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From Health Law Daily, January 9, 2014

Medicaid agency ordered to provide skilled nursing visits to beneficiary

By Michelle L. Oxman, JD, LLM

A federal court in Georgia granted a temporary restraining order (TRO) directing the state Medicaid agency to provide two skilled nursing visits and three personal assistance or nursing assistant visits per day to a beneficiary who had “aged out” of eligibility for pediatric services. The parties also must file weekly reports with the court stating when the visits occurred and providing a general assessment of his condition (Royal v ReeseJanuary 7, 2014, Duffey, W).

The beneficiary’s condition. Zachary Royal suffered from spinal muscle atrophy, SMA Type 1, also called Werdnig-Hoffmann disease, a progressive and degenerative condition of the central nervous system that results in neuromuscular deterioration. He received 84 hours of skilled nursing care at his home each week under the Georgia Pediatric Program (GAPP). Because he would no longer be eligible for GAPP after his 22nd birthday, January 6, 2014, he had applied for services under a comprehensive care waiver. The agency determined that he was not eligible for the comprehensive care program and denied his application. He then sought the TRO in order to maintain the same level of service.

Legal claims. Royal alleged that without the 84 hours of in-home skilled nursing care, his medical condition would deteriorate to the point that he would require hospitalization.

He claimed that the denial of services necessary to prevent institutionalization violated the Americans with Disabilities Act (ADA) and the section 504 of the Rehabilitation Act, both of which prohibit discrimination on the basis of disability in the administration of government programs.

Available services. The agency argued that Royal could receive adequate services through the Independent Care Waiver program (ICW). Royal contended that the ICW did not provide skilled nursing, but the state argued that he would be entitled to at least 50 in-home skilled nursing visits under ICW and could also seek skilled nursing under a self-directed care program.

Requirements for a TRO. In order to grant a TRO, the court must find that: (1) the plaintiff is threatened with immediate, irreparable injury; (2) the harm to the plaintiff if the TRO is denied outweighs any harm to the defendant if it is granted; (3) the plaintiff is likely to succeed at trial; and (4) the TRO is in the public interest.

The court’s findings. The court found that Royal had not followed the process that would have allowed him to receive services under the ICW program, but it was clear that he was entitled to at least 50 skilled nursing visits. In addition, Royal’s condition was so serious that he was threatened with immediate, irreparable harm without the TRO and that the public interest required that he continue to receive sufficient services.

The case number is 1:14-cv-00025-WSD.

Attorneys: Joshua H. Norris, Georgia Advocacy Office, for Zachary Royal. Jason S. Naunas, Attorney General's Office, for Clyde L. Reese, III, Commissioner of the Georgia Department of Community Health.

Companies: Georgia Department of Community Health; Georgia Department of Behavioral Health and Developmental Disabilities

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