Ashley Milano  |  October 11, 2016

Category: Consumer News

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NY Health Department Denied Speech DevicesThe New York State Department of Health wrongly denies speech-generating devices and access aids to Medicaid-eligible children and adults who need these devices to treat their expressive communication disabilities, a proposed class action lawsuit says.

Speech-generating devices or SGDs have typically been covered and provided as Medicaid benefits since the1980s.

There are currently 100-200 individuals in New York state who seek an SGD from Medicaid each year.

However, the NY Health Department has started to deny SGD requests on the basis of a policy lacking objective standards and consistency in determining SGD eligibility, the lawsuit states.

This standard, according to minor plaintiffs BZ and JT and their parent/guardian representatives, is in violation of federal law.

BZ, a 5-year old girl, and JT, a 14-year old boy, were born with cerebral palsy and spastic quadriplegia. As a result of these conditions, the children have a motor speech disorder that renders them unable to speak and effectively communicate their most basic needs, thoughts, or feelings.

Without the recommended SGDs, they are prevented from “communicating their most basic needs, thoughts or feelings, such as telling a medical provider where they’re in pain,” the lawsuit states.

The Speech-Language Pathologists who evaluated BZ and JT determined that, based on their multiple disabilities, they required an SGD with eye gaze interaction capability to treat their communication impairments and to enable them to communicate effectively.

But after a brief trial period in which BZ and JT were able to use these devices to communicate, the NY Health Department denied the minor plaintiffs’ access to the SGDs, stating that both BZ and JT did not demonstrate “functional and proficient” use of the requested devices.

According to the proposed class action lawsuit, the NY Health Department applies a “functional and proficient” SGD eligibility standard to deprive plaintiffs and others of medically needed SGDs, despite a clear demonstration that the requested device improved their communication to a functional level not achievable without the SGD.

“Currently, defendants have no objective standard for judging whether someone meets the defendants’ functional and proficient standard; defendants reach different conclusions in similar circumstances, finding that identical criteria such as ‘75% accuracy’ both does and does not demonstrate that a person is ‘functional and proficient’ in the use of an SGD,” the complaint states.

Specifically, the plaintiffs challenge the Department’s use of an improper standard as a violation of their rights conferred by the Medicaid Act, which includes the right to receive covered Medicaid services, as well as a violation for the Americans with Disabilities Act and the Rehabilitation Act of 1973.

The plaintiffs are seeking a declaration that the NY Health Department’s use of its “functional and proficient” standard is unsupported by federal and state Medicaid laws, the ADA, and Section 504 of the Rehabilitation Act.

Additionally, they are requesting preliminary injunctive relief that awards them the SGD devices necessary for them to meet their daily communication needs, along with permanent injunctive relief that compels the NY Health Department to abandon its use of an alleged arbitrary and unlawful standard and to adopt and apply standards that comply with federal law.

Both BZ and JT bring this action on behalf of themselves and as representatives of a proposed Class of all past, current, and future New York State Medicaid recipients with severe communication impairments who need an SGD but were denied the requested device on the Department’s claimed basis that they did not demonstrate “functional” or “proficient” use of their SGD.

The minor plaintiffs are represented by Leslie Salzman, Jennifer Hwang and Samantha Smith of Cardozo Bet Tzedek Legal Services, Toby Golick of Yeshiva University’s Benjamin N. Cardozo School of Law and Lewis Golinker of the Assistive Technology Law Center.

The New York Health Department Speech Aid Denial Class Action Lawsuit is BZ, et al. v. Zucker, et al., Case No. 1:16-cv-05593, in the U.S. District Court for the Eastern District of New York.

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