Brisson v. Dept. of Social Welfare

Brisson v. Dept. of Social Welfare  (96-427); 167 Vt. 148; 702 A.2d 405

[Filed 19-Sep-1997]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-427


In re Lorraine Brisson                       Supreme Court

                                             On Appeal from Secretary,
                                             Agency of Human Services

                                             April Term, 1997


Cornelius Hogan, Secretary

       Barbara Prine, Vermont Legal Aid, Inc., Burlington, for appellant
  Lorraine Brisson

       Donelle Smith Staley, Assistant Attorney General, Waterbury, for
  appellee Department of Social Welfare

PRESENT:  Gibson, Morse and Johnson, JJ., and Cashman, D.J. and Allen,
          C.J. (Ret.), Specially Assigned


       JOHNSON, J.  Petitioner Lorraine Brisson appeals from the Secretary of
  Human Services's order denying Medicaid funding for a closed-circuit
  television (CCTV).  Brisson argues that a CCTV meets the Medicaid
  definition of "eyeglasses" and that the Secretary's denial of coverage for
  a CCTV is inconsistent with federal Medicaid requirements.  We agree and
  reverse the Secretary's order.

       Brisson applied to the Department of Social Welfare (DSW) for funding
  for a CCTV. The Department denied Medicaid coverage after determining that
  a CCTV does not qualify as durable medical equipment, is not a prosthetic
  device, and is not within the scope of covered vision-care services.  The
  Human Services Board reversed and awarded funding, determining that a CCTV
  is a covered prosthetic device.  The Secretary of Human Services, while
  accepting the Board's findings of fact, reversed the Board's decision and
  denied coverage on the ground that CCTVs are not within the scope of
  covered vision care.  This appeal followed.

       Brisson argues (1) that Vermont has opted to provide Medicaid coverage
  for eyeglasses;


 


       (2) that CCTVs qualify as eyeglasses under the Medicaid Act; and (3)
  that the Secretary's refusal to provide funding for CCTVs as eyeglasses is
  impermissible under federal law.  DSW agrees that providing eyeglasses is
  an optional service, but it argues that the Secretary is entitled to define
  the scope of coverage for optional services.

       Brisson is eligible to receive Medicaid benefits because her age and
  low income entitle her to be classified as "categorically needy."  See 42
  U.S.C. § 1396a(a)(10)(A) (1988).  She lives independently and, among other
  conditions, suffers from macular degeneration, a retinal disorder
  destroying all but her peripheral vision.  She is legally blind and can
  read only if print is magnified to at least eight times its normal size. 
  Her doctors prescribed a CCTV as a medically necessary prosthetic.  She
  uses one currently on loan to help her read medical labels and legal
  documents, follow directions on food preparation, and pay her bills. 
  Without a CCTV, Brisson would need to live in a nursing home or have
  full-time home health care.

       Medicaid is a cooperative enterprise between federal and state
  governments to help states provide health care to people otherwise unable
  to afford it.  See Stevens v. Department of Social Welfare, 159 Vt. 408,
  412-13, 620 A.2d 737, 739 (1992).  The federal government reimburses
  participating states for a percentage of the cost of such care, id. at 413,
  620 A.2d  at 739, and while no state is required to participate in Medicaid,
  those that do must operate in compliance with federal statutory and
  regulatory requirements.  See Alexander v. Choate, 469 U.S. 287, 289 n.1
  (1985).

       Participating states must, in particular, provide the "categorically
  needy," those persons most in need of financial assistance, with certain
  broad categories of medical assistance.  See 42 U.S.C. § 1396a(a)(10)
  (requiring states to provide the medical assistance set forth in §§
  1396d(a)(1-5), (17) & (21)); Meyers v. Reagan, 776 F.2d 241, 243 (8th Cir.
  1985).  The states may also, at their option, provide the "categorically
  needy" with additional services.  See 42 U.S.C. § 1396a(a)(10) (permitting
  states to provide "medical assistance"); id. § 1396d(a) (defining "medical
  assistance").  If a state chooses to provide optional services, "it is
  bound to

  


       act in compliance with the [Medicaid] Act and the applicable
  regulations in the implementation of those services."  Weaver v. Reagen,
  886 F.2d 194, 197 (8th Cir. 1989).  Each service that a state provides,
  whether required by federal law or at the state's option, "must be
  sufficient in amount, duration, and scope to reasonably achieve its
  purpose."  42 C.F.R. § 440.230(b).

       States may, at their option, provide coverage for eyeglasses, see 42
  U.S.C. § 1396d(a)(12), and Vermont has chosen to provide such Medicaid
  coverage.  See  5 Code of Vermont Rules, Medicaid Manual § 670.  DSW
  argues, however, that CCTVs do not fall within the scope of Vermont's
  eyeglass service.  

       Brisson counters that, to the extent the Secretary's construction of
  the State's Medicaid Rule fails to provide coverage for CCTVs while
  covering eyeglasses, it conflicts with federal law and is therefore
  invalid.  Brisson first argues that CCTVs meet the federal definition of
  eyeglasses.  Federal regulations define "eyeglasses" as "lenses, including
  frames, and other aids to vision prescribed by a physician skilled in
  diseases of the eye or an optometrist."  42 C.F.R. § 440.120(d) (emphasis
  added).  DSW concedes that a CCTV, as an aid to vision, falls within the
  scope of the federal definition of eyeglasses.

       Brisson next argues that Vermont's refusal to provide coverage for a
  CCTV limits the amount, duration and scope of its eyeglasses and
  vision-care service to an extent that defeats the purpose of providing the
  service and is therefore impermissible under the federal regulations.

       Initially, DSW contends that it provides coverage of eyeglasses that
  is sufficient to achieve its purpose to improve the vision of most Medicaid
  recipients at a reasonable cost to the citizens of Vermont.  It is not the
  State's purpose in providing eyeglasses that controls, however. See White
  v. Beal, 413 F. Supp. 1141, 1153 (E.D. Pa. 1976), aff'd,  555 F.2d 1146 (3d
  Cir. 1977) ("It is virtually unthinkable that the [federal regulations]
  would give the state virtually unbridled discretion in the form of such a
  `loophole.'").  DSW must provide the amount, duration and scope of
  eyeglasses care that will achieve the federal purpose: to aid or improve
  vision.  Id.; Simpson v. Wilson, 480 F. Supp. 97, 102 (D. Vt. 1979).

 


       We recognize that states have wide latitude in determining the extent
  of medical services they offer under their Medicaid programs.  See Beal v.
  Doe, 432 U.S. 438, 444 (1977). Moreover, a medical service is sufficient in
  amount, duration and scope if it is "`adequate to service the needs of most
  of the individuals eligible for Medicaid assistance.'"  Charleston Mem'l
  Hosp. v. Conrad, 693 F.2d 324, 330 (4th Cir. 1982) (quoting Curtis v.
  Taylor, 625 F.2d 645, 653 (1980), modified on other grounds, 648 F.2d 946
  (5th Cir. 1980)).  Nevertheless, when a state chooses to provide an
  optional service, "the service must be distributed in a manner which bears
  a rational relationship to the underlying federal purpose of providing the
  service to those in greatest need of it."  White, 555 F.2d  at 1151
  (emphasis added).  DSW's willingness to provide coverage for lenses and
  frames and not for CCTVs fails to provide Medicaid service to those in
  greatest need of it.  In contrast to eyeglasses, CCTVs are designed for use
  by the legally blind.  For patients like Lorraine Brisson who suffer from
  macular degeneration, which destroys all but their peripheral vision, a
  CCTV is a necessity.  Ordinary magnifying equipment does not enlarge print
  to a sufficient size and clarity to allow such patients to read; CCTVs are
  the only available treatment.  In light of the evidence that, absent a
  CCTV, Lorraine Brisson would be confined to a nursing home, providing a
  CCTV is at least as medically necessary as providing traditional
  eyeglasses.

       The federal regulations provide that states "may place appropriate
  limits on a service based on such criteria as medical necessity . . . ." 
  42 C.F.R. § 440.230(d).  DSW has failed, however, to demonstrate any
  justification for its refusal to provide coverage for CCTVs grounded in
  "medical necessity."  Instead, it complains that providing CCTVs wherever
  medically necessary would cost too much; it argues that it would still be
  serving the needs of most Medicaid recipients if it denied coverage of
  CCTVs.  DSW's position is untenable.

       States may restrict coverage as a matter of fiscal necessity.  See
  Alexander, 469 U.S.  at 303 (restricting coverage because of fiscal
  necessity permissible provided consistent with recipients' best interest);
  see also Curtis, 625 F.2d  at 652 (restrictions permitted where services

 


       met needs of most recipients because restrictions consistent with
  medical necessity).  In this case, however, the Board found that without a
  CCTV Lorraine Brisson would require full-time, Medicaid-covered nursing
  care.  It is uncontested that a CCTV would cost as much as 123 hours of
  nursing care and that the CCTV would remain useful for a much longer period
  of time.  DSW cannot credibly maintain that coverage is too expensive where
  providing a CCTV would be fiscally expedient and would maintain the
  recipient's ability to live independently.  See 42 U.S.C. § 1396; Beal, 432 U.S.  at 453 (Brennan, J., dissenting) (state cannot justify "medical
  necessity" restriction as protecting fiscal interests, where restriction
  ultimately causes greater expenditures).

       Finally, DSW argues that the Secretary's interpretation of the State's
  Medicaid Rules is entitled to deference.  The relevant issue, however, is
  not the Secretary's interpretation of the State's Medicaid Rules, but
  whether such interpretation is contrary to federal law.  See Bacon v.
  Lascelles, ___ Vt. ___, ___, 678 A.2d 902, 905 (1996) (policy
  justifications for deference, such as agency expertise and familiarity with
  purpose of regulation, missing when agency not interpreting its own
  regulation).  DSW's argument is without merit.

       Reversed; the order of the Human Services Board is reinstated.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice