Thursday, March 24, 2011

Texas parents sue Medicaid to get power wheelchair for 4-year-old son with CP

From The Southeast Texas Record:

TYLER, Texas - The parents of a child with cerebral palsy have filed a lawsuit against Texas Health and Human Services in an effort to force the commission to pay for a power wheelchair under the Texas Medicaid program.

Lindale residents plaintiffs Charlsie and Jeffrey A., as next friend of minor plaintiff C.A., filed suit against Thomas Suehs in his official capacity as executive commissioner of the Texas Health and Human Services Commission on March 15 in the Eastern District of Texas, Tyler Division.

"As a result of C.A.'s disabilities and health conditions, he cannot crawl, stand, or ambulate (walk) independently, and he cannot self-propel a manual wheelchair. Therefore, C.A. has a medical need for a power wheelchair for independent mobility," the suit states.

The plaintiffs claim the 4-year-old child is an eligible Medicaid beneficiary entitled to all medically necessary services, including durable medical equipment, under the Early and Periodic Screening, Diagnosis and Treatment program for Medicaid beneficiaries. The lawsuit states that the power wheelchair is considered durable medical equipment.

For the past two years, the parents have repeatedly requested authorization for the power wheelchair but have been denied. The denial was based in part on the parent's request for an attendant control, which the parents equated as providing the same as holding a child's hand while walking across the street.

"Independent powered mobility for C.A. will not only enable him to independently ambulate, but will also facilitate social and education integration, improve his psycho-social development, and enable him to grow to become a productive and integrated member of society," the suit claims. "Without independent mobility, C.A. may develop learned helplessness, and experience delays in both physical and cognitive domains."

The commission's letter regarding the wheelchair stated that the denial was because the child could not use the power wheelchair without the help of another person and therefore, does not have a medical need for a power wheelchair.

The Texas HHS is accused of violating the Social Security Act by denying the child his entitlement to all medically necessary durable medical equipment.

The lawsuit is asking the court to issue a preliminary and permanent injunction enjoining the defendant from violating the Social Security Act and to require the defendant to immediately provide and authorize all medically necessary services and durable medical equipment, plus an award of attorney's fees, costs and expenses.

The plaintiffs are represented by Peter Hofer of Disability Rights Texas in Austin and Mary Ann Overath of Texas Legal Services Center in Austin.

U.S. District Judge Michael H. Schneider is assigned to the case.