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Early and Periodic Screening, Diagnosis & Treatment
Case Docket
mental and behavioral health services

Prepared by: Jane Perkins, Scott Strickland*
July 7, 2004: Revised
Previous posting: May 2001

This docket summarizes published, reported, and unreported federal and state court cases that discuss
the Medicaid EPSDT program as it relates to the behavioral health needs of children.

http://www.healthlaw.org
(310) 204-6010

* Law student, UNC-Chapel Hill School of Law

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 Reported federal decisions:
Pediatric Specialty Care, Inc. v. Ark. Dept. of Human Services, 364 F.3d 925 (8th Cir. 2004) (appeal
after remand), earlier case, 293 F.3d 472 (8th Cir. 2002)
On remand, the district court had found that ADHS violated the “equal access provision” (§
1396a(a)(30)(A)) of Medicaid Act and enjoined ADHS from changing the program until
impact study was completed. The Eighth Circuit affirmed in part, ordering Arkansas to
continue Child Health Management Services (CHMS) program until impact study on
terminating program was completed. The Court of Appeals reversed the injunction as it
extended to CMS, which was not a party to the underlying action and did not actively
participate in decision to terminate program. In the earlier 2002 ruling, the Court said that
when the state agency planned cutbacks in state Medicaid CHMS services, plaintiffs had
standing and state plan was required to reimburse certain physician-approved services, but
federal law did not require state to provide for CHMS services.
Collins v. Hamilton, 349 F.3d 371 (7th Cir. 2003), aff’g, 231 F. Supp. 2d 840 (S.D. Ind. 2002)
Appellee minor Medicaid recipients brought a class action suit against the state of Indiana,
alleging violations of the Medicaid Act based on the state’s failure to provide long-term
residential treatment in psychiatric residential treatment facilities for children under age 21.
The state’s standing policy of refusing to provide long-term residential treatment for those
patients for whom such treatment is found necessary by EPSDT screening violated the federal
Medicaid Act. The state was ordered to provide Medicaid-eligible children under the age of 21
with the mental health treatment found to be necessary by EPSDT screening.
Rosie D. v. Swift, 310 F.3d 230 (1st Cir. 2002), same case, 256 F. Supp. 2d 115 (D. Mass. 2003)
(granting motion to compel production of documents having private information regarding class
members)
In case on behalf of children diagnosed with behavioral disorders and needing EPSDT and
home-based therapies, 11th Amendment immunity does not protect state officials from
federal court suits for prospective injunctive relief under the Medicaid Act; fair hearing
requirement set forth in § 1396a(a)(3) falls short of showing that Congress intended to
foreclose injunctive relief and Ex parte Young controls.
Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir.), cert denied, 537 U.S. 1045 (2002), rev’g, 133
F. Supp. 2d 549 (E.D. Mich. 2001)
Westside Mothers was filed by children who are not receiving sufficient and timely medical,
dental, and developmental health screening services through Michigan’s Medicaid managed
care program. The district court had dismissed the case, finding neither jurisdiction or a
cause of action because, among other things, individual could not bring actions under Ex
parte Young against state officials to enjoin ongoing violations of spending clause programs
such as Medicaid. The Sixth Circuit reversed and remanded district court holding, noting the
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 Medicaid program as supreme federal law and not simply a contract. It also recognized
plaintiff’s private right of action under § 1983 and the validity of the suit under Ex parte
Young.
Emily Q v. Bonta, 208 F. Supp. 2d 1078 (C.D. Cal. 2001) (permanent injunction)
This injunction requires the state to take a number of steps to provide home and residential
therapies to children who would otherwise be locked in state mental hospitals. Among other
things, the state was ordered to: (1) include therapeutic behavioral services (TBS) in the
Medi-Cal program; (2) assess institutionalized children to determine if they qualify for TBS;
(3) develop and distribute a request and referral form for providers to request TBS services, (4)
revise the EPSDT brochure to inform beneficiaries and applicants about TBS and other
developmental services; and (5) provide compensatory benefits to class members wrongfully
denied TBS services.
John B. v. Menke, 176 F. Supp. 2d 786 (M.D. Tenn. 2001), John B. v. Menke, No. 3-98-0168 (M.D.
Tenn. Feb. 25, 1998) (consent order) (motion to enforce pending)
In this case, children complained of the failure of the TennCare managed care system to
provide screening and diagnostic services and to provide needed treatment, from wheelchairs
to home-based mental health services. The case settled when the state agreed to implement a
plan that includes requirements for, among other things: (1) updating and implementing
statewide periodic screening requirements to identify both medical and mental health
problems. Developmental screening is to include the use of culturally sensitive
developmental assessments and avoidance of premature diagnosis labeling; (2) improving
access to needed treatments, with particular attention to children who are medically fragile; and
(3) better integration of health care and custodial services for children in foster care. In 2001,
the district court held that state’s managed care system did not adequately meet EPSDT
mandates and to remedy the violations, the state would be ordered to carve out the 21 and
under population from the pool of managed care recipients.

Foster Children v. Bush, 180 F. Supp. 2d 1321 (S.D. Fla. 2001), aff’d in part and rev’d in part on
other grounds, 329 F.3d 1255 (11th Cir. 2003)
This case is filed on behalf of children in the defendant’s custody, alleging systemic abuse and
neglect of children in the foster care system, including the failure to provide treatment services
through EPSDT. This magistrates decision looks at whether the EPSDT provisions are
enforceable through § 1983, and it holds that they are. All Medicaid EPSDT claims were
settled before reaching the 11th Circuit.
Chisholm v. Hood,133 F. Supp. 2d 894 (E.D. La. 2001) same case, 110 F. Supp. 2d 499 (E.D. La.
2000)
Chisholm is filed on behalf of children with mental health care needs who are waiting for home
and community-based waiver services. A class has been certified (1998 WL 92272 (E.D. La.
1998). In February 2001, the state was required to provide access to community-based
psychological and behavioral services to children with autism. In a decision from 2000,
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 the court found it a violation of EPSDT to restrict therapy services to school settings and to
limit home health services to only those mandated by federal regulations. In an unpublished
partial settlement, the state agreed to improve outreach and informing of this population.
Risinger v. Concannon, 201 F.R.D. 16 (D.Me. 2001), same case, 117 F. Supp. 2d 61 (D. Me. 2000)
This case is a follow-up to French v. Concannon, described below. The complaint sought to
address problems with quality and continuity of home and community services for
children with behavioral health needs. The 2000 decision denies the defendant’s motion to
dismiss the case. The district court in 2001 granted Plaintiff’s motion for class certification.
The case settled in May 2002, which the defendant agreed to comply with timeliness standards
for the provision of case management and in-home behavioral support services for children
under age 21–with these services to commence in accordance with reasonable standards of
behavioral health practice and generally within an outer limit of 180 days.

Kirk v. Houstoun, 2000 U.S. Dist. LEXIS 8768 (E.D. Pa. June 23, 2000)
Plaintiffs alleged that Pennsylvania failed to adequately provide behavioral health
rehabilitative services to children who qualified for and were in need of services. The court
granted summary judgement to the plaintiffs, finding that defendant never established adequate
time lines to measure the prompt initiation of services w/n the managed services counties;
therefore, it had not adequately provided prompt treatment to many within the plaintiff class.
The court also found a violation of HCFA waiver because of failure to ensure some managed
care subcontractors maintained an adequate number of providers as required by contract.
Charlie and Nadine H v. Whitman, 83 F. Supp. 2d 476 (D.N.J. 2000)
This case, which focuses on children in out of home placement, includes an EPSDT claim to
improve developmental screening and services. Relying on Blessing v. Freestone, 520 U.S.
329 (1997), the court dismissed the EPSDT claim as unenforceable under 42 U.S.C. §
1983.
Tallahassee Mem. Regional Med. Center v. Cook, 109 F.3d 693 (11th Cir. 1997)
This case required the state to reimburse hospitals for inpatient “grace days” needed by
adolescents during periods when lower levels of mental health care were medically necessary
but alternative care settings were unavailable.
Texas v. United States Dep’t of Health and Human Services, 61 F.3d 438 (5th Cir. 1995)
This decision upholds the U.S. Department of Health and Human Services’ refusal to recognize
inpatient residential chemical dependency treatment (to include room and board) as a
EPSDT rehabilitation service.
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 Sanders v. Lewis, No. 2:92-0353, 1995 WL 228308, reprinted in, MEDICARE & MEDICAID GUIDE ¶
43,120 (S.D.W.Va., March 1, 1995 and Aug.16, 1993, March 1, 1995) (Consent order and compliance
plan)
Sanders involved a certified class of children in out of home placement who were not
receive needed EPSDT outreach and screening services. The state agreed to take a number of
steps to provide better information about EPSDT, including revisions to its EPSDT brochure
and training of health care providers.
Scott v. Snider, No. 91-CV-7080 (E.D. Pa. Dec. 2, 1994) (order and stipulation of settlement), same
case, (E.D.Pa. Aug. 11, 1993), reprinted in, MEDICARE & MEDICAID GUIDE (CCH) ¶ 42,056
(stipulated partial settlement)
Scott focuses on a range of issues confronted by children enrolled in managed care. Among
issues addressed in the order and stipulation of settlement are requirements to implement

specific protections for children in out-of-home placement and children with
mental retardation.
J.K. v. Dillenberg, 836 F. Supp. 694 (D. Ariz. 1993), later proceeding, J.K. v. Eden, No. CIV-91-261TUC-JMR (D. Ariz. Mar. 20, 2001) (settlement)
The first J.K. decision requires proper notice and due process when residential mental
health services are denied, reduced or terminated by managed care providers. The final
settlement of this case envisions broad systemic change of the mental health system
over a six-year period, during which pilot projects, ongoing training of front line staff, and
other activities will occur. The settlement is based on 11 principles that the defendant will
follow to improve the mental healthcare system for children: (1) collaboration with the child
and families; (2) focus on functional outcomes (e.g. improved school performance); (3) multisystem collaboration on behalf of the child; (4) accessible services, including case
management; (5) development of best practices; (6) use of most appropriate care settings; (7)
timely services; (8) services tailor to the child and family; (9) stability in health care providers;
(10) respect for cultural heritage; (11) support of independence; (12) identification of and
connection to the “natural” support system of the child.
Salazar v. District of Columbia, No. CA-93-452 (GK) (Order Sept. 17, 2001), same case, (Jan. 25,
1999) (Consent Judgment; Order Modifying the Amended Remedial Order of May 6, 1997 and
vacating the order of March 27, 1997); 1997 WL 306876 (D.D.C., Jan. 17, 1997) (remedial order),
earlier case history, 938 F. Supp. 926 (D.D.C.), amended and superceded by, 954 F. Supp. 278
(D.D.C. 1996), same case, Wellington v. District of Columbia, 851 F. Supp. 1 (D.D.C. 1994) (EPSDT
provisions enforceable through § 1983)
This broad and ongoing case includes EPSDT services for children with behavioral health
needs,. Since consent judgment was entered, individual and systemwide enforcement actions
have involved, among other things, transportation to mental health services,
requirements for lead testing, and home-based services.
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 Maher v. White, No. 90-4674, 1992 WL 122912 (E.D. Pa., June 2, 1992)
This case requires improved EPSDT coverage of children in foster care placement.
L.J. by Darr v. Massinga, 778 F. Supp. (D. Md. 1991), same case, 699 F. Supp. 508 (D. Md. 1988)
(consent decree)
This decree requires initial and periodic examinations for children in out-of-home
placement.
G.L. v. Stangler, 873 F. Supp. 252 (W.D. Mo. 1994) (modified consent decree), same case, 731 F.
Supp. 365 (W.D. Mo. 1990), 564 F. Supp. 1030 (W.D. Mo. 1983) (consent decree).
Among other things, this consent decree addresses initial and follow-up examinations for
children in out-of-home placement.

Unreported federal decisions:
Alberto N. v. Gilbert, No. 6:99CV459 (E.D. Tex.) (Aug. 9, 1999: Complaint) (Partial settlement 2001)
This case concerns in-home health services for children under age 21; particularly therapy
services. Partial settlement was reached in 2001, where the parties agreed that no preset limits
would apply to physical, occupational and speech and language therapy services and that
specified due process protections would apply. See
http://www.healthlaw.org/pubs/200403.AlbertoNdocs.html (Settlement and model forms).
French v. Concannon, No. 97-CV-24-B-C (D. Me. July 16, 1998) (Order of dismissal and agreement)
This case concerned that lack of EPSDT services, particularly case management, in-home
aides, medication monitoring, and mental health counseling, for children with
behavioral health needs. Settlement of the case included: (1) designation of an employee
position within the Department of Mental Health to identify children who need services and to
make sure that treatment plans are developed and implemented.; (2) revision of the EPSDT
brochure was revised to include easy-to-understand information about the range of behavioral
services that are available to children; (3) development of a “regional resource directory” that
includes information about available providers and resources; (4) creation of a new provider
category — behavioral health specialist — targeted to home and community-based settings;
(4) regional EPSDT training sessions for providers and case managers; (5) streamlining the
prior authorization process, including a presumption that mental and behavioral health services
described in treatment plans developed by authorized providers are medically necessary; (6)
revision of the EPSDT provider screening forms to reflect age-specific information about
mental health needs and anticipatory guidance; (7) promulgation of regulations that require
prompt delivery of treatment services, equality of services between children with physical and
mental health needs and between children with mental illness and mental retardation, and
collaborative efforts to focus on child-and family-oriented care.
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 Metts v. Houstoun, No. 97-CV-4123 (E.D. Pa. Mar. 27, 1998) (settlement agreement)
This settlement concerns coverage and due process protections for a number of EPSDT inhome services in managed care settings, including nursing services, home health aid
services, personal care services, and case management services.
Bates-Booker v. Houstoun, No. 97-CV-3734 (E.D.Pa., Oct. 1997) (agreement)
The defendant agreed that the state and its managed care contractors would assure EPSDT
coverage of necessary medical services and equipment for children in special
education or early intervention settings and provide proper due process notices when
services are denied.
T.L. v. Belshe, No. CV-S-93-1782 LKKPAN (E.D. Cal. 1995) (settlement)
The state agreed to promulgate regulations to guide process for covering EPSDT treatment
services not included in the state Medicaid plan for adults. Many of these noncovered services for adults assist children with disabilities.
Kelly v. Sheehan, No. 94-0140-B (D. Me., Sept. 21, 1994)
This is a consent judgement concerning coverage of behavioral health services.
Lawrence K. v. Snider, No. 91-6180 (E.D. Pa., Jan 5, 1993) (settlement)
This case concerns reimbursement for mental health services in prepaid managed care.

Reported state decisions:
Manglass v. Rhode Island Dep’t. of Human Servs., No. PC 03-0125, 2003 R.I. Super. LEXIS 122
(R.I. Super. Ct. Oct. 6, 2003)
The Medicaid agency’s decision to reduce home-based therapeutic services from 40 hours
a week to 15 lacked sufficient rationale. The case was remanded to the agency for
consideration of the requisite number of hours warranted by the evidence before it.
Georgia Dep’t. of Cmty. Health v. Freels, 258 Ga. App. 446 (Ga Ct. App. 2002)
The case discusses EPSDT treatment and requires coverage of hyperbaric oxygen therapy
for a child with cystic fibrosis.
Tomorrow's Hope v. Idaho Dep't of Health and Welf., 124 Idaho 843, 864 P.2d 1128 (Wyo. 1993)
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 This case finds EPSDT as a reimbursable cost for ICF/MRs.

Unreported state decisions:
E.H. v. Matin, No. 81-MISC-585 (Cir. Ct. Kanawha Co., W.Va.) (Temporary Restraining Order, June
4, 1992)
The TRO issued to block termination of off-site rehabilitative clinic services for the mentally
ill. The dispute settled when the state agreed to provide off-site rehabilitative services to
children though EPSDT.

Lead poisoning cases:
The following cases concern testing for lead poisoning, which can cause mild and severe
developmental delay: Thompson v. Raiford, No. 3:92-CV-1539-R, 1993 WL 497232, reprinted in
MEDICARE & MEDICAID GUIDE (CCH) ¶ 41,776 (N.D.Tex., Sept.24, 1993) (settlement of this
nationwide class action lawsuit resulting in the Health Care Financing Administration publishing a
State Medicaid Manual section regarding lead blood level assessments); Ellis v. Wetherbee, No. S920529 (S.D. Miss., May 1994) (consent decree) (state agreed to provide assessments); Addison County
Community Action Group v. Celani, No. 5:92cv22 (D.Vt., Mar. 9, 1993) (stipulation and dismissal)
(same); Matthews v. Coye, No. C-90-3620-EFL (N.D. Cal., Oct. 17, 1992) (stipulation and dismissal)
(same); New York Coalition to End Lead Poisoning v. Koch, 524 N.Y.S.2d 314, 138 Misc.2d 188
(Supp. 1987) (ordering assessments).

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