DHHS Decision to Cover Disposable Diapers for an Adult Due to Medical Necessity

July 2005

Emily Willis is a severely disabled young woman who suffers from spastic cerebral palsy and a seizure disorder as well as several other debilitating conditions. She is virtually non-verbal, has an aplastic diaphragm and is incontinent of both stool and urine. Because of Emily's inability to understand the need to relieve herself and her inability to communicate that need to her caretaker (her mother), the need for disposable diapers is crucial. When Emily turned 21, she was no longer eligible for disposable diapers through the EPSDT program. The Department issued her cloth diapers. Given Emily's situation, however, the cloth diapers were completely impractical. Not only was the number of diapers issued insufficient (approximately 13 were issued for the year even though Emily's diaper needs to be changed numerous times a day), but it was necessary for Emily's mom to run each diaper through the dryer twice after washing.

When the Department denied Emily's request for disposable diapers, it specifically did so on the grounds that she had turned 21, citing specifically to He-W 571.05 (a) (2). The Disabilities Rights Center then filed an appeal of this decision on Emily's behalf. During the trial, the Department conceded that disposable diapers were medically necessary for Emily. We presented the videotaped testimony of Dr. Charles Cappetta as well as the testimony of Emily's mother to describe in detail Emily's medical condition and the necessity for disposable diapers.

The crux of the case, however, rested with the legal arguments which were made. Although the Department moved to have the appeal dismissed because of Emily's age, the hearings officer denied the motion indicating that, in her opinion, the Department could not rely on an expired regulation to deny a person benefits. (He-W 571.05 is an expired regulation). We then presented several legal arguments including that the list of specific exclusions delineated in He-W 571.05(a)(2), including disposable diapers, violates the Medicaid statute and is in direct contradiction to a Dear State Medicaid Director letter dated September 4, 1998 because it failed to provide a meaningful opportunity for seeking modification of or exception to the State's pre-approved list. We further argued that the list of specific exclusions violated the Medicaid Law because it fails to provide an available process for seeking modifications or exceptions to all beneficiaries and limits any such modifications to a sub-class of the population (namely those under 21). There was national case law cited to support this position. It was further argued that the term "common medicine chest item" as used in the He-W was not properly interpreted to include Emily's medically determined need for disposable diapers. Finally, we argued that the Department's position in denying coverage for disposable diapers to Emily was contrary to the State Medicaid Plan which does not specifically exclude or limit coverage for medically necessary disposable diapers which is consistent with Federal Medicaid Law.

Prior to the Hearing Officer issuing a ruling, the Department reversed its original denial and agreed Emily was entitled to coverage for disposable diapers. Interestingly, although the Department conceded the medical necessity of disposable diapers for Emily during the hearing, it nonetheless stated in its written reversal that "even though she is over 21 years of age, the NH Medicaid Program has opined that in this instance, disposable diapers are medically necessary". This written determination appears to indicate that so long as medical necessity can be shown, coverage will be provided for disposable diapers regardless of age.

Important: This decision does not mean all adults who use diapers will now have those diapers covered under Medicaid.

While it is extremely doubtful that the Department will formally change its policy as to disposable diapers for those over 21, at least there is now precedent for individuals to look to when seeking such a determination. Obviously, it is critical for the medical necessity to be firmly established. As much of this documentation in as strong of terms as possible must be provided to the Department when seeking this service. It may be advisable to provide such documentation prior to a child turning 21 (for example 60 days before the 21st birthday) and the request made referencing the Emily Willis decision.

For further information, contact Disability Rights Center - NH at 1-800-834-1721


updated July 20, 2017