After 16 Years, Lawsuit Affecting Children Receiving Medicaid Concludes

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Mary Faithfull, Executive Director


In 1999, DRTx attorneys filed a class action lawsuit in the U.S. District Court in Tyler on behalf of eight children and other Medicaid beneficiaries under 21 years old who were denied medically necessary health services by Medicaid. Services.

The Alberto N. case alleged violations of the Medicaid Act, the Americans with Disabilities Act, and due process rights guaranteed by the 14th Amendment to the U.S. Constitution.

In December 2015, the 16-year-long struggle by Disability Rights Texas to improve Medicaid services for children came to end.

Because an enormous amount of effort goes into an impact case like Alberto N., I would like to personally thank all the staff over the years that worked on this case, and especially the following lawyers for their selfless commitment:

Maryann Overath—former DRTx attorney who developed and filed the case and stayed with it to its conclusion on a pro bono basis.

Maureen O’Connell—former DRTx attorney who helped develop and litigate the case.

Peter Hofer—senior attorney and litigation coordinator for DRTx who joined the case in 2000 and litigated it through to its completion.

And finally, we owe much gratitude to the named plaintiffs and their families. They stayed with the case and remained supportive over many years. Sadly, three of the named plaintiffs did not live to see the end of the lawsuit.

To these three children—Alberto, Alice, and Chelsea—and their families and loved ones, we dedicate our celebration of this long-awaited victory that will improve and, in many cases, save the lives of thousands of Texas children who require medically-necessary health services.

The Alberto N. lawsuit resulted in the following improvements to Texas Medicaid:

All Medically-Necessary Services

  • Established a definition of medical necessity for nursing and personal care services and Durable Medical Equipment and Supplies (DME). Texas Medicaid is required to use the “correct or ameliorate” standard from the EPSDT provision of the Medicaid Act.
  • Required Texas Medicaid to authorize all medically necessary nursing services, personal care services, and durable medical equipment and supplies.
  • Prohibited Texas Medicaid from placing limits, other than medical necessity, on the amount of medically necessary nursing and personal care services and DME and supplies. Texas Medicaid was applying hard caps or limits on nursing services and DME and supplies, for example.
  • Prohibited Texas Medicaid from denying or reducing services solely on the basis of diagnosis or type of illness (either requiring a certain diagnosis for a particular service, or denying a service because of a certain diagnosis, regardless of medical need).
  • Prohibited Texas Medicaid from requiring children to enter an institution to receive all of their medically necessary health services.
  • Required Texas Medicaid to make available to beneficiaries and providers all criteria, tools, and processes used to authorize services. Texas Medicaid was using undisclosed scoring tools and other criteria.

Therapy Services

  • Prohibited Texas Medicaid from having limits on physical, occupational, and speech therapy besides medical necessity (there had been a limit of two therapy sessions per-week regardless of medical need).
  • Required Texas Medicaid to provide therapy to beneficiaries under the age of 21 if needed to maintain function or slow the deterioration of function (before a beneficiary had to show improvement to get therapy).

Personal Care Services

  • Required Texas Medicaid to establish a new personal care services benefit for children; the PCS program, established as a result of this lawsuit, currently serves about 60,000 beneficiaries.

Private Duty Nursing Services

  • Prohibited Texas Medicaid from denying or reducing nursing on the basis that the child’s condition was “stable.”
  • Prohibited Texas Medicaid from denying or reducing nursing services for lack of medical necessity without first speaking with the child’s treating physician.
  • Prohibited Texas Medicaid from requiring parents or guardians to provide some or all of their child’s medically necessary nursing services

Notice and Appeal

  • Required Texas Medicaid to improve the notices it issues when it denies or reduces a service by explaining exactly why the service was being reduced or denied (instead of just stating “not medically necessary”)
  • Required Texas Medicaid to make changes to its fair hearing (appeal system), including prohibiting ex parte communication between Texas Medicaid and its hearings officers

Again, I am extremely grateful to all of our staff and former staff who stood with these children and families for so many years to ensure Medicaid beneficiaries under 21 receive the critical medical services they need.