Texas Health and Human Services Commission v. Linda Puglisi

ACCEPTED

03-15-00226-CV

6056931

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/14/2015 12:54:37 PM

JEFFREY D. KYLE

CLERK

No. 03-15-00226-CV

_________________________________

FILED IN

IN THE 3rd COURT OF APPEALS

AUSTIN, TEXAS

THIRD COURT OF APPEALS 7/14/2015 12:54:37 PM

AUSTIN, TEXAS JEFFREY D. KYLE

_________________________________ Clerk

TEXAS HEALTH AND HUMAN SERVICES COMMISSION,

Appellant,

v.

LINDA PUGLISI,

Appellee.

_________________________________

On Appeal From

The 53rd Judicial District Court of Travis County, Texas

Trial Court Case No. D-1-GN-14-000381

The Honorable Judge Gisela D. Trianna

_________________________________

BRIEF OF APPELLEE

_________________________________

MAUREEN O’CONNELL

Texas Bar No. 00795949

SOUTHERN DISABILITY LAW CENTER

1307 Payne Avenue

Austin, Texas 78757

T: 512.458.5800

F: 512.458.5850

moconnell458@gmail.com

Attorney for Appellee

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................i

TABLE OF AUTHORITIES ................................................................................... iii

ISSUES PRESENTED............................................................................................... x

LEGAL FRAMEWORK OF THE MEDICAID PROGRAM .................................. 2

STATEMENT OF FACTS ........................................................................................ 4

SUMMARY OF THE ARGUMENT ........................................................................ 9

ARGUMENT ........................................................................................................... 11

A. The Trial Court Correctly Denied HHSC’s Motion to Dismiss ................. 11

B. The Trial Court Correctly Reversed and Remanded the Case

to HHSC for Further Proceedings Consistent with Its Decision ................ 16

C. Deference is Not Owed to HHSC’s Post-Hoc Interpretation of

Agency Rules .............................................................................................. 18

D. The Trial Court Correctly Determined that HHSC’s Hearing

Decision Fails to Comply with Medicaid Law ........................................... 20

E. The Trial Court Correctly Determined that HHSC’s Hearing

Decision is Arbitrary, Capricious, Unreasonable and

Unsupported by Substantial Evidence ........................................................ 22

1. The trial court properly addressed the two reasons

Molina denied Linda Puglisi’s prior authorization request ................. 22

2. HHSC failed to address Linda Puglisi’s medical need for

a custom power wheelchair with integrated standing

feature .................................................................................................. 24

3. HHSC failed to employ the correct test for determining

Medicaid coverage of DME ................................................................ 34

i

F. HHSC Violated Linda Puglisi’s Procedural Due Process

Rights .......................................................................................................... 45

1. Medicaid beneficiaries have a protected property interest

in their Medicaid benefits .................................................................... 45

2. Molina’s denial notice does not comport with due

process and HHSC failed to address this issue ................................... 47

3. HHSC’s administrative review does not comport with

State law and further compounded the due process

violations in this case .......................................................................... 49

PRAYER .................................................................................................................. 49

CERTIFICATE OF COMPLIANCE ....................................................................... 50

CERTIFICATE OF SERVICE ................................................................................ 51

ii

TABLE OF AUTHORITIES

CASES

Ability Center of Toledo v. Lumpkin,

808 F.Supp.2d.1003 (N.D. Ohio 2011) .............................................................. 46

Allegent Health v. Amer. Farm Ins., Inc.,

656 N.W.2d 906 (Neb. 2003) ............................................................................. 12

Alvarez v. Betlach,

572 F. App’x 519 (9th Cir.) ................................................................................ 36

Baker v. Commonwealth of Pa. Dept. of Pub. Welfare,

502 A.2d 318 (Pa. Commw. 1985) ...............................................................36, 37

Bell v. Agency for Health Care Admin.,

768 So.2d 1203 (FL. App. 2000) ..................................................................36, 37

Blue v. Bonta,

99 Cal.App. 4th 980, 121 Cal.Rptr.2d 483 (Cal App. 2002) .............................. 36

Bowers v. Thompson;

No. 89-2-00553-8 (Wash. Super. Ct. Thurston County Oct. 15, 1990) .......36, 37

Brisson v. Dep’t of Social Welf.,

702 A.2d 405 (VT. 1997)..............................................................................36, 37

Bristol v. R.I. Dept. of Hum. Serv.,

1997 WL 839884 (R.I. Super. Jan. 30, 1997) ..................................................... 36

Combs v. Entertainment Publications, Inc.,

292 S.W. 3d 712 (Tex. App.—Austin 2009, no pet.) ......................................... 42

Davis v. Shah,

2012 WL 1574944 (W.D.N.Y. May 3, 2012)..................................................... 36

Davis v. Shrader,

687 N.E.2d 370 (Ind. App. 1997) .................................................................36, 37

iii

DeSario v. Thomas,

139 F.3d 80 (2d Cir. 1998) ................................................................................. 37

Detgen v. Janek,

945 F. Supp. 2d 746 (N.D. Tex. 2013) ............................................................... 23

Detgen v. Janek,

752 F. 3d 627 (5th Circuit 2014) ............................................................35, 36, 37

El Paso Hosp. Dist. v. Texas Health and Human Servs. Comm’n,

247 S.W. 3d 709 (Tex. 2008) ............................................................................. 43

Evanston Hosp. v. Hauck,

1992 WL 205900 (N.D. Ill. 1992) ...................................................................... 12

Fishman v. Daines,

743 F.Supp.2d. 127 (E.D. N.Y 2010) ................................................................. 46

Frank v. Thomas,

No. 3:98CV00306(GLG), U.S. Dist. Ct., D. Conn. 1998................................... 15

Fred C. v. Texas Health & Human Services Comm’n,

988 F.Supp. 1032 (W.D.Tx. 1997) ..................................................................... 36

Goldberg v. Kelly,

397 U.S. 254 (1970) ............................................................................................ 45

Gray Panthers v. Schweiker,

652 F. 2d 146 (D.C. Cir. 1980) ........................................................................... 47

Hamby v. Neel,

368 F.3d. 549 (6th Cir. 2004) .......................................................................45, 46

Hiltibran v. Levy,

793 F.Supp.2d 1108 (W.D. Mo. 2011) ............................................................... 36

Hunter v. Chiles,

944 F.Supp. 914 (S.D. Fl. 1996) ...................................................................36, 37

iv

Jasset v. R.I. Dept. of Hum. Serv.,

2006 WL 2169891 (R.I. Super. July 31, 2006) .................................................. 36

Johnson v. Guhl,

91 F.Supp. 2d 754 (D. N.J. 2000) ....................................................................... 46

Johnson v. Minn. Dept. of Human Serv.,

565 N.W.2d 453 (Minn. App. 1997) ............................................................36, 37

Jonathan C. v. Hawkins,

2006 WL 3498494 (E.D. Tex. Dec. 5, 2006) ..................................................... 45

Koenning v. Janek,

539 Fed. Appx. 353 (5th Cir. 2013).................................................................... 39

Koenning v. Suehs,

897 F. Supp.2d 528 (S.D. 2012) ......................................................................... 39

Ladd v. Thomas,

962 F. Supp 284 (D. Conn. 1997) .................................................................45, 46

Lankford v. Sherman,

451 F.3d 496 (8th Cir. 2006) ..................................................................34, 36, 37

Ledet v. Fischer,

638 F. Supp. 1288 (M.D. La. 1986)..............................................................36, 37

Liberty Mut. Ins. Co. v. Texas Dep't of Ins.,

187 S.W. 3d 808 (Tex. App. Austin 2006, pet denied) ...................................... 46

Mayhew v. Town of Sunnyvale,

964 S.W.2d 922 (Tex.1998)................................................................................ 11

Meyers v. Reagen,

776 F.2d 241 (8th Cir. 1985) .............................................................................. 36

Myers v. State of Mississippi,

3:95 CV 185 LN (Slip Op. S.D. Miss. 1995) ...............................................36, 37

v

Neuwrith v. Louisiana State Bd. of Dentistry,

845 F. 2d 553 (5th Cir. 1988) ............................................................................. 46

Ohlson v. Weil,

953 P.2d 939 (Colo. App. 1997) ...................................................................36, 37

Patterson v. Planned Parenthood of Houston & Se. Texas, Inc.,

971 S.W.2d 439 (Tex. 1998) .............................................................................. 11

Perry v. Del Rio,

66 S.W.3d 239 (Tex. 2001)................................................................................. 16

Public Utility Commission v. South Plains Electric Cooperative, Inc.,

635 S.W.2d 954 (Tex.App.—Austin 1982, writ ref'd n.r.e.) .............................. 44

Rastetter v. Weinberger,

379 F.Supp. 170 (D.AZ. 1974) ........................................................................... 12

Rodriguez v. Serv. Lloyds Ins. Co.,

997 S.W.2d 248 (Tex. 1999) ........................................................................21, 43

Roe v. Norton,

522 F.2d 928 (2d Cir. 1975) ............................................................................... 12

Skubel v. Fuoroli,

113 F.3d 330 (2d Cir. 1997) ............................................................................... 12

Slekis v. Thomas,

525 U.S. 1098 (1999) .......................................................................................... 38

Stanford v. Butler,

181 S.W.2d 269 (Tex.1944)................................................................................ 19

Sw. Pharmacy Solutions, Inc. v. Texas Health & Human Servs. Comm’n,

408 S.W.3d 549 (Tex. App. 2013)...................................................................... 18

Tarrant Appraisal Dist. v. Moore,

845 S.W.2d 820 (Tex. 1993) .............................................................................. 19

vi

Texas Alcoholic Beverage Comm’n v. Amusement & Music Operators of

Tex., Inc.,

997 S.W.2d 651 (Tex. App.—Austin 1999, pet. dism’d w.o.j.) ......................... 41

Texas State Bd. of Pharmacy v. Witcher,

447 S.W.3d 520 (Tex. App. 2014)...................................................................... 43

Thompson v. Roob,

2006 WL 2990426 (S.D. Ind. Oct. 19, 2006) ...............................................45, 48

T.L. v. Colorado Dept. of Health Care Policy & Fin.,

42 P.2d 63 (Colo. App. 2002) ............................................................................. 36

Waco Indep. Sch. Dist. v. Gibson,

22 S.W.3d 849 (Tex. 2000)................................................................................. 11

Weaver v. Reagan,

886 F. 2d 194 (8th Cir. 1989) ............................................................................. 25

Wilder v. Virginia Hospital Association,

496 U.S. 498 (1990) .............................................................................................. 2

Will T. v. Taylor,

465 F.Supp.2d 1267 (N.D. Ga. 2000) ................................................................. 36

Woody v. Dallas,

809 F. Supp. 466 (N.D. Tex. 1992) .................................................................... 46

REGULATIONS

1 TEX. ADMIN. CODE § 354.1031 .......................................................................20, 39

1 TEX. ADMIN. CODE § 354.1031(b)(12).............................................................. 3, 20

1 TEX. ADMIN. CODE § 354.1035 .................................................................20, 21, 39

1 TEX. ADMIN. CODE § 354.1039 .................................................................20, 21, 29

1 TEX. ADMIN. CODE § 354.1039(a) ..................................................................18, 19

vii

1 TEX. ADMIN. CODE § 354.1039(a)(4)(A) ........................................................18, 19

1 TEX. ADMIN. CODE § 354.1039(a)(4)(D) ..............................................4, 20, 24, 38

1 TEX. ADMIN. CODE § 354.1040 .............................................. 13, 20, 21, 39, 40, 42

1 TEX. ADMIN. CODE § 354.1040(d)(3).................................................................... 13

1 TEX. ADMIN. CODE § 354.1040(g) ........................................................................ 13

1 TEX. ADMIN. CODE § 354.1041 ............................................................................. 12

1 TEX. ADMIN. CODE § 354.1041(2)(B) ................................................................... 13

1 TEX. ADMIN. CODE § 354.2321(b) ........................................................................ 14

1 TEX. ADMIN. CODE § 354.2321(f) ......................................................................... 14

1 TEX. ADMIN. CODE § 355.8021(b)(2-3) ................................................................ 13

1 TEX. ADMIN. CODE § 357.3(b)(1)(E) ..............................................................46, 47

1 TEX. ADMIN. CODE § 357.9 ................................................................................... 27

1 TEX. ADMIN. CODE § 357.703 ................................................................................. 8

1 TEX. ADMIN. CODE § 357.703(b)(3)...................................................................... 42

42 C.F.R. § 431.10(e)(1) ............................................................................................ 2

42 C.F.R. § 200 ........................................................................................................ 47

42 C.F.R. § 431.210(b) ......................................................................................31, 47

42 C.F.R. § 431.210(c).................................................................................18, 31, 47

42 C.F.R. § 435.930 ................................................................................................... 4

42 C.F.R. § 438.210(a)(4)(i) .................................................................................... 28

viii

42 C.F.R. § 438.404 ................................................................................................. 47

42 C.F.R. § 440.70(b)(3) ............................................................................................ 3

42 C.F.R. § 440.230(b) ..................................................................................3, 38, 44

42 C.F.R. § 440.230(c)...................................................................................3, 38, 44

42 C.F.R. § 440.240(a)............................................................................................. 34

STATUTES

42 U.S.C. § 1396 ........................................................................................................ 2

42 U.S.C. § 1396a(a)(3) ........................................................................................... 47

42 U.S.C. § 1396a(a)(5) ............................................................................................. 2

42 U.S.C. § 1396a(a)(8) ............................................................................................. 4

42 U.S.C. § 1396a(a)(10(B) ..................................................................................... 34

42 U.S.C. § 1396a(a)(17) ...............................................................................3, 38, 44

42 U.S.C. § 1396d(a)(7) ............................................................................................. 3

42 U.S.C. § 1396w2 ................................................................................................... 2

42 U.S.C. § 1396-1..................................................................................................... 2

TEX. GOV’T CODE § 531.019(c) ............................................................................. 1, 8

TEX. GOV’T CODE § 531.021(a) ................................................................................. 2

TEX. GOV’T CODE § 2001.003(6) ............................................................................. 41

TEX. GOV’T CODE § 2001.023.................................................................................. 43

ix

TEX. GOV’T CODE § 2001.030.................................................................................. 43

TEX. GOV’T CODE § 2001.038............................................................................39, 40

TEX. GOV’T CODE § 2001.171.................................................................................... 1

TEX. HUM. RES. CODE § 32.0425 .................................................................19, 40, 42

OTHER AUTHORITIES

In the Matter of Mary A., New York Dept. of Social Services................................ 14

RESNA Position on the Application of Wheelchair Standing Devices,

Assistive Technology, 21:161-168, 2009 ................................................................... 6

x

ISSUES PRESENTED

1. Did the trial court correctly deny HHSC’s motion to dismiss?

2. Did the trial court correctly reverse and remand the case to HHSC for further

proceedings consistent with the court's decision?

3. Did the trial court correctly determine that HHSC’s post hoc interpretation of

agency rules is not entitled to deference?

4. Did the trial court correctly determine that HHSC’s hearing decision fails to

comply with Medicaid law?

5. Did the trial court correctly determine that HHSC’s hearing decision is

arbitrary, capricious, unreasonable and unsupported by substantial evidence?

6. Did HHSC violate Linda Puglisi’s procedural due process rights as a Medicaid

beneficiary?

xi

No. 03-15-00226-CV

_________________________________

IN THE

THIRD COURT OF APPEALS

AUSTIN, TEXAS

_________________________________

TEXAS HEALTH AND HUMAN SERVICES COMMISSION,

Appellant,

v.

LINDA PUGLISI,

Appellee.

_________________________________

On Appeal From

The 53rd Judicial District Court of Travis County, Texas

Trial Court Case No. D-1-GN-14-000381

The Honorable Judge Gisela D. Trianna

_________________________________

BRIEF OF APPELLEE

_________________________________

To the Honorable Third Court of Appeals:

This appeal arises out of a Medicaid hearing decision issued by the Texas

Health and Human Services Commission (HHSC) denying Linda Puglisi’s request

for Medicaid prior authorization of a custom power wheelchair with integrated

standing feature. Linda filed a Petition for Judicial Review in the Travis County

District Court to challenge this denial. TEX. GOV’T CODE §§ 531.019(c) and

2001.171 et seq. The trial court reversed the agency’s decision, finding it arbitrary,

capricious, unreasonable, and unsupported by substantial evidence. The trial

court's decision should be affirmed.

LEGAL FRAMEWORK OF THE MEDICAID PROGRAM

In 1965, Congress enacted Title XIX of the Social Security Act to establish

Medicaid, a federal-state program designed to provide medically necessary health

care to low income families and individuals with disabilities. 42 U.S.C. §§ 1396-

1396w2. The purpose of this program is to enable states “to furnish…rehabilitation

and other services to help such families and individuals attain or retain the

capability for independence or self-care.” 42 U.S.C. § 1396-1. State participation

in Medicaid is optional, however, “once a state chooses to join, it must follow the

requirements set forth in the Medicaid Act and its implementing regulations.”

Wilder v. Virginia Hospital Association, 496 U.S. 498, 502 (1990).

The Centers for Medicare and Medicaid Services (CMS) provide federal

oversight of state Medicaid programs, however, each state must designate a single

state agency to administer its Medicaid program. 42 U.S.C. § 1396a(a)(5). HHSC

is the designated Medicaid agency in Texas. TEX. GOV’T CODE § 531.021(a). As

the single state agency, HHSC must comply with all federal Medicaid

requirements when promulgating rules and establishing policy and cannot delegate

its authority on program matters to its contracted entities. 42 C.F.R. § 431.10(e)(1).

HHSC’s contracted entities, which include managed care organizations and the

2

Texas Medicaid and Healthcare Partnership (TMHP), must comply with all

Medicaid legal requirements when deciding whether requested medical services

will be approved for eligible beneficiaries.

At issue in this case is medical equipment, a required component of the

Medicaid home health category of service. 42 U.S.C. § 1396d(a)(7); 42 C.F.R. §

440.70(b)(3). Federal law does not presently define the term durable medical

equipment (DME), however, the Health Care Financing Administration (now

CMS) issued official guidance in 1998 concerning this mandatory Medicaid

benefit. HHSC App. 6. Known as the DeSario Letter, this guidance clarified that

state Medicaid programs must comply with the Medicaid Act’s reasonable

standards requirement, 42 U.S.C. § 1396a(a)(17), and amount duration, and scope

rule, 42 C.F.R. § 440.230(b-c), in administering the DME benefit. In 2013, CMS

reaffirmed the continuing application of this federal policy when it wrote to

HHSC’s Medicaid Director to explain that Texas Medicaid must provide DME

when the requested item: (1) is a covered benefit; and (2) is medically necessary

for the individual requesting it. Puglisi App. 1.

An item of medical equipment is covered by Medicaid if it meet HHSC’s

definition of DME. Puglisi App. 1. By rule, 1 TEX. ADMIN. CODE §

354.1031(b)(12), DME is defined as:

3

[m]achinery or equipment which meets one or both of the following

criteria: (A) the projected term of use is more than one year; or (B)

reimbursement is made at a cost of more than $ 1,000.

Texas Medicaid policy, TMPPM DME Handbook 2.2.2, further defines DME as:

Medical equipment or appliances that are manufactured to withstand

repeated use, ordered by a physician for use in the home, and required

to correct or ameliorate a client’s disability, condition or illness.

HHSC App. 4, 5.

An item of DME is medically necessary when “required to correct or

ameliorate the individual’s disability, medical condition, or illness” or in

exceptional circumstances, found to “serve a specific medical purpose.” TMPPM

DME Handbook 2.2.2; 1 TEX. ADMIN. CODE § 354.1039(a)(4)(D). HHSC App. 4,

5. Once these criteria - coverage and medical necessity - are met by an eligible

beneficiary, HHSC or its contracted entity must prior authorize the requested item

of DME with reasonable promptness. 42 U.S.C. § 1396a(a)(8); 42 C.F.R. §

435.930.

STATEMENT OF FACTS

The facts underlying Linda Puglisi’s request for Medicaid prior

authorization of a custom power wheelchair with integrated standing feature were

largely uncontested at HHSC’s hearing. In 2011, Linda sustained a C1-4 spinal

cord injury during surgery to remove a tumor from her neck. Puglisi App. 2, p.50.

This injury left her paralyzed, dependent upon a ventilator to breathe and a feeding

4

tube for sustenance. Following months of hospitalization and inpatient

rehabilitation, the ventilator and feeding tube were discontinued. Linda remained

paralyzed however, and is no longer able to walk. She requires a custom power

wheelchair for all mobility. Puglisi App. 2, p. 50; App. 3, pp. 63-64; AR 310.

In February 2013, Linda was admitted to TIRR Memorial Hermann Hospital

for physical rehabilitation. While there, she underwent a comprehensive

wheelchair assessment, which provides extensive information concerning her

disability and the numerous medical conditions she faces as a result. Puglisi App.

3, pp. 63-71: HHSC App. 2, Finding of Fact 3; App. 3, Finding of Fact 4. This

evaluation explains that Linda has “impaired integumentary sensation, respiratory

function, neurogenic bowel, and neurological pain.” She also faces an “increased

risk for bone density loss and compromised soft tissue integrity secondary [due] to

not being able to bear weight through [her bilateral lower extremities].” Puglisi

App. 3, p. 64.

The evaluation team recommended a custom power wheelchair with

integrated standing feature to address Linda’s many medical conditions and to

allow her to “independently perform pressure relief and weight bearing through her

[lower extremities] preventing skin breakdown and bone density loss, as well as

enhancing biomechanical alignment throughout the entire body on a daily basis,

5

which helps to prevent further impact of spasticity on joints in upright postures.” 1

Puglisi App. 3, p. 68-69. Linda’s attending physical medicine and rehabilitation

specialist attested to her medical need for the recommended wheelchair with

standing feature.2

As required, a Medicaid-enrolled DME supplier requested prior

authorization of the recommended wheelchair from Molina Healthcare of Texas

(Molina), a managed care organization under contract with HHSC. HHSC App. 2,

Findings of Fact 1, 4; App.3, Findings of Fact 1,5. Molina referred the request to a

third-party entity “for review of medical necessity…” HHSC App. 2, Finding of

Fact 5. This reviewer informed the DME supplier that it would have to substitute a

different wheelchair base and remove the seat elevator and standing feature before

Molina would approve a power wheelchair for Linda. AR 132-133. In response,

the DME supplier submitted extensive documentation, including several

professional publications explaining the medical benefits of standing for people

with spinal cord injuries and their use of wheelchairs with integrated standing

1

Custom wheelchairs with integrated standing systems are well-recognized in the rehabilitation

profession as a means of addressing the “painful, problematic, and costly secondary

complications” that result from prolonged sitting. These wheelchairs “allow for more frequent,

random, and independent performance of standing” than separate standing devices. See RESNA

Position on the Application of Wheelchair Standing Devices, Assistive Technology, 21:161-168,

2009. Puglisi App. 4.

2

The recommended wheelchair has an integrated multi-positional standing system. This

wheelchair requires a Group 4 base to accommodate the standing feature and several additional

power seat functions, including tilt and recline, center mount articulating elevating leg rests,

stand and drive leg rest assembly, and seat elevation, all of which are required to operate the

standing function. Puglisi App. 5, ¶5.

6

features. AR 47-117. This documentation also included additional medical

justification by Linda’s attending physician who further explained Linda’s

diagnoses and functional status, the secondary medical conditions she faces as a

result of prolonged sitting (12 hours) in her wheelchair each day, her need to stand

numerous times throughout the day without risk of transfer injuries, her inability to

independently use a separate stander, and the underlying rationale for

recommending a custom power wheelchair with integrated standing feature as the

only item of equipment that will address Linda’s complex medical needs.3 Puglisi

App. 2, p. 50-52. The DME supplier also explained why certain components could

not be “removed” from the recommended wheelchair as requested by Molina’s

outside reviewer. AR 49.

On May 30, 2013, the reviewer provided his “itemized collection of thoughts

on the equipment in question.” He did not dispute Linda’s medical conditions or

refute the professional opinions of her medical providers. He acknowledged that

Linda’s medical providers “offered very detailed benefits of standing” and “they

note that the member is unable to reap these benefits unless they have the stander

on their chair… .” AR 118-119.

3

There are two general types of standing devices. One is a non-mobile separate stander that

requires the user to transfer in and out of the device whenever he or she needs to stand. The

other is a standing feature integrated into a custom wheelchair, which allows for independent

standing without assistance from care providers and the risk of transfer injuries.

7

On June 6, 2013, Molina denied Linda’s wheelchair request, stating among

other things, that the standing feature was neither covered by Medicaid nor

medically necessary and the seat elevator was not medically necessary. Molina did

not contest Linda’s medical need to stand throughout the day as recommended by

the evaluation team. HHSC App. 1.

A Medicaid fair hearing was requested on June 24, 2013, and was held on

October 30, 2013. AR 267; 19. For the purpose of this hearing, TIRR’s attending

physician provided an additional letter of medical necessity explaining Linda’s

medical need for the recommended wheelchair and further advising that “the team

responsible for conducting Linda’s wheelchair evaluation in February 2013

continues to support their recommendation for a custom power wheelchair with

integrated standing feature for Linda.” Linda’s physician also reaffirmed that a

separate stander would not be effective in addressing the numerous secondary

medical conditions she faces due to her spinal cord injury. Puglisi App. 6.

In November 2013, HHSC’s hearing officer sustained Molina’s prior

authorization denial. HHSC App. 2. Linda requested an administrative review of

this decision pursuant to TEX. GOV’T CODE § 531.019(c) and 1 TEX. ADMIN. CODE

§ 357.703. AR Tab 16, 1-14. On January 14, 2014, an HHSC attorney sustained

the hearing officer’s decision and upheld Molina’s denial of the recommended

wheelchair. HHSC App. 3. Having exhausted her administrative remedies, Linda

8

filed a Petition for Judicial Review on February 7, 2014. CR3-31. While this case

was pending in the trial court, HHSC informed Linda that, effective May 2014, she

would be dually eligible for both Medicaid and Medicare. This dual eligibility

status is known as a Medicaid Qualified Medicare Beneficiary (MQMB). Five

months later, HHSC filed a motion to dismiss, claiming the case was not ripe

because of Linda’s dual eligibility. CR 199. The trial court denied this motion in

November 2014. CR 314. On January 15, 2015, the court reversed HHSC’s

hearing decision, finding that Linda was entitled to Medicaid prior authorization of

the recommended wheelchair. CR 348-349.

SUMMARY OF THE ARGUMENT

The trial court correctly determined it had subject matter jurisdiction of this

case and properly denied HHSC's motion to dismiss. The facts underlying this

case were ripe when it was filed and continue to be ripe today. No intervening

event, including Linda’s dual eligibility for Medicaid and Medicare, has rendered

this case unripe for adjudication.

The trial court properly tailored its decision on the merits to HHSC’s denial

of Medicaid prior authorization for the recommended wheelchair and remanded the

case for further action consistent with its decision. The court was not required to

remand the case to allow HHSC to “change its findings and decision.” Nor was

the court obligated to defer to HHSC’s post hoc interpretation of agency rules or to

9

consider “regulatory prerequisites” that were not identified during the

administrative proceeding as the basis for Molina’s denial of Linda’s prior

authorization request.

Molina identified two reasons for its prior authorization denial - - Medicaid

coverage of the recommended standing feature and Linda’s medical necessity for

the standing feature and seat elevator. The first is a legal question the trial court

resolved by finding that “HHSC’s administrative decision fails to comply with the

controlling federal and state law, and thus, is arbitrary, capricious, and

unreasonable.” The second is a question of fact the trial court resolved based upon

the evidence submitted by Linda’s treating medical providers and Molina’s failure

to refute this evidence. On this issue, the trial court correctly determined that

HHSC’s decision was not supported by substantial evidence.

At the fair hearing, Molina had the burden to prove that the reasons for

denial cited in its notice of adverse action were factually accurate and legally

correct, but failed to meet this burden. Like Molina, HHSC failed to employ the

correct test for determining Medicaid coverage of DME and to apply the agency’s

own medical necessity standards established in rule and policy. Finally, Linda’s

due process rights as a Medical beneficiary were violated in this case, first by

Molina’s failure to provide legally sufficient notice, and then by HHSC’s attorney

10

who based his decision on grounds that were not identified in Molina’s denial

notice. The trial court’s decision is correct and should be affirmed.

ARGUMENT

A. The Trial Court Correctly Denied HHSC’s Motion to Dismiss.

HHSC’s claim that the trial court lacked subject matter jurisdiction has no

merit. The court correctly rejected HHSC’s assertion that Linda’s dual eligibility

for Medicaid and Medicare rendered her case unripe and properly denied the

agency’s motion to dismiss. While ripeness is a “threshold issue that implicates

subject matter jurisdiction,” Patterson v. Planned Parenthood of Houston & Se.

Texas, Inc., 971 S.W.2d 439, 442 (Tex. 1998) citing Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), there is no question this case was ripe

when filed and continues to be ripe today. This case does not involve “uncertain or

contingent future events that may not occur as anticipated or may not occur at all.”

Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000). Rather, the

facts of this case “have developed sufficiently so that an injury has occurred…”

439 S.W.2d at 442. (citations omitted). This injury – denial of Medicaid prior

authorization of a power wheelchair with integrated standing feature – occurred

prior to the filing of this action and continues to date.

Contrary to HHSC’s claim, Linda’s dual eligibility is not a “significant

intervening event” that renders her case for Medicaid prior authorization unripe.

11

HHSC Brief, p.10. It does not matter that “Texas law requires HHSC to analyze

claims submitted under Medicaid to ensure claims are submitted first under

Medicare to the extent allowed by law.” (emphasis added) HHSC Brief, p.9. This

case is not about the payment of claims: it is about the unlawful denial of prior

authorization of a Medicaid service. Medicare’s primary payor status does not

dictate any particular order for securing prior authorization of the recommended

wheelchair.4

HHSC’s assertion that Linda “is required to avail herself of the CMS prior

authorization process and procedure in the first instance” is wrong. HHSC Brief,

p. 11. HHSC does not identify any authority to support this claim and for good

reason – no such requirement exists in either Medicare or Medicaid law or policy.5

These are separate programs, enacted with distinct purposes and established with

different coverage and medical necessity standards.6

4

For dually eligible individuals, Medicare is the primary payor, while Medicaid is secondary. 1

TEX. ADMIN. CODE § 354.1041.

5

The DME MAC Supplier Manual cited by HHSC offers no support for the agency's assertion

that Medicare prior authorization must be obtained “in the first instance.” HHSC App. 11.

6

Numerous courts have recognized the differences between Medicaid and Medicare. See e.g.,

Skubel v. Fuoroli, 113 F.3d 330, 336 (2d Cir. 1997), aff’g 925 F.Supp. 930, 941(D.Conn.

1996)(rejecting reliance on Medicare regarding scope of Medicaid coverage of home health care

services); Roe v. Norton, 522 F.2d 928, 933-34n.5 (2d Cir. 1975)(does not infer medical need is

analogous between Medicare and Medicaid); Rastetter v. Weinberger, 379 F.Supp. 170, 172

(D.AZ. 1974)(Medicaid is a different law with a different purpose than Medicare); Allegent

Health v. Amer. Farm Ins., Inc., 656 N.W.2d 906, 911 (Neb. 2003)(Medicare is a program with a

different purpose and different standards than Medicaid)(citing Evanston Hosp. v. Hauck, 1992

WL 205900 (N.D. Ill. 1992)(Medicare and Medicaid are entirely separate programs with

different purposes and standards; federal Medicare enactments do not provide any mandates for

state Medicaid practices.) aff’d 1 F.3d 540 (7th Cir. 1993), cert. den. 510 U.S. 1091 (1994)).

12

Importantly, Linda’s MQMB status does not limit the Medicaid services to

which she is entitled as she remains eligible for the full scope of Medicaid benefits,

in addition to her Medicare benefits. If an item of DME is not available through

Medicare, Medicaid remains a source for this service. 1 TEX. ADMIN. CODE §§

354.1041(2)(B); 355.8021(b)(2-3). Moreover, Linda’s MQMB status does not

alter the fact that she is required to follow the same process for obtaining a custom

power wheelchair through Medicaid as all other beneficiaries. A description of

this process, which consists of four sequential steps, demonstrates the ripeness of

Linda’s case. 1 TEX. ADMIN. CODE § 354.1040.

First, a Medicaid beneficiary must undergo a clinical assessment by a

licensed occupational or physical therapist and a qualified rehabilitation

professional (QRP). Next, a Medicaid-enrolled DME supplier must submit a prior

authorization request, including the clinical assessment, a physician’s attestation of

medical necessity, a detailed description of the wheeled mobility system and all

medically necessary components or accessories, and any other documentation

required to explain the medical necessity of the requested equipment. 1 TEX.

ADMIN. CODE § 354.1040(d)(3). If prior authorization is granted, the DME

supplier orders and delivers the authorized wheelchair to the beneficiary. Once the

wheelchair is delivered, the DME supplier completes the final step – submission of

the claim for payment. 1 TEX. ADMIN. CODE § 354.1040(g). In instances where “a

13

third party health insurer is identified, [suppliers] are required to bill the third party

health insurer before submitting a claim for payment to the Commission…”7 1

TEX. ADMIN. CODE § 354.2321(b).

Here, HHSC’s ripeness argument erroneously conflates the prior

authorization step in this process, which occurs before the wheelchair is provided,

with the final step, payment of the supplier’s claim. This argument is not new. In a

similar administrative case, New York Medicaid refused to process the DME prior

authorization request of a dually-eligible beneficiary claiming she “was required to

explore Medicare approval first because [Medicaid] is the payor of last resort.”

Rejecting this argument, the Commissioner explained:

The issue here is a request for prior approval, not a request for

payment. Although the Medical Assistance program is the payor of

last resort, the question of payment is not relevant to the issue of prior

approval . . . [t]he Appellant is entitled to have the Agency determine

whether the walker is medically necessary, which is a separate and

distinct question from the amount of Medical Assistance payment, if

any.

Puglisi App. 7.

Similarly, Connecticut settled a lawsuit challenging this same practice by the

state’s Medicaid program, clarifying in statute that the DME prior authorization

7

“The Commission may be billed for the difference between the amount paid by the third party

health insurer and the Medicaid payable amount…” 1 TEX. ADMIN. CODE § 354.2321(f).

14

process must be available to dually eligible beneficiaries.8 As explained in Conn.

Gen. Stat. Sec. 17b-281a, “[a]ccess to [the DME preauthorization process] shall

not be denied to a recipient on the basis that a Medicare determination has not been

made prior to the submission of a request for preauthorization to the

commissioner.”

Regardless of Linda’s MQMB status, the facts underlying HHSC’s unlawful

denial of Medicaid prior authorization remain ripe. Until HHSC authorizes the

recommended wheelchair, Linda is unable to proceed any further in the agency’s

four-step process for obtaining a custom power wheelchair. The DME supplier

cannot deliver the wheelchair or request payment first from Medicare, the primary

payor, and then from Medicaid, the secondary one.

On the merits of the case, the trial court correctly found that HHSC’s

decision sustaining Molina’s prior authorization denial failed “to comply with

controlling and applicable federal and state law, and thus, is arbitrary, capricious,

and unreasonable.” The court properly limited its decision to this issue, stating that

“[b]ecause this DME item must [be] prior authorized from Texas Medicaid, the

Court reverses the administrative decision of the Texas Health and Human

Services Commission on [the] prior authorization [question] presented.” HHSC

8

Frank v. Thomas, No. 3:98CV00306(GLG), U.S. Dist. Ct., D. Conn. 1998 (class action brought

by an individual with a disability who was denied Medicaid prior authorization of a standing

wheelchair because of her dual eligibility status.

15

App. 10. Once HHSC issues Medicaid prior authorization, the wheelchair can be

provided to Linda. Only then can the DME supplier request payment, first through

Medicare and then through Medicaid.

In determining the ripeness of a case, courts may consider “the importance

of the interest advanced [and] the extent of the injury…” Perry v. Del Rio, 66

S.W.3d 239, 251-52 (Tex. 2001), citing 13 Charles Alan Wright, Arthur R. Miller,

& Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 3532.1, at

130 (2d ed.1984). Here, the injury caused by HHSC's erroneous hearing decision

is a harsh one. Linda first requested prior authorization of the recommended

wheelchair in April 2013. During this time, she has had to rely upon a loaner

wheelchair that is not customized to meet her needs. Requiring her to begin the

process again, starting with a new evaluation and a new request for Medicaid prior

authorization, would subject her to further delay during which time she will not

have access to the medically necessary wheelchair she requires to address her

many medical conditions. The facts underlying this case are ripe and the trial

court's decision denying HHSC's motion to dismiss should be affirmed.

B. The Trial Court Correctly Reversed and Remanded the Case to HHSC

for Further Proceedings Consistent with Its Decision.

HHSC takes issue with the trial court’s reversal of the agency’s hearing

decision and remand for agency action consistent with this decision. According to

HSHC, the “REVERSAL component of the order [ ] is in conflict with the

16

‘REMAND’ component.” HHSC Brief, p. 12. This is incorrect. The trial court

was careful to consider and decide the central issue before it - whether HHSC

erroneously sustained Molina’s denial of Linda’s prior authorization request.

Having properly found that HHSC’s hearing decision was “arbitrary, capricious,

and unreasonable” and “unsupported by substantial evidence,” the trial court

correctly remanded the case for the agency to issue Medicaid prior authorization of

the recommended wheelchair.

HHSC’s claim that the agency should have the opportunity to take additional

evidence on remand is wrong. HHSC Brief, p.13. There is no dispute that Linda

became eligible for Medicare in May 2014 or that she is entitled to the full scope

of benefits available through Medicaid and Medicare. Moreover, there is no law or

policy that requires Medicare authorization of DME to be requested before seeking

prior authorization from Medicaid. Finally, there is no question that once the

recommended wheelchair has been delivered to Linda, the DME supplier must first

bill Medicare before submitting a claim to Medicaid.

Linda’s MQMB status has no bearing on her right to Medicaid prior

authorization of the requested wheelchair. Thus, the trial court correctly rejected

HHSC’s request to remand the case so it could “change its findings and decision.”

HHSC’s Brief, p.13. There are no new facts to be determined, no new legal

requirements to be applied in this case. Given the express language of the court’s

17

order, HHSC’s assertion that “the trial court failed to consider Puglisi’s dual

eligible status in the context of the suit for judicial review” has no merit. HHSC

Brief, p. 12.

C. Deference is Not Owed to HHSC’s Post-Hoc Interpretation of Agency

Rules.

HHSC next maintains the trial court failed to defer to the agency’s

interpretation of 1 TEX. ADMIN. CODE §§ 354.1039(a) and 354.1039(a)(4)(a) in

reversing its hearing decision. Again, this argument has no merit. Neither of these

rules were identified by Molina as the legal basis for denying Linda’s prior

authorization request. HHSC App. 1. Yet, federal Medicaid regulations require the

Medicaid agency or its designee to identify the “specific regulations that

support…the action” in its notice of adverse action. 42 C.F.R. § 431.210(c).

Similarly, neither HHSC’s hearing officer nor reviewing attorney mentioned these

rules, let alone cited them as the legal basis for sustaining Molina’s prior

authorization denial. HHSC App. 2, 3. HHSC has no credible complaint that the

trial court failed to defer to the agency’s interpretation of rules that were never

identified as the basis for HHSC’s hearing decision.

This Court’s decision in Sw. Pharmacy Solutions, Inc. v. Texas Health &

Human Servs. Comm’n, 408 S.W.3d 549 (Tex. App. 2013), review denied (Nov.

22, 2013) does not support HHSC’s position. The present case is not about

construction of a statute or rule that expressly excludes wheelchair standing

18

features as no such law exists. To the contrary, applicable statute and rules

specifically support Medicaid coverage of this specialized component. It is only

TMHP policy that states otherwise, in conflict with Texas Medicaid law. As this

Court explained, “an agency’s interpretation of a statute it is charged with

enforcing is entitled to ‘serious consideration,’ so long as the construction is

reasonable and does not conflict with the statute’s language…" "We defer to an

agency’s interpretation of its own rules unless it is plainly erroneous or contradicts

the text of the rule or underlying statute.” (citations omitted) Id. at 557-58. See

also Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823, (Tex. 1993) citing

Stanford v. Butler, 181 S.W.2d 269, 273 (Tex.1944).

Here, the agency’s post hoc interpretation of the above-cited rules

contradicts the plain language of TEX. HUM. RES. CODE § 32.0425 and 1 TEX.

ADMIN. CODE § 354.1040, which broadly define custom wheelchairs to include

other complex or specialized components. HHSC’s claim that 1 TEX. ADMIN.

CODE § 354.1039(a) allows the agency to exclude complex or specialized

wheelchair components is wrong and is not entitled to “serious consideration” or

deference by any court.

The same is true about HHSC’s interpretation of 1 TEX. ADMIN. CODE §

354.1039(a)(4)(A), which requires, among other things, that DME be medically

necessary. Molina did not apply either medical necessity standard established in

19

Medicaid rule and policy in this case. AR 326, Response to Interrogatory No. 6.

Nor did HHSC’s hearing officer and reviewing attorney. HHSC App. 2, 3.

Nowhere does HHSC determine whether the recommended power wheelchair with

all prescribed components is required “to correct or ameliorate [Linda’s] disability,

medical condition, or illness, 2013 TMPPM DME Handbook §2.2.2, or will “serve

a specific medical purpose.” 1 TEX. ADMIN. CODE § 354.1039(a)(4)(D). The trial

court’s judgment that HHSC’s hearing decision is arbitrary and capricious is fully

supported by the administrative record in this case.

D. The Trial Court Correctly Determined that HHSC’s Hearing Decision

Fails to Comply with Medicaid Law.

HHSC also defends its hearing decision by claiming it complies with 1 TEX.

ADMIN. CODE §§ 354.1031, .1035, .1039 and .1040 but fails to explain how this is

so. In fact, there is no credible support for this claim. The first rule, 1 TEX.

ADMIN. CODE § 354.1031(b)(12), defines DME and governs whether an item of

medical equipment is “covered” by Texas Medicaid. As explained by CMS,

medical equipment satisfying the state’s DME definition is “to be provided to

individuals (of any age) meeting the State’s medical necessity criteria." Puglisi

App. 1. Yet, neither Molina nor HHSC applied the state's DME definition to the

wheelchair standing feature to determine whether it is covered through the home

health benefit. HHSC App. 1, 2, 3.

20

Next, 1 TEX. ADMIN. CODE § 354.1035 sets out the qualifications for home

health services, only two of which - coverage and medical necessity - were

identified as the basis for Molina’s denial of Linda’s prior authorization request.

HHSC’s argument to the contrary is incorrect.

Finally, both 1 TEX. ADMIN. CODE §§ 354.1039 and .1040 fully support

Medicaid coverage of the requested wheelchair and its components, not HHSC’s

finding of non-coverage. These rules define custom wheelchairs available through

Texas Medicaid to include “medically justified equipment” and “complex or

specialized components.” The application of these rules to the requested

wheelchair standing feature establishes its coverage as DME. HHSC’s decision to

the contrary is arbitrary and capricious. See Rodriguez v. Serv. Lloyds Ins. Co.,

997 S.W.2d 248, 255 (Tex. 1999) (stating an agency’s action will be reversed as

arbitrary and capricious when the agency fails to follow “the clear, unambiguous

language of its own regulation.”)

HHSC’s claim that Linda failed to satisfy the necessary prerequisites for

prior authorization of DME is wholly unsupported by the administrative record.

Moreover, the agency’s suggestion that Linda is not eligible for the requested

wheelchair because “the home health agency must obtain prior authorization”

completely misses the point of this case. From the outset, Linda has challenged

Molina’s denial of prior authorization for the custom wheelchair recommended by

21

her treating medical providers. The trial court correctly found Linda has

established her right to Medicaid prior authorization of this wheelchair.

E. The Trial Court Correctly Determined that HHSC’s Hearing Decision is

Arbitrary, Capricious, Unreasonable and Unsupported by Substantial

Evidence.

1. The Trial Court Properly Addressed the Two Reasons Molina Denied

Linda Puglisi’s Prior Authorization Request.

Molina’s denial of Linda’s prior authorization request for a custom power

wheelchair with integrated standing feature raised two issues. HHSC App. 1. The

first - Medicaid coverage of the standing feature - is a legal question the trial court

correctly resolved by finding that “HHSC’s administrative decision fails to comply

with the controlling federal and state law, and thus, is arbitrary, capricious, and

unreasonable.” The second – Linda’s medical need for the recommended

wheelchair - is a question of fact the trial court resolved based upon the probative

evidence submitted by Linda’s medical providers and Molina’s failure to refute

this evidence. On this issue, the trial court correctly determined that HHSC’s

decision was not supported by substantial evidence. HHSC App. 10, CR 348-349.

On appeal, HHSC claims the trial court failed to decide the “salient question

[ ] whether Puglisi is required to satisfy all or only part of the regulatory

prerequisites necessary to acquire the requested DME.” HHSC’s Brief, p. 17. This

is wrong. The trial court correctly decided the two issues raised by Molina in its

22

denial notice, addressed by Molina at the hearing, and decided in the agency’s

hearing decision.

HHSC’s description of additional “regulatory prerequisites” is also wrong.

Linda was not required to establish, nor was the trial court required to determine,

that the recommended wheelchair is “reimbursable DME.” As explained in

Detgen v. Janek, 945 F. Supp. 2d 746, 758 (N.D. Tex. 2013), “claimants ought not

be required to assure HHSC during the prior authorization process that [federal

reimbursement] will be available for items they request.” HHSC App. 12. This is

particularly true given that CMS directly informed HHSC that “federal

reimbursement is available to the state to the extent that [an] item is determined to

be covered.” Puglisi App. 1. Simply put, Medicaid reimbursement is available for

medical equipment that meets the state’s definition of DME.9

HHSC’s assertion that the trial court failed to decide if there was adequate

documentation of “appropriateness” is equally unpersuasive. Molina did not deny

Linda’s prior authorization request on this basis and HHSC did not address

“appropriateness” in its decision. Clearly, the trial court was not obliged to do so

either.

9

Linda’s undisputed evidence established that integrated standing features have been reimbursed

by Texas Medicaid under the miscellaneous DME code (E1399) and the code for wheelchair

standing features (E2301). See Declaration of Britt Sitzes, AR 289-290, ¶4; Declaration of

Nancy Rice, AR 291-292, ¶¶ 5&6.

23

Finally, HHSC’s claim that the trial court failed to consider whether Linda

“had received prior authorization” once again ignores the fact that Linda's

entitlement to Medicaid prior authorization of the recommended wheelchair was

the central issue before the trial court. It goes without saying that Linda had not

received Medicaid prior authorization before filing this case in the district court.

HHSC’s claim that the trial court erred by “discarding” these additional

“regulatory prerequisites” has no merit.

2. HHSC Failed to Address Linda Puglisi's Medical Need for a Custom

Power Wheelchair with Integrated Standing Feature.

HHSC failed to apply its own medical necessity standards to determine

whether the evidence submitted by Linda’s medical providers established that a

custom power wheelchair with integrated standing feature will correct or

ameliorate her disability or medical condition or will serve a specific medical

purpose for her. 2013 TMPPM DME Handbook, §2.2.2; 1 TEX. ADMIN. CODE

§354.1039(a)(4)(D). To be clear, HHSC made no decision whether the standing

feature of the recommended wheelchair is medically necessary for Linda even

though standing is the essential wheelchair function she requires to address her

numerous medical conditions caused or exacerbated by prolonged sitting day in

and day out. The agency failed to address this critical issue, and instead, limited its

medical necessity determination to the wheelchair base and seat elevator, two parts

of the wheelchair that are required to operate the standing function of the

24

recommended wheelchair. This fundamental error, and others, justified the trial

court's reversal of HHSC’s decision

The administrative record demonstrates that Linda’s well-qualified health

care providers submitted ample evidence of her medical need for the recommended

wheelchair.10 This documentation established that Linda suffers from numerous

medical conditions secondary to quadriplegia and prolonged sitting (12 hours) in a

wheelchair every day. These conditions include osteopenia and an increased risk

for bone density loss, compromised soft tissue integrity, impaired integumentary

sensation and respiratory function, neurogenic bowel, and neurological pain.

Puglisi App. 2, p.50, ¶2. As a result, Linda has a medical need to stand numerous

times throughout the day to address the adverse effects of these serious medical

conditions. According to Linda’s physician:

This increased frequency of standing will maximize the medical

benefits of standing, including but not limited to, providing complete

pressure relief from prolonged sitting, maintaining bone density,

10

In the Medicaid program, treating medical professionals play a central role in determining

their patient's medical needs. As described in the legislative history of the Medicaid Act:

The committee’s bill provides that the physician is to be the key figure in

determining utilization of health services - and provides that it is a physician who

is to decide upon admission to a hospital, order tests, drugs and treatments, and

determine the length of stay. For this reason the bill would require that payment

could be made only if a physician certifies to the medical necessity of the services

furnished.

S.Rep. No. 404, 89th Cong., 1St Sess., reprinted in 1965 U.S.C.C.A.N. 1943. See Weaver v.

Reagan, 886 F. 2d 194, 200 (8th Cir. 1989), (“[t]he Medicaid statute and regulatory scheme

create a presumption in favor of the medical judgment of the attending physician in determining

the medical necessity of treatment.)

25

decreasing muscle tone, improving circulation, increasing respiratory

function, and maintaining/improving range of motion to hips, knees,

and ankles. Reducing or eliminating the occurrence of these medical

complications from prolonged sitting will help Linda maintain her

health and well-being and decrease the associated costs of her future

medical care. Puglisi App. 2, p.51, ¶4.

Linda’s physician further made clear that “[w]ith the recommended

wheelchair, Linda will be able to stand more often and for shorter periods, making

each standing opportunity more effective in preventing bone loss and promoting

bone density.” Puglisi App. 2, p.51, ¶3. Her occupational therapist also explained

that the recommended wheelchair will enhance Linda’s “biomechanical alignment

throughout the entire body on a daily basis, which helps to prevent further impact

of spasticity on joints in upright postures.” Puglisi App. 3, p.69, ¶1.

Additionally, Linda’s physician described why a separate stander will not

meet her medical needs:

Unlike a separate stander that would require Linda to have caregiver

assistance each time she uses the device, the recommended wheelchair

will allow Linda to independently stand as often as possible and in

any location, whether at home or in the community. Research

demonstrates that short, frequent standing is more effective in

improving bone density than one long standing episode. With the

recommended wheelchair, Linda will be able to stand more often and

for shorter periods, making each standing opportunity more effective

in preventing bone loss and promoting bone density.

Puglisi App.2, p.51, ¶ 3.

Finally, Linda’s evidence established that the recommended wheelchair

requires several components, including tilt and recline, center mount articulating

26

elevating leg rests, a stand and drive leg rest assembly, and seat elevation, for the

standing feature to function. As explained, the standing system is not operational

without these components, all of which must be accommodated by a Group 4

wheelchair base. Puglisi App.2, p. 51, ¶1; App. 5, p. 293, ¶5. According to Linda’s

physician,

[T]he specific wheelchair recommended for Linda - Permobil

C500VS - requires a Group 4 base, with seat elevation and integrated

standing feature to permit the user to independently stand. As such,

these components cannot be “removed” from the prior authorization

request without substantially changing the nature of the wheelchair.

At the fair hearing, Molina failed to prove the accuracy of the medical

necessity determinations identified in its denial notice.11 Nor did Molina offer any

evidence that its medical necessity decision was made by qualified medical

professionals. While Molina’s denial notice suggests that a physician made this

decision, HHSC App. 1, their evidence established that Linda's wheelchair request

was sent to a third-party entity to determine medical need. HHSC App. 2, Finding

of Fact 5. This third-party reviewer was not a physician, an occupational therapist

or a physical therapist.12 AR 118.

Molina also was clear it did not apply Texas Medicaid’s medical necessity

standards to Linda’s prior authorization request. As they explained:

11

Pursuant to 1 TEX. ADMIN. CODE § 357.9, Molina had the burden to prove by a preponderance

of the evidence that the reasons for denial identified in its notice of adverse action were factually

accurate and legally correct.

12

Texas Medicaid requires that wheelchair evaluations be conducted by a licensed physical or

occupational therapist or physician. 2015 TMPPM §2.2.15.10.

27

Molina utilizes the standards set forth by the National Committee for

Quality Assurance (NCQA). Accordingly, the definition of “Medical

Necessity” as set by NCQA as follows:

Determinations on decisions that are (or which could be considered to

be) covered benefits, including determinations defined by the

organization; hospitalization and emergency services listed in the

Certificate of Coverage or Summary of Benefits and care or service

that could be considered either covered or non-covered depending on

the circumstances.13

AR 326, Response to Interrogatory No. 6.

Molina’s denial contained several erroneous statements. As to the standing

feature, Molina claimed it “is not considered medically necessary because driving

standing up is not a medical necessity.” HHSC App.1. However, Molina offered

no credible evidence to support this statement. In fact, this assertion completely

misconstrues the purpose and function of the wheelchair standing feature. Linda’s

medical professionals did not recommend this feature so Linda could drive her

wheelchair while standing.14 They recommended this feature so that Linda can

independently stand throughout the day to address the many medical conditions

she experiences as a result of prolonged sitting.

As to the seat elevator, Molina claimed “the documentation submitted did

not indicate how the power seat elevator system would promote independence.”

13

Federal Medicaid law prohibits managed care organizations from applying a more restrictive

medical necessity standard than the one established in “State statutes and regulations, the State

Plan, and other State policy and procedures.” 42 C.F.R. § 438.210(a)(4)(i).

14

Linda’s evidence established that “[t]he standing feature of the Permobil C500 can be used

while the wheelchair is stationary or while moving at low speeds.” See Affidavit of Amy

Morgan, PT. Puglisi App. 5, ¶10.

28

HHSC App.1. This statement was based on a TMHP policy governing power seat

elevators required to facilitate independent transfers. TMMPM §2.2.15.15. HHSC

App. 5. However, this policy has no relevance to Linda’s medical need for a

standing wheelchair as the seat elevator was not requested for transferring. It was

requested because the standing feature of the recommended wheelchair will not

operate without it.

Importantly, Molina did not refute the medical evidence submitted by

Linda’s medical providers or dispute their professional opinions that frequent daily

standing is required to address her numerous medical conditions. In fact, Molina

conceded Linda’s medical need to stand by suggesting she obtain a separate

standing device.15 HHSC App. 2, Finding of Fact 10.

Moreover, Molina did not dispute the evidence establishing that Linda

cannot access a separate stander on her own due to the severity of her disability

and that she lacks sufficient personal care providers to assist her with using such

equipment numerous times throughout the day. Puglisi App. 2, p. 50, ¶3; HHSC

App. 2, Finding of Fact 10. Even Molina’s third-party reviewer did not conclude

that a separate stander was sufficient to meet Linda’s needs. Rather, he

acknowledged the opinion of Linda’s medical providers “that the member is unable

15

According to Texas Medicaid policy, separate standers are approved to address medical needs

like those experienced by Linda, e.g. “improve digestion, increase muscle strength, decrease

contractures, increase bone density, and minimize decalcification (this list is not all inclusive).”

TMPPM DME Handbook, §2.2.15.22.1.

29

to reap [the] benefits [of standing] unless they have the stander on their chair…”

AR 118, ¶4.

Like Molina, HHSC failed to apply the agency’s medical necessity standards

established in Texas Medicaid rule and policy. HHSC did not determine whether

the recommended custom power wheelchair with integrated standing feature will

correct or ameliorate the medical conditions documented by Linda’s medical

professionals or will serve a specific medical purpose for her. HHSC did not

address Molina’s assertion that “driving while standing is not a medical necessity”

and ultimately, made no decision whether the standing feature is medically

necessary for Linda. It is this essential feature, however, that was recommended

by Linda’s medical providers to address her numerous medical conditions caused

or exacerbated by prolonged sitting day in and day out.

HHSC also erroneously determined that a seat elevator is not medically

necessary because it “will not facilitate independent transfers to and from the

wheelchair for Appellant.” HHSC’s App. 2. Again, this determination ignores the

critical fact that a seat elevator was included in the prior authorization request

because the recommended wheelchair will not stand without it. Certainly, Molina

made no attempt to disprove Linda’s evidence that the seat elevator ensures “the

anterior stability of the wheelchair by allowing the caster wheels to be in contact

with the ground” when standing. Puglisi App. 5, ¶ 5.

30

Although HHSC’s hearing officer limited his medical necessity

determination to the seat elevation device, HHSC’s reviewing attorney went one

step further. Completely ignoring Linda’s medical need for the standing feature,

he determined that Linda did not qualify for the Group 4 base on the recommended

wheelchair. HHSC App. 3. While acknowledging that “the integrated standing

feature and seat elevation system are not available with the Group 3 custom power

wheelchair, HHSC App. 3, Finding of Fact 7, he ignored the fact that Molina did

not deny prior authorization of the Group 4 base on the basis of medically

necessity. Faced with insufficient medical evidence to support Molina’s denial,

HHSC’s reviewing attorney fashioned a new rationale for the denial, in violation of

Linda’s due process right to timely and adequate notice of all reasons for the

denial, with supporting legal citation, prior to the fair hearing. 42 C.F.R §§

431.210(b-c).

The bottom line is that the administrative record contains no credible

evidence refuting the professional opinions of Linda’s medical providers that a

custom wheelchair with integrated standing feature will address the “numerous

secondary medical conditions Linda faces due to her spinal cord injury” and that “a

separate stander will not provide the same medical benefits for Linda.” Puglisi

Apps. 2, 3, 6.

31

In this appeal, HHSC’s defense of its hearing decision begins with the

erroneous assertion that Linda was required to prove her medical need for a Group

4 wheelchair base. This is incorrect. As explained above, this claim was not part

of Molina’s medical necessity denial, but rather, was the post hoc invention of

HHSC’s reviewing attorney. HHSC App 3. HHSC cannot ignore the fact that

Molina’s evidence wholly failed to refute Linda’s medical need to stand and her

inability to use a separate stander and then concoct a new basis for denial after the

fair hearing. Molina’s denial notice does not cite TMPPM 2.2.14.12.5 as support

for its decision and HHSC’s argument concerning this policy has no bearing on the

outcome of this case. Molina recognized that the Group 4 wheelchair base “was

requested in order to accommodate the Power Stand and Drive function.” HHSC

App. 1. And as Molina’s outside reviewer noted, the requested wheelchair only

comes with a Group 4 base and the difference between a Group 3 and 4 base is not

a question of medical necessity. AR 118.

HHSC’s assertion that Linda was required to demonstrate that a Group 4

wheelchair base is medically necessary, i.e. will correct or ameliorate her

disability, condition, or illness, is nonsensical. The recommended wheelchair

requires many components to be operational and there is no requirement that

medical necessity be demonstrated for each and every one. The undisputed

evidence established that several identified components, as well as the Group 4

32

wheelchair base, are required to operate the standing feature of the wheelchair.

Puglisi App. 5.

HHSC’s defense of its medical necessity decision concerning the seat

elevation system fails for the same reason. It is undisputed that the power seat

elevator, like the Group 4 wheelchair base, is required to operate the standing

feature of the recommended wheelchair. HHSC cannot deny Linda’s medical need

for a custom power wheelchair with integrated standing feature because she lacks

the functional ability to perform “uphill transfers.” The agency’s reliance upon

TMPPM 2.2.14.15 to deny the recommended wheelchair wholly ignores the fact

that Linda has a medical need to stand throughout the day and the recommended

wheelchair is the only item of DME that will meet her medical needs.16

Moreover, HHSC’s argument concerning medical necessity for a seat

elevator creates an impermissible distinction between Medicaid beneficiaries based

on the severity of their disabilities. As such, individuals who have a medical need

to stand and who can perform independent transfers, “particularly uphill transfers,”

can obtain a standing wheelchair, while those with more severe disabilities who

have the same medical need to stand but lack the functional ability to self-transfer,

cannot. Under HHSC’s analysis, individuals with quadriplegia would never qualify

16

HHSC suggests Linda’s documentation “did not demonstrate how the power seat elevator

system would promote independence.” This is inaccurate. Linda’s physician specifically advised

that “the specific wheelchair recommended for Linda - Permobil C500VS - requires a Group 4

base, with seat elevation and integrated standing feature to permit the user to independently

stand.” (emphasis added) Puglisi App. 2, ¶1.

33

for a wheelchair with integrated standing feature due to the severity of their

disabilities and their functional inability to self-transfer. While this distinction

between Medicaid beneficiaries makes no medical sense, it also violates the

Medicaid Act’s comparability requirement and its prohibition against diagnosis-

based decision making.17 HHSC cannot deny eligibility for standing wheelchairs

based upon severity of disability when there is no medical rationale to support this

distinction.

HHSC’s medical necessity arguments concerning the Group 4 power base

and seat elevator are a futile attempt to evade the fact that its hearing decision

failed to address Linda’s medical need for a custom power wheelchair with

integrated standing feature. The trial court correctly determined that HHSC’s

hearing decision is unsupported by substantial evidence.

3. HHSC Failed to Employ the Correct Test for Determining Medicaid

Coverage of DME.

Medical equipment is covered through Medicaid’s home health benefit when

the item fits within the state's DME definition. Puglisi App. 1. HHSC concedes

this is the proper test for DME coverage, HHSC Brief, p.30, but ignores the fact

that both its hearing officer and reviewing attorney failed to apply this test to the

recommended wheelchair standing feature. Instead, they erroneously presumed

17

42 U.S.C. § 1396a(a)(10)(B); 42 C.F.R. § 440.240(b); See Lankford v. Sherman, 451 F.3d 496

(8th Cir. 2006) (comparability requirement violated when state covers items of DME for certain

individuals with disabilities but not for others.)

34

non-coverage based upon TMHP’s policy exclusion of standing features and

sustained Molina’s coverage determination on this basis. HHSC App. 2, 3.

Contrary to HHSC’s claim, Linda has never suggested that Medicaid

coverage of the recommended standing feature should be “assumed.” Instead, she

maintains that HHSC cannot lawfully apply TMHP’s presumption of non-coverage

as it did in this case.18 Here, there is no question the standing feature meets the

state’s DME definitions and its definition of wheeled mobility systems.

HHSC relies upon Detgen v. Janek, 752 F. 3d 627 (5th Circuit 2014), to

defend its failure to correctly determine Medicaid coverage of the recommended

wheelchair component, however, this reliance is misplaced. Detgen upheld the

state’s exclusion of ceiling lifts, finding that a state can choose “by definition” to

exclude ceiling lifts from coverage. Id. at 632. Here, the opposite is true and

necessarily compels a different outcome. The Texas Legislature chose to define

custom wheelchairs to include wheelchairs with complex or specialized

components like the standing feature at issue in this case. TEX. HUM. RES. CODE §

32.0425.

Next, Detgen found the exclusion of ceiling lifts to be “reasonable” because

of the availability of “more cost effective alternatives.” According to the Court, “a

18

HHSC acknowledges that CMS reminded the agency of this specific test for DME coverage,

yet inexplicably claims that TMHP’s exclusion of wheelchair standing features complies with

federal policy. HHSC Brief, p. 30. HHSC makes no attempt to explain the contradiction

between these two statements.

35

categorical exclusion based upon the availability of cost effective alternatives

cannot mean that the state has denied a medically necessary device.” Id. at 632.

Here, however, HHSC’s exclusion of wheelchair standing features means the state

has denied Linda a medically necessary device for which there is no alternative

that will meet her medical needs. It is undisputed that Linda cannot transfer to a

separate stander numerous times each day to correct or ameliorate her many

medical conditions caused by prolonged sitting.

Finally, Detgen is not dispositive in Linda’s case because this decision is

wrong. It is an outlier among dozens of case rejecting states’ efforts to exclude a

wide array of DME items and uniformly holding such DME exclusions to be

unlawful.19 As explained in Lankford v. Sherman, 451 F.3d 496, 511 (8th Cir.

19

See e.g., Alvarez v. Betlach, 572 F. App’x 519 (9th Cir.) cert. denied, 135 S. Ct. 870

(2014)(rejecting Arizona Medicaid’s exclusion of incontinence briefs); Lankford v. Sherman,

451 F.3d 496 (8th Cir. 2006) (rejecting Missouri Medicaid’s restrictions on DME coverage);

Fred C. v. Texas Health & Human Services Comm’n, 988 F.Supp. 1032 (W.D.Tx. 1997),

affirmed per curiam 167 F.3d 537 (5th Cir. 1998) (requiring coverage of augmentative

communication devices as DME and prosthetic devices); Meyers v. Reagen, 776 F.2d 241 (8th

Cir. 1985)(requiring coverage of augmentative communication devices that fit within the scope

of the equipment included in Medicaid’s speech-language pathology service); Davis v. Shah, No.

12-CV-6134 CJS, 2012 WL 1574944, (W.D.N.Y. May 3, 2012) (rejecting exclusion of

orthopedic footwear and compression stocking as DME for certain beneficiaries) Hiltibran v.

Levy 793 F.Supp.2d 1108 (W.D. Mo. 2011)(granting preliminary injunction requiring coverage

of incontinence aids for adults as medical equipment); Jasset v. R.I. Dept. of Hum. Serv., 2006

WL 2169891 at * 5 (R.I. Super. July 31, 2006) (citing Bristol v. R.I. Dept. of Hum. Serv., 1997

WL 839884, at *5 (R.I. Super. Jan. 30, 1997)(prohibiting intent to go to work or school as a

coverage criterion for a wheelchair because neither is related to medical necessity)); Blue v.

Bonta, 99 Cal.App. 4th 980, 121 Cal.Rptr.2d 483 (Cal App. 2002) (requiring coverage of

stairway elevator based on Medi-Cal DME definition); T.L. v. Colorado Dept. of Health Care

Policy & Fin., 42 P.2d 63 (Colo. App. 2002) (prohibiting express exclusion of whirlpool bath

from consideration as DME and without consideration of medical need); Will T. v. Taylor, 465

F.Supp.2d 1267 (N.D. Ga. 2000)(requiring coverage of speech generating devices as DME,

36

2006), “[a] state’s failure to provide Medicaid coverage for non-experimental,

medically necessary services within a covered Medicaid category is both per se

unreasonable and inconsistent with the stated goals of Medicaid.”

Ignoring these many cases, the Detgen court reached a conclusion that does

not square with federal Medicaid case law or policy. This is particularly true

concerning its interpretation of the DeSario Letter. HHSC App. 6. Contrary to the

plain language of this federal guidance, the Court concluded that states are

authorized to maintain a "never approved" list of DME. Id. at 632-633. If this were

correct, the Second Circuit’s decision in DeSario v. Thomas upholding the state's

list of DME exclusions would still be good law. 139 F.3d 80 (2d Cir. 1998). But it

is not good law precisely because CMS clarified that exclusions of medical

equipment meeting the state’s definition of DME violate the Medicaid Act's

prosthetic devices and equipment under the speech-language pathology benefit); Bell v. Agency

for Health Care Admin., 768 So.2d 1203 (FL. App. 2000)(requiring coverage and provision of

insulin pumps when medically necessary); Johnson v. Minn. Dept. of Human Serv., 565 N.W.2d

453, 456 (Minn. App. 1997) (requiring coverage of a stand-up wheelchair to meet recipient’s

specific medical needs); Davis v. Shrader, 687 N.E.2d 370 (Ind. App. 1997) (requiring coverage

of orthopedic shoes; precluding use of irrebuttable presumptions against coverage of specific

types of treatment within covered services); Ohlson v. Weil, 953 P.2d 939 (Colo. App.

1997)(requiring coverage of body brace that meets Medicaid’s DME definition); Brisson v.

Dep’t of Social Welf., 702 A.2d 405 (VT. 1997)(prohibiting exclusion of closed circuit television

because it meets Medicaid’s definition of eyeglasses); Hunter v. Chiles, 944 F.Supp. 914 (S.D.

Fl. 1996)(requiring coverage of speech generating devices as DME); Myers v. State of

Mississippi 3:95 CV 185 LN (Slip Op. S.D. Miss. 1995)(requiring coverage of speech generating

devices as DME); Bowers v. Thompson; No. 89-2-00553-8 Stipulation & Agreement & Consent

Order (Wash. Super. Ct. Thurston County Oct. 15, 1990) (class action consent decree

establishing medical necessity as decision-making standard for durable medical equipment,

prosthetic devices and non-durable medical supplies); Ledet v. Fischer, 638 F. Supp. 1288, 1291

(M.D. La. 1986) (requiring coverage of eyeglasses regardless of diagnosis); Baker v.

Commonwealth of Pa. Dept. of Pub. Welfare, 502 A.2d 318 (Pa. Commw. 1985) (requiring

coverage of wheelchair with 500-pound carrying capacity).

37

reasonable standards requirement and implementing amount, duration and scope

rule. 42 U.S.C. § 1396a(a)(17); 42 C.F.R. § 440.230(b-c). Relying upon this

federal guidance, the Supreme Court vacated the Second Circuit’s decision

upholding Connecticut Medicaid’s list of DME exclusions. Slekis v. Thomas, 525

U.S. 1098 (1999).20

Moreover, HHSC cannot claim to be in compliance with the DeSario

Letter’s requirement that states establish “reasonable and meaningful” procedures

for making individualized determinations of DME coverage, while arguing that

Linda’s access to this process was not warranted. HHSC Brief, p. 26. According to

1 TEX. ADMIN. CODE § 354.1039(a)(4)(D), medical equipment may be covered

when it is medically substantiated that the requested item would “serve a specific

medical purpose on an individual case basis.” (Emphasis added.) Molina failed to

apply this standard to Linda’s wheelchair request.21 HHSC failed to do so, as well.

HHSC cannot evade this fact by claiming that “Puglisi did not request exceptional

circumstances review of her request for an integrated standing feature.” HHSC

Brief. p. 25-26. It was incumbent upon Molina and HHSC to apply the correct

medical necessity standards to Linda's prior authorization request.

20

The Supreme Court Order stated: [P]etition for certiorari granted. Judgment vacated, and case

remanded to the United States Court of Appeals for the Second Circuit for further consideration in

light of the interpretive guidance issued by the Health Care Financing Administration on

September 4, 1998. (emphasis added).

21

When asked in discovery whether an exceptional circumstances review of Linda’s prior

authorization request had been conducted, Molina objected to the question and provided no

response. AR 327, Response to Interrogatories No. 10 and 11.

38

HHSC’s assertion that Linda relies upon a “vacated opinion and judgment”

to support her position that a wheelchair standing feature is covered by Medicaid is

incorrect.22 HHSC Brief, p.28. As explained above, Linda relies on federal

Medicaid policy and dozens of federal and state court decisions spanning more

than 30 years, all of which make clear that states must cover items of medical

equipment that meet their DME definitions. See n.19 supra. And as explained

above, CMS recently reminded HHSC of this Medicaid test for DME coverage.

Puglisi App. 1. There is no excuse for HHSC’s failure to apply this DME coverage

test in Linda’s case.

HHSC devotes a considerable amount of its brief defending its erroneous

coverage determination by attempting to refute an argument Linda has never made.

To be clear, Linda did not file a rule challenge pursuant to TEX. GOV’T CODE §

2001.038. CR 3-31. Nor did she ask the trial court to invalidate Medicaid rules, 1

TEX. ADMIN. CODE §§ 1031, .1035, .1039, and .1040, or “to modify the Medicaid

Home Health Services program.” HHSC Brief, p. 30-31. As explained in Section

D. above, Linda has no complaint with these rules as each supports her entitlement

22

HHSC acknowledges that the three “errors” identified by the Fifth Circuit in Koenning v.

Suehs, 897 F. Supp.2d 528 (S.D. 2012), vacated and dismissed as moot, sub nom. Koenning v.

Janek, 539 Fed. Appx. 353 (5th Cir. 2013) did not relate to the merits of the decision. HHSC

Brief, p. 28. Moreover, the Fifth Circuit found the case was moot because, on remand, Medicaid

had approved standing wheelchairs for two of the plaintiffs and afforded a fair hearing to the

third plaintiff on the issue of medical necessity. As described by the district court, two of the

plaintiffs had significant spinal cord injuries and severe functional limitations. 897 F. Supp. 2d

at 545-536. These functional limitations are much like those experienced by Linda Puglisi, yet

Texas Medicaid eventually authorized standing wheelchairs for all of the Koenning plaintiffs.

39

to Medicaid prior authorization of a custom power wheelchair with integrated

standing feature. Rather, Linda asked the trial court to reverse HHSC’s hearing

decision because the agency failed to properly apply these rules, and the criteria

established therein, to her prior authorization request. HHSC’s protracted

arguments concerning rule challenges under TEX. GOV’T CODE § 2001.038,

including the redundant remedies doctrine and the constitutional separation of

powers requirement, have no bearing on this case and require no response.

HHSC’s Brief, pp. 30-41.

While Linda does not challenge the legality of HHSC’s DME rules, she does

maintain that TMHP’s policy excluding wheelchair standing features from

Medicaid coverage conflicts with these rules, and as such, is an invalid basis for

HHSC’s decision on this issue. Failing to apply the correct test for Medicaid

coverage of the recommended standing feature, HHSC regarded TMHP’s policy

exclusion of wheelchair standing features as binding on its decision and concluded

that “mobile standers, power standing systems on a wheeled mobility device are

not a benefit of Home Health Services.” HHSC App. 2, Conclusion of Law; App.

3, Conclusion of Law 3. The agency ignored the fact that the recommended

standing feature is a specialized wheelchair component and specialized

components for custom wheelchairs are authorized for Medicaid coverage by

40

statute and rule. TEX. HUM. RES. CODE § 32.0425; 1 TEX. ADMIN. CODE §

354.1040.

TMHP’s exclusion of wheelchair standing features meets all of the criteria

of a “rule” identified in the Texas Administrative Procedures Act (APA), but was

not promulgated in compliance with the Act. Pursuant to TEX. GOV’T CODE §

2001.003(6), a “rule” is defined as:

(A) a state agency statement of general applicability that:

(i) implements, interprets, or prescribes law or policy; or

(ii) describes the procedure or practice requirements of a

state agency;

(B) includes the amendment or repeal of a prior rule; and

(C) does not include a statement regarding only the internal

management or organization of a state agency and not affecting

private rights or procedures.

TMHP’s policy clearly meets these criteria. First, this exclusion is a

“statement of general applicability” interpreting law or policy and affecting all

Medicaid beneficiaries in need of this custom wheelchair. See Texas Alcoholic

Beverage Comm’n v. Amusement & Music Operators of Tex., Inc., 997 S.W.2d

651, 658 (Tex. App.—Austin 1999, pet. dism’d w.o.j.) (finding statements in

agency memoranda were rules because they imposed binding instructions affecting

private rights of all similarly situated persons.) As HHSC’s decision demonstrates,

this policy exclusion dictates a specific result - a finding of non-coverage of the

standing feature - without regard to the required test for Medicaid DME coverage.

41

Both HHSC’s hearing officer and reviewing attorney regarded this policy as

binding on their decision concerning Medicaid coverage in this case.23

Next, TMHP’s policy limits the scope of custom wheelchair coverage and

essentially amends Texas law defining both DME and custom wheelchairs. The

plain language of TEX. HUM. RES. CODE § 32.0425 and 1 TEX. ADMIN. CODE §

354.1040 makes clear that Medicaid coverage of custom power wheelchairs

includes wheelchairs with “complex or specialized components” like the one

recommended by Linda’s treating medical providers.

Finally, this policy is not a “statement regarding only the internal

management or organization” of HHSC, but rather, is a bright-line rule the agency

claims is dispositive on the question of Medicaid coverage of wheelchair standing

features. See Combs v. Entertainment Publications, Inc., 292 S.W. 3d 712, 722

(Tex. App.—Austin 2009, no pet.) (holding Comptroller’s policy statement invalid

because it was not properly promulgated pursuant to the APA.)

Neither HHSC nor its contractors can limit the scope of the custom

wheelchair benefit by establishing a policy that conflicts with the express language

of state law and agency rules. Yet, TMHP’s exclusion of wheelchair standing

components does just that. This policy fits squarely within the Texas APA’s

23

Pursuant to 1 TEX. ADMIN. CODE § 357.703(b)(3), HHSC’s attorney was required to “review[ ]

the hearing decision for errors of law and fact . . . .” Like the hearing officer, however, he failed

to apply the test for DME coverage established in federal policy and to determine the legality of

TMHP’s policy exclusion of wheelchair power standing features.

42

definition of a rule, but was not promulgated pursuant to law.24 As such, it is an

invalid basis for the agency’s decision that the requested wheelchair standing

feature is not a covered benefit. See El Paso Hosp. Dist. v. Texas Health and

Human Servs. Comm’n, 247 S.W. 3d 709, 714 (Tex. 2008) (holding HHSC’s

policy establishing a cut-off date for Medicaid hospital claims that did not appear

in the agency’s base-year rule was not properly promulgated under the APA.)

This Court’s recent decision in Texas State Bd. of Pharmacy v. Witcher, 447

S.W.3d 520, 535 (Tex. App. 2014), supports this conclusion. There, the plaintiff

sought review of the Texas Board of Pharmacy’s final administrative decision

suspending her license. Witcher argued that the Board’s reliance on a policy

mandating this penalty was arbitrary and capricious and the result of improper ad-

hoc rulemaking. Agreeing with Witcher, this Court upheld the district court’s

decision finding that the Board’s “policy” was, in fact, an improperly promulgated

“rule” under the APA, and an invalid basis for the imposed penalty.

The same is true here. There is no statute or regulation that supports

HHSC’s decision concerning Medicaid coverage of the requested standing feature.

To the contrary, the requested wheelchair component fits within the applicable

24

The APA requires state agencies to provide notice and the opportunity for public comment so

that affected persons can be heard on proposed rules. See TEX. GOV’T CODE §§ 2001.023–.030.

“The Legislature delegates formal rulemaking power to an agency in the expectation that an

agency will ordinarily adopt rules of general application through that power.” Rodriguez v. Serv.

Lloyds Ins. Co., 997 S.W.2d 248, 255 (Tex. 1999).

43

definitions found in state law and regulation. Yet, HHSC treated TMHP’s policy

exclusion as binding on its decision concerning Medicaid coverage. “Arbitrary

and capricious agency action [ ] may be found when an agency improperly bases

its decision on non-statutory criteria.” Public Utility Commission v. South Plains

Electric Cooperative, Inc., 635 S.W.2d 954, 957 (Tex.App.—Austin 1982, writ

ref'd n.r.e.).

In sum, HHSC failed to apply the longstanding test for Medicaid coverage of

DME, and instead, relied upon an unlawful exclusion that violates the requirements

of both the Texas APA and the reasonable standards requirement of the Medicaid

Act. 42 U.S.C. § 1396a(a)(17). HHSC ignored the scope of the custom wheelchair

benefit established by the Texas legislature and violated the Medicaid Act’s

amount duration and scope rule. 42 C.F.R. § 440.230(b-c). The recommended

wheelchair, with all of its custom components, meets HHSC’s DME definitions

and fits within the custom wheelchair benefit established in state law. HHSC’s

conclusion that the recommended standing feature is not covered through the

Medicaid home health benefit is wrong. CR 348-349. Having found that HHSC’s

decision failed “to comply with controlling applicable federal and state law,” the

trial court correctly reversed the agency’s decision on the issue of Medicaid

coverage.

44

F. HHSC Violated Linda Puglisi's Procedural Due Process Rights.

It is well established that individuals who apply for or receive public

assistance such as Medicaid are entitled to certain due process protections,

including legally sufficient notice and the opportunity for a fair hearing, when they

are denied this assistance by the state. Goldberg v. Kelly, 397 U.S. 254, 90

S.Ct.1011, 25 L.Ed.2d 287 (1970); U.S. CONST. amend. XIV; 42 U.S.C. §

1396a(a)(3); 42 C.F.R. § 431.200 et seq. While the trial court did not address the

due process violations asserted in this case, the hearing record demonstrates that

HHSC failed to enforce Linda’s due process right to legally sufficient notice and

further exacerbated this violation by sustaining the denial of Linda’s prior

authorization on grounds not identified in Molina’s notice of adverse action.

1. Medicaid Beneficiaries Have a Protected Property Interest in Their

Medicaid Benefits.

HHSC’s assertion that Linda has no protected property interest in her

Medicaid benefits is incorrect. As explained in Jonathan C. v. Hawkins, No. CIV

A 9:05-CV-43, 2006 WL 3498494,*12 (E.D. Tex. Dec. 5, 2006):

Courts view welfare entitlement more like “property”, rather than a

“gratuity”, and such benefits are a matter of statutory entitlement for

persons qualified to receive them. Therefore, under the law,

beneficiaries do, in fact, have a constitutionally protected property

interest in Medicaid benefits. (Citations omitted)

See also Hamby v. Neel, 368 F.3d. 549, 559 (6th Cir. 2004); Thompson v. Roob,

2006 WL 2990426, at *5-6 (S.D. Ind. Oct. 19, 2006); Ladd v. Thomas, 962 F.

45

Supp 284, 289 (D. Conn. 1997); Ability Center of Toledo v. Lumpkin, 808

F.Supp.2d.1003 (N.D. Ohio 2011); Fishman v. Daines, 743 F.Supp.2d. 127,146

(E.D. N.Y 2010).

HHSC’s next assertion that Linda “has never acquired the benefits of this

Medicaid program” is also incorrect. Unlike the Medicaid applicants in Johnson v.

Guhl, 91 F.Supp. 2d 754 (D. N.J. 2000), Linda has received Medicaid benefits

since shortly after her injury in 2011. Moreover, Medicaid beneficiaries denied

DME requested through the state’s prior authorization procedures are entitled to

due process. See Ladd v. Thomas, 962 F. Supp. 284 (D. Conn. 1997) (holding

Hamby v. Neel, 368 F.3d 549, 559 (6th Cir. 2004), (holding plaintiffs had a

property interest in the [Medicaid] coverage for which they hope to qualify.)

HHSC’s own rule also establishes this right. 1 TEX. ADMIN. CODE §

357.3(b)(1)(E).

HHSC’s reliance on case law involving the denial of professional licenses,

Neuwrith v. Louisiana State Bd. of Dentistry, 845 F. 2d 553 (5th Cir. 1988),

termination from employment, Woody v. Dallas, 809 F. Supp. 466 (N.D. Tex.

1992), or the distribution of insurance payments, Liberty Mut. Ins. Co. v. Texas

Dep't of Ins., 187 S.W. 3d 808 (Tex. App. Austin 2006, pet denied) is misplaced

and has no bearing on Linda’s due process rights as a Medicaid beneficiary.

46

2. Molina's Denial Notice does not Comport with Due Process and

HHSC Failed to Address this Issue.

HHSC and its contracted entities are required to afford due process to

Medicaid beneficiaries when their “claim for medical assistance under the plan is

denied or not acted upon with reasonable promptness.” 42. U.S.C. § 1396a(a)(3);

42 C.F.R. § 431.200 et seq.; 42 C.F.R. § 438.404; 1 TEX. ADMIN. CODE §

357.3(b)(1)(E). Included within these due process rights is the right to legally

sufficient notice that contains, among other things, “the reasons for the intended

action” and the “specific regulations that support…the action.” 42 C.F.R §§

431.210(b) and (c). The reason for this required content is clear. As explained by

the court in Gray Panthers v. Schweiker, 652 F. 2d 146, 158 (D.C. Cir. 1980):

It is universally agreed that adequate notice lies at the heart of due

process. Unless a person is adequately informed of the reasons for

denial of a legal interest, a hearing serves no purpose and resembles

more of a scene from Kafka than a constitutional process. Without

notice of the specific reasons for denial, a claimant is reduced to

guessing what evidence can or should be submitted in response and is

driven to responding to every possible argument against denial at the

risk of missing the critical one altogether.

Here, Molina’s denial notice failed to provide the required specificity

concerning the reasons it determined the recommended wheelchair was not

covered by Medicaid or was not medically necessary for Linda. This notice also

failed to include citations to the statutes and rules that support the cursory

explanation it did provide. In Thompson v. Roob, 2006 WL 2990426 (S.D. Ind.

47

Oct. 19, 2006), the court held that the notices issued by the Indiana Medicaid

program “violated Plaintiffs’ due process rights as a matter of law” because “[i]n

the public benefit context, procedural due process requires “ascertainable

eligibility standards” to be articulated and implemented, in order to guarantee

objectivity and provide adequate notice.” Id. at *7. Molina’s notice included no

ascertainable standards upon which its perfunctory denial was based and Linda’s

repeated request for these standards went ignored. As such, Molina’s notice of

adverse action violated Linda’s due process right to legally sufficient notice.

HHSC seeks to excuse Molina’s due process violation by pointing out that

the notice stated that Linda had the right to “obtain a copy of the guidelines used

by MHT to decide the outcome.” HHSC Brief, p. 46. Notably, the agency

overlooks the fact that Molina failed to provide the requested policies despite

repeated requests by Linda’s counsel. AR 267, 268, 276. Like Molina, HHSC also

failed to respond to Linda’s repeated requests to the hearing officer concerning

Molina’s legally insufficient notice. AR 283, 284, 285. HHSC has established

specific procedures for its hearing officers to follow when a Medicaid beneficiary

questions the legal sufficiency of a Medicaid denial notice, but HHSC ignored

these procedures in this case. Puglisi App. 8.

3. HHSC’s Administrative Review Does Not Comport with State Law

and Further Compounded the Due Process Violations in this Case.

48

The final decision issued by HHSC’s reviewing attorney further

compounded the due process violations in this case. HHSC does not dispute this

point, but merely recites several provisions of state law and agency rules governing

the administrative review process. These provisions are irrelevant here as there is

no dispute that Linda filed a timely request for administrative review or that

HHSC’s reviewing attorney issued a written decision representing the final

decision of the agency. What is relevant is the action by HHSC’s attorney to go

beyond the reasons for denial identified in Molina’s notice of adverse action to

shore up support for the hearing officer’s decision in this case. HHSC App. 3,

Finding of Fact 11. Due process requires timely and adequate notice of all reasons

for the denial, with supporting legal citation, prior to the fair hearing. 42 C.F.R §

431.210(b-c). HHSC’s final decision violated this important protection for Linda

Puglisi.

PRAYER

Appellee, Linda Puglisi, respectfully requests this Court to affirm the trial

court’s decision in her favor. Appellee further requests all other relief to which she

may be entitled.

49

Respectfully Submitted,

/s/ Maureen O’Connell

MAUREEN O’CONNELL

Texas Bar No. 00795949

SOUTHERN DISABILITY LAW CENTER

1307 Payne Avenue

Austin, Texas 78757

(512) 458-4800 (Phone)

(512) 458-5850 (Fax)

moconnell458@gmail.com

Attorney for Appellee

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Tex. R. App.

P. 9.4(i)(2)(B) because it contains 12,058 words, excluding the parts of the brief

exempted by Tex. R. App. P. 9.4(i)(1).

2. This brief complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a proportionally spaced typeface using

Microsoft Word in 14 point Times New Roman.

/s/ Maureen O’Connell

MAUREEN O’CONNELL

50

CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of July, 2015, a true and correct copy of

the foregoing document was electronically filed, and that a true and correct copy of

the foregoing document was served by electronic mail on the same date to:

Eugene Clayborn

Assistant Attorney General

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711

/s/ Maureen O’Connell

MAUREEN O’CONNELL

51

No. 03-15-00226-CV

_________________________________

IN THE

THIRD COURT OF APPEALS

AUSTIN, TEXAS

_________________________________

TEXAS HEALTH AND HUMAN SERVICES COMMISSION,

Appellant,

v.

LINDA PUGLISI,

Appellee.

_________________________________

On Appeal From

The 53rd Judicial District Court of Travis County, Texas

Trial Court Case No. D-1-GN-14-000381

The Honorable Judge Gisela D. Trianna

_________________________________

APPELLEE’S APPENDIX

_________________________________

MAUREEN O’CONNELL

Texas Bar No. 00795949

SOUTHERN DISABILITY LAW CENTER

1307 Payne Avenue

Austin, Texas 78757

T: 512.458.5800

F: 512.458.5850

moconnell458@gmail.com

Attorney for Appellee

APPENDIX INDEX

CMS Letter to Texas Medicaid, May 21, 2013 ................................................. Tab 1

Letter of Medical Necessity, Dr. Lisa Wenzel................................................... Tab 2

TIRR Wheelchair Evaluation ............................................................................. Tab 3

RESNA Position on the Application of Wheelchair Standing

Devices, Assistive Technology, 21:161-168, 2009 ............................................ Tab 4

Affidavit of Amy Morgan, PT, ATP .................................................................. Tab 5

Letter of Medical Necessity, Dr. Lisa Wenzel................................................... Tab 6

In the Matter of Mary A., New York Dept. of Social Services.......................... Tab 7

HHSC Fair and Fraud Hearings Handbook (Excerpt) ....................................... Tab 8

TAB 1

DEPARTMENT OF HEALTH & HUMAN SERVICES

Centers for Medicare & 1-fedicaid Services

7500 Security Boulevard, MailStop S2-14-26

Baltimore, Maryland 21244-1850

Center for Medicaid and CHIP Services

Disabled and Elderly Health Programs Group (DEHPG)

May 21, 2013

Kay Ghahremani

State Medicaid Director

Texas Health and Human Services Commission

Brown-Heatly Building

4900 N. Lamar Blvd.

Austin, TX 78751-2316

Dear Ms. Ghahremani:

The Centers for Medicare & Medicaid Services (CMS) is writing to clarify our policy on the

medical supplies, equipment and appliances (often referred to as Durable Medical Equipment, or

DME) that will receive Federal reimbursement.

DME is a component of the home health benefit, which is a mandatory service within the

Medicaid program. As such, items ofDME meeting the state's definition of such coverage is to

be provided to individuals (of any age) meeting the State's medical necessity criteria. In

addition, CMS issued a letter to State Medicaid Directors on September 4, 1998 (see attached)

interpreting state re&ponsibilities in providing medical equipment in response to the DeSario

~ court decision. This guidance requires states to have a reasonable process for beneficiaries to

request items ofDME not on a pre-approved list, and the ability for a beneficiary to request a fair

hearing to appeal negative determinations.

We understand that the State of Texas is not approving requests for ceiling lifts provided to adult

Medicaid beneficiaries, due to prior CMS guidance indicating that Federal reimbursement is not

available. We are clarifying here, in a way that supersedes prior CMS guidance on this topic,

that coverage of ceiling lifts under the medical equipment benefit is an issue that states must

determine consistent with the process described in the September 4, 1998 guidance, and that

federal reimbursement is available to the state to the extent that the item is determined to be

covered. This means that medically necessary ceiling lifts will be reimbursed by CMS as part of

the Texas home health benefit if these lifts meet the state's definition of DME.

In addition, we would like to make sure you're aware of a Notice of Proposed Rulemaking

issued July 12, 2011. That regulation proposed changes to the home health benefit to not only

codify face-to-face encounters required at section 6407 of the Affordable Care Act, but to also

propose definitions of a medical supply, equipment and appliance. Also included was a proposal

that any item meeting any of those definitions. must be covered under the state plan, and may not

be reserved for coverage under a 1915 (c) home and community based services waiver. We are

working now to issue a final regulation. We encourage you to familiarize yourself with the

provisions of that proposed rule.

l

'127 I P-18

000303

~

J

Page 2 - Ms. Kay Gha.hremani

We hope this alleviates any confusion. Don't hesitate to contact me with any questions.

Sincerely,

Isl

Melissa Harris

Director

Division of Benefits and Coverage

Cc: Billy Bob Farrell, Dallas Regional Office

·--------... ···------·----·-·----·-------·--------

P-18

000304

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·.~1'

·-·- Piuientl · · --·-u11c1a Pugl~I .. ·-· -····---.. ---· .. --- ···-

- - .------

.(la~ Qf· Bli(b: ~·!!liililllll

Dlfi3hosbt'. Nouroi1bron1etosls 'l'ypo.h1 Quadrlplogla·Ol·C~ lnoo111plete .

Sub]eat: Jl~spo111e to Molln~J;l~e.lthQa:e's p~i!dlii1l:/10tl9•. fi!t9.l/4tom·wh'1"lohalr w.m;

pqwer stannlbll andc seat olevatton l'ohture1. ·

Ta whom if mil)' ooncotn:

Lind" Pust isl is twenty-siK years- old and has an urgent need for th~ ~ustorrr powe,·wh"l'lohair

that wauec.enl!y.;eoorilmended :fur hO!!. Wldlo Molina Healtho-la requcsting·t~a! w<>·exclude

th• "sei!t.elevc.tor" and "•tan.dins featuto and alf acoompanylnQ con;pononts" for Ms. Puglisi; wo

do not •jlte•with iliese changes, ,i.s expfailJ"d b•low, 11 Is our pr.~feM.lonal epfolon: 1b3t tho .

reoonmianded Wheolqhalr wtrh lnlegretod·st1µ1dlti3 f?IUre-.l11 m~loally n=sary fot thfa patlent

Oil it wm tlllow h¢r to Independently. stand multl~l•·llmet eat1h day·whllo at home or fn.ttte

oonihlunfty, Tll!s uooess Jo fleqµen{ atand.IJli;'fa na'l11'splity to-e9trec\ lit. M<allora.fa.the·pnmerous·

med lee.! oand!tlons th•t Lindo faoes·duo lb·ptolongo~ slt!lll'g~l2 hoursY frl·a whao!chalr ov~ry

day, Pleaa<I •ansldoo tho•falfowlnirlnfo<lJ!•lliia'°anoomlri".lhls eatlent'a medk.al eondltlon'Slld

ouh'.ent medloal nood•1

Dla!jnosl!l-ijttd Funotlanat Status

In N'oyombor. io11, Llnd~·aus«ilne4·a Cl-4 spinal cord Injury (lnoornplete} fultowfng a.surgical

·procedl!reto r~inovo a tumor ne<ir hsr ap1no: As a r..ult, Linda ha4 qu'!ddplegla, wltli very

llmftad movement on her r)ght side. Lind.a does rotoln sorne movomont on hor left sid~. out with

.llttllleH ral)Jl~•pt: motion., Linda also has fnoro011ad tono on hOrrlght side, whiOh.ftuctuatea ·Md

causes spasrl'ts. Whlle Linda rotains good hoad CQntrol, her trl!nk aontrol and:~ontrol ofujipe~·aud

lowor.oxtrernltiee·l$ poor. She·hu·boen·dlagnosod with i>sfcoponlo and ls Ill rlsk {or oontinJ.lod

Jo" ot'\>onO'dens(ty. Llrida ls ah!o at inoroad6d ri•k tbr pressure so~•• due to oompromisod.s~ft

tlswe'lntegrl1¥, Linda also ~xportemm Imp•~ mplratory tunolfon, nourogonto bowel,

neuralogl~iil paln,.md Impaired lntp,11.umenlar;' a¢nslillon. Reconlly, Lind!!. w~• ajso di•~nosed

with NaU!oilbl'o'n\atosls '.l'ype 11 (NF2).

Due \o 1!>~ n~tura \!lid severity of Illnda" 1~iuitl .oorlifr!J~ry, sM.Js.,depoJt.de.rir.on :a !!OWer.

l'ltleclohaf\"for fn®pendeni mobllll)'• Tn·additfott; Lhtda0 requlm caregiver mlstanco kl itansfer

!~ and"Qut cif her bod.1µ1d ytheelohaii;. She ~!so utl!fzen L~fl Mobile Ann Support ti>.lnorelj!lo

fiet l'unctfiinala&llltles and to partlolpat<> In actlvlt!ef of·dally. llvlna, With ild"<tu•t.. suppot\,

inoludlng u~cen·to Independent standing, .Linda can porfor111 somo.aotivitloa·of <!ally Uvlng as

well .. manago·her pain. .

Wheelchair Asso1Sment and Prior Au!horlzatlon Reguesf

A'oohlprohlmslvow'heelobalrass•!amont wds-oondu'oted in Fobruaiy 201·3 whlJo Llhda·wa&

reoolvlng in'patlo'nt 'rehabilitation ••rvices·at tho Te•u Institute for Research end Reha&U!tadon

(TIRR). Wo r<:eommendod • powo.r wh~olcbalr with custom foaturoa, lnolui!lng a scat elovator,

integrated standot, and oevorai other cU$tom comp.onenta. In thfa evaluatfon, we'ptavlded

lnforma(f on con~ernlng L!nd•~ s medlcdl neod l'Or esoh of tho rooomme~dll<I. duatom .ctlm~ononts,

A requc~\ f¢r, poor autjloriZ!lt!Qn of tha qlJl!tom power. wh..,loh.alr .recq!IUJ!el1o~d by Linda• s OT,

----..-..-........ ------·--·- .-- -·--· -----· .l_L ... ·-· _..._--------·-----·- -------- - --

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•.'f81

.·. . A.ii,-~;1d'PMJlpJ~~~·i~.~ w~s·sub"uifr!ed to Malina L:fel(lthq11ro·~l!M2013;Jo;1t}prll.1.2; -

·· ·--·---· · 2Q·j~, Mollt\11 .Honlthcai·o roqueste4 thut w.o:.1nake nvrnerou• ohango• to·U11dn.'s p1jlor .

~utliorfaa(io•i 1·eqM8);;the l\10-".t n0t01f;10 ot' wlu~h wM th~ l'emovnl llf\ha ctistoin 1i\ie1f1'!1t¢

Mnndi11g.fe11tffi'• and ~opt ~l•~Mio,n:cqmjl.ot1•11t. •n sh'oultl be n<.>!JldSl1'1t the apo~lflb wl1\lGl~halr

roeoll)tn~nc1~d tbr.Lfod1t- tllo•l?equo'btl CJ~O,(} VS.-:roquh'i;s a Qroup-.4 busii-. ..WJfl1.scnB~fovntien

and·int~grated standi11g. fontu~ \0 ·p~Wmlt lhe.vaer to;indop&1de11tly .a rand. AHuoh,.tl\ese

cotnP,on-antB'. Qannot be "'<rciilO.Ye<l" ifom.the prlor·au1h~til,atlon i·~quesl withoul subsltir1clall;1<

.oh!lllglirg tl1e natute of'tM w.haelphah· rocommoaded for Li11d~. El~oau~e I\ 1·~ our JlrQlesijlona(

t!pinlon that !hose ·oon1)lbn~nil1,.11J'e medl~ally .n<lC<lS'>lel'Y fat' Lindu, we write lo ~rovld'e:.fudher

jusHffoijtJon for·the re<(U0,9ted wheeJohnlr:

Medlon! JuMjf!~afjQn for llcco11im·C1lcl•d Custom Power WhqelQbbll'

A-s pr.evla~sly ttcttatl. slnndlng is critib!ll for 'undo to p>'OVent 11.trthar lass of bqn·e density imd rfol1

of bon• l\·actures: d.em-oaso.musol« tone 1u1d spn•Hoilyi nia!nialn splMI 1tllgnme11t .und

delay/avoict HRele1al defonn!Ues; exlend hor uppor lrunk ·10 roouo.o p1·ess1ml oi1 lntomnl ol'gans;

maintoi111·a11ge ofinot!urt: h1cteasd-ff.o~lblllty.itnd pt«>v.~rit.~~tt~·uotut'll~ ~-~th~ lll)l1,knee, and

unlcle')oll\mi prev.Qntpr~ssur,j. sotear Jmp1·ove"tltlim1'~· h'ilot d1·11111nge ~nd renal :l.'lu:iotlon: acldross

i;us!rolt1tesmr11~ 1-asp.fi:nttiry, '!\l\tf~pwel:J\Jn~tlo(l) •nd innf!lt~ltt 91.irdt~vaao(1l~r h~Jtlr, ;fulitmna

ArvR1 ~t nl., R/16WA. Po:1.l(lrm, 1m tM tf.pplt~(Jlfpn ofJT1hqd/oft<1fr:"/f1amltng J;)ovlco~, ·21 AsHisUve

·reohrioloi;y, 1111-168 ~2009)

Accoriling to llBSNA, ib<;-reccmmendcd f!•cq11e11ey·6f standing foraohl!:\!fn!J thes~ m'edlca!

bon¢fris la""a$ ~t\:cn.ua the t1~er·on11.!"0ler(lle aoo.l'!hftably; ... ," U.rilikO'a aepurote,atnndei· li1nr

woul<I J'eq11h-e-Lhiilii· to havG cal'oglver. µsslshmee·~Aoh thile llho .uses tho devloe, ttie

r·eco1mMnded wheeJehoir will alluw Linda to iadopendently,stand'~s otten as.poa~ible-Md'fo ~11y

1ocnt101" wlfether at home 01• In the oommu11i~y. RC..eal'oh demoustrntes that sl101·!, frequent

sl11110Ji1g.is.mol'o ell'llcth>eill llllprovJng boncden!if)' 11\ni1 one lonfrstandfng episode, ·wltl1 th~ .

l"oconlmended wheel.obair, Linda wifl be able to. ~tnnd moi·eoften and for ~l1ortor p6riod$,'making

enoti $llliltllttg op1Jortun!ty mere effective hi preventing bon1> loss and Pl'Qll\oliug ~une clenslt~.

Acldillonally, th~ reoommended wheelolmlr Y?lll pl'ovfole Lindi! with xopanto\{ oppo1·tu11f(les tor

"dynamic Jondlng" of the bones lt\.hcr lowot o•tromJlie.9, For example, dymunio lonrllng occiu·s

tlul'lng tho fUahsllfon fibll! Sitting to atoniUhg_. lflln htdiv.ti:lual staods fn a sepo1•ale;s'tander fon one ·

ham·, dynmnro· 1ondi11g ooout~.onl,yonoo. f!etn h1dlvid\ld( gMU :froin s!LClng· 1.6" sturoclJ11g111.\lnof,(lua

llmes·evory·doy, more dy.1ia01!0.Jcntllng 000U1:s1 with grertt bo11etlno the user'ir.qvernlJ bone

henlth. · · · · ··--~-·-···-- ·

Jt ill imponnnt to e11lpl\asfa:e that.Llild.n pm'l16ipat~d llL n fl'lal of the Pel'll1obll t10wer star1der wlih

sucees~iu stondihg 011d d'rivil11> tire' chair. WiU1 rtw·recommouded wheelchair; LitJda·w.HI be 11ble

lu lm;!op~ndon!IY attmq 1>mltlJ1l~ limes enoh dny, withoutdsk Qf t1:nn•fer inj1try; Md 1·ouardlosa of

her loonti6fi at h61he oi: in \fiecc11m1t'1llt}'. This Increased frequency of stoodi~g .will nrnxlmfze

the r11ediC11I (l¢~clflls 6"f stancllng, including l1utno1 limlt~ct to, providihg com'(llete firossui-o 1<1t1er

from prolonged si tl!ng; 111nh1t<l41)11g bone density, deol'easing musol~· to11e, impi"Oving oil'eulation,

hioren~.ing ro$J?h11roi:y· fonction; and inaintnining/hnpro\<lng ra11ge of motion. to hip~, kt1ues and

nnltlos. Reduel111} or ellmlnaling lho ocuurronco of lhei;• lll~tllcal compllcaljon• tl'lltn prolpng~d

2

----------- 32

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·sitting .y;J{l hofp. Linda malt)tain her health and woll·belnl,! and dearoMe th'.• aseoolated·~d•t•· of.

her'future medical care. ........... ·-·· .. -·· ·········-·'"····

Again, it:ls OUJ' professlonSt oplnlo.n that the recommended·whcelohalt.Js me<;llcally. ne~essap1 'for

L.itida and will ameliorate ·tho numerous .medlc!il compHcatlons she ftices d4e to tho s~verity Of

har dls~!illlty. It Is also our opini6n thatthera ls no other it<:m of equipment ot comblnatlon of

Ot\ul~ment· that can a<ldress lier complex medic~! needs. We ~sk that you .¢~!\Jlly review ·th~

lnformatlon provided on Linda's b~alfand approva"the recommended·wheaJchalr for har.

·Sinderaly,

'.

'

Lisa Wenzel, M.D•.

WV-

.

3

33-

---·------·--------------------------------·-

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... ·-·-· ·~ ---· .....

WMalohaMS c.oo.te·r/Str-lilllel' Seating· Assessmen f.'Porm·--· ··

------(t;cpjl{ome He11lth S.eri/lcei>).(7' page13.) 1.. ..

•t~!ftot'·oita:~~\{·?i!f.;~!~~~~~'(~ili~:

····'!ti!; q .~" ·-!:J'.( ·'·t-·~~;~~J.;~;. • ~, '·'~~-

t ....... _,.

;~ ··~!. ~11-?f~-J~t>?l~:.s ·.:~~ ·-~r w:f·'i1·1 ·~·,,, . ~!-"''¥ :. ~:,~1--~:n1:\,:·~·•.•·.~.;

, ' .•!!' . i\ • . , llo'f

A outrvnt.-wh~ell!halrl'-CO<>.tor/•!roll~r se~Ung •••~••m•nt,i:<>OPUd\•d by- b p~yalelen or • phys[C.f dr

aoou~aUonal tti~raplet iml•t·t>e com~iet•d for puroh••• of or meJor modllldall¢n• (ln,luolng MW sbatlh~

systeli'l&) lb awheeled moblllty ~al~m. A.Quallfled·Reh.abllltatlorr Proiesslonal (QRP) mvstbo ptessnt

end partlelpate In Ille seating ••••,.m•~l (ar •II Whe~l•d moblllly .sysl•fl\S and major mad1H~tf9no.

P,le~Qd :attaoh:rnanur•oluf!lr·lororpi~l!Qn, do~orlptl•nJ.<0nd an itarnlOl!<J bt ol rotll,11 Prlo•• .of ..u ~qij/tlon•

tMt·;fe noj:lnqlooed.lh:lla~.• model Prl••· .

comp1•1• .Sae,aan; 1:1Jlf for·marl),jl!i Vlheele~ m90Jllcy ays!~qJa •. Oempl~ta ll•otlqns t·l~i'fot.P<lW•r

.heeled 111oqllll otomo. Cpmpl•t• thA Home ti althtCCP •••uM . •O<~o••lfor,all rtlqu<>slti.

/

tle~fi~•.:ll•nf~ mual>I~ JqM! Llnqa ·hl!)l lne~••!!Jld tog~ln RUl:,enq LJ!':,wh1ch flU.014•Jea a~d o~...

•pooma at.tl!]t,..,. ·$Ji~•llo~ Is pre¢11l'livl>Ull~<1UI !ha·i(Uf: "1111-~L6'"1 a~ter1orehd1'••l"W

mUSCllla!qre-ol the olbow, wtl>t, fingers and.litp; ..,)'lolf &HhbU!derlnJernal ro~ kl\~~·•xten~~rs1

•rr! pl•ntar ri•xo11; M tnor,e,.. lb i)iuaele•llfn~ i..pi:01•n\ ID· L111R add40)or11> knee.f!al<Qfe, an,d anJ<le

plarMr fl9xa11. t:t•cr•~•94 IT\Uaol• toM l«nsted in Pfll~lmal We·musoijfolur.e. ·

DescrlDe: ~Ql!Ve 1Aiovemaiifa a e d,by muscle·toi:na: Linda demonsltB~s lllUe·aofJVe tnovemerit ln·the:

a

RU and RlS. Sf'ta:·1s eble1 however to r.i.se-fh11 L i)ij's other bocly iacll\!ely, ~!though ran a of motion 1~ a

llm'~ed throU1fhOut. She.lubl•~o puoh through both legs durtng transfer<, and can parUaJly flex har L

kr.tr1e, l_n the tJCs, Uf.lda has no·eottv&roOVF11ment thloughoul lhQ RUe or L atiouldat and llJ not·able-to

•_uPJn_•_te-; She _db&S_ have adUvo:movemsr\t within horrnal llrrirts dt&tauy, ln·el!:>ow ext$ntiorv, and for wHst

········ ··--:-·

& :tlnger ffaxldn/e~lanslori, · ·

Detcrlbe-passfYa·mGvamenta.e'ffeoteO.by. mueClGlone; Passlv.a ·rnFJ\tements-aff!!!C:ted b.~ muacJe tQnQ

lncfude.bllatefBI shoulder. fle>rlan and extension, shou!de'r_ abdUCtlon 1 external rotallel'\; and bllal&ra{ hip'

abducHon and enlUa-doraiffaxlan.

.. - ----------~-~---------~·-------- ·--···-···----

44

·--~··--·-----·--------------------------····-·---------~-------·--

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--·---·-. - -···-- - ·-· ·-·----- --·· -- ---·-- - ...

. .. __ ___ Daeollbe. reflexes prase~E._]"hrOyQh_q~_e!J !!'.!~.PY ~~!_~J1S, Linda has not demonatratad any proteclJl/e

- - - -1or poetureJ fefleX.ee, ---:-·----- --- ·------- · --

'

;rrvJJk 9.QPl(ol: 0Good 0 F.alr· 0 Npn~:

\.JpP,at exlhltnltles: Q<pooq OFalr 18! ~eqt Oi'lona

L~~Ef!'!'J~~~; OGoo~ 0.Folr l)lJ P,oor f'.J.Nena

Qesbrl~t1-~rth9pfldlo·coodtllQD' .•n~t.ot rli,ng~.of in'otfQ)l llf)iltat\one req4l~rig'1P.Ml•I pon~lq~r~1lon (t,e.,

cc11\r~ot~re~,·~i!j1Ta,e·(!f @lnal co!V);tut,.,

e\o'.): GIVen 1~9~:of lh!ll}c ~i;mfro/i QO{j8.1<!_s~ffl>n:mqsF/Je

m~.d~ f9r.tt.b•.ak f!l•~:Pl'QV(dea,1S_~blo•l(nff:~"l!$.lf(~ntn~u((.~fiq{(gn,m~flt ae t~~"!l>l~o ~ pl'W~nt

rotld\a11•aP culY'!furrF ~~~ani!~IY,'·lll l(f!Sf~(Qn/ng. 'J,ind,R11t'Nfgnlfll)anl/y.i!~cro~sed htp ,!lliiM J<uqutt:ai;

sho lravo:a ous/i/on•tMI provillqs· fe1lhb1o· Js'¢hl•/·fioslllcri/n9 lo prevonOmbafanMd

wefriflfwarlng; Gi1Yef1.iind11's spi'nel·~ol'dy.fn}f!IJ!r,she /q1sHncre11s~d rfsk-~o( b~ne </on•lt)('fos~ .

anl:f oom rom/s.•d'So(f t/$SUe./n(og(/tyaoondsry·fo not'bsl11g able·to f>o•r wotg/Jt·tl!rou h Bt:&,

tl 0 sorlb~ ·otherphyafo~I 11mllatlons or ooocartt• (le., 1aapltotocy}: 'P.stl~n.t has ·!nipalred'integumsnlliry

sensatlqn 1 respJra[ocrfUnoUon 1 neur.ogenlo bowel, ~t\d l'\Sbrclogloel,paln. .

Oa~orfba any recant· or axpeolod changes In medlcaVph\'•ical/tupcllonal sia\us: Than~ ate no ra 0eni or

0xpaoled changes Jn mBdloa1 etabJs. Pallenf has regained some muscle fun·cuan slnae the onset or her

fnJury; the1efo1e her funottonal •tatu• may otranga·over.ume, ·

If sur9sfy. f;.en)lolpaled, plea.as Indicate lhe·prodedure and·&xpeetad dater .NO·SU(\i10ry_la·anUci~ ad at

!hie tln>e. ·

~ --~ ---~--

45

------ ------------·-------~----~-----·--·---:--------·---- -·--·--··-·· -·

000064

' ) '

@016/QOS

Page 16 of 68 received on 5120/20131:33:06 PM !?acme Oa~lghl Time)

®·NOnambu(alory-. -· __ --· _Q_WJ)h.a~slatonq<l.

0:9'Iiqr_t.dlst~noo( only 0 Porr.m)pnily a.rTJbO/atoi:y

_ lndtdat<l'lhe cl/enl;• ambulaUQn O Expeated,wlthln 1 Yasr

polan~a/: tlll N6.l •~t>Oot•B

0 e~¢e~t~d In Mure WJlhl~ years

.1 .1 l =~-~~1~~~',,,.""'l'JU.""'"""""""""'""""""""'""""'-""""""""""""''""".c;:.;_~~"""~

Wheel<>bair Ambulatton!

I• eUent t<\talJY·de~El)JJlenl upon whaelc~alr? t8I Y•s O No

If no, pie.as& e)<p/aln:

lncl/.,.ta the ollan~a transfer l2il Maximum eas/etanoa

P~PablffQ.eoi· o·Ni1rilmiim •~•1stifr1oe

Is Iha cll•o•tuba feM 0 Yes i8l No

lfyas,_pl•al!O axp/atm

Feeding: • t8l Maximum aa&!slaMe

0 Minimum assl•lant;e .

·8 Jhdepanaonr

M~derete asaletanO,e

O!l•orJbe·olt\er e.cHvlfl~~ j>.erfolJ)'led'Wh fo ln wheelohaJr.,Groomfng ahi:f hr,!jlen& a.otlvi~\!.~. ll~ ~re4~1~d.

~erba/ a.nd.techno11191cal O'omh1urtl0'1tlon, voldlhg, andihetapeuttc aetlvtt •• lncludl~g ROM,

strengt~enlng, an~ weJg~tboarlng ac!Mtles are.all completed by Linde in the wheelo~alr.

ls-lhe homo' aoc;essitif~-le (he Wheelchalr'I !8l Yes 0 No

fire ramP• ovE!lli!blo Jn lho home sett!ngJ1· Uill:Y•• 0 No

CleSGrlbe (ha cllont's·edUcatidt1aVVooef/onal satt/n~: L/n~a I~ unemployed ~acoMaty to her olsabillty.

I• Iha schO"o/ aoceaolbla lo the·wheeloholr? O Yea !81 No

-~..c--------·----------------·---~--4.6_________________,___

000065

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.

- ,Ar~.tb•lo. ramp~·~v~n~~I• In.Itta Mtto.ol •~ltl.na2 GJ Y.es ~ N9

lf·cli•nt·l• l~:~clibal;'has a acMol ln~raplsrbaanJnyoNad·ln thd,as••••inen\? .D Yes 181 No· - .. ·~

·•

N•ma ofacnoQf.theranlsU NIA

N•m~ of $choo[: NIA

b;St:iib."Wh_er_e_'~lh~e-w~h-ee~lb~h-•71r-w~ll~l.b-a-a7fu-re~d7(~h-om-e-.-.n-d~~-r-s~oh-oo...,_.l)r~h-o-m-e---·----·-,

1--,---.,.------...,---,.--:-~;;-.,...,,-__,, _ _,~=-------· .. -·• ..,,_, __ _

D•••!ibe·w~y current soatlng system ls.not mooUng ·oll•nV'~ needs: -NIA

Descrlbe lhe medical nacasslly for moblltty. bas~ and seeURg, system-req~astad:• . --- -

Determined vta,extenolve tnals1 the sealing aystom ollnlcelly rneommendad fbr Lfn~a .lnaludos:

Pef!1iO.blle C6QQ VS· Stend01r pbwor mobility base, requ~•d to enable f\lnctlons of.the Whe•lohair ••a

whole arid lhu$:·anow ~Inda to mano~~•r Within her homo Independently In a as(!; end reliable manner.

i'i"t.$ealWldlh, ~:!~.~~•l depth •.bt~rdlng lo ciln!di>l maa~urartiehl•Uated below..

~-n•t remoia.joyatiok, color djsplay with mono·Jao~s (mounted on the left, as Lind'~ has ae!lv~ "•e·af

these fingers.using.her DIP joints) lo allow Linda to qpereta·lhe wheelohalr-ln ell dltootlons·~nd a~gage

the power1 Ult1 reol!ne, and stantlln~ fe:ittvres.

R"1el rettaotabla )oyetlck mount aUMJiea·U1e)oysfti:!(IO ttta vlheeloh~it.foi o~erallon.

. .

~partl!El~Jir.contrOI '!11th h~me.$S t<r raq\l Ired I<! ~p~r~tlil mere "11!eJ'I one power eeat· l\ll'!~lfon. Th~·

• pendabld.Q9ntlo/ wi!h.liarne<is All.om the "9.nttol.unfrto.mova til llja:.sttl~ _¥.. at If do~~ nelHl~<fania ~"

...

-. .

~, ~..,.~,---·-·----------------,,,,,,,.,,,~Ji'ilo"'··"'Diii=01"'91"'"·'"'11"'1R•"'•'"'•"""'"'i,,,,_

.,,,.

.1?n11...

_p

. ·-···--·····-·--·--__: __· ·-.~--------·----------......:..1..7_____:._ __ __: _____ ·------------·-·---

000066

\l!OlS/OSS

Page !8 or 68 received on 5110/20131:33:05 PM ~aclflc oa~lght Time!

·~·

o·a~·~ar tov.s~ df:!sks, 'and of her work .surfaces durfn9 funcffonartaeks.

Power lilt ond·reollpe (eaturee snabl~ tar to.p~rr~rm !l•f·OWO' praoa4r~ relief wl1h. p;~~~r lr~qu9ncy-:-.,;a-­

~"r~ilon to p/ei/"'1t prolong~dwelg~t beall/'lll ititqugh l•i:hlals.a)'td pre.vent •.kin btaak~awh.

Multl-Sea1.control FunotloA.'Klhwlth Toggle Swltohea:..raqulrad wm1 mars Uisn.ona.powar eaaf fUnotlon.

Llhda·i• aU!e to use 11er bll>o lo opereto the fqgg)e swllehee !Or pdweffuncttone.

611~/hg oackresJ kit..with lil/~ln9 ba'OJ<reat·harelW~rel i'aqµlract to' reduce frldfloolahe.Elr whert ualnQ poV1$I

~tilrtdlng fe.!llur• end power radline. Sl!dlhg'baekreat hartlwahl Is rs~Ulted la mo~lit aftal'rrtarkst

ba~kre$t

Corpue·l\rmrests • 4"~16" \'iftfl.bliateral·elb9w blocks end rlghtoatsr arrnre«t·stjpp'cm. Tira allioW block•

keept1qth ~lboW• from ta!Ong off Qr.catchlng'Qn the. armre•l~pt>StarlQrly. T~a'l'fl(M pUt(lr. •r<nre~t k••P,•

her FR.elbow frbm falling off Md sllqklng ofl !he side of Iha armres~ preva~ttng risk cf Injury. Thia oooura

freqµent!y wttho.~l an ootar arrriraat In plaoa.

Power Elevating, Artlqufaling, Gant~r-maunH09t platlorm·(1.pfeqe): required tor lrana(ars<ln and out of

tha wheelchair, w•lghlboarlng, neutral postural ~llg.nmant and.sere moblllfy within Iha horlla.

Knee blocks: required rot use·wllh standing feature for safely.

Standard, oon·p.aO:dad, medlumj pvsh-bvtlon hi!' po~IUorong b~l~.to ~1a//1taln l11ps In Wliaalohal~~aat sa

wsu ·~pr.event faillng/slWtng.ou sfwhe~lobal~

6" x 6" hip gulqp~.V"lth rl\l1Jo'1P.PI• h~rdwar~: n!i06~a~ry to-ko•? hlP•·•Pd Jower·e>c.tre'm!Ues ln·&O,!Jtrel

allgoment In 111mn~ and sta"rldlnl)', .

AdNstabfo che~t bar (10' wide): oaoe'ssary for u•o wllh s!andlng fl)atwo lo vre~ont Ratient from fiilllng

forward.

BodypofntMonoflex CMsl Strap (medium):' recommended sa a safety Faatura during standing, and

d\Jrt~g

transpor,tallon when riding In tM Whoelchelr.

i;ta~lth oomrort:Plus helli;Jrast (10' Wido) with ramo.vable hardware to maintain oer1loal.aflgnment end

pi'evant-.lrtJUry In t!lr during pressure rellera.

Pswer •eat elevator: required when vslng standing. featu,,., Power seat ala.valor will alad dect~~se

oaraglvor "uroen when assisting the patient with late rid l1a~slera fly adj usu nu tHa' •••I h~illlil ta mak~ tho

transfor.cio.'!mhll!. TJ\a aeat.aleva!Qr·aflows for Linda to .accoea Items In upper oablhals ~nd. ,9auntertop$ .·.

lhafshe would otherwise ba·.unable to reaoh. l='atlent-ma:y also use e:eat elavator·lo lmptavs .. I

lndependenoa with ·and fUnot/opal reach aotlvltles es her neuro1ogloal funotJon continues to Improve. l

Sl~ndln!l fB!ltute: THi>.atand1ng·teature.allOW• tlmfa to ~aarwelghi through s~i::a.as b.eca'asa1¥·t<i ·

'

Rt•V•iJt.borte deMlty 1~.. and ~(0setva.lntasrlly. of'aQf.t Ua'sue slruol~~~ such as llgar/lfihtnno lendoru..

Tha •JJ>ndlng feetvr•'~l~o'!llOWs hel MPl3••·16'.lt<irns MC•$Sery lor •WiTyday (!)AOL actlvlUM. Linea' t~

able to perrorrn toileting with set·Up ohlY from s,upported.stan<(lng Wllh·tha use of a·f)ltnafe u.rloal.

16" Wide, 16" tall Matrtx ~lite deep beokreat provides stable postur~! eupporl I~ prevent rpfatlbo.ot the

trunK •nd ourvature·of th.• eptne. The height ofjhe backrsst'gJv~a naa~supp9rt throughovt the·fenglh

.~

·-·--···---·----·--·__· ________·_··~------·---·_4_8~~--~---

000067

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-------1ntt.inil_a'a thorill<, an~:tM.d•pth of.U)I~ model Rt•~•Dts c<Jll•p;lnff i:if~llheHlae,;rl\eri-lbb~g~. enWanolM

i'asl)lt•llil~ and.p10ael)lln~.the c<lrteot allgn(llent 01 her •~i~Q. Tliaee'!•loments·_togalh_er)'J1al~ti•Jn /,Ind.&!•.

lr\lh~:h'( a •~re, neUl(at pQeMe so lhet s_na v;ul not (equl!il'fr~q4en,l r~P,6aJlldn1ng, lt'IJ iTIP9r!iinl ner·

sest1J1g.w•tel1J"Pr0Qlda.fo\!harjl9e\urat,. poaltionln~, ~nd rnoblil\9 ne.•o• •• ·~~ hab nQ 11n.•·tlylnQ 1n U\~

home .lo.rely"" to provid~·lhle c~re.

1S'"X 2f)" Invacare Slab]lle, cushion.provide~ adequ~t~ femoral ~upport to pr$v<111l abdu0Uon oMhe lhl9hs'

In altH11g .as wsll a~ lscjilaf P.•~lt/Qnlng In, IM (<lar of \be ~~·~ which pr'1venle.Llnda's pelvle·frem·UIUng

po•larlor\y (w~l('h·woul~ lnqrea~.•·prassure-!hrougnoUl, !I)~ "'•O(•I region, •nd· lncrasu· mslall~J1•d

~U~1:t" of ~e-$plne);'T)le,gB\ overla;<·ln lhls r~gfpn,of.ih~ seql.Rrovld~s-eddad skllr proted\lon and

DascMba fhe sqvi~roant ra~uesl.~cil Delarmloaij"vJ~ •*leiiiiive f(lals, ·lhe·a.-all~.9 •yale1J1.oliri1caQ~- --

r'IOommeocl~d lor. lln<Ja, IMludoo!_ •

P•rn1oblle OGQO. VS S1M!'l,~r poworrnobllll)!·l1•••

l\'no.1 rornot&JOY.•~ek, color dl•P!•Y with mono Jecke·(rnountad .on tha leflj

R'MI relrac\ab1a )oystlck mount

Expanda~le control With harrioaa

Power Ult and·reoltno

Multi-Seat· Oontrill funollon Klr with Toggle switch••

Sliding Dackreot.klt-wlth sliding bookl'!o•l her~ware

17' aea1 wldtil, 22' •••t•depth

Oorpus.l\rrnrosts ·•'•·16'"with bllateral.o1bow blocks an~ rlght ootar ermrijst sup)Jbrt:

l"ower-ole.\lilflng1 Al'\lo!llaflng, Center-mount foot plalfOrm \1-ploce)

Knee blool<S? requlced for use wJth· atMdlng leatu1a

Stander<S, non-padded, madltJm, RU•h-b!Jtton hip p'o•lllonlng bait

5"x5'' hljl ,g~lda•'Wlth removable.hardware·

Adjustable qhsst- blll (t6" Wide) · . . ·

BP!IY.P,Olnt·~onoflpx dtte~t -Str!\p (n'le~l4rt1):

.st~aith ~tnfort ?lus-h&adre$t·(10' Wl~el with tam~\1\>ble hardw•t•

P.OW~t·.aat eleV~W .

1'S"Wl4~. 16' tall Maitl~ .el1t.e1d!f~~ ·~~pk(e'at

17" x.ze" lnvscar~ ·stablttta Oll•~fon

Qesoribo·Jha groWlji pbtontlal or ~qUlil\tla~traqu~at~d In hUtTiber pf yeero: LJ~da has'l(Jet ~P.PfOXlmall>ly q '.

p<lunqo slni;llt Iba deuiof'lojury. Herwe19ht la 1nalrilaJa~~ vie nutrlllon~l lnJaiw··~pd Jlilnalot~nt . .

p,artlclp~tlon;in H:ratapauUa ~e.UVIUe~ f"-cott\toen~e~ by h·or tn~dl~•l leal1\, ltfa rti:il anQofpotE18. !~1%1 Und'a

wlll,galn or!~$& a su~stanlfal·am~un .of weight throughQ~t· the 'llfetlma oMM ··~~ng •Y•t•m. -

o;s)lrlba- any.anllolparad rMdlfloatiiins/eHaOgss .lb t_ho equipment within ·Iha Mxt thr1wyasrs: Thqra· era

no modltlc~tions or change• anUclpatad lo IM •C(Ulpment requested wjl~lh.lbe n~xt tliree Ya•r•' ..

----··----------- 49

---------------

------ ------·----- ... --~--

000068

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r• . .. - -· -·

- - - - - - - - - · TIRR Mernorlal+lem'lenn··-· - - - ··

baserlba•lh1"'uad\bal·ne.:Sdlfy fot power VS, ri!a~Ual Wheetohalr!

(Ju•fl!Y any ao.,;ssollantl<lh as po,wst lilt·br. roollh&)

llnds laokii iha adflva movemanl, W.n~lh, ollduir.nrJe, motor.an/I poslurll/ ccmlfQ/ tq p/'6plj/ e mMuaJ

Whealohelrot any.klna. Sha ls' Unable to )lerfsmi haroWn Wftl~lilshl/ta ahd d.M• lfal'fi~va ftJlllny or

rot

caregiver In Iha /!om• fo'.firovldr; f/er'mbUl//ly, /IJnqll<inal, ADI:, and pres~ul'& ts/leyl nelJdS. lliar.otore s

pawarwh~aiohalr '!11th tlit llnd 8f~ndlne fasturse ls rsoommar;doeHor her daltfusa,. With a power s<f~M

sys!aln of!flis kind, Lh1ds.wl/I ba.sbla·lo provide tot har nlc/>1111)' an<I fUitctlonal nM<l•·ID'aboalls it§ms

snd.pedorm ADt.and 11aussl1old tasks In o••IB anil Weallv• mannar. Site WI/I alsb.b~ •bJe.ttj.

lndS/Jondan//y perfarm pressure "11/ef and weight Maring ll1rough hor·LE•, previ;ntlllg skh1 b'6ak<fQWfl

and bane denslly loss, as Woll.os .•n/1apcl~gblomsah~nlco/ a1tgnm•n.t lhio~ghaullh•~•n.ffrs,bady on a

dally basis, wl1loh helps fQ .proven( further Impact Oflipastlcl/y 011 /o//l/$ /n 11pi1gl1t postur.;,a.

~ :;n;,;;'Vriiibie.10'0 era1~.~ manlleil olla\r av.en when adapl<id? Wl Yos.b No

l~ self propulsion pogafbte but aotMW I• extremely labored? OY.es.@ l'lo

/(yea, p/etfa• explain:

I• ••tr prop~lslort passlbla·but con!l'acy to·l,rehtmanf l•Ulmen1 D v... 121 No

II )'OS, ple1'i;e.exple/n:

Howwltrthe,poweowhoelohalr bO'opera°'d (han<!, chln, efo.)? L hand

tf~s tfi:3..£1!'!!1!:...~~y~eted ~llh the proposed drive·oontrO!s1 Yea "'--. ~~=-

Ooes tliij c)lent have a~y oclldlUon that Will nilcesgJt~la possible change ln.aoces6 or ~,rlva confrol~w\thin

tho n~xt·liVe ye 0rs.? No

la tfla·ol\~nl physically and me11tai1Y. capable cf op•r>1tl/l~ a ~owerwhaolehialr s~lely end WIUiY~epetlt to

olh~rs?

181 Y.e 0 No

I.• tho oaregfve1 capable 'Of caring !Qr a power whe'elcheilr.and un'dats)andlnl) haw It operates?•

i8l Yes 0No ·

Hew w1111ra1111ng·fpr lh•'Jl<\ll!ers11u1p1Mnt be>'!il~n1~11ahGd? :Untje·h·a~ t>'eWt trl2illn~.aj)UW.E!( wnoalGhalr

With ~ln111ar dh'tfen~Jon·~n\1 ~ohtrol unlt~~urlnS M~ ~dmieOlon el 1Ne liO•l>itill. She ttas tlom6Mtiated·lh•

ability lo safely oper.ate the eoaUng eystom In et<PIUhl w~ye, elevetorl!, ramps, r'1rwaid, ravetso, ·1urn/ng

R;'i, up lo 9~0·, In crowde!;l•r••• 11nd 0\1 ul\aven sutl!!"'Jll•

.,.

.i

. ---·-·--------------·-----·----·-----------5 O.:_________________________ ....... ·-- -·. ·-

000069

""7

c •.•

Page 21of68 melvedon 5nW201l f:33:06 PM(Pacffic Da)11gh1 TlmeJ

-------. - ..

.Ji'f!'>

1: 31..B' 1'op Of Mad !tr bott<l'm of

buttool<i!

,.

2:.S.1"

3i 15~ Artn.~lt to botk•m·ofbuttooks

8: 18" Shoulderwlclth

I

,. e: f1 .5' Arm pit to arm pit

iO; ~-·-+H-"'l"-"w"'ldc::.lh:.__ _ _ _--1

11: 18.6' Olstanoe to bot!ci'n.df left leg

(poplftaa/.lo heal)

Ols~Gfi to bottom of J1ght

I~ :oioplltaa/'ts he~/)

OflP Blgnetu e: - Date: ~

- - - - ______________________ [!:__

000070

IOIO z Z! 0 i i

Page 22 of68 rec~ved on 51iOl20131:33:06 PM ~acl~ Daylight Time!

... -···--·---··-

. p1\9slclan1T11araplses !ll[a: Oocup.~Uonlil · ·- · Dato: , ··· 1~:/· ·~

Tnorn IH · 1 .,,

PhyslolanlT.baniplsl'a talephono hu;;;;;;n 71a}79Z - 7~77 ----

PhyslJllan·l.i'haraplat •111proyor (naroa): l'hyelolan/TMraplst'6 addteae {work or e111ployor1addree!):

TIRR Memorial Herro~nn 1333 Mour•und AVo, Hous!M, 'f.)( 77030

. NP\: I 5 T~I:

..

.Jw

..... ·----·---·-·---------------------------~) ___ ----------·---------------------·--

000071

TAB 4

(JI03l/06S

Page 3f or 68 received on 5120/20131 :33:06 PM !Pacific Oa~lght lime]

. _ ·- __ __ AsJ/stlv11 Tsdi}\oJoW.-, 21: 161 .. 168, 2009

C'opyright ¢12009 il~5NA .

1ss1-1: l640.Q..1J5 prlnv1g49.361"--onl1t111

- - --.-----·001:- to. 1ali&1nitoo4·:!oso311saii

RESNA Position on the Ap·plication

of Wheelchair Standing Devices

Jullanh;t.Atva; MS, ~TP, 1 ,

Ginny Paileg, PT/ Mlcilalfe All-SlJlACT Thi! do®f)lent, ~pprqved by:· the R•hobllltarion ·Eng!neorfog &

Longe, OTR.-ABDA. ATP,' A"iitive 're!!lmology Soci<ty.o(N~rth An1~tlott (l\ESNA) fipard of D!roctot•

Jenny llebartrian; MSOTR:/L, in.Maron Z0.07, ·•h<ris typlcnl olluioal •ppll0l(tion1 and. provlde:.cvid•nei> fro in

ATP~ 4 Marl:( S~hmia;ljr, flhO, '

the lltcta~. Npporting tlii> U$<·ofwh•oldµ!r •tllntfor<;

OTR/L~ ATP/"Btad bldanno,

MO/Mike !iobloec·,:omi, · KE!"i:WORQS PO'lie.t features, reltribllltatloti, stlindlng, wheeh:halr

ABDA. ATP,' am! ll>"ron

Rosen, P.i, MPT, ATP*

1nsPort LLrZ, Ket'lnewl.;k.

Washington•

21ndepilrldgnt.Consultant, INTRODUCTION

Mal}'lruid

!lch!ldreti't Hospital of oenvet, The·purposc·oHhls :uticlo Ir fo fh•r~ lypfcal ciinka! nppllc11tioft1 ns W•ll ii>

Denver, C-o!or~do provide rJ.vide.nce from d\q li~ro.turis supportlng th~ appUca'tiqq bfwb·~ctchalt

4Mount Sinai Mospltal, .standing P,c:yiCes to. !lSSls~ ptns:P.tlonc.rt in.di:=cl.rlon mnlclng rind justJ.Eioa1ion.. [t _

New York, New York is not i11tended to replae<! clinical judgtnont rclatccl to spoclfkelient noedi,

'University of Pittsburgh,

'Pittsburgh, Pennsylvania

~University of Pittsburgh 'BACKGROUN~

Medical Center, Pltt5o~rgh, CHnic11} experience 1ug~estS that whc~!c:h.alr. Ullc:I'& oA:C,n bxpm:icncc p;ih~fu~

P~nnsyfvanra problematic rurd co.stfy secondary compUcatltJ;u due to 1ongvtQnn· .sitt1us.

·11nvacart1 Carp, elyr{a, Ohio 1

Shtndlng bi llI1 cll"cc:tive.wa.y Co counterbalance Iru!ny oft:hc ncgatlvq affucts of

•s~ JOs•ph's Children's

Hospital, Tampa, Florid• constunt: sitting (Dunn ct al., 1998; Un~·etal.1 2001), Stn{lders fntcgr1\tt::d. hlto

wli ..kh•lr hases erthnnce liie bcrrefltlal cltOi;tt oritntidlhg-slne~ they olloi. for

more frt;quent, randoni, Jl'ld independent perforJnancc of'·sbUlding tlian among

parsona who Use! ata:ndlng aovjce.! outside o

This text is long and has been trimmed here. Open the source document for the complete record.