Brisson Decision

Brisson v. Dept. of Social Welfare  (96-427); 167 Vt. 148; 702 A.2d 405

[Filed 19-Sep-1997]

NOTICE:  This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports.  Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 96-427

In re Lorraine Brisson                       Supreme Court

On Appeal from Secretary,
Agency of Human Services

April Term, 1997

Cornelius Hogan, Secretary

Barbara Prine, Vermont Legal Aid, Inc., Burlington, for appellant
Lorraine Brisson

Donelle Smith Staley, Assistant Attorney General, Waterbury, for
appellee Department of Social Welfare

PRESENT:  Gibson, Morse and Johnson, JJ., and Cashman, D.J. and Allen,
C.J. (Ret.), Specially Assigned

JOHNSON, J.  Petitioner Lorraine Brisson appeals from the Secretary of
Human Services’s order denying Medicaid funding for a closed-circuit
television (CCTV).  Brisson argues that a CCTV meets the Medicaid
definition of “eyeglasses” and that the Secretary’s denial of coverage for
a CCTV is inconsistent with federal Medicaid requirements.  We agree and
reverse the Secretary’s order.

Brisson applied to the Department of Social Welfare (DSW) for funding
for a CCTV. The Department denied Medicaid coverage after determining that
a CCTV does not qualify as durable medical equipment, is not a prosthetic
device, and is not within the scope of covered vision-care services.  The
Human Services Board reversed and awarded funding, determining that a CCTV
is a covered prosthetic device.  The Secretary of Human Services, while
accepting the Board’s findings of fact, reversed the Board’s decision and
denied coverage on the ground that CCTVs are not within the scope of
covered vision care.  This appeal followed.

Brisson argues (1) that Vermont has opted to provide Medicaid coverage
for eyeglasses;

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(2) that CCTVs qualify as eyeglasses under the Medicaid Act; and (3)
that the Secretary’s refusal to provide funding for CCTVs as eyeglasses is
impermissible under federal law.  DSW agrees that providing eyeglasses is
an optional service, but it argues that the Secretary is entitled to define
the scope of coverage for optional services.

Brisson is eligible to receive Medicaid benefits because her age and
low income entitle her to be classified as “categorically needy.”  See 42
U.S.C. § 1396a(a)(10)(A) (1988).  She lives independently and, among other
conditions, suffers from macular degeneration, a retinal disorder
destroying all but her peripheral vision.  She is legally blind and can
read only if print is magnified to at least eight times its normal size.
Her doctors prescribed a CCTV as a medically necessary prosthetic.  She
uses one currently on loan to help her read medical labels and legal
documents, follow directions on food preparation, and pay her bills.
Without a CCTV, Brisson would need to live in a nursing home or have
full-time home health care.

Medicaid is a cooperative enterprise between federal and state
governments to help states provide health care to people otherwise unable
to afford it.  See Stevens v. Department of Social Welfare, 159 Vt. 408,
412-13, 620 A.2d 737, 739 (1992).  The federal government reimburses
participating states for a percentage of the cost of such care, id. at 413,
620 A.2d at 739, and while no state is required to participate in Medicaid,
those that do must operate in compliance with federal statutory and
regulatory requirements.  See Alexander v. Choate, 469 U.S. 287, 289 n.1

Participating states must, in particular, provide the “categorically
needy,” those persons most in need of financial assistance, with certain
broad categories of medical assistance.  See 42 U.S.C. § 1396a(a)(10)
(requiring states to provide the medical assistance set forth in §§
1396d(a)(1-5), (17) & (21)); Meyers v. Reagan, 776 F.2d 241, 243 (8th Cir.
1985).  The states may also, at their option, provide the “categorically
needy” with additional services.  See 42 U.S.C. § 1396a(a)(10) (permitting
states to provide “medical assistance”); id. § 1396d(a) (defining “medical
assistance”).  If a state chooses to provide optional services, “it is
bound to

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act in compliance with the [Medicaid] Act and the applicable
regulations in the implementation of those services.”  Weaver v. Reagen,
886 F.2d 194, 197 (8th Cir. 1989).  Each service that a state provides,
whether required by federal law or at the state’s option, “must be
sufficient in amount, duration, and scope to reasonably achieve its
purpose.”  42 C.F.R. § 440.230(b).

States may, at their option, provide coverage for eyeglasses, see 42
U.S.C. § 1396d(a)(12), and Vermont has chosen to provide such Medicaid
coverage.  See  5 Code of Vermont Rules, Medicaid Manual § 670.  DSW
argues, however, that CCTVs do not fall within the scope of Vermont’s
eyeglass service.

Brisson counters that, to the extent the Secretary’s construction of
the State’s Medicaid Rule fails to provide coverage for CCTVs while
covering eyeglasses, it conflicts with federal law and is therefore
invalid.  Brisson first argues that CCTVs meet the federal definition of
eyeglasses.  Federal regulations define “eyeglasses” as “lenses, including
frames, and other aids to vision prescribed by a physician skilled in
diseases of the eye or an optometrist.”  42 C.F.R. § 440.120(d) (emphasis
added).  DSW concedes that a CCTV, as an aid to vision, falls within the
scope of the federal definition of eyeglasses.

Brisson next argues that Vermont’s refusal to provide coverage for a
CCTV limits the amount, duration and scope of its eyeglasses and
vision-care service to an extent that defeats the purpose of providing the
service and is therefore impermissible under the federal regulations.

Initially, DSW contends that it provides coverage of eyeglasses that
is sufficient to achieve its purpose to improve the vision of most Medicaid
recipients at a reasonable cost to the citizens of Vermont.  It is not the
State’s purpose in providing eyeglasses that controls, however. See White
v. Beal, 413 F. Supp. 1141, 1153 (E.D. Pa. 1976), aff’d,  555 F.2d 1146 (3d
Cir. 1977) (“It is virtually unthinkable that the [federal regulations]
would give the state virtually unbridled discretion in the form of such a
`loophole.'”).  DSW must provide the amount, duration and scope of
eyeglasses care that will achieve the federal purpose: to aid or improve
vision.  Id.; Simpson v. Wilson, 480 F. Supp. 97, 102 (D. Vt. 1979).

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We recognize that states have wide latitude in determining the extent
of medical services they offer under their Medicaid programs.  See Beal v.
Doe, 432 U.S. 438, 444 (1977). Moreover, a medical service is sufficient in
amount, duration and scope if it is “`adequate to service the needs of most
of the individuals eligible for Medicaid assistance.'”  Charleston Mem’l
Hosp. v. Conrad, 693 F.2d 324, 330 (4th Cir. 1982) (quoting Curtis v.
Taylor, 625 F.2d 645, 653 (1980), modified on other grounds, 648 F.2d 946
(5th Cir. 1980)).  Nevertheless, when a state chooses to provide an
optional service, “the service must be distributed in a manner which bears
a rational relationship to the underlying federal purpose of providing the
service to those in greatest need of it.”  White, 555 F.2d at 1151
(emphasis added).  DSW’s willingness to provide coverage for lenses and
frames and not for CCTVs fails to provide Medicaid service to those in
greatest need of it.  In contrast to eyeglasses, CCTVs are designed for use
by the legally blind.  For patients like Lorraine Brisson who suffer from
macular degeneration, which destroys all but their peripheral vision, a
CCTV is a necessity.  Ordinary magnifying equipment does not enlarge print
to a sufficient size and clarity to allow such patients to read; CCTVs are
the only available treatment.  In light of the evidence that, absent a
CCTV, Lorraine Brisson would be confined to a nursing home, providing a
CCTV is at least as medically necessary as providing traditional

The federal regulations provide that states “may place appropriate
limits on a service based on such criteria as medical necessity . . . .”
42 C.F.R. § 440.230(d).  DSW has failed, however, to demonstrate any
justification for its refusal to provide coverage for CCTVs grounded in
“medical necessity.”  Instead, it complains that providing CCTVs wherever
medically necessary would cost too much; it argues that it would still be
serving the needs of most Medicaid recipients if it denied coverage of
CCTVs.  DSW’s position is untenable.

States may restrict coverage as a matter of fiscal necessity.  See
Alexander, 469 U.S. at 303 (restricting coverage because of fiscal
necessity permissible provided consistent with recipients’ best interest);
see also Curtis, 625 F.2d at 652 (restrictions permitted where services

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met needs of most recipients because restrictions consistent with
medical necessity).  In this case, however, the Board found that without a
CCTV Lorraine Brisson would require full-time, Medicaid-covered nursing
care.  It is uncontested that a CCTV would cost as much as 123 hours of
nursing care and that the CCTV would remain useful for a much longer period
of time.  DSW cannot credibly maintain that coverage is too expensive where
providing a CCTV would be fiscally expedient and would maintain the
recipient’s ability to live independently.  See 42 U.S.C. § 1396; Beal, 432
U.S. at 453 (Brennan, J., dissenting) (state cannot justify “medical
necessity” restriction as protecting fiscal interests, where restriction
ultimately causes greater expenditures).

Finally, DSW argues that the Secretary’s interpretation of the State’s
Medicaid Rules is entitled to deference.  The relevant issue, however, is
not the Secretary’s interpretation of the State’s Medicaid Rules, but
whether such interpretation is contrary to federal law.  See Bacon v.
Lascelles, ___ Vt. ___, ___, 678 A.2d 902, 905 (1996) (policy
justifications for deference, such as agency expertise and familiarity with
purpose of regulation, missing when agency not interpreting its own
regulation).  DSW’s argument is without merit.

Reversed; the order of the Human Services Board is reinstated.


Associate Justice