State May Not Specifically Exclude a Hot Tub from Medicaid Coverage

Colorado violates federal Medicaid law by specifically excluding certain items of durable medical equipment (DME) from Medicaid coverage, an appeals court has ruled. T.L. v. Colorado Department of Health Care Policy and Financing (Col. Ct. App., No. 00CA1691, October 25, 2001)

T.L., a recipient of Medicaid home health coverage, suffers from a hereditary form of arthritis that causes him chronic hip pain. In 1999, one of T.L.'s physicians requested Medicaid program approval for the purchase of a hot tub as therapy for his arthritis. The Colorado Department of Health Care Policy and Financing denied the request. T.L. filed an administrative appeal, arguing that the Department's regulation, § 8.593.06(B), violates federal Medicaid law because it improperly excludes hot tubs and certain other DME from Medicaid coverage, regardless of medical necessity. An administrative law judge granted the Department's motion for summary judgment. T.L. sought judicial review, also asserting a claim under 42 U.S.C. § 1983. The district court, too, entered summary judgment for the Department.

The Colorado Court of Appeals reverses, concluding that § 8.593.06(B) is invalid because its categorical exclusion of DME items deprives a recipient of a reasonable and meaningful procedure for requesting a DME item that may be medically necessary. The court rejects the Department's reliance on DeSario v. Thomas, 139 F.3d 80 (2d Cir. 1998), which held that Connecticut was not required to cover medically necessary DME items under its Medicaid plan so long as the health care provided was adequate with respect to the needs of the Medicaid population as a whole. The Colorado court notes that in response to that decision, the Health Care Financing Administration (HCFA) issued a letter on September 4, 1998, expressly rejecting the "population as a whole" test because it failed to afford a Medicaid applicant a meaningful opportunity to seek a modification or exception. Following issuance of the HCFA letter, the United States Supreme Court, vacated the ruling in DeSario (since called Slekis v. Thomas, 525 U.S. 1098, 119 S.Ct. 864, 142 L.Ed.2d 767 (1999), and remanded for further consideration "in light of the interpretive guidance issued by [HCFA] on September 4, 1998."

The court remands the case for the ALJ to address whether hot tub therapy is, in fact, medically necessary for T.L.'s treatment and care; whether, and at what cost, T.L. could obtain such therapy outside the home; whether a hot tub is within the definition of DME under federal and Colorado law; and whether the primary purpose of the hot tub is to enhance T.L.'s personal comfort. Because it has not yet been determined whether T.L. has a right to coverage, the court declines to address his § 1983 claim.

For the full-text of this decision, go to: https://caselaw.findlaw.com/co-court-of-appeals/1427307.html

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