Friday, December 18, 2009

How easy it is for a state to violate a child's legal rights

Two decisions handed down recently by a Federal Judge in Georgia could have a major impact on how our children are evaluated for and receive services.  It's a positive impact, that actually gives parents and caregivers, together with their childs' treating doctors and therapists, control over the decision-making process.

EPSDT (Early Periodic Screening, Detection and Treatment) has been around for years, providing all children on Medicaid under the age of 21 with any treatment a doctor says is "medically necessary."

But it's been an equally long process of court cases to convince states, often one by one by means of class action suits, to meet this legal requirement.

The two decisions in Georgia make it clear that decisions over treatment made by treating practitioners take precedence over state agency and/or contractor decisions that have no grounding in medical necessity.

The decisions also make it clear that EPSDT provides our children with a legal right that is "individually enforceable."  What that means is that any of us whose children have suffered harmful service cuts due to bureaucratic decision-makers can hold the state as well as any private contractors providing Medicaid agency services responsible and accountable. 

Here in Hawaii, we have a perfect example of how insidiously the state, and the two for-profit insurance companies contracted to provide EPSDT and Medicaid waiver services can violate our kids' legal rights.

First, there is a federal law (42 USC 1396a(a)43) that requires the state and its Medicaid delivery companies to make sure everyone eligible for EPSDT is educated on all the services they can receive through EPSDT. 

Hawaii's two for-profit health insurance companies, which signed contracts with the state worth together about $2.5 billion are Evercare, owned by Unitedhealth, and Ohana, owned by Wellcare.

Here is what Evercare has to say about EPSDT in their membership manual that is available online:

What are EPSDT services?
Children under 21 years of age may receive EPSDT services.
EPSDT services include shots and screenings that children
need to stay healthy. Your Service Coordinator can talk to
you about the EPSDT services your child needs and help
you schedule appointments.

Here is what Ohana tells its clients about EPSDT in their online membership manual:

EPSDT (Early and Periodic Screening, Diagnosis and Treatment) Well-Child Visits
Regular health exams for children. They are used to find and treat medical problems.

‘Ohana covers well-child checkups for all members from age 0 to 21. We want to make sure kids visit their PCPs at an early age. This is important for a child’s health later in life.

Neither manual meets federal legal requirements for EPSDT notification. 

Hopefully somebody will notice soon and do something about it.

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About Me

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I'm the mom of a child with disabilities. Hannah's first neurologist said she might never develop beyond the level of a 2 month old infant, and there wasn't anything I could do about it. The brain damage was just too severe. Nine years later, she walks, uses a touchscreen computer and I've just been shown she can learn to construct sentences and do simple math with the right piece of technology. Along the way, I discovered I needed to teach myself what Hannah's rights to services really were. Learning about early intervention services led to reading about IDEA and then to EPSDT. I've been waiting for the Obama administration to realize the power and potential of EPSDT for the medical rights - including the right to stay at home with their families - of children with disabilities. The health reform people talk about long term care, and the disability people talk about education and employment, but nobody is talking about EPSDT. So I am.