Florida Medicaid Recipients Entitled to Notification of Reasons for Denial of Prescription Drug Coverage and Steps They Can Take to Appeal Denial

Hernandez v. Medows,  No. 02-20964-Civ-Gold/Simonton (S.D. Fla. order 5/21/03); 12(24) BNA's Health Law Reporter 925-26 (June 12, 2003)

Under a settlement agreement approved by a federal judge, Florida Medicaid recipients who are denied prescription drug coverage will be notified in writing of the reason for the rejection and what steps they can take to appeal the decision. In addition, the Florida agency responsible for these determinations, the Agency for Health Care Administration (AHCA), agreed to provide the services of an ombudsman office to assist in resolving claim reimbursement problems.  The agreement also provides for emergency coverage if a pharmacist believes failure to receive a drug could result in a serious health threatening situation.  In addition, the AHCA agreed to pay for brand name drugs if a physician asserts they are medically necessary...

Found in DMHL Volume 23 Issue 1

Oklahoma May Violate the ADA by Imposing a Five-Prescription Per Month Cap on Medicaid Recipients Receiving Services at Home

Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003); 72(4) U.S. Law Week 1056 (Aug. 5, 2003)

Oklahoma may be violating the Americans with Disabilities Act (ADA) by imposing a five­ prescription per month cap on Medicaid recipients who receive their state-funded services at home rather than in a nursing facility.  Oklahoma, as part of an optional federal Medicaid waiver program in which it participates, allows individuals who meet the level of care required for institutionalization in a nursing facility to live at home and receive state-funded medical care.  Until September 2002, participants were entitled to an unlimited number of state-paid medically necessary prescriptions.  At that point, responding to a budgetary shortfall, the cap was put into operation, although patients in nursing facilities continued to receive unlimited prescriptions.  The state anticipated that capping the number of prescriptions available would save the state $3.2 million...

Found in DMHL Volume 23 Issue 1

ADA Expands Range of Individuals that May Be Entitled to Medicaid Funded Home and Community Based Health Care

Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003)

The Ninth Circuit joins many other courts that have grappled with the scope of the Americans with Disabilities Act (ADA) and its impact on Medicaid waiver programs.  The state of Washington participates in the federal Medicaid program that provides federal financial assistance to states that choose to reimburse certain costs of medical treatment for needy persons.  Participation by states in this program generally is optional but a state receiving Medicaid funds must comply with the requirements of the Medicaid Act.  An exception to this rule is the Medicaid waiver program under which certain Medicaid requirements can be waived for innovative or experimental state health care programs.  The programs encouraged by the waiver program include increased provision of home and community based health care to Medicaid recipients who would otherwise only qualify for nursing home care....

Found in DMHL Volume 23 Issue 1

Psychiatrist as HMO Team Leader May Be "Treating Source" Whose Opinion Is Entitled to Greater Weight in Social Security Disability Determination Even Though Psychiatrist Has Minimal Patient Contact

Benton v. Barnhart, 331 F.3d 1030 (9th Cir. 2003); 71(49) U.S. Law Week 1790 (June 24, 2003)

The Ninth Circuit held that the lead psychiatrist on a patient's managed care treatment team may be considered a "treating" source whose opinions are entitled to greater weight in Social Security disability proceedings even though the psychiatrist has minimal contact with the patient and most of the direct patient contact is provided by others on the managed care treatment team...

Found in DMHL Volume 23 Issue 1

HMOs Cannot Recover from Tobacco Industry Costs of Treating Members' Smoking-Related Illnesses

Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753 (8th Cir. 2003); 12(38) BNA's Health Law Reporter  1472-73 (Sept. 25, 2003)

The Eighth Circuit ruled health maintenance organizations (HMOs) cannot recover from tobacco companies the costs of treating its subscribers' tobacco-related illnesses. Four Minnesota HMOs had sued several tobacco manufacturers and associated groups, alleging the tobacco industry conspired to mislead the public and the health care industry regarding the addictive effects of tobacco use and that the HMOs suffered indirect injury because they were required to assume the medical costs their members sustained as a result of their tobacco use. The court determined the HMOs failed to provide adequate evidence of the damage they suffered in paying for smoking-related illnesses because their expert witness presented only a "speculative" calculation of the costs they incurred....

Found in DMHL Volume 23 Issue 1

HMOs Not Required to Disclose Financial Incentives Used to Encourage Health Care Providers to Ration Care Except Under Limited Circumstances

Horvath v. Keystone Health Plan, 333 F.3d 450 (3d Cir. 2003); 72(4) U.S. Law Week 2063 (Aug. 5, 2003)

Disagreeing with the Eighth Circuit, the Third Circuit held that a health maintenance organization (HMO) does not breach its fiduciary duties under the Employee Retirement Income Security Act (ERISA) when it fails to disclose the financial incentives it provides to health care providers to ration care unless (1) a member of the HMO requests such information, (2) circumstances have put the HMO on notice that its members require such information to avoid making bad decisions regarding their health care coverage, or (3) an HMO patient was harmed as a result of not having such information disclosed to them...

Found in DMHL Volume 23 Issue 1

Health Insurer Not Entitled to Recover Subrogation Claims for Deceptive Tobacco Industry Marketing Activities but May Be Able to Recover on Direct Claim

Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris USA Inc., 344 F.3d 211 {2d Cir., 2003); 12(38) BNA's Health Law Reporter 1473-74 (Sept. 25, 2003)

The Second Circuit ruled a health insurer was not entitled to recover over $11.8 million on subrogation claims associated with treating the tobacco-related illnesses of the individuals it insured. The insurer argued the tobacco companies engaged in a scheme to distort public knowledge of the risks of smoking and this behavior resulted in the insurer paying increased costs for medical services provided to subscribers with smoking-related medical conditions. The court determined the insurer failed to adequately define the identities and claims of those individuals whose rights it was asserting and thus this claim must be dismissed...

Found in DMHL Volume 23 Issue 1

Ruling that Physician Can Be Excluded from Federal Health Programs for Factors Not in Place at Time of Misconduct Not Disturbed

Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 123 S. Ct. 2652 (2003)

The Supreme Court declined to review a ruling by the Eleventh Circuit that upheld a decision by the Department of Health and Human Services (HHS) to exclude for ten years from all federal health programs a physician who pleaded nolo contendere to a charge of sexual battery of a patient.  The Eleventh Circuit ruled HHS could rely on two aggravating factors in excluding the physician beyond the five-year period provided by statute, even though those factors were added after the occurrence of the physician's conduct.  HHS was permitted to consider that the doctor engaged in a non-consensual sexual act and that his medical license was revoked as a result of the conduct because the regulations adding these factors were intended to protect federal medical program recipients.  Thus, their retroactive application was permissible because they were remedial rather than punitive....

Found in DMHL Volume 23 Issue 1

Ruling that State Settlement of Tobacco Litigation Satisfies Liens Against Medicaid Recipient's Estate for Health Care Costs Related to Smoking Not Disturbed

In re Raduazo, 814 A.2d 147 (N.H. 2002), cert. denied, New Hampshire Dep't of Health and Human Services v. Estate of Raduazo, 123 S. Ct. 2610 (2003); 12(26) BNA's Health Law Reporter 1020 (June 26, 2003)

The Supreme Court declined to review a ruling that New Hampshire's tobacco litigation settlement with major tobacco companies barred it from also recovering Medicaid expenditures from the estate of a woman who died from smoking-related causes.  The New Hampshire Supreme Court determined the settlement, in which a number of states agreed to release tobacco companies from further claims in exchange for a stream of payments, satisfied New Hampshire's
$169,765.16 lien against the Medicaid recipient's estate. The New Hampshire Supreme Court was not swayed by a series of rulings that have rejected attempts by individual smokers to obtain access to the tobacco settlement fund. The New Hampshire Supreme Court concluded the payments made pursuant to the tobacco settlement were made, in part, to reimburse the state for the health care costs it paid through the Medicaid program on behalf of individuals such as this woman and to allow the state to also collect for these expenses from the woman's estate would unjustly enable the state to collect the money to which it is entitled twice...

Found in DMHL Volume 23 Issue 1

"Treating Physician Rule" for Making Disability Benefit Determinations Under Employee Benefit Plans Rejected

Black & Decker Disability Plan v. Nord, 123 S. Ct. 1965 (2003); 71(45) U.S. Law Week  1720 (May 27, 2003)

The Supreme Court unanimously held that although special weight is given to a claimant's treating physician (the "treating physician rule") in determining whether a claimant is entitled to Social Security disability benefits, an administrator of an employee benefit plan is not required to similarly give preferential weight to the opinion of an employees' treating physician.  Such benefit plans are governed by the federal Employee Retirement Income Security Act (ERISA).  The Ninth Circuit had ruled that ERISA, like the Social Security Act, imposed the "treating physician rule."  The Supreme Court rejected this position and determined a plan administrator was free to give greater weight to the conclusions of a physician who conducted an independent assessment at the behest of the plan administrator than to the employee's treating physician.  The Court concluded employee benefit plans were best served by preserving for them the greatest flexibility possible in their processing of employee health benefit claims....

Found in DMHL Volume 23 Issue 1

Time Period File Malpractice Claim Asserting She Was Not Warned Mental Illness Medication Might Cause Birth Defects Begins at Time of Child's Birth, Not When Ultrasound First Showed Birth Defects

Bailey v. Khoury, 891 So. 2d 1268 (La. 2005)

Every jurisdiction  imposes a limit on how long individuals can wait to file a lawsuit that claims they were injured as the result of the malpractice of a health care provider.  This limit, which is typically one or two years in length, generally runs from the time individuals discover they have been injured. If they wait beyond this time, they are generally precluded from pursuing their claim...

Found in DMHL Volume 24 Issue 2

New York Antidiscrimination Insurance Law Does Not Require Parity in Coverage for Physical and Mental Disabilities

In re Polan v. New York Ins. Dep't, 814 N.E.2d 789 (NY 2004)

Efforts have been launched across the country to enhance the benefits available to individuals with a mental illness under employer-provided health care plans.  Such plans often include long-term disability insurance coverage that provides income or other benefits for an employee that becomes disabled.  For a physical disability, this coverage may last as long as the disability continues or until the age of 65 when Social Security and Medicare benefits become available.  For a mental disability, however, this coverage may be limited to a given period of time, such as two years, notwithstanding that the mental disability may be chronic and leaves the individual unable to work...

Found in DMHL Volume 24 Issue 1

Medicaid-Eligible Adults Who Are Mentally Retarded Can Sue State for Failure to Provide Community-Based Intermediate Care Facilities

Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004)

The Medicaid Act furnishes funds to the states to help them provide medical assistance to eligible low-income individuals.  Although states are not required to participate in such programs, if they accept federal funding they must comply with the Medicaid Act and related federal regulations...

Found in DMHL Volume 24 Issue 1

Employee Who Was Sexually Assaulted at a Correctional Facility for Inmates with Psychiatric Problems Can Only Turn to Workers' Compensation for Recovery

Gilbert v. Commonwealth,  No. 03-199 (Va. Cir. Ct. June 3, 2004)

In general, when employees are injured in the course of work, they must turn to a state-run workers' compensation plan for recovery. These plans are intended to ensure compensation in a quick and reliable manner and do not require employees to show that the employer was at fault in connection with the injury. At the same time, the worker's compensation plan also places limitations on the size of the damages that can be recovered...

Found in DMHL Volume 24 Issue 1

Mental Illness Can Serve as a Basis for Discharging Student Loans

Reynolds v. Pa. Higher Educ. Assistance Agency, 425 F.3d 526 (8th Cir. 2005)

Under federal bankruptcy law, an individual can be excused from repaying student loans if the debt "will impose an undue hardship on the debtor."  Ordinarily, the focus is on whether repaying the debt will not prevent a minimal standard of living after factoring in the individual's current and future financial resources and expenses.  The Eighth Circuit of the U.S. Court of Appeals ruled that the impact of the individual's mental health should also be taken into account when (1) the individual's mental health affects her past, current, and future earnings and (2) when the stress of the debt is likely to affect the individual's mental health adversely, causing an even greater decline in her earnings...

Found in DMHL Volume 25 Issue 2

Misrepresentations by Insurance Plan of Availability of Mental Health Benefits Can Not Serve as Basis for Consumer's Claim of Common-Law Fraud

Va. Acad. of Clinical Psychologists v. Group Hospitalization & Med. Servs., Inc., 878 A.2d 1226 (D.C. 2005)

Individuals contemplating enrollment in a behavioral managed care plan are typically provided a description of available mental health services.  When these services are not forthcoming following enrollment, they may file a legal claim against the administrators of the plans that asserts that the advertisements  and materials they were provided were misleading and thus fraudulent...

Found in DMHL Volume 25 Issue 1

Coverage Denied Under Homeowner's Insurance Policy Because Acts That Resulted from Mental Illness Considered "Intentional" Acts; Ruling Not Disturbed

Hastings Mut. Ins. Co. v. Rundell, No. 238549, 2003 WL 21508515 (Mich. Ct. App. July 1, 2003), cert. denied, 126 S. Ct. 372 (2005)

For no apparent reason, a married couple's son shot a woman outside a health care facility.  They and their son, who lived with them, were sued by the shooting victim.  They attempted to rely on their homeowners' insurance policy to cover damages that might be awarded to the shooting victim.  The insurance company responded that the policy did not apply because it specifically excluded intentional acts from coverage.  The family argued the policy did apply because their son suffered from schizophrenia at the time and their son's actions were not intentional...

Found in DMHL Volume 25 Issue 1