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ELLIS v. PATTERSON

August 15, 1988

BRANDY ELLIS, A Minor, By Next Friend, BARBARA ELLIS
v.
WALT PATTERSON, In His Official Capacity as Director of the Arkansas Department of Human Services; ARKANSAS DEPARTMENT OF HUMAN SERVICES



The opinion of the court was delivered by: EISELE

 GARNETT THOMAS EISELE, CHIEF UNITED STATES DISTRICT JUDGE:

 Pending before the Court is plaintiff's motion for a temporary restraining order, preliminary injunction, permanent injunction, and declaratory judgment, filed on Tuesday, August 9, 1988. Defendants were served with copies of the pleadings on the same day of filing. They have now had the opportunity to briefly respond. On Tuesday afternoon the Court opened the hearing on the TRO via telephone to determine the issues and organize a schedule for resolution of the motion. At that time the Court requested that the attorneys prepare their research and present it during a continuation of the hearing on the following afternoon. On Wednesday, August 10, the Court reopened the proceedings, again by telephone conference. Although the Court suggested moving directly to a hearing on the merits, defendants noted that they were not prepared to stipulate to plaintiff's immediate need for a liver transplant, or to plaintiff's medical condition at all. The Court suggested that the parties cooperate as necessary to immediately permit defendants to determine whether plaintiff's medical condition would be a disputed factual issue. The Court further requested that the parties compile by Friday, August 12, 1988 whatever other factual evidence they wished to have in the record (in anticipation of immediate appeal by the non-prevailing party), and prepare a summary of their respective legal positions. Another hearing was then set for Friday, August 12. By that time the Court had received short briefs from each party, and the defendants had determined not to contest plaintiff's medical condition. At the conclusion of the August 12 hearing the Court ruled that, unless the State's plan is changed to cover liver transplants, *fn1" the plaintiff's case must fail. It decided to immediately issue its final judgment on the merits, concluding that it was dealing only with questions of law and that time was of the essence. And it was clear to the Court that its decision, whatever that might be, would not end the matter. The parties will obviously be looking to the Court of Appeals or the United States Supreme Court to ultimately resolve the issues.

 The pending motions arise out of a tragic factual situation. Plaintiff is a ten month old baby girl who suffers from biliary atresia, a fatal liver condition. Plaintiff attached an affidavit of Brandy's attending physician, Dr. Stephen Fiedorek, to her pleadings. The affidavit sets forth the seriousness of plaintiff's condition, chronicling her history of blood, bone, growth, and nutritional difficulties which have been the product of the liver disease. Plaintiff's doctor has concluded that if plaintiff does not receive a liver transplant, she will not live more than two months. Meanwhile, she is daily at risk of any number of sudden, life-threatening complications. Plaintiff has been evaluated for a liver transplant at the University of Nebraska Medical Center, where she was determined to be a medically appropriate candidate for the surgery. Before the University will put plaintiff on the list of patients waiting for livers, however, it requires either a $ 110,000 deposit, or proof of adequate insurance reimbursement for the procedure.

 Plaintiff receives Supplemental Security Income as a disabled child; therefore she also receives Medicaid from defendant Arkansas Department of Human Services (DHS). DHS, does not under its plan provide, and has never provided, funding under its Medicaid program for liver transplants, or their related costs. Because Medicaid will not fund plaintiff's liver transplant, and plaintiff has neither alternative insurance coverage or a means of raising $ 110,000, the University of Nebraska Medical Center has refused to officially and permanently place her on the waiting list for a transplant. Thus arises this case.

 To provide some statutory and regulatory background: Medicaid is a cooperative state and federal program, governed initially by the Medicaid statute, 42 U.S.C. § 1396, et seq. and regulations promulgated thereunder at 42 C.F.R. 430, et seq. and further by the specifics of the Medicaid "plan" which each participating state must develop and submit to the Health Care Financing Administration (HCFA) of the U.S. Department of Health and Human Services (HHS) for approval. The purpose of the statute is to:

 
enable each state, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care, there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this subchapter. The sums made available under this section shall be used for making payments to States which have submitted, and had approved by the Secretary, State plans for medical assistance.

 42 U.S.C. § 1396.

 42 C.F.R. 440.210 provides that the State plan must, at minimum, specify that the categorically needy (of which Brandy is one) are provided certain services, which are specified at sections 440.10 through 440.50 and 440.70. These services include: inpatient hospital services (440.10), other laboratory and x-ray services (440.30), and physicians' services (440.50).

 At 42 C.F.R. 440.230 the regulations provide:

 
(a) The plan must specify the amount, duration, and scope of each service it provides for --
 
(1) The categorically needy;
 
(b) Each service must be sufficient in amount, duration, and scope to reasonably achieve its purpose.
 
(c) The Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under ss. 440.210 . . . to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition.
 
(d) The agency may place appropriate limits on a service based on such criteria as medical neccesity or on utilization control procedures.

 At section 440.240, the regulations add that the services available to any individual in the categorically needy group must not be less in amount, scope, or duration than those available to members of the medically needy recipient group, and further, that services available to anyone in either group be equal in amount, ...


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