--------- Begin forwarded message ----------
From: jfa(AT)telesys.tnet.com (Justice-For-All Moderator)
To: justice(AT)mailbot.com
Subject: Urgent: Helth Care For All (Desario)
Date: Wed, 15 Apr 1998 18:40:44 -0700 (MST)
Message-ID: <m0yPdfQ-00004VC(AT)telesys.tnet.com>
Justice For All
jfa(AT)mailbot.com
Urgent: Alert on right to health care for
persons with rare, unusual or costly treatment
Health Care For All!
Persons with rare or unusual conditions or costly treatment needs may be
excluded from covered services if a recent judicial ruling is not
reversed.
WE NEED YOUR HELP IMMEDIATELY! The Administration needs to hear your
concerns
about a recent judicial ruling (Desario v. Thomas, No. 97-6027, U.S.
Court of
Appeals, 2nd Circuit, February 24, 1998) which has the potential to
undermine
the Medicaid entitlement and make a mockery of the Consumer Bill of
Rights.
The Desario case invites States in the Medicaid program (as well as
private
employers and private insurers) to rely on exclusive lists that limit
benefits
to the needs of the "average patient" without regard to quality outcomes,
consideration of medical necessity for individual patients, and with no
exceptions, particularly for individuals with disabilities or chronic
illnesses.
The Administration failed to meet the filing deadline of April 10th to
join
the plaintiffs and 46 national and local disability organizations in
requesting a rehearing of the Desario case by the full Second Circuit
Court of
Appeals. Although it missed the deadline, the Administration can still
participate if it acts quickly, and we believe, it may do so if
sufficient
public pressure is applied. It is essential that the White House,
Department
of Health and Human Services Secretary Donna Shalala, and HCFA
Administrator,
Nancy-Ann Min DeParle, learn how your organization and its members feels
about
the use of exclusive lists to define benefit limits without regard to
medical
necessity or individual exception.
A three-judge panel of the Second Circuit Court of Appeals has reversed a
federal district court ruling in the Desario case that prohibited the
Connecticut Medicaid program from relying on an exclusive list of durable
medical equipment (DME) to deny all requests for specific devices that
were
not on the list even where they met the definition of the covered benefit
category and were determined to be medically necessary by the recipients'
treating physicians. In our view, the judges misconstrued a brief
submitted
by the Department of Health and Human Services, which explained that
States
can determine the "amount, duration, and scope of services" under the
Medicaid
program and discussed the use of lists generally, but did not address
the use
of exclusive lists which is central to the Desario case. The position
adopted
by the Second Circuit is inconsistent with Department policy on lists
for drug
formularies, inconsistent with transplant guidelines based on
considerations
of medical necessity, inconsistent with Medicaid policy letters for
different
types of DME, inconsistent with the operation of Medicaid programs
throughout
the country, and inconsistent with every federal court decision that
dealt
with the authority of state Medicaid programs to exclude particular
types of
treatment within a Medicaid coverage category. In addition, the
position of
the Second Circuit undermines the value of an entitlement to Medicaid by
permitting the denial of medically necessary treatments, within a covered
Medicaid benefit category, simply because they are not on an arbitrarily
established exclusive list.
Not content to set aside more than twenty years of legal precedents in
the
Medicaid program, the three-judge panel then explained that the
appropriate
test of whether the Medicaid program is meeting the federal requirement
that
"[e]ach service is sufficient in amount, duration, and scope to
reasonably
achieve its purpose" is whether it meets the needs of the Medicaid
population
as a whole rather than the needs of individual patients who may have
rare,
unusual or costly treatment needs. The Medicaid population as a whole
includes a majority of healthy individuals who qualify for Medicaid for
reasons unrelated to health status (e.g. low income families with
children and
low income persons over 65 years old.) In unambiguously brutal candor,
the
three-judge panel explained that a Medicaid program could withhold
medically
necessary treatments within a covered category of care even if it
imposed a
"death sentence" on some Medicaid recipients. Alarmed at this prospect,
the
Consortium for Citizens with Disabilities (CCD) Health Task Force has
implored
Secretary Shalala: (1) "to clarify the appropriate use of lists by
Medicaid
programs with adequate consumer protections that contain effective
procedures
that allow for exceptions on the basis of medical necessity and ensure
that
lists are updated based on new developments; (2) acknowledge the
vulnerability
of Medicaid patients who do not have the resources to go elsewhere for
medically necessary treatments as the judges suggest; and (3) clarify
that
discrimination on the basis of diagnosis or condition is a violation of
the
Medicaid statute." Recognizing the vulnerability of persons with
disabilities
who often have higher cost health care needs in a health care system
which is
oriented to profit in the absence of effective mechanisms to spread risk
throughout the population, it is crucial that the Department of Health
and
Human Services demonstrate through the Medicaid program the standards of
public accountability which are needed for all insurers to respect.
Having seen the unfortunate stalemate that occurred in the Advisory
Commission
on Consumer Protections and Quality in the Health Care Industry as
employers
and health plans refused to be bound by a standard benefit package, it is
extremely important that insurers not be permitted to deprive persons
with
rare, unusual or costly treatment needs equal access to medically
necessary
services which are consistent with the criteria for covered benefit
categories, provide life saving or other therapeutic benefits, represent
the
current generally accepted standard for medical practice for specific
conditions, and for which there are no other equally effective, less
costly
alternatives.
In the health care marketplace where 10% of the population accounts for
72% of
total health care expenditures, insurers are well aware that the needs of
people with rare or medically complex conditions actually represent a
small
percent of the population but account for a large percent of total
health care
costs. The Second Circuit judgment in the Desario case legitimates
discrimination on the basis of diagnosis which substitutes a form of
"statistical necessity" for "medical necessity", and represents a
significant
threat to every person who may develop a rare, unusual, or costly
treatment
need in the future.
Recognizing that health care policy is being formulated by the way we
and the
Administration respond to potentially dangerous precedents, like the
Desario
case, this is an important opportunity to urge the Department of Health
and
Human Services to support a rehearing of the Desario case and clarify its
commitment to consumer protections that recognize the unique needs of the
individual. The standards used by the Second Circuit would jeopardize
the
right of patients to appeal denials of medically necessary treatments,
even
when they are consistent with the criteria that the health plan has used
for
defining the covered benefit category. Instead of encouraging the use
of the
most effective treatments for various conditions, the standard proposed
by the
Second Circuit panel would encourage health plans to utilize exclusive
lists
to define health benefits without procedures for allowing exceptions on
the
basis of medical necessity or updating the lists based on new
developments.
The Second Circuit will likely decide over the next two to three weeks
whether
to grant a rehearing of the Desario case by the full Court. It is
critical
that the Department of Health and Human Services and the White House be
made
aware of your concerns that the judges' ruling in the Desario case sets a
dangerous precedent not only in the Medicaid program but also in
Medicare and
private insurance as well.
Please call or fax immediately the key persons in the Administration who
have
ultimate decision-making responsibility for the Medicaid program, and
tell
them to support the plaintiffs' petition for rehearing. These include:
President Bill Clinton, 1600 Pennsylvania Avenue, N.W., Washington, D.C.
20500; telephone: (202) 456-1414; fax: (202) 456-2461;
Secretary Donna Shalala, Department of Health and Human Services, 615-F
Hubert H. Humphrey Bldg., 200 Independence Avenue, S.W., Washington,
D.C. 20201; telephone: (202) 690-7000; fax: (202) 690-7595;
Nancy-Ann Min DeParle, HCFA Administrator, Health Care Financing
Administration, 7500 Security Boulevard, Baltimore, Maryland 21244-1850;
telephone: (202) 690-6726; fax: (202) 690-6262.
The Center on Disability and Health would appreciate receiving a copy of
your
letters to the Administration to assist us in developing strategies for
using
civil rights law to promote health care reform. It is important that
these
calls and faxes are received by federal officials no later than April
24th
when there is still time to influence the decision to rehear the Desario
case.
Thank you for your immediate attention to this urgent matter.
Bob Griss, Director
Center on Disability and Health
1522 K Street, N.W., Suite 800
Washington, D.C. 20005
Telephone: (202) 842-4408
Fax: (202) 842-2402
E-mail: Bgrisscdh(AT)aol.com
-- Fred Fay jfa(AT)mailbot.com Justice For All Moderator http://www.mailbot.com/justice--------- End forwarded message ---------- _____________________________________________________________________ You don't need to buy Internet access to use free Internet e-mail. Get completely free e-mail from Juno at http://www.juno.com Or call Juno at (800) 654-JUNO [654-5866] --------- End forwarded message ----------
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