Salazar v. Dc ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OSCAR SALAZAR, et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 93-452 (GK)
:
DISTRICT OF COLUMBIA, et al., :
:
Defendants. :
MEMORANDUM OPINION
Plaintiffs have moved to Compel Specific Discovery Concerning Compliance with Paragraph
36 of the Settlement Order as it Pertains to the Provision of Home Health Care, Private Duty
Nursing, and Personal Care Services. Upon consideration of the Motion, the Opposition of the
District of Columbia and non-parties Health Services for Children with Special Needs (“HSCSN”)
and McKesson Health Solutions LLC (“McKesson”), the Reply, and the entire record herein, the
Court concludes that the Motion should be granted.
On December 19, 2006, the Court granted Plaintiffs’ Motion for Leave to Conduct Limited
Discovery Concerning Compliance with Paragraph 36 of the Settlement Order Pertaining to the
Provisions of Home Health Care, Private Duty Nursing, and Personal Care Services [Dkt. # 1256].
Defendants and the two non-parties, HSCSN and McKesson, who were given permission to enter
a special limited appearance for the purpose of opposing the pending Motion, have refused to
provide, pursuant to a discovery request, the Interqual Clinical Decision Support Criteria (“Interqual
Criteria” or “Criteria”) to Plaintiffs. The Interqual Criteria are evidence-based treatment guidelines
that have been developed and copyrighted by McKesson, which, in turn, has licensed their use to
HSCSN and many other Medicaid managed care organizations across the country, which then rely
on them to authorize, re-authorize and/or terminate home health care (“HHC”), private duty nursing
(“PDN”), and personal care (“PC”) services.
HSCSN and McKesson have refused to provide these Criteria unless Plaintiffs agree to a
comprehensive confidential agreement under which the Criteria would be distributed only to (1)
physicians for the Salazar Plaintiffs in cases where they have been used to deny, limit, or discontinue
services of a beneficiary; (2) Plaintiffs who are members of the Salazar class in cases where they
have been used to deny, limit, or discontinue services; (3) Terris, Pravlik & Millian; and (4) attorneys
who are co-counsel for the Plaintiff Class.1
There is no question that counsel to the Salazar Class are entitled to disclosure of eligible
criteria for HHC, PDN, and PC services. As the Court has noted in its ruling granting Plaintiffs’
Motion for limited discovery, Plaintiffs’ counsel have an obligation to monitor compliance with the
Settlement Agreement, including paragraph 36 concerning the provision of in-home services. In
particular, Plaintiffs’ counsel need to know what criteria HSCSN is relying upon in making
decisions, which are of great significance to their clients, regarding the authorization, re-
authorization, and/or termination of services which are often vital to the parents and caretakers of
children with special needs.
Plaintiffs’ counsel informed the Court that they receive numerous inquiries from members
of the Salazar class about their entitlement to such services. In addition, University Legal Services --
Protection and Advocacy (“ULS - P&A”) has also received inquiries from their clients who are
members of the Plaintiff class about the provisions of services and has concerns as to whether
1
McKesson proposed additional conditions regarding returning of copies and keeping
the copies secure.
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HSCSN is implementing in-home EPSDT services in a fashion that comports with Paragraph 36 of
the Settlement Order. In sum, both sets of counsel need to advise their clients as to what services
are eligible, whether HSCSN has sufficient grounds to deny claims, and the procedures HSCSN can
reasonably require members to follow when authorizing, re-authorizing, or terminating prescribed
services. Without access to the Interqual Criteria, any advice would be of limited reliability.
McKesson argues that its Criteria, which consist of three elements2 to aid in making clinical
care management decisions, constitute trade secrets and are therefore fully protected under the D.C.
Uniform Trade Secrets Act, D.C. Code 36-402, et seq., and the federal Copyright Statutory Scheme,
17 U.S.C.A. 101, et seq. Even assuming that the Criteria are subject to such protection, McKesson’s
argument is not persuasive. Plaintiffs have demonstrated that all Medicaid beneficiaries are entitled
to be provided with “the amount, duration, and scope of benefits,” as well as the “procedures for
obtaining benefits, including authorization requirements.” 42 C.F.R. 438.10(f)(6)(v), (vi). In
addition, 42 C.F.R. 438.10(f)(6)(v) specifically provides that such information must be provided “in
sufficient detail to ensure that enrollees understand the benefits to which they are entitled.”
Parents and caretakers of children with special needs have a particularly challenging situation
to manage. First, they have to perform demanding physical tasks which are often required for the
care of children with special needs. Second, they have the difficult intellectual tasks of
understanding what services are available to their children, under what conditions, and for what
duration, so that they can make responsible decisions for their care. It is essential that they know the
limits of Medicaid coverage so that they can attempt to compensate for any gaps in that coverage and
2
The elements consist of information and clinical data distilled from medical literature;
a set of rules based upon “best practices” or expert clinical opinion; and a specific review
methodology to be applied to individual patients’ cases.
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make appropriate plans to fill such gaps. Finally, children with special needs often receive services
from a range of health care providers. Once again, it is up to the parents and caretakers to coordinate
those many services. In order to navigate such a multi-layered system for children who themselves
have a set of complex needs, it is essential that those parents and caretakers, as well as their lawyers
and health care advocates, be knowledgeable about “the amount, duration, and scope of benefits,”
and the “procedures for obtaining benefits, including authorization requirements.
There is no authority for the proposition which McKesson puts forward that the federal
copyright laws and local trade secret laws trump the federal Medicaid statute and regulations.
Indeed, as Plaintiffs point out, a number of federal district courts have ruled that states cannot
contract away to managed care organizations such as HSCSN, or their licensors such as McKesson,
their responsibilities to Medicaid beneficiaries or the rights of Medicaid beneficiaries. In short, “[i]t
is patently irresponsible to presume that Congress would permit a state to disclaim federal
responsibility by contracting away its obligation to a private entity.” John B. v. Menke, 176 F.
Supp.2d 786, 800-801 (M.D. Tenn. 2007) (quoting J.K. By and Through R.K. v. Dillenberg, 836 F.
Supp. 694, 699 (D. Ariz. 1993). Cf, Cantanzano v. Dowling, 60 F.3d 113, 119-120 (2d Cir. 1995),
which held specifically that decisions made by a home health care agency, with which the state
agency had contracted to provide Medicaid benefits, constituted action on behalf of the government.
While Plaintiffs are objecting to the very limiting conditions of the confidentiality agreement
insisted upon by McKesson, they are certainly not requesting widespread public dissemination of
the Interqual Criteria. Essentially, they seek to have those Criteria made available to members of
the Class who might be eligible for particular benefits, and therefore subject to authorization,
re-authorization and/or termination decisions about those benefits, to counsel advising the members
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of the Class about the availability of such benefits, and to health care advocates who are advising
members of the Class with regard to their need for such benefits.
WHEREFORE, for the foregoing reasons, the Court concludes that Plaintiffs’ Motion
should be granted.
February 6, 2009 /s/
Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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