C.R. by and through Reed v. Noggle

559 F.Supp.3d 1323

C.R., a minor child, BY AND THROUGH her mother and legal guardian, Mary REED, Plaintiff,

v.Caylee NOGGLE, in her official capacity as Commissioner of the Department of Community Health, Defendant.

CIVIL ACTION NO. 1:19-cv-04521-LMM

United States District Court, N.D. Georgia, Atlanta Division.

Signed September 13, 2021

Joshua H. Norris, Law Office of Joshua H. Norris, Decatur, GA, for Plaintiff.

Mark J. Cicero, Michelle LeGrande, Department of Law, Atlanta, GA, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW ORDER

Leigh Martin May, United States District Judge

Plaintiff C.R. filed this suit against Defendant Caylee Noggle, in her official capacity as Commissioner of the Georgia Department of Community Health ("DCH"), on October 8, 2019.¹ Using 42 U.S.C. § 1983 as her vehicle, C.R. alleges that DCH violated the Medicaid Act, 42 U.S.C. § 1396 et seq. , various federal regulations implementing the Medicaid Act, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Court held a bench trial on June 9 and 10, 2021. See Dkt. Nos. [86, 87]. The parties subsequently submitted proposed findings of fact and conclusions of law, Dkt. Nos. [94, 95], and objections to those proposals, Dkt. Nos. [98, 99]. After due consideration of the evidence presented, the Court issues the following findings of fact and conclusions of law:

FINDINGS OF FACT

A. Background

1. The State of Georgia participates in the federal Medicaid program. DCH is responsible for administering Georgia's Medicaid program.² DCH must comply with the Medicaid Act and federal regulations that implement the Act.

2. Through the Children's Intervention Services ("CIS") program, DCH covers restorative and rehabilitative therapies for Medicaid beneficiaries under 21 years of age. These include speech therapy and feeding therapy.

3. C.R. is a five-year-old Medicaid beneficiary who suffers from multiple complex and chronic medical conditions. These include receptive and expressive language disorders, hypotonia, mandibular hypoplasia, oral dysphagia, GERD, bilateral hearing loss, hypotonic cerebral palsy, and craniofacial nerve palsy. As a result of these and other conditions, C.R. has difficulty feeding, communicating, and managing oral secretions such as saliva. C.R. has received speech therapy and feeding therapy for these issues.

4. Beginning in May 2017, Plaintiff received those therapies from Angela LaGambina at Cobblestone Therapy Group ("Cobblestone"). Ms. LaGambina treated C.R. through June 2020.

B. C.R.’s May 2019 Request for Prior Authorization of Additional Units of Speech and Feeding Therapy

i. Background

1. Medicaid is a payor of last resort. In other words, if a Medicaid beneficiary has private health insurance, Medicaid pays for covered care only to the extent the private insurance company does not.

2. C.R. is insured by United Healthcare.

3. Accordingly, Medicaid can reimburse Cobblestone for C.R.’s speech and feeding therapy only to the extent United Healthcare does not pay for those services.

4. Heather Jones, Cobblestone's co-founder and billing manager, testified that United Healthcare has informed Cobblestone it will cover 37 therapy visits per year.

5. Ms. Jones testified that United Healthcare has both paid and denied claims for therapy made after C.R. has used her 37 permitted visits. Ms. Jones said that in 2019 United Healthcare paid for 121 or 122 visits. Thus, Ms. Jones believes that C.R. may, despite United Healthcare's communications to the contrary, be entitled to unlimited visits.

6. According to Ms. Jones, C.R.’s policy with United Healthcare contains a $5,000 annual deductible. United Healthcare will not pay for C.R.’s therapy sessions until the value of her claims during a calendar year exceeds $5,000. Before C.R. meets her annual deductible, and whenever United Healthcare refuses to pay a claim for C.R.’s therapy, Cobblestone attempts to bill Medicaid.

7. Providers use "billing codes" to seek reimbursement from Medicaid for speech and feeding therapy. Speech therapy and feeding therapy are assigned separate codes and must be billed separately.

8. For billing purposes, Medicaid divides speech and feeding therapy into "units" of time. For speech and feeding therapy, each unit denotes a session lasting at least 15 minutes. A provider billing Medicaid for a unit of speech or feeding therapy must provide the service for a minimum of 15 minutes; there is no maximum length of time. Once a provider passes the 15-minute threshold, the provider receives a fixed payment from Medicaid, regardless of the therapy session's duration.

9. The CIS program allows beneficiaries to receive eight total units of speech and feeding therapy per month without prior authorization. To bill Medicaid for additional units of either service, the beneficiary must receive prior authorization from DCH.

10. Before May 2019, Ms. LaGambina provided three sessions per week of speech and feeding therapy to C.R. Each session lasted one hour. Each hour consisted of approximately 30 minutes of speech therapy and 30 minutes of feeding therapy. This treatment plan required more than CIS's eight permitted units. Before May 2019, C.R. had received prior authorization for those additional units.

11. At trial, DCH asked Ms. Jones whether Cobblestone could have provided an hour of continuous speech therapy or an hour of continuous feeding therapy to C.R. Doing so would have required fewer total therapy sessions, and therefore fewer units, than the 30-minute sessions Cobblestone provided. Ms. Jones stated that hourlong sessions would be financially infeasible for Cobblestone, given Medicaid's reimbursement rate and the cost of operating the clinic. Ms. Jones, a licensed speech language pathologist, also testified that such a therapy program would be ineffective for, and injurious to, C.R.

ii. C.R.’s Request for Prior Authorization of Additional Units

12. CIS requires treatment providers seeking prior authorization for additional units of care to submit plans of care that cover the following six months.

13. On May 8, 2019, Ms. LaGambina created a plan of care covering the period from June 1, 2019 to November 30, 2019. The plan, which spans several pages, describes C.R.’s medical history and details delays in the development of her motor, speech, language, feeding, and swallowing skills.

a. The plan states that C.R. is unable to consistently vocalize volitionally and cannot consistently consume liquids or solids. C.R. had, however, demonstrated some progress. She had improved her ability to manage oral secretions on her own and had begun to generate productive coughs.

b. The plan listed several goals for C.R.’s next six months of treatment. These included anticipating items in a pattern, sealing her lips in 80% of trials, and tolerating tastes of pureed food without aspirating.

14. The plan of care includes the same quantity of speech and feeding therapy that C.R. had been receiving and for which C.R. had previously been approved: three 60-minute sessions per week.

15. Dr. Dennis Selva, C.R.’s primary care physician, certified that he reviewed the plan of care and that the requested treatment was medically necessary. Dr. Selva testified that he did not conduct any independent research before signing the plan of care but deferred to Ms. LaGambina due to her specialist expertise and experience treating C.R.

16. On May 22, 2019, Dr. Selva signed an order for six months of speech and feeding therapy consisting of three 60-minute sessions per week.

17. On C.R.’s behalf, Cobblestone submitted a request for prior authorization of the excess units necessary to cover Dr. Selva's ordered amount of therapy.³

C. The Denial of C.R.’s Request

1. Under a contract between DCH and a company called Alliant Health Solutions ("Alliant"), Alliant reviews requests for prior authorization submitted by Medicaid beneficiaries participating in the CIS program. These include requests for prior authorization of additional units of speech and feeding therapy.⁴

2. Alliant delegated to Bassha Walker, a licensed speech language pathologist, the task of reviewing C.R.’s request.

3. Initially, Alliant issued a technical denial of C.R.’s request. The denial asked for updated audiological data and information regarding C.R.’s swallowing therapy. Ms. LaGambina testified that Cobblestone provided the requested information.

4. Ms. Walker subsequently determined that the units of speech and feeding therapy C.R. requested were not medically necessary and denied the request in full.

5. In her testimony, Ms. Walker described three criteria she uses to determine medical necessity:

a. First, she references the definition contained in CIS's manual. That definition embraces treatments "the omission of which could adversely affect the eligible member's medical condition." Dkt. No. [90] at 139.

b. Second, Ms. Walker uses a definition from the American Speech Language Hearing Association ("ASHA"). Under that definition, a "Medicaid claim[ ] may be supported when," among other things, the requested "treatment [is] expected to yield improvement within a reasonable amount of time." Id. at 141.

c. Third, Ms. Walker considers whether a child has demonstrated "some kind of quick, rapid change," or rapid improvement, "in their skills." Id. at 152. Ms. Walker testified that she created this criterion herself, based on her clinical experience, training, and guidelines from private insurers.

6. Ms. Walker testified that, after reviewing the plan of care, she believed C.R. had not shown rapid improvement and denied C.R.’s request for additional units of speech and feeding therapy on that basis. Ms. Walker said that in her view C.R. had made only small improvements since 2017, and those improvements were not sufficiently significant to warrant intensive therapy.

7. Alliant and DCH notified Cobblestone and C.R.’s parents of Ms. Walker's denial in four documents.

a. DCH issued two identical notifications of the

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