Health Law Daily Washington Medicaid ordered to provide private duty nursing to medically needy infants
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Monday, January 11, 2016

Washington Medicaid ordered to provide private duty nursing to medically needy infants

By Mary Damitio, J.D.

The Washington State Health Care Authority (HCA) has been risking the health and welfare of group of infants and toddlers (beneficiaries) with complex medical needs by failing to provide them with in-home, private duty nursing services, a district court found in granting a preliminary injunction. The beneficiaries met the heightened standard for a mandatory injunction and demonstrated that they were likely to succeed on their claims that HCA violated their civil rights by failing to comply with the Medicaid Act and the Americans with Disabilities Act (ADA) (A.H.R. v. Washington State Health Care Authority, January 7, 2016, Robart, J.).

Nursing services. The beneficiaries suffer from complex medical needs and are entitled to in-home, private duty nursing services for at least 16 hours per day under the Medicaid program. However, none of the beneficiaries received that amount of nursing care in their homes because the home health agency that provides nursing services to Medicaid beneficiaries in the state was unable to recruit qualified nurses to work for the Medicaid pay rates, which had not been increased since July 2007.

Lawsuit. A suit was brought on behalf of the beneficiaries alleging that HCA violated their civil rights by failing to comply with the Medicaid Act (42 U.S.C. §§1396a(8),(10)(B)), Title II of the ADA, and Section 504 of the Rehabilitation Act of 1973 (P.L. 93-112). The beneficiaries moved for a mandatory preliminary injunction requiring HCA to provide them with 16 hours per day of in-home, private duty nursing care.

Success on merits. The beneficiaries were likely to succeed on their claims that HCA violated the Medicaid Act by failing to provide and arrange for medical assistance with reasonable promptness. The court pointed to Section 2304 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), which amended the Medicaid Act, and found that it clarified that the term “medical assistance” (42 U.S.C. §1396d(a)) to require states to provide services and not merely pay for them. The court also noted that its finding was supported by the House Committee Report on the ACA and four decades of regulations and guidance from HHS.

The beneficiaries also showed a likelihood of success on the merits of their ADA claims. Under Title II of the ADA, HCA has an obligation to provide the private duty nursing services in the most integrated setting that is appropriate for the beneficiaries’ needs. The court rejected HCA’s argument that residential group homes were the most integrated settings and noted that it may be true for disabled adults, but not for infants and toddlers. The most integrated settings appropriate for the beneficiaries’ needs were their family homes.

Irreparable harm. The beneficiaries established that they were likely to suffer irreparable harm in the absence of a preliminary injunction. The beneficiaries submitted evidence that the placement of infants and toddlers in institutional settings or group homes can significantly impact their physical and mental health.

Hardships, public interest. The balance of equities and the public interest favored the beneficiaries because the expenses incurred by HCA during the pendency of the litigation did not outweigh the harm the absence of the benefits would cause. The Ninth Circuit has also recognized the “robust public interest” in safeguarding Medicaid enrollees’ access to health care.

Additionally, it was not clear that HCA would save any money by failing to provide the in-home care because institutionalized or group home care is more expensive.

The case is No. C15-5701JLR.

Attorneys: Scott Crain, Northwest Justice Project, for A. H. R. Nissa Ann Iversen, Washington State Attorney General, and William T. Stephens, Washington Attorney General's Office, for Washington State Health Care Authority.

Companies: Washington State Health Care Authority

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