Health Law Daily Wrap Up, GENERAL HEALTH CARE NEWS—11th Cir.: Georgia’s review process for minors’ nursing services hours satisfied the Medicaid Act, (Aug 15, 2024)

By Jeffrey H. Brochin, J.D.

A state’s consideration of treating physician’s recommendation is sufficient if the state evaluates the medical necessity for amount of nursing care prescribed for the patient’s condition, even if the state does not defer to the treating physician’s prescription.

The United States Court of Appeals for the Eleventh Circuit has reversed the District Court’s entry of summary judgment in favor of disabled minor patients, and vacated the permanent injunctions entered against the Commissioner of the Georgia Department of Community Health (Commissioner or state) in a class action lawsuit brought on behalf of severely disable minor patients (Patients). The Patients had challenged the Commissioner’s practices for determining the number of skilled-nursing hours to which the Patients were entitled, and the reduction in those hours as caregivers learned to perform the requisite skilled tasks. Although it was clear that the Commissioner was required to consider the recommendation of treating physicians when weighing the number of skilled-nursing hours for a patient, the state was still permitted to review the medical necessity of the amount of nursing care prescribed by the treating physician and make its own determination of medical necessity (M.H. v. Commissioner of the Georgia Department of Community Health, No. 22-12071, (11th Cir. Aug. 12, 2024)).

Coverage of Early and Periodic Screening, Diagnostic, and Treatment. The Medicaid Act includes a jointly financed federal-state cooperative program designed to help states furnish medical treatment to a state’s needy citizens. The provision of some services is mandatory, and the provision of other services is discretionary, but even if the Act mandates that a state provide a certain kind of medical services or treatments, the state must provide those medical services or treatments only if they are ‘medically necessary’.

In 1989 Congress amended the Medicaid Act to broaden the categories of services that participating states must provide to Medicaid-eligible children The Amendment requires participating states to provide early and periodic screening, diagnostic, and treatment services to all Medicaid-eligible persons under the age of 21, in order to provide low-income children with comprehensive health care. Early and periodic screening, diagnostic, and treatment services include screening services, vision services, dental services, hearing services, and other services to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services.

Georgia’s evaluation practices. The Commissioner administers the state Medicaid program providing private nursing services for “medically fragile children who qualify for Medicaid” through their pediatric program. Skilled-nursing services for program participants include tasks such as assessing the placement and efficacy of a gastrostomy tube, feeding a patient through a gastrostomy tube, administering oxygen via a ventilator, determining the need for medications and performing assessments. The Commissioner contracted with Alliant Health Solutions (Alliant), a private consulting organization, to review requests for in-home skilled nursing for patients in order to determine the number of skilled-nursing hours a patient should receive. A nursing agency, with approval from a patient’s treating physician, requests skilled-nursing services to enroll the patient in the pediatric program based on a scoresheet and its review by a team of professionals. A patient who is accepted into the program is approved for a certain number of skilled-nursing hours a week, and Alliant periodically reviews each patient’s case to determine the medically necessary number of skilled-nursing hours. The nursing agency or the patient’s physician can also submit a request to change the number of approved hours at any time.

Challenge to the state practices. The Patients filed a class action lawsuit claiming that the state did not give sufficient weight to the treating physician’s recommendations when evaluating medical necessity, and, that Alliant’s periodic reduction in the number of skilled-nursing hours (as caregivers learned to perform the skilled tasks) also violated the Medicaid Act.

The District Court entered summary judgment in favor of the Patients and also entered permanent injunctions enjoining the Commissioner as to the number of skilled-nursing hours that the Commissioner could approve for specific minor Patients. Presently before the Appeals Court was the Commissioner’s appeal from those District Court rulings.

Treating physicians’ recommendations. The Commissioner argued that the District Court erred when it granted summary judgment for the Patients on their challenge to the review process and issued permanent injunctions requiring the Commissioner to approve the skilled-nursing hours prescribed by the Patients’ treating physicians. He argued that precedent did not require the Commissioner to defer to the Patients’ treating physicians’ recommendations. The Patients countered that the review process unlawfully minimized the recommendation of their treating physicians in violation of the Medicaid Act. The Appeals Court noted that there was no dispute between the parties as to the requirement that the Commissioner consider the treating physicians’ recommendations; rather, the issue in contention was as to the weight given to such recommendations. In other words: did the Commissioner sufficiently consider the recommendations.

The Act required the Commissioner to provide private nursing services to the Patients only if the services were medically necessary, and, the Act guaranteed eligible persons under the age of 21 private nursing services as noted above. Furthermore, those services were required to be sufficient in amount, duration, and scope to reasonably achieve their purpose. However, the state was permitted to place appropriate limits on a service based on such criteria as medical necessity, and to provide private duty nursing services to patients who qualified if such services were medically necessary to correct or ameliorate a patient’s illness and condition.

Broad discretion to states. The Act and its implementing regulations permit states to set reasonable standards for the terms ‘necessary’ and ‘medical necessity.’ The Supreme Court has interpreted those relevant sections of the Act to confer broad discretion on the states to adopt standards for determining the extent of medical assistance, requiring only that such standards be ‘reasonable’ and ‘consistent with the objectives of’ the Act. Although a patient’s treating physician is a key figure and initially determines what amount of nursing services are medically necessary, a state may nevertheless still review the medical necessity of the amount of nursing care prescribed by the treating physician and make its own determination of medical necessity.

Review process satisfactory. Here, the Appeals Court determined that the Commissioner’s practices as carried out by the Alliant review process satisfied the standard for considering a treating physician’s recommendation. The Alliant scoresheet converted the patient’s conditions into a presumptive range of medically necessary skilled-nursing hours that the review team then discussed. The Commissioner only needed to evaluate a patient’s recommended treatment and decide the hours medically necessary to treat the patient’s conditions.

Although individual Patients might argue that the number of approved hours that they received did not satisfy the standard, that question was not before the Appeals Court; the only issue before them was the sufficiency of the review process, and that process was found to satisfy the Medicaid Act. Accordingly, the District Court erred in granting summary judgment for the Patients and in enjoining the review process.

Based on the foregoing, the Appeals Court reversed the summary judgments in favor of the Patients, vacated the permanent injunctions against the Commissioner, and remanded for further proceedings.

The case is No. 22-12071.

Judge: Pryor, W.

Attorneys: Joshua Norris (Law Office of Joshua H. Norris) for M.H., C.C. and H.K. Christopher Michael Carr, Attorney General's Office, for Commissioner of the Georgia Department of Community Health.

Companies: Commissioner of the Georgia Department of Community Health

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