No. 03- 15 -00325- CV

___________________________________________________________ ____

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

AT AUSTIN

____________________________________________________________ __ _ TEXAS HEALTH AND HUMAN SERVICES COMMISSI ON Appellant ,
v. JESSICA LUKEFAHR Appellee .

________________________________________________________________

On Appeal from the 345 th Judicial District Court

of Travis County, Texas Cause No. D-1- GN

- 14 -002158 The Honorable Stephen Yelenosky Presiding

__________________________________________________________________ A PPELLANT’S RESPONSE TO APPELLEE’S SUR -REPLY

__________________________________________________________________ KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation DAVID A. TALBOT, JR. Chief, Administrative Law Division KARA HOLSINGER Assistant Attorney General State Bar No. 24065444 O FFICE OF THE A TTORNEY G ENERAL OF T EXAS Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4203 Facsimile: (512) 320-0167 kara.holsinger@texasattorneygeneral.gov COUNSEL FOR APPELLANT ORAL ARGUMENT REQUEST ED ACCEPTED 03-15-00325-CV 8123327 THIRD COURT OF APPEALS

AUSTIN, TEXAS 12/7/2015 4:08:36 PM JEFFREY D. KYLE

CLERKii TABLE OF CONTENTS
TABLE OF CONTENTS

................................ ................................ ............................. ii
INDEX OF AUTHORITIES

................................ ................................ ........................ iii
ARGUMENT AND AUTHORITIES

................................ ................................ .......... 2
I. Ms. Lukefahr Failed to Provide Evidence

- Based Medical Peer

- Reviewed Literature in Support of the Exceptional Circumstances Request as Required by HHSC ’s Exceptional Circumstances Policy

................................ ................. 2
II. There is no set Clinical Criteria for Exceptional Circumstances Review because these Requests are Considered on a Case

- by

- Case Basis

.................... 3
III. Requesting Prior Authorization of Alternative Durable Medical Equipment is not an Exceptional Circumstances Review Requirement

................................ .. 4
IV. Ms. Lukefahr has a Medical Need to Stand, but she does not have a Medical Need for an Integrated Stander

................................ ................................ .......... 5
V. HHSC’s Denial Letter Provides the Legal Basis for the Denial as Required by Federal Med icaid Regulations

................................ ................................ ........... 6
PRAYER

................................ ................................ ................................ ...................... 7
CERTIFICATE OF COMPL IANCE

................................ ................................ ........... 8
CERTIFICATE OF SERVI CE

................................ ................................ .................... 9iii TABLE OF AUTHORIT I ES

F EDERAL STATUTE 42 C.F.R. § 431.210(c)

................................ ................................ ............................... 6

RULES 1 Tex. Admin. Code 354.1039(a)(4)(D)

................................ ........................... 2, 3, 5No. 03

- 15

- 00325

- CV

__________________________________________________________ _____

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

AT AUSTIN

________________________ _______________ _____________________ __ _ TEXAS HEALTH AND HUMAN SERVICES COMMISSION Appellant ,
v. JESSICA LUKEFAHR Appellee .

_________________________________ ___________________________ ___ _ On Appeal from the 345 th Judicial District Court

o f Travis County, Texas Cause No. D

- 1

- GN

- 14

- 002158 The Honorable Stephen Yelenosky Presiding

__________________________________________________________________ APPELLANT ’S R ESPONSE TO APPELLEE’S SUR
- REPLY

__________________________________________________________________ TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES the Texas Health and Human Service s Commission ( “HHSC ” ) and files this reply to Appellee’s Sur

- Reply. The m atters raised in Appellee’s Sur

- Reply have largely been addressed in Appellant’s Brief and Reply Brief. But Appellant files this response to Appellee’s Sur

- Reply to address factual and legal matters not addressed in previous briefing.2 ARGUMENT AND AUTHOR ITIES
I. Ms. Lukefahr Failed to Provide Evidence
- Based Medical Peer
Reviewed Literature in Support of the Ex ceptional Circumstances Request as Required by HHSC’s E xceptional Circumstances Policy. Appellee states that the exceptional circumstances rule does n ot require the submission of evidence

- based medical peer

- reviewed literature in support of an exceptional circumstances request, but omits the fact that the exceptional circumstances policy does so require. Sur

- Reply at 5; compare 1 Tex. Admin. Code 354.10 39(a)(4)(D) with Administrative Record (A.R.) 428

- 31 (2013 Texas Medicaid Program Policy Manual

— Exceptional Circumstances Policy). As discussed extensively in Ap pellant’s Brief, HHSC’s exceptional circumstances policy sets out the documentation that must be provided in support of an exceptional circumstances request. Appellant’s Br. 6

- 10, 14

- 25. Ms. Lukefahr complied with this policy and does not challenge the pol icy on appeal. A.R. 208

- 241; see also A.R. 71

- 115, 129

- 207. According to the exceptional circumstances policy, Ms. Lukefahr was required to submit “[a] minimum of two articles from evid ence - based medical peer

- reviewed literature that demonstrate validated, uncontested data for use of the requested equipment to trea t the client’s specific
medical condition, and that the requested equipment has been found to be safe and effective. ” A.R. 429. Although Ms. Lukefahr submitted two articles, the articles3

did not r ise to the level of evidence

- based medical peer

- reviewed literature supporting medical necessity for the mobile stander, as discussed in Appellant’s
Brief. A.R. 147

- 61; Appellant’s Br. 9

- 11. As such, Ms. Lukefahr failed to meet the requirements for an exce ptional circumstances request, and HHSC’s denial of the integrated stander should have been affirmed. A.R. 428

- 29.
II. There is no set Clinical Criteria for Exceptional Circumstances Review because these Requests are Considered on a Case
- by
- Case Basis. App ellee claims that HHSC witnesses could not id entify criteria used to deny Ms. Lukefahr’s exceptional circumstances request and could not name a medical purpose that could justify approval of an integrated stander . Sur

- Reply at 9 n. 8. This is because each exceptional circumstances request must be considered on

a case - by

- case basis: “Medical equipment or appliances not lis ted in subparagraph (C) of this paragraph [related to covered appliances and equipment] may, in exceptional circumstances, be considered f or payment when it can be medically substantiated as a part of the treatment plan that such service would serve a specific medical purpose on an individual case basis .” 1 Tex. Admin. Code § 354.1039(a)(4)(D) (emphasis added). The exceptional circumstances policy further clarifies that enrollment criteria and adjudication guidelines to not apply to exceptional circumstances. A.R. 429

- 30. Thus, HHSC witnesses testified that there is no set clinical criteria for review of an exceptional circumstances request, as the4

exceptional circumstances rule and policy requires that each request be considered on an individual case basis. Fair Hearing Audio Recording (“H.R.”) 1:15.40, 1:20.50, 1:24, 2:49. As Ms. Lukefahr’s req uest was considered based on her individual medical needs in compliance with law and policy, HHSC’s decision should have been affirmed. A.R. 58

- 60 (Exceptional circumstances denial letter stating, in part: “After reviewing and studying the clinical points of your request and your special medical needs it was found you may have a medical need for a power wheelchair without a standing feature and a static standing system to meet both your medical and mobility needs.”).
III. Requesting Prior Authorization of Alter native Durable Medical Equipment is not an Exceptional Circumstances Review Requirement . Appellee asserts that HHSC denied the exceptional circumstances request because Ms. Lukefahr did not submit a prior authorization request for a static stander, there by creating a new requirement that alternative Durable Medical Equipment (“ DME ”) be requested for prior authorization prior to submitting an exceptional circumstances request

. Sur

- Reply at 6. This claim is not supported by the record. Rather, the exception al circumstances request was denied, in part, because Ms. Lukefahr failed to show that alternative DME had been tried or ruled out, and why, as required by the exceptional circumstances policy. A.R. 429 (Exceptional Circumstances request must include “[l] e tters of Medical Necessity5

(L OMN) from the client’s clinical professionals documenting alternati ve measures and alternative DME that have been tried and that have fail ed to meet the client’s
medical need(s), or have been ruled out, and an explanation of wh y it failed or was ruled out .”); Appellant’s Br. 22

- 25. The evidence showed that Ms. Lukefahr did not have a static stander and that a static stander had never been prior authorized for her. A.R. 588 (Finding of Fact No. 5). This did not create a require ment that alternative DME must be requested for prior authorization prior to submitting an exceptional circumstances request, and no such requirement exists in law or policy. 1 Tex. Admin. Code § 354.1039(a)(4)(D ) ; A.R. 429

- 30. Rather, it was evidence that alternative DME had not been tried or ruled out as required by the exceptional circumstances policy. A.R. 429

- 30. IV. Ms. Lukefahr has a Medical Need to Stand , but she does not have a Medical Need for an Integ rated Stander. Appellee conflates evidence regarding Ms. Lukefah r’ s need to stand with evidence regarding the need for an integrated stander. Sur

- Reply at 10 n. 9. Ms. Lukefahr points out that Ms. Clayes, a nurse employed by HHSC, testified that Ms. Luke fahr has a medical need to stand, asserting that this disproves that the integrated stander was requested to help Ms. Lukefahr progress at work. Id . But Ms. Lukefahr ignores that Ms. Clayes further testified that no medical need for an integrated stander w as expressed in the exceptional circumstances request. H.R.6

1:28 (“All of th at doc umentation justifies standing. N one of that justifies why that stander needs t o be part of a wheelchair. . . I t looks like convenience.” ). As noted in the denial letter, the integrated stander was requested primarily to help Ms. Lukefahr progress at work, which is not a medical need. A.R. 59 (“The review of the papers sent in show the main reason for requesting a standing power wheelchair was to help you progress at work. The main reason was not for the treatment of your medical condition.); H.R. 1:27 (Ms. Clayes testifying that the integrated stander seemed to have been requested for work reasons, not due to medical need.). Instead, Ms. Lukefahr’s medical need to stand may be met through use of a static stander, as discussed in Appellant’s Brief. Appellant’s Br. 18

- 21; Appellant’s Reply Br. 8

- 13. Thus, the Court should disregard Ms. Lukefahr’s attempts to conflate a medical need to stand with a medical need for an integrated
st ander.
V. HHSC’s Denial Letter Provides the Legal Basis for the Denial as Required by Federal Medicaid Regulations. Finally, Ms. Lukefahr notes that that HHSC, in its Reply Brief, failed to cite to part of a Federal Medicaid regulation requiring that a de nial letter provide the legal basis for the denial. Sur

- Reply at 4 n. 3; 42 C.F.R. § 431.210(c) (the notice must contain “[t] he specific regulations that support, or the change in Federal or Stat e law that requires, the action.”). This is true, since the p ortion of HHSC’s Reply7

Brief cited by Ms. Lukefahr refers to the level of detail required in a denial letter, not the legal basis for the denial. See Reply Br. at 8 n. 2. Regardless, HHSC’s denial letter provided the legal basis for denial in compliance wi th federal regulations, stating: “Because the standing feature on the power wheelchair would not serve a specific medical purpose for you, it could not be approved under the exceptio nal circumstances provision of 1 Texas Administrative Code § 354. 1039(a)(4 )(D) as requested by your provider. ” A.R. 59.
PRAYER HHSC asks this Court to reverse the district court’s judgment because HHSC’s order denying Ms. Lukefahr’s request for a custom power wheelchair with an integrated stander is supported by substantial e vidence and is not arbitrary and capricious or in violation of Ms. Lukefahr’s due process rights. Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civ il Litigation DAVID A. TALBOT, JR. Chief, Administrative Law Division8 /s/ Kara Holsinger KARA HOLSINGER Assistant Attorney General State Bar No. 24065444 Office of the Attorney General of Texas Administrative Law Division P.O. Box 12548, Capitol Stat ion Austin, Texas 78711

- 2548 Telephone: (512) 475

- 4203 Facsimile: (512) 320

- 0167 kara.holsinger@texasattorneygeneral.gov Attorneys for Appellant

C ERTIFICATE OF COMPLI ANCE In complian ce with Travis County Local Rule 10.5 and relying on the word count function in the word processing software used to produce this document, I certify that the numb er o f words in this document is 1,854 in cluding t he portions that would otherwise be exempted by TRAP Rule 9.4(i)(1). /s/ Kara Holsinger KARA HOLSINGER9 CERTIFICATE OF SERV ICE
A true and correct copy of the foregoing Appellant ’s Response to Appellee’s
Sur

- Reply was served via e

- serve and e

- mail on this the 7 th day of December , 2015 , to the following: Maureen O’Connell Texas Bar No. 00795949 Southern Disability Law Center 1307 Payne Avenue Austin, Texas 78757 Teleph one: 512

- 458

- 5800 Fa csimile : 512

- 458

- 5850 moconnell458@gmail.com Attorney for Appellee /s/ Kara Holsinger KARA HOLSINGER Assistant Attorney Genera l