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ABLE and LAWO File Federal Complaint On Behalf of Ohio Premature Infants


MARCH 29, 2011

ABLE and LAWO File Federal Complaint On Behalf of Ohio Premature Infants

Toledo, OH – On March 28, 2011, Advocates for Basic Legal Equality, Inc. (ABLE) and Legal Aid of Western Ohio, Inc.(LAWO) filed a federal court complaint on behalf of premature infants in Ohio. The complaint alleges that the Ohio Department of Job and Family Services (ODJFS) illegally and arbitrarily places exclusions on federally mandated Medicaid coverage for the physician-recommended treatment for preventing illness caused by the Respiratory Syncytial Virus (RSV). The Complaint was filed in the U.S. District Court, Northern District of Ohio Western Division. Federal law requires Ohio's Medicaid program to cover Early and Periodic Screening, Diagnostic and Treatment (EPDST) services for Medicaid-eligible children and youth. Under federal law, EPSDT must include "necessary health care, diagnostic services, treatment, and other measures... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services..."

MARCH 29, 2011

ABLE and LAWO File Federal Complaint On Behalf of Ohio Premature Infants

Toledo, OH – On March 28, 2011, Advocates for Basic Legal Equality, Inc. (ABLE) and Legal Aid of Western Ohio, Inc.(LAWO) filed a federal court complaint on behalf of premature infants in Ohio. The complaint alleges that the Ohio Department of Job and Family Services (ODJFS) illegally and arbitrarily places exclusions on federally mandated Medicaid coverage for the physician-recommended treatment for preventing illness caused by the Respiratory Syncytial Virus (RSV). The Complaint was filed in the U.S. District Court, Northern District of Ohio Western Division. Federal law requires Ohio's Medicaid program to cover Early and Periodic Screening, Diagnostic and Treatment (EPDST) services for Medicaid-eligible children and youth. Under federal law, EPSDT must include "necessary health care, diagnostic services, treatment, and other measures... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services..."

The premature infants – and plaintiffs in this case – were born between the 32nd and 35th week of gestation and have either social or environment risk factors for developing RSV. Their treating physicians prescribed Synagis to correct or alleviate the risks and complications that may result should these children contract RSV. These complications include serious pulmonary complications requiring hospitalization, the onset of asthma, and, in some of the more serious cases, the possibility of death.

"Synagis is the only recognized and approved treatment by the FDA for the prevention of RSV for prematurely born infants when there is a medically accepted indication," says ABLE attorney and lead counsel Robert A. Cole. The drug is used to reduce the risk of an RSV infection or to make the infection milder. "The coverage denials by the Ohio Department of Jobs and Family Services are based on a policy and not on whether or not Synagis is medically necessary, violating federal law and basic due process protections," adds Cole.

ABLE and LAWO are co-counseling the case with the National Health Law Program (NHeLP), a national public interest law firm. According to Jane Perkins, NHeLP’s Legal Director, "The federal EPSDT provisions require developmental and health problems and risks to be detected and addressed as soon as possible so that costly hospitalization and chronic problems can be avoided and minimized. Because it participates in the Medicaid program, Ohio must adhere to these federal requirements."

RSV is responsible for the hospitalization of nearly 125,000 infants, and 177,000 adults age 65 and older and the deaths of approximately 14,000 persons in the U.S. In infants ages 0 to 23 months, the rate of emergency department visits for RSV was 64.4 visits per 1,000 children. Known risk factors for contracting RSV include premature birth, congenital lung or heart disease, low birth weight, higher density living conditions (including the presence of older siblings in a household), day care attendance, family history of asthma, contact with tobacco smoke, multiple births and exposure to environmental pollutants. Some evidence suggests that African Americans and other minorities may be at greater risk for contracting RSV.

The Plaintiffs seek prospective declaratory and injunctive relief ordering the Defendant to adhere to federal Medicaid requirements so that they and other Medicaid-eligible premature children will be able to obtain medically necessary Synagis coverage to prevent or reduce the risk of an RSV infection.