Bontrager v. Indiana Family and Social Services Administration et al
Filing
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OPINION and ORDER: by Chief Judge Philip P. Simon: DENYING as Moot 5 Motion to Certify Class; GRANTING 6 Motion for Preliminary Injunction, GRANTING 22 Joint Stipulation to Certify Class and GRANTING 25 Joint Stipulation of Facts. A prelimina ry injunction, without bond, is therefore issued in this case (see Opinion). A Telephone Conference is now set for 11/10/2011 at 10:00 a.m. Parties to notify Case Mgmt Deputy by email by 11/8/2011 as to which atty will be participating in the conference call and what telephone number should be used to contact those attys. Signed by Chief Judge Philip P Simon on 11/4/2011. (nac)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SANDRA M. BONTRAGER, on her
own behalf and on behalf of a class of
those similarly situated,
Plaintiff,
v.
INDIANA FAMILY AND SOCIAL
SERVICES ADMINISTRATION,
MICHAEL A. GARGANO, and
PATRICIA CASSANOVA,
Defendants.
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3:11-cv-216
OPINION and ORDER
Sandra Bontrager is a Medicaid recipient living in Indiana and in need of serious dental
procedures including implants and abutments for her mandibular jaw. Everyone admits that
these procedures are “medically necessary” as defined by Indiana law. Nevertheless, the Indiana
Family and Social Services Administration (the agency that handles the state’s Medicaid
program) has refused to pay for these procedures because they exceed the new $1,000 annual
limit that the Administration has put on dental reimbursements. Bontrager has thus filed this
class action suit against the Administration and its individually named administrators
(collectively, the “State”), arguing that the State’s refusal to reimburse her (and others) for
medically necessary procedures in excess of $1,000 violates both Indiana and federal law.
Before the Court is Bontrager’s Motion for a Preliminary Injunction [DE 6], about which I held
an evidentiary hearing earlier this year [DE 26].
This disputes casts us into the byzantine world of state and federal Medicaid laws,
regulations, and cases. At bottom, however, the parties essentially agree that these laws,
regulations, and cases require the State to cover all medically necessary dental procedures. So
why are we here? Neither party frames their dispute quite this way, but their disagreement is
really over what it means to “cover” a procedure: Plaintiffs argue that the State can only really
“cover” medically necessary dental procedures by fully paying for them; the State argues that it
can “cover” medically necessary expenses by partially paying for them.
I think this is a close question, but as explained in detail below, I have decided that the
State is required to fully cover medically necessary dental expenses. Plaintiffs’ Motion for a
Preliminary Injunction will therefore be GRANTED.
FACTUAL BACKGROUND
I’ll start with the facts, which are essentially undisputed. The Medicaid program is
jointly funded by the states and the federal government. It pays for medical services to
low-income individuals pursuant to state plans approved by the Secretary of the Department of
Health and Human Services. See 42 U.S .C. § 1396a(a)-(b). Indiana’s Medicaid program is
administered by the Office of Medicaid Policy and Planning, a subdivision of the Family and
Social Services Administration. States are not required to include dental services in their
Medicaid coverage, but Indiana has chosen to do so. See 405 IAC 5-14-1, et seq.
Before Indiana will pay for certain dental services, the State must determine whether
those services constitute a “medically reasonable and necessary service” as defined by 405 IAC
5-2-17. The State has thus put in place preauthorization procedures to ensure that any given
service is covered by Medicaid and will be paid. Indiana has contracted with a private company,
Advantage Health Solutions (“Advantage”), to handle the preauthorization process and to make
a determination as to whether a requested service is a “medically reasonable and necessary
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service” as defined by 405 IAC 5-2-17. For each preauthorization request, Advantage reviews
the specific medical facts and opinions of the provider and makes an independent determination,
based upon Advantage’s independent medical expertise, that the requested services are required
for the care and well being of the patient and are provided in accordance with accepted standards
of medical or professional practice.
Plaintiff Sandra Bontrager is enrolled in the Medicaid program. In 2009, Bontrager’s
dentist determined that Bontrager needed two endosteal implants and two implant abutments for
her mandibular jaw. The dentist thus submitted an “Indiana Prior Review and Authorization
Dental Request” for these procedures to Advantage. Advantage denied the prior review request
on the grounds that the procedures were not “covered dental services.”
Some 15 months worth of appeal procedures unfolded from that point. In the end it was
determined that Bontrager’s requested dental services were in fact “covered services” as defined
under 405 IAC 5-2-6 and were “medically reasonable and necessary services” as defined by 405
IAC 5-2-17. With these determinations, Bontrager resubmitted her preauthorization request
fully expecting that she could finally get her dental work done.
The State’s response must have puzzled Ms. Bontrager. She was told that, although it
recognized that the services had been determined to be covered and medically necessary, the
approved dollar amount for these services was $0.00. In a subsequent letter, Patricia Casanova,
Director of Medicaid in the Office of Medicaid Policy and Planning, stated that “state
regulations limit reimbursement of dental services to one thousand dollars ($1000) per recipient
per twelve (12) month period.” This $1,000 annual limit on Medicaid payment for dental service
– newly implemented as of January 1, 2011 – applies regardless of whether a given service has
3
been determined to be medically reasonable and necessary.
The State implemented the cap as a way to save money (potentially millions of dollars
annually) while still covering the vast majority of Medicaid recipients. It seems like a sensible
thing to do since more than 99% of Indiana Medicaid participants have annual dental costs of
less than $1,000. So the new plan still enables 99 out 100 Medicaid recipients to obtain the
dental care that they need. According to the State, invalidating the $1,000 cap could well lead to
the discontinuation of the dental program altogether, meaning that no participant would receive
the dental care that they need. (Recall that the State isn’t mandated to provide any dental
services.)
Bontrager brings this suit on her own behalf and on the behalf of a similarly situated class
on the grounds that the State’s refusal to pay for services that have been deemed medically
necessary violates both Indiana and federal law. Plaintiffs’ Complaint seeks a declaratory
judgment that the $1,000 annual cap is a violation of Indiana and federal law. The parties have
stipulated to the following class:
All past, current and future Indiana Medicaid enrollees age twenty-one and older,
who from January 1, 2011 (when the $1,000 cap took effect) forward, need, have
needed, or will need coverable dental services that are administratively or
judicially determined to be medically necessary, that are routinely provided in a
dental office, and that cost more than $1,000 per twelve month period.
[DE 22 at 2.]
DISCUSSION
The sole substantive question at issue in this case is whether the State can place a $1,000
annual limit on dental services, including procedures deemed medically necessary. But before
we get there, there is a question whether Bontrager has a private right of action to bring this suit.
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As explained below, I ultimately conclude (with reservations) that a private right of action exists
and that the $1,000 annual cap runs afoul of Indiana and federal Medicaid laws.
I. Private Right of Action under 42 U.S.C. §1396a(a)(10)
The first issue is whether Plaintiffs have a private right of action to bring this suit under
42 U.S.C. § 1983. A person bringing a viable § 1983 claim must first allege a violation of a
federal statutory or constitutional right – not merely a violation of a federal law. See Blessing v.
Freestone, 520 U.S. 329, 340 (1997). To do this, a plaintiff bears the burden of showing that the
statute at issue was intended to create an enforceable right. Gonzaga Univ. v. Doe, 536 U.S. 273,
283–84 (2002). The Supreme Court has emphasized that “it is rights, not the broader or vaguer
‘benefits’ or ‘interests’ that may be enforced under the authority of [§ 1983].” Id. at 283
(emphasis in original).
Blessing explains how courts should determine whether a statute creates an enforceable
right. Specifically, it directs courts to consider whether:
(1) “Congress intended that the provision in question benefit the plaintiff”; (2) the
plaintiff has “demonstrated that the right assertedly protected by the statute is not
so ‘vague and amorphous’ that its enforcement would strain judicial
competence”; and (3) “the statute unambiguously imposes a binding obligation on
the States,” such that “the provision giving rise to the asserted right is couched in
mandatory, rather than precatory terms.”
Ball v. Rodgers, 492 F.3d 1094, 1104 (9th Cir. 2007) (quoting Blessing, 520 U.S. at 340–341).
If all three elements are satisfied, a federal right is “presumptively enforceable by § 1983,
subject only to a showing by the state that Congress specifically foreclosed a remedy under §
1983.” Id. at 1116 (citation and internal quotations omitted).
Plaintiffs bring this case pursuant to 42 U.S.C. §1396a(a)(10). This section of the
Medicaid Act, with more than 50 different subparts, is something of a labyrinth. But at its core §
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1396a(a)(10) is focused on providing all Medicaid recipients with equal access to care. It
requires that state Medicaid plans “provide for making medical assistance available . . . to . . . all
individuals” who are qualified enrollees of the program . 42 U.S.C. §1396a(a)(10)(A)(i). This
subsection has been referred to as the “minimum services” provision. K & A Radiologic Techn.
Servs., Inc. v. Comm’r of Dept., 189 F.3d 273, 280 (2d Cir. 1999). Section 1396a(a)(10) also
requires that a state Medicaid plan provide “that the medical assistance made available to any
individual . . . shall not be less in amount, duration, or scope than the medical assistance made
available to any other such individual.” 42 U.S.C. § 1396a(a)(10)(B)(i). This subsection has been
referred to as the “comparability of services” provision. Clark v. Coye, 60 F.3d 600, 602 (9th
Cir. 1995).
So as I understand Plaintiffs’ claim, Indiana’s refusal to exceed the $1,000 annual cap to
cover their medically necessary dental procedures violates § 1396a(a)(10) because by doing so
Indiana’s state plan is no longer “making medical assistance available” to “all individuals.” And
since the cap prevents some individuals from receiving medically necessary services, the State
plan is now providing some recipients with more favorable medical assistance, which violates
the requirement under § 1396a(a)(10)(B)(i) that medical assistance “shall not be less in amount,
duration, or scope” among various recipients.
So does §1396a(a)(10) create an unambiguous private right of action under the standards
articulated in Blessing and Gonzaga? As Plaintiffs correctly point out, “virtually every court that
has addressed the enforceability of 42 U.S.C. §1396a(a)(10) has held that it meets the Blessing
standard and is privately enforceable.” [DE 11 at 2.] See Miller ex rel. Miller v. Whitburn, 10
F.3d 1315, 1319–21 (7th Cir. 1993); Spry v. Thompson, 487 F.3d 1272, 1275–76 (9th Cir. 2007);
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Watson v. Weeks, 436 F.3d 1152, 1159–62 & n.8 (9th Cir. 2006); S.D. ex rel. Dickson v. Hood,
391 F.3d 581, 602–07 (5th Cir. 2004); Sabree v. Richman, 367 F.3d 180, 190–93 (3rd Cir. 2004);
Pediatric Specialty Care, Inc. v. Arkansas Dep’t of Human Servs., 293 F.3d 472, 478–79 (8th
Cir. 2002); Westside Mothers v. Haveman, 289 F.3d 852, 862–63 (6th Cir. 2002); Crawley v.
Ahmed, 2009 WL 1384147, at *18–19 (E.D. Mich. May 14, 2009); Michelle P. ex rel.
Deisenroth v. Holsinger, 356 F. Supp. 2d 763, 767 (E.D. Ky. 2005); Health Care for All, Inc. v.
Romney, 2004 WL 3088654, at *2 (D. Mass. Oct. 1, 2004); Memisovski ex rel. Memisovski v.
Maram, 2004 WL 1878332, at *9-10 (N.D. Ill. Aug. 23, 2004); Kenny A. ex rel. Winn v. Perdue,
218 F.R.D. 277, 293–94 (N.D. Ga. 2003).
The Seventh Circuit’s Miller decision is of particular importance since of course it is
binding on me. The State has tried to discount Miller on the grounds that it was decided prior to
Blessing and Gonzaga. [DE 21 at 6, n.2.] But as Plaintiffs rightly point out, Miller applied the
three-prong test of Wilder v. Virginia Hospital Assoc., 496 U.S. 498 (1990), which Blessing and
Gonzaga both analyzed (and did not overturn) and which the Seventh Circuit has held is still
good law: “[a]lthough Gonzaga University may have taken a new analytic approach, courts of
appeals must follow the Supreme Court’s earlier holdings [i.e., Wilder] until the Court itself
overrules them.” Bertrand v. Maram, 495 F.3d 452, 456-57 (7th Cir. 2007). See also Sabree,
367 F.3d at 192 (Blessing and Gonzaga elaborated on, but did not overrule, the Wilder standard).
Just as courts of appeals must follow Supreme Court precedent, so to must district courts
follow decisions by courts of appeals unless and until they have been explicitly overturned.
Donohoe v. Consol. Operating & Prod. Corp., 30 F.3d 907, 910 (7th Cir. 1994). Thus, given
Miller and the abundance of other decisions in agreement, I can hardly reach any other
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conclusion but that a private right of action exists under 42 U.S.C. §1396a(a)(10).
Were I not bound by this precedent, however, I would almost certainly follow the
analysis of the issue in Casillas v. Daines, 580 F. Supp. 2d 235 (S.D.N.Y. 2008). In Casillas, the
plaintiff brought a § 1983 action based on § 1396a(a)(10)(A) that challenged a New York
Medicaid regulation that disallowed reimbursement for gender reassignment treatment and
services. Id. at 237. The court dismissed the suit on the grounds that § 1396a(a)(10)(A) was not
sufficiently definitive to be read to have unambiguously conferred a private right of action.
In reaching this conclusion, the court focused on 42 C.F.R. 440.230(d) – which, as
discussed in depth later in this opinion, is one of the key federal regulations interpreting §
1396a(a)(10)(A). This section of the federal regulations states that Medicaid agencies “may
place appropriate limits on a service based on such criteria as medical necessity or on utilization
control procedures.” 42 C.F.R. 440.230(d). Casillas focused on the phrase “utilization control
procedure” and found that it did not meet the Blessing and Gonzaga standards of conferring an
unambiguous private right of action. As Casillas explained:
The inclusion of “utilization control procedures” as an express basis for
“appropriate limits” has several important implications for this case. It captures
concepts that do not relate to the care of any one particular patient but looks to
actual or expected utilization over a broader population. This focus is inconsistent
with a right conferred upon an individual or class of individuals. The “right”
conferred in section 1396a(a)(10)(A) is not unambiguously conferred upon any
individual or class of individuals because it is subject to “appropriate limits”
which are based upon state-wide resources and patterns of usage. . . . Because
section 1396a(a), as authoritatively construed, allows for categorical limits on
treatments, it follows that [section 1396a(a)(10)(A)]cannot be said to have
unambiguously conferred a right upon this plaintiff to a particular service or
treatment.
580 F. Supp. 2d at 242-43.
Moreover, even if it could be said that the statute unambiguously conferred a private
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right of action, the term “utilization control procedures” is so vague and amorphous in meaning
that it cannot meet the second Blessing requirement. Here’s how Casillas explained the
problem:
[Utilization control procedures] is susceptible to multiple plausible interpretations
and lacks a fixed meaning. In terms of the second Blessing element, it is a “vague
and amorphous” concept, the application of which would, therefore, strain
judicial competence. “This is not an instance where a court could readily
determine whether a state is fulfilling these statutory obligations by looking to
sources such as a state’s Medicaid plan, agency records and documents, and the
testimony of Medicaid recipients and providers.” The protections could hardly be
characterized as “clear and specific.” Further, the regulation is not limited to
“medical necessity” or “utilization control procedures” and a state may also
employ other “such criteria” in framing “appropriate limits.” This enhances the
vagueness problem.
Id. at 243 (citations omitted).
I find it hard to fault this logic. Indeed, part of the remainder of this Opinion is a struggle
with the “multiple plausible interpretations” of “utilization control procedures,” and to my mind
that struggle is compelling evidence that “the right assertedly protected by” section
1396a(a)(10)(A) is “so vague and amorphous that its enforcement . . . strain[s] judicial
competence.” Blessing, 520 U.S. at 340-41 (quotations omitted).
Thus, had this been an issue of first impression, I would have held that § 1396a(a)(10)(A)
does not confer a private right of action under the standards articulated in Blessing and Gonzaga.
But my reading of Miller and other relevant precedent leads me to believe that at the present
time the Seventh Circuit has concluded otherwise. I therefore find that Plaintiffs may proceed
with their case under 42 U.S.C. §1396a(a)(10).
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II. Medicaid Law and Indiana’s $1,000 Annual Limit on Dental Services
A. The Landscape of Relevant State and Federal Laws, Regulations, and Cases
The Medicaid program is jointly funded by the states and the federal government.
Wisconsin Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 473, 495 (2002). The Medicaid
statute “gives the States substantial discretion to choose the proper mix of amount, scope, and
duration limitations on coverage, as long as care and services are provided in the best interests of
recipients.” Alexander v. Choate, 469 U.S. 287, 303 (1985) (internal quotations omitted).
Federal Medicaid law derives from a mix of statutes and federal regulations. With
respect to rulemaking, Congress has delegated general regulatory authority to the Secretary of
Health and Human Services, who in turn has delegated that authority to the Centers for Medicare
and Medicaid. See 42 U.S.C. § 1395hh(a)(1).
As noted above, the Medicaid Act requires states to “provide for making medical
assistance available to all individuals. . . .” 42 U.S.C. § 1396a(a)(10). The regulations in turn
address the “amount, duration, and scope” of Medicaid services to be provided by the states. Of
particular relevance to this case is 42 CFR § 440.230, which states in full as follows:
(a) The plan must specify the amount, duration, and scope of each service that it
provides for-(1) The categorically needy; and
(2) Each covered group of medically needy.
(b) Each service must be sufficient in amount, duration, and scope to reasonably
achieve its purpose.
(c) The Medicaid agency may not arbitrarily deny or reduce the amount, duration,
or scope of a required service under §§ 440.210 and 440.220 to an otherwise
eligible recipient solely because of the diagnosis, type of illness, or condition.
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(d) The agency may place appropriate limits on a service based on such criteria as
medical necessity or on utilization control procedures.
42 CFR § 440.230.
A state’s participation in Medicaid is voluntary, but once a state enters the program, the
state must comply with the Medicaid Act and its implementing regulations. Alexander, 469 U.S.
at 289, n. 1(1985). Indiana participates in the Medicaid program and is therefore bound by its
requirements. Ind. Code 12–15–1–1, et seq. Indiana has its own state Medicaid statutes and
regulations (promulgated by the Family and Social Services Administration) that are laid on top
of the federal laws.
Indiana law defines a “medically reasonable and necessary service” for purposes of the
Medicaid program as “a covered service [as defined in 405 IAC 5-2-6] that is required for the
care or well being of the patient and is provided in accordance with generally accepted standards
of medical or professional practice.” 405 IAC 5-2-17. “Covered service” is defined in 405 IAC
5-2-6 as “a service provided by a Medicaid provider for a Medicaid recipient for which payment
is available under the Indiana Medicaid program subject to the limitations of this article (405
IAC 5).” As previously noted, although it is not required to do so, Indiana provides Medicaid
coverage for dental services. 405 IAC 5–14–1.
Rounding out the complex of Indiana Medicaid law are various state and federal cases,
the most important of which for our purposes is Thie v. Davis, 688 N.E.2d 182 (Ind. Ct. App.
1997), trans. den’d., 698 N.E.2d 1190 (Ind. 1998). In Thie the plaintiffs challenged an Indiana
regulation that excluded Medicaid coverage for dentures, which an Indiana appeals court
concluded violated both federal Medicaid laws and Indiana state Medicaid laws. With respect to
federal law, Indiana argued in Thie that it was well within its rights to exclude coverage for
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dentures because it was simply “exercis[ing] discretion in selecting the treatments to be covered
within the dental service category” pursuant to the “utilization control procedures” mentioned in
42 CFR § 440.230 – one of the same argument the State also makes in this case. Id at 184.
The Thie court disagreed. First, it noted that once Indiana had chosen to cover dental
services as part of Medicaid, it was required to provide those services in compliance with federal
law. Id. Then, after analyzing federal precedent, federal statutes, and 42 CFR § 440.230, the
court found that “the federal Medicaid Act requires coverage of medically necessary treatment”
and that “[i]f medically necessary treatments are excluded, the coverage is not sufficient in
amount, duration and scope to fulfill the purpose of providing the service.” Id. at 185-86. Thie
concluded: “the State may limit Medicaid expenditures and Medicaid coverage so long as the
limitations are consistent with federal Medicaid law,” but the denture-limitation was inconsistent
with federal law, which “require[d] that medically necessary dental treatments be covered.” Id.
at 186 (emphasis added).
The court also concluded that the denture-limitation violated Indiana’s Medicaid laws.
The State pointed to the pronouncement in Ind. Code § 12–15–21–3(3) that any limitation be
“consistent with medical necessity concerning the amount, scope and duration of the services
and supplies to be provided.” The State argued that this provision allowed for the exclusion of
some medically necessary treatment – including dentures – so long as the exclusion was
“designed to provide the most services for those persons most in need.” Id. at 186. The court
disagreed, finding that the “unequivocal” language of Ind. Code § 12–15–21–3(3), in
conjunction with the Indiana regulations interpreting the statute, established that the
requirements under Indiana law were the same as under federal law: “medically necessary
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treatments must be covered.” Id. at 187. Thus, as the court concluded: “federal and state laws
mandate Medicaid coverage of medically necessary treatments.” Id.1
Indiana courts reached the same conclusion in two companion cases to Thie. See Davis v.
Schrader, 687 N.E.2d 370, 372-73 (Ind. Ct. App. 1997) (“Here, we again hold that the State
must cover medically necessary treatments in service areas in which the State opts to provide
coverage.”); Coleman v. Indiana Family and Social Services Administration, 687 N.E.2d 366,
368 (Ind. Ct. App. 1997) (“[O]nce the State chooses to provide coverage within an optional
category, the State must cover medically necessary treatments within that category.”).
These Indiana state-court cases analyzed both state and federal Medicaid law to reach the
conclusion that “medically necessary treatments must be covered.” Thie, 688 N.E.2d at 187.
With respect to the Indiana appellate courts’ analysis of state law, I am not bound by that
analysis, but I am required to give it “great weight.” Allstate Ins. Co. v. Menards, Inc., 285 F.3d
1
During the preliminary injunction hearing in this case, the State raised a new argument:
Thie’s holding was inapplicable to the present case because the definition of “medically
reasonable and necessary” services had changed since Thie was decided. After asking the parties
to provide supplemental briefs on the issue, I now view the argument as essentially just another
formulation of the arguments the State had already raised. The new argument goes like this:
405 IAC §5-2-17 now states that a “medically reasonable and necessary service” is “a covered
service … that is required for the care or well being of the patient and is provided in accordance
with generally accepted standards of medical or professional practice.” 405 IAC §5-2-17
(emphasis added). Moreover, “covered service” means “a service provided by a Medicaid
provider for a Medicaid recipient for which payment is available under the Indiana Medicaid
Program subject to the limitations of this article.” 405 IAC 5-2-6 (emphasis added). Finally,
the $1,000 annual limit on dental services set forth in 405 IAC 5-14-1(b) is one such limitation
of 405 IAC 5-2-6. Thus, in the State’s view, dental services over $1,000 are not “covered”
services and in turn are not “medically reasonable and necessary services.” But there’s a
circularity to this argument, and whether the State can write a definition of medical necessity in
such an elaborate way that the limitations end up excluding some medically necessary services
really depends on whether the limitations are valid as either “utilization control procedures” or
as limits on the “amount, scope, and duration” of services – issues that are addressed in detail
below.
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630, 637 (7th Cir. 2002).
I am not held to a similar standard with respect to the Indiana appellate courts’ analysis
that federal Medicaid law also requires that the State cover medically necessary treatments, but
that analysis is persuasive and its cogency is underscored by a number of federal appeals court
decisions that have reached the same conclusion. See, e.g., Moore ex rel. Moore v. Reese, 637
F.3d 1220, 1255 (11th Cir. 2011) (holding federal Medicaid law required state Medicaid agency
to provide payment for nursing services that were medically necessary); Lankford v. Sherman,
451 F.3d 496, 511 (8th Cir. 2006) (“[F]ailure to provide Medicaid coverage for
non-experimental, medically necessary services within a covered Medicaid category is both per
se unreasonable and inconsistent with the stated goals of Medicaid.”); Hope Medical Group for
Women v. Edwards, 63 F.3d 418, 427 (5th Cir. 1995) (holding state Medicaid rule limiting
coverage for abortions without reference to medical necessity violates the Medicaid Act); Hern
v. Beye, 57 F.3d 906, 910-11 (10th Cir. 1995) (failure to provide Medicaid coverage for
medically necessary abortions unless mother’s life was at stake was unlawful because
inconsistent with purpose of Medicaid law “to provide qualified individuals with medically
necessary care.”); Dexter v. Kirschner, 984 F.2d 979, 983 (9th Cir. 1992) (holding federal law
required the state Medicaid agency to pay for medically necessary in-patient services for eligible
persons). See also Beal v. Doe, 432 U.S. 438, 445 (1977) (“serious statutory questions might be
presented if a state Medicaid plan excluded necessary medical treatment from its coverage”).
The inescapable conclusion of all these decisions is that both state and federal law require
the State to pay for all procedures judged “medically necessary” for eligible participants. In fact,
the State basically concedes this point, but argues that it only has to partially cover these
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procedures because, “[w]hile Thie and Davis hold that the State must provide Medicaid coverage
for medically necessary procedures, both courts stopped well short of mandating the extent of
that coverage.” [DE 21 at 13 (emphasis in original).] Thus, the real heart of the dispute comes
in what it means to actually “cover” medically necessary procedures.
B.
“Coverage” of Medically Services.
Let’s review where all this takes us. The only services at issue in this case are those
deemed “medically necessary,” like Bontrager’s dental work. The parties have therefore
stipulated that the class will only apply to Medicaid recipients in need of medically necessary
services. Thie, Davis, and Coleman hold that “federal and state laws mandate Medicaid
coverage of medically necessary treatments,” Thie, 688 N.E.2d at 187, and many federal
appellate cases have reached the same conclusion. So under both state and federal Medicaid
law, Indiana must cover medically necessary dental procedures.
The State believes, however, that even with the annual cap, it is covering all medically
necessary services. That is, the State argues that it can cover medically necessary services
without having “to provide full Medicaid reimbursement” for them. [DE 21 at 11.] As the State
explains things, the $1,000 cap “complies with both federal and state law” and is “consistent
with medical necessity because it provides some coverage for Bontrager’s requested procedure,”
and therefore it “is not denying coverage for her medically necessary procedure.” [DE 21 at 20;
emphasis added.] Thus, as the State puts it in its brief, it “is not excluding certain procedures
from coverage wholesale, regardless of their medical necessity. . . . Instead, the State has not
only opted to provide dental coverage, but is covering $1,000 of all medically necessary dental
procedures.” [DE 21 at 14.]
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So if the State only provides partial reimbursement for medically necessary procedures,
is it actually covering those procedures? As a practical matter, everyone knows what it means
when a service is “covered” under their insurance: the service is paid for by the insurance
provider. And really, that’s all the Medicaid system is: one giant insurance provider paying for
covered services. Massachusetts v. Sebelius, 638 F.3d 24, 26 (1st Cir. 2011) (“Medicaid is a
health insurance program for low-income individuals.”). As the Seventh Circuit has described it,
“Medicaid is a payment scheme . . . . [W]hat is required is a prompt determination of eligibility
and prompt provision of funds to eligible individuals to enable them to obtain the covered
medical services that they need.” Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003)
Of course insurance schemes vary, and often an insured will have to pay a portion of the
costs of services through a variety of methods, including monthly insurance premiums and copays. Or sometimes the insurance provider will not pay for any services until the insured has hit
a yearly deducible. Under other plans, once the insured has hit a certain annual amount, the
insurer covers 80% of the costs and the insured will have to pay for the remaining 20% (or
70%/30%, etc.). But in all of these instances, once the insured has met his or her obligation – a
$10 co-pay, a $5,000 annual deductible, a cap after which the insured and insurer split a
percentage of the costs, etc. – the insurance company is on the hook to pay for the remainder of
the costs of the service, or at least the vast majority of those costs. Coverage thus means
payment of costs
The State’s $1,000 cap on dental services takes this commonsense definition of insurance
coverage and turns it on its head. As the State would have it, it can “cover” medically necessary
dental services by paying the first $1,000 dollars of them and then leaving all remaining costs to
16
the Medicaid recipient. This is a bizarro-world notion of insurance coverage: once the
insurance provider (the State) meets the initial deductible ($1,000), the insured is left covering
all the remaining costs. Under any commonsense notion, this is not insurance “coverage.”
Recall, moreover, that the operative statute requires states to “provide for making
medical assistance available” to eligible participants. 42 U.S.C. § 1396a(a)(10)(A). The $1,000
cap prevents Ms. Bontrager from receiving such medical assistance, and therefore the State is not
“making medical assistance available” to her and the other class members. In other words, the
cap serves as a roadblock to their receipt of the care they need – meaning they really aren’t being
“covered” at all.
To be sure, the statutory language “make medical assistance available”– and really the
whole issue of whether “coverage” means full or partial payment of costs – is complicated by 42
U.S.C. §1396d(a). Although the issue was not raised by the parties in their briefing, that
provision defines “medical assistance” as: “payment of part or all of the cost of the following
care and services or the care and services themselves” including “dental services.” Id. Thus,
the State’s annual cap could be viewed as in fact sufficiently making “medical assistance
available” – i.e. covering the costs of care – because, even though the State doesn’t cover all of
the costs of dental services, it is only required to provide payment for “part or all of the costs.”
Early this year, a dissenting opinion from the Washington Supreme Court made that very
argument. Samantha A. v. Dep’t of Soc. Servs. and Health Servs., 256 P.3d 1138, 1146 (Wash.
2011) (“Medical assistance is defined as ‘payment of part or all of the cost’ of enumerated
services like personal care services. 42 U.S.C. § 1396d(a). Thus, in plain terms, the Medicaid
statutes do not require a state to cover the entire cost of medical assistance.”) (Stephens, J.
17
dissenting).
For at least four reasons, however, this argument goes nowhere. First, the State has never
raised the argument, nor ever relied upon 42 U.S.C. §1396d, at any point in this case, and the
argument is therefore waived. Second, the phrase “payment of part or all of the cost” may mean
something very different: it may mean that the federal funds provided to the states must be used
to pay for at least part (or all) of the costs of services. That is how the Ninth Circuit interprets
the phrase. See, e.g., Univ. of Washington Med. Cent. v. Sebelius, 634 F.3d 1029, 1034 (9th Cir.
2010) (“The definition of ‘medical assistance’ has four key elements: (1) federal funds; (2) to be
spent in ‘payment of part or all of the cost’; (3) of certain services; (4) for or to ‘[p]atients
meeting the statutory requirements for Medicaid.’”) (emphasis added); Phoenix Memorial Hosp.
v. Sebelius, 622 F.3d 1219, 1226 (9th Cir. 2010) (“‘medical assistance’ means the payment of
federal funds toward certain services”) (emphasis added). Third, the idea that the State need
only pay for a portion of medically necessary services is in direct tension with the requirement
under 42 C.F.R. § 440.230(b) that states provide each service in an “amount, duration, and
scope” sufficient to “reasonably achieve its purpose.” If, as is the case with the cap here, partial
payment will prevent recipients from receiving a service in its entirety, that service is obviously
not achieving “its purpose.” Finally, even if it could be said that the State’s cap complies with
federal law by covering only part of the costs, it would still be in violation of Indiana state law,
which does not appear to contain any similar “part or all of the cost”provision.
* * *
I fully understand the State’s attempt to limit the costs of its Medicaid program,
particularly given the severe economic downturn and the attempts by governments around the
18
country to implement austerity measures. But a slew of cases hold that no matter how “pressing
budgetary burdens may be, . . . cost considerations alone do not grant participating states a
license to shirk their statutory duties under the Medicaid Act.” Moore, 637 F.3d at 1259. See
also Smith v. Benson, 703 F. Supp. 2d 1262, 1277 (S.D. Fla. 2010); Indep. Living Ctr. of S. Cal.,
Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir. 2009); Tallahassee Mem’l. Reg’l. Med. Ctr. v.
Cook, 109 F.3d 693, 704 (11th Cir. 1997).
As noted above, and as the State pointed out in its briefing, striking down the $1,000 cap
is likely to mean spending millions of dollars a year more in dental expenses and that “it is
possible that the Indiana General Assembly will simply cut state Medicaid funding for dental
services altogether.” [DE 21 at 21.] From a public policy standpoint, it would obviously be suboptimal if striking down the cap means Indiana goes from covering the dental needs of 99% of
Medicaid participants to covering none of them. So while I am sympathetic to Ms. Bontrager and
other class members who need dental services that would be denied under the cap, the
unintended consequences of this lawsuit may be that the State will simply withdraw coverage for
dental services altogether, a move other states have resorted to recently. See, e.g., Kevin
Graham, Dental Dilemma: Thousands Affected as Washington Withdraws Medicaid Coverage
for Nonemergency Oral Care, The Spokesman-Review, Jan. 4, 2011 at 1A.
But all of this is neither here nor there. I am not charged with deciding whether the cap
makes for good public policy or whether bringing this lawsuit was a wise choice for those who
care about needy citizens and their dental care. Instead, I have to decide whether the cap
complies with federal and state Medicaid laws and regulations. Since “federal and state laws
mandate Medicaid coverage of medically necessary treatments,” Thie, 688 N.E.2d at 187, and
19
since the cap prevents Indiana from covering some medically necessary treatments, I can only
conclude that it is in violation of both federal and state Medicaid law.
III.
The State’s Argument
Necessarily embedded in the conclusion that the cap violates federal and state Medicaid
law is a rejection of the State’s various arguments about why it believes the cap is in compliance
with this law. The state has three interrelated and overlapping arguments in this regard. First,
the State argues that the cap does not act as a categorical exclusion of services, as was the case in
Thie. Second, the State points to 42 CFR § 440.230(d)’s statement that an “agency may place
appropriate limits on a service based on such criteria as medical necessity or on utilization
control procedures” and argues that the “$1,000 limit is exactly that – a utilization control
procedure designed to appropriately limit the amount of dental services for which the state will
provide reimbursement.” [DE 21 at 10.] Lastly, in the State’s view the cap complies with 42
CFR § 440.230(b) and the similar state regulations at Ind. Code § 12-15-21-3-(3) regarding the
“amount, scope and duration” of services because, by being sufficient to still service 99% of
Indiana Medicaid recipients,” the “$1,000 cap is sufficient in amount, duration and scope to
reasonably achieve its purpose.” [Id.]
I’ll turn now to each of these arguments and demonstrate why they are unable to carry the
day for the State.
A. The Cap as a Categorical Exclusion of Medically Necessary Services
The State first argues that the $1,000 cap “does not completely exclude any procedure
that is deemed medically necessary, and therefore is consistent with Thie and Davis.” [DE 21 at
14.] The State believes it “is not categorically limiting procedures that are medically necessary;
20
it simply places an annual dollar amount limit on such procedures.” [Id.] So while the State
recognizes it cannot categorically exclude specific procedures like dentures (as in Thie) or dental
implants and abutments (Bontrager’s medically necessary procedures), it argues that the cap
does not categorically exclude any procedures.
But of course the cap does “completely exclude” some procedures that are deemed
medically necessary: any procedure that costs more than $1,000. This obvious conclusion was
reached by another court in a similar case involving an annual Medicaid cap. In the mid-1980s
the Texas Department of Human Services placed a $50,000 cap on inpatient hospital expenses
that Medicaid would pay during a 12–month period. Two plaintiffs who needed liver transplants
challenged that annual cap in Montoya v. Johnston, 654 F.Supp. 511 (W.D. Tex. 1987). Since a
liver transplant cost approximately $200,000, the $50,000 annual Medicaid cap functionally
excluded that procedure from Medicaid coverage, despite the fact that the transplants were
unquestionably “medically necessary.” Id. at 512. The court held that this sort of categorical
exclusion was impermissible: “the $50,000 Medicaid cap is arbitrary and unreasonable in that it
functionally excludes the Plaintiffs’ liver transplants from medicaid coverage.” Id. at 514.
Although Montoya’s reasoning is based largely on 42 CFR § 440.230(c), which only applies to
“required” services and thus not to the optional dental services at issue in this case, its
conclusion that an annual cap functions as an impermissible categorical limitation obviously
parallels this case.
In this case the parties have already stipulated that the Plaintiffs’ requested dental
procedures are “medically necessary.” And similar to Montoya, because some of these
procedures cost more than $1,000, Indiana’s annual cap “functionally excludes” those
21
procedures from dental coverage.2 The Eighth Circuit has concurred with this reasoning, citing
Montoya for the principle that “a ceiling on transplant funding so low as to prevent a patient
from getting on a hospital waiting list – let alone actually pay for the surgery – would in fact
deprive her of a transplant . . . and would be impermissible.” Ellis by Ellis v. Patterson, 859
F.2d 52, 56 (8th Cir. 1988). This same logic applies here: it is “impermissible” for Indiana to
place “a ceiling” on some dental procedures “so low as to prevent a patient” from receiving those
procedures.
B. Utilization Control Procedures
The State also relies heavily on the idea that a $1,000 cap is a permissible “utilization
control procedure” under 42 C.F.R. § 440.230(d). As already noted, however, “utilization
control procedure” is left undefined in the regulations, and thus “the phrase is susceptible to
multiple plausible interpretations and lacks a fixed meaning.” Casillas, 580 F. Supp. 2d at 243.
A review of how the term has been analyzed in other cases, however, indicates to me that
utilization control procedures are generally procedures that prevent inefficiency, fraud, and
abuse. For example, a preauthorization process – like the one Bontrager has already been
through – is a classic example of a utilization control procedure. See, e.g., Ladd v. Thomas, 962
2
Of course, the cap only “functionally excludes” any procedure that by itself costs more
than $1,000. This creates a potential problem with the way the class of Plaintiffs is defined here,
which includes all Medicaid recipients who hit the $1,000 cap in a year, regardless of whether
they hit it like Bontrager (where a single implant or abutment alone may cost more that $1,000)
or whether they hit it by, say, their eleventh $100 medically necessary cavity filling. The
problem of categorical exclusion obviously applies to the former (every one of those procedures
will be barred), but arguably not to the latter (as 10 out of the 11 cavities will still be filled).
Ultimately, however, this issue does not undermine the commonality of the class because, as
explained above, the $1,000 cap is invalid on other grounds that apply to all class members (i.e.
the State is not “covering” medically necessary services when it only pays for a portion of them).
22
F. Supp. 284, 294-95 (D. Conn. 1997) (noting the prior authorization process is “one of the
accepted utilization control procedures that can be employed as a limitation” on services by
authorizing Medicaid payment only for those services that are medically necessary); DeLuca v.
Hammons, 927 F. Supp. 132, 136 (S.D.N.Y. 1996) (same). The auditing of medical services to
prevent fraud and abuse by Medicaid providers is another common utilization control procedure.
See, e.g., Moore, 637 F.3d at 1234, n. 24.
Ultimately, I agree with the Plaintiff that classic utilization control procedures “limit
utilization of services to only services that are necessary and efficient.” [DE 30 at 5.] They are
intended to ensure that Medicaid pays only for those services that are medically necessary and
cost-efficient by using procedures to catch fraud and unnecessary services. This point is
underscored by 42 U.S.C. §1396a(a)(30)(A), which requires states to “provide such methods and
procedures relating to the utilization of, and the payment for, care and services available under
the plan … as may be necessary to safeguard against unnecessary utilization of such care and
services and to assure that payments are consistent with efficiency, economy, and quality of care
and are sufficient to enlist enough providers so that care and services are available . . .”
(emphasis added). Indiana’s own regulations similarly emphasize the idea that utilization
control procedures are meant to prevent fraud and inefficiency, as they demand that the State
“safeguard against overutilization, fraud, abuse, and utilization and provision of services that are
not medically reasonable and necessary.” 405 IAC 5-1-1(a)(3).
The State points to Grier v. Goetz, 402 F.Supp.2d 876 (M.D. Tenn. 2005), in which the
court held that Tennessee’s imposition of a limit of five prescriptions per month for Medicaid
recipients was an appropriate utilization control procedure. It is true that this holding sees
23
utilization control procedures as a way of limiting services rather than as a buttress against
inefficiency, fraud, or abuse. But to my mind Grier raises a different distinction – the difference
between limiting a quantity of services (five prescriptions per month) versus limiting the
reimbursement of those services. That distinction is really about the issue raised in the next
section: whether the annual cap complies with the regulations regarding the amount, duration,
and scope of services provided.
C.
Limits on the Amount, Duration, and Scope of Services
As noted, the State also believes that the $1,000 cap is a permissible limit on the
“amount, duration, or scope” of a service.
Once again, however, the State’s position is problematic. Understanding its issues
requires a close reading of the § 440.230(b), which states that “each service must be sufficient in
amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b)
(emphasis added). The State clearly reads the regulation to mean that the provision of all dental
services, taken as a whole, must be sufficient in amount, duration, and scope such that, as a
whole, those services reasonably achieve the purpose of providing Indiana citizens with dental
coverage. Thus the State repeatedly asserts that the cap is sufficient in amount, duration, and
scope because “the great majority of Indiana Medicaid recipients are served by reimbursement
for dental services of less than $1,000 in an annual period.” [DE 21 at 18.]
But there’s an artifice to this argument which comes from State’s distorted analysis of the
language in § 440.230(b). Take the State’s summary of its argument as an example:
The bottom line is that Indiana has chosen to implement a utilization control
procedure with regard to the optional dental services it covers which is fully
authorized under 42 C.F.R. § 440.230(d). That utilization control procedure is
“sufficient in amount, duration, and scope to reasonably achieve its purpose” (i.e.
24
covering dental services) for more than 99% of Indiana Medicaid recipients. 42
C.F.R. § 440.230(b). As such, it complies with 42 C.F.R. § 440.230(b).
[Id. at 19].
To see the sleight-of-hand here, notice that the State’s formulation of the argument is that
the utilization control procedure is “sufficient in amount, duration, and scope to reasonably
achieve its purpose (i.e. covering dental services) for more than 99% of Indiana Medicaid
recipients.” The problem is that § 440.230(b) doesn’t say that a utilization control procedure has
to be sufficient in amount, duration, and scope to reasonably achieve its purpose. If it did say
that – and if it could be agreed that the $1,000 cap qualifies as utilization control procedure –
then it would be fairly easy to conclude that a utilization control procedure that covers more than
99% of Medicaid recipients reasonably achieves its purpose. But the regulation does not require
that a utilization control procedure reasonably achieve its purpose – it requires that each service
provided by Medicaid reasonably achieve its purpose. Those are completely different things.
So the question is decidedly not whether the annual cap, as a purported utilization control
procedure, is sufficient in amount, duration, and scope to reasonably achieve its purpose of
providing dental services to most Indiana Medicaid recipients. Rather, the question is whether
the State is providing each service in a sufficient amount, duration, and scope such that the
service reasonably achieves its purpose. And in the context of this case, the relevant corollary
question is: Is the annual cap preventing the State from providing each service in a sufficient
amount, duration, and scope such that the service reasonably achieves its purpose?
The answer is clearly, “Yes.” The $1,000 cap prevents recipients from receiving any
service in excess of $1,000 – and when a service goes completely unprovided, it has obviously
25
not been provided in an amount sufficient to achieve its purpose.3
The State tries to get around this issue by highlighting cases in which other states
properly limited the amount or duration or scope of a service. But those cases are instances
where states actually provided a service but then limited the quantity in which it was provided.
For instance, the Eleventh Circuit recently remanded a case to a Georgia district court in order to
assess whether “the limits the state imposed on [plaintiff’s] physician’s discretion in reducing
her nursing hours from 94 to 84 hours a week are not reasonable – that these limits are not
sufficient in amount, duration, and scope to reasonably achieve the treatment’s purpose.”
Moore, 637 F.3d at 1258. See also Freeman v. State of Washington, Dept. of Social Services,
2010 WL 3720285 (W.D. Wash. 2010) (reduction in the number of personal care service hours
for individuals with disabilities); Grier, 402 F. Supp. 2d at 911 (five prescriptions per month);
3
There is also an unresolved question about what the phrase “each service” refers to in §
440.230(b). It could be taken in one of two ways. First, it could mean more broadly each
category of service available under Medicaid. In this reading, one service would be the
provision of dental services. This is clearly the way the State hopes to interpret § 440.230(b), as
it slips in the parenthetical phrase “i.e. covering dental services” to suggest that the “purpose”
that must be “reasonably achieved” is “covering dental services” On the other hand, the
regulation could properly be read more narrowly to mean that “each [individual] service must be
sufficient in amount, duration, and scope to reasonably achieve its purpose.” Under this reading,
the “purpose” that must be achieved is not the general provision of dental services to Indiana
citizens as a whole; rather, the “purpose” that must be achieved is the reasonable fulfillment of
each various dental service (dentures, abutments, etc.). Examples from other cases seem to be all
over the spectrum and often don’t even address, much less resolve, this ambiguity. See, e.g., M.
R. v. Dreyfus, 767 F. Supp. 2d 1149, 1172-73 (W.D. Wash. 2011) (analyzing § 440.230(b)
somewhat broadly with respect to “in-home personal care service”); Casillas, 580 F. Supp. 2d at
246 (reading § 440.230(b) more narrowly to mean that it “would require a plan to provide that a
patient hospitalized, for example, with a diagnosis of pneumonia receive treatment for that
condition that was ‘sufficient in amount, duration, and scope to reasonably achieve its
purpose.’”). In this case, I think this ambiguity can remain ultimately unresolved because, even
if the regulation is read more broadly, it is not dispositive as the question of whether the State
can “cover” medically necessary dental services by only paying for a part of them.
26
Charleston Memorial Hospital v. Conrad, 693 F.2d 324, 330 (4th Cir. 1982) (reduction in
number of total days in a year that Medicaid recipients could have inpatient and outpatient
hospital visits); Curtis v. Taylor, 625 F.2d 645, 653 (5th Cir. 1980) (state regulation limiting
recipients to three physician office visits per month).
In each of those instances, the services were provided, just in a circumscribed way
(number of hours, visits, prescriptions, etc.). Here, on the other hand, any services over $1,000
are not being provided at all.
IV.
Preliminary Injunction Standard
Having untangled the substantive questions of Medicaid law, the preliminary injunction
analysis is relatively straightforward.
To justify a preliminary injunction, a plaintiff must show four elements: (1) she is likely
to succeed on the merits, (2) she is likely to suffer irreparable harm without the injunction, (3)
the harm she would suffer without the injunction is greater than the harm the injunction would
inflict on the defendant, and (4) the injunction is in the public interest. Judge v. Quinn, 612 F.3d
537, 546 (7th Cir. 2010) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008)). The Seventh Circuit has emphasized that “[t]hese considerations are interdependent:
the greater the likelihood of success on the merits, the less net harm the injunction must prevent
in order for preliminary relief to be warranted.” Quinn, 612 F.3d at 546. Likewise, “the more
net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be.”
Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th
Cir. 2009).
Given the preceding analysis of Medicaid law, there can be little doubt that Plaintiffs
27
satisfy the four preliminary injunction elements. First, as explained in detail above, the Plaintiffs
are likely to succeed on the merits because the $1,000 cap violates federal and state Medicaid
laws. Second, they are likely to suffer irreparable harm without the injunction because they will
not receive medically necessary dental services in excess of $1,000. As other courts have
found, “[i]n cases alleging that a state law violates the federal Medicaid statue and requesting
injunctive relieve, irreparable harm nearly always follows a finding of success on the merits.”
Benson, 703 F. Supp. 2d at 1278. See also Maxwell-Jolly, 572 F.3d at 658 (“This court has
previously held that Medi-Cal recipients may demonstrate a risk of irreparable injury by showing
that enforcement of a proposed rule may deny them needed medical care.”); Mass. Ass’n of
Older Am. v. Sharp, 700 F.2d 749, 753 (1st Cir. 1983) (same); Beltran v. Myers, 677 F.2d 1317,
1322 (9th Cir. 1982) (same).
Third, the balance of harms also favors the Plaintiffs. The importance of this factor is
mitigated by the strength of the Plaintiffs’ position on the merits. See Quinn, 612 F.3d at 546
(“[T]he greater the likelihood of success on the merits, the less net harm the injunction must
prevent in order for preliminary relief to be warranted.”). And while I appreciate the State’s
position that it will be harmed by having to spend additional limited resources on dental services,
it is clear that “neither the gravity nor the difficulty of funding Medicaid obligations [can] excuse
a violation of federal law.” Benson, 703 F. Supp. 2d at 1277. The same goes for the analysis of
the public-interest factor: “State budgetary considerations do not therefore, in social welfare
cases, constitute a critical public interest that would be injured by the grant of preliminary relief.
In contrast, there is a robust public interest in safeguarding access to health care for those
eligible for Medicaid, whom Congress has recognized as ‘the most needy in the country.’”
28
Maxwell-Jolly, 572 F.3d at 659.
CONCLUSION
Accordingly, for the reasons detailed above, Plaintiffs’ Motion for Preliminary Injunction
[DE 6] is GRANTED. The parties Joint Stipulation to Certify Cause as a Class Action [DE 22]
and their Joint Stipulation of Facts [DE 25] are all also GRANTED. Based on the granting of
DE 22, Plaintiffs’ Motion to Certify Class [DE 5] is DENIED AS MOOT.
A preliminary injunction, without bond, is therefore issued in this case as follows:
For all current and future Indiana Medicaid enrollees age twenty-one and older,
Defendants Indiana Family and Social Services Administration, Michael A. Gargano, and
Patricia Cassanova are enjoined from enforcing 405 IAC 5-14-1(b) and are required to
provide Medicaid payments for coverable dental services that are administratively or
judicially determined to be medically necessary and that are routinely provided in a
dental office, including such services in excess of $1,000 annually.
A telephonic hearing is SET for November 10, 2011 at 10:00 a.m. Hammond/Central Time
The parties are ORDERED to notify the Case Management Deputy by email at
simon_chambers@innd.uscourts.gov by November 8, 2011 at 5:00 p.m. as to the following: 1)
which attorneys will be participating on the conference call; and 2) what telephone number
should be used to contact those attorneys.
SO ORDERED.
Entered: November 4, 2011.
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
29
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