Re: Regarding the Texas Case

[Guest guest]

,

Man you are a wealth of information I can't thank you enough. IM keeping the

pressure on as much as I can. In fact I just called Ford back at the

governors office she is not in I wanted to recite the email you just sent to

me. Yes, Chip's has covered it before. They also processed a claim for Blue

Cross Blue Shield and paid for it for a child with CP. and the policy is the

same as everyone else's that was denied. Some of the claims I have been

looking at here in Texas that has been covered by Blue Cross it says at the

bottom of the page Tex chip Medical review. I called and found out Chip's is

processing these claims and there paying for this procedure. However they are

denying us. If you will look on the information I sent you from Blue Cross

you will see the words at the bottom of one of the pages.

Darin

[Guest guest]

,

You ave become an awesome resource!

Ed

At 03:22 PM 12/8/2002 -0500, you wrote:

> >Just wanted to update you all. I haven't heard much from the attorney but I

> >did speak to the Governors office here in Texas to Ford. I

> explained

> >and sent proof where Medicaid or I should say the CHIP " S program better know

> >as Children's health insurance program had paid for HBOT before I even sent

> >her the documents. Her reply to me today was regardless if we the plan has

> >paid for it before or not the State commissioner has decided that they will

> >remain with the policy of not paying for HBOT.

> >

>

>Darin,

>

>Two errors on the part of Texas Medicaid/Chips:

>

>1. Once a child receives reimbursement for a treatment and/or service then

>that same treatment/service cannot be denied to another child with the same

>or similar diagnosis.

>

>2. Denial of treatment cannot be made based on diagnosis. HBOT is an

>FDA-approved treatment for 13 indications. You are seeking an off-label use

>of HBOT, and are denied HBOT solely because of diagnosis. This is clearly a

>violation of not only the Medicaid law for children but also the Americans

>with Disabilities Act.

>

>A few legal references as found under EPSDT decisions at

>http://www.healthlaw.org

>

>

>(4) L. v. Cuomo, 588 N.Y.S.2d 85, 88 (Sup. Ct. 1991) New York

>Medicaid required to fund Clozapine. The court noted that A[c]ost alone, or

>unique but necessary medical care for Medicaid recipient have not been a

>bar to Medicaid Coverage.@

>

>2) Visser v. , 756 F. Supp. 501, 506 (D.C. Kan. 1990) Kansas Medicaid

>required to fund Clozapine. The court held that exclusion of this drug

>violates 42 C.F.R. '440.230© Abecause it is an arbitrary reduction in the

>scope of that service to otherwise eligible individuals, solely on the

>basis of their illness or condition. "

>

>2) Montoya v. , 654 F. Supp. 511 (W.D. Tex. 1987) The court held

>that Texas Medicaid's policy of capping in-patient hospital expenses at

>$50,000 per year effectively denied liver transplants to two child

>plaintiffs and that this dollar cap resulted in an arbitrary and

>unreasonable exclusion of medically necessary treatment for these children.

>The court rejected Texas Medicaid's argument about limited funds as most

>beneficiaries did not exceed the cap and the financial impact on the

>program would be minimal.

>

>3) Simpson v. , 480 F. Supp. 97 (D. Vt. 1979) The court rejected

>Vermont Medicaid's rule that provided eyeglasses based on specific

>diagnosis and not on degree of vision impairment.

>

>(1) Preterm, Inc. v. Dukakis, 591 F.2d 121, 126 (1st Cir. 1979) cert denied

>441 U.S. 952 (1979) The Court held that Massachusetts Medicaid cannot

>single out one medical procedure such as abortion and limit access to this

>service to life or death situations. Such limitation crosses the line

>between permissible discrimination based upon the degree of medical need

>and enters into an area of forbidden discrimination based upon medical

>condition. Massachusetts Medicaid cannot deny coverage of the only

>available treatment for this medical condition

>

>(2) Hearn v. Beye, 57 F. 3rd 906, 911 (10th Cir. 1995) cert den. __ U.S.

>__, 116 S.Ct. 569 The court held that Colorado statute prohibiting Medicaid

>funding of abortions in case of rape or incest illegally denies coverage

>based upon diagnosis or condition. Restricting access to this treatment is

>arbitrary as this denial of coverage is not in conformity with a uniform

>standard of medical need.

>

>(1) Pinnecke v. Preisser, 623 F.2d 546, 549 (8th Cir. 1980) The Court held

>that Iowa Medicaid's refusal to cover gender reassignment surgery violated

>the Medicaid Act and stated that " [a] state plan absolutely excluding the

>only available treatment known for a particular condition must be

>considered an arbitrary denial of benefits based solely on the " diagnosis,

>type of illness, or condition.@ The court noted that treatment must be

>viewed in light of medical science/knowledge as it exists when the

>treatment issue arises.

>

>(4) Dexter v. Kirschner, 972 F.2d 1113 (9th Cir. 1990) Arizona Medicaid

>denied coverage for allogenic bone marrow transplants, although it covered

>other types of marrow transplants. The court noted that '13969((I), which

>relates to Medicaid coverage of transplant procedures, created a special

>situation where Congress gave states discretion to provide funding for some

>types of transplants but not others. State Medicaid decision cannot be

>arbitrary. Once a state elects to cover a type of transplant, it may not

>deny the same procedure to otherwise eligible recipients.

>

>[i.e., if coverage is allowed for 13 " approved " conditions then coverage

>can be extended to brain-injury. Denial cannot be based on diagnosis.]

>

>(3) Meuseberger v. Palmer, 900 F.2d 1280 (8th Cir. 1990) The court held

>that Iowa Medicaid was required to cover a pancreas transplant as Iowa

>Medicaid=s policy was to fund all non-experimental transplants and expert

>testimony supported the conclusion that this surgery was not experimental.

>

>[With before/after SPECT-scan evidence HBOT has proven efficacy and thus

>HBOT is not experimental.]

>

>2) Ledet v. Fischer, 638 F. Supp. 1288 (M.D. La. 1986) Louisiana Medicaid

>excluded coverage of eyeglasses except for treatment as part of cataract

>surgery. The court initially denied a preliminary injunction, but later

>held that Louisiana Medicaid violated 42 C.F.R. 440.230( because the

>denial did not effectuate the " purpose@ of the Medicaid Act, and that the

>State's denial discriminated on the basis of disability, i.e. the inability

>to see.

>

>(5) Jeneski v. Myers, 163 Cal.App. 3d 18, 209 Cal.Rptr. 178, 186 n.9, 187

>(Cal Ct. of Appeal 1985) limited by Cowan v. Meyers, 187 Cal. App. 3d 968,

>232 Cal Rptr. 299 (Cal. App., 3d Dist 1986) cert denied sub nom Kizer v.

>Jeneski, 471 U.S. 1136 (1985). The court held that California Medicaid

>could not totally exclude drugs that may be medically necessary for some

>beneficiaries. Such exclusion violated the Medicaid Act's prohibition

>against discrimination based upon medical diagnosis or condition.

>

>(1) v. ston, 701 F.2d 337, 340 (5th Cir. 1983) The court held

>that Texas Medicaid violated the Medicaid Act by excluding medically

>necessary dental services that are covered as EPSDT services in the state

>plan.) This case describes the relationship between a state that

>voluntarily participates in the Medicaid program and the federal

>government. " Texas, like most states, has taken a bite out of the carrot of

>cooperative federalism and is, accordingly, subject to the federal stick .

>. . "

>

>

>

> >I sent her documents showing that other states have been mandated to pay by

> >the courts and her reply was Texas stance is as it is. The commissioner

> >stills refuses to change the policy and I have done all I can do for you at

> >this point.

> >

> >I explained to her that we are in the process of filling lawsuit and the

> >attorney will win the case more than likely why do we have to push it and

> >waste money that could be spent on health care. She had no reply.

> >

> >Also there is another lady that has recently been denied and her plan is

> >supposed to be covered by house bill 1676 and they told her they are denying

> >her because Cerebral Palsy is not an acquired brain injury and House bill

> >1676 only covers acquired brain injury. I thought there was only two types

> >genetic or acquired and to me Cerebral palsy is not genetic. So how do they

> >figure it is not acquired.

> >

> >

> >Recently there was a child here in Texas that was also denied a wheelchair

> >from Medicaid because it was two soon for him to get on they only cover

> every

> >five years. Well, his chair had no padding left on it and it had a ply board

> >seat because of his tone he was developing pressure sores and they told the

> >parents they had to wait. The kicker is he only liked two months till the

> >five years and they still said no. What kind of madness is that they would

> >rather him go to the hospital with pressure sores and pay expensive bills

> >than to waive the two months and let him get the new chair.

>

>

>4) Starkweather v. Wing, _A.D.2d _, 662 N.Y.S.2d 658 (4th Dept., NYS,

>(1997) The court required New York Medicaid to cover a customized, power

>wheelchair " to increase the independence and functional ability of

>petitioner's infant, especially in emergency situations, and to prevent the

>development of learned helplessness. "

>

>

> >Just wanted to keep you all updated.

>

>Keep after them.

>

>

>

>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

> " For everyone who asks receives; he who seeks finds; and to him who knocks,

>the door will be opened. " [Luke 11:10]

>

>

> Freels

>2948 Windfield Circle

>Tucker, GA 30084-6714

>770/491-6776 (phone and fax)

>509/275-1618 (efax, sends fax as email attachment)

>mailto:dfreels@...

>

>http://www.freelanceforum.org/davidfreels

>

>

>

>_._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._.

>Unrestricted downloads of 50+ pdf files on HBOT efficacy

>medicaid/files/ and

>HDO-documentation/files/

>

>Download your state EPSDT program

>http://www.hcfa.gov/medicaid/stateplan/Map.asp by doing a search on the

>word " ameliorate " . State Medicaid websites

>http://www.medi-cal.ca.gov/RelSites_Oth_States.asp . Medicaid waiver

>programs: http://www.geocities.com/HotSprings/Villa/1029/medicaid.html

>

>Find a hyperbaric clinic http://www.netnet.net/mums/hbolist.htm

>

>HBOT can save billions of dollars and millions of heartaches. Subscribe to

> by sending a blank email to

>mailto:medicaid-subscribe

>

>Unsubscribe? Click here mailto:medicaid-unsubscribe .

>

>

[Guest guest]

Has Blue Cross/Blue Shield ever paid for a cp child to have HBOT in Texas?

D Hurd

Re: [ ] Regarding the Texas Case

> ,

>

> Man you are a wealth of information I can't thank you enough. IM keeping

the

> pressure on as much as I can. In fact I just called Ford back at

the

> governors office she is not in I wanted to recite the email you just sent

to

> me. Yes, Chip's has covered it before. They also processed a claim for

Blue

> Cross Blue Shield and paid for it for a child with CP. and the policy is

the

> same as everyone else's that was denied. Some of the claims I have been

> looking at here in Texas that has been covered by Blue Cross it says at

the

> bottom of the page Tex chip Medical review. I called and found out Chip's

is

> processing these claims and there paying for this procedure. However they

are

> denying us. If you will look on the information I sent you from Blue Cross

> you will see the words at the bottom of one of the pages.

>

> Darin

>

>

>

[Guest guest]

- I also want to thank you. You are STILL that beacon in the night.

e

[Guest guest]

>Just wanted to update you all. I haven't heard much from the attorney but I

>did speak to the Governors office here in Texas to Ford. I explained

>and sent proof where Medicaid or I should say the CHIP " S program better know

>as Children's health insurance program had paid for HBOT before I even sent

>her the documents. Her reply to me today was regardless if we the plan has

>paid for it before or not the State commissioner has decided that they will

>remain with the policy of not paying for HBOT.

>

Darin,

Two errors on the part of Texas Medicaid/Chips:

1. Once a child receives reimbursement for a treatment and/or service then

that same treatment/service cannot be denied to another child with the same

or similar diagnosis.

2. Denial of treatment cannot be made based on diagnosis. HBOT is an

FDA-approved treatment for 13 indications. You are seeking an off-label use

of HBOT, and are denied HBOT solely because of diagnosis. This is clearly a

violation of not only the Medicaid law for children but also the Americans

with Disabilities Act.

A few legal references as found under EPSDT decisions at

http://www.healthlaw.org

(4) L. v. Cuomo, 588 N.Y.S.2d 85, 88 (Sup. Ct. 1991) New York

Medicaid required to fund Clozapine. The court noted that A[c]ost alone, or

unique but necessary medical care for Medicaid recipient have not been a

bar to Medicaid Coverage.@

2) Visser v. , 756 F. Supp. 501, 506 (D.C. Kan. 1990) Kansas Medicaid

required to fund Clozapine. The court held that exclusion of this drug

violates 42 C.F.R. '440.230© Abecause it is an arbitrary reduction in the

scope of that service to otherwise eligible individuals, solely on the

basis of their illness or condition. "

2) Montoya v. , 654 F. Supp. 511 (W.D. Tex. 1987) The court held

that Texas Medicaid's policy of capping in-patient hospital expenses at

$50,000 per year effectively denied liver transplants to two child

plaintiffs and that this dollar cap resulted in an arbitrary and

unreasonable exclusion of medically necessary treatment for these children.

The court rejected Texas Medicaid's argument about limited funds as most

beneficiaries did not exceed the cap and the financial impact on the

program would be minimal.

3) Simpson v. , 480 F. Supp. 97 (D. Vt. 1979) The court rejected

Vermont Medicaid's rule that provided eyeglasses based on specific

diagnosis and not on degree of vision impairment.

(1) Preterm, Inc. v. Dukakis, 591 F.2d 121, 126 (1st Cir. 1979) cert denied

441 U.S. 952 (1979) The Court held that Massachusetts Medicaid cannot

single out one medical procedure such as abortion and limit access to this

service to life or death situations. Such limitation crosses the line

between permissible discrimination based upon the degree of medical need

and enters into an area of forbidden discrimination based upon medical

condition. Massachusetts Medicaid cannot deny coverage of the only

available treatment for this medical condition

(2) Hearn v. Beye, 57 F. 3rd 906, 911 (10th Cir. 1995) cert den. __ U.S.

__, 116 S.Ct. 569 The court held that Colorado statute prohibiting Medicaid

funding of abortions in case of rape or incest illegally denies coverage

based upon diagnosis or condition. Restricting access to this treatment is

arbitrary as this denial of coverage is not in conformity with a uniform

standard of medical need.

(1) Pinnecke v. Preisser, 623 F.2d 546, 549 (8th Cir. 1980) The Court held

that Iowa Medicaid's refusal to cover gender reassignment surgery violated

the Medicaid Act and stated that " [a] state plan absolutely excluding the

only available treatment known for a particular condition must be

considered an arbitrary denial of benefits based solely on the " diagnosis,

type of illness, or condition.@ The court noted that treatment must be

viewed in light of medical science/knowledge as it exists when the

treatment issue arises.

(4) Dexter v. Kirschner, 972 F.2d 1113 (9th Cir. 1990) Arizona Medicaid

denied coverage for allogenic bone marrow transplants, although it covered

other types of marrow transplants. The court noted that '13969((I), which

relates to Medicaid coverage of transplant procedures, created a special

situation where Congress gave states discretion to provide funding for some

types of transplants but not others. State Medicaid decision cannot be

arbitrary. Once a state elects to cover a type of transplant, it may not

deny the same procedure to otherwise eligible recipients.

[i.e., if coverage is allowed for 13 " approved " conditions then coverage

can be extended to brain-injury. Denial cannot be based on diagnosis.]

(3) Meuseberger v. Palmer, 900 F.2d 1280 (8th Cir. 1990) The court held

that Iowa Medicaid was required to cover a pancreas transplant as Iowa

Medicaid=s policy was to fund all non-experimental transplants and expert

testimony supported the conclusion that this surgery was not experimental.

[With before/after SPECT-scan evidence HBOT has proven efficacy and thus

HBOT is not experimental.]

2) Ledet v. Fischer, 638 F. Supp. 1288 (M.D. La. 1986) Louisiana Medicaid

excluded coverage of eyeglasses except for treatment as part of cataract

surgery. The court initially denied a preliminary injunction, but later

held that Louisiana Medicaid violated 42 C.F.R. 440.230( because the

denial did not effectuate the " purpose@ of the Medicaid Act, and that the

State's denial discriminated on the basis of disability, i.e. the inability

to see.

(5) Jeneski v. Myers, 163 Cal.App. 3d 18, 209 Cal.Rptr. 178, 186 n.9, 187

(Cal Ct. of Appeal 1985) limited by Cowan v. Meyers, 187 Cal. App. 3d 968,

232 Cal Rptr. 299 (Cal. App., 3d Dist 1986) cert denied sub nom Kizer v.

Jeneski, 471 U.S. 1136 (1985). The court held that California Medicaid

could not totally exclude drugs that may be medically necessary for some

beneficiaries. Such exclusion violated the Medicaid Act's prohibition

against discrimination based upon medical diagnosis or condition.

(1) v. ston, 701 F.2d 337, 340 (5th Cir. 1983) The court held

that Texas Medicaid violated the Medicaid Act by excluding medically

necessary dental services that are covered as EPSDT services in the state

plan.) This case describes the relationship between a state that

voluntarily participates in the Medicaid program and the federal

government. " Texas, like most states, has taken a bite out of the carrot of

cooperative federalism and is, accordingly, subject to the federal stick .

.. . "

>I sent her documents showing that other states have been mandated to pay by

>the courts and her reply was Texas stance is as it is. The commissioner

>stills refuses to change the policy and I have done all I can do for you at

>this point.

>

>I explained to her that we are in the process of filling lawsuit and the

>attorney will win the case more than likely why do we have to push it and

>waste money that could be spent on health care. She had no reply.

>

>Also there is another lady that has recently been denied and her plan is

>supposed to be covered by house bill 1676 and they told her they are denying

>her because Cerebral Palsy is not an acquired brain injury and House bill

>1676 only covers acquired brain injury. I thought there was only two types

>genetic or acquired and to me Cerebral palsy is not genetic. So how do they

>figure it is not acquired.

>

>

>Recently there was a child here in Texas that was also denied a wheelchair

>from Medicaid because it was two soon for him to get on they only cover every

>five years. Well, his chair had no padding left on it and it had a ply board

>seat because of his tone he was developing pressure sores and they told the

>parents they had to wait. The kicker is he only liked two months till the

>five years and they still said no. What kind of madness is that they would

>rather him go to the hospital with pressure sores and pay expensive bills

>than to waive the two months and let him get the new chair.

4) Starkweather v. Wing, _A.D.2d _, 662 N.Y.S.2d 658 (4th Dept., NYS,

(1997) The court required New York Medicaid to cover a customized, power

wheelchair " to increase the independence and functional ability of

petitioner's infant, especially in emergency situations, and to prevent the

development of learned helplessness. "

>Just wanted to keep you all updated.

Keep after them.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

" For everyone who asks receives; he who seeks finds; and to him who knocks,

the door will be opened. " [Luke 11:10]

Freels

2948 Windfield Circle

Tucker, GA 30084-6714

770/491-6776 (phone and fax)

509/275-1618 (efax, sends fax as email attachment)

mailto:dfreels@...

http://www.freelanceforum.org/davidfreels