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Judge rejects dental coverage cap

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When Sandra Bontrager tried to get Medicaid coverage for a costly dental surgery procedure two years ago, she didn’t think that her request would eventually lead to a federal lawsuit and a ruling striking down the state’s policy about how Indiana covers those Medicaid services.

But that is what happened on Nov. 4 when Chief Judge Philip Simon in the Northern District of Indiana ruled the state must fully cover dental services that are medically necessary for Medicaid participants and that it can’t cap coverage at a certain amount. The reason: limiting coverage would deny some low-income individuals the ability to get needed care.

Now, the Office of the Indiana Attorney General will likely appeal the Goshen woman’s case to the 7th Circuit Court of Appeals and the fate of the state’s policy remains uncertain. If upheld, the result could lead Indiana down a road other states have taken – scrapping dental coverage for Medicaid participants all together. If the judge’s ruling is overturned, then some people won’t be able to obtain coverage for certain dental service and, in effect, those procedures could be off limits to low-income Hoosiers.

“I think it’s great that Judge Simon’s ruling stands for the idea of entire participation,” said Indianapolis attorney Jackie Bowie Suess, who represents Bontrager in the federal suit. “If the state’s going to participate in an important federal program like Medicaid, it has to follow the rules. Everyone is sympathetic to budget concerns, but that doesn’t mean you have the right to deny people services when you’ve already promised them coverage to the extent the law requires.”

suess Indianapolis attorney Jackie Bowie Suess represents a woman who successfully challenged the state’s policy to only cover “medically necessary” Medicaid dental services costing less than $1,000. (IBJ Photo/ Perry Reichanadter)

This Indiana case is part of a bigger national discussion that involves adult dental benefits for low-income residents being eyed for reduction or elimination as states struggle with the effects of the recession and skyrocketing Medicaid enrollment. To contain costs, many states have been cutting back on optional benefits, including adult dental services, according to an annual 50-state survey released by the Kaiser Commission on Medicaid and the Uninsured.

Now, as Indiana’s coverage of these adult dental procedures remains in question, the state could be forced to address whether it can afford to maintain those services.

Simon’s recent ruling came in the class-action lawsuit of Sandra M. Bontrager v. Indiana Family and Social Services Administration, Michael A. Gargano and Patricia Cassanova, No. 3:11-CV-216, a case originally filed in Elkhart Superior Court but later removed to federal court.

The suit focuses on how Indiana participates in the federal Medicaid program and provides dental coverage. The state isn’t required to provide dental care reimbursements to low-income participants, but state officials have chosen to do that through a process outlined in 405 Indiana Administrative Code 5-14-1. If a state chooses to provide benefits, it must comply with federal Medicaid law requiring consistent, equal coverage for program participants.

Bontrager’s dentist determined in 2009 that she needed two implants and abutments for her lower jaw. Because she is a Medicaid program participant, the dentist submitted a request to the private company contracted to handle the state’s preauthorization process and determine whether a procedure is medically reasonable and necessary as defined by state administrative code.

Although the contractor initially determined the requested services weren’t “covered dental services,” more than a year of appeal procedures determined those were medically reasonable and necessary. Bontrager resubmitted the preauthorization request with an expectation she would be able to get the dental work done.

However, the Indiana Family and Social Services Administration responded in 2011 that even with the determination that the dental work was covered and medically necessary, a new state regulation that began Jan. 1, 2011, limited total dental service reimbursement to $1,000 per person during any 12-month period, regardless of the medical reasonableness or necessity. Prior to this year, the cap had been $600 per participant.

According to court filings, the state argues the cap is needed to potentially save millions of dollars annually and that it doesn’t impact most participants because 99 percent have annual dental costs less than $1,000. The state argues that invalidating that cap could lead to discontinuing the Medicaid dental program altogether. The plaintiffs argue the state can only really cover a procedure by fully paying, while the defendants argue that it can cover those medically necessary expenses by partially paying for them.

Saying that this dispute casts Indiana into the “byzantine world of state and federal Medicaid laws, regulations and cases,” Simon wrote that the case boils down to disagreement about what it really means to “cover” a procedure that’s been deemed medically necessary.

“I think this is a close question, but … I have decided that the State is required to fully cover medically necessary dental expenses,” he wrote, granting a motion for preliminary injunction against Indiana.

Simon addressed a question that remains unanswered by the 7th Circuit about whether a private cause of action is allowed under the federal Medicaid law. The state contends one doesn’t exist, but Simon disagreed and relied on a 1993 appellate decision – Miller ex. Rel. Miller v. Whitburn, 10 F.3d 1315, 1319-21 (7th Cir. 1993) – to find a private cause of action does exist. The appellate court hasn’t addressed the issue in the past decade, and this case could set the stage for that issue to be analyzed.

Simon also disagreed that the $1,000 cap is a “utilization control procedure,” something the state contends it is allowed to implement under federal law, although the law doesn’t define what that term means. The judge determined that utilization control procedures should be used to prevent fraud and paying for unnecessary services. Simon rejected Indiana’s argument that the $1,000 cap is a permissible limit on the “amount, duration, or scope” of a service as specified in both federal and state statute.

Even though state legislators could as a result of this ruling decide to stop providing dental care coverage to Medicaid participants, Simon said he’s not in a position to consider those public policy consequences and must follow precedent and the law.

“I fully understand the State’s attempt to limit the costs of its Medicaid program, particularly given the severe economic downturn and the attempt by governments around the country to implement austerity measures,” he wrote. “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.’”

The state is still reviewing the ruling and has indicated a decision would be made by the end of November on whether an appeal will be filed, according to the federal court docket.

Suess said that the judge’s decision to strike down the cap is a very big deal for Bontrager. For the Goshen woman, the legal issues and federal court holding that could apply to thousands of Indiana Medicaid participants isn’t at the heart of this case.

“She’s been fighting, through the administrative appeal process, for years to try and get the dental services she needs in order to eat properly,” her attorney said. “Throughout this entire ordeal, she’s been unable to chew food normally and, therefore, eat normally. She’s ecstatic about the decision and is very excited to finally get the implants and dentures she needs. … I’m hopeful she can get them before Christmas to enjoy a full, healthy meal with her family during the holidays.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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