (E. D. Ky. Mar. 25, 2004). ................................................................................................................................ 31 Kohl v. Woodhaven Learning Ctr., 865 F.2d 930 (8th Cir. 1989)...................................... 4 Ladd v. Thomas, 962 F. Supp. 284 (D. Conn. 1997)........................................................ 13 Lakeridge Villa Health Care Ctr v. Leavitt, 202 Fed.Appx. 903 (6th Cir. 2006)............. 19
iv Case 2:10-cv-04185-NKL Document 7 Filed 08/24/10 Page 5 of 41

Lakeridge Villa Health Care, No. A-05-30, 2005 HHSDAB LEXIS 105, at *64 (Dept. of Health & Human Services, July 28, 2005) ....................................................................... 26 Lankford v. Sherman, No. 05-4285-CV-C-DW, 2007 U.S. Dist. LEXIS 14950 (W.D. Mo. Mar. 2, 2007) ................................................................................................. 27, 28, 29 Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006) .................... 2, 3, 4, 5, 6, 7, 10, 12, 28 Layton v. Elder, 143 F.3d 469 (8th Cir. 1998) ................................................................. 15 Livingston Care Ctr v. Dept. of Health & Human Serv., 388 F.3d 168 (6th Cir. 2004). . 19 Makin v. Hawaii, 114 F. Supp. 2d 1017 (D. Haw. 1999) ................................................. 17 Marlo M. v. Cansler, No. 5:09-CV-535-BO, 2010 U.S. Dist. LEXIS 3426 (E.D.N.C. Jan. 17, 2010)............................................................................................. 16, 17 McMillan v.McCrimon, 807 F. Supp. 475 (C.D. Ill 1992)............................................... 24 McNeill-Terry v. Roling, 142 S.W.3d 828 (Mo. App. 2004) ....................................... 6, 30 Mental Disability Law Clinic v. Hogan, 06-CV-6320, 2008 U.S. Dist. LEXIS 70684 (E.D.N.Y. August 26, 2008) ............................................................................................. 17 Miss. Hosp. Ass’n v. Heckler, 701 F.2d 511 (5th Cir. 1983) ........................................... 29 Mo. Bd of Nursing Home Adm'rs v. Gallop, 1995 Mo. Admin Hearings LEXIS 16 (Mo. Admin Hearing Comm’n, May 3, 1995)..................................................................... 26, 27 Mo. Bd of Nursing Home Adm'rs v. Pulos, No. 88-001548NH, 1990 Mo. Admin. Hearings LEXIS 12 (Mo. Admin. Hearing Comm’n, Sept. 10, 1990) ............................. 26 Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171 (6th Cir. 1995)............................ 30 Nemnich v. Stangler, No. 91- 4517-CV-C-5, 1992 WL 178963 (W.D. Mo. Jan. 7, 1992) ....................................................................................... 24, 27, 29 Olmstead v. L.C., 527 U.S. 581 (1999). ......................................................... 14, 16, 17, 18
v Case 2:10-cv-04185-NKL Document 7 Filed 08/24/10 Page 6 of 41

Preterm, Inc. v. Dukakis, 591 F.2d. 121 (1st Cir. 1979).................................................... 7 Radaszewski v. Maram, No. 01 C 9551, 2008 U.S. Dist. LEXIS 24923 (N.D. Ill. March 26, 2008) ................................................................................................ 20 Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) ............................................... 16, 18 Rinaldi Convalescent Hosp. v. Dept of Health Serv., 72 Cal. Rptr.2d 606 (Cal. Ct. App. 1998) ................................................................................................................................... 8 S.D v. Hood, 391 F.3d 581 (5th Cir. 2004) .................................................................... 8, 9 Schweiker v. Gray Panthers, 453 U.S. 34 (1981) ..................................................... 2, 5, 28 Slekis v. Thomas, 523 U.S. 1098 (1999), vacating and remanding, Desario v. Thomas, 139 F.3d 80 (2d Cir. 1998).................................................................................................. 6 Smith v. Benson, No. 09-21543-CIV, 2010 WL 1404066 (S.D. Fla., January 28, 2010)................................................................................................ 8, 9, 11, 26 Tallahassee Mem’l Reg’l Med. Ctr. v. Cook, 109 F.3d 693 (11th Cir. 1997).................. 29 Townsend v. Quasim, 328 F.3d 511 (9th Cir 2003) ................................................... 16, 20 V.L. v. Wagner, No. C 09-04668 CW, 2009 U.S. Dist. LEXIS 99107 (N.D. Cal. Oct. 23, 2009) ................................................................................................................................ 17 V.L. v. Wagner, 669 F. Supp. 2d 1106 (N.D. Cal. 2009) ................................................. 24 Weaver v. Reagen, 886 F.2d 194 (8th Cir. 1989) ................................................. 2, 5, 7, 12 White v. Martin, No. 02-4154-CV-CNKL, 2002 U.S. Dist. LEXIS 27281 (W.D. Mo. Oct. 3, 2002)…………………………………………………………………………..24, 27, 29 Winter v. Natural Res. Def. Council, 129 S.Ct. 365 (2008) ............................................... 5 Wisconsin Dept of Health and Family Serv. v. Blumer, 534 U.S. 473 (2002)................... 5 Young v. Apfel, 221 F.3d 1065 (8th Cir. 2000). .............................................................. 26 Young v. Harris, 599 F.2d 870 (8th Cir. 1979)................................................................. 30
vi Case 2:10-cv-04185-NKL Document 7 Filed 08/24/10 Page 7 of 41

Federal Statutes 29 U.S.C. § 705(20) .......................................................................................................... 15 29 U.S.C. §794(a). ............................................................................................................ 15 42 U.S.C. § 12101............................................................................................................. 16 42 U.S.C. § 12101(a)(8).................................................................................................... 14 42 U.S.C. § 12132(2) ........................................................................................................ 15 42 U.S.C. § 1396-1 ................................................................................................... 2, 5, 23 42 U.S.C. § 1396a(a)(10)(A) ........................................................................................ 3, 12 42 U.S.C. § 1396a(a)(10)(D) ....................................................................................... 13,14 42 U.S.C. § 1396a(a)(17)................................................................................................. 5,8 42 U.S.C. § 1396d(a)(4)(A) .............................................................................................. 13 42 U.S.C. §§ 12131-12165 ............................................................................................... 14 42 U.S.C. §§ 1396-1396w-2 ............................................................................................... 2
State Statutes Mo Rev. Stat. § 208.152.1(19)...................................................................................... 3, 10 Mo.Rev. Stat. § 208.151 ................................................................................................... 28
Federal Regulations 28 C.F.R. § 35.130(b)(3)................................................................................................... 23 28 C.F.R. § 35.130(d) ....................................................................................................... 16 28 C.F.R. § 41.32. ............................................................................................................. 15 28 C.F.R. § 41.51(b)(3)(i)................................................................................................. 23 28 C.F.R. § 35.104 ............................................................................................................ 15 42 C.F.R. § 440.210 .......................................................................................................... 13
vii Case 2:10-cv-04185-NKL Document 7 Filed 08/24/10 Page 8 of 41

42 C.F.R. § 440.230(b) ....................................................................................................... 6 42 C.F.R. § 440.230(c)........................................................................................................ 6 42 C.F.R. § 440.230(d) ..................................................................................................... 29 42 C.F.R. § 441.15 ............................................................................................................ 13 42 C.F.R. § 440.70(b)(3)................................................................................................... 13 45 C.F.R. § 84.4(b)(4)....................................................................................................... 23
State Regulations 13 C.S.R § 70-10.010........................................................................................................ 21 13 C.S.R. § 70-10.015....................................................................................................... 21 13 C.S.R. § 70-60.010......................................................................................... 1, 3, 10, 21 13 C.S.R. § 70-91.010....................................................................................................... 18 13 C.S.R. § 70-92.010....................................................................................................... 18 13 C.S.R. § 70-2.100......................................................................................................... 12
Miscellaneous 75 Fed Reg. 10289-90 (March 5, 2010)............................................................................ 13 75 Fed. Reg. 22807-2208.................................................................................................... 2 American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5, § 5001
(Feb. 17, 2009) ................................................................................................................ 2 CMS, Dear State Medicaid Director (Sept. 4, 1998) .......................................................... 6 DSS, Provider Bulletin Vo. 31, No. 52, March 6, 2009 ................................................ 4, 9 H.R. Rep. No. 101-485, pt. 3, at 49 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 472... 14 H.R. Rep. No. 213, 89th Cong., 1st Sess; S. Rep. No. 404, 89th Cong., 1st Sess., Pt. 1,
reprinted in 1965 U.S.C.C.A.N. 2020-21 ........................................................................ 3
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Medicaid Reform Comm’n, Report (Dec. 2005) ………………………………………. 22 Missouri Durable Medical Equipment Provider Manual, § 13.22.B. ................................. 4 Missouri Medicaid Durable Medical Equipment Billing Book, at 7.1, October 2009 ....... 9 MO HealthNet PA Criteria ............................................................................................... 10 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 2046 (2010).......... 22
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PRELIMINARY STATEMENT Plaintiffs are low-inco me Missouri reside nts who rece ive their health services through Missouri’s Medicaid program, known as MO HealthNet. Plaintiffs suffer fr om a range of disabilities, includi ng severe cerebral palsy, ps ychosis, scoliosis, static encephalopathy (permanent brain dam age), seizure disorder, liver disease, and m ental retardation. As a result of th eir disabilities, Plaintiffs have no bladder or bowel control; they are incontinent. Plaintiffs’ physicians have determined that incontinence briefs are medically necessary to prevent skin breakdowns and infections and to maintain Plaintiffs’ ability to live in the community. Th e Department of Social Services, which administers the Missouri Medicaid program , has refused Plaintiffs’ claims on grounds that their incontinence briefs are personal hygiene items. Defendants have promulgated a regulation, 13 C.S.R. § 70-60.010, and policy that cover incontinence briefs needed by recipients who are under age 21. Defendants’ policy also covers incontinence brie fs as necessary sup plies for individuals over age 20 if they live in institutional settings, such as nursing homes. As a result of these policies, three of the plaintiffs lost Medicaid coverage of their incontinence supplies upon turning 21, and all will go without the prescr ibed adult diapers unless they go into a nursing home . Plaintiffs face a high likelihood of hospitalizations to address in fections and m ay be forced into nursing homes in order to receive these necessary supplies. Plaintiffs seek declaratory and injunctive relief to enjoin Defendants from denying Medicaid coverage of thei r medically necessary incontinence supp lies and th ereby violating federal Medicaid and disability disc rimination mandates. Plaintiffs seek a fair process by which they can establish the medical necessity of adult diapers, just as three of them did before they reached 21 years of age.
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BACKGROUND ON THE MEDICAID PROGRAM Congress created the Medicaid program in 1965 by adding Title XIX to the Social Security Act, 42 U.S.C. §§ 1396-1396w-2 (her einafter “the Act” ). T he purpose of Medicaid is to enable each State, as far as practicable, to furnish “rehabilitation and other services to help … [low-income] … families and individuals attain or retain capability for independence or self-care.” 42 U.S.C. § 1396-1. State participation in M edicaid is optional. H owever, a s tate that chooses to participate, and thereby receive federal m atching funds for program expenditures, “must comply with requirements imposed both by the Act itself and by the Secretary of He alth and Human Services.” Schweiker v. Gray Panthers , 453 U.S. 34, 37 (1981); see also Lankford v. Sherm an, 451 F.3d 496, 504 (8th C ir. 2006); Weaver v. Reagen , 886 F.2d 194, 197 (8th Cir. 1989). Missouri participates in the Medicaid program and accepts federal matching funds for its program expenditures. During fi scal years 2010 and 2011, th e State will receive enhanced federal funding as a result of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5, § 5001 (Feb. 17, 2009). The federal governm ent will pay more than 70 cents of each dollar spen t on Medicaid services in Missouri, including more than 74 cents of each dollar for the second quarter of fiscal year 2010. 75 Fed. Reg. 22807-2208 (April 30, 2010). W ithout the enhan ced funding from ARRA, the federal government would norm ally pay more than 64 cents of each dollar spent on Medicaid services in Missouri. Id. Medicaid is not available to everyone who is poor. Ra ther, it only covers certain groups of needy individuals, with almost all of those groups being lis ted or referenced in
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42 U.S.C. § 1396a(a)(10)(A). Missouri must cover some of the groups listed in § (10)(A) and has the option to cover additional groups. The groups that a state m ust cover, referred to in Medicaid parlance as the “categorically needy,” include individuals who are aged, blind, or disabled, work ing disabled individuals, and children and pregnant women who meet federal poverty level standards. Id. at § 1396a(a)(10)(A)( i). All Missouri Medicaid recipients are “categ orically needy.” Lankford , 451 F.3d at 504. W hen it enacted Medicaid, Congress stated that categorically needy people “are the most needy in the country and it is appropriate for m edical care costs to be met, first, for these people.” H.R. Rep. No. 213, 89th Cong., 1st Sess; S. Rep. No. 404, 89th Cong. , 1st Sess., Pt. 1, reprinted in 1965 U.S.C.C.A.N. 2020-21.
MISSOURI’S INCONTINENCE SUPPLIES POLICY Missouri provides coverage of incontinen ce briefs through its durable m edical equipment (DME) program . Missouri la w requires Defenda nts to cover all medically necessary DME “using best m edical evidence and care and treatm ent guidelines, consistent with national standards to verify medical need.” Mo Rev. Stat. § 208.152.1(19). The State has prom ulgated a regulation governing its DME program. 13 C.S.R. § 70-60.010. This regulation does not list the specific DME items that the State will cover but rather incorporates by reference the DME Pr ovider Manual and Provider Bulletins, which specifically describe the DME covered by the MO HealthNet Division. 13 C.S.R. § 70-60.010(6); see also 13 C.S.R. § 70-60.010(2) (“Covered services are limited as specified in the DME provider manual and bulletins.”).
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Defendants have promulgated Provider Manual and Bulletin provisions regarding coverage of incontinence briefs. 1 Under thes e policies, Missouri cov ers incontinence
briefs for individuals aged four through twenty years when these supplies are determ ined
to be m edically necessary th rough a prior authoriz ation process. W hen an individual
becomes 21 years old, however, the Missouri Medicaid program considers incontinence briefs to be “personal hygiene” or non-m edical items.2 Unless the individ ual is living in
or goes into an institution, the supplies are no longer covered, even if the State’s prior
authorization process previ ously determined that th ese services were m edically
necessary.
ARGUMENT
I. STANDARD FOR PRELMINARY RELIEF
Injunctive relief is “an equitable remedy shaped to right an ongoing wrong.”
Kohl v. W oodhaven Learning Ctr. , 865 F.2d 930, 934 (8th Cir. 1989). There are four
factors that this Cour t must consider in determining whether to grant preliminary relief:
“(1) the p robability of success on the m erits, (2) the thr eat of irreparable harm to the
movant, (3) the balance between the harm and the injury that granting the injunction will
inflict on other parties, and (4 ) the public interest.” Lankford , 451 F.3d at 503 (citing
1 Missouri Durable Medical Equipm ent Provider Manual, § 13.22.B, at http://manuals.momed.com/collections/collection_dme/Durable_Medical_Equipment_Se ction13.pdf; DSS, Provider Bulletin Vo. 31, No. 52, March 6, 2009 (“DME Provider Bulletin”), at http://www.dss.mo.gov/mhd/providers/pdf/bulletin31-52_2009mar06.pdf (Ex. 5 and 6).
2 Defendants’ policy is summarized in recent corresponden ce from the Special Counsel for the Missouri Department of Social Services: “Incontinence supplies are noncovered for adults through MO Hea lthNet’s DME program. Diapers are considered a personal hygiene item , not an essential m edical item, and have never been a covered service for adults” in Missouri. Allen Letter, Fe bruary 23, 2010 (Ex. 1) (em phasis added).
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Dataphase Sys. v. C L S ys., Inc., 640 F.2d 109, 114 (8th Cir. 1981); see also Winter v.

Natural Res. Def. Council, 129 S.Ct. 365 (2008). Plaintiffs meet all these factors.

II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS.

A. Defendants’ Regulation and Policy Standards” Requirement.

Likely Violate the “Reasonable

The Medicaid Act requires a participating state to em

ploy “reasonable

standards…for determining…the extent of medical assistance under the plan which…are

consistent with the ob jectives of this s ubchapter.” 42 U.S. C. § 1396a(a)(17). See

Wisconsin Dept of He alth and Fam ily Serv. v. Blum er, 534 U.S. 473, 479 (2002);

Schweiker v. Gray Panthers , 453 U.S. 34, 36-37 (1981); Herweg v. Ray , 455 U.S. 265

(1982); Lankford v. Sherman, 451 F.3d at 506 (noting that while “a state has considerable

discretion to fashion m edical assistance under its Medicaid plan, this discretion is

constrained by the reasonable-standards requirement”).

The primary objective of Medicaid is “to furnish medical assistance to individuals

whose income and resources are insufficient to meet the cost of necessary m edical

services,” Beal v. Doe, 432 U.S. 438, 444-45 (1977), and to furnish rehabilitation and

other services to help such individual “attain or retain capability for independence or self-

care.” 42 U.S.C. § 1396-1. See also Weaver, 886 F.2d at 198 (citing Beal and stating,

“[t]his provision [(a)(17)] has been interpre ted to requ ire that a state Med icaid plan

provide treatment that is deem ed ‘medically necessary’ in order to c omport with the

objectives of the Act”); Lankford , 451 F.3d at 511 (“[A] state’s failure to p rovide

Medicaid coverage for non-experimental, medically necessary services within a covered

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Medicaid category is per se unreasonable Medicaid.”) (emphasis added).3

and inconsistent with the stated goals of

The “reasonable standards” requirement applies to co verage of m edical

equipment and supplies. See Lankford, 451 F.3d at 510 (“[T]he federally funded DME

program must com ply with Medicaid ’s reasonable standards requirem ent, and its

implementing regulations.”). Moreover, “CMS (the agen cy that adm inisters Medicaid)

maintains that the reasonable standards provisions apply to

all forms of medical

assistance, including a s tate’s provision of DME.” Id. at 508 (em phasis added).4 Thus,

courts have struck down state Medicaid policies that restrict access to medical equipment

and supplies as violations of “reasonable standards.” See id. at 511-12; Esteban v. Cook,

77 F. Supp. 2d 1256, 1262 (S.D. Fla. 1999); Bell v. Agency for Health Care Admin., 768

So.2d 1203, 1204 (Fla. Ct. App. 2000).

1. Missouri’s Regulation and Pol icy Employ Unreasonable Standards by Imposing Standards that are More Restrictive than Medical Necessity.

Missouri’s incontinent supplies polic y violates the reasonable standards

requirement because it denies access to m edically necessary incontinence supplies to

anyone over the age of 20 who is not institutio nalized but is living in his or her hom e.

3 A state Medicaid program employs reasonable standards when it ensures tha t

each provided service is covered in “sufficient…am ount, duration, and scope to

reasonably achieve its purpose.” 42 C.F.R. § 440.230(b); Lankford , 451 F.3d at 506;

McNeill-Terry v. Roling, 142 S.W.3d 828, 834 (Mo. App. 2004). Furtherm ore, it may

not impose arbitrary lim itations on required services, such as m edical equipment and

supplies, “solely because of the diagnosis, ty pe of illn ess, or conditio n.” 42 C.F.R. §

440.230(c); Lankford, 451 F.3d at 506. 4 See CMS, Dear State Medicaid Directo

r (Sept. 4, 1998), at

http://www.cms.gov.hhs.gov/states/letters/smd90498.asp (Ex. 12). On the basis of this

agency guidance, the Supreme Court vacated a court of appeals decision that had allowed

the Connecticut Medicaid program to exclude coverage of m edically necessary medical

equipment—a home health service. See Slekis v. Tho mas, 523 U.S. 1098 (1999),

vacating and remanding, Desario v. Thomas, 139 F.3d 80 (2d Cir. 1998).

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Courts have invalidated sim ilar state policie s that subject som e Medicaid recip ients’ coverage of an item or service to standards harsher or narrower than medical neces sity. See Lankford, 451 F.3d at 511-13; W eaver, 886 F.2d at 198 (invalidating Missouri regulation restricting Medicaid coverage of drug AZT and denying the drug to recipients for whom the drug was m edically necessary); Hodgson v. B d. of County Comm ’rs, 614 F.2d 601, 608 (8th C ir. 1980); Hern v. Beye , 57 F.3d 906, 910-11 (10th Cir. 1995); Preterm, Inc. v. Dukakis , 591 F.2d. 121, 126, 131 (1st Cir. 1979). Thus, Missouri “cannot arbitrarily choose which DME item s to reimburse under its Medicaid policy.” Lankford, 451 F.3d at 511.
In Lankford, the Eighth Circuit faulted a Missouri policy that excluded several items of m edical equipment and s upplies (e.g., respiratory care equ ipment, parenteral nutrition (feeding tubes), decubitus care equipm ent, wheel chair batteries, hospital beds) for certain disabled a dults without regard to m edical necessity as a violation of reasonable standards. 451 F.3d at 501, 511. See also, e.g., Esteban, 77 F. Supp. 2d at 1262 (state m ay not “arbitraril y or unreasonably” deny m edical equipment “entirely on the basis of age”); Bell , 768 So.2d at 1204-05 (exclusion of medical equipment and supplies for individuals age 21 and over was ar bitrary and unreasonable) . In Bris tol v. R.I. Dept of Hum an Serv., a Rhode Island state court stru ck down that state’s exclusion of adult incontinence briefs under the 42 U.S.C. § 1396(a )(17) “reasonable standards” requirement. No. 95-6605, 1997 R.I. Super. LEXIS 14, at *11 (R.I. Super. Ct. Jan. 30, 1997). The policy was inconsistent with the purposes and objectives of the Medicaid Act as it und ercut rather than promoted individuals’ ability to a ttain or r etain capability for independence and self-care. Id. at *11-12. The policy was also “a rbitrary and
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capricious because it exclude[d] coverage of services without regard to medical necessity and because it prov ide[d] inadequate defere nce to the treating or attending physician’s considered judgment.” Id. Missouri’s arbitrary exclusion of incontinence briefs is similarly unreasonable and in violation of 42 U.S.C. §1396a(a)(17).
2. Plaintiffs’ Adult Diapers are Medic al Supplies that Must be Covered When Medically Necessary.
Defendants seek to evade federal require ments by re-labeling Plaintiffs’ adult incontinence briefs as “n on-medical” or “personal hygiene” item s once they reach ed 21 years of age. See Ex. 1; McCaslin L etter, July 15, 2009 (Ex. 2); McCaslin E-m ail, April 28, 2009 (Ex. 3); Hiltibran Hearing Decision (Ex.4). This characterization is contradicted by common sense, as well as all applicable precedent and the Defendants’ own policies.
Multiple federal and sta te courts, th e federal government, and other s tates have specifically recognized that inco ntinence briefs are in fact medical supplies covered under federal Medicaid law. See , e.g., S.D v. Hood , 391 F.3d 581, 594- 595 (5th Cir. 2004) (noting CMS approval of state Medicaid plans that expressly authorize coverage of incontinence supplies, includi ng diapers); Eckloff v. Rodgers , 443 F. Supp. 2d 1173, 1177 (D. Ariz. 2006) (coverage of medical supplies “includes incontinence briefs”); Smith v. Benson , No. 09-21543-CIV, 2010 WL 1404066, at *8-10 (S.D. Fla., Jan. 28, 2010); Rinaldi Convalescent Hosp. v. Dept of Health Serv. , 72 Cal. Rptr.2d 606, 608-09 (Cal. Ct. App. 1998) (medically necessary adult diapers covered in California’s Medicaid program). As the court stated in S.D. v. Hood , “Giving effect to the natural and plain meaning of the term medical supplies in th e context of this case, we f ind that such medical supplies reasonably include the incontinence supplies medically prescribed for [Plaintiff].” 391 F.3d at 594.
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While these cases involved children’s c overage, all of thes e courts found that incontinence briefs were coverable medical items under federal Medicaid law, necessary to alleviate m edical conditions caused by bowe l or bladder incontinence such as skin breakdowns and infections. See S.D., 391 F.3d at 585, 602 (inc ontinence briefs dra w “moisture away from the skin which prevents chronic irritation and infection from urine wetness.”); Eckloff, 443 F. Supp. 2d at 1176-77 (“incontinence briefs … avoid skin breakdown and infection”); Sm ith, 2010 W L 1404066, at *9 (diapers “prevent skin irritation, rashes, skin breakdow n, and infections”). Not one of these courts suggested that incontinence briefs were mere personal hygiene or convenience items.
Significantly, Defendants’ characterization of incontinence briefs as non-m edical items when needed by adults living at hom e is contradicted by the fact that Defendants authorize coverage of adult diapers for individuals under age 21 if they establish medical necessity through the state-mandated prior authorization process.5 See Ex. 5 and 6. T he Agency covers incon tinence briefs for these individuals only where the item s are prescribed and determ ined to be appropriate when there is a m edical condition causing bowel/bladder incontinence. Id. Prior authorization “m ust include docum entation of medical need from a physician, ind icating a con dition causing excessive fecal o r urine output.” Ex. 6 (emphasis added).
As Defendants acknowledge, they are requ ired to “authorize Durable Medical Equipment using best medical evidence and care and treatm ent guidelines, consistent
5 Defendants’ March 6, 2009 DME Provider Bulle tin states that “[ i]n order to be approved [for adult diapers and related inc ontinence supplies], participants m ust be between ages four through twenty and m eet the medical criteria established by the MO HealthNet Division (MHD).” Ex. 5. See also Ex. 8, 9 (earlier MHD Provider Bulletins); Missouri Medicaid Durable Med ical Equipment Billing Book, at 7.1, October 200 9, at http://www.dss.mo.gov/mhd/providers/education/dme/dme.pdf (Ex. 10).
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with national standards to verif y medical need.” MO HealthNet PA Criteria, at http://www.dss.mo.gov/mhd/cs/dmeprecert/pdf/diapers.pdf (Ex. 7); Mo Rev. Stat. 208.152.1(19) (emphasis added). The im plementing state regulation similarly allows coverage of DME only when it is “m edically necessary as determined by the tre ating physician.” 13 C.S.R. 70-60.010 (2) (em phasis added). Defendants em ploy these requirements in m aking determinations regarding incontinence briefs for individuals under age 21. Defendants cannot sim ultaneously require individuals aged 20 and below to prove medical necessity based on the “best medical evidence” to qualify for coverage of incontinence briefs but label these same supplies as “n on-medical” items to d eny coverage when these individuals reach the age of 21.6
Clearly, Plaintiffs’ medical need for incontinence supplies did not disappear when they reached the age of 21. Harper Decl. ¶¶ 4, 10; Porter Decl., ¶ 3; Belancourt Decl. ¶ 4. Moreover, achieving 21 years of age does not convert a “m edical item” into a “personal hygiene” item. See Huskey Decl. ¶¶ 15-19. Yet, Plaintiffs are denied any opportunity to establish medical necessity for incontinence briefs. Denying Plaintiffs this opportunity is unreasonable. See Lankford, 451 F.3d at 496; Hunter v. Powell , 944 F. Supp. 914, 920 (S.D. Fla. 1996) (“ selection of age as the sole criterion for denying benefits is wholly unrelated to the m edical decision at hand and cannot m eet the fundamental legal concept of reasonableness”); Fred. C. v. Tex. H ealth and Human Serv. Comm’n, 924 F. Supp. 788, 791 (W. D.Te x 1996); vacated on other grounds , 117 F.3d 1416 (5th Cir. 1997), am ended by, 988 F. Supp. 1032 (W .D. Tex. 1997), aff' d, 167 F.3d
6 As Defendants acknowledged before this Court in the Lankford case, this state statute requires them to cover all medically necessary DME. “The [ state] legislation is consistent with Medicaid’s reasonable standards requirement. By its term s it covers all medically necessary items of DME.” Defenda nts’ Response to Court’s Order of March 2, 2007, in Lankford v. Sherman, at 2 (Ex. 24) (emphasis added).
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537 (5th Cir. 1998) (sam e); Esteban, 77 F. Supp.2d at 1262 (Florida m ay not arbitrarily or unreasonably deny motorized wheelchairs to Plaintiffs entirely o n the basis of age); accord Hodges v. Smith, 910 F. Supp. 646, 649 (N.D. Ga. 1 995) (Georgia could not deny enteral products—another medical supply—to individuals 21 and over).
Defendants’ policy also creates an illeg al irrebuttable presum ption that adult diapers are never medically necessary for adults over age 20 who live in the community—an approach that has been rej ected by the Eighth Circuit. In W eaver, the Eighth Circuit struck down a Missouri policy creating “an irrebuttable presum ption that AZT can never be m edically necessary for AID S patients” who did not m eet specified diagnostic criteria. 886 F.2d at 199. The Cour t also held that th e decision of whether certain treatment is medically necessary rests “with the in dividual recipient’s physician and not with clerical personnel or government officials.” Id. at 199; J.D. v. Sherman, No. 06-4153-CV-C-NKL, 2006 U.S. Dist. LEX IS 78446, at *10 (W .D. Mo 2006). See also Smith, 2010 WL 1404066, at *8 (striking Fl orida rule that “under all circumstances refuses to provide incontinence supplies deemed necessary by a treating physician”). In the instant case, there are no criteria under which Defendants will consider adult d iapers to be m edically necessary for th e Plaintiffs. And, the state officials have arbitrarily removed the decision of whether to provide incontinence briefs from the treatin g physician by excluding coverage of these item s in all circumstances. Defendants’ policy is unreasonable and violates the Medicaid Act.7
7 In addition to clearly esta blished legal precedent and Defendants’ own policies, Plaintiffs have presented overwhelming evidence that these items are medically necessary to prevent skin breakd own and inf ections as well as serious illnes s and even death . Huskey Decl. ¶¶ 2-24; Hurley Decl. ¶¶ 2-11; Ha rper Decl. ¶¶ 4-11; Porter Decl. ¶¶ 6-11; Belancourt Decl. ¶¶ 4-13; Anzalone Decl. ¶¶ 2-11.
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3. Plaintiffs are Prohibited from us ing the “Exceptions Process” for Coverage of Adult Incontinence Briefs.
Defendants’ “reasonable standards” violations are compounded by their failure to
make their own lim ited exceptions process available to Plain tiffs.8 In Lankford , the
Eighth Circuit struck down these sam e Defendants’ prior medical equipment policies as
unreasonable based, in part, on the inability of plaintiffs to access the e xcluded medical
supplies through an exceptions process. 451 F.3d at 513. In the instant case, the
Missouri Medicaid exceptions process is entirely unavailable to Plaintiffs and other adult
Missourians because th e State irrebuttab ly presumes that adult diapers are a pers onal
hygiene item rather than a “ medical item” and therefore cannot be covered through the
exceptions process. Ex.1-4; See Weaver, 886 F.2d at 199-200.9
B. Defendants’ Policies Likely Violate the Mandatory Home Health Services Requirement of the Medicaid Act.
In Missouri, all Medicaid recipients are categorically n eedy. The Medicaid Act
provides that the categorically needy are ent itled, among other things, to nursing facility
services for individuals 21 years of age or older. 42 U.S. C. §§ 1396a(a)(10)(A);
8 The Missouri Medicaid program employs an “Exceptions Process” for services that are not norm ally covered by th e Missouri Medicaid program . See 13 C.S.R. § 702.100. This process allows for exceptions to be m ade on a “case by case basis” for Medicaid recipients who meet one of four narrow criteria. Id .; Lankford, 451 F.3d at 513. Plaintiff Steven Hiltib ran’s exception re quest was denied even though he met at least two of these criteria because Defendant McCaslin found that S teven’s incontinence briefs were non-medical items. Ex. 4; Burkhart Decl. ¶¶ 15-16; Harper Decl. ¶6.
9 In justifying this arbitrary policy, Defendants mistakenly assert that the “medical necessity” requirement is inapplicable to adult Missouri Medicaid recipients. In a letter dated July 15, 2009, Defendant McCaslin stated that “[w]hile the determ ination of medical necessity is key to the federal EPSD T legislation for participants under age 21 . . . [m]edical necessity is not the guiding principal [sic]” for determining whether adults can receive a service pu rsuant to th e State’s Medicaid Exception Process —a position that directly contradicts federal Medicaid law and Eighth Circuit precedent. Lankford . 451 F.3d at 511; Ex. 2. Be cause “medical necessity” is in fact the “guid ing principle” for determining whether ad ults can receive a c overed service such as medical equipment, there is no legal basis for totally excluding them from coverage.
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1396d(a)(4)(A). The Act furthe r requires that, for all thos e entitled to nursing facility services, the state Medicaid agen cy must provide “home health services,” id . at § 1396a(a)(10)(D), including “[m]edical supplies, equipment, and appliances suitable for use in the home.” 42 C.F.R. 440.70(b)(3); see also 42 C.F.R. § 441.15. (“State Plan must provide that ... the [state Medicaid] agen cy provides hom e health services to ... Categorically needy recipients age 21 or over.”); Id. at § 440.210 (“State Plan must specify that, at a m inimum, categorically n eedy recipients are furnished ... the services defined in ... 440.70.”); Id. at § 440.210(a)(1).
The United States Departm ent of Hea lth and Hum an Services Centers fo r Medicare & Medica id Services (CMS) has al so issued Medicaid guidelines instructing states that hom e health, including m edical equipment and supplies, is a “m andatory” service for the categorically needy. Ex. 12. Notably, in a recent compliance action, CMS made it clear that the denial of home health s ervices to Missouri Medicaid beneficiaries violates 42 U.S.C. §1396a(a)(10)(D), which requires “the inclusion of hom e health services in the standard Medicaid benefit package.” Ex. 11, at 1. See also 75 Fed Reg. 10289-90 (March 5, 2010).
A number of courts have struck down st ate Medicaid policies that denied o r limited access to home health se rvices, including medical equipment and supplies. Noting that “[h]ome health care services are generally a mandatory service for the categorically needy,” the court in E steban v. Cook struck down a restriction that denied coverage of wheelchairs—a hom e health service—in violation of the M edicaid Act. 77 F. Supp. 2d 1256, 1259 (S.D. Fla. 1999). See also Ladd v. Thomas, 962 F. Supp. 284, 288 (D. Conn. 1997) (citing 42 C.F.R.§ 440.70(b )(3) and finding th at “Federal law
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mandates that participating states provide home health services, including durable medical equipment, to Medicaid particip ants where such equipm ent is m edically necessary.”); Hodges, 910 F. Supp. 646, 649 (N.D. Ga. 1995) (Georgia could not rely on its state plan to deny home health services because the “inclusion of home health services in the state medical plan is mandated by federal law”).
In the instant case, Missouri excludes coverage of incontinent supplies for individuals over the ag e of 20. Because su ch supplies are a m andatory home health service to which all M issouri Medicaid recipients are entitled, Defendants are violating 42 U.S.C. §1396a(a)(10)(D), which requires cove rage of hom e health services for all categorically needy individuals.
C. Plaintiffs are Likely to Succeed on the Merits of their Claim that Defendants are violating the ADA and Section 504 of the Rehabilitation Act. 1. The ADA and Section 504 prohib it discrimination against individuals with disabilities. Congress enacted the Am ericans with Di sabilities Act (hereinafter “ADA”) to
prohibit discrimination by all public entities. 42 U.S.C. §§ 12131-12165; H.R. Rep. No. 101-485, pt. 3, at 49 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 472. The goals of the ADA “are to assure equality of opportunit y, full participation, i ndependent living, and economic self-sufficiency for each indivi dual [with disabilities].” 42 U.S.C. § 12101(a)(8). The Suprem e Court has held that unjustified is olation is properly regarded as discrimination based on disability under the ADA. Ol mstead v. L.C., 527 U.S. 581, 597 (1999).
Title II of the ADA, which governs public programs such as the MO HealthNet Program, provides:
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[N]o qualified individual with a di sability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132; Layton v. Elder , 143 F.3d 469, 472 (8th Cir. 1998). See also Disability Advocates, Inc. v. Paterson , 598 F. Supp. 2d 289, 316 (E.D.N.Y. 2009) (Title II of the A DA applies to “all program s, services, and activ ities of a state or local government entity without any exception”) (emphasis in or iginal). Section 504 of the Rehabilitation Act applies the same standards to entities that rec eive federal financial assistance. 29 U.S.C. §794(a). Layton , 143 F.3d at 472. See also Allison v. Dept of Corrections, 94 F.3d 494, 497 (8th Cir. 1996); Barnes v. Gorm an, 536 U.S. 181, 184-85 (2002); Bragdon v. Abbott, 524 U.S. 624, 631-32 (1998). Under the ADA, a “qualified individual w ith a disability” is a person who “with or without reasonable modifications to rules, polices or practices” m eets the “essential eligibility requirements for the rece ipt of services or the particip ation in programs or activities provided by a public entity.” 42 U.S.C. § 12132(2). Section 504’s definition is substantially similar. See 29 U.S.C. § 705(20). 10 All Plaintiffs are eligible for Medicaid and are qua lified persons with disa bilities within the m eaning of the ADA and section 504. See Burkhart Decl. ¶¶ 1, 7; Coontz Decl. ¶¶ 3, 6, 7; Tatum Decl. ¶¶ 1, 6, 7, 12.
2. The “integration mand ate” of the ADA a nd Section 504 prohibit unjustified and unnecessary institutionalization.
10 ADA regulations define disabi lities, with respect to an individual, to include “a physical or m ental impairment that substant ially limits one or m ore of the m ajor life activities of such individual… such as cari ng for one' s self, perform ing manual tasks, walking, seeing, hearing, speaking, breathi ng, learning, and working.” 28 C.F.R. § 35.104. The Section 504 requirements are essentially the same. 28 C.F.R. § 41.32.
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The ADA’s integra tion mandate requires s tates to ensur e that se rvices are administered to people with disabilities in th e most integrated setting appropriate to their needs, and provides a defense to states only where they can show that it would be a fundamental alteration of their service system s to do so. Olm stead, 527 U.S. at 591-92, 603; Townsend v. Qua sim, 328 F.3d 511, 516-517 (9th Cir 2003); Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004); Fish er v. Okla. Health Care Auth. , 335 F.3d 1175, 1183 (10th Cir. 2003); Disability Advocates, Inc., v. Paterson, 653 F. Supp. 2d 184, 191 (E.D.N.Y. 2009); Marlo M. v. Cansler , No. 5:09-CV-535-BO, 2010 U.S. Dist. LEXIS 3426, at *5-6 (E.D.N.C. Jan. 17, 2010) . As explained below, covering incontinence supplies for Plaintiffs in their home will not require a fundamental alteration because Plaintiffs are not asking for a new se rvice. And, it would be far more expensive to serve Pla intiffs in a nursing ho me than to provide the m with adult diape rs in the community.
In enacting the ADA, Congress specifically found that segregation of persons with disabilities, especially in institutions, is a form of discrimination. 42 U.S.C. § 12101 (a)(2), (3), and (5). The ADA’s integ ration mandate requires p ublic entities to “administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Olmstead , 527 U.S. at 592; 28 C.F.R. § 35.130(d). The integration m andates of the ADA and Section 504 are virtually identical and are applied in the sam e manner. See Radaszewski, 383 F.3d at 607; Fisher, 335 F.3d at 1179 n.3 (10th Cir. 200 3); Disability Advocates Inc., 653 F. Supp. 2d at 190191.
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The integration mandate was analyzed and interpr eted by the Unite d States Supreme Court in the landm ark Olmstead decision. 527 U.S. at 597. The Ol mstead plaintiffs were individuals with m ental disabilities who were confin ed in Georgia’s state psychiatric institutions but who wanted to liv e in the community. Plaintiffs asserted that the state’s refusal to pay f or services that would enable them to live in comm unity settings violated the in tegration mandate of Title II of the ADA and its im plementing regulations. The Court agreed, and held that “unjustified isolation” is “properly regarded as discrimination based on disability.” Id. at 597. The Court interpreted the A DA’s “integration mandate” as re quiring persons with disabili ties to be served in the community rather than in ins titutions when community placem ent is appropriate, the transfer from institutional care to a less restrictive setting is not oppo sed by the affected individual, and the State cannot demonstrate a fundamental alteration of its programs and services. Id. at 587, 591-92, 602-603.
Plaintiffs do not need to wait until they are institutionalized to bring a claim under the integration mandate. Plaintiffs who currently reside in community settings may assert ADA integration claims to challenge state actions that give rise to a risk of unnece ssary institutionalization. See Fisher, 335 F.3d at 1181-82; Marlo M. , 2010 U.S. Dist. LEXIS 3426, at *5-6; Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009); Ball v. Rodgers, No. CV 00-67-TUC-EHC, 2009 U.S. Dist. LEXIS 45331, at *16 (D. Ariz. April 24, 2009); Mental Disability Law Clinic v. Hogan , 06-CV-6320, 2008 U.S. Dist. LEXIS 70684, 2008 WL 4104460, at *15 (E.D.N.Y. A ugust 26, 2008); V.L. v. W agner, No. C 09-04668 CW, 2009 U.S. Dist. LEXIS 99107, at *31-33 (N.D . Cal. Oct. 23, 2009): Makin v. Hawaii, 114 F. Supp. 2d 1017, 1033-34 (D. Haw. 1999). In this case, Plaintiffs’
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already-serious risk of institutionalization is magnified by the fact that three of them have already been found to meet the “level of care” requirements for care in a nursing home or other such institution. See Burkhart Decl. ¶ 19 (receives personal care services); Coontz Decl. ¶ 3 (s ame); Tatum Decl, ¶ 8 (receives adult day care services); 13 C.S.R. §§ 7091.010(1)(A) (personal care services require ments), 70-92.010(2)(A) (adult day care services requirements).
3. Defendants are likely violating the integration mandate. Defendants are violating Plaintiffs’ rights to receive Medicaid services in the most integrated setting appropriate to th eir needs. Plaintiffs meet the criteria necessary to establish a violation of the community integration mandate. See also Olmstead, 527 U.S. at 587; Radaszewski, 383 F.3d at 608. Plaintiffs’ treati ng professionals have determined that receiving Medicaid services in the community is app ropriate to meeting their needs and none recommend institu tionalizing them in nursing homes. Harper Decl. ¶ 6, 7, 10; Porter Decl. ¶ 7; Belancourt Decl. ¶ 13; An zalone Decl. ¶¶ 6, 9. The m ere fact that Plaintiffs have been residing in the co mmunity for many years dem onstrates that receiving these services in the community is appr opriate to their needs. Burkhart Decl. ¶ 17; Coontz Decl. ¶¶ 4, 5; Tatum Decl . ¶ 3; Hammond Decl. ¶¶ 6, 12-13; see Radaszewski, 383 F.3d at 608 (there was “little doubt” that the plaintiff could be cared for at home because he had been receiving care at home for more than 10 years). Medical professionals and experts establish that providing incontinence briefs in the community is the medically appropriate treatment for individuals suffering from incontinence. Huskey Decl. ¶¶ 24, 25; Hurley Decl. ¶¶ 10, 11; Gray Decl. ¶ 14. In f act, institutionalization of a person for incontinence alone is medically inappropriate. Huskey Decl. ¶ 24; Gray Decl.
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¶ 14. Finally, in the instant case, there is no opposition to community placement. All the
Plaintiffs want to remain in their homes. Burkhart Decl. ¶¶ 12, 22, 23; Coontz Decl. ¶ 5; Tatum Decl. ¶ 3; Hammond Decl. ¶¶ 8, 12.11
Under Defendants’ po licies, however, the only way Plain tiffs can receive the
services they need is to m ove to a nursi ng home or other such institution, which will
result in unjustified isolation from their families and friends. Ironically, Defendants will
then be obligated to pay for their incontinence briefs—as well as all o f their residential
and personal care costs 24 hour s a day, 7 days a week, there by defeating any ostensible
money-saving justification for the S tate’s refusal to cover Plaintiffs’ incontinence briefs
while they live at home.
Defendants’ are violating the ADA by conditioning receipt of medically necessary
incontinent supplies on unnecessary institutionalization. Several federal courts have
required state agencies to provide services in the community where a f ailure to provide
the service posed a ris k of institutionalization. For example, in Fish er v. Oklahom a
Health Care Authority, the Tenth Circuit cited the integration mandate when it reversed a
district court decision u pholding a state rule limiting Medica id coverage of prescription
drugs to only five pres criptions per m onth for in dividuals who were living in the
community but allowin g unlimited prescription coverage if the individual went into a
11 Plaintiffs’ fears of institutionalization are well-grounded. See , e.g., Lakeridge Villa Health Care Ctr v . Leavitt, 202 Fed.Appx. 903, 910 (6th C ir. 2006) (upholding ALJ’s decision to fine nursing hom e for inadequate incontinence care); Harmony Court v. Leavitt, 188 Fed.Appx. 438, 441 (6th Cir. 2006) (h olding that nursing hom e violated federal requirements by leaving resident in “foul-smelling and urine-saturated incontinent brief” for three-and-a-half hours); Livingston Care Ctr v. Dept of Health & Human Serv., 388 F.3d 168, 174 (6th Cir. 2004). (finding nu rsing home liable for violations under Medicare Act because resident identified “as having a high risk for pressure sores because of her incon tinence and total dependence on nursing staff” received inad equate care).
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nursing home. 335 F.3d at 1178, 1180. See generally Crabtree v. Goetz, NO. 3:08-0939,
2008 U.S. Dist. LEXIS 103097, at *68 (M.D. Tenn. Dec. 18, 2008) (enjoining state from
reducing maximum allowable hours of hom e health services because it would “eliminate
services that enable Plaintif fs to rem ain in their comm unity placement” and the reby
“cause their institutionalization into nursing ho mes”); Townsend v. Quasim , 328 F.3d
511, 516-518 (9th Cir. 2003) (state’s refusal to continue providing Medicaid in-hom e
nursing services in a community-based setting constituted discrimination under Title II of
the ADA).
Fisher rejected the district court’s finding th at fiscal burd ens associated with
reasonable accommodations would necessarily require a fundamental alteration, stating
Plaintiffs are simply asking that a service for which they would be eligible under an existing state program . . . be provided in a community-based setting rather than a nursing hom e. They are not dem anding a separate service or one not already provided by the state.
Fisher, 335 F.3d at 1183. Moreover, the Tenth Ci rcuit questioned whether the required
modification would constitute a fiscal burden at all. The court observed that
[g]iven that the cost of institutio nal care is nearly double that o f community based care, it seems unlikely that . . . elimination of the waiver program, would have solved Oklahom a’s fiscal cris is, because it cou ld have served only to drive participants into nursing homes.
Id. at 1183 (em phasis added). See also Radaszewski, 383 F.3d at 599, 603, 611, on
remand, 2008 U.S. Dist. LEXIS 24923 (N.D. Ill. Marc h 26, 2008), at *15 (failure to f und
private duty nursing in the hom e for ch ild reaching th e age of 21 was disability-based discrimination; funding this service was not a funda mental alteration);12 Grooms v.
12 The court also noted that provid ing care in an institutional setting “w ould be substantially greater than the cost of allowing [plaintiff] to remain in the community and receive the same proper treatment and community care.” Radaszewski , 2008 U.S. Dist. LEXIS 24923 at *40.
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Maram, 563 F. Supp. 2d 840, 849-850 (N.D. Ill. 2008) (enjoining Medi caid denial of home care services to in dividual upon reaching the age of 21, noting th ere had been no “sudden significant improvement in [plaintiff’s] condition on his twenty-first birthday”).
The situation in M issouri is s imilar. Plaintiffs request only that D efendants provide coverage of the services at issue (a dult diapers) in the community, as well a s the nursing home or other such institutions. As Plaintiffs have docum ented, this coverage will enable Defendants to avo id unnecessary and m ore expensive expenditures on hospitalizations or nursing hom e care. See Huskey Decl. ¶¶ 22, 23, Gray Decl. ¶ 9. Plaintiffs are not asking th at a new program be create d. Defendants already fund incontinence supplies in the exis ting durable medical equipment program for persons below age 21 and alread y provide it to adults who live in ins titutional settings. 13 C.S.R §§ 70-10.010; 70-10.015; 70-60.010. Plaintiffs si mply ask that they receive the sam e medically necessary services in the community (as several of them did before they turned 21) that they would receive in a nursing home or other institution.
The relief requested is like ly to save the State m oney because it will prevent Defendants from having to pay for both adult diapers and the far more expensive costs of residential care in institutional settings, such as nursing homes or hospitals. The cost of paying for adult diapers is, at m ost, a few hundred dollars per m onth.13 The cost of serving a Plaintiff in a nursing hom e can be well over $40,000 a year. Gray Decl. ¶ 3. 14

13 Plaintiffs pay between $80 and $300 a month for adult diapers. See Burkhart

Decl. ¶ 16; Coontz Decl. ¶ 6; Tatum Decl. ¶ 3, Hammond Decl. ¶ 5. 14 See Gov. Jay Nixon, D ept of Health and Se nior Services Budget Request, with

Governor’s Recommendations at 310 (Jan. 21, 2010), at

http://oa.mo.gov/bp/budreqs2011/Health/Health.pdf (Ex. 26); Gov. Jay Nixon, De pt of

Social Services Budget Request, MO

HealthNet Division, with Governor’s

Recommendations at 300 (DSS Budg

et Request)(Jan. 21 2010), at

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Furthermore, the inability of Plaintif fs to obtain necessary incontinen ce supplies while
living in the community raises a significant risk of skin breakdowns, infections and
diseases, which can lead to hospitalizations that will be m uch more costly than cover ing
the supplies in the first place. Huskey D ecl. ¶¶ 10-14, 21-23; Hurley Decl. ¶¶ 4-9 . As
noted by Dr. Thy Huskey, a Rehabilitation Specialist at Washington University:
If adult diapers are not recognized as m edically necessary and are not utilized for prevention of sacral sores, treatm ent for the resultant sk in ulceration will be of medical necessity, and the cost of treatment may be staggering . . . The risk of institu tionalization for care, treatm ent, and management of severe sacral skin ulcerations is high , especially for individuals with physical disabilities and/or lack of assistance for personal bodily care. If skin breakdown is not prevented or properly cared for after it is found, then skilled nursing care will be necessary, usually around the clock care, in a nursing home setting . . .
Huskey Decl. ¶¶ 22, 23 (em phasis added). Plain tiffs are likely to succeed on the merits
of their ADA claim.
4. Defendants are lik ely violating the ADA an d Section 504 methods of administration requirements.
The ADA prohibits methods of ad ministration which, though neutral on their
face, have a discriminatory effect. A public entity may not:
directly or through contractual or other arrangements utilize… methods of administration (i) [t]hat have the eff ect of subjecting qualified individuals with a dis ability to d iscrimination on the basis of disability; [and] (ii) [t]hat have the purpose or effect of defeating or substantially im pairing
http://oa.mo.gov/bp/budreqs2011/DSSHealthnet/DSSHealthnet.pdf (Ex. 27); McC aslin Letter, April 22, 2010, and attachm ents (Ex. 28). The average per diem costs of nursing home care were $126.12 in FY 2009 a nd $132.27 in FY 2010. Ex. 26-28. See also Patient Protection an d Affordable Care Act, P ub. L. No. 111-148, § 2046 (2010) (recognizing that “Medicaid dollars can suppor t nearly 3 elderly i ndividuals and adults with physical disabilities” in the community “for every individual in a nursing hom e”). The Missouri General Assembly’s Medicaid Reform Commission similarly found that inhome care is of ten much less costly than institutional-based care, in m any cases as little as 1/6th the cost of nursing hom e care. Medicaid Refor m Comm’n, Report at 40 (D ec. 2005), at http://www.senate.mo.gov/medicaidreform/MedicaidReformCommFinal122205.pdf.
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accomplishment of the objectives of the public en tity’s program with respect to individuals with disability. 28 C.F.R. § 35.130(b)(3).15 Defendants’ incontinence supplies policy discriminates against Plaintiffs by arbitrarily refusing to make an exception or prior au thorization process available to them under any circumstances, even th ough they could use the pr ior authorization process before they turned age 21. Further, they discriminate by only covering these supplies for adults residing in nursing homes and other such institutions but not the Plaintiffs who are living in the community. Moreover, Defendants’ m ethods of adm inistration defeat the purpose of the Medicaid program, which is to enable each Stat e, “to furnish (1) m edical assistance to ... disabled individuals, whose incom e and resour ces are insufficient to meet the cos ts of necessary medical services, and (2) ... to help such fa milies and individuals attain or retain capability for indepe ndence or self-care.” 42 U. S.C. § 1396-1. Defendants’ incontinence supplies p olicies contradict these purposes by requiri ng individuals with disabilities to use their own “insufficient” resources to “m eet the costs of necess ary medical services” and lim it their capability to retain ind ependence and self -care by forcing them into nursing homes or other such institutions to have these services paid for by Medicaid. Therefore, these m ethods of administration discriminate on the basis of disability in violation of the ADA and Section 504. III. THE PLAINTIFFS ARE SUFF ERING IRREPARABLE HARM AS
A RESULT OF THE DEF ENDANTS’ FAILURE TO COVE R ADULT INCONTINENCE BRIEFS.
15 Section 504 contains sim ilar requirements that prohibit methods of administration that result in disability-based discrim ination. See 28 C.F.R. § 41.51(b)(3)(i); 45 C.F.R. § 84.4(b)(4). See also Brantley, 656 F. Supp. 2d at 1175-76.
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It is well settled that a loss of Medicaid benefits constitutes irreparable harm. See, e.g., Kai v. Ross , 336 F.3d 650, 656 (8th Cir. 2003) (dange r to plaintiffs’ health gives them a strong argument of irreparable injury); Nemnich v. Stangler, No. 91- 4517-CV-C5, 1992 WL 178963 (W.D. Mo. Jan. 7, 1992) (enj oining the state from eliminating several categories of dental treatment); White v. Martin, No. 02-4154-CV-CNKL, 2002 U.S. Dist. LEXIS 27281, *10-11 (W .D. Mo. Oct. 3, 2002). S ee also, e.g., Brantley, 656 F. Supp. 2d at 1176-77 (finding irreparable harm where di sabled plaintiffs were losing Medicaid services “critical to ensuring that their tenuous physical and mental conditions remain stable, enabling them to rem ain in the community”); V.L. v. W agner, 669 F. Supp. 2d 1106, 1121-22 (N.D. Ca l. 2009) (findi ng irreparable harm where lack of Medicaid covered services could destabiliz e families and cause recipients, among other things, to be unable to leave their hom es); Edmonds v. Levine , 417 F. Supp. 2d 1323, 1342 (S.D. Fla. 2006) (summarizing eight diffe rent Medicaid case s finding irreparable harm or imminent risk of irreparable harm due to a variety of Me dicaid cuts and finding denial of coverage for off- label use of prescription pain medication would irreparably harm plaintiffs); McMillan v. McCrim on, 807 F. Supp. 475, 482 (C.D. Ill. 1992) (“possibility” that plaintiffs would have to enter nursing hom e due to loss of Medicaid services “constitutes irreparable harm”).
Without the prescribed adult incontinent supplies, Plaintiffs have an increased risk of infection, regression in health status, fr equent hospitalization, and isolation from the community. Steven Hiltibran suffers from severe cerebral palsy and psychosis, m ultiple sclerosis, scoliosis, chronic pain, muscle spasms and contractures. He is com pletely bed bound with a terminal illness. He experiences both bowel and bladder incontinence. His
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physicians have prescribed incontinence briefs to prevent skin breakdowns and ulcers and to prevent infections and disease and unnecessary hospitalizations. Harper Decl. ¶¶ 6-11; Burkhart Decl. ¶¶ 7-11. Ronald Coontz suffers from static encephalopathy and a seizure disorder and has no control of his bowels or bladder, as a result of perm anent brain damage. He requires incontinence briefs to prevent pressure sores, skin breakdowns, rashes and infections. T hey are necessary to his overall health and well being and help him to rem ain in his own hom e. Coontz Decl . ¶¶ 1, 6, 9, 10-12; Po rter Decl. ¶¶ 2-9. There are no suitable alternatives to preven t skin breakdowns and infection. Porter Decl. ¶ 8. Nicholas Tatum suffers from Alagille Syndrome, a liver disease, and m ental retardation. The m edications he takes for his disease cause incontinence. He requires adult diapers to prevent bed so res, skin b reakdown, rashes and infections. The diapers enable him to live with his family and participate in the community. Tatum Decl. ¶¶ 1-3, 8, 10-11. Nena Ha mmond is paralyzed from a sp inal cord injury and uses an electric wheel hair to am bulate. B ecause of her in jury, cysts in her k idney and liver, and spasticity in her lim bs, she lacks c ontrol of her bowel and bladder and requires adult diapers to prevent exposure to urine-soaked and soiled clothing which would cause skin breakdowns, infections and hospitalizations. The diapers enable her to rem ain in her home. Hammond Decl. ¶¶ 3-8, 13; Anzalone Decl. ¶¶ 2-5. Moreover, Plaintiffs all f ace financial difficulties in paying for these s upplies on their own and still m eeting other basic needs. Burkhart Decl. ¶¶ 17-19; Coontz Decl. ¶¶ 6, 10, 12, 14; Tatum Decl. ¶¶ 3, 9; Hammond Decl. ¶ 10.
Dr. Thy Huskey, a physician specializing in Physical Medicine and Rehabilitation at Washington University, and Dr. Yadria Hu rley, the Director of Derm atopathology at
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Saint Louis University School of Medicine, have documented in great detail the severe
health risks and even life-threaten ing impact of Missouri’s failure to cover Plaintiffs’
medically necessary in continent supplies. Adult incon tinence briefs are critic al for
protecting skin integrity and preventing the m any health complications that result from a
breach of skin integrity, including pressure sores. Huskey Decl. ¶¶ 5-13; Hurley Decl. ¶¶
3-8. These supplies can be m edically necessary to prevent skin breakdowns and
infections that can cause seps is, a system ic inflammatory response to inf ection
characterized by fever, a raised h eart rate, rapid breathing and a decrease in blood
pressure, sometimes leading to septic shock and death. Huskey Decl. ¶ 9. The lack of
adequate diapers can cause not on ly dermatitis, but also human papillomavirus (HPV),
perirectal and genital warts, pain, yeast infections, potentially deadly staph infections,
and skin cancer—including m elanoma, the most dangerous form of skin cancer. Hurley
Decl. ¶¶ 6-9. Not surprisingly, the Eighth Ci rcuit has recognized that incontinence “can
be a serious disabling condition.” Young v. Apfe l, 221 F.3d 1065, 1069 (8th Cir. 2000).
Compare Smith, 2010 WL 1404066, at *11 (finding that Me dicaid program’s failure to cover incontinence briefs “constitutes irreparable harm”).16 Plaintiffs have clearly
established irreparable harm sufficient to obtain a preliminary injunction.
16 Missouri adm inistrative agencies and CMS have sim ilarly noted the dire consequences for patients who do not receive proper incontinence care. See, e.g., Mo Bd of Nursing Hom e Adm’rs v. Pulos , No. 88-001548NH, 1990 Mo. Adm in. Hearings LEXIS 12, at *4 (Mo. Adm in. Hearing Comm’n, Sept. 10, 1990) (“Failure to promptly clean and change incontinent residents expos ed them to a signifi cantly increased danger of decubitus ulcers [pressure sores] . . . when sores became infected, they ‘posed a danger of imminent death.’”); Lakeridge Villa Health Care , No. A-05-30, 2005 HHSDAB LEXIS 105, at *64, 67 (2005) (Dept. of Health & Human Services, July 28, 2005) (noting that sitting in urine causes skin breakdown and pressure sores); Gooding Rehabilitation , No. 1834, 2008 HHSDAB LEXIS 110, at *25 (Dept. of He alth & Human Services, Aug. 26, 2008) (finding that a patient required surgery to treat two Phase IV pressure sores, but died on the operating table); Mo Bd of Nursing Hom e Adm’rs v. Gallop , 1995 Mo.
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IV. THE THREAT OF SERIOUS, HEALTH-RELATED INJURY TO THE PLAINTIFFS CLEARLY OUTWEIGHS ANY POTENTIAL HARM TO DEFENDANTS.
The balance of hardships weighs decidedly in f avor of Plaintiffs. Plaintiffs will continue to suffer from the loss of medically necessary incontinence supplies that are critical to their health, sa fety, and community living. They seek only that Defendants comply with controlling federal law. As e xplained above, it is not clear that Defendants will suffer any f iscal harm from an injunction . However, any f iscal harm that the Department might suffer is outweighed by the ha rm to Plaintiffs’ lives and health. See , e.g., Lankford v. Sherman , No. 05-4285-CV-C-DW , 2007 U. S. Dist. LEXIS 14950, at *13 (W.D. Mo. Mar. 2, 2007); W hite v. Martin , 2002 U.S. Dist. LEXIS 27281, at *22 (W.D. Mo. Oct. 3, 2002) (collecting cases). See also Ark. Med. Soc., Inc. v. Reynolds , 6 F.3d 519, 531 (8th Cir. 1993), aff’g, 819 F. Supp. 816 (E.D. Ark. 1993) (finding that “the state may not ignore the Medicaid Act’s requirements in order to suit budgetary needs”); Kan. Hosp. Ass’n v. Whiteman, 835 F. Supp. 1548, 1552-53 (D. Kan. 1993) (concluding that the threatened injuries to the plaintiffs outweighed an y harm to the defendant from issuing the injunction an d that the p roposed Medicaid res triction’s “positive budgetary impact on state coffers is negligible in a relative sense”).
In a similar case, Nemnich v. Stangler, this Court entered a preliminary injunction against the State of Missouri when it attem pted to offer som e, but not all, types of medically necessary adult dental ca re. No. 91-4517-CV-C- 5, 1992 WL 178963 (W.D. Mo. Jan. 7, 1992). In that case, th e Court de termined that the State “will suffer fiscal problems if enforcement of the am ended regulation is enjoined,” but it nevertheless held
Admin Hearings LEXIS 16, at *3-*4 (M o. Admin. Hearing Comm ’n, May 3, 1995) (noting that people with incontinence issues are “especially at risk for pressure sores.”).
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that “the harm to the plaintiffs’ life and health clearly outweighs any fiscal harm the state

may suffer.” 1992 WL 178963 at *3. See also Lankford, 2007 U.S. Dist. LEXIS at *13.

Moreover, as a m atter of law, Defendant ca nnot be harmed by complying with what the

federal Medicaid law requires. As stated by the Seventh Circuit:

Because the defendants are required to comply with the [Food Stamp] Act, we do not s ee how enforcing compliance im poses any burden on them. The Act itself imposes the burden; this injunction merely seeks to prevent the defendants from shirking their responsibilities under it.

Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986) (granting prelim

inary

injunction). See also Ill. Hosp. Ass’n v. Ill. Dept of Public Aid , 576 F. Supp. 360, 371

(N.D. Ill. 1983) (“Once a st ate has voluntarily elected to participate in the Medicaid

program, . . . [it cannot] characterize its duty to comply with the requirem ents of [t he

program] as constituting a hardship to its citizens.”).

As the Eighth Circuit has noted, Missouri is required to adhere to the federal

Medicaid requirements in the operation of its Medicaid program . Lankford, 451 F.3d at

504, citing Schweiker v. Grey Panthers, 453 U.S. 34, 37 (1981); see also Mo.Rev. Stat. §

208.151 (“For the pu rpose of paying MO HealthNe t benefits and to com ply with Title

XIX, Public Law 89-97, 1965 a mendments to the federal Social Security Act (42 U.S.C.

Section 301, et seq.) as amended, the following needy persons shall be eligible to receive

MO HealthNet benefits.”). Missouri cannot claim hardship f rom compliance with the

requirements that com e with the substantia l federal funding that Missouri receives for

choosing to operate a Medicaid program. See generally Lankford, 451 F.3d at 510 (noting

that the m ajority of expenditures for Medica id benefits in Missour i are federal funds).

This Court should find that the balance of harms favors Plaintiffs.

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Any alleged hardship to Defendants is also negated by the fact that they can still establish reasonable utilization controls on coverage of ad ult diapers. S ee 42 C.F.R. § 440.230(d); Ex.12. Plaintiffs do not seek coverage of these supplies in all circumstances. Rather, they seek a fair process by which they can establish the medical necessity of adult diapers just as three of them did before th ey reached 21 years of age. Defendants can apply the same web-based prior authorization process that they use to d etermine medical necessity for individuals under age 21. They need only actually approve coverage of these supplies when medical necessity is established.
V. AN INJUNCTION IS IN THE PUBLIC INTEREST. When issuing injunctive relief agai nst a government body, the Eighth Circuit has found that enforcement of the federal law is in the public interest. Glenwood Bridge, Inc. v. Minneapolis, 940 F.2d 367, 372 (8th Cir. 1991). See also Lankford v. Sherm an, U.S. Dist. LEXIS 14950* at 13; W hite v. Martin , 2002 U.S. Dist. LEXIS 27281, at *24; Heather K. v. Mallard , 887 F. Supp. 1249, 1261 (N.D. Iowa 1995) (citing Eighth Circuit decisions). “Congress and the Missouri Genera l Assembly expressed the public interest by enacting the Medicaid program in the first place.” Nem nich, 1992 WL 178963 at *4. Because Defendant is violating the federal law, an injunction will serve the public interest here. Moreover, budgetary constr aints do not excuse a violation of federal law. See Amisub (PSL) Inc v. Colo. Dept of Social Services , 879 F.2d 789, 800 (10th Cir. 1989) (holding “budgetary constraints cannot excu se noncompliance with federal Medicaid law”); Tallahassee Mem’l Reg’l Med. Ctr. v. Cook , 109 F.3d 693, 704 (11th Cir. 1997) (same); Miss. Hosp. As s’n v. Heckler , 701 F.2d 511, 518 ( 5th Cir. 1983) (sam e); Kan.
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Hosp. Ass’n v. W hiteman, 835 F. Supp 1548, 1553 (D. Ka n. 1993) (sam e); McNeillTerry v. Roling, 142 S.W.3d 828, 834 (Mo. App. 2004) (Missouri’s budgetary constraints were not su fficient to justify limitations on coverage of necessary Medicaid service). Compare Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644,704 (9th Cir. 2009) (“A budget crisis does not excuse ongoing violations of federal law, particularly where there are no adequate remedies available other than an injunction.”).
Because the Defendants’ regulation and policy violate the reasonable standard s and mandatory home health requirements of the Medicaid Act, as well as the ADA and Rehabilitation Act, Plaintiffs have dem onstrated that a pre liminary injunction is in the public interest. Fina lly, an injun ction is in the pub lic interest because it will allow Plaintiffs to obtain the incontinence supplies that their health care providers have determined to be m edically necessary to a ddress their m edical conditions. W ith these supplies, these individuals can mainta in their health and functioning and m aximize independence, self-care, and community livi ng. In sum , a preliminary injunction will serve the public interest.
VI. NO BOND SHOULD BE REQUIRED The court should not require Plaintiffs to post a bond as security for the preliminary injunction because they are low-income Medicaid beneficiaries. The E ighth Circuit has explained that “spe cific equitable or legal cons iderations in [a] case m ight require that the bond be waived or se t at a nom inal amount.” Young v. Harris , 599 F.2d 870, 873 n.5 (8th Cir. 1979). See also Kaepa, Inc. v. Ach illes Corp., 76 F.3d 624, 628 (5th Cir. 1996); Moltan Co. v. Eagle-Picher Indus., Inc. , 55 F.3d 1171, 1176 (6th Cir. 1995). It is appropriate to waive the bond re quirement for “low incom e individuals in
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need of m edical services.” Kerr v. Holsinger , No. 03-68-JMH, 2004 U.S. Dist. LEXIS

7804 at *36 (E. D. Ky. Mar. 25, 2004).

CONCLUSION

This Court should prelim inarily enjoin Defendants from enforcing their illegal

regulation and policy and from arbitrarily denying m edically necessary incontinent

supplies through any other means.

Dated: August 23, 2010

Respectfully submitted,

/s/ Joel Ferber Joel Ferber # 35165 Daniel Claggett # 26982 Robert Swearingen # 33339 Legal Services of Eastern Missouri 4232 Forest Park Avenue St. Louis, Missouri 63108 (314) 534-4200 telephone (314) 534-1028 facsimile jdferber@lsem.org declaggett@lsem.org rlswearingen@lsem.org

/s/ John J. Ammann John J. Ammann # 34308 Saint Louis University Legal Clinic 321 N. Spring Street St. Louis, Missouri 63108 (314) 977-2778 telephone (314) 977-1180 facsimile ammannjj@slu.edu

/s/ Thomas E. Kennedy, III Thomas E. Kennedy, III # 46617 Law Offices of Thomas E. 230 S. Bemiston Avenue St. Louis, Missouri 63105 (314) 872-9041 telephone (314) 872-9043 facsimile tkennedy@tkennedylaw.com

/s/ Jane Perkins Jane Perkins National Health Law Program, Inc. 101 East Weaver Street, Suite G-7 Carrboro, North Carolina 27510 (919) 968-6308 telephone (919) 968-8855 facsimile perkins@healthlaw.org

ATTORNEYS FOR PLAINTIFFS

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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

STEVEN HILTIBRAN, by and through his )

mother and guardian, Debra Burkhart;

)

NICHOLAS TATUM, by and through his )

mother and next friend, Stacy Tatum;

)

RONALD COONTZ, by and through his )

mother and guardian, Patricia Coontz; and )

NENA HAMMOND,

)

)

Plaintiffs,

)

)

v.

)

)

)

RONALD J. LEVY, in his official capacity )

as Director of the Missouri Department of )

Social Services; and

)

IAN M cCASLIN, M.D., in his official )

capacity as Director of the MO HealthNet )

Division,

)

)

Defendants.

)

Case No. 10-4185-CV-C-NKL

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Come now Plaintiffs, pursuant to Fed. R. Civ. P. Rule 65, and move this Court for a preliminary injunction enjoining Defendants Levy and McCaslin from applying Mo. Rule 13 C.S.R. § 70-60.010 and other written policies so as to deny Medicaid coverage of medically necessary adult incontinence supplies to adults residing in the community. In support of this m otion, Plaintiffs subm it their Memorandum in Suppo rt of Plaintiffs’ Motion for Prelim inary Injunction, and the Declarations and other exhibits filed contemporaneously herewith.

Case 2:10-cv-04185-NKL Document 5 Filed 08/23/10 Page 1 of 3

WHEREFORE, plaintiffs resp ectfully request that this Court g rant the f ollowing relief:
1. A preliminary injunction enjoining Defendants Levy and McCaslin from applying Mo. Rule 13 C.S.R. § 70-60.010 and othe r written policies to deny coverage of medically necessary incontinence briefs for adults residing in the com munity without allowing such adults to establish the medical necessity of such coverage; and
2. An Order that no bond is required; and 3. An Order granting such other relief as is just and proper.
Respectfully submitted,

Daniel Robert Legal 4232 St. (314) (314)

/s/ Joel Ferber Joel Ferber # 35165
Claggett # 26982 Swearingen # 33339 Services of Eastern Missouri Forest Park Avenue Louis, Missouri 63108 534-4200 telephone 534-1028 facsimile jdferber@lsem.org declaggett@lsem.org rlswearingen@lsem.org

John Saint 321 St. (314) (314)

/s/ John J. Ammann J. Ammann # 34308 Louis University Legal Clinic N. Spring Street
Louis, Missouri 63108 977-2778 telephone 977-1180 facsimile
ammannjj@slu.edu
/s/ Thomas E. Kennedy, III

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Thom Law
230 St. (314) (314)
National
(919) (919)

as E. Kennedy, III # 46617 Offices of Thomas E. Kennedy, III, L.C. S. Bemiston Avenue Louis, Missouri 63105 872-9041 telephone 872-9043 facsimile tkennedy@tkennedylaw.com
/s/ Jane Perkins Jane Perkins
Health Law Program, Inc. 101 East Weaver St., Suite G-7 Carrboro, North Carolina 27510
968-6308 telephone 968 -8855 facsimile perkins@healthlaw.org
ATTORNEYS FOR PLAINTIFFS

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 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

STEVEN HILTIBRAN, et al. Plaintiffs,
v. RONALD J. LEVY, et al.
Defendants.

) ) ) ) ) Case no. 10-4185-CV-C-NKL ) ) ) )

SUGGESTIONS IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Defendants, for their Suggestions in Opposition to Plaintiff’s Motion for Preliminary

Injunction (Doc. #5), state as follows:

Whether a preliminary injunction should issue involves four factors: (1) the threat of

irreparable harm to the movant; (2) the state of the balance between this harm and the injury that

granting the injunction will inflict on other parties litigant; (3) the probability that movant will

succeed on the merits; and (4) the public interest. Vonage Holdings Corp. v. Nebraska Public

Service Comm’n, 564 F.3d 900, 904 (8th Cir. 2009) (citing Dataphase Sys., Inc. v. C L Systems,

Inc., 640 F.2d 109, 114 (8th Cir.1981)). A preliminary injunction is “an extraordinary remedy.”

Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). A district court has broad discretion

when ruling on preliminary injunction requests. CDI Energy Services v. West River Pumps, Inc.,

567 F.3d 398, 401 (8th Cir. 2009). The party seeking the injunction has “the complete burden of

proving that a preliminary injunction should be granted.” Gelco Corp. v. Coniston Partners, 811

F.2d 414, 418 (8th Cir. 1987).

Here, the Motion for Preliminary Injunction seeks to change the status quo that has

existed for years. Plaintiffs want this Court to order the Department to provide them, through

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Medicaid, adult incontinence briefs. Plaintiffs’ claim that the State of Missouri should cover adult incontinence briefs under Medicaid as “durable medical equipment,” as a “medical necessity,” or under Home Health Services. If the State does not cover adult incontinence briefs under any of these sections, then Plaintiffs claim that the failure to do so violates the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (RA).
The State of Missouri is in compliance with federal Medicaid law. There is no need for a preliminary injunction, and the factors for a preliminary injunction have not been met.
1. Plaintiffs have not shown a likelihood of success on the merits. While Plaintiffs claim that the State of Missouri must provide adult incontinence briefs,
the Medicaid statutes and regulations do not automatically require any state to provide incontinence briefs, with the exception of a requirement that they be provided to those between the ages of four and twenty years of age. Missouri, like every state, is permitted to select certain optional items to provide, and adult incontinence briefs are just such an optional item.
Plaintiffs have failed to demonstrate that they are likely to succeed on the merits. While Plaintiffs want a complete alteration in the way that the State handles adult incontinence briefs, the applicable law does not require what Plaintiffs want and seek in this suit.
A. Adult Incontinence briefs are not Durable Medical Equipment Plaintiffs assert that Missouri’s current durable medical equipment (DME) policy is invalid because it does not meet the “reasonable standards” provisions required by the Medicaid Act, 42 U.S.C. § 1396(a)(17). That statute requires that a state must ensure that each provided service is covered in “sufficient . . . amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b). The state may not impose arbitrary limitations on required services “solely because of the diagnosis, type of illness, or condition.” 42 C.F.R. § 440.230(c).
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It should be noted that under the Medicaid statutes, participating states are required to provide certain services and benefits, but are also permitted to make certain elections and cover only certain items. DME is one area where states are permitted to customize their individual state plans to provide coverage, through what items they choose to cover. Indeed, states are not required to cover DME at all. See 42 U.S.C. §1396a(a)(10)(D); Lankford v. Sherman, 451 F.3d 496, 504 (8th Cir. 2006) (“DME is an optional service under the Medicaid Act”).
Plaintiffs rely heavily on an Eighth Circuit decision concerning Missouri’s DME program, Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006). Therein, the court considered a preliminary injunction brought to enjoin changes to the DME program, and recognized that, “[w]hile optional DME programs are not explicitly subject to [the reasonable standards] requirements, CMS (the agency that administers Medicaid) maintains that the reasonablestandards provisions apply to all forms of medical assistance, including a state’s provision of DME.” 451 F.3d at 506.
Lankford also held that “[b]ecause Missouri has elected to cover DME as an optional Medicaid service, it cannot arbitrarily choose which DME items to reimburse under its Medicaid policy.” Id. at 511. Moreover, the state is required to have a “meaningful procedure for requesting non-covered items.” Id. at 512. The Lankford court recognized that the state’s exceptions process for requesting non-covered DME items did not provide a real process by which plaintiffs could obtain these items. For this reason, the court held that the plaintiffs had demonstrated a likelihood of success on the merits of their preliminary injunction claims.
Like the plaintiffs in Lankford, the Plaintiffs herein contend that the exceptions process is unavailable to them because there are no circumstances under which DSS will consider adult incontinence briefs to be medically necessary. Plaintiffs argue that Missouri must use a medical
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necessity standard to determine which medical supplies are covered under the DME program. Some cases have approved of these types of claims. Esteban v. Cook, 77 F. Supp. 2d 1256 (S.D. Fla. 1999) (requiring wheelchairs and holding that state may not “arbitrarily or unreasonably” deny medical equipment “entirely on the basis of age”); Bell v. Agency for Health Care Admin., 768 So. 2d 1203 (Fla. App. 2000) (exclusion of medical equipment and supplies for individuals age 21 and over was arbitrary and unreasonable). Indeed, a court struck down a state’s exclusion of adult incontinence briefs under the “reasonable standards” requirement. Bristol v. R.I. Dep’t of Human Serv., 1997 WL 839884, C.A. No. 95-6605 (R.I. Super. Ct. Jan. 30, 1997).
In Lankford, Missouri acknowledged that the state statute requires coverage of all medically necessary DME. “The [state] legislation is consistent with Medicaid’s reasonable standards requirement. By its terms it covers all medically necessary items of DME.” Defendants’ Response to Court’s Order of March 2, 2007, in Lankford (attached as Ex. 24 to plaintiffs’ complaint). The legislation, as passed, requires payment for “[p]rescribed medically necessary durable medical equipment.” Mo. Rev. Stat. § 208.152.1(19).
But the difference between this case, and Lankford and the other cited cases, lies in Missouri’s definition of DME and medical supplies. Missouri, like all states, is permitted to define what constitutes DME and medical supplies. The distinction is fatal to Plaintiffs’ claims. Missouri’s definition of DME is “equipment that can withstand repeated use.” 13 C.S.R. 7060.010. Missouri does not provide medical supplies as part of the DME program for adult participants—Missouri only provides medical equipment.1 Incontinence briefs cannot withstand
1 In Lankford, the plaintiffs objected that the DME program did not meet reasonable standards because the DME program provided certain equipment, but did not provide all of the parts necessary to make the equipment useable (e.g., electric wheelchairs were covered while batteries were not). Those claims are distinguishable from Plaintiffs’ claims in this case. Here, Plaintiffs
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repeated use—they are specifically designed to be single-use items. As such, adult incontinence briefs are not covered as DME.
Whether adult incontinence briefs are medical supplies or are personal hygiene items does not change the outcome. Missouri has not elected under Medicaid to provide medical supplies thorough the DME program, and thus can exclude adult incontinence briefs from coverage because they do not meet the definition of durable medical equipment.
The reason why states are required to cover adult incontinence briefs for children ages four thorough twenty is simple—the federal government requires it. The federal program, the Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) services, requires that each state plan provide EPSDT health care and services as a mandatory category of medical assistance. It requires that states provide all services deemed to be medically necessary to correct or ameliorate a defect, illness, or condition identified by screening. Thus, a state must provide any service that a state is permitted to cover regardless of whether the state’s plan otherwise provides or elects to provide that service. See S.D. v. Hood, 391 F.3d 581 (5th Cir. 2004); Eckloff v. Rodgers, 443 F. Supp. 2d 1173 (D. Ariz. 2006); Smith v. Benson, No. 0921543-CIV, 2010 WL 1404066 (S.D. Fla. Jan. 28, 2010).
In short, as part of its Medicaid program, Missouri (like all states) is required by the EPSDT program to provide services and items (including medical supplies) for those under 21 years of age. However, that program does not require that states provide identical services to those over twenty-one years of age. Here, all of the Plaintiffs are well over twenty-one years of age, and do not qualify for the EPSDT program.
do not allege that they need incontinence briefs to make their equipment functional; they allege that an entire additional category (medical supplies) should be covered under the DME program.
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Thus, Plaintiffs are not likely to succeed on the merits of their claim that Missouri is required to provide incontinence briefs under the DME program. Missouri’s election not to provide medical supplies under the DME program is within the state’s discretion in providing an option service. Moreover, Plaintiffs argue that the only test for whether something should be provided is medical necessity. This argument ignores the discretion available to states to define the covered services in optional areas of care. Missouri’s definition of DME to include equipment but not supplies meets the “reasonable standards” requirement of the Medicaid Act.
B. Plaintiffs are not entitled to home health services Plaintiffs allege that Missouri’s policy violates the requirement that the state’s Medicaid program provide “home health services” including “[m]edical supplies, equipment, and appliances suitable for use in the home.” 42 C.F.R. § 440.70(b)(3). In Missouri, all Medicaid recipients are categorically needy. The Medicaid Act provides that the categorically needy are entitled to nursing facility services for individuals 21 years of age or older. 42 U.S.C. §§ 1396(a)(10)(A); 1396(a)(4)(A). For those entitled to nursing facility services, the state must provide “home health services.” The provision of home health services is a “mandatory” service for the categorically needy. Plaintiffs argue that adult incontinence briefs are a “medical supply,” and therefore must be provided as part of the home health services program. Moreover, Plaintiffs note that adult incontinence briefs are treated as a medical supply for Medicaid recipients age four through twenty and that other states consider adult incontinence briefs to be medical supplies. Plaintiffs also allege that adult incontinence briefs are considered medical supplies for purposes of determining the daily rate for nursing facility care. What Plaintiffs do not, and cannot, allege is that they qualify for home health services under Missouri’s plan. Although home health services are a “mandatory” service, individual
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states may impose controls on utilization (i.e., the state may limit the amount, scope, and
duration). In other words, the state may limit the number of times a service may be provided and the period over which it can be provided.2 In Missouri, home health services are used to provide
services for temporary recovery from specific, episodic health incidents. Generally, home health
services are ordered for patients returning home from the hospital or recovering from a specific
condition. The service is limited to a maximum of 100 home visits per year (13 C.S.R. 70-
90.010(6)), requires a plan of care prescribed by a physician every 60 days (13 C.S.R. 70-
90.010(1)(C)), and is not intended to be a substitute for institutional care. In particular, home
health services provides “non-routine supplies identified as specific and necessary to the delivery
of a participant’s nursing care and prescribed in the plan of care.” 13 C.S.R. 70-90.010(4).
Plaintiffs have ongoing conditions requiring continuing care; these are not the type of
episodic health conditions for which home health services would be appropriate under Missouri’s
plan. Plaintiffs allege that they expect to continue to require adult incontinence briefs for the
indefinite future, perhaps for their entire lives. Services of this type are not covered by
Missouri’s home health services plan. Thus, plaintiffs have not demonstrated a likelihood of success on this claim because plaintiffs lack standing to raise this claim.3
2 Under this provision, a participant “entitled” to nursing facility care is not the same as “eligible” for nursing facility care. In other words, to qualify for home health services, it is not required that a participant meet the level-of-care criteria for nursing facility care. Under Missouri’s plan, all plan participants have access to home health services if they have an appropriate injury or illness for which a physician prescribes home health services, regardless of whether the participant would otherwise qualify for institutional care. Thus, plaintiffs’ allegations that they meet the level-of-care criteria for nursing facility care are not determinative of whether those plaintiffs meet the requirements for home health services under Missouri’s plan. 3 The Court need not address the question of whether home health services would ever cover adult incontinence briefs because these plaintiffs have not demonstrated that they qualify for home health services.
7
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C. Plaintiffs have failed to state a violation of the ADA or RA Plaintiffs’ final argument is that Missouri’s policy violates Title II of the ADA and Section 504 of the Rehabilitation Act. The claim is that Missouri’s policy has the effect of forcing disabled plaintiffs into institutional care settings and that such segregation of incontinent disabled persons into institutions is a violation of the goals of the ADA and Section 504. The “integration mandate” of the ADA and Section 504 requires states to ensure that services are administered to people with disabilities in the most integrated setting appropriate to their needs. In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court analyzed these provisions and held that “unjustified isolation” is “properly regarded as discrimination based on disability.” 527 U.S. at 597. The court interpreted the integration mandate to require that persons with disabilities be served in the community rather than in institutions when community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the state cannot demonstrate a fundamental alteration of its programs and services. Id. at 587, 591-92, 602-03. Plaintiffs here allege that by covering adult incontinence briefs for individuals in institutions, but refusing to provide such coverage for individuals in home care settings, Missouri is violating the integration mandate. And, as noted previously, Missouri’s long-standing Medicaid program, approved by the CMS has not covered adult incontinence briefs for those over twenty-one (and outside of the EPSDT program). Plaintiffs claim that “the only way Plaintiffs can receive the services they need is to move to a nursing home or other such institution.” (Pl. Br. 19. (Emphasis original).) This argument ignores the fact that Missouri has waiver programs designed to help prevent institutionalization. Through these waivers, Missouri
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does provide adult incontinence briefs as special medical supplies.4 Under Medicaid, states are permitted to elect to provide certain items through waiver programs, such as special medical supplies, including adult incontinence briefs. See, §1916(c) of the Social Security Act. Plaintiffs do not allege whether they have applied for available waiver programs. Nonetheless, to the extent that one of these plaintiffs actually faces institutionalization because of inability to obtain adult incontinence briefs, it is likely that the plaintiff would qualify for a waiver program that would provide such coverage.
Finally, it should not be overlooked that Missouri’s program is based on a State Plan, and that the Plan has to be reviewed and approved by the CMS, the federal agency that reviews such requests for compliance with federal laws governing the program. Here, CMS approved Missouri’s State Plan. CMS’s approval of a State Plan amendment is entitled to deference. Pharm. Research and Mfrs. of Am. v. Thompson, 362 F.3d 817, 821-22 (D.C. Cir. 2004).
2. Plaintiffs have not shown irreparable harm to themselves. Plaintiffs claim that a loss of Medicaid benefits constitutes irreparable harm, citing a
number of cases. But unlike those cases, Plaintiffs are not threatened with a loss of existing Medicaid benefits, nor is Missouri changing its program or benefits.
Instead, Plaintiffs are requesting a change to the state Medicaid program as currently administered, to require coverage of an item not currently covered. Continuation of a longstanding policy for the duration of this litigation is not irreparable harm. In addition, Plaintiffs may qualify for waiver programs that provide incontinence briefs as special medical supplies.
4 Adult incontinence briefs are available as special medical supplies under the Community Support Waiver and the Comprehensive Waiver through the Department of Mental Health, through the Physical Disabilities Waiver, the Prevention Waiver (scheduled to begin on October 1, 2010), the Independent Living Waiver, and through the AIDS Waiver programs.
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Because Plaintiffs have not applied for these programs, it is not clear whether they would be admitted to the programs. Nonetheless, the fact that Plaintiffs have failed to exhaust the available options under the existing plan counsels against changing the status quo.
If Plaintiffs fail to demonstrate irreparable harm, that is “an independently sufficient ground upon which to deny a preliminary injunction.” Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). Thus, “[o]nce a court determines that the movant has failed to show irreparable harm absent the injunction, the inquiry is finished and the denial of the injunctive request is warranted.” Gelco Corp. v. Coniston Partners, 811 F.2d 414, 420 (8th Cir. 1987); Taxpayers’ Choice Vol. Comm. v. Roseau County Bd of Com’rs, 903 F. Supp. 1301, 1308 (D. Minn. 1995).
3. There is harm to the State and the public interest will not be served. Plaintiffs’ suit changes the status quo, and injunction requires the State to pay for briefs.
It is expected that testimony at the preliminary injunction hearing will demonstrate that the yearly cost to the state could be significant to provide briefs to all.
As to the public interest, Missouri courts have noted that the state has a compelling governmental interest in carrying out the Medicaid program. Rolla Manor v. Dep’t of Social Services, Div. of Med. Services, 865 S.W.2d 812, 815 (Mo. App. S.D. 1993)(“purpose under Medicaid…is to provide reasonable reimbursement ...while incorporating cost containment measures”); Couch v. Division of Family Services, 795 S.W.2d 91, 93 (Mo. App. W.D. 1990). The public interest is better served by the status quo until this litigation is concluded.
Moreover, an injunction here would require Missouri to bear the administrative burdens associated with amending its State Plan. See 42 C.F.R. §§ 430.12-.20. The state should not be required to take on such burdens before this Court has finally resolved Plaintiffs’ claims. National Assoc. of Chain Drug Stores v. Schwarzenegger, 2010 WL 1506928 (9th Cir. Apr. 15, 2010) (affirming denial of preliminary injunction where plaintiffs demanded change in
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reimbursement rates and noting that “regardless of the [plaintiffs’] likelihood of success on the merits of their claims, they are not entitled to the preliminary injunction that they seek.”).
CONCLUSION This Court should deny Plaintiffs a preliminary injunction. Plaintiffs have failed to demonstrate that the Dataphase factors justify a preliminary injunction at this time.
Respectfully submitted, CHRIS KOSTER Attorney General /s/ Mark E. Long MARK E. LONG Assistant Attorney General Missouri Bar Number 45952 Mark.Long@ago.mo.gov Broadway State Office Building Post Office Box 899 Jefferson City, MO 65102 (573) 751-3321 (Telephone) (573) 751-9456 (Facsimile)
ATTORNEYS FOR DEFENDANTS RONALD J. LEVY and IAN McCASLIN, M.D.
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CERTIFICATE OF SERVICE
I hereby certify on this 30th day of September, 2010, the foregoing was filed
electronically with the Clerk of the Court, and was served by operation of ECF system on
the following:
Martha Jane Perkins 101 E. Weaver St. Carrboro, NC 27510
Daniel E. Claggett Legal Services of Eastern Missouri, Inc. 4232 Forest Park Ave. St. Louis, MO 63108
John J. Ammann St. Louis University Legal Clinic St. Louis University School of Law 321 North Spring Avenue St. Louis, MO 63108
Thomas E. Kennedy , III Law Offices of Thomas E. Kennedy, III 230 S. Bemiston Ave Suite 800 St. Louis, MO 63105
Joel Ferber Legal Services of Eastern Missouri, Inc. 4232 Forest Park Blvd. St. Louis, MO 63108
/s/ Mark E. Long Mark E. Long Assistant Attorney General
12
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 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

STEVEN HILTIBRAN, by and through his Mother and guardian, Debra Burkhart; NICHOLAS TATUM, by and through his Mother and next friend, Stacy Tatum; RONALD COONTZ, by and through his Mother and guardian, Patricia Coontz; and NENA HAMMOND,
Plaintiffs, v. RONALD J. LEVY, in his official capacity As Director of the Missouri Department of Social Services; and IAN McCASLIN, M.D., in his official Capacity as Director of the MO HealthNet Division,
Defendants.

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Case No. 10-4185-CV-C-NKL

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STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 2:10-cv-04185-NKL Document 19 Filed 10/15/10 Page 1 of 21

TABLE OF CONTENTS INTRODUCTION ........................................................................................................................................ 1 ARGUMENT ................................................................................................................................................ 2
A. Olmstead and the Integration Mandate ............................................................................................. 2 B. Plaintiffs Satisfy the Requirements for a Preliminary Injunction ..................................................... 4
1. Plaintiffs Are Likely to Succeed on the Merits of Their ADA Claims ......................................... 5 2. Plaintiffs Will Suffer Irreparable Harm if Defendants Are Not Enjoined .................................. 12 3. The Balance of Hardships Tips in Plaintiffs’ Favor.................................................................... 13 4. Granting a Preliminary Injunction is in the Public Interest......................................................... 14 CONCLUSION........................................................................................................................................... 15
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TABLE OF AUTHORITIES Cases Atkins v. Rivera, 477 U.S. 154 (1986) ............................................................................................ 7 Ball v. Rogers, 2009 WL 13954235 (D. Ariz. April 24, 2009) ...................................................... 4 Benjamin H. v. Ohl, 1999 WL 34783552 (S.D. W.Va. Jul. 15, 1999) ......................................... 15 Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009)......................................... 4, 11 Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980 (N.D. Cal. 2010)....................................................... 4 Crabtree v. Goetz, 2008 WL 5330506 (M.D. Tenn. Dec. 19, 2008) ............................ 4, 12, 13, 15 Dataphase Sys., Inc., v. C L Sys., Inc., 640 F.2d 109 (8th Cir. 1981)............................................. 4 Doe v. LaDue, 514 F. Supp. 2d 1131 (D. Minn. 2007)................................................................. 13 Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) ........................ 2, 3, 9, 11 Grooms v. Maram, 563 F. Supp. 2d 840 (N.D. Ill. 2008)............................................................. 12 Haddad v. Arnold, No. 10-414 (S.D. Fla. July 9, 2010) ............................................................... 12 Heather K. v. Mallard, 887 F.Supp. 1249 (N.D.Iowa 1995) ........................................................ 15 Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) ......................................................................... 10 Jones v. Dept. of Public Aid, 867 N.E.2d 563 (Ill. App. 3d 2007) ............................................... 11 Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006)....................................................................... 4 Long v. Benson, 2008 WL 4571903 (N.D. Fla. Oct. 14, 2008) .............................................. 13, 14 Lopez v. Heckler, 713 F.2d 1432 (9th Cir.1983) .......................................................................... 15 M.A.C. v. Betit, 284 F. Supp. 2d 1298 (D. Utah 2003) ................................................................... 4 Marlo M. v. Cansler, 679 F. Supp. 2d 635 (E.D.N.C. 2010).............................................. 4, 13, 15 Minn. Ass’n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80 (8th Cir. 1995) .............................. 4
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Northland Ins. Co. v. Blaylock, 115 F. Supp. 2d 1108 (D. Minn. 2000) ...................................... 13 Olmstead v. L.C., 527 U.S. 581 (1999).................................................................................. passim Planned Parenthood Minn., N. Dakota, S. Dakota v. Rounds, 530 F.3d 724 (8th Cir. 2008)........ 5 Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004)............................................................ 11, 12 S & M Constrs., Inc. v. Foley Co., 959 F.2d 97 (8th Cir. 1992)..................................................... 4 Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) ..................................................................... 10 V.L. v. Wagner, 669 F. Supp. 2d 1106 (N.D. Cal. 2009) .................................................... 4, 11, 15 Winter v. Natural Resources Defense Council, Inc, --- U.S. ---, 129 S.Ct. 365 (2008)................. 4 Statutes 28 U.S.C. § 517............................................................................................................................... 1 29 U.S.C. §794................................................................................................................................ 2 42 U.S.C § 12134............................................................................................................................ 1 42 U.S.C. § 12101....................................................................................................................... 1, 2 42 U.S.C. § 12132........................................................................................................................... 3 42 U.S.C. § 1396d........................................................................................................................... 5 Other Authorities CMS State Operations Manual ....................................................................................................... 7
Regulations 13 CSR 70-60.010........................................................................................................................... 5 20 C.F.R. § 416.110 ........................................................................................................................ 7 28 C.F.R. § 41.51(d) ....................................................................................................................... 3 28 C.F.R. § 35.130 .......................................................................................................................... 3
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INTRODUCTION The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C. § 517, because this litigation implicates the proper interpretation and application of the integration mandate of Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et. seq. See Olmstead v. L.C., 527 U.S. 581 (1999).1 The Attorney General has authority to enforce Title II of the ADA, and pursuant to Congressional mandate, to issue regulations setting forth the forms of discrimination prohibited by Title II. 42 U.S.C § 12134. Accordingly, the United States has a strong interest in the resolution of this matter. Plaintiffs are four individuals with disabilities who live in the community with their families but are at risk of unnecessary institutionalization because of defendants’ discriminatory policies. Plaintiffs each have medical incontinence and require the use of incontinence supplies, particularly adult diapers. (Decl. of Debra Burkhart, attached to Pltfs.’ Sugg. as Exh. 13, ¶¶1,4; Decl. of Patricia Coontz, attached to Pltfs.’ Sugg. as Exh. 14, ¶1; Decl. of Stacy Tatum, attached to Pltfs.’ Sugg. as Exh. 15, ¶¶1-2; Decl. of Nena Hammond, attached to Pltfs.’ Sugg. as Exh. 16, ¶3.) Defendants have refused to provide plaintiffs with incontinence briefs so long as they reside in the community. Yet if plaintiffs were willing to leave their own homes and enter a nursing home – at a cost of nearly $40,000 per year (about 20 times the cost of providing incontinence briefs in the community) – defendants would provide them with these medically necessary services. (Burkhart Decl. ¶17; Coontz Decl. ¶6; Hammond Decl. ¶5; Tatum Decl. ¶3.) The
1 28 U.S.C. § 517 states that “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”
. 1
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ADA does not, however, permit the State to require plaintiffs to be unnecessarily institutionalized merely to gain access to covered services. Missouri’s policy is nearly identical to that at issue in Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1185 (10th Cir. 2003), where the Court held that the State of Oklahoma violated the ADA by having a policy to limit the number of prescription drugs available to Medicaid recipients who resided in the community but not to those in nursing homes and other institutions, which placed plaintiffs at risk of entering a nursing home to obtain needed medications. Id. at 1185.
Plaintiffs have established a strong likelihood of success on the merits of their claim that Missouri’s failure to provide community-based services to individuals at risk of institutionalization violates Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, Section 504 of the Rehabilitation Act, 29 U.S.C. §794, and their implementing regulations (as interpreted in Olmstead, 527 U.S. 581). Furthermore, absent an injunction, plaintiffs will face irreparable harm. The balance of equities weighs in plaintiffs’ favor, and granting this injunction is in the public interest.
ARGUMENT A. Olmstead and the Integration Mandate
Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). It found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2).
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For those reasons, Congress prohibited discrimination against individuals with disabilities by
public entities. 42 U.S.C. § 12132.2
One form of discrimination prohibited by the ADA is a violation of the “integration
mandate.” The integration mandate arises out of Congress’s explicit findings in the ADA, the
regulations of the Attorney General implementing Title II,3 and the Supreme Court’s decision in
Olmstead, 527 U.S. at 586. In Olmstead, the Supreme Court held that public entities are required
to provide community-based services to persons with disabilities when (a) such services are
appropriate; (b) the affected persons do not oppose community-based treatment; and (c)
community-based services can be reasonably accommodated, taking into account the resources
available to the entity and the needs of other persons with disabilities. Id. at 607.
The risk of institutionalization itself is sufficient to demonstrate a violation of Title II.
Fisher, 335 F.3d at 1181. In Fisher, the Tenth Circuit rejected defendants’ argument that
plaintiffs could not make an integration mandate challenge until they were placed in the
institutions. The court reasoned that the protections of the integration mandate “would be
2 The ADA requires that “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Section 504 of the Rehabilitation Act of 1973 similarly prohibits disability-based discrimination. 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”). The rights, procedures, and enforcement remedies under Title II are the same as under section 504. Pottgen v. Missouri State High Sch. Activities Ass’n, 40 F.3d 926, 930 (8th Cir. 1994). 3 The regulations provide that “a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified persons with disabilities.” 28 C.F.R. § 35.130(d); see also 28 C.F.R. § 41.51(d). The preamble discussion of the ADA “integration regulation” explains that “the most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), App. A. at 571 (2009).
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meaningless if plaintiffs were required to segregate themselves by entering an institution before
they could challenge an allegedly discriminatory law or policy that threatens to force them into
segregated isolation.” Id. See also Marlo M. v. Cansler, 679 F. Supp. 2d 635, 637 (E.D.N.C.
2010) (granting preliminary injunction in case where plaintiffs were at risk of institutionalization).4
B. Plaintiffs Satisfy the Requirements for a Preliminary Injunction
A movant must establish four elements before a preliminary injunction may issue: (1) he
is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of the equities tips in his favor; and (4) an injunction is in the
public interest. Winter v. Natural Resources Defense Council, Inc, __ U.S. __, 129 S.Ct. 365,
374 (2008); Dataphase Sys., Inc., v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). While
“[n]o single factor is dispositive,” Lankford v. Sherman, 451 F.3d 496, 503 (8th Cir. 2006), the
“most significant” of the four factors is whether the plaintiff is likely to be successful on the
merits. Minn. Ass’n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80, 83 (8th Cir. 1995) (quoting
S & M Constrs., Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir. 1992), cert. denied, 506 U.S. 863
(1992)). Courts should first determine whether the movant has made a “threshold showing that it
4 See also Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1164 (N.D. Cal. 2009); Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 985 (N.D. Cal. 2010); and V.L. v. Wagner, 669 F. Supp. 2d 1106, 1109 (N.D. Cal. 2009) (all granting preliminary injunctions where plaintiffs were at risk of institutionalization due to cuts in community-based services); Ball v. Rogers, 2009 WL 13954235, at *5 (D. Ariz. April 24, 2009) (holding that defendants’ failure to provide adequate services to avoid unnecessary institutionalization was discriminatory); M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003) (ADA’s integration mandate applies equally to those individuals already institutionalized and to those at risk of institutionalization); Crabtree v. Goetz, 2008 WL 5330506, at *30 (M.D. Tenn. Dec. 19, 2008) (unpublished decision) (“Plaintiffs have demonstrated a strong likelihood of success on the merits of their [ADA] claims that the Defendants’ drastic cuts of their home health care services will force their institutionalization in nursing homes.”).
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is likely to prevail on the merits” and then “proceed to weigh the other Dataphase factors.” Planned Parenthood Minn., N. Dakota, S. Dakota v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008). Plaintiffs have met the standard for a preliminary injunction.
1. Plaintiffs Are Likely to Succeed on the Merits of Their ADA Claims Plaintiffs satisfy the three fundamental requirements of a claim under Olmstead. Olmstead, 527 U.S. at 607. The first two elements—that plaintiffs are appropriate for and do not oppose community placement—are not in dispute. Finally, plaintiffs’ request that the State provide medically necessary incontinence supplies to Medicaid recipients in order to avoid institutionalization is reasonable given the State’s resources and its ability to serve others with disabilities. Missouri, through its Medicaid program, covers medically-necessary incontinence briefs for individuals aged four through twenty years. See Allen Letter, February 23, 2010 (Attached as Exh. 1 to Pls.’ Mem. In Supp. of Mot. for Prelim. Inj., ECF No. 5-2). 5 However, upon an individual’s 21st birthday, the State automatically stops providing the incontinence supplies. Id. Inexplicably, according to the State, when a person with a disability who is a recipient of Early and Periodic Screening Diagnostic and Treatment (“EPSDT”) services6 turns twenty-one and becomes ineligible for EPSDT services, the incontinence briefs transform from a medical supply into a “personal hygiene item.” Id. But the State covers incontinence briefs for individuals of all
5 Specifically, “[i]ncontinence supplies for participants age 20 and under are covered through the HCY (Healthy Children And Youth) Program, under the Durable Medical Equipment (DME) program . . . Disposable underpads, diapers, pull-ons, and protective underwear/briefs are limited to age 4-20 and require precertification . . . The state regulation 13 CSR 70-60.010 for DME is available on the Secretary of State’s website at www.sos.mo.gov.” 6EPSDT benefits are mandatory services for all Medicaid eligible children that states who chose to accept Medicaid funds must provide. 42 U.S.C. § 1396d(r)(1)-(5).
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ages who reside in nursing homes or hospitals. Id. Thus, in order for plaintiffs to obtain medically necessary incontinence briefs, they must submit to a nursing home or hospital; they cannot live in the community.
Plaintiffs, Steven Hiltibran, Nicholas Tatum, Ronald Coontz and Nena Hammond, currently reside in the community and receive Medicaid. They have severe disabilities including cerebral palsy, static encephalopathy and seizure disorders, mental retardation, and spinal cord injuries which render them incontinent. (Burkhart Decl. ¶¶1,4; Coontz Decl. ¶1; Decl. of Stacy Tatum, attached to Pltfs.’ Sugg. as Exh. 15, ¶¶1-2; Hammond Decl. ¶ 3.) Plaintiffs range in age between 22 and 49. (Burkhart Decl. ¶1; Tatum Decl. ¶1; Coontz Decl. ¶1; Hammond Decl. ¶2.)
Plaintiffs’ treating doctors have all certified that their medical conditions require incontinence briefs. (Decl. of Dr. Harper, attached to Pltfs.’ Sugg. as Exh. 17 ¶ 7; Decl. of Dr. Belancourt, attached to Pltfs.’ Sugg. as Exh. 19 ¶¶ 7-11; Decl. of Dr. Porter, attached to Pltfs.’ Sugg. as Exh. 18. ¶¶ 6-9; Decl. of Dr. Anzalone, attached to Pltfs.’ Sugg. as Exh. 20 ¶¶ 3-7.) Without the briefs, plaintiffs would suffer skin breakdowns, ulcers, sepsis (an overwhelming bacterial infection that can trigger an “uncontrollable immunological and hormonal cascade” potentially leading to septic shock and death), full-body fungal infections, urinary tract and kidney infections, staph and yeast infections, permanent changes to the groin, and increased susceptibility to cancer. (Dr. Harper Decl. ¶ 7; Dr. Belancourt Decl. ¶¶ 7-11; Dr. Porter Decl. ¶¶ 6-9; Dr. Anzalone Decl. ¶¶ 3-7; Decl. of Dr. Huskey, attached to Pltfs.’ Sugg. as Exh. 21 ¶¶ 7-9; Decl. of M. Yadria Hurley, attached to Pltfs.’ Sugg. as Exh. 22 ¶¶ 6-9.) Indeed, Ms. Tatum has already experienced skin breakdowns and infections because she re-uses incontinence briefs to
6
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save money. (Hammond Decl. ¶¶ 6-8.) These medical complications necessitate hospitalizations and nursing home placements. (Decl. of David B. Gray, Ph.D, ECF No. 5-24 ¶10.) For example, Dr. Huskey states that “incontinence is one of the leading causes of institutionalization, and individuals suffering from incontinence are at serious risk of institutionalization.” (Dr. Huskey Decl. ¶¶ 10-13, 24.) See also CMS State Operations Manual, CMS publication number 100-07, Appendix PP, § 483.25(d), available at www.cms.gov/Manuals/IOM/list.asp (“Urinary incontinence and related loss of independence are prominent reasons for a nursing home admission.”)
Plaintiffs, who desperately want to avoid nursing home placement, have struggled to pay for the incontinence supplies in the face of overwhelming financial hardship and have barely managed to pay for them through a combination of donations from charities and family members. However, any minor change in the plaintiffs’ support networks would leave the plaintiffs no choice but to enter a nursing home or risk severe medical complications. Plaintiffs’ families know it is likely that they may have to place plaintiffs in nursing homes to ensure that they receive sufficient incontinence supplies. (Burkhart Decl. ¶¶17,21; Tatum Decl. ¶11; Coontz Decl. ¶12; Hammond ¶13.) Such a precarious situation renders the plaintiffs at risk of institutionalization.
Each of the plaintiffs receives Supplemental Security Income (SSI) of approximately $674 per month which is intended to provide a “standard of living at the established Federal minimum income level.” 20 C.F.R. § 416.110. SSI covers only enough for the basic necessities of life, and forcing plaintiffs to pay for medical supplies requires them to dip below this established Federal minimum income level. See Atkins v. Rivera, 477 U.S. 154, 157 (1986)
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(“SSI assistance [is] intended to cover basic necessities, but not medical expenses. Thus, if a person in this category also incurs medical expenses during that month, payment of those expenses would consume funds required for basic necessities.”) For instance, Mr. Hiltibran’s mother already must forgo other necessities to provide for Steven’s care. (Burkhart Decl. ¶18.)7 Mr. Tatum’s mother “has trouble meeting all of [her] expenses every month and sometimes ha[s] to do without eating in order to afford the diapers and all of the related costs of caring for Nicholas and [her] other two children.” (Tatum Decl. ¶9.) Similarly, Mr. Coontz’s mother is “struggling to pay for his diapers” and states that the additional expense has “taken a toll on [their] lives.” (Coontz Decl. ¶¶8,10.) And Ms. Hammond often has “difficulty paying [her] rent, utilities, and other bills, as well as purchasing food and other necessary items. It is a constant financial struggle to get by, trying to pay for diapers and also meet all of [her] other basic needs.” (Hammond Decl. ¶10.) Indeed, because of this cost, Ms. Hammond re-wears used diapers. (Id.)
The monthly cost of diapers imposes a significant hardship on plaintiffs as it consumes an out-sized share of their near-poverty-level incomes. For instance, the cost of Mr. Hiltibran’s diapers ($80 per month) represents approximately 12% of his limited income ($674 per month in SSI benefits). (Burkhart Decl. ¶¶1,17.) The cost of Mr. Tatum’s diapers ($100 per month) represents 18% of his income (SSI benefits of $547 per month). (Tatum Decl. ¶¶1,3.) The cost of Mr. Coontz’s diapers (approximately $300 per month) represents approximately 43% of his income (SSI and SDI benefits totaling $694 per month). (Coontz Decl. ¶¶3,6.) And the cost of Ms. Hammond’s diapers (approximately $18-$90 per month) represents between 2% and 13% of
7 Steven and his mother live together in a home built by Habitat for Humanity and pay $225 a month for the mortgage. (Burkhart Decl. ¶17,18.) Steven and his mother live off of Steven’s SSI benefits of $674.00 per month as his mother cannot work because she must supervise her son’s care 24 hours per day. (Id. ¶1,18,19.)
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her total monthly income ($694 per month from SSI and Social Security). (Hammond Decl. ¶¶4,5.)
Plaintiffs here, like the plaintiffs in Fisher, are barely avoiding institutionalization under the burden of paying for their incontinence supplies due to their “precarious health and finances.” Fisher, 335 F.3d at 1184. In Fisher, the court found that a five-prescription cap imposed on individuals living in the community, but not those living in nursing homes, placed them at “high risk for premature entry into a nursing home.” Id. The court examined each plaintiff’s financial situation to determine the impact of the prescription cap. Id. at 1184-85. As a result of the state’s policy, one Fisher plaintiff would spend 36.6% of her $547 monthly income on prescriptions, an amount the court found “will place a severe burden on her finances and could easily force her to enter a nursing home.” Id. at 1184. Thus the court found there was “no question” that she would be harmed absent an injunction. Id. For two other Fisher plaintiffs who would devote 8.28% and 8% of their total monthly income (SSI totaling $725 and $313 per month, respectively) towards prescriptions, the court found that “[t]his may not be devastating, but it will likely have a real effect on [plaintiffs’] finances given their poverty. . .” Id. As a result, the Tenth Circuit Court of Appeals reversed the lower court’s denial of a preliminary injunction and found that due to the plaintiffs’ precarious health and finances, the state’s prescription drug cap placed them at risk of institutionalization. Id.
Plaintiffs here are in the same precarious position as the plaintiffs in Fisher and are devoting between approximately 7.5% and 43% of their SSI income to pay for incontinence supplies. That plaintiffs have thus far avoided institutionalization due to their emphatic “desire
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to remain in the community does not mean that they do not face a substantial risk of harm.” Id.
at 1184-85.
Defendants provide adult briefs to nursing home residents, but not to persons with disabilities who reside in the community.8 Courts have routinely recognized that a request to
receive services in the community when the individual is entitled to those same services in an
institution is a reasonable modification and not a fundamental alteration of a state’s program.
For instance, in Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003), the court stated that
Olmstead controls where the issue centers on “what location these services will be provided. Mr.
Townsend simply requests that the services he is already eligible to receive under an existing
state program (assistance in dressing, bathing, preparing meals, taking medications, and so on)
be provided in the community-based adult home where he lives, rather than the nursing home
setting the state requires.” Id. at 517. Similarly, in a pre-Olmstead case, Helen L. v. DiDario, 46
F.3d 325, 337-39 (3d Cir. 1995), the court determined that the state had violated the ADA’s
integration mandate by failing to provide state-funded attendant care services for plaintiff in her
8 Plaintiffs have repeatedly communicated with case managers, counsel from the Missouri Department of Social Services and even pursued an administrative appeal only to be told repeatedly that Missouri does not provide briefs to adults. (Correspondence from Director of DSS, Exhs. 2 and 3; Administrative Judge’s ruling, Exh. 4.; Coontz Decl. ¶8, Tatum Decl. ¶7, Hammond ¶11, Burkhart Decl. ¶¶9, 15-16.) In their brief, defendants now suggest that plaintiffs “may qualify for waiver programs that provide incontinence briefs” and that if a plaintiff were to face institutionalization, “it is likely that the plaintiff would qualify for a waiver program that would provide such coverage,” while also stating that “it is not clear whether [plaintiffs] would be admitted to the [waiver] program[s].” (Defs.’ Br. at 9,10.) (emphasis added). This Court should reject defendants’ attempt to avoid the issuance of a preliminary injunction based on a new litigation position completely inconsistent with defendants’ prior actions. Moreover, irrespective of the defendants’ new litigation position plaintiffs are at serious risk of institutionalization because defendants have consistently denied their requests for coverage of incontinence supplies.
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own home, rather than in a nursing home. See also Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004), 2008 WL 2097382 at *39-41 (N.D. Ill. March 26, 2008) (finding the plaintiff demonstrated a likelihood of success and later proved a Title II claim at trial where the requested accommodation of private-duty nursing care in the community would be the same as the service provided in the institution).9
Additionally, defendants cannot evade their duty to provide services in the most “integrated setting appropriate to the needs of qualified persons with disabilities” by relying upon plaintiffs’ sporadic and uncertain ability to secure supplies through other sources such as a church or other charities (Burkhart Decl. ¶17; Hammond Decl. ¶10). Defendants bear the burden of providing more than just the “‘theoretical’ availability” of alternative services and must ensure that plaintiffs can secure necessary services in order to avoid the risk of institutionalization. See Brantley, 656 F. Supp. 2d at 1174; V.L., 669 F. Supp. 2d at 1120.
Defendants argue that because their state Medicaid plan is approved by CMS, plaintiffs cannot prevail on their ADA and Rehabilitation Act claims. (Def. Sugg., Doc. 17 at 8.) Defendants’ argument is flawed for two reasons. First, the approved State Medicaid plan does not indicate any limitation on the coverage of medical supplies, such as incontinence briefs.10 Instead, the approved State Medicaid plan expressly provides that “Medically necessary supplies, which are not routinely furnished in conjunction with patient care visits and which are direct,
9 See also Jones v. Dept. of Public Aid, 867 N.E.2d 563, 573 (Ill. App. 3d 2007) (reasonable modification to require a state to offer services in a home or community-based setting that are available in an institution.); Fisher 335 F.3d at 1182. 10 Under 42 U.S.C. § 1396a(a)(10)(D), “home health services” is a mandatory benefit for anyone who, under the State Medicaid plan, is entitled to nursing facility services. Explicitly included within “home health services” are “medical supplies, equipment, and appliances suitable for use in the home.” 42 C.F.R. § 440.70(b)(3).
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identifiable services to an individual patient, are reimbursable to the [patient’s home health] agency.” See June 3, 2010 Amendment to Missouri State Medicaid plan, Att. 3.1-A ¶ 7.c., available at http://www.cms.gov/MedicaidGenInfo/downloads/MO-10-02-179.pdf (attached hereto as Exhibit B.).
Second, the State’s obligations under the ADA are not defined by the scope of the federal-state Medicaid program. Title II of the ADA is an independent legal obligation on states to operate programs, services, and activities in ways that do not discriminate on the basis of disability. See Townsend, 328 F.3d at 518, n.1. Complying with the Medicaid Act is not sufficient to comply with the ADA. Quite the contrary, courts have routinely held that a state may run afoul of the ADA even while carrying out CMS approved state plans, waiver services, and amendments. See e.g., Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) (plaintiffs’ claims allowed to proceed without regard to HHS’ approval of state’s Medicaid plan and waiver programs); Crabtree v. Goetz, No. Civ. A. 3:08-0939, 2008 WL 5330506, at *2, 31, (M.D. Tenn. Dec.19, 2008) (same); Haddad v. Arnold, No. 10-414, slip op. at 29 (S.D. Fla. July 9, 2010) (attached as Exhibit A.) (The Haddad Court held that CMS’ approval of defendants’ waiver program did not prevent plaintiff’s claim under the ADA, citing HHS guidance clarifying that while a state can be in compliance with Medicaid law, it may need to take additional steps to ensure that it is in compliance with other federal statutes, including the ADA.); Grooms v. Maram, 563 F. Supp. 2d 840 (N.D. Ill. 2008) (allowing plaintiff’s integration claim to move forward despite the fact that HHS had approved the underlying waivers).
2. Plaintiffs Will Suffer Irreparable Harm if Defendants Are Not Enjoined
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This Court should order a preliminary injunction because there is a threat of irreparable harm if injunctive relief is not granted, and that harm is not compensable by money damages in this case. Doe v. LaDue, 514 F. Supp. 2d 1131, 1135 (D. Minn. 2007) (citing Northland Ins. Co. v. Blaylock, 115 F. Supp. 2d 1108, 1116 (D. Minn. 2000)). The harms plaintiffs face – serious deterioration of their health and physical conditions and institutionalization – are exactly such incompensable harms. As discussed above, without incontinence supplies, plaintiffs’ physicians have recognized that each individual is at serious risk of skin deterioration, pressure sores, and infection, as well as institutionalization.
Unnecessary institutionalization—even temporarily—results in irreparable harm. See Marlo M., 679 F. Supp. 2d at 638; Crabtree, 2008 WL 5330506, at *25 (unnecessary institutionalization “would be detrimental to [plaintiffs’] care, causing, inter alia, mental depression, and for some Plaintiffs, a shorter life expectancy or death”); Long v. Benson, 2008 WL 4571903, at *2 (N.D. Fla. Oct. 14, 2008) (moving from the community to a nursing home would be an “enormous psychological blow”).11 Further, once an individual enters an institution, it becomes much more difficult to transition back into the community. (Gray Decl. ¶13.)
3. The Balance of Hardships Tips in Plaintiffs’ Favor The state may not be heard to argue hardship from providing medically necessary incontinence supplies through Medicaid when it already makes these supplies available to
11 The Olmstead Court itself recognized another harm that results from unnecessary institutionalization. Specifically, the Court recognized that needless institutionalization perpetuates “unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and that severing individuals from their communities “severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Olmstead, 527 U.S. at 600-01.
13
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individuals under 21 in the community and to all individuals living in institutional settings. Any cost saved by offering them to eligible Medicaid recipients living in the community is negligible and is clearly outweighed by the benefit of allowing plaintiffs to remain in their homes. Long, 2008 WL 4571903, at *3 (“If … ultimately … the Secretary prevails in this litigation, little harm will have been done. To the contrary, [plaintiff’s] life will have been better, at least for a time.”). Furthermore, allowing plaintiffs to receive incontinence supplies in their homes will save money because the costs of providing the incontinence supplies to plaintiffs at home (approximately $480 to $1,800 per year12) are significantly less than the total cost of plaintiffs’ care in a nursing home (approximately $40,000 per year). (Gray Decl. ¶12.) Furthermore, the cost for unnecessary hospitalizations due to infections and other medical complications that are likely without proper incontinency care “could cost an average of $1,768 for one day which can exceed the cost of covering the adult diapers for a disabled individual for an entire year.” (Id.) The lack of hardship to defendants is in stark contrast to the significant hardship the plaintiffs face if no injunction is granted.
4. Granting a Preliminary Injunction is in the Public Interest There is a strong public interest in granting the injunction to eliminate the discriminatory effects that arise from segregating persons with disabilities into institutions. As the Supreme Court in Olmstead explained, the unjustified segregation of persons with disabilities can stigmatize them as incapable or unworthy of participating in community life. Olmstead, 527 U.S. at 600. In V.L., the court stated that the public interest inquiry was satisfied where “‘[i]t
12 These estimates are based upon plaintiffs’ costs of diapers of $80 to $300 per month. However, the State would only be responsible for a portion of the total cost as the federal Medicaid program would contribute approximately one-half towards the costs.
14
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would be tragic, not only from the standpoint of the individuals involved but also from the

standpoint of society, were poor, elderly, disabled people to be wrongfully deprived of essential

[public] benefits for any period of time.’” V.L., 669 F. Supp. 2d at 1122 (citing Lopez v. Heckler,

713 F.2d 1432, 1437 (9th Cir.1983)). See also Haddad, slip op. at 38 (“[T]he public interest

favors preventing the discrimination that faces Plaintiff so that she may avoid unnecessary

institutionalization … [and] upholding the law and having the mandates of the ADA and

Rehabilitation Act enforced….”); Accord Marlo M., 679 F. Supp. 2d at 639; Crabtree, 2008 WL

5330506, at *30; Heather K. v. Mallard, 887 F.Supp. 1249, 1260 (N.D. Iowa 1995); Benjamin H.

v. Ohl, 1999 WL 34783552, at *16-17 (S.D. W.Va. Jul. 15, 1999).

CONCLUSION

For the reasons stated above, the Court should grant Plaintiffs’ Motion for Preliminary

Injunction. With the Court’s permission, counsel for the United States will be present at any

upcoming hearings.

Dated: October 15, 2010

Respectfully submitted,

BETH PHILLIPS United States Attorney Western District of Missouri
/s/ Charles M. Thomas___ CHARLES M. THOMAS MO Bar No. 28522 Assistant United States Attorney Charles Evans Whittaker Courthouse 400 East Ninth Street, Room 5510 Kansas City, MO 64106 Telephone: (816) 426-3130

THOMAS E. PEREZ Assistant Attorney General
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief ALISON N. BARKOFF, Special Trial Counsel /s/ Regan Rush REGAN RUSH Trial Attorney

15

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D.C. Bar No. 980252 Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. – NYA Washington, DC 20530 Tel: (202) 307-0663 Fax: (202) 307-1197 Regan.Rush@usdoj.gov Counsel for the United States of America
16 Case 2:10-cv-04185-NKL Document 19 Filed 10/15/10 Page 20 of 21

CERTIFICATE OF SERVICE I hereby certify that on October 15, 2010, a copy of foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
By: s/ Charles M. Thomas Charles M. Thomas, Mo. Bar No. 28522 Assistant United States Attorney Charles Evans Whittaker Courthouse 400 East Ninth Street, Room 5510 Kansas City, MO 64106 Telephone: (816) 426-3130 Facsimile: (816) 426-3165 Email: charles.thomas@usdoj.gov Counsel for United States of America
Case 2:10-cv-04185-NKL Document 19 Filed 10/15/10 Page 21 of 21

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

STEVEN HILTIBRAN, et. al. Plaintiffs,
v. RONALD J. LEVY, et al.
Defendants.

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Case No. 10-4185-CV-C-NKL

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PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Joel D. Ferber # 35165 Daniel Claggett # 26982 Legal Services of Eastern Missouri 4232 Forest Park Avenue St. Louis, Missouri 63108 (314) 534-4200 telephone (314) 534-1028 facsimile jdferber@lsem.org; declaggett@lsem.org

John J. Ammann # 34308 Saint Louis University Legal Clinic 321 N. Spring Street St. Louis, Missouri 63108 (314) 977-2778 telephone (314) 977-1180 facsimile ammanjj@slu.edu

Thomas E. Kennedy, III # 46617 Law Offices of Thomas E. Kennedy, III, L.C. 230 S. Bemiston Avenue St. Louis, Missouri 63105 (314) 872-9041 telephone (314) 872-9043 facsimile tkennedy@tkennedylaw.com

Jane Perkins National Health Law Program, Inc. 101 East Weaver St., Suite G-7 Carrboro, North Carolina 27510 (919) 968-6308 telephone (919) 968-8855 facsimile perkins@healhlaw.org

ATTORNEYS FOR PLAINTIFFS

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TABLE OF CONTENTS TABLE OF CONTENTS………………………………………………………………...ii TABLE OF AUTHORITIES………………………………………………………….....iii I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
CLAIMS……………………………………………..…………..………………..1 A. Plaintiffs are Likely to Succeed on the Merits of their Medicaid
Claims……………………………………………………………………..1 1. Defendants Cannot Avoid Coverage By Re-Labeling Adult
Diapers As “Supplies” For Individuals 21 And Over.………………...1 2. Defendants’ “Home Health” Argument Is Without Merit…………….7 B. Plaintiffs are Likely to Succeed on the Merits of their ADA Claim……..10 II. PLAINTIFFS MEET ALL OF THE REMAINING FACTORS FOR A PRELIMINARY INJUNCTION………………………………………………...11 Conclusion……………………………………………………………………………….14 Certificate of Service…………………………………………………………………….16
ii Case 2:10-cv-04185-NKL Document 22 Filed 10/18/10 Page 2 of 21

TABLE OF AUTHORITIES
Cases Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) ......................................................... 4 Bell v. Agency for Health Care Admin., 768 So.2d 1203 (Fla. Ct. App. 2000)................. 5 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) ................................................. 4 Bristol v. R.I. Dep't of Human Servs., 1997 R.I. Super. LEXIS 14 (R.I. Super Ct. Jan 30,
1997)................................................................................................................................ 6 Comacho v. Texas Workforce Comm’n, 408 F.3d 229 (5th Cir. 2005) ............................. 9 DeLuca v. Hammons, 927 F. Supp. 132 (S.D. N.Y. 1996) .............................................. 12 Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) ......................................................... 4 J.D. v. Sherman, 2006 U.S. Dist. LEXIS 78446 (W.D. Mo. 2006).................................. 14 Kai v. Ross, 336 F.3d 650 (8th Cir. 2003)........................................................................ 14 Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006) ............................ 1, 2, 4, 5, 6, 7, 9, 12 Lankford v. Sherman, 2007 U.S. Dist. LEXIS 14950 (W.D. Mo. 2007) ............ 11, 13, 14 McNeil-Terry v. Roling, 142 S.W.3d 828 (Mo. Ct. App. 2004) ...................................... 14 Nemnich v. Stangler, 1992 WL 178963 (W.D. Mo. 1991) ....................................... 12, 14 Olson v. Norman, 830 F.2d 811 (8th Cir. 1987)............................................................... 14 S.D. v. Hood, 391 F.3d 581 (5th Cir. 2004) ....................................................................... 4 Slekis v. Thomas, 525 U.S. 1098 (1999) ………………………………………………... 5 Weaver v. Reagen, 886 F.2d 194 (8th Cir. 1989)………………………...……….. 6, 7, 14 White v. Martin, 2002 U.S. Dist. LEXIS 27281 (W.D. Mo. 2002).................................. 14
Federal Statutes 42 U.S.C. § 1396a(a)(10)(D) .............................................................................................. 7
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Federal Regulations 42 C.F.R. § 431.250 .......................................................................................................... 13 42 C.F.R. § 440.70 ...................................................................................................... 7, 8, 9 42 C.F.R. § 440.230 ……………………………………………………………………... 9 42 C.F.R. § 441.15 .............................................................................................................. 9 State Regulations 9 C.S.R. § 45-2.015 ……………………………………………………………….……. 11 9 C.S.R. § 45-2.017 …………………………………………………………………….. 11 13 C.S.R. § 70-60.010……………………………………………………………………. 2 13 C.S.R. § 70-90.010..................................................................................................... 8, 9 Miscellaneous 75 Fed Reg. 10289-90 (March 5, 2010)……………………………………………….. 7, 9 Brief of Appellee, Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006)(No. 05-3587) … 6 CMS, Dear State Medicaid Director (September 4, 1998) ……………………...……..... 5 DSS Provider Bulletin, Vol. 28, No. 8 (September 2, 2005)…………………………….. 2 DSS Provider Bulletin, Vol. 29, No. 45 (May 4, 2007)………………………………….. 2 DSS Provider Bulletin, Vol. 31, No 52 (March 6, 2009)………………………………… 2 Home and Community Service Case Management Manual, § 1605.50………………... 10 Letter from James G. Scott, Centers for Medicare and Medicaid Services, to Gary
Sherman, dated November 21, 2005 ………………………………………………...7, 9 Letter from James G. Scott, Centers for Medicare and Medicaid Services, to Ronald
Levy, dated June 11, 2010 ……………………… .......................................................... 9 Missouri AIDS Waiver Manual, Section 13 – Benefits and Limitations, June 27,
2008…………………………………………………………………………………… 10 Missouri Durable Medical Equipment Manual, Section 13 – Benefits and Limitations,
March 31, 2009 ………………………………………………………………………... 3
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Missouri Durable Medical Equipment Manual, Section 19 – Procedure Codes, May 18, 2009 …….……………………………………………………………………. 3
Missouri Pharmacy Manual, Section 13 – Benefits and Limitations, June 27, 2009 …… 3 Missouri Physical Disabilities Waiver Manual, Section 13 – Benefits and
Limitations, July 12, 2010 ............................................................................................. 10 Missouri Medicaid Durable Medical Equipment Billing Book, Section 7,
October 2009 .…………………………………..……………………………………... 2 Missouri State Medicaid Plan, Attachment 3.1-A, Section 7.c, TN# 10-02 ……….. 3, 4, 6 Missouri State Medicaid Plan, Attachment 3.1-A, Section 12.c, TN# 07-20 ………... 3, 6
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As shown in Plaintiffs’ opening brief, Defendants’ arbitrary exclusion of Plaintiffs’ incontinence supplies from Medicaid coverage is unreasonable and violates federal law. Defendants’ post-hoc litigation po sition that they do not have to cover Plaintiffs’ adult diapers because th ey are “s ingle-use supplies” is contradicted by their written policies and, m ore importantly, is irre levant to whether th e exclusion violates federal requirements. Whether ad ult diapers are labeled as DME, supplies, or both, the State must cover them when they are m edically necessary. Therefore, this Court sh ould grant Plaintiffs’ Motion for a Preliminary Injunction.
I. PLAINTIFFS ARE LI KELY TO SUCCEED ON THE MERITS O F THEIR CLAIMS
A. Plaintiffs are Likely to Succeed on the Merits of the ir Medicaid Claims
1. Defendants Cannot Avoid Coverage By Re-Labeling Adult Diapers As “Supplies” For Individuals 21 And Over.
In their opening brief, Plaintiffs showed this case is controlled by Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006), the Eighth Circuit’s most recent discussion of the Medicaid reasonable standards requirem ent. In an attempt to distinguish Lankford, Defendants have abandoned their position that incontinence supplies become a personal hygiene item when an individu al reaches th e age of 21. They now acknowledge that adult diapers continue to be a m edical item but assert that adult diapers are not covered under Missouri’s DME regulation because they are “sing le-use supplies,” not “equipment.” Defendants’ Sugg estions in Opposition to Motion for Prelim inary Injunction (“Defs’ Opp.”) at 4- 5, 9. As shown below, the ar gument is foreclosed by the Agency’s policies and, at any rate, cannot av oid the reasonable standards requirements articulated in Lankford.
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Defendants have acknowledged that incontinence supplies fall within the “DME”
category by including them in their DME Manu al and regulation for individuals age 4
through 20.1 Moreover, every State policy and provider bulletin categorizes adult diapers
as “durable medical equipment.” See, e.g., Ex. 5 (Mar. 6, 2009 Physician and Durable
Medical Equipment Bulletin) (containing a long list of pro cedure codes for adult diapers
under the heading “durable m edical equipment”); Ex. 8 (S ep. 2, 2005 Durable Medical
Equipment Bulletin); Ex. 9 (May 4, 2007 Dura ble Medical Equipment Bulletin); Ex. 10
(MO HealthNet Durable Medical Equipm ent Billing Book at 7.1) (describ ing
documentation prescribing physician m ust provide to DME providers). Notably, after
reinstating coverage of DME following the Lankford decision, the State established new
prior authorization criteria for adult diapers, stating it was requir ed to do so by Senate
Bill 577, which m andated streamlined procedures for covering m edically necessary
DME. Ex. 7; Answer, ¶ 42. Defendants’ after-the-fact argument that adult diapers are
not DME is thus contradicted by their p revious enactment of these criteria for adult
diapers for the specific purpose of complying with Missouri’s DME statute.2
1 As noted i n Plaintiffs’ opening brief, Defendants’ Durable Medical Equipm ent regulation incorporates by reference the De fendants’ Provider Manuals and Bulletins which set out the specific DME items covered under the regulation. See 13 C.S.R. § 7060.010(1)(2)(6).
2 Defendants’ argum ent that adult diap ers are not covered because they are supplies is raised for the first time in this litigati on. When Defendants issued a hearing decision denying Steven Hiltibran’s diapers, the legal rationale was that diapers were a “personal hygiene item , not a m edical item.” Ex. 4; Ans wer, ¶ 66. See also Ex. 29 (denying Steven Hiltibran’s Exception Request on the basis that diapers were “personal hygiene products”). W hen Plaintiffs’ counsel wrote to Director McCaslin about the Defendants’ policy, Defendants took the position in two s eparate communications that adult diapers cannot be covered for indiv iduals over 20 because th ey are “personal hygiene items.” Ex. 2, 3; Answer, ¶¶ 48, 49. W hen Plaintiffs’ coun sel submitted a public records request to the Defendants for a ny and all documents related to coverage of adult diapers, not a single document produced by Defendants suggested that adult diapers
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Defendants in fact co ver a wide range of supplies for adults in th eir DME
program, including but not lim ited to: osto my supplies, oxygen supplies, cleaning
solution and supplies for ventilators, Trac h Care supplies, and parenteral nu trition
supplies. Notably, this coverage includes “single-use” items, such as ostomy skin barrier
liquid and powder, lubricant, waterproof tape, skin barrier wipes and swabs, total
parenteral nutrition (TPN) solutions and a dditives, and one-day TPN supply kits. See
Durable Medical Equipm ent Manual, § 13 – Be nefits and Lim itations, at p. 33-41, 50,
available at: http://manuals.momed.com/collections/collection_dme/Durable_Medical_
Equipment_Section13.pdf (Ex. 30); Durable Equipment Manual, § 19 – Procedure Codes,
69-73, 101-103, available at: http://manuals.momed.com/collections/collection_
dme/Durable_Medical_Equipment_Section19.pdf (Ex. 31). Defendants also cover
insulin and other diabetic supplies.3 And prior to the filing of this litigation, Defendants’
counsel noted that “ incontinence supplies, oth er than adult diapers,” are covered
under the State’s DME program.4 Ex. 1 (emphasis added); Answer, ¶ 53. 5
do not m eet the definition of DME. Rath er, as summ arized by on e of Defendants’ attorneys, Defendants did not cover diapers be cause they consider them to be “perso nal hygiene” items rather than “essential medical item[s].” Ex. 1; Answer, ¶ 53.
3 See Pharmacy Manual, § 13.19 – Diabetic Supplies, at p. 29, available at: http://manuals.momed.com/collections/collection_pha/Pharmacy_Section13.pdf (Ex. 32). Although Defendants moved these item s from their DME Manual to the Pharmacy Manual, they are s till “medical supplies.” I t is ir relevant for the purp oses of federal Medicaid law that Defendants chose to put them in a different m anual. Defendants must cover all “medically necessary supplies;” th ey cannot pick and choose which ones they cover.
4 The Missouri State Medicaid Plan, file d with the Centers for Medicare and Medicaid Services, similarly indicates that “ostomy supplies, oxygen . . . Hom e Parenteral Nutrition and related supplies, and m edically necessary item s of miscellaneous durable m edical equipment are covered and provided through the M O HealthNet Durable Medical Equip ment Program.” Missouri State Medicaid Plan TN# 07-20, at p.16 (em phasis added) (Ex. 33). See also Missouri State Medicaid Plan TN# 10-02, at p. 13, available at http://www. cms.gov/MedicaidGenInfo/downloads/MO-10-
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Defendants’ current position appears to have been f ashioned solely for the
purposes of this litigation and should be rejected by this Court. See Bowen v.
Georgetown Univ. Hos p., 488 U.S. 204, 212-13 (1988) (rejecting counsel’s post-hoc
rationalizations for agency action); Arrington v. Daniels , 516 F.3d 1106, 1113 (9th Cir.
2008) (same); S.D. v. Hood , 391 F.3d 581, 601 (5th Cir. 2004) (“[I]f an agency’s
decision is to be sustained in the courts,” it “m ust be upheld on the rationale set forth by
the agency itself.” Post-hoc explanations of counsel are “simply an inadequate basis” for
“substantive review of an adm inistrative decision”) (em phasis added) (quoting Fort
Stewart Schools v. FLRA , 495 U.S. 641, 651-52 (1990)). Defendants have clearly
admitted adult diapers fall within their DM E program by plac ing them in their DME
manual and regulation; thus, under Lankford , they must be covered for Plaintiffs if their
use is not experim ental and they are m edically necessary. Counsel’s post-hoc
rationalizations for the Agency’s failure to cover adult diapers should not be acco rded
any weight.
Defendants’ reclassification of adult diapers as supplie s has additional problem s.
Lankford clearly addressed supplies, noting that “ostomy supplies,” diabetic supplies, and
oxygen were covered under Missouri’s DME regulation. 451 F.3d at 501. The c ourt
struck as p er se unreasonable a regulation th at “completely exclude[d] item s like
02-179.pdf (“Medically necessary supplies . . . are reimbursable to the agency. Examples include: Ostomy sets, and supplies, irrigati on sets and supplies, tapes, catheters and supplies. Needed items of medical equipment prescribed by a physician are available to all recipients includ ing recipients of home hea lth, through the Durable Medical Equipment program”) (Ex. 34).
5 Defendants’ litigation position is that they can exclude diapers because they are single use item s that cannot “withstand rep eated use” for indivi duals over age 20. Ironically, Defendants’ illegal policy is forcing Plaintiff Ha mmond to repeatedly use the same diapers, thereby jeopardizing her health and exposing her to pu blic humiliation. Hammond Decl. ¶¶ 8, 10.
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augmentative communication devices, catheters, and parenteral nutrition supplies” for adults. Id. at 513 (emphasis added). 6 The complete exclusion of adult diapers for

individuals 21 and over is sim ilarly unreasonable here. See also Bell v. Agency for

Health Care Admin., 768 So.2d 1203, 1204-05 (Fla. Ct. App. 2000). In Bell , the state

defendants chose to cover diabetic supplies in its “DME Handbook” for individuals under

21, but not for those over 21. The court found that cutting-off coverage of the supplies at

age 21 “violate s federal law by arbitra rily and unreasonably excluding coverage of

benefits that m ay be me dically necessary.” Id. at 1205. Here, Defendants sim ilarly

cannot arbitrarily and unreasonably cut-off coverage of medically necessary adult diapers

at age 21 by relabeling them as “supplies” simply because of the recipient’s age.

Thus, Defendants’ argument that they need n ot cover Plaintiffs’ incontinenc e

briefs because they do not cover such “supplies” in their DME program

is entirely

unfounded. And even if supplies were not part of Missouri’s DME program (which they

clearly are), Defendants still cover supplies, which means they must cover all medically

necessary supplies for adults (see Lankford, 451 F.3d at 511), incl uding incontinence

supplies. T hus, the lab eling of incontinence briefs as DME or supplie s is irr elevant—

6 The federal regulation upon which the DM E service category is based requires coverage of “medical equipment, supplies and appliances.” See Plfs’ Mem . at 8 (and cases cited therein). And the CMS policy relied on by the Eighth Circuit and the United States Supreme Court specifically references “medical equipment, supplies, appliances suitable for use in the h ome” as being the basis for its guid ance on medical equipment coverage. See Ex. 12 (CMS, Dear State Medicaid Director Letter, available at http://www.cms.gov.hhs.gov/states/letters/smd90498.asp) (emphasis added); Slekis v. Thomas, 525 U.S. 1098, 1099 (1999) (“remanding based on the September 4, 1998, CMS letter to s tate Medicaid directors, which advised that DM E is subjec t to the f ederal reasonable-standards requirements”); Lankford, 451 F.3d at 507, 511-13.
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either way they m ust be covered if non-experimental and medically necessary.7 As
Defendants already acknowledge, “the reasonable standards provisions apply to all forms
of medical assistance,” not just DME. Defs’ Opp. at 3 (quoting Lankford, 451 F.3d a t
506) (emphasis added).
Clearly, Defendants want to re-litigate Lankford by arguing they have the
discretion to choose which DME item s they cover, without regard to medical necessity.
See Defs’ Opp. at 2 (M issouri is “permitted to select certain optional items to provide”);
id. at 3 (“D ME is one area wher e states are permitted to customize the individual state
plans to provide coverage, through what item s they choose to cover”); id. at 6 (state has
“discretion” to “define the c overed services in optional areas of care”). However, the
Eighth Circuit has already rejected this argum ent. While Medicaid offers a great deal of
flexibility and discretion to the S tate, such discretion ends when the S tate denies a non-
experimental, medically necessary service, regardless of whether that service falls within
an optional service category. See Weaver v. Reagen, 886 F.2d 194, 197 (8th Cir. 1989).
In Lankford, these Defendants already argued, as here, they had the right to choose which
specific items to provide within an “opti onal” Medicaid service category. The Eighth
7 Medicaid services can be covered under more than one category. As noted by the Lankford court, Defendants have categori zed DME and related supplies as “prosthetics”—an optional service. See 451 F.3d at 511; Brief of Appellee Sherm an, Lankford v. Sherman, 2005 WL 3657918 at 9-15, 19 (8th Cir. Dec. 27, 2005) (Ex. 35). See also Ex. 33 and 34 (State Plan provisions covering DME under both prosthetics and home health). At one poi nt, Defendants covere d diabetic supplies within the DME program but subsequently re-labeled them to come within the pharmacy program. Thus, the Defendants them selves recognize that some services can fit within m ore than one Medicaid category. What is lega lly significant is tha t, regardless of the labeling, the failure to cover non-ex perimental, medically necessary incontinence supplies is p er se unreasonable. See also Bristol v. R.I. Dep’t of Human Servs., No. 95-6605, 1997 R.I. Super. LEXIS 14, at *11 (R.I. Super. Ct. Ja n. 30, 1997) (striking st ate’s exclusion of adult incontinence briefs from coverage as “preventive and reha bilitative services” because it violated “reasonable standards” requirement).
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Circuit found that the “state’s failure to provide Medicaid coverage for m edically-

necessary services within a covered Medicaid category is both per se unreasonable

and inconsistent with the stat ed goals of Medicaid.” 451 F .3d at 511 (em phasis added).

See also Weaver, 886 F.2d 194 (8th Cir. 1989) (rejec ting Missouri’s attempt to impose

additional criteria beyond m edical necessity to choose whether to provide certain

prescription drugs—an optional service—for individuals w ith HIV). De fendants do not

have discretion to “customize” their DME coverage to exclude medically necessary items

such as adult diapers. Their po licy is per se unreasonable and viol ates the reasonable

standards requirements of the Medicaid Act.

2. Defendants’ “Home Health” Argument Is Without Merit.

Home health—including specifically equipm ent, supplies, and appliances—is a

mandatory service for the categorically needy. See 42 U.S.C. 1396a(a)(10)(D); 42 C.F.R.

§ 440.70(b)(3); Letter from James G. Scott, Ctrs. for Medicare & Medicaid Servs., to

Gary Sherman, Dir., Mo. Dep’t Social Servs., at 2-3 (Nov. 21, 2005) (“CMS Letter”) (Ex.

36) (“medical supplies, equipment, and appliances must be available to all persons who

are categorically eligible unde r the Medicaid program ”); Plfs’ Mem. at 13. Because all

Missouri Medicaid recipients are categorically needy, they are entitled to m

edical

equipment and supplies. Plfs’ Mem. at 12-14 (and citations therein). See also, e.g., Ex.

11; 75 Fed Reg. 10289-90 (Mar . 5, 2010) (post-Lankford notice inform ing Defendants

that home health is a mandatory service); De fs’ Opp. at 6 (stating home health services

are mandatory in Missouri). Defendants ar e now attempting, as they did in Lankford , to

place unlawful restrictions on the receipt of hom e health services. See 451 F.3d at 512-

13.

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Defendants wrongly suggest hom e health se rvices are lim ited to “services for temporary recovery from specific, episodic health incidents,” not “ongoing conditions requiring continuing care.” See Defs’ Opp. at 7. This positio n clearly contradicts federal law, which facilitates coverage of m edical equipment and supplies for individuals wit h chronic conditions. In support of their argum ent, Defendants allege th at the receipt of home health services in Missouri is conditioned on a physician’s plan of care, which must be reviewed at leas t every 60 days. Defs’ Opp. at 7. However, federal regulations specifically exempt medical equipm ent, supplies, and appliances from requiring a physician’s written plan of care every 60 days. See 42 C.F.R. §§ 440.70(a)(2), (b)(3). Instead, “[a] recipient’s need for [these services] must be reviewed by a physician annually.”8 42 C.F.R. § 440.70(b)(3)(i) (em phasis added). Thus, federal law assum es those receiving DME will hav e chronic c onditions, such that only annual phys ician review is necessary to ensure a recipient’s continuing medical need.
Defendants also rely on a state regulation limiting home health aide services “to a maximum of 100 home visits per year.” De fs’ Opp. at 7 (citing 13 C.S.R. 70-90.010(6)). On its face, this lim itation only applies to sk illed nurse and hom e health aide visits and does not apply to medical equipment.9
Finally, Defendants rely on a state re gulation limiting covered home health services to “interm ittent skilled nursing care” and “non-rou tine supplies” id entified as specific and necessary to the delivery of that nursing care. See Defs’ Opp. at 7 (citing 13
8 More frequent review is permitted “on a case-by-case basis, based on the nature of the item prescribed.” 42 C.F.R. § 440.70(b)(3)(ii).
9 Moreover, it only affects the num ber of times per year a person m ay be visited after they have qualified for services; it in no way authorizes the State to deny hom e health services completely to those who may require more than 100 visits.
8 Case 2:10-cv-04185-NKL Document 22 Filed 10/18/10 Page 13 of 21

C.S.R. § 70-90.010(4)). To the extent that coverage of incontinence products would be precluded by this definition, it violates federal law. Fede ral regulations do not predicate home health coverage on the n eed for intermittent skilled nursing care. See Lankford, 451 F.3d at 512; CMS Letter (Ex. 36), at 2- 3 (informing Missouri it cannot cond ition home health aide services or medical equipment and supplies on a need for intermittent skilled nursing care, because “[t]his requirem ent is not specified in Medicaid law or regulations”); Letter from Ja mes G. Scott, Ctrs. for Medicare & Med icaid Servs., to Ronald Levy, Dir. Mo. Dep’t Social Servs ., at 1 (June 11, 2010) (Ex. 37) (“Medicaid requirements do not allow this type of arrange ment”). Federal regulations also expressly require coverage of “m edical supplies, equipment, and appliances suitable for use in the home;” not coverage of non-routine items necessary for a participant’s nursing care. See 42 C.F.R. §§ 440.70(b)(3), 441.15(a)(3) (requiring ho me health services to “include, as a minimum . . . [m]edical supplies, equipment, and appliances”).10
Defendants cannot impose additional, more restrictive conditions on the receipt of medical supplies and equipm ent beyond what is allowed under federal law. See , e.g., Lankford, 451 F.3d at 512-13; Ex. 11, at 1; 75 Fed Reg. 10289-90 (Mar. 5, 2010) (rejecting Defendants attem pt to lim it coverage of DME by adding “hom ebound” and “skilled nursing services” requirements not in cluded in federal law); Com acho v. Texas Workforce Comm’n, 408 F.3d 229, 235 (5th Cir. 2005). De fendants’ latest “home health restrictions” are not req uirements for recei ving medical supplies and equipm ent under federal regulations or other CMS guidan ce, and no court has required such. See Plfs’
10 This interpretation also arbitrarily denies a required service to otherwise eligible recipients “solely b ecause of the diagnosis , type of illness, or condition,” and again violates federal law. See 42 C.F.R. § 440.230(c).
9 Case 2:10-cv-04185-NKL Document 22 Filed 10/18/10 Page 14 of 21

Mem. at 12-13 (and cases cited therein). “Medical equipment and supplies” are a distinct component of the hom e health benefits all Mi ssouri Medicaid residents are entitled to as categorically needy individua ls; they need not m eet the addition al conditions set out in Defendants’ brief.
B. Plaintiffs are Likely to Succeed on the Merits of their ADA Claim Defendants also f ail to rebut Plain tiffs’ claims that the f ailure to cov er their medically necessary incon tinence supplies in the comm unity violates the ADA and Section 504. Plfs’ Me m. at 14-23. Defendants merely allege that “Missouri has waiver programs designed to help prev ent institutionalization” under which diapers could possibly be covered as “special m edical supplies.” Defs’ Opp. at 8. Defendants offer no evidence that these programs, administered by other State agencies, are even available to Plaintiffs or adequate to meet their needs. In fact, these are limited programs with very specific diagnosis requirements and many of them have long waiting lists.11

11 For example, the AIDS waiver requires individuals to have HIV, which none of

Plaintiffs have. See AIDS W aiver Manual, § 13.2 – Recipient Conditions of

Participation, at p. 4, available at: http://manuals.momed.com/collections/collection_aid/

AIDS_Waiver_Section13.pdf. Pl aintiffs are ineligible for the Physical Disabilities

waiver, as it is only available to a limited number of participants who have participated in

or been eligible for private duty nursing through the EPSDT/HCY program and are aging

out of that program . See Physical Disabilities W aiver Manual, § 13.1 – Eligibility

Criteria, at p. 2, available

at

http://manuals.momed.com/collections/

collection_pdw/Physical_Disabilities_Waiver_Section13.pdf. The Independent Living

Waiver requires participants to be capable of directing their own care which at least three

Plaintiffs clearly cannot do, as ev idenced by their declarations. See Home and

Community Service Case Management Manual, § 1605.50 (Ex. 38). The new Prevention

Waiver, which will on ly operate in a lim ited number of countie s, is just be ing

implemented, and to date, no wr itten policies (let alon e rules) have been issued. The

waivers administered by the Missouri Department of Mental Health—the Comprehensive

Waiver and the Community Support W aiver—require individuals to show they have

mental retardation and/or developmental disability that would require care in an ICF/MR

such as a h abilitation center, and to either meet strict “emergency” criteria—such as

homelessness or d anger to one ’s self or ot hers—or be placed on a wa iting list, and no

10 Case 2:10-cv-04185-NKL Document 22 Filed 10/18/10 Page 15 of 21

And, despite seeking help from various State agencies and case m anagers, whose responsibility it is to seek waiver services for their clients, none of the Plaintiffs has been placed in a waiver prog ram. Hilitibran Decl., ¶¶ 9-11, 15-16; Ha mmond Decl., ¶¶ 10-11 Tatum Decl, ¶¶ 7 ; Coontz Dec. ¶ 8. Instead, they we re told to use th eir own funds or seek private sources to pay for their diapers. See , e.g., Tatum Decl., ¶ 7 (instructing Ms. Tatum to go to Catholic Charities f or help); Ex. 29 (informing Plaintiff Hiltibran that “if this item is needed, it is the participant’s responsibility to purchase”). The bare assertion that Missouri has waiv ers cannot cure a policy that is illegal on its face. Thus, the existence of waivers does not refute Plaintiffs’ ADA and Section 504 claims.
II. PLAINTIFFS MEET ALL OF THE REMAINING FACTORS F OR A PRELIMINARY INJUNCTION
Plaintiffs continue to su ffer ongoing harm as a result of De fendants’ illegal policy, which denies them Medicaid coverage of adult diapers. Plfs.’ Br. at 23-26 (and declarations cited th erein). As previous ly shown, the loss of any Medicaid services establishes irreparable harm as a matte r of law. Id. Plaintiffs’ irreparable harm is not diminished because that harm is the result of a “longstanding policy.” Defs’ Opp. at 9. In Lankford, this Court enjoined a policy already in effect for some 20 months because it caused irreparable harm to plaintiffs. U.S. Dist. LEXIS 14950 at *13.

new persons may be enrolled after the m aximum has been reached. See 9 C.S.R. §§ 45-

2.015, 45-2.017(1)(E); Mo. Dep’t of Mental H ealth, Missouri’s Medicaid W aivers for

Persons Who Have Developm ental Disabilities (F act Sheet),

http://dmh.mo.gov/mrdd/progs/waiver/factsheet.htm. See also Mo. Dep’t of Mental

Health, Wait List Reports, http://dm h.mo.gov/mrdd/issues/waitlist/reports.htm; Mo.

Dep’t of Mental Health Frequent

ly Asked Questions and Answers,

http://dmh.mo.gov/mrdd/issues/waitlist/waitfaqs.htm (“Due to limitations on the

availability of funding, t he Missouri Division of Developmental Disabilities is unable to

immediately provide services to all individuals with disabilities”).

11 Case 2:10-cv-04185-NKL Document 22 Filed 10/18/10 Page 16 of 21

The Defendants also argue that the m ere existence of waivers alleviates harm . Defs’ Opp. at 9-10. However, this Court and others have al ready decided that an after the-fact, “case-by-case” procedure (even if available) for obtaining non-covered services does not alleviate the irreparable harm caused by unlawfully exclud ing these serv ices from coverage in the first place. Lankford , 451 F.3d at 512-13; Nem nich, 1992 WL at 178963 at 2. In Nem nich, a cas e challenging Missouri’s denial of optional dental services, this Court rejected Defen dants’ argument that the ability to apply for an exception negates irreparable harm . 1992 WL at 178963 at 2. Defendants’ exceptions process was inadequate because the number of exceptions perm itted was capped, there was “no guarantee” of an exception in any part icular case, and the application could be a lengthy administrative process, during whic h plaintiffs and ot her Missouri Medicaid recipients would continue to suffer irreparable harm.12 Id. Such back-door procedures (i.e., applying for waivers) are sim ilarly insufficient here, as t hey suffer from si milar restrictions (see supra n. 11), and all Plaintiffs have failed to obtain coverage of adult diapers despite seeking help from various State agencies and case m anagers (see supra p. 11). The m ere existence of state “waiver” program s for some limited number of individuals who are “actually fac[ing] institutionalization” (Defs’ Opp. at 9) is no substitute for coverage of this m edically necessary item through the Missouri Medicaid program.13
12 Reliance on such a system is also unlaw ful because it fails to ensure that nonexperimental, medically necessary services—and eligibility for tho se services—are provided “in a m anner consistent with sim plicity of administration and the best interests of recipients.” See, e.g., DeLuca v. Ha mmons, 927 F. Supp. 132, 135-136, n. 6 (S.D. N.Y. 1996) (quoting 42 U.S.C. § 1396a(a)(19)).
13 In the instant case, as opposed to Nemnich and Lankford, Defendants refuse to make even their limited “Exceptions Process” available to plaintiffs. Ex. 1-4, Plfs’ Mem.
12 Case 2:10-cv-04185-NKL Document 22 Filed 10/18/10 Page 17 of 21

Moreover, Defendants’ speculation that Plaintiffs could theore tically obtain

coverage of medically necessary incontinence briefs through some alternative program at

some time in the f uture does not a lleviate the harm they are experiencing now. In

Lankford, this Court appropriately found that “Pla intiffs suffer harm from being denied

under a system that fails to satisfy Medicaid’s reasonable-standards requirement.” U.S.

Dist. LEXIS 14950 at *10 (em phasis added). “Missouri must abide by, and plaintiffs

have a right to have a system that abides by, Medicaid requirem ents.” Id. at *11.

Plaintiffs in the instan t case suffer sim ilar irreparable harm from the State’s sys temic

failure to cover medically necessary services.

Plaintiffs have already shown the balanc e of the hardships tips cle arly in th eir

favor. Even if Defendants were to in cur some fiscal cost, as a matter of law that cost is

insignificant compared to the denial of Medicaid services for very low-inco

me

Missourians. See Plfs’ Mem . at 27-29 (and the cas es cited therein). 14 M oreover,

at 12. However, Defendants’ conjecture about obtaining th ese services through waiver programs administered by other state agencies is sim ilarly inadequate to a lleviate Plaintiffs’ irreparable harm.
14 Defendants assert that costs “cou ld be significant to pro vide briefs to all. ” Defs’ Opp. at 10. Plaintiffs are not asking for any such remedy; rather they are requesting a process by which they can obtai n coverage if the supplies are m edically necessary. As pointed out in Plaintiffs’ earlier memorandum, such costs are insignificant in comparison to the nursing home costs that could be incurred without coverage of these items. Def endants’ complaint about the alleged “administrative burden” of having to amend their state plan pending prelim inary relief is unpersuasive. Defendants currently do not list every DME item or supply in the ir plan. They m erely list “exam ples” and indicate that “medically necessary items of miscellaneous durable medical equipment are covered and provided through the MO Health Net Durable Medical Equipment Program.” Ex.33. Moreover, Defendants did not need to amend their plan prior to im plementing this Court’s injunctive order in Lankford. Thus, while Plaintiffs do not concede any administrative burden, Defendants do not need to amend their s tate plan in ord er to provide relief to the Plaintiffs. Federal funding for com plying with the Court order (currently at 74 cents of every dollar spent) , is also not an issue. See 42 C.F.R. § 431.250(b)(2) (providing federal funding for pr ovision of services pursuant to a court
13 Case 2:10-cv-04185-NKL Document 22 Filed 10/18/10 Page 18 of 21

Plaintiffs submit that the public “has a com pelling interest in carrying out the Medicaid
program” in compliance with federal law . See Defs’ Opp. at 10; P lfs’ Mem. at 29.
Because Plaintiffs meet all of the relevant f actors, this Court should p reliminarily enjoin
Defendant from continuing to de ny adult incontinence briefs to Plaintiffs in violation of the “reasonable standards” provisions of the Medicaid Act, 15 as well as the integ ration
mandate of the ADA.
Conclusion
For the reasons stated above and in Pl aintiffs’ opening memorandum, as well as
binding Eighth Circuit precedent, this C ourt should g rant Plaintiffs’ Motion for a
Preliminary Injunction.
order). See also infra note 15 for a list of cas es granting preliminary relief in simila r circumstances.
15 See, e.g., Kai v. Ross , 336 F.3d 650 (8th Cir. 2003) (prelim inarily enjoining state to continue benefits after finding state law consistent with Medicaid Act); Weaver v. Reagen, 886 F.2d 194 (8th Cir. 1989) (enjoining Missouri fr om denying Medicaid coverage of AZT); Olson v. Norman, 830 F.2d 811 (8th Cir. 1987) (sustaining permanent injunction against state’s unlawful te rmination of Medicaid benefits); White v. M artin, 2002 U.S. Dist. LEXIS 27281 (W.D. Mo. 2002) (p reliminarily enjoining Missouri to provide transitional Medicaid benefits); Nemnich v. Stangler , 1992 W L 178963 (W.D. Mo. 1991) (preliminarily enjoining Missouri fr om denying Medicaid coverage of dental services); McNeil-Terry v. Roling , 142 S.W.3d 828, 834 (Mo. Ct. App. 2004) (preliminarily and permanently enjoining Missouri Medicaid agency from reducing scope of necessary dental services through rulemaking or other non-statutory m eans); J.D. v. Sherman, No. 06-4153-CV-C-NKL, 2006 U.S. Dist. LEXIS 78446, at *10 (W .D. Mo. 2006) (preliminarily enjoining Missouri Medica id agency to cover m edically necessary transplant services); Lankford, No. 05-4285-CV-C-DW, 2007 U.S. Dist. LEXIS 14950, at *14 (prelim inarily enjoining Missouri Medicaid agency from continuing to deny medically necessary DME).
14 Case 2:10-cv-04185-NKL Document 22 Filed 10/18/10 Page 19 of 21

Respectf
Daniel Legal 4232 St. (314) (314)
/s/ John Saint 321 St. (314) (314)
/s/ Thom
230 St. (314) (314)
National
(919) (919)

ully submitted,
/s/ Joel Ferber Joel Ferber # 35165
Claggett # 26982 Services of Eastern Missouri Forest Park Avenue Louis, Missouri 63108 534-4200 telephone 534-1028 facsimile jdferber@lsem.org declaggett@lsem.org
John J. Ammann J. Ammann # 34308 Louis University Legal Clinic N. Spring Street
Louis, Missouri 63108 977-2778 telephone 977-1180 facsimile
ammannjj@slu.edu
Thomas E. Kennedy, III as E. Kennedy, III # 46617
Law Offices of Thomas E. Kennedy, III, L.C.
S. Bemiston Avenue Louis, Missouri 63105
872-9041 telephone 872-9043 facsimile tkennedy@tkennedylaw.com
/s/ Jane Perkins Jane Perkins
Health Law Program, Inc. 101 East Weaver St., Suite G-7 Carrboro, North Carolina 27510
968-6308 telephone 968-8855 facsimile perkins@healthlaw.org
ATTORNEYS FOR PLAINTIFFS

15 Case 2:10-cv-04185-NKL Document 22 Filed 10/18/10 Page 20 of 21

CERTIFICATE OF SERVICE

I hereby certify that on October 18, 2010, I electronically filed the foregoing with the clerk of the Court using the CM/ECF system which sent notification of such filing to the following counsel of record:

Broadway Post Jefferson

Mark E. Long Assistant Attorney General
State Office Building Office Box 899
City, MO 65102

/s/ Joel Ferber

16 Case 2:10-cv-04185-NKL Document 22 Filed 10/18/10 Page 21 of 21

 
 Hiltibran v. Levy, Not Reported in F.Supp.2d (2010)

2010 WL 6825306 Only the Westlaw citation is currently available.
United States District Court, W.D. Missouri, Central Division.
Steven HILTIBRAN, et al., Plaintiffs, v.
Ronald J. LEVY, et al., Defendants.
No. 10–4185–CV–C–NKL. | Dec. 27, 2010.
Attorneys and Law Firms
Heather B. Navarro, Thomas E. Kennedy, III, Law Offices of Thomas E. Kennedy, III, LC, Daniel E. Claggett, Joel Ferber, Legal Services of Eastern Missouri, Inc., John J. Ammann, St. Louis University Legal Clinic St. Louis University School of Law, St. Louis, MO, Martha Jane Perkins, Carrboro, NC, for Plaintiffs.
Mark E. Long, Missouri Attorney General’s Office, Jefferson City, for Defendants.
Opinion
ORDER
NANETTE K. LAUGHREY, District Judge.
*1 Plaintiff Nena Hammond and, by and through their guardians or next friend, Plaintiffs Steven Hiltibran, Nicholas Tatum, and Ronald Coontz, seek declaratory and injunctive relief against Defendants Ronald J. Levy, in his official capacity as Director of the Missouri Department of Social Services, and Ian McCaslin, in his official capacity as Director of the MO HealthNet Division, to enjoin them from denying Medicaid coverage of Plaintiffs’ incontinence supplies. Pending before the Court is Plaintiffs’ Motion for Preliminary Injunction. [Doc. # 5]. For the following reasons, the Court GRANTS the motion.
I. Factual Background Missouri participates in the federal Medicaid program and accepts federal matching funds for its program expenditures. [Doc. # 7, at 2]. Missouri’s Medicaid program, known as MO HealthNet, provides health

services only to the “categorically needy,” including Plaintiffs. [Doc. # 7, at 1, 3]; 42 U.S.C. § 1396a(a)(10)(A) (listing groups that comprise the “categorically needy” who must be covered in state Medicaid programs); Mo.Rev.Stat. § 208.151 (Missouri provides Medicaid assistance only to the categorically needy). Plaintiffs are all disabled, low-income Missouri residents who are incontinent due to their disabilities. [Doc. # 7, at 1]. Plaintiffs’ physicians have determined that incontinence briefs are medically necessary for Plaintiffs to prevent skin deterioration and infections and to maintain Plaintiffs’ ability to live in the community. [Doc. # 7, at 1]. Plaintiffs range in age between 22 and 49. [Docs. # 5–14, ¶ 1; # 5–15, ¶ 1; # 5–16, ¶ 1; # 5–17, ¶ 2].
Missouri provides coverage of incontinence briefs to participants between ages four and twenty. Mo.Code Regs. Ann. tit. 13, § 70–60.010; [Docs. # 5–6, DSS, Provider Bulletin, Vol. 31, No. 52, March 6, 2009 (incontinence briefs listed under “Physician and Durable Medical Equipment”); # 5–7, Missouri Durable Medical Equipment Provider Manual, § 13.22.B (incontinence briefs are “covered for participants age 4 through 20” when there is a medical condition causing incontinence and the briefs are prescribed) ]. Those age twenty-one and over who reside in institutional settings, such as nursing homes, also receive Medicaid coverage of incontinence briefs. Mo.Code Regs. Ann. tit. 13, § 70–10.005, Appx. (listing “incontinency pads and pants” under “routine covered medical supplies and services”); 70–10.010, Appx. A (listing “incontinency care (including pads, diapers and pants) under “covered supplies & services”). The Department of Social Services, which administers MO HealthNet, refused Plaintiffs’ claims on grounds that their incontinence briefs are personal hygiene items. [Docs. # 7, at 1; # 5–2, at 1; # 5–3, at 1; # 5–4, at 1]. As a result of these policies, three of the plaintiffs lost Medicaid coverage of their incontinence supplies upon turning twenty-one, as they do not live in nursing homes. [Doc. # 7, at 1]. The typical cost of caring for a single person in a nursing home is over $40,000 a year, or over $3,333 monthly. [Doc. # 5–24, ¶ 3]. None of Plaintiffs’ treating professionals recommend institutionalizing them in nursing homes. [Docs. # 5–18, ¶¶ 6, 7, 10; # 5–19, ¶ 7; # 5–20, ¶ 13; # 5–21, ¶¶ 6, 9].
*2 Plaintiffs were unable to obtain placement in a waiver program despite seeking help from various State agencies and case managers. [Docs. # 5–13, ¶¶ 9–11, 15–16; # 5–17, ¶¶ 10–11; # 5–16, ¶ 7; # 5–14, ¶ 8]. Each of the plaintiffs receives Supplemental Social Security Income assistance and currently struggles to pay for their incontinence supplies through a combination of donations
1

Hiltibran v. Levy, Not Reported in F.Supp.2d (2010)
from charities and family members. One of the plaintiffs, Ms. Hammond, re-wears used diapers because she struggles to “pay for diapers and also meet all of [her] other basic needs.” [Doc. # 5–17, ¶ 10]. The monthly cost of her briefs represents between 2% and 13% of her total monthly income of $694. [Doc. # 5–17, ¶¶ 4–5]. The monthly cost of incontinence briefs as to the other plaintiffs represent between 12% and 43% of their incomes ranging from $547 to $694 per month. [Docs. # 5–14, ¶¶ 1, 17; # 5–15, ¶ ¶ 3, 6; # 5–16, ¶¶ 1, 3]. Plaintiffs’ families admit that it is likely that they may have to place Plaintiffs in nursing homes to ensure that they receive sufficient incontinence supplies. [Docs. # 5–14, ¶¶ 17, 21; # 5–16, ¶ 11; # 5–15, ¶ 12; # 5–17, ¶ 13].
Plaintiffs filed this lawsuit for declaratory and injunctive relief to enjoin Defendants from denying Medicaid coverage of their medically necessary incontinence supplies and thereby violating federal Medicaid and disability discrimination mandates. Plaintiffs also seek a fair process by which they can establish the medical necessity of adult diapers. [Doc. # 7, at 1]. Plaintiffs contend that Defendants violate the Medicaid Act because their standards for determining whether a participant’s incontinence briefs are covered are unreasonable, 42 U.S.C. § 1396a(a)(17), and because they deny “home health services,” which includes incontinence briefs, to Plaintiffs, 42 U.S.C. §§ 1396a(a)(10)(A); 1396d(a)(4)(A). Plaintiffs also assert that Defendants violate the integration mandate of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131–12165, and Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 701, et seq., by requiring Plaintiffs to be institutionalized before MO HealthNet covers the cost of their briefs.
II. Discussion A plaintiff seeking a preliminary injunction must establish that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374 (2008); Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981). The Court finds that Plaintiffs satisfy all of these requirements.
A. Whether Plaintiffs Are Likely to Succeed on the Merits of Their Claims
i. Plaintiffs’ “Reasonable Standards” Claim In choosing to participate in the Medicaid program and

receive federal matching funds, Missouri is bound to comply with federal legislation and regulation. See Lankford v. Sherman, 451 F.3d 496, 510 (8th Cir.2006) (citing Meyers v. Reagan, 776 F.2d 241, 243–44 (8th Cir.1985) ( “When a state receives federal matching funds, its medical assistance program must comply with all federal statutory and regulatory requirements.”); Blum v. Bacon, 457 U.S. 132, 145–46 (1982)). Although federal law does not require Missouri to provide coverage of durable medical equipment (“DME”) to its Medicaid recipients, it has chosen to do so. Mo.Rev.Stat. § 208.152.1(19) (requiring payment for “[p]rescribed medically necessary durable medical equipment [DME] ). As a consequence of Missouri’s voluntary decision to cover DME and federal requirements, see, e.g., 42 U.S.C. § 1396a; 42 C.F.R. § 440.230(c), the Eighth Circuit Court of Appeals found in Lankford v. Sherman, 451 F.3d 496 (8th Cir.2006), that “[b]ecause Missouri has elected to cover DME as an optional Medicaid service, it cannot arbitrarily choose which DME items to reimburse under its Medicaid policy.” Lankford, 451 F.3d at 511. The court further held that Missouri is required to have a “meaningful procedure for requesting noncovered items.” Id. at 512.
*3 Here, Defendants argue that the guiding standards in Lankford do not apply because incontinence briefs are not DME as the briefs are single-use items, whereas Missouri’s definition of DME is “equipment that can withstand repeated use.” Mo.Code Regs. Ann. tit. 13, § 70–60.010. However, Plaintiffs have demonstrated substantial support that incontinence briefs are “durable medical equipment,” [Doc. # 22, at 2–3], including references in provider bulletins issued by the Missouri Department of Social Services [Doc. # 5–6] and the Durable Medical Equipment Manual issued by MO HealthNet. [Doc. # 5–7]. That Missouri’s regulations appear to undermine the foundation of Plaintiffs’ claim does not dispose of it given Defendants’ statements in their manuals and bulletins that are to the contrary. Additionally, that other types of medical supplies, which cannot withstand repeated use such as diabetic supplies and oxygen supplies, are also deemed “durable medical equipment” further support the characterization of incontinence briefs as DME.
Thus, Plaintiffs have established that the rules in Lankford likely apply in this instance, which prevents Missouri from “arbitrarily” denying coverage of incontinence briefs in violation of the Medicaid Act’s “reasonable standards” requirement. See 42 U.S.C. § 1396a(a)(17) (requiring state Medicaid plans to “include reasonable standards”); 42 C.F.R. § 440.230(c) ( “The Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope
2

Hiltibran v. Levy, Not Reported in F.Supp.2d (2010)
of a required service under sections. 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition.”). Because “[t]he purpose of Medicaid as stated in the Act is to enable states to provide medical treatment to needy persons ‘whose income and resources are insufficient to meet the cost of necessary medical services,’ “ Hern v. Beye, 57 F.3d 906, 910 (10th Cir.1995) (citing 42 U.S.C. § 1396), the Eighth Circuit Court of Appeals has held that unreasonable standards that are inconsistent with the purposes of the Medicaid Act include those that “reflect[ ] inadequate solicitude for the applicant’s diagnosed condition, the treatment prescribed by the applicant’s physicians, and the accumulated knowledge of the medical community.” Weaver v. Reagen, 886 F.2d 194, 200 (8th Cir.1989).
Plaintiffs argue that Missouri’s standards are arbitrary or unreasonable because Medicaid coverage of the briefs cease for anyone over the age of twenty who is not institutionalized but is living in his or her home. Arguably, such standards fall within Weaver’s characterization of “unreasonable” because they do not account for recipients’ diagnosed conditions, prescribed treatment, and the medical community’s knowledge. Indeed, such a standard would arguably violate Missouri’s own statute, Mo.Rev.Stat. § 208.152.1(19) (state Medicaid program must cover “[p]rescribed medically necessary durable medical equipment”), because it would deny medically necessary incontinence briefs to participants based on their age and living situation. Courts have struck down state Medicaid policies that restrict access to medical equipment and supplies by applying a standard narrower than “medical necessity.” See, e.g., Lankford, 451 F.3d at 511–13 (finding that plaintiffs established a likelihood of success on the merits in their claim that Missouri’s DME regulation curtailing coverage of DME items for certain non-home-health-care recipients conflicts with Medicaid’s reasonable-standards requirement); Weaver v. Reagan, 886 F.2d 194, 198 (8th Cir.1989) (“Once a state chooses to offer such optional services it is bound to act in compliance with the Act and the applicable regulations in the implementation of those services.... [A] state’s plan for determining eligibility ... [must] provide treatment that is deemed “medically necessary” in order to comport with the objectives of the Act.”) (citing Ellis v. Patterson, 859 F.2d 52, 56 (8th Cir.1988)); Meyers v. Reagan, 776 F.2d 241, 243 (8th Cir.1985); Beal v. Doe, 432 U.S. 438, 444–45 (1977) (“[S]erious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage .”). Moreover, here, Plaintiffs are denied the opportunity to establish medical necessity for incontinence briefs due to the blanket presumption that

the briefs as “non-medical” or “personal hygiene” items for persons over the age of twenty. [Docs. # 5–2, at 1; # 5–3, at 1; # 5–4, at 1; # 5–5, at 2]. Such a characterization of Plaintiffs’ medical needs is arguably an irrebuttable presumption of the type that the Eighth Circuit Court of Appeals has previously stricken as an “arbitrary denial of benefits.” Pinneke v. Preisser, 623 F.2d 546, 548–49 (8th Cir.1980) (rejecting Iowa policy that sex reassignment surgery can never be medically necessary). This denies plaintiff a “meaningful procedure for requesting non-covered items,” as required by Lankford. 451 F.3d at 512.
ii. Plaintiffs’ Claim Based on the Mandatory Home Health Services Requirement of the Medicaid Act *4 All Medicaid recipients in Missouri are entitled to “home health services” including “[m]edical supplies [and] equipment.” 42 U.S .C. §§ 1396a(a)(10)(A), 1396a(a)(4)(A), 1396a(a)(10)(D); 42 C.F.R. §§ 440.70(b)(3), 441.15, 440.210. Missouri’s approved Medicaid plan expressly provides that “[m]edically necessary supplies, which are not routinely furnished in conjunction with patient care visits and which are direct, identifiable services to an individual patient, are reimbursable to the [patient’s home health] agency.” [Doc. # 19–2 (June 3, 2010 Amendment to Missouri State Medicaid Plan, Att. 3 .1–A para 7.c) ]. The United States Department of Health and Human Services Centers for Medicare and Medicaid Services has stated that the denial of home health services to Missouri Medicaid beneficiaries violates 42 U.S.C. § 1396a(a)(10)(D). [Doc. # 5–12, at 1]. The approved State Medicaid plan does not indicate any limitation on the coverage of medically necessary incontinence briefs, nor the duration of the coverage for individuals with chronic conditions whose needs for these services are reviewed annually by a physician. See 42 C.F.R. § 440.70(b)(3)(I).
The State Medicaid plan further states that “[n]eeded items of medical equipment prescribed by a physician are available to all recipients including recipients of home health, through the Durable Medical Equipment program.” [Doc. # 19–2, at 3]. As Plaintiffs have demonstrated support that incontinence briefs are “durable medical equipment,” see Part II.A.i., they have met their burden of establishing the likelihood of success on the merits as to this claim.
iii. Plaintiffs’ ADA and Rehabilitation Act Claims Due to the “non-medical” status that Missouri regulations assign to incontinence briefs to persons over age twenty,
3

Hiltibran v. Levy, Not Reported in F.Supp.2d (2010)
these individuals must submit themselves to an institution in order to receive state Medicaid coverage for their medically necessary incontinence supplies. The Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131–12134, prohibits public entities from discriminating against individuals with disabilities by, for example, violating the “integration mandate”: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act applies the same standards to entities that receive federal financial assistance: “No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). “The rights, procedures, and enforcement remedies under Title II are the same as under section 504.” Layton v. Elder, 143 F.3d 469, 472 (8th Cir.1998) (citing Pottgen v. Mo. State High Sch. Activities Ass’n, 40 F.3d 926, 930 (8th Cir.1994)). As the Supreme Court held in Olmstead v. L.C., 527 U.S. 581 (1999), public entities are required to provide community-based services to person with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. Id. at 607. Persons at risk of institutionalization may make an integration mandate challenge without having first been placed in institutions. Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1185 (10th Cir.2003).
*5 Here, Plaintiffs struggle to pay for their incontinence supplies through a combination of donations from charities and family members. Each of the plaintiffs receives Supplemental Social Security Income assistance. One of the plaintiffs, Ms. Hammond, re-wears used diapers because she struggles to “pay for diapers and also meet all of [her] other basic needs.” [Doc. # 5–17, ¶ 10]. The monthly cost of her briefs represents between 2% and 13% of her total monthly income of $694. The monthly cost of incontinence briefs as to the other plaintiffs represent between 12% and 43% of their incomes ranging from $547 to $694 per month. Plaintiffs’ families admit that it is likely that they may have to place Plaintiffs in nursing homes to ensure that they receive sufficient incontinence supplies. Plaintiffs face a substantial risk of institutionalization. Compare Fisher, 335 F.3d at 1184 (finding that medical costs of 36.6% of a monthly income

of $547 places “a severe burden on [plaintiff’s] finances and could easily force [plaintiff] to enter a nursing home [to receive coverage for plaintiff’s medical needs]” and that costs for other plaintiffs of 8% per month on uncovered medical expenses has a “real effect on [plaintiffs’] finances” given monthly incomes of $725 and $313). Here, all of the Plaintiffs receive less than $725 per month and a substantially larger proportion of that income is spent on needed medical supplies. Indeed, Plaintiffs’ desire to remain in the community, typified by Ms. Hammond’s resorting to re-use diapers, “does not mean that they do not face a substantial risk of harm.” Id. at 1184–85. Thus, Plaintiffs have shown that may make an integration mandate challenge.
It is undisputed that Plaintiffs meet the first two elements of an integration mandate challenge—that they are appropriate for and do not oppose community placement. Plaintiffs assert that as to the third element, Defendants already fund incontinence supplies for persons below age twenty-one who are non-institutionalized and also provide coverage to persons who live in institutional settings. According to Plaintiffs, that they have not entered nursing homes so as to receive Medicaid-covered incontinence briefs saves Missouri money—the cost of paying for adult diapers ranges between $80 and $300 monthly per person [Doc. # 7, at 21 (the varying amounts paid by Plaintiffs) ], whereas the cost of caring for a single person in a nursing home is over $40,000 a year, or over $3,333 monthly. [Doc. # 5–24, ¶ 3]. Therefore, Plaintiffs assert that this shows that Defendants are logistically able to accommodate the coverage of medically necessary incontinence briefs for persons under age twenty-one and that they have the resources to cover the cost of nursing home care for those over the age of twenty-one, which far exceeds the cost of briefs alone, without impacting the coverage of other persons with disabilities. Defendants do not specifically dispute this contention. The Court finds that Plaintiffs have made a showing that under Olmstead, Defendants are required to provide incontinence briefs to non-institutionalized adults if they provide briefs to institutionalized adults.
iv. Conclusion as to Plaintiff’s Likelihood of Success on the Merits *6 For Plaintiffs to establish that they are likely to succeed on the merits of their claims, they must be “at least ... sufficiently likely to support the kind of relief it requests.” Sanborn Mfg. Co. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 488 (8th Cir.1993). Based on the foregoing, the Court concludes that Plaintiffs have sufficiently pointed to governing law in support of their claims and have demonstrated a fair chance of success at
4

Hiltibran v. Levy, Not Reported in F.Supp.2d (2010)
trial. Accordingly, Plaintiffs have met their burden of establishing a likelihood of success on the merits in their claims against Defendants.
B. Whether Plaintiffs Will Suffer Irreparable Harm if Defendants Are Not Enjoined As discussed in Part II.A.iii, Plaintiffs face a substantial risk of institutionalization. Here, none of Plaintiffs’ treating professionals recommend institutionalizing them in nursing homes. [Docs. # 5–18, ¶¶ 6, 7, 10; # 5–19, ¶ 7; # 5–20, ¶ 13; # 5–21, ¶¶ 6, 9]. Testimony of medical professionals support Plaintiffs’ assertion that institutionalization of a person for incontinence alone is medically inappropriate. [Docs. # 7, at 18 (citing Huskey Decl. [Doc. # 5–22], ¶ 24; # 5–24, ¶ 14) ]. Additionally, if Plaintiffs are not institutionalized but are unable to obtain incontinence supplies due to their precarious financial situations, Plaintiffs are likely to suffer from skin deterioration and infections. [Doc. # 7, at 1]. The potential harm to Plaintiffs’ health and physical condition whether or not institutionalized is irreparable. See Kai v. Ross, 336 F.3d 650, 656 (8th Cir.2003) (“[T]he danger to plaintiffs’ health, and perhaps even their lives, gives them a strong argument of irreparable injury.”).
Defendants argue that “[c]ontinuation of a long-standing policy for the duration of this litigation is not irreparable harm” and that Plaintiffs “are not threatened with a loss of existing Medicaid benefits.” [Doc. # 17, at 9]. However, Defendants do not place into context the “continuation” of Missouri policy or Plaintiffs “loss” of benefits. Three of the plaintiffs had received coverage of their incontinence briefs up until they turned twenty-one years old; their benefit was “lost” upon turning twenty-one due to the structure of Missouri’s “continuing” policies. Indeed, all Plaintiffs are not threatened by a loss of benefits, but have already lost benefits to which they allege they are entitled. Defendants also argue that Plaintiffs have not applied for any State waiver programs that may provide incontinence briefs as special medical supplies. [Doc. # 17, at 9–10]. However, not only are such waiver programs insufficient to remedy Defendants’ alleged violations of the law, see Lankford, 451 F.3d at 512–13, all Plaintiffs were unable to obtain placement in a waiver program despite seeking help from various State agencies and case managers. [Docs. # 5–13, ¶¶ 9–11, 15–16; # 5–17, ¶¶ 10–11; # 5–16, ¶ 7; # 5–14, ¶ 8]. Thus, the Court finds that Plaintiffs will be irreparably harmed if Defendants are not enjoined.
C. Whether the Balance of Hardships Tips in Plaintiffs’ Favor

*7 Defendants argue that an injunction “would require Missouri to bear the administrative burdens associated with amending its State Plan.” [Doc. # 17, at 10]. However, Plaintiffs do not contend that Missouri’s State Plan, as written, contains provisions that violate the American with Disabilities Act or the Medicaid Act. Rather, it is the state’s policy of deeming incontinence briefs as “personal hygiene” items when they are used by individuals over the age of twenty—which the State Plan does not address—that Plaintiffs wish to enjoin. This does not necessarily require Missouri to amend its State Plan. To the extent that Defendants appear to argue that they will be burdened by administrative costs associated with new claims as a consequence of the injunction, Defendants have not identified the nature or extent of these additional costs. On the other hand, the irreparable harm to Plaintiffs’ health and physical condition, see Part II.B, clearly outweigh the indiscernible administrative costs to Defendants. Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir.1983) (“Faced with such a conflict between financial concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.”).
D. Whether an Injunction is in the Public Interest Defendants argue that “Missouri courts have noted that the state has a compelling governmental interest in carrying out the Medicaid program,” which includes “incorporating cost containment measures.” [Doc. # 17, at 10]. According to their theory, an injunction would prevent Missouri from enforcing such budgetary concerns and thus “[t]he public interest is better served by the status quo until this litigation is concluded.” [Doc. # 17, at 10].
On the other hand, an injunction would preserve the public interest that is embodied by Congress’ enactment of the Medicaid program. Moreover, enforcement of the federal law is in the public interest. Here, Defendants are in alleged violation of three federal statutes—the Medicaid Act, Americans with Disabilities Act, and Rehabilitation Act. Thus, a preliminary injunction would serve to prevent both the potential discriminatory segregation of persons with disabilities into nursing homes and the potential physical harm on Plaintiffs and others who are similarly situated who are unable to purchase incontinence supplies. After weighing these varied interests, the Court finds that an injunction will better serve the public.
III. Conclusion
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Hiltibran v. Levy, Not Reported in F.Supp.2d (2010)
The Court finds that Plaintiffs have established the requirements necessary for a preliminary injunction. Accordingly, it is hereby ORDERED that Plaintiffs’ Motion for Preliminary

Injunction [Doc. # 5] is GRANTED.
	  

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 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

STEVEN HILTIBRAN, et. al. Plaintiffs,
v. RONALD J. LEVY, et al.
Defendants.

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Case No. 10-4185-CV-C-NKL

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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

COME NOW Plaintiffs, by and through counsel, and move the Court pursuant to

Fed. R. Civ. P. Rule 56 and Local Rule 56.1 for its order granting summary judgment in

Plaintiffs’ favor and against Defendants in their official capacities. As shown by

Plaintiffs’ Suggestions in Support of Motion for Summary Judgment, and by the

declarations and other exhibits on file in this case, there is no genuine issue of material

fact. Plaintiffs are entitled to judgment as a matter of law.

Wherefore, Plaintiffs pray that this Court grant declaratory relief and permanently

enjoin Defendant from continuing to implement the regulation and policy at issue in this

case and from otherwise denying medically necessary adult incontinent supplies.

Plaintiffs further request that this Court grant their reasonable attorney’s fees and costs,

and such other and further relief as may be necessary and proper.

Case 2:10-cv-04185-NKL Document 32 Filed 02/17/11 Page 1 of 3

Dated: February 17, 2011

Respectfully submitted,
/s/ Joel Ferber Joel Ferber # 35165 Daniel Claggett # 26982 Legal Services of Eastern Missouri 4232 Forest Park Avenue St. Louis, Missouri 63108 (314) 534-4200 telephone (314) 534-1028 facsimile jdferber@lsem.org declaggett@lsem.org
/s/ John J. Ammann John J. Ammann # 34308 Saint Louis University Legal Clinic 321 N. Spring Street St. Louis, Missouri 63108 (314) 977-2778 telephone (314) 977-1180 facsimile ammannjj@slu.edu
/s/ Thomas E. Kennedy, III Thomas E. Kennedy, III # 46617 Heather B. Navarro # 60708 Law Offices of Thomas E. Kennedy, III, L.C. 230 S. Bemiston Avenue St. Louis, Missouri 63105 (314) 872-9041 telephone (314) 872-9043 facsimile tkennedy@tkennedylaw.com
/s/ Jane Perkins Jane Perkins National Health Law Program, Inc. 101 East Weaver St., Suite G-7 Carrboro, North Carolina 27510 (919) 968-6308 telephone (919)968-8855 facsimile perkins@healthlaw.org
ATTORNEYS FOR PLAINTIFFS

Case 2:10-cv-04185-NKL Document 32 Filed 02/17/11 Page 2 of 3

CERTIFICATE OF SERVICE I hereby certify that on February 17, 2011, I electronically filed the foregoing with the clerk of the Court using the CM/ECF system which sent notification of such filing to the following counsel of record:
Mark E. Long Assistant Attorney General Broadway State Office Building Post Office Box 899 Jefferson City, MO 65102
/s/ Joel Ferber
Case 2:10-cv-04185-NKL Document 32 Filed 02/17/11 Page 3 of 3

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISON

STEVEN HILTIBRAN, et. al. Plaintiffs,
v. RONALD J. LEVY, et al.
Defendants.

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Case No. 10-4185-CV-C-NKL

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PLAINTIFFS’ SUGGESTIONS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Plaintiffs are challenging a Missouri regulation and policy that terminates Medicaid coverage of medically necessary adult incontinence supplies when noninstitutionalized individuals reach the age of 21 by reclassifying these supplies as “personal hygiene items.” Prior to age 21, these supplies were covered by Missouri’s Medicaid program based upon a showing of “medical necessity.” This case is about whether Defendants’ policy of excluding coverage of “medically necessary” adult diapers from the Missouri Medicaid program is consistent with federal law.
On December 27, 2010, this Court granted Plaintiffs’ Motion for Preliminary Injunction after finding that Plaintiffs had established a likelihood of success on their claims that Defendants’ regulation and policy violate the “reasonable standards” and “home health” requirements of the Medicaid Act, the “community integration mandate” of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. Order Granting Preliminary Injunction (“P.I. Order”) at 5-13. Plaintiffs now move for summary judgment on the grounds that the uncontroverted material facts set forth

Case 2:10-cv-04185-NKL Document 33 Filed 02/17/11 Page 1 of 29

below show that Plaintiffs are entitled to judgment on their Medicaid, ADA and Section 504 claims as a matter of law.
STATEMENT OF UNCONTROVERTED MATERIAL FACTS Pursuant to L.R. 56.1, the following uncontested material facts support Plaintiffs’ Suggestions in Support of Motion for Summary Judgment: 1. In Missouri, all Medicaid recipients are categorically needy. Mo. Rev. Stat. § 208.151; see also 42 U.S.C. §§ 1396a(a)(10)(A), (C). 2. When it enacted Medicaid in 1965, Congress stated that categorically needy people “are the most needy in the country and it is appropriate for medical care costs to be met, first, for these people.” H.R. Rep. No. 213, 89th Cong., 1st Sess.; S. Rep. No. 404, 89 Cong., 1st Sess., Pt. 1, reprinted in 1965 U.S.C.C.A.N. 2020-21.
Parties 3. Plaintiff Steven Hiltibran is a 22-year-old man who has been enrolled in the Missouri Medicaid program, MO HealthNet, since age one and lives at home with his mother. Exhibit (Ex.) 13 at ¶¶ 1, 13, 18 and 25.1 4. Plaintiff Hiltibran suffers from severe cerebral palsy, psychosis, multiple sclerosis, scoliosis, and chronic pain, muscle spasms and contractures. Ex. 13 at ¶ 1. 5. Because of his medical conditions, Steven is completely bed-bound and terminally ill. Ex. 13 at ¶ 1. 6. Because of his medical conditions, Steven is completely incontinent of both bladder and bowel. Ex. 13 at ¶¶ 4 and 7. 1 All exhibits have been previously filed with Plaintiffs’ Motion for Preliminary Injunction and Reply Suggestions, and are described on the Exhibit Lists filed on August 23, 2010 and October 18, 2010.
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7. In determining his eligibility for personal care services, the Missouri Department of Health and Senior Services has found that Steven meets the level of care requirements for coverage in a nursing facility or other such institution. Ex. 13 at ¶ 19; 13 C.S.R. § 70-91.010(1)(A).
8. Steven’s treating health care providers have stated that the most appropriate place for Steven to receive care and to live is in his home, where he has lived all his life. Ex. 17 at ¶ 9.
9. Steven’s disabilities make him highly susceptible to respiratory and other lifethreatening infections. Ex. 13 at ¶¶ 13, 14, 21 and 23; Ex. 17 at ¶¶ 5 and 6.
10. Steven needs incontinence briefs to prevent skin breakdown and infections. Ex. 13 at ¶¶ 7, 10, 11, 12, and 21; Ex. 17 at ¶¶ 6 and 7.
11. Steven’s treating physicians have prescribed incontinence briefs to prevent skin breakdowns and ulcers that result from sitting in wet and soiled undergarments. Ex.13 at ¶¶ 7, 10, and 11; Ex. 17 at ¶ 6.
12. The MO HealthNet Program covered incontinence briefs as medically necessary for Steven until he turned 21 years of age. Ex. 13 at ¶ 8; Ex. 17 at ¶¶ 3 and 4.
13. Steven’s medical condition did not change or improve when he turned 21. Ex. 13 at ¶ 20; Ex. 17 at ¶ 4.
14. Steven’s treating physicians wrote letters to the MO HealthNet Division on January 6 and June 19, documenting his continuing medical need for adult diapers and requesting prior authorization for coverage of adult diapers. Ex. 13 at ¶ 10; Ex. 4 at 2.
15. On March 2, 2009, the MO HealthNet Division denied Steven’s physician’s prior authorization request for coverage. Ex. 13 at ¶ 15; Ex. 4 at 2.
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16. On or about April 15, 2009, the MO HealthNet Division denied Steven’s physician’s request to obtain coverage through the Exceptions Process. The Agency’s reason for denying the request was that “diapers are a personal hygiene item, not a medical item.” Ex. 4 at 2, Ex. 13 at ¶ 15.
17. Steven’s guardian, Debra Burkhart, appealed this denial and the Department of Social Services (“DSS”) upheld the denial in a written decision on October 6, 2009. Ex. 13 at ¶ 15; Ex. 4.
18. The written decision was signed by Defendant Ian McCaslin, Director of the MO HealthNet Division. Ex. 4 at 3.
19. Director McCaslin found that “disposable diapers are a personal hygiene item, not a medical item” and that Steven “did not meet the burden of proof to show that disposable diapers are an essential medical item.” Ex. 4 at 3.
20. Steven’s incontinence briefs will be covered by the MO HealthNet program if he moves into a nursing home. Answer at ¶ 68; Ex. 1 at 2.
21. Steven’s incontinence supplies cost approximately $80 per month. Ex. 13 at ¶ 17.
22. Plaintiff Ronald Coontz is a 30-year-old man who has been enrolled in the MO HealthNet Program since age fifteen and lives at home with his mother. Ex. 14 at ¶¶ 1, 3, 4 and 5.
23. Ronald suffers from anoxia, static encephalopathy (permanent brain damage) and a seizure disorder. Ex. 14 at ¶ 1; Ex. 18 at ¶ 2.
24. Due to his disabilities, Ronald is completely incontinent of both bladder and bowel. Ex. 14 at ¶¶ 1 and 6; Ex. 18 at ¶¶ 2 and 4.
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25. In determining his eligibility for personal care services, the Missouri Department of Health and Senior Services found that Ronald meets the level of care requirements for coverage in a nursing facility or other such institution. Ex. 14 at ¶ 3; 13 C.S.R. § 70-91.010(1)(A).
26. Ronald’s treating health care providers have stated that the most appropriate place for Ronald to receive care and to live is in his home. Ex. 18 at ¶ 10.
27. Ronald’s treating physicians have prescribed incontinence briefs to prevent skin breakdowns and infections. Ex. 14 at ¶ 6.
28. Ronald needs incontinence briefs to prevent skin breakdown and infections and to continue living at home with his guardian and mother. Ex. 14 at ¶¶ 5, 9, and 12; Ex. 18 at ¶¶ 10 and 11.
29. The Missouri Medicaid program covered incontinence briefs as medically necessary for Ronald until he turned 21 years of age. Ex. 14 at ¶¶ 6 and 7; Ex. 18 at ¶ 3.
30. Ronald’s medical condition did not improve or change when he turned 21. Ex. 14 at ¶ 7; Ex. 18 at ¶ 3.
31. Ronald’s treating physicians have written letters to the MO HealthNet Division documenting his continuing medical need for adult diapers. Ex. 14 at ¶ 8; Ex. 18 at ¶ 10.
32. Ronald’s treating physician submitted a letter requesting an “exception” to continue coverage of adult diapers shortly after he reached age 21 but the request was denied. Ex. 14 at ¶ 8.
33. Ronald’s incontinence briefs will be covered by the MO HealthNet program if he moves into a nursing home. Answer at ¶ 68; Ex. 1 at 2.
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34. Ronald’s incontinence supplies cost approximately $300 per month. Ex. 14 at ¶ 6.
35. Paying for these supplies out of pocket has caused financial hardship and emotional stress for the Coontz family which is struggling to pay for Ronald’s adult diapers while meeting other basic needs. Ex. 14 at ¶ 10.
36. Ronald’s mother and guardian, Patricia Coontz, fears that he will have to enter a nursing home to continue receiving the incontinent supplies he needs. Ex. 14 at ¶ 12.
37. Plaintiff Nicholas Tatum is a 22-year-old man who is enrolled in the MO HealthNet Program, and was enrolled in the program before he turned 21. Ex. 15 at ¶¶ 1 and 6. He lives at home with his mother. Id. at ¶ 3.
38. Nicholas suffers from Alagille Syndrome (a genetic disorder that affects the heart, liver, kidney and other internal organs of his body), liver disease and mental disabilities. Ex. 15 at ¶ 1; Ex. 19 at ¶ 3.
39. Due to his disabilities, Nicholas is completely incontinent of both bladder and bowel. Ex. 15 at ¶ 2; Ex. 19 at ¶ 3.
40. In determining his eligibility for adult day care services, the Missouri Department of Health and Senior Services found that Nicholas meets the level of care requirements for coverage in a nursing facility or other such institution. Ex. 15 at ¶ 8; 13 C.S.R. § 70-91.010(2)(A).
41. Nicholas’s mother and his teachers have tried to teach Nicholas to use the bathroom without success. Ex. 15 at ¶ 10.
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42. Nicholas’s treating health care provider has stated that he can be served appropriately in the community as long as he receives adult diapers. Ex. 19 at ¶¶ 8, 9 and 13.
43. Nicholas’s treating physicians have prescribed incontinence briefs to prevent skin breakdowns and infections. Ex. 15 at ¶ 2; Ex. 19 at ¶ 4.
44. Nicholas needs incontinence briefs to prevent skin breakdown and infections. Ex. 15 at ¶ 11.
45. The Missouri Medicaid program covered incontinence briefs as medically necessary for Nicholas until he turned 21 years of age. Ex. 15 at ¶ 6.
46. Nicholas’ medical condition did not change or improve when he turned 21. Ex. 15 at ¶ 6; Ex. 19 at ¶ 4.
47. Nicholas’s mother asked his Medicaid caseworker and his St. Louis Regional Center caseworker if there was a way for him to continue receiving the incontinence supplies. Ex. 15 at ¶ 7.
48. The caseworkers were not able to help Nicholas and referred him to Catholic Charities. Ex. 15 at ¶ 7. Catholic Charities did not provide the requested diapers. Id. at ¶ 7.
49. Nicholas’s incontinence briefs will be covered by the MO HealthNet program if he moves into a nursing home. Answer at ¶ 68; Ex. 1 at 2.
50. Nicholas’s incontinence supplies cost approximately $100 per month. Ex. 15 at ¶ 3.
51. Paying for these supplies out of pocket has caused financial hardship and emotional stress for the Tatum family. Ex. 15 at ¶ 9.
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52. Plaintiff Nena Hammond is a 49-year-old woman who is enrolled in the MO HealthNet Program and lives by herself in the community. Ex. 16 at ¶¶ 2 , 4, 12-13.
53. Nena suffers from a spinal cord injury, cysts in her kidneys and liver, and occasional spasticity in her limbs and body. Ex. 16 at ¶ 3; Ex. 20 at ¶ 2.
54. Nena is paralyzed and must use a wheelchair for mobility. Ex. 16 at ¶ 3; Ex. 20 at ¶ 2.
55. Due to her disabilities, Nena is incontinent of both bladder and bowel. Ex. 6 at ¶ 3; Ex. 20 at ¶ 2.
56. In determining her eligibility for personal care services, the Missouri Department of Health and Senior Services found that Nena meets the “level of care” requirements for coverage in a nursing facility or other such institution. 13 C.S.R. § 7091.010(1)(A).
57. Nena’s treating health care providers have stated that the most appropriate place for her to receive care and to live is in the community rather than a nursing home or other such institution. Ex. 20 at ¶¶ 6 and 9.
58. Nena’s treating physicians have determined that incontinence briefs are medically necessary to prevent skin breakdowns and ulcers that result from sitting in wet and soiled undergarments. Ex. 20 at ¶¶ 6, 7, 8, 9 and 10.
59. Nena is not always able to purchase all of the diapers she needs and sometimes suffers from skin infections. Ex. 16 at ¶ 10.
60. As a result of multiple skin infections, Nena has become allergic to many of the most common antibiotics and taking antibiotics causes her to experience side effects, including severe vomiting. Ex. 16 at ¶ 7; Ex. 20 at ¶ 5.
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61. Nena’s physician reports that she has limited treatment options and faces a higher risk of hospitalization with each infection. Ex. 20 at ¶ 5.
62. Prior to the preliminary injunction in this case, the Missouri Medicaid program did not cover Nena’s incontinence briefs. Ex. 16 at ¶¶ 9 and 12.
63. Nena’s incontinence briefs will be covered by the MO HealthNet program if she moves into a nursing home. Answer at ¶ 68; Ex. 1 at 2.
64. Nena’s incontinence supplies cost from $18 to $90 per month depending on her health. Ex. 16 at ¶ 5.
65. Paying for these supplies out of pocket causes financial and emotional stress for Nena who must forego other basic necessities in order to pay for adult diapers. Ex. 16 at ¶¶ 10 and 12.
66. Nena often re-wears used diapers because she is in a “constant financial struggle to get by, trying to pay for diapers and also meet all of [her] other basic needs.” Ex. 16 at ¶¶ 8 and 10; P.I. Order at 3.
67. The monthly cost of incontinence briefs for Plaintiffs ranges from two percent (2%) to forty-three percent (43%) of their monthly income. Ex. 13 at ¶ 1 and 17; Ex. 14 at ¶ 3 and 6; Ex. 15 at ¶¶ 1 and 3; Ex. 16 at ¶¶ 4 and 5; P.I. Order at 3.
68. Defendant Ronald J. Levy is the Director of the Missouri Department of Social Services (hereinafter, “DSS”) and, as such, is responsible for the general administration and implementation of laws concerning the social welfare of the people of the State of Missouri, including the Medicaid program. Answer at ¶ 10.
69. Defendant Levy is the chief administrative officer of DSS and is responsible for administration of the single state agency for the Missouri Medicaid program.
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Defendant Levy is charged with the ultimate control and administration of DSS, including the duty to administer the Missouri Medicaid program in compliance with the Medicaid Act, the ADA, and Section 504 of the Rehabilitation Act. Answer at ¶ 10.
70. Defendant Ian McCaslin, M.D., is the Director of MO HealthNet, a division of DSS, and, as such, is responsible for the administration of the Missouri Medicaid program, with the exception of determination of eligibility for the program. Answer at ¶ 11.
71. Defendant McCaslin holds ultimate administrative power within the MO HealthNet Division subject to the supervision of Defendant Levy. Answer at ¶ 11.
72. Missouri has chosen to participate in the Medicaid program, which is called MO HealthNet in Missouri. Answer at ¶ 32.
73. Missouri has designated DSS as the single state agency responsible for administering MO HealthNet. Answer at ¶ 32.
Health Professionals’ Statements Regarding Adult Incontinence Briefs, Relative Costs
74. According to Dr. Thy Huskey, Assistant Professor of Neurology at Washington University School of Medicine, adult diapers are critical for protecting skin integrity and preventing the many health complications that result from a breach of skin integrity, including pressure sores. Ex. 21 at ¶¶ 5-13. Dr. Huskey stated that “adult diapers are often the only effective way to prevent skin breakdowns.” Id. at ¶ 13.
75. Dr. Huskey testified that adult diapers are needed to prevent skin breakdowns and infections that can cause sepsis, a systemic inflammatory response to infection characterized by fever, a raised heart rate, rapid breathing and a decrease in blood pressure, sometimes leading to septic shock and death. Ex. 21 at ¶ 9.
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76. According to Dr. Huskey, complications from “skin encroachment” become more expensive to treat than the cost of covering the incontinent supplies. Ex. 21 at ¶ 12.
77. Dr. Huskey further stated that there is no medical basis for covering adult diapers for individuals under 21 but failing to provide them for individuals who are 21 or over. Ex. 21 at ¶ 16. The conditions that give rise to the medical need for adult diapers do not disappear when a person reaches 21 year of age. Id. at ¶ 16.
78. According to Dr. Yadria Hurley, the Director of Dermatopathology at St. Louis University School of Medicine, incontinence can cause not only ICD (“irritant contact dermatitis”), but also human papillomavirus (HPV), perirectal and genital warts, pain, yeast infections, potentially deadly staph infections, and skin cancer—including melanoma, the most dangerous form of skin cancer. Ex. 22 at ¶¶ 4-9.
79. Dr. Huskey testified that incontinence is one of the leading causes of institutionalization, and individuals suffering from incontinence are at serious risk of institutionalization. However, it is also a condition that can be treated effectively in the community with assistive modalities, such as adult diapers. Ex. 21 at ¶ 24.
80. According to Dr. Huskey, institutionalization of a person due to incontinence alone is medically inappropriate. Ex. 21 at ¶ 25; P.I. Order at 13-14.
81. The cost of serving an individual in a nursing home is over $40,000 a year, or over $3,333 per month. Ex. 23 at ¶ 12; Ex. 26 at 310; Ex. 28 at 12; P.I. Order at 12.
82. The cost of “even one unnecessary hospitalization from a lack of proper incontinency care could cost an average of $1,768 for one day.” Ex. 23. at ¶ 12 (citing Governor Jay Nixon, FY 2011 Department of Health and Senior Services Budget Request
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with Governor’s Recommendations, January 2010 at p. 293, at: http://oa.mo.gov/bp/budreqs2011/Health/Health.pdf).
Federal DME Guidance and CMS Communications 83. On September 4, 1998, the federal Centers for Medicare & Medicaid Services (CMS) issued guidance to State Medicaid Directors regarding Medicaid coverage of medical equipment, stating that the “mandatory home health services benefit under the Medicaid program includes coverage of medical supplies, equipment, and appliances suitable for use in the home.” Ex. 12. 84. The September 4, 1998 CMS guidance (Ex. 12) states: A State may establish reasonable standards, consistent with the objectives of the Medicaid statute, for determining the extent of such [medical equipment] coverage (42 U.S.C. § 1396a(a)(17)) based on such criteria as medical necessity or utilization control (42 C.F.R. § 440.230(d)). In doing so, a State must ensure that the amount, duration, and scope of coverage are reasonably sufficient to achieve the purpose of the service. (42. C.F.R. § 440.230(b)). Furthermore a State may not impose arbitrary limitations on mandatory services, such as home health services, based solely on diagnosis, type of illness or condition (42 C.F.R. § 440.230(c)). 85. CMS has stated that the denial of home health services to Missouri Medicaid beneficiaries violates 42 U.S.C. § 1396a(a)(10(D). P.I. Order at 9; Ex. 11 at 1. 86. In a letter dated February 26, 2010, CMS stated that “Missouri is not providing all Medicaid beneficiaries with home health benefits that are required under title XIX of the Social Security Act (the Act).” Ex. 11 at 1. CMS further stated that “the approved Missouri State plan under title XIX (Medicaid) of the Act is not in compliance with the provisions of section 1902(a) of the Act with respect to the home health benefit.” Id.
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87. In the same letter, CMS stated that “[a]s a result of this “homebound” requirement, certain Medicaid beneficiaries are not receiving the full benefit package required under section 1902(a)(10) of the Act, which in subparagraph (D) provides for the inclusion of home health services in the standard Medicaid benefit package.” Ex. 11 at 1.
88. On March 5, 2010, CMS issued a “Notice of Opportunity for a Hearing on Compliance of Missouri State Plan Provisions Concerning Payments for Home Health Services with Title XIX (Medicaid) of the Social Security Act.” 75 Fed. Reg. 10289-90 (Mar. 5, 2010) (“Federal Register Notice”). This Federal Register Notice stated that “Missouri is not providing all Medicaid beneficiaries with home health benefits that are required under title XIX of the Social Security Act (the Act).” Id.
89. In the same Federal Register Notice, CMS stated that “the approved Missouri State plan under title XIX (Medicaid) of the Act is not in compliance with the provisions of section 1902(a) of the Act with respect to the home health benefit” and that “[a]s a result of this ‘homebound’ requirement, certain Medicaid beneficiaries are not receiving the full benefit package required under section 1902(a)(10) of the Act, which in subparagraph (D) provides for the inclusion of home health services in the standard Medicaid benefit package.” 75 Fed. Reg. 10289-90 (Mar. 5, 2010).
90. On June 11, 2010, CMS instructed the State of Missouri to “delete the language in the [State Plan Amendment] that conditions receipt of home health aide services on the concurrent need for skilled nursing care or physical, occupational, or speech therapy services since federal Medicaid requirements do not allow this type of arrangement.” Ex. 37.
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91. On November 21, 2005, CMS instructed the State of Missouri to remove the following language from the State Plan Amendment being submitted: “To be eligible for home health services, a recipient must require the services of a skilled nurse or therapist, as defined in paragraphs 7.a and d below and be confined to his home.” Ex. 36. CMS further instructed the State to remove from paragraph 7b: “needed concurrently with covered skilled nursing or physical, occupational or speech therapy services.” Ex. 36.
92. In the same directive, CMS advised Missouri that “the State may not require that individuals require the services of a skilled nurse or therapist in order to receive either the services of a Home Health aide, or medical equipment and supplies under home health. This requirement is not specified in Medicaid law or regulations.” Ex. 36.
MO HealthNet’s Coverage of Incontinent Supplies 93. The MO HealthNet Division covers incontinence briefs as “durable medical equipment” for individuals ages 4 through 20. P.I. Order at 6; Ex. 5, 6, 8, 9, 10. 94. Missouri’s Medicaid statute requires coverage of prescribed medically necessary durable medical equipment. Mo. Rev. Stat. § 208.152.1(19). 95. The Missouri Medicaid statute requires that an “electronic web-based prior authorization system using best medical evidence and care and treatment guidelines consistent with national standards shall be used to verify medical need.” Mo. Rev. Stat § 208.152.1(19). 96. Missouri’s Durable Medical Equipment (DME) regulation incorporates by reference the MO HealthNet Division’s DME Provider Manual and Bulletins. 13 C.S.R. 70-60.010(6).
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97. The regulation further provides that “[c]overed services are limited as specified in the DME provider manual and bulletins.” 13 C.S.R. 70-60.010(2).
98. The Missouri Medicaid Program’s Durable Medical Equipment Provider Manual indicates that incontinence briefs are covered for individuals age four through twenty years. Missouri Durable Medical Equipment Provider Manual, § 13.22.B., at http://manuals.momed.com/collections/collection_dme/Durable_Medical_Equipment_Se ction13.pdf ; Ex. 6; Answer at ¶ 38.
99. The Durable Medical Equipment Manual states that “diapers/briefs are covered for participants ages 4 through 20 when” the “items are prescribed and determined to be appropriate when there is presence of a medical condition causing bowel/bladder incontinence.” Ex. 6; Answer at ¶ 39. “Documentation of the abovenoted qualifying criteria must be maintained in the provider’s record.” Ex. 6 (emphasis in original). “The prior authorization request [for incontinence products] must include documentation of medical need from a physician, indicating a condition causing excessive fecal or urine output.” Id. (emphasis in original).
100. On March 6, 2009, Defendants issued a Provider Bulletin entitled “Physician and Durable Medical Equipment” stating the MO HealthNet Division’s policy concerning Medicaid coverage of incontinence briefs. Provider Bulletin, Vo. 31, NO. 52, March 6, 2009, at http://www.dss.mo.gov/mhd/providers/pdf/bulletin31-52_2009mar06.pdf (hereinafter “Provider Bulletin”); Ex. 5; Answer at ¶ 40.
101. The March 6, 2009 provider bulletin contains a list of procedure codes for adult diapers under the heading “durable medical equipment.” Ex. 5.
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102. The Provider Bulletin established new prior authorization criteria for obtaining approval of underpads, diapers/briefs, and protective underwear for individuals aged 4 through 20. The Provider Bulletin states that “[i]n order to be approved, participants must be between ages 4 through 20 and meet the medical criteria established by the MO HealthNet Division (MHD).” Ex. 5 and 7; Answer at ¶¶ 41 and 42.
103. The purpose of the new prior authorization criteria is “[t]o allow a consistent and streamlined process for authorization for diapers, pull-ons and underpads for participants ages 4 through 20.” Ex. 7; Answer at ¶ 42.
104. The new DME prior authorization criteria also included the following statement:
Senate Bill 577 passed by the 94th General Assembly directs MO HealthNet to utilize an electronic web based system to authorize Durable Medical Equipment using best medical evidence and care and treatment guidelines, consistent with national standards to verify medical need. Ex. 7; Answer at ¶ 42; Mo. Rev. Stat. § 208.152.1 (19). 105. Approval criteria for coverage of incontinence briefs include the requirement that there be a “medical condition causing bowel/bladder incontinence.” Ex. 7; Answer at ¶ 43. The criteria include the following question for the physician who prescribes incontinence briefs: “What is the “medically necessary quantity per month? ___ (quantities over 186 require submission of a separate pre-certification and detailed medical justification).” Ex. 7. 106. According to these DME medical prior authorization criteria, one of the “denial criteria” for these incontinence supplies is that “Patient is age 21 or over.” Ex. 7; Answer at ¶ 44.
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107. The MO HealthNet Division’s Durable Medical Equipment Billing Book describes the documentation a prescribing physician must provide to DME providers for diapers and other incontinence products for participants aged 4 through 20. Ex. 10 at 7.1.
108. Prior to issuance of the preliminary injunction in this case, individuals over age 20 were not allowed to establish “medical necessity” for incontinence briefs nor were they allowed to use the State’s prior authorization process to “verify medical need” for adult diapers. Ex. 1, 2, 3, 4, 5, 6, and 7.
109. Prior the issuance of the preliminary injunction in this case, incontinence briefs were deemed to be “personal hygiene items” for individuals over age 20, according to the policies of the MO HealthNet Division. Ex. 1, 2, 3, 4, 5, 6, and 7.
110. The Missouri Medicaid program uses an “Exceptions Process” for services that are not normally covered by the Missouri Medicaid program. 13 C.S.R. § 70-2.100.
111. The Exceptions Process is only available for items that the Missouri Medicaid program considers to be essential medical services or items that would otherwise exceed the limitations of the Missouri Medicaid program. 13 C.S.R. § 70-2.100.
112. The Exceptions Process allows for exceptions to be made on a “case by case basis to limitations and restrictions” on the receipt of benefits in the Missouri Medicaid program. Id.
113. Exceptions may be granted under this process only if one or more of the following conditions are met: (1) The item or service is required to sustain the recipient’s life; (2) The item or service would substantially improve the quality of life for a terminally ill patient; (3) The item or service is necessary as a replacement due to an act occasioned by violence of nature without human interference such as a tornado or flood;
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or (4) The item or service is necessary to prevent a higher level of care. 13 C.S.R. § 702.100.
114. Prior to the preliminary injunction in this case, Defendants did not cover incontinence briefs through Missouri’s Medicaid “Exceptions Process.” Defendants considered them to be “personal hygiene items” rather than “essential medical items” for individuals over age 20. Ex. 2.
115. On April 28, 2009, Defendant McCaslin stated in an electronic mail communication that “diapers, pre-moistened washcloths and incontinent no-rinse wash antimicrobial …. are non-covered for individuals age 21 and older.” Ex. 3; Answer at ¶ 48. McCaslin further stated that “[t]he items in question are personal hygiene items, not medical items.” Ex. 3.
116. Defendant McCaslin stated that “[w]hile the items have never been a covered service for adults over age 21, a recent policy change was implemented for the previously covered age population of 4-20 that required the items now be pre-certified through the SmartMed PA process.” Id.
117. On July 15, 2009, Defendant McCaslin stated that as follows: “As diapers are a personal hygiene item, not an essential medical item, they are not approved by the Exceptions Process, as they do not meet the criteria established in the program regulation.” Ex. 2; Answer at ¶ 49.
118. Defendant McCaslin further stated that while “the determination of medical necessity is key to the federal EPSDT legislation for participants under age 21… [m]edical necessity is not the guiding principal [sic] of the Exceptions Process state regulation.” Ex. 2; Answer at ¶ 49.
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119. Prior to the issuance of a preliminary injunction in this case, the Missouri Medicaid Program did not cover adult incontinence briefs for disabled individuals over age 20 who reside in the community. Ex.1-7.
120. The Missouri Medicaid program covers adult diapers as part of the per diem rate for individuals over age 20 who reside in nursing homes or other institutional settings. Ex. 1 and Ex. 28 at 12.
121. Incontinence briefs are a covered supply for individuals receiving long-term care services, including nursing home services, and are included in Missouri’s per diem rate for those services. 13 C.S.R. §§ 70-10.010(5) and 70-10.015(5) (L), Appendix A.
122. On February 23, 2010, Special Counsel for DSS stated: Incontinence supplies are non-covered for adults through MO HealthNet’s DME program. Diapers are considered a personal hygiene item, not an essential medical item, and have never been a covered service for adults in Missouri . . . Incontinence supplies, other than diapers, may be covered through the exception process on a case by case basis. . . . Incontinence Supplies and diapers for any age participant in an institutional nursing facility or hospital are included in the facility’s per diem rate.
Ex. 1. MO HealthNet’s Coverage of Supplies
123. The MO HealthNet Division covers certain supplies for adults in its DME program that cannot withstand repeated use, including but not limited to: ostomy supplies, oxygen supplies, cleaning solution and supplies for ventilators, Trach Care supplies, and parenteral nutrition supplies. Ex. 30, 31 and 32. The MO HealthNet Division also covers insulin and other diabetic supplies under its Pharmacy program. Ex. 32.
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124. The MO HealthNet Division covers “single-use” items in its durable medical equipment program, including ostomy skin barrier liquid and powder, lubricant, waterproof tape, skin barrier wipes and swabs, total parenteral nutrition (TPN) solutions and additives and one-day TPN supply kits. Ex. 30, 31 and 32.
125. The Missouri State Medicaid Plan, filed with CMS, indicates that “ostomy supplies, oxygen . . . Home Parenteral Nutrition and related supplies, and medically necessary items of miscellaneous durable medical equipment are covered and provided through the MO HealthNet Durable Medical Equipment Program.” Ex. 33.
126. The Missouri State Medicaid Plan also provides that “[m]edically necessary supplies which are not routinely furnished in conjunction with patient care visits and which are direct, identifiable services to an individual patient, are reimbursable to the agency.” P.I. Order at 12; Ex. 34. Examples include: Ostomy sets and supplies, irrigation sets and supplies, tapes, catheters and supplies. Ex. 34. The State Plan further states that [n]eeded items of medical equipment prescribed by a physician are available to all recipients including recipients of home health, through the Durable Medical Equipment program.” Ex. 34; PI Order at 9.
Preliminary Injunction 127. On or about January 14, 2011, the MO HealthNet Division promulgated a notice which states:
Notice Concerning Adult Incontinence Briefs Please be advised that a preliminary injunction order was issued on December 27, 2010, by a Missouri U.S. District Court in Hiltibran v. Dep’t of Social Services, Case No. 10-4185-CV-C-NKL, wherein the court enjoined the Department from refusing to provide adult incontinence briefs to those MO HealthNet participants over 21 years of age on the basis that such briefs are hygiene items. As such, if a prescriber believes that such adult incontinence briefs are medically necessary for the MO HealthNet participant, they should
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utilize the Department’s exceptions process for requesting authorization. During the preliminary injunction, these requests will be granted upon a determination of medical necessity. If you have any questions or need assistance, please contact the MO HealthNet Exceptions Unit at 1-800-3928030, option 2.
MO HealthNet Division, Department of Social Services, Notice Concerning Adult
Incontinence Briefs, undated (available at: http://dss.mo.gov/mhd/general/pdf/notice.pdf).
128. Pursuant to the Preliminary Injunction, the MO HealthNet Division has approved Plaintiffs’ requests for Medicaid coverage of adult diapers.2
STANDARD FOR SUMMARY JUDGMENT
Summary judgment on a given claim is appropriate when the moving party
establishes that there are no genuine issues of material fact and that, as a matter of law,
the moving party is entitled to judgment. See, e.g., Liebe v. Norton, 157 F.3d 574, 578
(8th Cir. 1998); Hall v. Lhaco, Inc., 140 F.3d 1190, 1193 (8th Cir. 1998). Summary
judgment is particularly appropriate when, as here, the unresolved issues are primarily
legal rather than factual. See, e.g., Uhl v. Swanstrom, 79 F.3d 751, 754 (8th Cir. 1996);
Lomar Wholesale Grocery v. Dieter’s Gourmet Foods, 824 F.2d 582, 585 (8th Cir. 1987).
ARGUMENT
I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THE MERITS OF THEIR CLAIMS THAT THE DEFENDANT HAS VIOLATED THE REASONABLE STANDARDS AND HOME HEALTH REQUIREMENTS OF THE MEDICAID ACT, AS WELL AS THE AMERICANS WITH DISABILITIES ACT AND SECTION 504 OF THE REHABILITATION ACT.
Because Missouri participates in the Medicaid program, it “must comply with all
federal statutory and regulatory requirements.” Lankford v. Sherman, 451 F.3d. 496,
510 (8th Cir. 2006); Myers v. Reagan, 776 F.2d 241, 243-44 (8th Cir. 1985). The
2 See n. 3, infra, regarding Plaintiff Steven Hiltibran.
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fundamental question is whether or not Defendants’ incontinence supplies policy on its face violates federal Medicaid law, the ADA and the Rehabilitation Act. Defendants have not contested that they issued the policies relied on by Plaintiffs nor have they contested the content of those policies. Thus, Defendants cannot show any genuine issues of disputed material facts.
This case is solely a legal dispute about whether Defendants are required to cover adult diapers and provide affected individuals a fair process to establish that they are medically necessary—disputes that this Court has preliminarily resolved in Plaintiffs’ favor. A. Defendants’ Regulation And Policy Violate The Reasonable Standards And
Home Health Requirements Of The Medicaid Act. This Court has found that Defendants’ policy with regard to adult diapers is “unreasonable” under the Medicaid Act and that Plaintiffs are likely to succeed on the merits of that claim. P.I. Order at 5-9. See also Plaintiffs’ Memorandum in Support of Motion for a Preliminary Injunction (Plfs’ Memo) at 5-12. The Eighth Circuit has already noted that a state’s “failure to provide coverage of non-experimental, medically necessary services within a covered Medicaid category is both per se unreasonable and inconsistent with the stated goals of Medicaid.” Lankford v. Sherman, 451 F.3d 496, 511 (8th Cir. 2006) (emphasis added). Moreover, as this court noted, Missouri “cannot arbitrarily choose which DME items to reimburse under its Medicaid policy.” P.I. Order at 5, citing Lankford, 451 F. 3d at 511. “Plaintiffs have established that the rules in Lankford likely apply in this instance, which prevents Missouri from ‘arbitrarily’ denying coverage of incontinence briefs in violation of the Medicaid Act’s ‘reasonable standards’ requirement.” P.I. Order at 6. Moreover, Plaintiffs are unreasonably denied the
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opportunity to establish medical necessity for incontinence briefs due to the "blanket presumption of the briefs as ‘non-medical’ or ‘personal hygiene’ items for persons over the age of twenty.” Id. at 8. These illegalities are no different when considering Plaintiffs’ motion for summary judgment as opposed to their claim for preliminary relief. Defendants’ policy violates Medicaid’s reasonable standards requirement and, therefore, Plaintiff’s motion for summary judgment should be granted.
This Court also found that Defendants’ policy regarding adult diapers violates Medicaid’s “home health requirement” by denying medically necessary incontinence supplies which are a mandatory home health service. P.I. Order at 9-10. See also Plfs’ Memo at 12-14. “Plaintiffs have demonstrated support that incontinence briefs are ‘durable medical equipment,’ . . . they have met their burden of establishing the likelihood of success on the merits as to this claim.” P.I. Order at 10. This legal issue is no different when considering summary judgment. This Court should therefore grant summary judgment on Plaintiffs’ claim that Defendants’ policy violates Medicaid’s home health requirement.
B. Defendants’ Regulation And Policy Violate The ADA and Section 504 Of The Rehabilitation Act. The same is true with regard to Plaintiffs’ claims under the Americans with
Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (Section 504”). This Court found that Defendants violated the ADA and Section 504 by failing to cover adult diapers in the community while covering these same incontinence supplies for adults who reside in nursing homes. Id. at 10-13. See also Plfs’ Memo at 14-23; Department of Justice, Statement of Interest of the United States of America in Support of Plaintiffs’ Motion for Preliminary Injunction 5-12 (“DOJ Brief”). Plaintiffs have established that
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they meet the requirements for an “integration mandate challenge” and that “under Olmstead, Defendants are required to provide incontinence briefs to non-institutionalized adults if they provide briefs to institutionalized adults.” P.I. Order at 11-13 (applying Olmstead v. L.C., 527 U.S. 581 (1999)). The legal issue on the integration mandate challenge is no different upon a motion for summary judgment. Therefore, this Court should similarly grant Plaintiffs’ Motion for Summary Judgment on the ADA and Section 504 claims.
The legal issues addressed by this Court in awarding preliminary relief are identical to the issues to be decided in considering this Motion for Summary Judgment. See Winter v. Natural Resources Defense Council, 555 U.S. 7, 11 (2008) (“analysis of the propriety of preliminary relief is applicable to any permanent injunction as well”). Either the Defendants’ adult diapers policy violates these federal requirements or it does not. This Court has already found that it does. Moreover, there are no material facts in dispute. While Plaintiffs have included herein a more detailed Statement of Undisputed Material Facts in accordance with Local Rule 56.1, the key material facts in this case are the following: (1) Prior to this Court’s preliminary injunction in this case, Defendants implemented a regulation and policy that terminated coverage of diapers to Plaintiffs and other individuals who reached the age of 21 on the basis that they were “personal hygiene” items even though a showing of medical necessity was required before the individuals reached the age of 21. (2) Prior to the preliminary injunction, Defendants covered these items for individuals residing in nursing homes but excluded this service from coverage for individuals who meet the nursing facility level of care but reside in the community. Because there is no dispute as to these material facts, this case is solely a
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legal dispute about whether Defendants are required to cover adult diapers and provide affected individuals a fair process to establish that they are medically necessary— disputes which this Court has already resolved.
II. PLAINTIFFS ARE ENTITLED TO INJUNCTIVE AND DECLARATORY RELIEF.
As demonstrated above, Plaintiffs have established that the Defendants’ policy violates federal Medicaid law as well as Section 504 and the ADA. Plaintiffs ask this Court to issue a declaratory judgment against the Defendants to that effect and to permanently enjoin them from continuing to violate the “reasonable standards” and “home health” provisions of the Medicaid Act as well as the ADA and Section 504.
Plaintiffs have already established that they suffer irreparable harm without an injunction, that the balance of the hardship tips in their favor and that an injunction is in the public interest. P.I. Order at 13-16. See also Plfs’ Memo at 23-30; DOJ Brief at 1215. Plaintiffs still meet these requirements and are therefore entitled to permanent injunctive relief. Currently, but only “[d]uring the Preliminary Injunction,” Defendants are making medically necessary incontinence briefs available through the Department’s exceptions process. See MO HealthNet Division, DSS “Notice Concerning Adult Incontinence Briefs, (undated), at: http://dss.mo.gov/mhd/general/pdf/notice.pdf. Without a permanent injunction, Defendants will resort to their prior policy and deny coverage of medically necessary adult diapers. 3
3 Plaintiff Hiltibran has been approved for the State’s new Prevention Waiver program and is currently receiving adult diapers and tracheotomy supplies under the waiver. However, the State has not issued any official policies, let alone rules, implementing the waiver, which currently serves a maximum of 399 individuals statewide in 37 Missouri counties. Further, the program has a maximum annual cap of $12,000 on services for each individual in the waiver. Missouri Department of Mental Health, Prevention
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As the Eighth Circuit has already noted, Missouri is required to adhere to federal
Medicaid requirements in the operation of its Medicaid program. Lankford, 451 F.3d at
504. Therefore, this Court should strike down the challenged policy and compel
Defendants to adopt an incontinence supplies regulation and policy that comply with
federal law. See, e.g., Kai v. Ross, 336 F.3d 650 (8th Cir. 2003) (enjoining State to
continue Medicaid benefits after finding state law terminating inconsistent with federal
Medicaid Act); Weaver v. Reagen, 886 F.2d 194 (8th Cir. 1989) (enjoining Missouri
from denying Medicaid coverage of AZT); Olson v. Norman, 830 F.2d 811 (8th Cir.
1987) (sustaining permanent injunction and summary judgment against state for unlawful
termination of Medicaid benefits); Lankford v. Sherman, No. 05-4285-CV-C-DW, 2007
U.S. Dist. LEXIS 14950, at *14 (preliminarily and permanently enjoining Missouri
Waiver, http://dmh.mo.gov/dd/progs/waiver/prevention.htm. Currently, Steven is approved for services that will reach the maximum annual limit and is thus ineligible for other services that he needs and that would otherwise be available to him under the waiver. The county agency administering the waiver has indicated that if Steven’s diapers are covered through the regular Medicaid approval process, then the cost of the diapers will not be counted towards the waiver cap and other needed services (i.e., additional personal care hours) will be substituted in their place. Thus, Steven will continue to be harmed if Defendants’ are allowed to exclude adult diapers from the regular Medicaid program because covering them under the waiver brings him up to the $12,000 cap. In addition, such waiver coverage can be withdrawn by the State at any time as there are no program rules for services and the waiver authorizes the State to reevaluate individuals and discontinue services at any time. See Prevention Waiver Application at App. B-2, at: http://www.cms.gov/MedicaidStWaivProgDemoPGI/MWDL/itemdetail.asp?filterType=d ual,%20data&filterValue=Missouri&filterByDID=2&sortByDID=2&sortOrder=ascendin g&itemID=CMS1242952&intNumPerPage=10. Therefore, Plaintiffs have requested that Defendants cover Steven’s diapers under the regular Medicaid program in accordance with the Preliminary Injunction and the interim policy implementing the court’s order and decision.
No other plaintiff has been found eligible for this waiver, which by its terms serves a limited number of individuals in only those counties that choose to participate. The Prevention Waiver does not remedy the harm resulting from the Defendants’ failure to cover medically necessary diapers in its Medicaid program.
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Medicaid agency from continuing to deny medically necessary DME); White v. Martin, No. 02-4154-CV-C-NKL, 2002 U.S. Dist. LEXIS 27281 (W.D. Mo. Oct. 3, 2002) (preliminarily enjoining Missouri to provide transitional Medicaid benefits); Nemnich v. Stangler, No. 91-4517-CV-C-5, 1992 WL 178963 (W.D. Mo. Jan. 7, 1992) (enjoining Missouri from denying Medicaid coverage of dental services); J.D. v. Sherman, No. 064153-CV-C-NKL, 2006 U.S. Dist. LEXIS 78446, at *10 (W.D. Mo. 2006) (preliminarily enjoining Missouri Medicaid agency to cover medically necessary transplant services); McNeil-Terry v. Roling, 142 S.W.3d 828, 834 (Mo. App. 2004) (preliminarily and permanently enjoining the Missouri Medicaid agency from reducing the scope of necessary dental services through rulemaking or other non-statutory means).
CONCLUSION This Court should grant Plaintiffs’ Motion for Summary Judgment and declare the Defendants’ incontinence supplies policy in violation of the Medicaid Act, the ADA and Section 504 of the Rehabilitation Act. Further, it should enter a permanent injunction enjoining Defendants from applying their illegal policy and from arbitrarily limiting the scope of medically necessary adult diapers through any other means. Finally the Court should order Defendants to establish a fair process whereby all adult Missouri Medicaid recipients can obtain medically necessary incontinence briefs.
Respectfully submitted, /s/ Joel Ferber Joel Ferber # 35165 Daniel Claggett # 26982 Legal Services of Eastern Missouri 4232 Forest Park Avenue St. Louis, Missouri 63108 (314) 534-4200 telephone (314) 534-1028 facsimile
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jdferber@lsem.org declaggett@lsem.org
/s/ John J. Ammann John J. Ammann # 34308 Saint Louis University Legal Clinic 321 N. Spring Street St. Louis, Missouri 63108 (314) 977-2778 telephone (314) 977-1180 facsimile ammannjj@slu.edu
/s/ Thomas E. Kennedy, III Thomas E. Kennedy, III # 46617 Heather B. Navarro # 60708 Law Offices of Thomas E. Kennedy, III, L.C. 230 S. Bemiston Avenue St. Louis, Missouri 63105 (314) 872-9041 telephone (314) 872-9043 facsimile tkennedy@tkennedylaw.com
/s/ Jane Perkins Jane Perkins National Health Law Program, Inc. 101 East Weaver St., Suite G-7 Carrboro, North Carolina 27510 (919) 968-6308 telephone (919)968-8855 facsimile perkins@healthlaw.org
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that on February 17, 2011, I electronically filed the foregoing with the clerk of the Court using the CM/ECF system which sent notification of such filing to the following counsel of record:
Mark E. Long
28 Case 2:10-cv-04185-NKL Document 33 Filed 02/17/11 Page 28 of 29

Assistant Attorney General Broadway State Office Building Post Office Box 899 Jefferson City, MO 65102
/s/ Joel Ferber
29 Case 2:10-cv-04185-NKL Document 33 Filed 02/17/11 Page 29 of 29

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

STEVEN HILTIBRAN, by and through his, mother and guardian, Debra Burkhart; NICHOLAS TATUM, by and through his mother and next friend, Stacy Tatum; RONALD COONTZ, by and through his mother and guardian, Patricia Coontz; and NENA HAMMOND,
Plaintiffs,
v.
RONALD J. LEVY, in his official capacity as Director of the Missouri Department of Social Services; and IAN McCASLIN, M.D., in his official capacity as Director of the MO HealthNet Division,
Defendants.

) ) ) ) ) ) ) ) ) ) ) Case no. 10-4185-CV-C-NKL ) ) ) ) ) ) ) ) )

SUGGESTIONS IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Defendants Missouri Department of Social Services’ Director Ronald Levy and

Division Director Dr. McCaslin for their Suggestions in Opposition to Plaintiffs’ Motion

for Summary Judgment (Doc. #32), state as follows:

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RESPONSE TO STATEMENT OF UNCONTROVERTED MATERIAL FACTS These Defendants, for purposes of responding to Plaintiffs’ Statement of
Uncontroverted Material Facts, state as follows: 1. to 9. Admit. 10. Admit that Plaintiff Hiltibran’s treating physicians have stated that the reason
for their prescription of incontinence briefs is to prevent skin breakdown and infections. Ex. 17 at ¶¶ 5 and 6.
11. to 19. Admit. 20. Admit that incontinence briefs are included in the per diem covered for nursing home residents. Answer at ¶ 68. 21. to 27. Admit. 28. Admit that Plaintiff Coontz’s treating physicians have stated that the reason for their prescription of incontinence briefs is to prevent skin breakdown and infections and to continue living at home with his guardian and mother. Ex. 18 at ¶¶ 10 and 11. 29. to 32. Admit. 33. Admit that incontinence briefs are included in the per diem covered for nursing home residents. Answer at ¶ 68. 34. to 43. Admit. 44. Admit that Plaintiff Tatum’s treating physicians have stated that the reason for their prescription of incontinence briefs is to prevent skin breakdowns and infections. Ex. 19 at ¶¶ 4 and 7. 45. to 48. Admit.
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49. Admit that incontinence briefs are included in the per diem covered for nursing home residents. Answer at ¶ 68.
50. to 62. Admit. 63. Admit that incontinence briefs are included in the per diem covered for nursing home residents. Answer at ¶ 68. 64. to 73. Admit. 74. to 82. Admit that the statements listed were testified to by Dr. Husky and Dr. Hurley. 83. to 92. Admit. 93. Admit that incontinence briefs are covered for individuals ages 4 through 20 through the EPSDT program and that the DME Provider Manual contains information regarding incontinence products for children under §§ 13.22.B and 19.1. Section 13.22.B contains informational guidelines and pre-cert information regarding incontinence products for children. Section 19.1 lists the various billing codes, descriptions and limitations for services covered for those 20 and under. 94. to 128. Admit.
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ARGUMENT The Missouri Department of Social Services, through Medicaid, has not generally provided adult Medicaid participants with adult incontinence briefs. Medicaid only requires the states to provide adult briefs to those between four and twenty years of age (the Early and Periodic Screening, Diagnostic, and Treatment, or EPSDT, program). Plaintiffs claim that the State of Missouri should cover adult incontinence briefs under Medicaid as “durable medical equipment,” as a “medical necessity,” or under Home Health Services. If the State does not cover adult incontinence briefs under any of these sections, then Plaintiffs claim that the failure to do so violates the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (RA). An examination of each claim reveals that the State of Missouri is in compliance with federal Medicaid law. Summary judgment should be denied. 1. Medicaid does not automatically require states to provide adult briefs. Plaintiffs claim that the Department must provide adult incontinence briefs, but the Medicaid statutes and regulations do not require any state to provide incontinence briefs to those over 20 years of age. Missouri, like every state involved in Medicaid, is permitted to select certain optional items to provide, and adult incontinence briefs are just such an optional item. 2. Adult Incontinence briefs are not Durable Medical Equipment Plaintiffs assert that the Department should cover adult incontinence briefs under its durable medical equipment (DME) policy. Because the Department has not, Plaintiffs claim that the policy is invalid because it does not meet the “reasonable standards”
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provisions required by the Medicaid Act, 42 U.S.C. § 1396(a)(17). That statute requires that a state must ensure that each provided service is covered in “sufficient . . . amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b). The state may not impose arbitrary limitations on required services “solely because of the diagnosis, type of illness, or condition.” 42 C.F.R. § 440.230(c).
Under Medicaid, participating states are required to provide certain services and benefits. But the participating states are also permitted to make certain elections and cover only certain items. DME is one area where states are permitted to customize their individual state plans to provide coverage, through choosing what items the state will cover. Indeed, states are not required to cover DME at all. See 42 U.S.C. §1396a(a)(10)(D); Lankford v. Sherman, 451 F.3d 496, 504 (8th Cir. 2006) (“DME is an optional service under the Medicaid Act”).
In Lankford v. Sherman, the Eighth Circuit considered a preliminary injunction brought to enjoin changes to Missouri’s DME program. The court recognized that, “[w]hile optional DME programs are not explicitly subject to [the reasonable standards] requirements, CMS (the agency that administers Medicaid) maintains that the reasonablestandards provisions apply to all forms of medical assistance, including a state’s provision of DME.” 451 F.3d at 506.
The Lankford court also held that “[b]ecause Missouri has elected to cover DME as an optional Medicaid service, it cannot arbitrarily choose which DME items to reimburse under its Medicaid policy.” Id. at 511. Moreover, the state is required to have a “meaningful procedure for requesting non-covered items.” Id. at 512. The Lankford
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court recognized that the state’s exceptions process for requesting non-covered DME items did not provide a real process by which plaintiffs could obtain these items. For this reason, the court held that the plaintiffs had demonstrated a likelihood of success on the merits of their preliminary injunction claims.
Like the plaintiffs in Lankford, the Plaintiffs herein contend that the exceptions process is unavailable to them because there are no circumstances under which DSS will consider adult incontinence briefs to be medically necessary. Moreover, Plaintiffs argue that Missouri must use a medical necessity standard to determine which medical supplies are covered under the DME program. Some cases have approved of these types of claims. Esteban v. Cook, 77 F. Supp. 2d 1256 (S.D. Fla. 1999) (requiring wheelchairs and holding that state may not “arbitrarily or unreasonably” deny medical equipment “entirely on the basis of age”); Bell v. Agency for Health Care Admin., 768 So. 2d 1203 (Fla. App. 2000) (exclusion of medical equipment and supplies for individuals age 21 and over was arbitrary and unreasonable). Indeed, a Rhode Island court struck down a state’s exclusion of adult incontinence briefs under the “reasonable standards” requirement. Bristol v. R.I. Dep’t of Human Serv., 1997 WL 839884, C.A. No. 95-6605 (R.I. Super. Ct. Jan. 30, 1997).
In Lankford, Missouri acknowledged that the state statute requires coverage of all medically necessary DME. “The [state] legislation is consistent with Medicaid’s reasonable standards requirement. By its terms it covers all medically necessary items of DME.” Defendants’ Response to Court’s Order of March 2, 2007, in Lankford (attached
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as Ex. 24 to plaintiffs’ complaint). The statute requires payment for “[p]rescribed medically necessary durable medical equipment.” Mo. Rev. Stat. § 208.152.1(19).
But the difference between this case, and Lankford and the other cited cases, lies in Missouri’s definition of DME and medical supplies. Missouri, like all participating Medicaid states, is permitted to define what constitutes DME and medical supplies. Missouri defines DME as “equipment that can withstand repeated use.” 13 C.S.R. 7060.010 (emphasis added). Missouri does not provide medical supplies as part of the DME program for adult participants—Missouri only provides medical equipment.1
Incontinence briefs, by their very nature, are designed as single-use items, and cannot withstand repeated use. As such, adult incontinence briefs are not covered as DME, and do not meet the definition of DME. Thus, whether adult incontinence briefs are medical supplies or are personal hygiene items does not change the outcome. Missouri has not elected under Medicaid to provide medical supplies thorough its DME program. As such, adult incontinence briefs are not covered, whether they are medical supplies or hygiene items, because they do not meet the definition of DME.
Plaintiffs note that certain supplies are covered under the DME program, including ostomy supplies, oxygen supplies, cleaning solution and supplies for ventilators, Trach
1 The Lankford plaintiffs objected that the DME program did not meet reasonable standards because the DME program provided certain equipment, but did not provide all of the parts necessary to make the equipment useable (e.g., electric wheelchairs were covered while batteries were not). But here, Plaintiffs do not assert that incontinence briefs are necessary to make equipment functional; instead, they allege that an entire additional category of items (medical supplies) should be covered as DME.
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Care supplies, and parenteral nutrition supplies. But these supplies all relate to making pieces of equipment functional. For example, cleaning solution and other supplies for ventilators are necessary components of a ventilator, which is equipment. The same is true for those with a tracheotomy or ostomy tube. The supply ensures that a piece of equipment carries out its purpose.
States are required to cover adult incontinence briefs for children ages four thorough twenty because the federal government specifically requires it. The federal program, the Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) services, requires that each state plan provide EPSDT health care and services as a mandatory category of medical assistance. It further requires that states provide all services deemed to be medically necessary to correct or ameliorate a defect, illness, or condition identified by screening. Thus, Medicaid requires that a state must provide any service that the state is permitted to cover, regardless of whether the state’s plan otherwise provides or elects to provide that service. See S.D. v. Hood, 391 F.3d 581 (5th Cir. 2004); Eckloff v. Rodgers, 443 F. Supp. 2d 1173 (D. Ariz. 2006); Smith v. Benson, No. 09-21543-CIV, 2010 WL 1404066 (S.D. Fla. Jan. 28, 2010).
Therefore, as part of its Medicaid program, Missouri and every other participating state is required by the EPSDT program to provide services and items (including medical supplies) for those under 21 years of age. However, neither the EPSDT program, nor the Medicaid statutes, specifically require that participating states provide identical services to those over twenty-one years of age. Here, all of the Plaintiffs are over twenty-one years of age, and therefore do not qualify for the EPSDT program.
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Missouri’s election not to provide medical supplies under the DME program is within the state’s discretion in providing an option service under Medicaid. Adult incontinence briefs are not medical equipment, and do not meet the definition of DME. Moreover, while Plaintiffs argue that the only test for whether an item should be provided is medical necessity, but this argument ignores the discretion under Medicaid available to states to define the covered services in optional areas of care. Missouri’s definition of DME, which includes equipment but not supplies, meets the “reasonable standards” requirement of the Medicaid Act.
3. Plaintiffs are not entitled to home health services Plaintiffs also allege that Missouri’s policy violates the requirement that the state’s Medicaid program provide “home health services” including “[m]edical supplies, equipment, and appliances suitable for use in the home.” 42 C.F.R. § 440.70(b)(3). In Missouri, all Medicaid recipients are categorically needy. The Medicaid Act provides that the categorically needy are entitled to nursing facility services for individuals 21 years of age or older. 42 U.S.C. §§ 1396(a)(10)(A); 1396(a)(4)(A). For those entitled to nursing facility services, the state must provide “home health services.” Under Medicaid, the provision of home health services is a “mandatory” service for the categorically needy. Plaintiffs argue that adult incontinence briefs are a “medical supply,” and therefore must be provided as part of the home health services program. Plaintiffs point to the fact that adult incontinence briefs are treated as a medical supply for Medicaid recipients age four through twenty in Missouri and that other states consider adult incontinence briefs to be medical supplies. Plaintiffs also allege that adult
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incontinence briefs are considered medical supplies for purposes of determining the daily rate for nursing facility care.
Generally, home health services are ordered for patients returning home from the hospital or recovering from a specific condition. The service is limited to a maximum of 100 home visits per year (13 C.S.R. 70-90.010(6)), requires a plan of care prescribed by a physician every 60 days (13 C.S.R. 70-90.010(1)(C)), and is not intended to be a substitute for institutional care. In particular, home health services provides “non-routine supplies identified as specific and necessary to the delivery of a participant’s nursing care and prescribed in the plan of care.” 13 C.S.R. 70-90.010(4).
What Plaintiffs do not, and cannot, allege is that they qualify for home health services under Missouri’s plan. Although home health services are a “mandatory” service, individual states may impose controls on utilization (i.e., the state may limit the amount, scope, and duration). In other words, the state may limit the number of times a service may be provided and the period over which it can be provided.2 In Missouri,
2 Under this provision, a participant “entitled” to nursing facility care is not the same as “eligible” for nursing facility care. In other words, to qualify for home health services, it is not required that a participant meet the level-of-care criteria for nursing facility care. Under Missouri’s plan, all plan participants have access to home health services if they have an appropriate injury or illness for which a physician prescribes home health services, regardless of whether the participant would otherwise qualify for institutional care. Thus, plaintiffs’ allegations that they meet the level-of-care criteria for nursing facility care are not determinative of whether those plaintiffs meet the requirements for home health services under Missouri’s plan.
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home health services are used to provide services for temporary recovery from specific, episodic health incidents.
Plaintiffs have ongoing conditions requiring continuing care, but these are not automatically the type of episodic health conditions for which home health services would be appropriate under Missouri’s plan.3 Plaintiffs allege that they expect to continue to require adult incontinence briefs for the indefinite future, perhaps for their entire lives. Services of this type are not covered by Missouri’s home health services plan. The Court need not address the question of whether home health services would ever cover adult incontinence briefs because the issues herein do not require this Court to determine whether these plaintiffs qualify for home health services.
4. Plaintiffs have failed to state a violation of the ADA or RA Plaintiffs’ final argument is that Missouri’s policy violates Title II of the ADA and Section 504 of the Rehabilitation Act. Plaintiffs claim is that Missouri’s policy has the effect of forcing disabled plaintiffs into institutional care settings and that such segregation of incontinent disabled persons into institutions is a violation of the goals of the ADA and Section 504. The “integration mandate” of the ADA and Section 504 requires states to ensure that services are administered to people with disabilities in the most integrated setting
3 Plaintiffs note that the Missouri plan has been found not to be in compliance with federal law because of the inclusion of a “homebound” requirement. The removal of this requirement for home health services does not change the fundamental fact that the state is permitted to establish utilization controls on the service. None of these plaintiffs has alleged that they applied for incontinence briefs through home health services and were denied coverage.
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appropriate to their needs. In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court analyzed these provisions and held that “unjustified isolation” is “properly regarded as discrimination based on disability.” 527 U.S. at 597. The Supreme Court interpreted the integration mandate to require that persons with disabilities be served in the community rather than in institutions when community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the state cannot demonstrate a fundamental alteration of its programs and services. Id. at 587, 591-92, 602-03.
Here, Plaintiffs allege that by covering adult incontinence briefs for individuals in institutions, but refusing to provide such coverage for individuals in home care settings, Missouri is violating the integration mandate. As noted previously, Missouri’s longstanding Medicaid program, approved by the federal Centers for Medicare and Medicaid Services (CMS), has not covered adult incontinence briefs for those over twenty-one (and outside of the EPSDT program).
Plaintiffs claim that the only way they can receive the services they need is to move to a nursing home or other such institution. (But this ignores the fact that Missouri has waiver programs designed to help prevent institutionalization. Through these waivers, Missouri does provide adult incontinence briefs as special medical supplies.4
4 Adult incontinence briefs are available as special medical supplies under the Community Support Waiver and the Comprehensive Waiver through the Department of Mental Health, through the Physical Disabilities Waiver, the Prevention Waiver, the Independent Living Waiver, and through the AIDS Waiver programs. Indeed, Plaintiff
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Medicaid permits states to elect to provide certain items through waiver programs, such as special medical supplies, including adult incontinence briefs. Home and Community based waivers are provided for at §1916(c) of the Social Security Act. Plaintiffs do not allege whether they have applied for available waiver programs. Nonetheless, to the extent that one of these plaintiffs actually faces institutionalization because of inability to obtain adult incontinence briefs, it is likely that the plaintiff would qualify for a waiver program that would provide such coverage.
Finally, it should not be overlooked that Missouri’s program is based on a State Plan, and that the Plan has to be reviewed and approved by the CMS, the federal agency that reviews such requests for compliance with federal laws governing the program. Here, CMS approved Missouri’s State Plan. This suit is, in effect, a collateral attack on CMS’s approval of the State Plan. A direct challenge to CMS’s determination on a rule (brought, ironically, by this very Department) was rejected by the Eighth Circuit. Mo. Dept. of Social Services v. Sullivan, 957 F.2d 542 (8th Cir. 1992). The federal courts recognized that CMS’s approval of a State Plan amendment is entitled to deference. Pharm. Research and Mfrs. of Am. v. Thompson, 362 F.3d 817, 821-22 (D.C. Cir. 2004).
CONCLUSION This Court should deny Plaintiffs summary judgment. Plaintiffs have failed to demonstrate that they are entitled to summary judgment.
Hiltibran had his incontinence briefs covered through the Prevention Waiver even before the preliminary injunction was issued in this case.
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Respectfully submitted, CHRIS KOSTER Attorney General /s/ Mark E. Long MARK E. LONG Assistant Attorney General Missouri Bar Number 45952 Mark.Long@ago.mo.gov Broadway State Office Building Post Office Box 899 Jefferson City, MO 65102 (573) 751-3321 (Telephone) (573) 751-9456 (Facsimile) ATTORNEYS FOR DEFENDANTS RONALD J. LEVY and IAN McCASLIN, M.D.
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CERTIFICATE OF SERVICE
I hereby certify on this 24th day of March, 2011, the foregoing was filed
electronically with the Clerk of the Court, and was served by operation of ECF system on
the following:
Martha Jane Perkins 101 E. Weaver St. Carrboro, NC 27510
Daniel E. Claggett Legal Services of Eastern Missouri, Inc. 4232 Forest Park Ave. St. Louis, MO 63108
John J. Ammann St. Louis University Legal Clinic St. Louis University School of Law 321 North Spring Avenue St. Louis, MO 63108
Thomas E. Kennedy , III Law Offices of Thomas E. Kennedy, III 230 S. Bemiston Ave Suite 800 St. Louis, MO 63105
Joel Ferber Legal Services of Eastern Missouri, Inc. 4232 Forest Park Blvd. St. Louis, MO 63108
/s/ Mark E. Long Mark E. Long Assistant Attorney General
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Case 2:10-cv-04185-NKL Document 37 Filed 03/24/11 Page 15 of 15

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MISSOURI CENTRAL DIVISION

STEVEN HILTIBRAN, et al., Plaintiffs,
v. RONALD J. LEVY, et al.,
Defendants.

) ) ) ) ) Case No. 10-4185-CV-C-NKL ) ) ) )

ORDER Plaintiff Nena Hammond and, by and through their guardians or next friend, Plaintiffs Steven Hiltibran, Nicholas Tatum, and Ronald Coontz, seek declaratory and injunctive relief against Defendants Ronald J. Levy, in his official capacity as Director of the Missouri Department of Social Services, and Ian McCaslin, in his official capacity as Director of the MO HealthNet Division, to enjoin them from denying Medicaid coverage of Plaintiffs’ incontinence supplies. Pending before the Court is Plaintiffs’ Motion for Summary Judgment. [Doc. # 32]. Oral arguments were presented to the Court on May 24, 2011. [Doc. # 41]. For the following reasons, the Court GRANTS the motion. I. Factual and Procedural Background As a preliminary matter, the Court notes that Defendants admit to the entirety of Plaintiffs’ statement of uncontroverted material facts, and offer no additional facts for the
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Court’s consideration. [Doc. # 37, at 2-3].
The Court previously granted Plaintiffs' Motion for Preliminary Injunction [Doc. #
28]) enjoining Defendants from denying Medicaid coverage for Plaintiffs’ adult
incontinence supplies. On or about January 14, 2011, in response to the Preliminary
Injunction Order, MO HealthNet, which is Missouri’s Medicaid program, promulgated
the following:
Notice Concerning Adult Incontinence Briefs
Please be advised that a preliminary injunction order was issued on December 27, 2010, by a Missouri U.S. District Court in Hiltibran v. Dep’t of Social Services, Case No. 10-4185-CV-C-NKL, wherein the court enjoined the Department from refusing to provide adult incontinence briefs to those MO HealthNet participants over 21 years of age on the basis that such briefs are hygiene items. As such, if a prescriber believes that such adult incontinence briefs are medically necessary for the MO HealthNet participant, they should utilize the Department’s exceptions process for requesting authorization. During the preliminary injunction, these requests will be granted upon a determination of medical necessity. If you have any questions or need assistance, please contact the MO HealthNet Exceptions Unit at 1-800-392- 8030, option 2.
MO HealthNet Division, Department of Social Services, Notice Concerning Adult
Incontinence Briefs, available at http://dss.mo.gov/mhd/general/pdf/notice.pdf. At issue
before the Court is whether Plaintiffs are entitled to a permanent injunction as a matter of
law.
Missouri’s Medicaid program, known as MO HealthNet, provides health services
only to the “categorically needy,” which includes Plaintiffs. 42 U.S.C. §
1396a(a)(10)(A); Mo. Rev. Stat. § 208.151. Missouri has designated the Missouri
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Department of Social Services (“DSS”) as the single state agency responsible for administering MO HealthNet.
Defendant Ronald J. Levy is the Director of DSS and, as such, is responsible for the general administration and implementation of laws concerning the social welfare of the people of the State of Missouri, including the Medicaid program. Mr. Levy is the chief administrative officer of DSS and is responsible for administration of the single state agency for the Missouri Medicaid program. Mr. Levy is charged with the ultimate control and administration of DSS, including the duty to administer the Missouri Medicaid program in compliance with the Medicaid Act, the Americans with Disability Act (“ADA”), and section 504 of the Rehabilitation Act. Defendant Ian McCaslin, M.D., is the Director of MO HealthNet, a division of DSS, and, as such, is responsible for the administration of the Missouri Medicaid program, with the exception of determination of eligibility for the program. Mr. McCaslin holds ultimate administrative power within the MO HealthNet Division subject to the supervision of Mr. Levy.
Plaintiffs range in age between 22 and 49, and are all disabled, low-income Missouri residents who are incontinent of both bladder and bowel due to their disabilities. Plaintiffs’ physicians have determined that incontinence briefs are medically necessary for Plaintiffs to prevent skin deterioration and infections and to maintain Plaintiffs’ ability to live in the community. Physicians from the Washington University School of Medicine and the St. Louis University School of Medicine have opined that failure to use
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disposable diapers, or not changing disposable diapers often enough, can lead to sepsis (sometimes leading to septic shock and death), yeast infections, staph infections, a higher risk for developing skin cancer, and a higher susceptibility to genital warts and human papillomavirus. Prior to reaching age twenty-one, three of the plaintiffs–Mr. Hilitbran, Mr. Coontz, and Mr. Tatum–already had a medical need for adult diapers. These plaintiffs’ medical conditions did not change or improve after turning twenty-one. Missouri provides coverage of incontinence briefs to participants between ages four and twenty. Mo. Code Regs. Ann. tit. 13, § 70-60.010; [Docs. # 5-6, DSS, Provider Bulletin, Vol. 31, No. 52, March 6, 2009 (incontinence briefs listed under “Physician and Durable Medical Equipment”); # 5-7, Missouri Durable Medical Equipment Provider Manual, § 13.22.B (incontinence briefs are “covered for participants age 4 through 20" when there is a medical condition causing incontinence and the briefs are prescribed)]. The per diem provided by the Missouri Medicaid program to those age twenty-one and over who reside in institutional settings, such as nursing homes, can be used to cover incontinence briefs. Mo. Code Regs. Ann. tit. 13, § 70-10.005, Appx. (listing “incontinency pads and pants” under “routine covered medical supplies and services”); § 70-10.010, Appx. A (listing “incontinency care” (including pads, diapers and pants) under “covered supplies & services”).
For services that are not normally covered by the Missouri Medicaid program, the program uses an “Exceptions Process.” The Exceptions Process is only available for
4

items that the Missouri Medicaid program considers to be essential medical services or items that would otherwise exceed the limitations of the Missouri Medicaid program. § 70-2.100. The Exceptions Process allows for exceptions to be made on a “case by case basis to limitations and restrictions” on the receipt of benefits in the Missouri Medicaid program. Id. Exceptions may be granted under this process only if one or more of the following conditions are met: (1) The item or service is required to sustain the recipient’s life; (2) The item or service would substantially improve the quality of life for a terminally ill patient; (3) The item or service is necessary as a replacement due to an act occasioned by violence of nature without human interference such as a tornado or flood; or (4) The item or service is necessary to prevent a higher level of care. § 70-2.100.
When Mr. Hiltibran, Mr. Coontz, and Mr. Tatum turned twenty-one, DSS refused their claims for coverage of their incontinence supplies on grounds that their incontinence briefs are personal hygiene items. This decision was made despite documentation submitted to MO HealthNet by their physicians that they had a continuing medical need for adult diapers. As a result of these policies, these plaintiffs lost Medicaid coverage of their incontinence supplies upon turning twenty-one because they did not live in nursing homes and were denied coverage through the state’s Exceptions Process. Ms. Hammond, residing in the community and being over twenty-one years old when she became incontinent due to her disabilities, has never received Medicaid coverage for her incontinence supplies.
5

One plaintiff, Steven Hiltibran, has qualified for the new Prevention Waiver for individuals with severe developmental disabilities, and receives coverage for his incontinence supplies through this program, which serves a maximum of 399 individuals statewide. Mr. Hiltibran’s continued receipt of waiver benefits is not guaranteed. Mr. Hiltibran has requested that his incontinence supplies also be covered under MO HealthNet’s interim policy. The remaining three plaintiffs were unable to obtain placement in a waiver program despite seeking help from various State agencies and case managers. These plaintiffs now receive coverage pursuant to MO HealthNet’s interim policy implementing the Court’s Preliminary Injunction Order.
When they did not receive Medicaid coverage for incontinence supplies, Plaintiffs and their families struggled to pay for these supplies, and have endured financial hardship and emotional stress due to the cost of adult diapers. Ms. Hammond, for example, rewears used diapers and foregoes other basic necessities in order to pay for them. She has already suffered from multiple skin infections. The monthly cost of incontinence briefs for Plaintiffs ranges from 2% to 43% of their monthly income.
The typical cost of caring for a single person in a nursing home is over $40,000 a year, or over $3,333 monthly. None of Plaintiffs’ treating professionals recommend institutionalizing them in nursing homes.
Plaintiffs filed this lawsuit for declaratory and injunctive relief to enjoin Defendants from denying Medicaid coverage of their medically necessary incontinence
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supplies and thereby violating federal Medicaid and disability discrimination mandates. Plaintiffs also seek a fair process by which they can establish the medical necessity of adult diapers. Plaintiffs contend that Defendants violate the Medicaid Act because their standards for determining whether a participant’s incontinence briefs are covered are unreasonable, 42 U.S.C. § 1396a(a)(17), and because they deny “home health services,” to Plaintiffs which includes incontinence briefs. 42 U.S.C. §§ 1396a(a)(10)(A); 1396d(a)(4)(A). Plaintiffs also assert that Defendants violate the integration mandate of the ADA, 42 U.S.C. §§ 12131-12165, and section 504 of the Rehabilitation Act, 29 U.S.C. §§ 701, et seq., by requiring Plaintiffs to be institutionalized before MO HealthNet covers the cost of their briefs. II. Discussion
A. Summary Judgment Standard Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party “bears the initial responsibility of informing the district court of the basis for its motion” and must identify “those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the non-moving party to respond by submitting evidentiary materials that designate “specific
7

facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is appropriate, a district court must look at the record and any inferences to be drawn from it in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248.
B. Permanent Injunctive Relief The standard for determining whether a permanent injunction should issue is essentially the same as the standard for issuing a preliminary injunction. Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999) (citing Amoco Prods. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987)). To determine whether preliminary injunctive relief is warranted, the Court considers: 1) the likelihood of success on the merits, 2) the threat of irreparable harm to the movant absent injunctive relief; 3) the balance between this harm and the harm to the nonmoving party should the injunction issue; and 4) the public interest. Fogie v. THORN Ams., Inc., 95 F.3d 645, 654 (8th Cir. 1996) (citing Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981)). “The standard is the same for a permanent injunction except that the movant must show actual success on the merits.” Amoco Prods. Co., 480 U.S. at 546 n.12. Here, the parties contest only one factor–actual success on the merits. As such, and as the Court does not find any evidence to counsel otherwise, the Court adopts its prior
8

finding in the Preliminary Injunction Order that Plaintiffs have established that they will suffer irreparable harm without an injunction, that the balance of the hardship tips in their favor, and that an injunction is in the public interest. Thus, the Court’s discussion here focuses on whether Defendants’ policy violates the “reasonable standards” requirement of the Medicaid Act, and the integration mandate of the ADA and section 504 of the Rehabilitation Act. The Court stresses that Plaintiffs do not contend that Missouri’s State Plan, as written, contains provisions that violate federal law. Rather, it is Defendants’ policy of deeming incontinence briefs to be “personal hygiene” items when they are used by individuals over the age of twenty–which the State Plan does not address–that Plaintiffs wish to enjoin.
The Court notes that it previously found that Plaintiffs were likely to succeed on the merits of their claims. For the following reasons, the Court now finds that Plaintiffs have demonstrated actual success on the merits.
1. Plaintiffs’ “Reasonable Standards” Claim In choosing to participate in the Medicaid program and receive federal matching funds, Missouri is bound to comply with federal legislation and regulation. See Blum v. Bacon, 457 U.S. 132, 145-46 (1982); Lankford v. Sherman, 451 F.3d 496, 510 (8th Cir. 2006) (citing Meyers v. Reagan, 776 F.2d 241, 243-44 (8th Cir.1985). Although federal law does not require Missouri to provide coverage of durable medical equipment (“DME”) to its Medicaid recipients, it has chosen to do so. Mo. Rev. Stat. §
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208.152.1(19) (requiring payment for “[p]rescribed medically necessary durable medical equipment [DME]”). In Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006) the Eighth Circuit Court of Appeals found that “[b]ecause Missouri has elected to cover DME as an optional Medicaid service, it cannot arbitrarily choose which DME items to reimburse under its Medicaid policy.” Lankford, 451 F.3d at 511. The court further held that Missouri is required to have a “meaningful procedure for requesting non-covered items.” Id. at 512. Thus, if adult diapers are DME, Defendants must follow the rules in Lankford. Otherwise, they will be in violation of the Medicaid Act’s “reasonable standards” requirement. See 42 U.S.C. § 1396a(a)(17) (requiring state Medicaid plans to “include reasonable standards”); 42 C.F.R. § 440.230(c) (“The Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under sections 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition.”).
Although Missouri’s definition of DME is “equipment that can withstand repeated use,” Mo. Code Regs. Ann. tit. 13, § 70-60.010, provider bulletins and provider manuals issued by DSS and MO HealthNet indicate that adult diapers are DME. A March 2009 provider bulletin titled “Physician and Durable Medical Equipment” [Docs. ## 5-6, 5-7] discusses pre-certification procedures and codes for various incontinence supplies, including “adult sized disposable incontinence product.” [Doc. # 5-6, at 1]. Page 31 of MO HealthNet’s “Durable Medical Equipment Manual” outlines criteria for coverage for
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“underpads, diapers, briefs and protective underwear/pull-ons.” [Doc. # 5-7, at 1]. A document entitled “MO HealthNet PA Criteria” outlines new criteria for the approval of coverage for diapers, pull-ons, and underpads pursuant to Senate Bill 577, which “directs MO HealthNet to utilize an electronic web-based system to authorize Durable Medical Equipment.” [Doc. # 5-8, at 1].
All of these documents specifically state that coverage of incontinence diapers are only for participants between ages 4 through 20 and Defendants therefore argue that Missouri provides Medicaid coverage of incontinence diapers only for participants ages 4 through 20 because federal law requires it to do so under the EPSDT (Early Periodic Screening, Diagnosis, and Treatment) Program. Even so, the EPSDT Program does not require Defendants to characterize or label incontinence diapers as DME. That they have voluntarily done so clearly communicates to the Court that Defendants have already determined that adult diapers are DME. Because Missouri’s regulations incorporates by reference all of its policies issued in its provider bulletins and manuals, the Court cannot ignore Defendants’ own representations that adult diapers are DME. See Mo. Code Regs. Ann. tit. 13, § 70-60.010(1) (“The services and items covered and not covered, the program limitations, and the maximum allowable fees for all covered services shall be determined by the Department of Social Services, MO HealthNet Division and shall be included in the DME provider manual and bulletins, which are incorporated by reference and made a part of this rule . . . .”).
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The Missouri Medicaid program must cover “[p]rescribed medically necessary durable medical equipment.” Mo. Rev. Stat. § 208.152.1(19). Because adult diapers are DME, Defendants must likewise cover all medically necessary adult diapers. Here, prior to issuance of the Preliminary Injunction Order, individuals over age 20 were not allowed to establish medical necessity for incontinence briefs, nor were they allowed to use the State’s prior authorization process to verify a medical need for adult diapers. Indeed, despite receiving documentation that Plaintiffs have a continuing medical need for adult diapers, Defendants rejected Plaintiffs’ request for coverage based on the reasoning that for adults, “disposable diapers are a personal hygiene item, not a medical item.” [See, e.g., Doc. # 5-2].
As the Eighth Circuit Court of Appeals specifically reiterated in Lankford, “[w]hile a state has discretion to determine the optional services in its Medicaid plan, 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.” Lankford, 451 F.3d at 511. Here, adult diapers are nonexperimental, medically necessary, and are DME. Thus, the Court finds that if Defendants do not cover medically necessary adult diapers for Medicaid participants over the age of twenty, they are in violation of Medicaid’s “reasonable standards” requirement.
2. Plaintiffs’ Claim Based on the Mandatory Home Health Services Requirement of the Medicaid Act
All Medicaid recipients in Missouri are entitled to “home health services” 12

including “[m]edical supplies [and] equipment,” subject to, at a minimum, an annual review by a physician of participants’ needs for such services. 42 U.S.C. §§ 1396a(a)(10)(A); 1396a(a)(10)(D); Mo. Rev. Stat. § 208.152.1(4); 42 C.F.R. §§ 440.70(b)(3), 440.210, 441.15. The parties do not dispute that adult diapers are either supplies or equipment. As such, under the home health services requirement, adult incontinence diapers–whether deemed DME under Missouri regulation–are covered by Medicaid if they are medically necessary. Defendants’ blanket policy of deeming adult diapers as “personal hygiene” products for all Medicaid participants over age 20 is in discord with the mandatory federal home health services requirement.
The Court notes that Missouri has been advised by the federal Centers for Medicare & Medicaid Services (“CMS”) to revise its current state plan so that it can be in accord with federal requirements not at issue in this litigation. [Doc. # 22-10]. Therefore, if Plaintiffs qualify for home health services in light of these required amendments, Defendants are in violation of the Medicaid Act’s mandatory home health services requirement if they do not cover Plaintiffs’ medically necessary incontinence diapers.
3. Plaintiffs’ ADA and Rehabilitation Act Claims Due to the “non-medical” status that Defendants’ policies have assigned to incontinence briefs to persons over age twenty, Plaintiffs, who live in the community, are not entitled to receive Medicaid coverage of their medically necessary adult diapers
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absent the Court’s Preliminary Injunction Order. However, the per diem provided by the Missouri Medicaid program to those age twenty-one and over who reside in institutional settings, such as nursing homes, can be used to cover incontinence briefs. Mo. Code Regs. Ann. tit. 13, § 70-10.005, Appx.; 70-10.010, Appx. A. Thus, according to Plaintiffs, in order to obtain Medicaid coverage of their incontinence supplies, Plaintiffs must submit themselves to an institution.
Based on this premise, Plaintiffs raised an “integration mandate” challenge under both the ADA and section 504 of the Rehabilitation Act. The ADA, 42 U.S.C. §§ 1213112134, prohibits public entities from discriminating against individuals with disabilities by, for example, violating the “integration mandate”: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act applies the same standards to entities that receive federal financial assistance: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). “The rights, procedures, and enforcement remedies under Title II are the same as under section 504.” Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998) (citing Pottgen v. Mo. State High Sch. Activities Ass'n, 40 F.3d 926, 930 (8th
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Cir.1994)). As the Supreme Court held in Olmstead v. L.C., 527 U.S. 581 (1999), public entities are required to provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. Id. at 607. Persons at risk of institutionalization may make an integration mandate challenge without having first been placed in institutions. Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1185 (10th Cir. 2003).
Defendants do not dispute that Plaintiffs meet the criteria outlined in Olmstead. Rather, Defendants’ only argument against the merits of Plaintiffs’ claim is that Missouri’s waiver programs are sufficient to prevent forced institutionalization. Plaintiffs, as Medicaid recipients, are “categorically needy.” Prior to the Court’s Preliminary Injunction Order, Plaintiffs who did not receive support through a waiver program, struggled to pay for their incontinence supplies through a combination of donations from charities and family members. One of the plaintiffs, Ms. Hammond, rewears used diapers. It is undisputed that if Plaintiffs are ineligible for a waiver program, they must be institutionalized in order to obtain Medicaid coverage of their medically necessary incontinence briefs.
The Court notes that only one of the four Plaintiffs currently receives coverage under a waiver program, despite persistent requests to state agencies and their Medicaid
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case managers by the non-receiving Plaintiffs. Indeed, Defendants have failed to rebut Plaintiffs’ evidence, and fails to show the Court that (1) each Plaintiff is eligible for a waiver program, and (2) there are available slots in the waiver programs for each Plaintiff. Additionally, continued coverage offered under waiver programs are not guaranteed, and there are caps on enrollment. Due to these reasons, Defendants have failed to show that waiver programs are a viable alternative to institutionalization. See Lankford, 451 F.3d at 513 (concluding that plaintiffs had no available procedure to obtain Medicaid coverage when the purportedly available state process did “not appear to provide a reasonable opportunity to obtain [coverage]”).
The Court finds that pursuant to Olmstead, Defendants are required to provide Medicaid coverage of incontinence briefs to non-institutionalized adults if they provide such coverage to institutionalized adults. III. Conclusion
For the foregoing reasons, the Court finds that Plaintiffs have established the requirements necessary for a declaratory and permanent injunctive relief. Accordingly, it is hereby
ORDERED that Plaintiffs’ Motion for Summary Judgment [Doc. # 32] is GRANTED. The Court declares that, notwithstanding Defendants’ January 14, 2011 “Notice Concerning Adult Incontinence Briefs,” Defendants current policies deeming adult incontinence briefs “personal hygiene items” for participants over age twenty
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violates the Medicaid Act’s “reasonable standards” requirement and“home health services” requirement, and violates the integration mandate of the ADA and section 504 of the Rehabilitation Act. The Court permanently enjoins Defendants from applying their unlawful policies, and orders Defendants to establish a fair process, in accord with this Order and federal law, whereby all adult Missouri Medicaid recipients can obtain medically necessary incontinence briefs.

Dated: June 24, 2011 Jefferson City, Missouri

s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge

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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISON

STEVEN HILTIBRAN, et. al. Plaintiffs,
v. RONALD J. LEVY, et al.
Defendants.

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Case No. 10-4185-CV-C-NKL

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PLAINTIFFS’ REPLY SUGGESTIONS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
For the most part, Defendants respond to Plaintiffs’ Motion for Summary Judgment by repeating the same arguments this Court has already rejected in granting Plaintiffs’ Motion for Preliminary Injunction. The Court should again dismiss these arguments and grant Plaintiffs’ Motion for Summary Judgment.
First, Defendants do not dispute any of the material facts presented in Plaintiffs’ Statement of Uncontroverted Facts, including the fact that Defendants consider incontinence supplies for noninstitutionalized adults to be “personal hygiene” items, and deny Medicaid coverage on this basis. See Defendants’ Suggestions in Opposition to Plaintiffs Motion for Summary Judgment (Doc. # 37) (“Defs’ Opp.”) at 2-3; Plaintiffs’ Suggestions in Support of Motion for Summary Judgment (Doc. # 33) (“Plfs’ Sugg.”) at 24. Defendants also admit all of the key material facts that establish the clear irreparable harm to Plaintiffs from the Missouri Medicaid (MO HealthNet) program’s refusal to cover their medically necessary incontinence supplies. Defs’ Opp. at 2-3. Therefore, it is appropriate for the Court to enter summary judgment in Plaintiffs’ favor.

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Defendants make the same post-hoc argument this Court appropriately rejected in granting Plaintiffs’ Motion for a Preliminary Injunction—that they can exclude any item of DME by relabeling it a “supply” once a person turns 21. Defs’ Opp. at 7. This Court found that “Plaintiffs have demonstrated substantial support that incontinence briefs are ‘durable medical equipment,’ including references in provider bulletins issued by the Missouri Department of Social Services and the Durable Medical Equipment Manual issued by MO HealthNet.” Order Granting Preliminary Injunction (Doc. # 28) (“P.I. Order”) at 6 (citations omitted). Defendants offer no reason for the Court to change its finding. Missouri has chosen to label, define, and treat incontinence supplies as “durable medical equipment” for all individuals under 21; it may not unreasonably re-label, redefine, and change its treatment of incontinence supplies solely because of a patient’s age and community-based living status.
Further, this categorization is irrelevant to the illegality of the policy. As Plaintiffs already established, the “reasonable standards” provision covers supplies, as well as equipment. Plaintiffs’ Reply Memorandum in Support of Motion for Preliminary Injunction (Doc. # 22) (“Plfs’ P.I. Reply”) at 4-6 (and citations therein); Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006) (noting that ostomy supplies, diabetic supplies, and oxygen were covered under Missouri’s DME regulation). 451 F.3d at 501. In Lankford, the Eighth Circuit struck as per se unreasonable a regulation that “completely exclude[d] items like augmentative communication devices, catheters, and parenteral nutrition supplies” for adults. Id. at 513 (emphasis added).1 The complete exclusion of
1 As noted previously, the federal regulation upon which the DME service category is based requires coverage of “[m]edical supplies, equipment, and appliances.” See Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunction (Doc. # 7) at
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incontinence supplies for noninstitutionalized individuals aged 21 and over is similarly unreasonable here.
Moreover, Defendants again try to re-litigate Lankford by arguing that they “have discretion” to “define the covered services in optional areas of care;” are “permitted to define what constitutes DME and medical supplies;” and can “customize” their state plan “through choosing what items the state will cover.” Defs’ Opp. at 5, 7, 9. However, Defendants cannot arbitrarily pick and choose which medically necessary equipment and supplies they would like to cover. While Medicaid offers a great deal of flexibility and discretion to the State, such discretion ends once the State decides to cover an optional service but then denies non-experimental, medically necessary coverage of the service. See Weaver v. Reagen, 886 F.2d 194, 197 (8th Cir. 1989).
In Lankford, these Defendants argued, as they do here, that they had the right to choose which specific items to provide within an “optional” Medicaid service category. The Eighth Circuit, however, rejected this argument, finding that the “state’s failure to provide Medicaid coverage for medically-necessary services within a covered Medicaid category is both per se unreasonable and inconsistent with the stated goals of Medicaid.” 451 F.3d at 511 (emphasis added). Thus, Defendants do not have discretion to “define” their DME coverage in a way that excludes medically necessary items such as adult diapers. They can no more exclude adult diapers than they can exclude the
8,13-14; Plfs’ P.I. Reply at 5 (and citations therein). And the CMS policy relied on by the Eighth Circuit and the United States Supreme Court specifically references “medical supplies, equipment, and appliances suitable for use in the home” as being the basis for its guidance on coverage of DME. See Plfs’ P.I. Reply at 5, n. 6; Ex. 12 (Doc. # 5-13) (emphasis added); Slekis v. Thomas, 525 U.S. 1098, 1099 (1999); Lankford, 451 F.3d at 507, 511-13. It is no wonder that Defendants’ state Medicaid Plan clearly indicates that they cover medically necessary supplies and gives examples some of the supplies that they cover. Ex. 33, 34 (Docs. # 22-6, # 22-7).
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catheters, diabetic supplies, wheel chair batteries and other items at issue in Lankford.
Defendants’ argument that they need not cover incontinence briefs because they are
“supplies” is nothing more than the post-hoc rationalizations of counsel and must be
rejected by this Court. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13
(1988); Plfs’ P.I. Reply at 4 (and the cases cited therein).2 Their policy is unreasonable
and violates the Medicaid Act.
Defendants also repeat the same erroneous arguments concerning home health
benefits. Defs’ Opp. at 9-11. This Court correctly found that Defendants’ policy
regarding adult diapers violates Medicaid’s “home health requirement” by denying
medically necessary incontinence supplies which are a mandatory home health service
for all Missouri Medicaid recipients. P.I. Order at 9-10. See also Plfs’ P.I. Reply at 7-10
2 The Court previously rejected Defendants’ arguments that incontinence supplies can be excluded because they are “single-use” or “personal hygiene” items. P.I. Order at 6, 8. Adjusting their tack, Defendants now argue that they only cover supplies necessary to make medical equipment functional; a new test unsupported in law or policy. Defs’ Opp. at 7-8. This is another argument fashioned for purposes of litigation, and one which is not supported by any contemporaneous policy rationale. Defendants point to Lankford where one of the eliminated items of DME was “wheelchair batteries” needed to power the wheel chairs that were still covered by the State. Defs’ Opp. at 7, n. 1. However, the policies struck down in Lankford involved a wide range of medical equipment and supplies, and the Court’s rationale was clearly not limited to only those DME items that were necessary to the operation of other DME. The proper standard is whether the items of DME (whether equipment, supplies, or appliances) are non-experimental and medically necessary, not whether they are needed to make other DME functional. Defendants have no authority to exclude medically necessary equipment or supplies based on arbitrary tests that they invent during the course of litigation.
Defendants’ ever-shifting litigation position is also reflected in their latest brief. While Defendants’ original policy “rationale” for excluding adult coverage of incontinence briefs is that they are “personal hygiene” items, they argued at the preliminary injunction stage that they do not cover them because they are supplies. They now argue simultaneously that they have “not elected to provide medical supplies,” that they do cover supplies but are “permitted to define what constitutes DME and medical supplies,” and that they cover supplies but only to the extent necessary to make equipment functional. Defs' Opp. at 7-8 (emphasis added). These inconsistent positions are entitled to no weight and should be rejected by this Court.
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(and the cases cited therein). Defendants again attempt to refute Plaintiffs’ home health
claim by seeking to impose additional conditions on the receipt of home health services,
including incontinence supplies. Defs’ Opp. at 9-11. For the reasons expressed
previously, this Court should once again reject Defendants’ claim that Plaintiffs must
meet these new conditions (adopted by counsel in the course of litigation) in order to be
eligible for incontinence supplies. Plfs’ P.I. Reply at 7-10. Plaintiffs are entitled to
“home health” services under federal law; therefore, they are also entitled to receive
medically necessary incontinence supplies.3 Defendants are violating federal law by
denying Plaintiffs mandatory home health services.
Defendants also offer nothing new in response to Plaintiffs’ Olmstead claims.
Plaintiffs have already established that they meet the elements of a “community
integration” claim, and this Court has appropriately found that Defendants violate the
ADA and Section 504 by covering adult diapers in nursing homes but not in the
community. P.I. Order at 10-13. Defendants do not refute this Court’s finding that
Plaintiffs face a substantial risk of institutionalization; nor do they dispute Plaintiffs’
claims that Defendants are able to accommodate their requests to remain in the
3 Defendants again argue that home health services are limited to “services for temporary recovery from specific, episodic health incidents,” not “ongoing conditions requiring continuing care.” See Defs’ Opp. at 11. As pointed out previously, this position contradicts federal law, which in fact facilitates coverage of medical equipment and supplies for individuals with chronic conditions. Plfs’ P.I. Reply at 11; see 42 C.F.R. §§ 440.210(a)(1) (requiring coverage of home health services for categorically needy recipients), 440.70(a), (b) (defining mandatory home health to include medical supplies, equipment, and appliances); 440.70(b)(3)(iii) (requiring recipient’s need for medical supplies, equipment and appliances to be reviewed annually) (emphasis added). Defendants’ other arguments regarding limitations on home health aide services and coverage of “non-routine” supplies needed for nursing care are either irrelevant or attempt to impose additional conditions that go well beyond the scope of what is required for coverage of medical equipment and supplies under federal law. See Plfs’ P.I. Reply at 7-10. The Court should again reject these erroneous arguments.
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community because it is less costly to serve them in the community. P.I. Order at 11-12;
Defs’ Opp. at 2-3. Defendants also do not refute the Court’s finding that Plaintiffs have
met the elements of an ADA claim and that Defendants discriminate by covering
incontinence supplies for individuals residing in institutions while failing to cover them
for individuals residing in the community. P.I. Order at 12-13. Instead, Defendants’
allege that “Missouri has waiver programs designed to prevent institutionalization.”
Defs’ Opp. at 12. However, the mere existence of waiver programs with limited slots and
waiting lists in a select number of counties is insufficient to defeat Plaintiffs’ clearly
established ADA and Section 504 claims.4
Finally, Defendants make a last-ditch effort to defend their illegal policy by
erroneously suggesting that this lawsuit is “in effect, a collateral attack on CMS’s
approval of the state Medicaid plan” Defs’ Opp. at 13. This argument, too, is foreclosed
4 As Plaintiffs pointed out previously, Steven Hiltibran has qualified for the new Prevention Waiver for individuals with severe developmental disabilities but no other plaintiff has been found eligible for that waiver. Plfs’ Sugg. at 25-26, n.3. In fact, until the Court’s preliminary injunction, no other Plaintiff had been able to obtain diapers through waivers or any other means in spite of their repeated attempts to do so through their state case managers and case workers. See P.I. Order at 14-15; Plfs’ P.I. Reply at 10-13. And even Steven’s waiver slot can be revoked at any time according to the terms of the waiver itself and by virtue of the fact that there are no rules governing the Prevention waiver program. See Plfs’ Sugg. at 25, n.3. See also Hutchings v. Roling, 151 S.W. 3d 85, 88 (Mo. Ct. App. 2004) where the state reduced the number of waiver slots in response to budgetary shortfalls.
Defendants’ arguments notwithstanding, Plaintiffs need not prove that the only way they could ever receive diapers is through admission to a nursing home. Def. Opp. at 12-13. Rather, they must demonstrate a risk of institutionalization. P.I. Order at 11, citing Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1185 (10th Cir. 2003); see also U.S. Dep’t of Justice, Statement of Interest in Support of Prelim. Inj. (Doc. # 19) at 3-4.
Prior to the litigation, Plaintiffs obtained diapers as best they could with their limited incomes, foregoing other vital necessities to do so. They now receive Medicaid coverage of diapers pursuant to a preliminary injunction entered by the Court. Plaintiffs’ Statement of Uncontroverted Material Facts (Doc. # 33), at ¶ 128; Defs’ Opp. at 3. As the Court has found, they are in fact at substantial risk without permanent injunctive relief.
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by the Court’s previous findings: “The approved State Medicaid plan does not indicate any limitation on the coverage of medically necessary incontinence briefs, nor the duration of the coverage for individuals with chronic conditions whose needs for these services are reviewed annually by a physician.” P.I. Order at 9. As the Court noted, “Plaintiffs do not contend that Missouri’s State Plan, as written, contains provisions that violate the American with Disabilities Act or the Medicaid Act. Rather, it is the state’s policy of deeming incontinence briefs as ‘personal hygiene’ items when they are used by individuals over the age of twenty–which the State Plan does not address–that Plaintiffs wish to enjoin.” P.I. Order at 15. See also Neb. Pharm Ass’n v. Neb. Dep’t of Social Services, 863 F. Supp. 1037, 1047 (D. Neb. 1994) (refusing to grant deference to CMS approval of state plan because the specific practice at issue was not described in the state plan and, thus, review did not evidence requisite “thorough and reasoned consideration” of the issue at hand) (citation omitted); Aitchison v. Berger, 404 F. Supp. 1137, 1148 (S.D.N.Y.1975), aff'd, 538 F.2d 307 (2d Cir. 1976) (holding approval of state plan “is not more than slightly persuasive” when “the so-called approval does not appear to have followed explicit attention to the question now confronted”).
In fact, Defendants do not list every DME item in their state plan. They merely list “examples” and indicate that “medically necessary items of miscellaneous durable medical equipment are covered and provided through the MO HealthNet Durable Medical Equipment Program.” Plfs’ P.I. Reply at 13, n. 14. (emphasis added); Ex. 33, 34 (Docs. # 22-6, # 22-7). Defendants’ policy of excluding medically necessary incontinence supplies by arbitrarily labeling them “personal hygiene items” is actually
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inconsistent with their own State Medicaid Plan, which requires coverage of “medically
necessary supplies.” Ex. 33 (emphasis added); Ex. 34.
Thus, Defendants provide no support for their suggestion that CMS has approved
their illegal policy of excluding incontinence supplies from covered DME as a “personal
hygiene” item in all circumstances, let alone that any such approval (had it occurred) would be dispositive in this case.5 Defendants’ policy of re-classifying medically
necessary incontinence supplies as “personal hygiene” items for noninstitutionalized
adults is so arbitrary that it is “per se unreasonable” and in clear violation the federal
Medicaid statute. See Lankford, 451 F.3d at 511. Moreover, Defendants’ arbitrary
policy violates federal requirements to cover mandatory home health services, 42 U.S.C.
§ 1396a(a)(10)(D), and the ADA and Section 504, and must therefore be stricken by this
Court.
CONCLUSION For the foregoing reasons and those stated in Plaintiffs’ original memorandum,
this Court should grant Plaintiffs’ Motion for Summary Judgment and declare the
Defendants’ incontinence supplies policy in violation of the Medicaid Act, the ADA and
Section 504 of the Rehabilitation Act. Further, it should enter a permanent injunction
enjoining Defendants from applying the illegal policy and from arbitrarily limiting the
scope of medically necessary adult diapers through any other means. Finally, the Court
5 The cases cited in Defendants’ brief offer no support for their suggestion. One case accords deference to an explicit CMS decision interpreting the Medicaid drug payment statute in the context of a state plan approval, where the court found CMS’ interpretation to be a permissible construction of the Medicaid outpatient drug payment statute and one which was consistent with the plain meaning of that statute. Pharm. Research and Mfrs of Am. v. Thompson, 362 F.3d 817, 821-24 (D.C. Cir. 2004). The other case is an appeal of a federal agency decision rejecting retroactive application of state-proposed changes to the Missouri Medicaid program, which has nothing to do with this case.
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should order Defendants to establish a meaningful and fair procedure whereby all adult
Missouri Medicaid recipients can obtain medically necessary incontinence briefs.
Respectfully submitted,
/s/ Joel Ferber Joel Ferber # 35165 Daniel Claggett # 26982 Legal Services of Eastern Missouri 4232 Forest Park Avenue St. Louis, Missouri 63108 (314) 534-4200 telephone (314) 534-1028 facsimile jdferber@lsem.org declaggett@lsem.org
/s/ John J. Ammann John J. Ammann # 34308 Saint Louis University Legal Clinic 321 N. Spring Street St. Louis, Missouri 63108 (314) 977-2778 telephone (314) 977-1180 facsimile ammannjj@slu.edu
/s/ Thomas E. Kennedy, III Thomas E. Kennedy, III # 46617 Heather B. Navarro # 60708 Law Offices of Thomas E. Kennedy, III, L.C. 230 S. Bemiston Avenue St. Louis, Missouri 63105 (314) 872-9041 telephone (314) 872-9043 facsimile tkennedy@tkennedylaw.com
/s/ Jane Perkins Jane Perkins National Health Law Program, Inc. 101 East Weaver St., Suite G-7 Carrboro, North Carolina 27510 (919) 968-6308 telephone (919)968-8855 facsimile perkins@healthlaw.org
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ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE I hereby certify that on April 4, 2011, I electronically filed the foregoing with the clerk of the Court using the CM/ECF system which sent notification of such filing to the following counsel of record:
Mark E. Long Assistant Attorney General Broadway State Office Building Post Office Box 899 Jefferson City, MO 65102
/s/ Joel Ferber
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

STEVEN HILTIBRAN, by and through his

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Mother and guardian, Debra Burkhart;

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NICHOLAS TATUM, by and through his

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Mother and next friend, Stacy Tatum;

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RONALD COONTZ, by and through his

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Mother and guardian, Patricia Coontz; and

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NENA HAMMOND,

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Plaintiffs,

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v.

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RONALD J. LEVY, in his official capacity

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As Director of the Missouri Department of

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Social Services; and

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IAN McCASLIN, M.D., in his official

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Capacity as Director of the MO HealthNet

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Division,

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Defendants.

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Case No. 10-4185-CV-C-NKL

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C. § 517, 1 in support of Plaintiffs’ Motion for Summary Judgment in regards to the Plaintiffs’ claim

under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et. seq. As

noted in the United States’ first Statement of Interest in this matter, this litigation implicates the

proper interpretation and application of the integration mandate of Title II of the ADA, See

Olmstead v. L.C., 527 U.S. 581 (1999). The Attorney General has authority to enforce Title II of

the ADA, and pursuant to Congressional mandate, to issue regulations setting forth the forms of

discrimination prohibited by Title II. 42 U.S.C § 12134. The United States thus has a strong

interest in this matter.

1 28 U.S.C. § 517 states that “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”
.
1
Case 2:10-cv-04185-NKL Document 39 Filed 04/04/11 Page 1 of 4

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the moving party establishes that there are no genuine issues of material fact and that, as a matter of law, the moving party is entitled to judgment. Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see, e.g., Liebe v. Norton, 157 F.3d 574, 578 (8th Cir. 1998); Hall v. Lhaco, Inc., 140 F.3d 1190, 1193 (8th Cir. 1998).
The facts presented by both parties are not substantially different from those presented in the briefing for the Plaintiffs’ Motion for a Preliminary Injunction. For the reasons stated in the Statement of Interest filed by the United States in support of Plaintiffs’ Motion for Preliminary Injunction, the United States respectively urges this Court to grant Plaintiffs’ Motion for Summary Judgment. (See Statement of Interest of the United States, Oct. 15, 2010, ECF No. 19.)
CONCLUSION Accordingly, the Court should grant the Plaintiffs’ Motion for Summary Judgment with respect to the Plaintiffs’ claim under the ADA. With the Court’s permission, counsel for the United States will be present at any upcoming hearings. Dated: April 4, 2011
2 Case 2:10-cv-04185-NKL Document 39 Filed 04/04/11 Page 2 of 4

Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division JOHN L. WODATCH Acting Assistant Attorney General ALISON N. BARKOFF Special Counsel for Olmstead Enforcement KATHLEEN WOLFE Special Counsel RENEE M. WOHLENHAUS Deputy Chief
/s/ Regan Rush REGAN RUSH, Trial Attorney, D.C. No. 980252 Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. – NYA Washington, DC 20530 Tel: (202) 307-0663 Fax: (202) 307-1197 Email: Regan.Rush@usdoj.gov
3 Case 2:10-cv-04185-NKL Document 39 Filed 04/04/11 Page 3 of 4

BETH PHILLIPS United States Attorney
By: s/ Charles M. Thomas Charles M. Thomas, Mo. Bar No. 28522 Assistant United States Attorney Charles Evans Whittaker Courthouse 400 East Ninth Street, Room 5510 Kansas City, MO 64106 Tel: (816) 426-3122 Fax: (816) 426-3165 Email: Charles.Thomas@usdoj.gov
Counsel for the United States of America

CERTIFICATE

OF SERVICE

I hereby certify that on April 4, 2011, a copy of foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.

s/ Charles M. Thomas Charles M. Thomas, Mo. Bar No. 28522 Assistant United States Attorney

4 Case 2:10-cv-04185-NKL Document 39 Filed 04/04/11 Page 4 of 4

 
 CLOSED,EAPJ,PHV
U.S. District Court Western District of Missouri (Jefferson City) CIVIL DOCKET FOR CASE #: 2:10−cv−04185−NKL

Hiltibran et al v. Levy et al Assigned to: District Judge Nanette K. Laughrey Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 08/23/2010 Date Terminated: 06/25/2011 Jury Demand: None Nature of Suit: 444 Civil Rights: Welfare (DISCONTINUED AFTER 1/1/2012) Jurisdiction: Federal Question

Steven Hiltibran By and through his mother and guardian, Debra Burkhart

represented by Heather B. Navarro Law Offices of Thomas E. Kennedy, III, LC 230 S. Bemiston Ave. Ste. 800 St. Louis, MO 63108 (314) 872−9041 Fax: (314) 872−9043 Email: hnavarro@tkennedylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Perkins National Health Law Program, Inc. 211 North Columbia Street Chapel Hill, NC 27514 (919) 968−6308 Fax: (919) 968−8855 Email: perkins@healthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha Jane Perkins 101 E. Weaver St. Carrboro, NC 27510 (919) 968−6308 Email: perkins@healthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel E. Claggett Legal Services of Eastern Missouri, Inc. 4232 Forest Park Ave. St. Louis, MO 63108 (314) 534−4200 Fax: (314) 534−1028 Email: declaggett@lsem.org ATTORNEY TO BE NOTICED

John J. Ammann St. Louis University Legal Clinic St. Louis University School of Law 321 North Spring Avenue St. Louis, MO 63108 (314) 977−2796 Fax: (314) 977−3334 Email: ammannjj@slu.edu ATTORNEY TO BE NOTICED

Case: 2:10-cv-4185 As of: 12/06/2012 10:13 AM CST 1 of 8

Thomas E. Kennedy , III Law Offices of Thomas E. Kennedy, III 230 S. Bemiston Ave Suite 800 St. Louis, MO 63105 314−872−9041 Fax: 314−872−9043 Email: tkennedy@tkennedylaw.com ATTORNEY TO BE NOTICED

Joel Ferber Legal Services of Eastern Missouri, Inc. 4232 Forest Park Blvd. St. Louis, MO 63108 (314) 256−8702 Fax: (314) 534−1028 Email: jdferber@lsem.org ATTORNEY TO BE NOTICED

Plaintiff
Nicholas Tatum By and through his mother and next friend, Stacy Tatum

represented by Heather B. Navarro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel E. Claggett (See above for address) ATTORNEY TO BE NOTICED

John J. Ammann (See above for address) ATTORNEY TO BE NOTICED

Thomas E. Kennedy , III (See above for address) ATTORNEY TO BE NOTICED

Joel Ferber (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ronald Coontz By and through his mother and guardian Patricia Coontz

represented by Heather B. Navarro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha Jane Perkins Case: 2:10-cv-4185 As of: 12/06/2012 10:13 AM CST 2 of 8

Plaintiff Nena Hammond

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel E. Claggett (See above for address) ATTORNEY TO BE NOTICED
John J. Ammann (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Kennedy , III (See above for address) ATTORNEY TO BE NOTICED
Joel Ferber (See above for address) ATTORNEY TO BE NOTICED
represented by Heather B. Navarro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Jane Perkins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel E. Claggett (See above for address) ATTORNEY TO BE NOTICED
John J. Ammann (See above for address) ATTORNEY TO BE NOTICED
Thomas E. Kennedy , III (See above for address) ATTORNEY TO BE NOTICED
Joel Ferber (See above for address) ATTORNEY TO BE NOTICED

V.

Defendant

Director Ronald J Levy In his official capacity as Director of Missouri Department of Social Services

represented by Mark E. Long Missouri Attorney General's Office−JC P.O. Box 899 Jefferson City, MO 65102 Fax: (573) 751−9456 LEAD ATTORNEY

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Defendant Director Ian McCaslin In his official capacity as Director of MO HealthNet Division
interested party United States of America

ATTORNEY TO BE NOTICED
represented by Mark E. Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles M. Thomas Office of the United States Attorney 400 E. 9th St. Room 5510 Kansas City, MO 64106 (816) 426−3130 Fax: (816) 426−3165 Email: charles.thomas@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/23/2010 08/23/2010 08/23/2010 08/23/2010 08/23/2010
08/23/2010 08/24/2010 08/24/2010

# Docket Text
1 COMPLAINT against All Defendants filed by Joel Ferber on behalf of All Plaintiffs. Filing fee $350, receipt number 0866−2455756. Service due by 12/24/2010. (Attachments: # 1 Civil Cover Sheet)(Ferber, Joel) (Entered: 08/23/2010)
2 Notice of EAP assignment to United States Magistrate Judge Matt J. Whitworth. (Attachments: # 1 General Order)(Bax, Laura) (Entered: 08/23/2010)
3 MOTION for leave to file excess pages filed by Joel Ferber on behalf of All Plaintiffs. Suggestions in opposition/response due by 9/9/2010 unless otherwise directed by the court. (Attachments: # 1 Exhibit Attached memorandum in support of motion for preliminary injunction)(Ferber, Joel) (Entered: 08/23/2010)
4 MOTION for order appointment of next friend filed by Joel Ferber on behalf of Nicholas Tatum. Suggestions in opposition/response due by 9/9/2010 unless otherwise directed by the court. (Ferber, Joel) (Entered: 08/23/2010)
5 MOTION for preliminary injunction filed by Joel Ferber on behalf of All Plaintiffs. Suggestions in opposition/response due by 9/9/2010 unless otherwise directed by the court. (Attachments: # 1 Plaintiffs' List of Exhibits In Support of Motion for Preliminary Injunction, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12, # 14 Exhibit Exhibit 13, # 15 Exhibit Exhibit 14, # 16 Exhibit Exhibit 15, # 17 Exhibit Exhibit 16, # 18 Exhibit Exhibit 17, # 19 Exhibit Exhibit 18, # 20 Exhibit Exhibit 19, # 21 Exhibit Exhibit 20, # 22 Exhibit Exhibit 21, # 23 Exhibit Exhibit 22, # 24 Exhibit Exhibit 23, # 25 Exhibit Exhibit 24, # 26 Exhibit Exhibit 25, # 27 Exhibit Exhibit 26, # 28 Exhibit Exhibit 27, # 29 Exhibit Exhibit 28)(Ferber, Joel) (Entered: 08/23/2010)
SUMMONS ISSUED as to Ronald J Levy &Ian McCaslin. (Bax, Laura) (Entered: 08/23/2010)
6 ORDER entered by Judge Nanette Laughrey granting 3 motion for leave to file excess pages. Plaintiffs shall file the brief on ECF within two days of this Order. This is a TEXT ONLY ENTRY. No document is attached.(Kanies, Renea) (Entered: 08/24/2010)
7 SUGGESTIONS in support re 5 MOTION for preliminary injunction filed by Joel Ferber on behalf of Plaintiffs Ronald Coontz, Nena Hammond, Steven Hiltibran, Nicholas Tatum. (Related document(s) 5 ) (Ferber, Joel) (Entered: 08/24/2010)

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08/24/2010

8 ORDER ON PRETRIAL PROCEDURES entered by Judge Nanette Laughrey. Service must be obtained on all defendants within forty (40) days of the date of this Order unless otherwise authorized by the Court. (Kanies, Renea) (Entered: 08/24/2010)

09/01/2010

9 Motion to allow Perkins Martha to appear pro hac vice (Pro Hac fee $50 receipt number 0866−2465375) filed by Joel Ferber on behalf of All Plaintiffs. (Ferber, Joel) (Entered: 09/01/2010)

09/01/2010

10 RETURN OF SERVICE of complaint executed by Steven Hiltibran. Ronald J Levy served on 8/26/2010, answer due 9/16/2010. (Ferber, Joel) (Entered: 09/01/2010)

09/01/2010

11 RETURN OF SERVICE of complaint executed by Steven Hiltibran. Ian McCaslin served on 8/26/2010, answer due 9/16/2010. (Ferber, Joel) (Entered: 09/01/2010)

09/02/2010

12 ORDER granting 9 motion to appear pro hac vice approved by Clerk of Court. Attorney Martha Jane Perkins for Ronald Coontz,Nena Hammond,Steven Hiltibran,Nicholas Tatum allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney. Signed on 9/2/10 by Unassigned. This is a TEXT ONLY ENTRY. No document is attached.(James, Carrie) (Entered: 09/02/2010)

09/13/2010

13 NOTICE of appearance by Mark E. Long on behalf of Ronald J Levy, Ian McCaslin (Long, Mark) (Entered: 09/13/2010)

09/13/2010

14 MOTION for extension of time to file answer filed by Mark E. Long on behalf of Ronald J Levy, Ian McCaslin. Suggestions in opposition/response due by 9/30/2010 unless otherwise directed by the court. (Long, Mark) (Entered: 09/13/2010)

09/14/2010

15 ORDER entered by Judge Nanette Laughrey granting 14 Motion for Extension of Time to Answer. Defendants shall file an answer on or before 9/23/2010. Defendants shall file a response to Plaintiff's Motion for Preliminary 5 Injunction on or before 9/30/2010. This is a TEXT ONLY ENTRY. No document is attached.(Kanies, Renea) (Entered: 09/14/2010)

09/23/2010

16 ANSWER to 1 Complaint on behalf of Ronald J Levy, Ian McCaslin.(Long, Mark) (Entered: 09/23/2010)

09/30/2010

17 SUGGESTIONS in opposition re 5 MOTION for preliminary injunction filed by Mark E. Long on behalf of Defendants Ronald J Levy, Ian McCaslin. Reply suggestions due by 10/18/2010 unless otherwise directed by the court (Related document(s) 5 ) (Long, Mark) (Entered: 09/30/2010)

10/12/2010

18 ORDER entered by Judge Nanette Laughrey granting 4 Motion for Appointment of Next Friend. Stacy Tatum is appointed as Next Friend for her son, Nicholas Tatum. This is a TEXT ONLY ENTRY. No document is attached.(Kanies, Renea) (Entered: 10/12/2010)

10/15/2010

19 SUGGESTIONS in support re 5 MOTION for preliminary injunction Statement of Interest of the United States of America filed by Charles M. Thomas on behalf of interested party United States of America. (Attachments: # 1 Exhibit, # 2 Exhibit)(Related document(s) 5 ) (Thomas, Charles) (Entered: 10/15/2010)

10/18/2010

20 MOTION for leave to file excess pages Reply Suggestions filed by Joel Ferber on behalf of All Plaintiffs. Suggestions in opposition/response due by 11/4/2010 unless otherwise directed by the court. (Attachments: # 1 Exhibit Reply Suggestions)(Ferber, Joel) (Entered: 10/18/2010)

10/18/2010

21 ORDER entered by Judge Nanette Laughrey granting 20 motion for leave to file excess pages. Plaintiffs shall file the reply suggestions on ECF. This is a TEXT ONLY ENTRY. No document is attached.(Kanies, Renea) (Entered: 10/18/2010)

10/18/2010

22 REPLY SUGGESTIONS to motion re 5 MOTION for preliminary injunction filed by Joel Ferber on behalf of Plaintiffs Ronald Coontz, Nena Hammond, Steven Hiltibran, Nicholas Tatum. (Attachments: # 1 Appendix, # 2 Exhibit 29, # 3 Exhibit 30, # 4 Exhibit 31, # 5 Exhibit 32, # 6 Exhibit 33, # 7 Exhibit 34, # 8 Exhibit 35, # 9 Exhibit 36, # 10 Exhibit 37, # 11 Exhibit 38)(Related document(s) 5 ) (Ferber, Joel) (Entered: 10/18/2010)

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10/18/2010 10/25/2010 11/24/2010 11/29/2010 12/01/2010 12/27/2010
01/04/2011
01/04/2011 02/10/2011
02/17/2011 02/17/2011 03/02/2011 03/11/2011 03/14/2011
03/24/2011

23 NOTICE of appearance by Heather B. Navarro on behalf of All Plaintiffs (Navarro, Heather) (Entered: 10/18/2010)
24 ORDER entered by Judge Nanette Laughrey. Proposed scheduling order due by 12/1/2010. Rule 26 conference due by 11/24/2010. (Kanies, Renea) (Entered: 10/25/2010)
25 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by Mark E. Long on behalf of Defendants Ronald J Levy, Ian McCaslin.(Long, Mark) (Entered: 11/24/2010)
26 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by Joel Ferber on behalf of Plaintiffs Ronald Coontz, Nena Hammond, Steven Hiltibran, Nicholas Tatum.(Ferber, Joel) (Entered: 11/29/2010)
27 PROPOSED SCHEDULING ORDER "Joint Proposed Scheduling Order and Discovery Plan" by Ronald J Levy, Ian McCaslin. (Long, Mark) (Entered: 12/01/2010)
28 ORDER by Judge Nanette Laughrey granting Plaintiffs' Motion for Preliminary Injunction 5 . The Court finds that Plaintiffs have established the requirements necessary for a preliminary injunction. Accordingly, it is hereby ORDERED that Plaintiffs Motion for Preliminary Injunction [Doc. # 5] is GRANTED.(Smith, Fran) (Entered: 12/27/2010)
29 SCHEDULING ORDER entered by Judge Nanette Laughrey. Discovery due by 5/3/2011. Dispositive Motions due by 5/24/2011. Pretrial Conference set for 9/15/2011 at 10:00 AM in District Courtroom, Jefferson City. Jury Trial set for 9/26/2011 at 09:00 AM in District Courtroom, Jefferson City. (Attachments: # 1 Memo on PTC) (Kanies, Renea) (Entered: 01/04/2011)
30 RULES OF TRIAL entered by Judge Nanette Laughrey. (Kanies, Renea) (Entered: 01/04/2011)
31 AMENDED SCHEDULING ORDER entered by Judge Nanette Laughrey. Discovery due by 5/3/2011. Dispositive Motions due by 5/24/2011. Pretrial Conference set for 9/26/2011 at 08:30 AM in District Courtroom, Jefferson City. Bench Trial set for 9/26/2011 at 09:00 AM in District Courtroom, Jefferson City. (Attachments: # 1 Memo on PTC) (Kanies, Renea) (Entered: 02/10/2011)
32 MOTION for summary judgment filed by Joel Ferber on behalf of Ronald Coontz, Nena Hammond, Steven Hiltibran, Nicholas Tatum. Suggestions in opposition/response due by 3/14/2011 unless otherwise directed by the court (Ferber, Joel) (Entered: 02/17/2011)
33 SUGGESTIONS in support re 32 MOTION for summary judgment filed by Joel Ferber on behalf of Plaintiffs Ronald Coontz, Nena Hammond, Steven Hiltibran, Nicholas Tatum. (Related document(s) 32 ) (Ferber, Joel) (Entered: 02/17/2011)
34 DESIGNATION of expert witnesses by Ronald Coontz, Nena Hammond, Steven Hiltibran, Nicholas Tatum. (Ferber, Joel) (Entered: 03/02/2011)
35 MOTION for extension of time to Respond to Motion for Summary Judgment filed by Mark E. Long on behalf of Ronald J Levy, Ian McCaslin. Suggestions in opposition/response due by 3/28/2011 unless otherwise directed by the court. (Long, Mark) (Entered: 03/11/2011)
36 ORDER by Judge Nanette Laughrey granting 35 motion for extension of time. ORDERED that Defendants' Motion for Extension of Time [Doc. #35] is GRANTED. Defendants' suggestions in opposition/response to Plaintiffs' Motion for Summary Judgement are now due by 3/24/2011. This is a TEXT ONLY ENTRY. No document is attached.(Smith, Fran) (Entered: 03/14/2011)
37 SUGGESTIONS in opposition re 32 MOTION for summary judgment filed by Mark E. Long on behalf of Defendants Ronald J Levy, Ian McCaslin. Reply suggestions due by 4/11/2011 unless otherwise directed by the court (Related document(s) 32 ) (Long, Mark) (Entered: 03/24/2011)

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04/04/2011

38 REPLY SUGGESTIONS to motion re 32 MOTION for summary judgment filed by Joel Ferber on behalf of Plaintiffs Ronald Coontz, Nena Hammond, Steven Hiltibran, Nicholas Tatum. (Related document(s) 32 ) (Ferber, Joel) (Entered: 04/04/2011)

04/04/2011

39 SUGGESTIONS in support re 32 MOTION for summary judgment Statement of Interest of the United States of America filed by Charles M. Thomas on behalf of interested party United States of America. (Related document(s) 32 ) (Thomas, Charles) (Entered: 04/04/2011)

05/20/2011

40 ORDER SETTING ORAL ARGUMENTS. Oral arguments will be heard on the pending Motion for Summary Judgment (Doc. # 32) on Tuesday, May 24, 2011, at 9:00 AM, before Judge Nanette Laughrey. All parties should be included. The hearing will be held by telephone. Plaintiff shall intitiate the call and call the Court last at 816−512−5679. This is a TEXT ONLY ENTRY. No document is attached.(Smith, Fran) (Entered: 05/20/2011)

05/24/2011

41 Minute Entry. Proceedings held before District Judge Nanette K. Laughrey: TELEPHONE CONFERENCE held on 5/24/2011. Teleconference held. Oral argument presented on the pending Motion for Summary Judgment [Doc. 32]. The Court took the matter under advisement. To order a transcript of this hearing please contact Katie Wirt, 816−512−5608. (Kanies, Renea) (Entered: 05/24/2011)

06/24/2011

42 ORDER by Judge Nanette Laughrey granting 32 motion for summary judgment. ORDERED that Plaintiffs Motion for Summary Judgment [Doc. # 32] is GRANTED. The Court declares that, notwithstanding Defendants January 14, 2011 Notice Concerning Adult Incontinence Briefs, Defendants current policies deeming adult incontinence briefs personal hygiene items for participants over age twenty violates the Medicaid Acts reasonable standards requirement andhome health services requirement, and violates the integration mandate of the ADA and section 504 of the Rehabilitation Act. The Court permanently enjoins Defendants from applying their unlawful policies, and orders Defendants to establish a fair process, in accord with this Order and federal law, whereby all adult Missouri Medicaid recipients can obtain medically necessary incontinence briefs.(Smith, Fran) (Entered: 06/24/2011)

06/25/2011

43 CLERK'S JUDGMENT (Kanies, Renea) (Entered: 06/25/2011)

06/29/2011

44 MOTION for extension of time to File Motion for Attorneys' Fees and Costs filed by Joel Ferber on behalf of All Plaintiffs. Suggestions in opposition/response due by 7/18/2011 unless otherwise directed by the court. (Ferber, Joel) (Entered: 06/29/2011)

07/01/2011

45 ORDER entered by Judge Nanette Laughrey granting 44 MOTION for Extension of Time to File Motion for Attorneys' Fees and Costs. The motion for fees and costs shall be filed by August 15, 2011.This is a TEXT ONLY ENTRY. No document is attached.(Kanies, Renea) (Entered: 07/01/2011)

08/12/2011

46 PROPOSED BILL OF COSTS by Ronald Coontz, Nena Hammond, Steven Hiltibran, Nicholas Tatum.Objections to Bill of Costs due by 8/29/2011 (Ferber, Joel) (Entered: 08/12/2011)

08/15/2011

47 MOTION for attorney fees filed by Jane Perkins on behalf of All Plaintiffs. Suggestions in opposition/response due by 9/1/2011 unless otherwise directed by the court. (Attachments: # 1 Exhibit Ferber Decl., # 2 Exhibit Waldman Decl., # 3 Exhibit Hargadon Decl., # 4 Exhibit Kennedy Decl., # 5 Exhibit Navarro Decl., # 6 Exhibit Ammann Decl., # 7 Exhibit Perkins Decl., # 8 Exhibit Davis Decl., # 9 Exhibit Claggett Decl., # 10 Exhibit Chackes Decl., # 11 Exhibit Schwendemann Decl., # 12 Exhibit Ferry Decl., # 13 Exhibit Bill of Costs)(Perkins, Jane) (Entered: 08/15/2011)

08/15/2011

48 SUGGESTIONS in support re 47 MOTION for attorney fees filed by Jane Perkins on behalf of Plaintiffs Ronald Coontz, Nena Hammond, Steven Hiltibran, Nicholas Tatum. (Related document(s) 47 ) (Perkins, Jane) (Entered: 08/15/2011)

08/26/2011

49 MOTION for extension of time to file response/reply filed by Mark E. Long on behalf of Ronald J Levy, Ian McCaslin. Suggestions in opposition/response due by 9/12/2011 unless otherwise directed by the court. (Long, Mark) (Entered:

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08/29/2011 09/08/2011 09/16/2011 10/20/2011 10/20/2011

08/26/2011)
50 ORDER entered by Judge Nanette Laughrey granting 49 motion for extension of time to file response to 47 MOTION for attorney fees .Suggestions in opposition due by 9/8/2011. This is a TEXT ONLY ENTRY. No document is attached.(Kanies, Renea) (Entered: 08/29/2011)
51 SUGGESTIONS in opposition re 47 MOTION for attorney fees filed by Mark E. Long on behalf of Defendants Ronald J Levy, Ian McCaslin. Reply suggestions due by 9/26/2011 unless otherwise directed by the court (Related document(s) 47 ) (Long, Mark) (Entered: 09/08/2011)
52 REPLY SUGGESTIONS to motion re 47 MOTION for attorney fees filed by Joel Ferber on behalf of Plaintiffs Ronald Coontz, Nena Hammond, Steven Hiltibran, Nicholas Tatum. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Related document(s) 47 ) (Ferber, Joel) (Entered: 09/16/2011)
53 ORDER entered by Judge Nanette Laughrey. Hiltibran's Motion for Attorney Fees [Doc. # 47] is GRANTED. The Court awards in favor of Hiltibran and against Levy $174,222 in attorney and paralegal fees, plus $400 in other costs, for a total of $174,622. (Kanies, Renea) (Entered: 10/20/2011)
54 CLERK'S JUDGMENT (Kanies, Renea) (Entered: 10/20/2011)

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