Case: DeSario v. Thomas

On April 11, 1996, a group of Connecticut Medicaid recipients filed a lawsuit in the U.S. District Court for the District of Connecticut against the Connecticut Department of Social Services (DSS). The plaintiffs filed the lawsuit under the Medicaid Act, Title XIX of the Social Security Act (42 U.S.C § 1396), as well as 42 U.S.C. § 1983 and the Due Process Clause of the Fourteenth Amendment. The plaintiffs alleged that the DSS had improperly administered Connecticut's Medicaid program with respect to the process by which payments of durable medical equipment (DME) are authorized. Specifically, the plaintiffs challenged two of defendant's regulations: one in which the defendant was permitted to deny coverage to plaintiffs for DME not included on the defendant's fee schedule; and one in which the defendant identified specific equipment as being categorically excluded from coverage, including, inter alia, air conditioners and room humidifiers. Plaintiffs sought an injunction, barring the DSS from applying the exclusive fee schedule to their requests for approval of DME and requiring the DSS to provide the medically necessary DME for which plaintiffs contend they are eligible.

On January 7, 1997, the District Court (Judge Janet Bond Arterton) granted plaintiffs' Motion for Class Certification. The class consisted of two subclasses: (1) Connecticut Medicaid recipients who have been or who will be denied coverage for equipment on the basis that such equipment is not included on the DSS's fee schedule list for such equipment, and (2) Connecticut Medicaid recipients who have been or who will be denied coverage for equipment on the basis that such equipment is not included on the DSS's fee schedule list for such equipment due to the DSS's having identified the equipment as being specifically excluded from coverage. DeSario v. Thomas, 963 F. Supp. 120, 141 (D. Conn. 1997).

On February 13, 1997, the District Court granted the plaintiffs' Motion for Preliminary Injunction. DeSario v. Thomas, 963 F. Supp. 120, 124 (D. Conn. 1997). However, the DSS appealed to the U.S. Court of Appeals for the Second Circuit, and on February 24, 1998, the Second Circuit (Judge Guido Calabresi, Judge Dennis Jacobs, and District judge Charles Brieant, Jr.) held that DSS's definition of DME was permissible under the Medicaid program as well as DSS's use of fee schedule to determine Medicaid coverage for DME. DeSario v. Thomas, 139 F.3d 80, 98 (2nd Cir. 1998).

On January 19, 1999, the U.S. Supreme Court granted the plaintiffs' petition for writ of certiorari, vacated the judgment, and remanded the case to the Second Circuit "for further consideration in light of the interpretive guidance issued by the Health Care Financing Administration on September 4, 1998." Slekis v. Thomas, 525 U.S. 1098 (1999).

After the case was remanded, the parties reached a settlement agreement, which was approved by the District Court on June 23, 1999. Under the settlement, the state agreed to (1) have a process for annually updating its DME list, (2) allow a recipient to obtain an item not on the list if she can demonstrate that there is not a less costly Medicaid service or an item that could meet her needs as effectively, and (3) adopt regulations clarifying that a request for an item which is not on the DME list will not be denied solely because it is not on the DME list. The case is now closed.