A district court must decide whether Colorado’s limits on in-home nursing care for its Medicaid program satisfy federal regulations, the Colorado Court of Appeals has ruled.

“For the Board’s sixteen-hour-per-day [private nursing] rule to survive, the agency must prove by a preponderance of the evidence that the rule meets the medical needs of most eligible Medicaid recipients,” wrote Judge Terry Fox for the three-member panel in an Oct. 1 opinion.

Armando Morris suffered from an array of serious medical conditions, eventually requiring constant supervision and ventilator assistance 24 hours per day. Colorado’s Department of Health Care Policy and Financing, which administers the state’s Medicaid program, approved Morris for private duty nursing services while he was 21 or younger.

In 2017, Morris reached his twenty-first birthday and the agency decided it would reduce his nursing services to 16 hours per day from 24. His mother, Julie Morris, appealed the decision. (Armando Morris died during the legal process.) An administrative law judge upheld the HCPF’s move, finding no authority to contest the agency’s ruling.

A Denver District Court judge agreed, finding the Medical Services Board at HCPF could lawfully make rules about nursing services, and that no conflict existed between the rule and Colorado statutes.

The federal government sets requirements for the Medicaid program for states to follow, but Colorado law directed HCPF to establish eligibility for nursing services. The purpose is to “keep expenditures within approved appropriations,” which is allowed under federal statute.

“There is no logical conflict between a statute that prohibits 24-hour care and a regulation that limits care to 16 hours per day,” said Joan Smith, representing the attorney general’s office, at an oral argument before the appellate panel. “This case is not about depriving anyone of healthcare services.”

In evaluating what the General Assembly requires — that private nursing services are only available to “the extent medically necessary” —  Claire Dickson, an attorney representing Julie Morris, argued that the intent is to place a ceiling on what Medicaid covers.

“The words ‘only’ and ‘to the extent’ taken together prohibit the department from providing individuals private duty nursing services beyond that which is medically necessary, but it doesn’t remove the floor,” she said. “It doesn’t allow the department to cap the benefit at an arbitrary number without regard to medical necessity.”

“If we accept appellant’s version of the statute,” countered Smith, referring to Julie Morris, “there is essentially no limit on services at all….Appellant wants to read the statute to say ‘up to 24 hours.’ But if read it that way, there’s really no limit on the benefit in the statute at all.”

Fox agreed with her in the court’s ruling that “The plain meaning of these phrases is to direct HCPF to limit the scope of PDN eligibility, not to guarantee it.” Combined with a provision allowing 24-hour care in special circumstances, the panel upheld the agency’s general rule preventing payment for around-the-clock supervision.

Dickson still contended that “our argument primarily is that the PDN statute itself does not allow the department to disregard medical necessity in making determinations about the amount and scope of a service that somebody receives,” she told the panel.

Fox acknowledged in the opinion that while there was no definition of medical necessity, “we read the statutes together to mean that an individual needing twenty-four-hour care may only receive twenty-four-hour PDN services as a special circumstance and for a limited time.”

However, federal rules deem a Medicaid service sufficient when it provides for the medical needs of most eligible individuals. At oral argument, Fox questioned Smith following a statement that the burden was on Julie Morris to show the 16-hour benefit was insufficient.

“What authority is there to place the burden on the appellant as opposed to the government who has the information?” she asked.

“We have no facts in this case to even discuss this issue,” Smith responded.

Consequently, the panel returned the case to the district court and ordered it to consider evidence about whether the 16-hour-per-day rule is sufficient by that measure.

The case is Morris v. Bimestefer.