CLPER Journal

Medicaid Law and Lead Hazard Interim Controls

By Myles O'Malley

PLEASE NOTE: This article is copyright © 1999 CLPER and is not to be quoted or used without attribution

CLPER's Program

CLPER's principle goal is the application of temporary lead-hazard controls (interim controls) to the residences of Medicaid-eligible, lead poisoned children as a reimbursable medically necessary expense. In most states and cities in the US, once diagnosed with elevated blood lead levels, children are left to languish in their contaminated environments while state and local health officials pursue a judicial path to court ordered, full scale, permanent lead based paint abatement of their residences. In many instances children undergo chelation therapy only to be returned to their contaminated residences where their blood lead levels become elevated all over again.

Although state and municipal laws requiring abatement are necessary and must be supported, they seldom are able to subsidize the high cost of lead abatement, often in excess of $10,000 per unit. Thus children, especially poor children, remain in contaminated residences while the wheels of justice grind slowly on. CLPER is designed to give immediate relief to such children. The following is a review of current Medicaid law as it pertains to eligible lead poisoned children and their right to the application of interim controls to their residences as a medically necessary expense, covered by Medicaid.

Medicaid – An Overview

Passed in 1965 under Title XIX of the Social Security Act, Medicaid is the nation's most important publicly financed program for providing health care and long term support to specific groups of low income people. A means tested, entitlement program, Medicaid is jointly funded by state and federal governments and is administered by the states. Federal matching payments are made to the states based on the state's per capita income. The federal share makes up 50 to 80 % of Medicaid expenditures. In 1996, 41.3 million people- more than 1 in 7 Americans - were enrolled in Medicaid at a cost of $155.4 billion.

Poverty does not automatically qualify an individual for Medicaid. Only persons who fall into particular "categories" such as low-income children, pregnant women, the elderly and people with disabilities are eligible. There are large state variations in Medicaid coverage. This is because states set their own income and asset eligibility criteria, albeit within federal guidelines. Over the years, Medicaid has increasingly been used to expand coverage to the low-income population. Despite these efforts Medicaid covers only half of poor Americans.

Medicaid and Children

Children comprise 55 % of Medicaid's diverse population, adults 22.3%, the blind and disabled 16.2 % and the elderly 9.9%. Although representing the highest percentage of beneficiaries, children receive only 15.5 % of Medicaid expenditures. Because of their use of acute and expensive long-term care services, the elderly and disabled account for 64% of expenditures. On average each child receives $ 1000.00 in benefits while the average Medicaid expenditure per recipient is $ 3400.00.

In the early 1990's Medicaid enrollment increased substantially in large measure due to expanded coverage of low-income pregnant women and young children. In recent years, however, enrollment has been declining as a result of changes in welfare and immigration policy. Many states have misinterpreted loss of Welfare cash assistance to mean loss of Medicaid benefits.

Children's Health Insurance Program

In 1997, Congress created the Children's Health Insurance Program (CHIP) intended to expand coverage of uninsured children either through Medicaid or a separate program. It allocated to states 24 billion over 5 years and $ 39 billion over 10 years. To date only 1.3 million children have been enrolled in the new program, leaving more than 10 million without coverage. Recent federal and state efforts should result in a marked improvement in CHIP enrollment. See the NY Times, August 7, 1999. [If you seek free or low cost health insurance for children call toll -free 877-KIDS-NOW (877-543-7669) and on the Internet, at <> or <>.

Medicaid and Lead-poisoned Children

In 1998, at the request of Representative Henry Waxman, the Government Accounting Office (GAO) <>, reviewed the National Health And Nutrition Examination Survey (NHANES) III data on lead poisoned children and Medicaid eligibility. NHANES data showed that in the U.S. there are approximately 930,000 children with blood lead levels in excess of 10mcg/dL, a level the Centers For Disease Control considers harmful, and that Medicaid children represent about 60 % of these 930,000. Most significantly, 83% of those children who had blood lead levels (BLLs) in excess of 20 mcg/dL, a level at which CDC recommends environmental investigation, case management and lead hazard control, are Medicaid eligible. The GAO report also established two important facts: first, despite Health Care Finance Administration (HCFA) regulations requiring Medicaid children aged 1 to 5 years be screened for lead poisoning, the majority of these children are not screened. Second, the report reiterated the fact that 23% of Medicaid eligible children remain uninsured as of 1996. The GAO report made specific recommendations to remedy Medicaid underenrollment.

The Case for Medicaid's Coverage of Interim Controls

For children up to six years Medicaid eligibility is triggered when their household income is 133% or less of the federal poverty level. Federal Medicaid policy for the screening of children for lead toxicity was established by the Omnibus Budget Reconciliation Act of 1989. This Act amended Title XIX of the Social Security Act, Medicaid's Section 1905 by adding (r), which defined "Early and periodic screening, diagnostic, and treatment services" (EPSDTS). Under (r)(1)(B)(iv), screening services are defined as "laboratory tests (including lead blood level assessment appropriate for age and risk factors). Under (r)(1)(B)(v), screening also includes "health education and anticipatory guidance." All Medicaid enrolled children are entitled to lead screening, and their guardians to health education and anticipatory guidance.

At present, it is generally recognized that Medicaid enrolled children with elevated blood lead levels (BLLs) are entitled to the following treatment services: 1. Periodic blood screening for lead toxicity, 2. Case Management if blood lead levels are 20mcg/dL or more or if two consecutive blood lead results are 15 mcg/dL, 3. Chelation therapy if ordered by a physician. The last two fall under the "Treatment" portion of EPSDTS. These three services are linked to the Center For Disease Control (CDC) publications cited below. Payment of these "treatment services" are authorized under Medicaid's EPSDTS Section 1905 (r)(5) which provides a definition of other EPSDT services not otherwise specifically defined:

Such other necessary health care, diagnostic services, treatment, and other measures described in section 1905(a) 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. [emphasis added]

To determine whether lead hazard, interim controls are covered under Medicaid, we need to look closely at what medical services are listed under Section 1905 (a). Case management of lead poisoned children is authorized under section 1905 (a)(19). Chelation therapy is authorized under section 1905 (a)(13) which reads:

other diagnostic, screening, preventive, and rehabilitative services, including any medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State Law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level. [emphases added]

Chelation therapy is a covered Medicaid expense, because in a particular diagnostic circumstances a physician has deemed it to be medically necessary for the treatment of a child. Physicians need to be aware that if in their professional judgement they consider the temporary reduction of lead based paint hazards necessary to prevent the continued poisoning of children, then the prescribing of such interim controls should be covered under Medicaid as a "remedial service." When we refer back to 1905(r)(5), we see that this coverage is not dependent on whether or not this service is covered under a State Plan.

It is also important for physicians to note that what has constituted acceptable lead poisoning treatment has been based upon CDC publications. From 1991 to 1997, physicians and local and state health officials relied upon CDC's, Preventing Lead Poisoning in Young Children to determine appropriate screening and treatment programs for lead poisoned children. In 1997, CDC published Screening Young Children For Lead Poisoning: Guidance for State and Local Public Health Officials, 1997. Both publications have been clear on the need for the reduction of lead hazards at a child's blood lead level of 20 mcg/dL and under some circumstances at 15mcg/dL. The CDC 1991 document states:

A child in Class II [that is, with a blood lead level of between 15-19 mcg/dL should receive nutritional and educational interventions and more frequent screening. If the blood lead level persists in this range, environmental investigation and intervention should be done.

A child in Class III [that is, with a blood lead level of between 20-44 mcg/dL] should receive environmental evaluation and remediation and a medical evaluation. Such a child may need pharmacologic [chelation] treatment of lead poisoning. [emphasis added].

The CDC 1997 publication is even clearer on the need for lead hazard control:

Comprehensive Follow-up Services, According to Diagnostic BLL

(From Screening Young Children For Lead Poisoning: Guidance for State and Local Public Health Officials, CDC, p.106)

BLL Mcg/dL
<10 Reassess or re-screen in 1 year. No additional action necessary unless exposure sources change.
10-14 Provide Family lead education

Provide follow-up testing

Refer for social services , if necessary

15-19 Provide Family lead education

Provide follow-up testing

Refer for social services, if necessary.

If BLLs persist (i.e., 2 venous BLLS in this range at least 3 months apart) or worsen, proceed according to actions for BLLs 20-44.

20-44 Provide coordination of care (case management)

Provide clinical management

Provide environmental investigation

Provide lead hazard control [emphasis added]

45-69 Within 48 hours begin coordination of care (case management), clinical management, environmental investigation, and lead hazard control.
=>70 Hospitalize child and begin medical treatment immediately. Begin coordination of care (case management), clinical management, environmental investigation, and lead-hazard control immediately.

The Cost to Medicaid of Applying Interim Controls at BLLs of 20 mcg/dL

NHANES III data indicate that in the U.S. there are approximately 930,000 children with BLLs =>10 mcg/dL. .4% or approximately 85,000 of these have BLLs => 20 mcg/dL. Since 80% of these 85,000 children would be Medicaid eligible, the number of residences Medicaid would be responsible for would be 68,000 assuming one lead poisoned child per residence. The cost of the application of interim controls will range between $2000.00 and $3000.00 per residential unit. The total cost to Medicaid should range then between $168 million and $200 million. Interim controls will include the following: dust remediation, paint stabilization, the topical application of encapsulants, reduction of friction surfaces, pre and post dust wipe monitoring, and environmental follow-up monitoring. The ultimate cost to society of treating the consequences of not remediating these residences has been estimated in the billions of dollars.

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