The current contract provides that Delta shall only approve orthodontic treatment for those categorically needy children through age 20 who have a severely handicapping malocclusion. The contract requires that Delta use the Salzmann Handicapping Malocclusion Assessment Record Index ("Salzmann Index") to determine the degree of severity of the handicapping malocclusion. The purpose of the Salzmann Index is to provide an objective means for establishing priority for treatment of handicapping malocclusions in individual children. The Salzmann Index defines handicapping malocclusion as a condition which constitutes "a hazard to the maintenance of oral health and interfere[s] with the well-being of the child by adversely affecting . . . mandibular function or speech." The higher the numerical score, the more severe is the malocclusion.
The contract between the IDPA and Delta requires a score of 42 or above on the Salzmann Index to qualify for prior approval. The use of the Salzmann Index in evaluating the severity of malocclusions and the requirement of a score of 42 or above is disclosed to providers in the manual. The requirement of a score of 42 or above has not been adopted by the IDPA as a rule and, thus, the requirements of the Administrative Procedure Act (5ILCS 100/1-1 et seq.) were not followed.
In spite of the required score of 42, Delta has granted requests for prior approval in some cases where an individual has scored less than 42 on the Salzmann Index when in the professional opinion of a Delta dental consultant or dental director a severely handicapping malocclusion was present. According to IDPA statistics, exceptions were granted for approximately 1.7 percent of the individuals who scored less than 42.
If Delta denies a request for prior approval, the recipient has the right to appeal Delta's determination to the IDPA under the state Administrative Review Act. 305 ILCS 5/11-8. Final administrative decisions of the IDPA are subject to judicial review. 305 ILCS 5/11-8.7. Administrative review is required by the Medicaid Act. 42 U.S.C § 1396a(a)(3).
Plaintiff, Willie Chappell ("Chappell"), is a categorically needy child. He requested, through his orthodontist, prior approval for orthodontic treatment. Delta scored his malocclusion a 39 under the Salzmann Index and denied his request for prior approval. Chappell's mother appealed the denial to the IDPA. After an administrative hearing, the director issued a final administrative decision on February 2, 1992 granting prior approval. The approval occurred after this suit was filed.
Plaintiff, Hagar Bey ("Bey"), likewise a categorically needy child, also requested prior approval for orthodontic treatment. Delta scored his malocclusion a 33 under the Salzmann Index and denied his request. As of the date of the briefing of these motions, his administrative review hearing had not been held.
The two plaintiffs have brought a class action seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. Defendant is Philip C. Bradley ("Bradley"), Director of the IDPA. Plaintiffs assert that Bradley fails to authorize and provide medically necessary orthodontic treatment to the great majority of categorically needy children and in failing to do so violates the Medicaid Act. As a second claim, plaintiffs assert that IDPA's procedure for providing prior approval for orthodontic treatment is standardless and arbitrary and, therefore, violates the due process clause of the Fourteenth Amendment.
By agreement of the parties, the court certified a plaintiff class pursuant to Fed.R.Civ.P. 23(a) and (b)(2) who, on or after July 23, 1989:
(a) have been, are, or will be eligible for medical assistance under the federally supported Medicaid program established pursuant to 42 U.S.C. §§ 1396 et seq. and administered by the Illinois Department of Public Aid; and (b) whose requests for prior approval for orthodontic treatment have been, are being, or will be denied by the Illinois Department of Public Aid based on a finding of insufficient need for orthodontic treatment.
The parties have filed cross motions for summary judgment. In addition, Bradley has filed a motion to strike affidavits filed by plaintiffs of John J. Byrne, D.D.S. ("Byrne") and Thomas Williams, D.D.S. ("Williams"), and the corresponding paragraphs from plaintiffs' statement of material facts.
Motion to Strike
In support of their motion for summary judgment, plaintiffs have filed affidavits obtained from two orthodontists who contend that at least 85 percent of the children who score between 26 and 41 inclusive on the Salzmann Index have handicapping malocclusions for which orthodontic treatment is medically necessary. The gist of Bradley's objection is that he filed timely discovery requests to determine whether plaintiffs intended to call expert witnesses at trial, together with the substance of the facts relied upon by the expert and any opinions reached. Plaintiffs failed to disclose the existence of either of the two orthodontists or any other information concerning expert testimony.
Plaintiffs make the preposterous argument that the names, facts and opinions of Byrne and Williams are not required to be disclosed because they were hired to give opinions in support of their motion for summary judgment and not for trial. Rule 26(b)(4)(A) is clear that the test for disclosure is whether the witness is expected to testify at trial. Wright and Miller, Civil Practice & Procedure: Civil § 2030. The purpose of a summary judgment motion is to determine whether there are issues present which require decision at trial. The parties then disclose to the court the admissible evidence through the vehicles of affidavits, depositions, etc. that is available to determine whether there is sufficient disagreement to warrant trial. Rule 56(e) requires that an affidavit must set forth facts that are admissible in evidence and "shall show affirmatively that the affiant is competent to testify. . . ." If the plaintiffs have no intention of offering the evidence at trial it would of course not be admissible. If the witness is not disclosed, and is a Rule 26(b)(4)(B) consulting only expert, he is not competent to testify. Since the witnesses were not disclosed, the appropriate remedy is to strike the affidavits. Basch v. Westinghouse Electric Corp., 777 F.2d 165, 173-175 (4th Cir. 1985). Striking the affidavits is appropriate even more in light of the claim of plaintiffs that they do not intend to use the testimony of these witnesses at trial. Bradley's motion to strike is granted.
The Statutory Claim
As explained above, the State of Illinois has elected to participate in the federal Medicaid program. In return for federal dollars, a participating state must comply with the requirements imposed by the Medicaid Act. See 42 U.S.C. § 1396a; Schweiker v. Gray Panthers, 453 U.S. 34, 101 S. Ct. 2633, 2636-2637, 69 L. Ed. 2d 460 (1981). EPSDT services are mandatory which must, at a minimum, include relief of pain and infections, restoration of teeth, and maintenance of dental health.
Bradley does not appear to dispute that under the Medicaid law, the state must provide orthodontic services when medically necessary. Plaintiffs, in turn, do not dispute that the state may decline to provide orthodontic treatment for purely cosmetic reasons, and that a state may impose a prior approval requirement. The parties part ways over IDPA's use of the Salzmann Index for determining prior approval of orthodontic treatment.
IDPA has used the Salzmann Index for determining prior approval since December, 1981. At first it set the cut-off point at 30. For fiscal year 1982 it raised the number to 35. On April 1, 1983 it raised the cut-off point to 40, and on June 22, 1988 it raised it to 42, the current cut-off point. The raise in the cutoff point was mainly for monetary reasons. See Bradley's Response to Plaintiffs' Statement of Material Facts, PP 30-33. The higher the cut-off, the less approved for treatment. Plaintiffs contend that as a result many of the class members have unlawfully been denied necessary orthodontic treatment.
To refute this conclusion, Bradley has produced deposition testimony of Doctors Stephen O. Raibley ("Raibley") and Dennis Barber ("Barber"), Delta's orthodontic consultants. Raibley testified that Delta approved orthodontic treatment for all children who scored 42 or over on the Salzmann Index, and for those children scoring under 42 who, nonetheless, had malocclusions so severe as to have medical need for orthodontic treatment. Raibley further testified that
malocclusions are not synonymous with handicapping. As the severity goes up the likelihood that it might be handicapping exits [sic], but there really are very few true handicapping malocclusions -- very few. (Raibley dep. at p. 31).
He also testified that the criteria he uses in approval of a malocclusion under 42 is his
professional judgment; that's why we use an orthodontist board or an orthodontist who reviews the claims, and if there is an instance where for some strange reason it does not score enough points to be treated, and professionally, it would represent a significant problem, it would be approved. (Raibley dep at pp. 32-33)