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Bond v. Stanton


decided: July 27, 1981.


Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 73-C-184 -- Allen Sharp, Judge .

Before Cummings, Chief Judge, Swygert, Senior Circuit Judge, and Jameson, Senior District Judge.*fn*

Author: Swygert

In this class action lawsuit, before our court for the second time, plaintiffs allege that various Indiana state officials have failed to implement a mandatory federal health program critical to the welfare of Indiana's needy children. According to 42 U.S.C. § 1396d(a)(4)(B), Early and Periodic Screening, Diagnosis and Treatment (EPSDT), a preventive health program for children, must be provided by each state participating in the federal Medicaid program.*fn1

In March 1974, the district court enjoined the defendants from continuing to administer their program in violation of 42 U.S.C. § 1396d(a)(4)(B) and the regulations and guidelines thereunder. The defendants were ordered to implement a satisfactory EPSDT program in accordance with federal law. We affirmed that judgment noting:

The mandatory obligation upon each participating state to aggressively notify, seek out and screen persons under 21 in order to detect health problems and to pursue those problems with the needed treatment is made unambiguously clear by the 1967 act and by the interpretative regulations and guidelines.

504 F.2d 1246, 1251 (7th Cir. 1974).

Indiana submitted its proposed plan in March 1975, and in August 1976, the district court found that Indiana's EPSDT program was in compliance. After the plaintiffs' motion to amend the judgment was denied in May 1980, plaintiffs filed this appeal. For the reasons that follow, we reverse.


The thrust of the plaintiffs' argument is that Indiana still fails to recognize the extent to which Congress in enacting EPSDT imposed additional responsibilities on the states which had not been required under the regular Medicaid program. In our prior opinion, we quoted and endorsed the Department of Health, Education and Welfare (HEW) 1973 regulation guidelines for EPSDT, issued as part of the Medical Assistance Manual, Part 5, Sections 5-70-00 et seq. (MSA-PRG-21), which state: "Congress intended to require States to take aggressive steps to screen, diagnosis and treat children with health problems." MSA-PRG-21, § 5-70-20(A).*fn2

A penalty of one percent of the amount payable by the Government to a state can be assessed for failure to provide the required services. 42 U.S.C. § 603(g). The penalty is imposed if a state fails to inform families of the health screening services, provide or arrange for screening where requested, or arrange for corrective treatment in response to the results of the screening. We previously noted that the failure of the federal administrative agency to assess a penalty did not preclude our court from ordering declaratory and injunctive relief. 504 F.2d at 1251.*fn3

In our prior opinion, we considered the extent of Indiana's 1974 EPSDT program and found that it was inadequate:

Letters were sent to Medicaid recipients which advised that caseworkers would visit the recipient and that "the caseworkers will want to know if you feel that your children have any health problems." Medicaid providers were advised that caseworkers would give each recipient a form "with instructions to contact their choice of appropriate Medicaid providers, should a health problem be reported by the recipient, observed by the caseworker, or should the recipient request any type of medical service ...."

504 F.2d at 1250. We noted that the defendants themselves had summarized the nature of Indiana's compliance as follows:

Any of the eligible children in this state can secure all of the requested services merely by requesting them from their local health provider .... (Recipients) need merely take their children to the health provider of their choice and obtain for their children the required services.

504 F.2d at 1250-51 (quoting from the defendants' reply brief). In sum, we stated that Indiana's "somewhat casual approach" to EPSDT did not conform to the aggressive search for early detection and treatment of child health problems mandated by the 1967 statute and its interpretative regulations and guidelines. 504 F.2d at 1251. The question before us is whether the district judge was clearly erroneous in finding that Indiana's EPSDT program was in compliance in 1976.

The plaintiffs allege that the program was and is deficient in three major and overlapping respects: failure to define a "screening package" or conduct "screens"; failure to identify Medicaid providers willing to perform screens; and failure to monitor screening and the required subsequent diagnosis and treatment where indicated.

A. Screens

It is not disputed that Indiana's 1976 screening plan required screening for general physical and mental defects, dental care and disease, and vision and hearing problems. The plaintiffs argue, however, that a more comprehensive approach was envisioned by Congress as set out in the HEW regulation guidelines which this court found to describe "what is required in the nature of case finding, screening, diagnosis and treatment," 504 F.2d at 1249. Those guidelines specified:

At a minimum screening should include: a health and developmental history (physical and mental); an assessment of physical growth; developmental assessment; inspection for obvious physical defects; ear, nose, mouth and throat inspection (including inspection of teeth and gums); screening tests for cardiac abnormalities, anemia, sickle cell trait, lead poisoning, tuberculosis, diabetes, infections and other urinary tract conditions; and assessment of nutritional status and immunization status. An assessment of this nature is necessary to identify individuals with potential or apparent physical or mental health and developmental problems requiring diagnosis and, possibly, treatment.

MSA-PRG-21, § 5-70-20(B)(1).*fn4

We agree with the plaintiffs that Indiana did not define the contents of its screening package with enough specificity to ensure that needy children in Indiana receive the thorough health screening intended by Congress. In so holding, we do not require that Indiana comply to the letter with every HEW guideline. We are of the view, however, that those guidelines well express the spirit of the statute in terms of the breadth of the screen intended. The special emphasis placed by Congress on a large scale preventive screening and treatment program indicates that Congress believed this health program would produce meaningful results. Without a thorough screening, including for example appropriate laboratory tests and a nutritional assessment, two diseases known to be among the leading health problems of poor children malnutrition and lead poisoning may well go undetected or unprevented.

General physical examinations may of course include all of the necessary features. Indiana, however, by requiring only a general physical examination (even with tests for vision, hearing, and dental or mental problems) leaves it to the provider to decide what services to perform.*fn5 Thus Indiana cannot "assure that screening ... will be available to all eligible individuals under 21 years of age," 45 C.F.R. § 249.10(a)(3)(iv) (1975), or that the services are "sufficient in amount, duration and scope to reasonably achieve their purpose." 45 C.F.R. § 249.10(a)(5)(i) (1975).*fn6

B. Medical Providers

Indiana has not discerned which Medicaid providers are willing and able to provide screens. Instead it is assumed that all medical providers can and will provide the necessary service. Defendant Wayne Stanton, Administrator of the Indiana Department of Public Welfare, conceded that no Medicaid providers have explicitly agreed to do EPSDT screening. Although the defendants contend that caseworkers sometimes aid recipients in choosing an appropriate provider, the record shows that recipients may simply be handed a general list of Medicaid providers who have never themselves been assessed for the ability or willingness to perform complete screens.

Pursuant to 45 C.F.R. § 205.146(c)(ii) (1975), a state must

provide or arrange for the provision of such screening services in all cases where they are requested. This means that a State must:

(A) Inform recipients requesting screening services of the names and locations of providers offering such services....

(emphasis added) For that reason, 45 C.F.R. § 249.10(a)(3)(i) requires the "establishment of administrative mechanisms to identify available screening and diagnostic resources...." (emphasis added)*fn7 The defendants have not complied with those requirements.

C. Monitoring for Screening, Diagnosis, and Treatment

Indiana has no way of knowing whether a child has received a complete screen. The record indicates that statistics are collected only on the basis of responses given on the "Medicaid Request for Payment" form submitted by Medicaid providers. Though question 33 on that form asks, "Was an examination performed for the EPSDT program?", it does not ask whether a complete screen was performed. An affirmative response is counted as a screen. Question 35 asks, "As a result of the screening, was further diagnosis and/or treatment required?" and an affirmative answer is also counted as a screen. Even if the answer is negative to both those questions, a "screen" is counted if the Medicaid provider bills for performing a physical, mental, eye or ear examination.

Besides not knowing whether complete screens are being performed, the defendants are not in compliance with the statutory mandate to provide "such health care, treatment and other measures to correct or ameliorate defects and chronic conditions discovered (from the screening), as may be provided in regulations of the Secretary." 42 U.S.C. § 1396d(a)(4)(B). Pursuant to 45 C.F.R. § 205.146(c)(iii) (1975), a state must

arrange for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is indicated by such screening services....*fn8

Regulation 249.10(a)(3)(iv) (1975) mandates that "treatment of conditions discovered ... will be available to all eligible individuals ...." (emphasis added).

This court has already recognized the mandatory obligation upon each state to pursue problems detected through screening with the necessary treatment. 504 F.2d at 1250. A failure to implement the treatment aspect of EPSDT unquestionably results in a failure of the entire program. Detection alone is meaningless without the appropriate follow-up.

For that reason, "(p)rompt transmittal of the results of the screening procedures is necessary so that diagnostic studies and treatment can be instituted without delay." MSA-PRG-21, 5-70-20(B)(8). By regulation, a state must

(t)ake steps to assist recipients needing diagnostic and treatment services so that such recipients are able to receive them within a reasonable time period. Initial diagnosis and treatment must be available normally within 60 days of the screening.

45 C.F.R. § 205.146(c)(1)(iii)(B). To avoid a penalty, the state must be able to document compliance with these conditions and "shall provide reports thereon as prescribed in this regulation and in Program Regulation Guides and Program Instructions issued by (HEW)." 45 C.F.R. § 205.146(c)(3). A regulation guideline on the subject of providing or arranging for corrective treatment states:

The report must describe the arrangements made to assist eligible individuals in obtaining treatment, with supporting documentation in the form of State regulations, staff instructions, provider manuals, or written provider agreements, and describe procedures for identification of individuals needing treatment services under EPSDT who did not receive such services, for purposes of (i) assisting them in receiving such service within a reasonable time normally not to exceed 60 days and (ii) demonstrating that State action or inaction is not the cause of such failure to receive services within 60 days of screening date.

MSA-PRG-32, § 5-70-30A(1)(c).

We have been able to discern no evidence of a form or other means of required or consistent feedback from the Medicaid provider who performs the screen back to the caseworker handling that recipient's file. In her deposition, Sherry Tollefson, Indiana Department of Public Welfare Supervisor of Program Administration, conceded that there was no such system. Moreover, as noted earlier, data collected on who was screened comes from the "Medicaid Request for Payment" form which can be returned up to twelve months after the screen is performed hardly sufficient to assure that needed treatment is actually received within sixty days. It appears that the defendants rely on the providers to perform the treatment or refer the patients, or on the recipient to request help from the caseworker. In our view, the statute requires more. The state must assure that arrangements are made for treating detected health problems.*fn9 Without feedback from the Medicaid provider who performs the screen, the caseworker cannot know who needs treatment and who is getting it. Monitoring of this aspect of the program is mandatory in order to prevent future health problems as Congress intended.

In short, we conclude that Indiana has still not complied with this court's mandate that "EPSDT programs must be brought to the recipients." 504 F.2d at 1251. As we read 42 U.S.C. § 1396d(a)(4)(B) and its regulations and guidelines, Indiana cannot assure that it provides a screen sufficiently comprehensive for the purpose intended or that it pursues those health problems detected with the necessary treatment. In our view, the defendants have relied too heavily on their previous Medicaid program and have failed to comply with federal law.

We therefore reverse the judgment of the district court and remand for proceedings consistent with this opinion.*fn10 In deciding this case, we have relied on the regulations and guidelines in effect at the time the district judge entered his order in August 1976. Since that time, more detailed regulations have been issued. Because nearly five years have elapsed between the 1976 judgment and the issuance of this opinion, and in the interest of both justice and judicial economy, the district judge on remand should assess Indiana's resubmitted plan according to currently applicable federal law.

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