Re: [MedicaidforHDOT] TO and the group

[Guest guest]

> I spoke with you the other day. After speaking with you I have

>contacted several other attorneys here in Texas along with a few from other

>states. There are under the impression that your case has been overturned

>again. Therefore they are denying cases for Hyperbaric Therapy for Medicaid.

>She said she spoke with the attorney handling your case a Rosetti.

>From my understanding he told her the case was not written in stone. They had

>thrown out some very substantial evidence that was in your favor. IM

>enclosing her number with this email so you can contact her. I tried to

>convey our conversation to her with no luck. Her name is Elise and

>her phone Number is 214-630-0917. She is with Advocacy Incorporated her in

>Texas.

>

> I hope you don't think IM trying to discredit you IM not IM just

>telling you what is being said by attorneys. This was not only told to me but

>another parent that is trying to get coverage.

>

Darin,

Thanks for your post. I'm more than happy to clear up the confusion. This

will something of a lesson in law, but it seems like a lot of the purpose

of this list is to give folks an understanding of the the EPSDT statute.

It's important to remember that every state is free to administer their

state Medicaid program however they want. And just is each state Medicaid

program is different, so too each state is also free to set up their court

system however they want as long as it does not violate

constitutional/federal law.

In Georgia everything seems to be a pain in the rear; however, in other

states this is not the case. Some states have a system in place that is

" friendly " to pediatric health issues and/or Medicaid issues.

In our case before the Administrative Law Judge (the ALJ), we brought in

Harch as our expert witness. Dr. Harch is arguably North America's

foremost expert in treating pediatric brain-injury with HBOT. On the other

hand, the state of Georgia also brought in two expert witnesses--both

pediatric neurologists.

The ALJ made the decision and denied HBOT to Jimmy based upon the testimony

of the neurologists. Evidently he did not believe the testimony of Dr.

Harch. There are probably a few reasons for this:

1. Dr. Harch is not a neurologist.

2. Dr. Harch is not a radiologist either, therefore because he lacks

documented credentials of expertise it's very " easy " to discount his

testimony.

3. Perhaps even harder for the ALJ to believe was the concept that the two

pediatric neurologists don't know anything about brain-injury. It's quite

evident that they know a lot about *managing* a brain-injury, but they

don't know much of anything about either the cause or the way to go about

fixing/repairing a brain-injury (which every parent here can attest).

Swallowing #3 above requires a big bite from the ALJ, which he just

couldn't bring himself to do, perhaps because he could have lost his job. I

don't know.

Now, also working quite heavily in the state's favor was the fact that they

had used the incorrect criteria when reviewing our request. Prior to the

ALJ hearing, we were denied three times for three different reasons:

" Based on the information available, our physician reviewer is unable to

determine the medical appropriateness of the requested services. There is

no documentation from the Undersea and Hyperbaric Medical Society to

support the use of Hyperbaric Oxygen Therapy for this diagnosis. "

--from the first Georgia Medicaid denial letter, dated May 23, 1999.

" Our physician panel has determined that HBOT in Cerebral Palsy is

experimental/investigational and is not a generally accepted practice at

this time. "

--from the second Georgia Medicaid denial letter, dated November 30, 1999.

" Based on this review the original decision has been upheld for the

following reason: THERE IS NO SCIENTIFIC DATA TO SUPPORT THE MEDICAL

NECESSITY FOR HBOT IN THIS CASE "

--from the third Georgia Medicaid denial letter, dated January 12, 2000

(capitalization/emphasis original to denial letter).

We lost before the ALJ. We appealed to Dekalb County Superior Court. On

October 11, 2001, the Dekalb judge overturned the December, 2000 ALJ

decision.

The Dekalb decision had two parts.

First, the judge found Georgia Medicaid was not in compliance with

Paragraph 5 when they evaluated our request. Georgia Medicaid had not

evaluated HBOT to see if it was " necessary to correct or ameliorate "

Jimmy's brain-injury. Instead, once they got Neubauer on the phone and got

him to say that HBOT for cp was experimental and investigational, they had

their reason for denial--based on the mistaken belief that Georgia Medicaid

does not have to pay for anythingthat could be construed as " experimental

and investigational. "

Second, the Dekalb judge overturned what's called the " Findings of Fact, "

i.e., the finding by the ALJ that the testimony of the neurologists was

" fact. " The Dekalb judge overruled the ALJ and essentially declared the

neurologists to not be expert witnesses--which they're not, primarily

because (a) they don't know anything about High-Dosage Oxygen Therapy and

( because they've never treated pediatric brain-injury with HBOT.

When the State of Georgia appealed the Dekalb decision to the State court

of Appeals, the State Appeals Court came back with a " split decision. "

Sort of.

The November, 2002 decision by the Georgia State Court of Appeals ruled

that all three of the reasons for Georgia Medicaid's denial of HBOT were

illegal. They were against the law. The Appeals Court ruled that neither

Georgia Medicaid nor the ALJ reviewed our request looking to see if HBOT

was " necessary to correct or ameliorate " Jimmy's brain-injury.

So the case will be sent back down to the ALJ and the ALJ must now decide

if hyperbaric oxygen is " necessary to correct or ameliorate. " The ALJ made

his original decision based on what was in the Georgia Medicaid plan.

The plan has now been thrown out the window when it comes to reviewing

EPSDT reimbursement requests.

The split.

The Georgia State Court of Appeals ruled that the Dekalb judge did not have

the legal authority to throw out the testimony of the pediatric

neurologists--even if they're wrong. It's a jurisdictional thing. If

nothing else this will give the neurologists another chance to save face

when we go back for round 2 with the ALJ.

In addition to bringing Dr. Harch back I am also hoping to bring in a

neurologist who utilizes hyperbaric oxygen therapy as part of their

practice. If anyone has suggestions, please let me know.

mailto:dfreels@...

Also, because this ruling came from the Georgia State Court of Appeals,

this means that in the 49 other states, any and every time parents of a

brain-injured, Medicaid-recipient child ask for Medicaid reimbursement of

hyperbaric oxygen, all 49 state Medicaid agencies must review those

requests by asking " is Hyperbaric Oxygen Therapy necessary to correct or

ameliorate pediatric brain-injury? "

It is now illegal to deny HBOT for these reasons:

1. " experimental and investigational "

2. " not medically necessary "

3. " not the standard of medical practice "

This is absolutely huge. HUGE.

HUGE!

There are now nearly 450 members of the listserv. A lot of

parents and a lot of professionals, who need to be working together to

request this in their states. Please don't just wait on our case to get

settled. Everybody needs to jump in and put in a request and pursue this.

You don't necessarily need a lawyer. Look at what happened in Colorado.

Supermom and son won on their own.

While the legal system in Georgia may be a pain in the rear, it's going to

be easier in other states. Wisconsin is a good example. They've thrown in

the towel, but a Wisconsin parent or two has got to get in to their

hospital administrator and explain how they can provide off-label

hyperbaric oxygen to a brain-injured child.

It's quite possible that when we go back through round 2 with the ALJ we

could lose again. If so we'll probably go straight to federal court, and

that's when we can bring in documentation of what other state Medicaid

agencies are doing. The more documentation we have, the more sway that will

have with the federal judges.

That's why it is so important that parents in every state need to be asking

for this, and with the November, 2002 Georgia Appeals Court decision, those

requests have more weight than ever.

One other thing. A few days ago I contacted the home office--the Centers

for Medicaid and Medicare Services (CMS). I posted that communication here

via a " bcc: " post. I think it's important that everyone read that and

understand what it means. This is just another example of how the

bureaucracy of government has blocked our children's access to the

healthcare services they really need.

I'll repost it.

Please ask for Medicaid reimbursement, and let's change the the standard of

medical practice for our children.

Together we can make a difference.

Separately we may never make a difference.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

" For everyone who asks receives; he who seeks finds; and to him who knocks,

the door will be opened. " [Luke 11:10]

Freels

2948 Windfield Circle

Tucker, GA 30084-6714

770/491-6776 (phone and fax)

707/220-7224 (efax, sends fax as email attachment)

mailto:dfreels@...

http://www.freelanceforum.org/df

[Guest guest]

>Ed yes I understand your point. Reread my post and see what the problem is.

>The fact is that no state is going to use that case in court that I have

>found so far. I have called several States and they say this was an Isolated

>case. It still has final stages to go through so therefore the case is not

>usable in court. The point IM trying to make is the one case we all were

>counting on to help us is still pending according to the attorneys. These are

>not all free attorney's I talked to. I spoke with several. They all say we

>need something more concrete to handle these types of cases. That is why I

>gave the number to talk to the attorney to see if he can straighten it

>out.

>

>Darin

>

Darin,

The law is already on the books. The government has already done most of

its job. It is now up to us to take advantage of Paragraph 5. While Georgia

has been a pain, other states are different and it's quite possible--even

likely--that a Medicaid request in another state will be automatically

approved.

Even in Texas.

HB 1676 has no impact on the Medicaid law for children. Even better, when

Texas Medicaid does reimburse, then that will open the door for

reimbursement under 1676.

Florida has already said they will not deny HBOT to a brain-injured child,

but the treatment has to take place in a hospital. Well, a hospital in Fort

Lauderdale--under court order--was forced to provide off-label hyperbaric

oxygen to a brain-injured child.

Somebody in the Fort Lauderdale/Broward County area has got everything they

need to access HBOT for their child.

Remember too that the vast, vast majority of government employees and

insurance people too, they really do want to help our children. Right now

they're doing what they can under the belief that they are doing all they

can.

We happen to know different, but we have to educate, to teach. Once they

see how hyperbaric oxygen works they will all quickly endorse it--even if

the neurologists won't.

I would encourage you to recruit Medicaid parents in Texas to request HBOT.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

" For everyone who asks receives; he who seeks finds; and to him who knocks,

the door will be opened. " [Luke 11:10]

Freels

2948 Windfield Circle

Tucker, GA 30084-6714

770/491-6776 (phone and fax)

707/220-7224 (efax, sends fax as email attachment)

mailto:dfreels@...

http://www.freelanceforum.org/df

[Guest guest]

Darin,

Technically, they could overturn any case (like an obviously guilty mass

murderer who gets off because of a subtle technicality). That doesn't mean

that a murderer did not commit a murder, or that there is no law against

committing murder. Rather, there is a technicality in the processing of

the case that tainted the end results and interfered with the process.

But, nothing changes the fact that the Federal Court and the Appeals Court

agreed with the previous findings in other courts that Federal Medicaid Law

requires HBOT treatments be reimbursed by state Medicaid programs

(Medi-Cal) to eligible recipients under the age of 21 under early and

periodic screening, diagnostic, and treatment (“EPSDT”) services 42 USC

§139d (5) “to correct or ameliorate defects and physical and mental

illnesses and conditions discovered by the screening services, whether or

not such services are covered under the State plan.” Freels v.

Commissioner, Georgia Department of Community Health, Division of Medical

Assistance; Superior Court of Georgia, confirmed by Court of Appeals of

Georgia; citing the department must comply with the applicable law (Silver

v. Baggiano, 804 F2d 1211, 1215 (11 Cir. 1986)) and they must provide those

services under the program (Tallahassee Mem. Reg’l Med. Ctr. v. Cook 109

F.3.d 693, 698 (11 Cir. 1997).

Thus, they can " say " well it is, or will be, or could be " overturned " but

all courts have agreed with the main issue of these kids are covered

regardless of state law. The politicians here in California have not

denied this, and they seem to be embracing the issue by backing further

economic review of my proposed law.

Always, Warm Regards,

Ed Nemeth

At 11:27 PM 2/25/2003 -0500, you wrote:

> I spoke with you the other day. After speaking with you I have

>contacted several other attorneys here in Texas along with a few from other

>states. There are under the impression that your case has been overturned

>again. Therefore they are denying cases for Hyperbaric Therapy for Medicaid.

>She said she spoke with the attorney handling your case a Rosetti.

> >From my understanding he told her the case was not written in stone.

> They had

>thrown out some very substantial evidence that was in your favor. IM

>enclosing her number with this email so you can contact her. I tried to

>convey our conversation to her with no luck. Her name is Elise and

>her phone Number is 214-630-0917. She is with Advocacy Incorporated her in

>Texas.

>

>I also wanted to let you guy's know as far as the Texas house bill they are

>trying to say that Stroke and Cerebral palsy are not acquired brain injuries

>and will not fall under the house bill 1676. Now we all no that is not how

>the bill was written or intended. However they are classifying these as birth

>injury's and will not be covered under house bill 1676. TDI here in Texas

>also say's the same thing. Now we are working on this. Me and e Creacy

>are going to Austin to get this all resolved as soon as we can. e is

>very busy and her time is tooken up quite a bit. We all need to pray for her.

>She is awesome in this field advocating for this therapy. We should all take

>her hat off to her. She has a way of opening door's that no others can. She

>is the largest for runner in this field today. Advocating for this therapy.

>She never asks for credit, she just jumps in full force and does what need's

>to be done.

>

>We will keep you all updated on what happens. There is an opposition here

>that is taking place we have to fight. We just recently heard that Wisconsin

>Medicaid will cover HBOT however there is no clinic there that will take CP.

>or brain injury. Now isn't this amazing. The states that have no chambers

>that will treat will say they will because they no there is no chamber that

>will treat. The ones that have chambers that will treat for CP. and brain

>injury will not pay because they know there is a chamber that will treat. I

>hope you all can see what is happening here.

>

> I hope you don't think IM trying to discredit you IM not IM just

>telling you what is being said by attorneys. This was not only told to me but

>another parent that is trying to get coverage.

>

>Will keep you informed

>

>Darin

>972-427-8825

>

>

>

[Guest guest]

OK now that was my hole point. IM not trying to be a pain in the rear. What

IM trying to tell everyone. Yes, they cannot deny because of experimental or

Investigational. However they can fight the issue at hand which is what they

are doing to so many. Your case helped yes it did. However attorneys are

denying cases across the US. They see what happened in this case in fact the

comment was made by an attorney that when you go before the Administrative

Law Judge again you probably will be denied then, you could or couldn't.

This is a landmark case. People are doing just what you asked. There applying

for coverage under Medicaid. Which all are being denied because it is

experimental or investigational? Some are being denied for the simple reason

it is not covered.

I guess what IM trying to say it is time for a class action if we can find a

Lawyer that will take a Federal Case. Heaven forbid we rally outside of

Washington to prove a point. I've tried to get that organized for sometime.

None want's to do that. So that is out of the question. If it doesn't come to

them they don't want it.

We need to stop looking at silver thinking it is gold. It is time for action.

IM not saying what everyone has done is not great. What I am saying is if it

doesn't solve the problem we need to do something else. People need coverage.

We have to do something. The government is where we need to go now. We have

to rally or go straight to the top. Ed I think what you are doing is great.

However you seen what has happened with Texas House Bill 1676 they turned it

upside down. I think that can happen to you as well. That is why you need

someone screaming at the federal government as well as what you are doing.

If anyone is offended by what IM saying let me know. Hey IM a realist here.

Though these things are all good the problem still remains. Yes, has a

good case. Yes, Texas has a house bill 1676. Yes, Ed is getting somewhere in

California. But boy, hey has this solved the problem. NO NO NO NO we are

still faced with the issue that this might or might not be covered for one or

the other. We have to go to the Federal Government we need to Rally but as we

seen before people don't want to do what it is going to take it will have to

come to them.

IM sorry for being so bold this morning. IM tired as you are as well all of

you. But I believe in HBO and I now it works. I want what is best for every

child out there. I know what has to be done and in July IM going if I have to

go alone. I told you all this here while back after this years Symposium IM

going to Washington to rally for HBOT.You wanna go OK if not OK.

Darin

[Guest guest]

Ed yes I understand your point. Reread my post and see what the problem is.

The fact is that no state is going to use that case in court that I have

found so far. I have called several States and they say this was an Isolated

case. It still has final stages to go through so therefore the case is not

usable in court. The point IM trying to make is the one case we all were

counting on to help us is still pending according to the attorneys. These are

not all free attorney's I talked to. I spoke with several. They all say we

need something more concrete to handle these types of cases. That is why I

gave the number to talk to the attorney to see if he can straighten it

out.

Darin

[Guest guest]

This is being done however they are being denied. When they seek an attorney

they tell them there is nothing that can be done. In one case they referred

to your case saying that this case was overturned that is why I gave you the

number to call them since you are the father of that child to speak with them

to tell them the case hadn't been overturned. I also wanted you to talk with

them about the findings that they can no longer deny because of experimental.

I guess IM not getting my point across. Every state I can think of is having

the same trouble. They can't get representation. No attorney will touch the

cases. If they do touch the cases they want outrageous fee's that noone can

afford unless your Bill Gates.

excuse for being crude. But yes someone in Florida does that have

information. But with all do respect that person is not Dr. Wise either it

would be very hard for another parent to seek that same treatment. I have

talked with a parent just yesterday that can't get HBOT in Florida for there

child. Why? Because they don't have the money it take's to hire an expensive

attorney. Attorney's are wanting thousands of dollars to even look at these

cases. What we need it something concrete to help these folk's a solid case.

A very solid case.

We need to stop telling these people they can get it paid for by Medicaid

when they can't without legal battles. If we don't tell them there is going

to be a legal battle then we are lying to them.

Getting these parents hopes up is not right. It is not what we should be

doing we should tell them there is a way but it will take a legal battle to

get it covered.

Truthfully have you seen any reimbursement yet that you can provide to

anyone. A check stub. Yes, there have been a few that have very few. Medicaid

without it being Kaiser or some other company has not paid yet to my

knowledge. Not Medicaid without a name attached to it.

I commend you highly for what you are doing I really do. But this is

more than can it be done. It is most of the parents on Medicaid will never be

able to hire an expensive attorney like Dr. Wise or some of the others and

Medicaid knows that. Help me and the others on the group what have we done.

You have an others and I have made a loud voice and opened a door that people

cannot access. Reality is hard to face at times but reality is the truth and

the truth is what counts. You show me one person that can get it based on

what you tell me. I will provide that person to you and you work with them.

There in Florida and has the perfect case and is being denied you help them

show us how easy it is for these people to do this. I for one have followed

every rule every piece of paper given to me and tried to help so many and it

hasn't worked show me were IM wrong and I will drop this conversation.

Darin

[Guest guest]

IM not disappointed in the case at all with what happened. What IM

frustrated with is the fact we have so many doing what we are telling them to

do with no result. See we have the time many do not have that time to devote

to this. I feel sometimes as if I have gotten a medical degree. I tell you I

watch everything they do now with my family and my daughter. There are so

many things that Dr.s do these day's that are crazy. Surgery should be the

last option, In this day and time it is the first option. I also see many

drugs approved then recalled. Don't get me wrong I think you have a great

case, it is just not going to be the real kicker for many out there that need

help.

IM working on getting that information on the family from Florida. OK what

about this I have another family that has BlueCross Blue shield of Texas that

is bound by Texas house bill # 1676 that denied the patient coverage. Now

here is the real kicker they paid for 190 treatments. They submitted for 40

more and a new claims handler got o hold of it and denied it went to 3 levels

of appeal now they are denying it saying that CP is a birth injury not an

acquired brain injury so they are not covered under house bill #1676. However

the Dr. Reported in his letter to the insurance company that the child had an

acquired brain injury. OK now Bluecross contacted TDI Texas Department of

Insurance and they tell Blue Cross they do not have to cover it because it is

a birth injury. Now how can TDI make that call. However no Attorney will take

the case because TDI Texas Department of Insurance say's that it is a Birth

injury.

See I know you think these guy's in the government on our side but however

they are not. They are turning the wording around in every case. They have no

intention of ever covering this. This is like the cure all for many illnesses

and they don't want that.

we can fight we have the rive many parents don't know how to fight that

is why we need to fix the system to where they don't have to. Many do not

have the money to fight. Others have 24 hour a day care and can bairly do for

themselves because of the care they have to provide to there children.

For instance I can tell you there are a number of families here in Texas that

have very critical children that can get no help at all. They can't even get

the local assistance programs because they make 3 to 4 dollars a month to

much so they have to pay out of pocket for so many things. This is about more

than HBO. We have to get HBOT covered this would solve many issues we have

been fighting for years. I feel as if I stay on the computer fighting and

researching all the time. If IM not on here IM on the phone trying to help

with what little bit of knowledge I have parents that need it.

Another thing that really bothers me is they say how do we know that the 35%

improvement on the scan that Katy had is doing her any good. When I show them

the bill's have reduced she is now going to school and has no infections and

can say three words, no seizures and so forth. That is not enough. So see

they have no interest they are trying to pacify us. IM sorry IM a realist

here and I cal it as I see it. What you see is what you get with me. I call

it as I see it. I offend many like that but I have to.

we all know how House bill #1676 was supposed to play out we have the

documents and the testimony. Look what they have done to that bill. I pray

for Ed I hope he can get his through without it being butchered. But I don't

see it happening. Someone has or need's something that is using him to get

it. I just feel that. I think there using this to get what they need then to

hell with it like they have done HBO 1676.

Darin

[Guest guest]

Tiberio,

Dr. W. Stuppy has manages Crohn's patients and referred some of of these to

the HBOT clinic of Santa with good results. I believe the patients

must be properly classified and treated with anti-biotics along with HBOT

to obtain the best results.

(Good to hear from you again!)

Ed Nemeth

At 03:34 PM 2/26/2003 -0500, you wrote:

>Greetings my good doctor

>Do you know of anyone that has been treating Crohn's (Krohn) disease with

>HBO?

>Thank you

>

>Tiberio Faria

>a believer in

>Miami - FL

>

>

>

>

>_._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._._.

>Unrestricted downloads of 50+ pdf files on HBOT efficacy

>medicaid/files/ ,

>HDO-documentation/files/ and

>http://www.drneubauerhbo.com/papers.htm

>

>Download your state EPSDT program

>http://www.hcfa.gov/medicaid/stateplan/Map.asp by doing a search on the

>word " ameliorate " . State Medicaid websites

>http://www.medi-cal.ca.gov/RelSites_Oth_States.asp . Medicaid waiver

>programs: http://www.geocities.com/HotSprings/Villa/1029/medicaid.html

>

>Find a hyperbaric clinic http://www.netnet.net/mums/hbolist.htm

>

>HBOT can save billions of dollars and millions of heartaches. Subscribe to

> by sending a blank email to

>mailto:medicaid-subscribe

>

>Unsubscribe? Click here mailto:medicaid-unsubscribe .

>

>

[Guest guest]

Thank you will do it.

[Guest guest]

I reformatted the letter that Dr. Stroller wrote to fit Texas Medicaid

and Chip's and faxed it to over 15 US. Congressmen here in Texas. IM still

looking up more fax Numbers to fax to. I will be faxing to all of them that I

can find then I will move on to the Senators.

Thanks Darin

[Guest guest]

I will do that thank you. your great I appreciate it.