11.10.2006

Tenth Circuit Notes Possible Split Re Scope of “Medical Assistance” Required by Medicaid Act

Per Mandy R. ex rel. Mr. and Mrs. R. v. Owens, 464 F.3d 1139 (10th Cir. Sep 21, 2006):

On the merits, the plaintiffs' reasonable promptness and comparability claims are two ways of characterizing one problem: that the individual plaintiffs are not receiving the comprehensive residential services they need. They are thus (1) not receiving them promptly and (2) not receiving them to the extent that others receive them. The outcome of both claims turns on the same question: What is the "medical assistance" that the State must provide promptly and equally?

The Medicaid Act defines "medical assistance" as "payment of part or all of the cost of the [described] care and services." 42 U.S.C. § 1396d(a). The statutory definition mentions payment for, but not provision of, services. In other words, "the statutory reference to 'assistance' appears to have reference to financial assistance rather than to actual medical services." Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003); see also Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir.2006) (concluding that 42 U.S.C. §§ 1396a(a)(8) and (10) do not "require the State to provide medical services directly" but rather require only financial assistance). [FN2] On its face, then, the Medicaid Act requires any state participating in Medicaid to pay promptly and evenhandedly for medical services when the state is presented with the bill. If that is all the statute requires, then the plaintiffs have no claim: they are on a waiting list for services, not a waiting list for payment for services.

FN2. Some courts have suggested that there exists a circuit split on the question of whether "medical assistance" requires a state to provide actual services. Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 181 n. 1 (3d Cir.2004); Westside Mothers, 454 F.3d at 540. The existence of such a split is not entirely clear. Two circuits have held that "medical assistance" requires only financial assistance. See Bruggeman, 324 F.3d at 910; Westside Mothers, 454 F.3d at 540. Another circuit has reserved the question. Sabree, 367 F.3d at 181. Without expressly addressing the issue, two other circuits appear to have treated the statute as requiring the provision of actual services. Bryson v. Shumway, 308 F.3d 79, 81, 88-89 (1st Cir.2002); Doe v. Chiles, 136 F.3d 709, 714, 717 (11th Cir.1998).

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