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Decision of Delaware Physicians Care, Incorporated ("DPCI") to not provide service

In re: DPCI ID# Redacted Redacted

Redacted, Appellant's father
Jennifer Gimler Brady, Esq., Counsel for Delaware Physicians Care, Incorporated
Dr. Philip Walder, Medical Director, Delaware Physicians Care, Incorporated
Desiree Dowling, Member Advocate, Delaware Physicians Care, Incorporated


Redacted (sometimes hereinafter "Appellant"), through her father, Redacted, opposes a decision of Delaware Physicians Care, Incorporated ("DPCI"), acting for the Delaware Medical Assistance Program ("DMAP"), to not provide her with a Serenity® brand incontinence pad ("Serenity Pads") or its equivalent.

DPCI contends that the requested Serenity Pads fail to meet the following medical necessity guideline:

Be the least costly, appropriate, available health service alternative and will represent an effective and appropriate use of program funds.

DPCI also contends that they provided a comparable and less costly alternative product and that the Appellant did not adequately test the alternative product provided.


By letter dated November 15, 2004, the Appellant requested a State Fair Hearing to dispute DPCI's failure to authorize an incontinence pad that was equivalent to Serenity Pads. (Exhibit 2).

On December 1, 2004, DPCI filed a State Fair Hearing Summary for this matter.

By certified letter dated December 7, 2004, the Appellant was notified that a fair hearing would take place in New Castle, DE on January 20, 2005. The hearing was conducted on that date in New Castle, DE.

This is the decision resulting from that hearing.


Pursuant to authority conferred by 31 Del. C. §§ 502 (5), 503 (b), and 505 (3), the Division of Social Services ("DSS"), Delaware Department of Health and Social Services, operates the DMAP to provide Medicaid benefits under Title XIX of the Social Security Act to certain qualifying individuals. DSS has contracted with DPCI, a managed care organization, to administer benefits under the DMAP. As an agent for DSS, DPCI is governed by the same rules, regulations, and principles that would otherwise control DSS's operation of the DMAP. In fact, this is explicitly required by regulation. See DSSM § 5304.3.

DPCI is a capitated managed care organization ("MCO") that directs, on behalf of the Division of Social Services, benefits covered under Title XIX of the Social Security Act. Redacted is a third party beneficiary of a contract between DPCI and the Division of Social Services. Ms. Waninger is a 24-year-old female diagnosed as microcephalic and epileptic.


Jurisdiction for this hearing is pursuant to §5304 and §5304.3 of the Division of Social Services Manual (DSSM). Under §5304:

an opportunity for a hearing will be granted to any applicant who requests a hearing because his/her claim is denied and to any recipient who is aggrieved by any action of the Division of Social Services. Only issues described in the notice of action sent to the appellant or issues fairly presented in the appellant's request for a fair hearing or in the Division's response in its hearing summary may be presented for the hearing officer's review at the hearing.

Section 5304.3 provides jurisdiction for a hearing of an adverse decision of a Managed Care Organization.


A determination of medical necessity involves a three-part test. First, the essential need for medical care or services that will provide a medical benefit must be considered. Next, the use of the services must be reasonably determined to effectuate some assistance or restorative value in the mental or physical condition of an appellant. Finally, it must serve those purposes so that an appellant may attain or retain independence or the capacity for self-care.

As a general foundation to the first portion of the definition, there are nine essential components, all of which must be met in order to determine that a service is medically necessary. That is, if any one of the nine (9) essential criteria is not met, the care or service is considered not medically necessary. Next, there are a series of five outcomes, only one of which has to be met to comply with the requirements of the overall definition. Only one of these outcomes must be reasonably determined to result from the requested care or service. This is true because it is impossible or very difficult to absolutely guarantee an expected outcome will actually occur. Operationally, those utilizing the Medicaid medical necessity definition must abide by the "reasonableness" factor when evaluating or adjudicating requests for care or service.


DPCI has identified one (1) of the nine (9) essential criteria under medical necessity guidelines as having not been satisfied, as support for its contention that the requested Serenity Pads are not medically necessary. Specifically, DPCI argues that Serenity Pads do not represent the least costly, appropriate, available health service alternative and does not represent an effective and appropriate use of program funds.

DPCI maintains that the issue in this case is whether a Member has the right to their choice of comparable health care alternatives. DPCI has authorized an alterative pad for Redacted and believe that Mr. Redacted has not sufficiently tested those pads to adequately determine whether or not they are comparable. Mr. Redacted maintains that this is not a brand issue, but rather an issue of whether DPCI has provided his daughter with a comparable alternative incontinence pad that works.

In this case, Desiree Dowling, Member Advocate for DPCI, testified that she became involved with the matter after being contacted by Mr. Redacted with respect to the incontinence pads. She testified that after attempting to identify an alternative incontinence pad for the Serenity Pads, she was able to find a supplier to provide incontinence pads made by Tena, a company that apparently owns the Serenity® brand. She further testified that at no time prior to the hearing did the Appellant's father advise her that the Tena pad had not worked (causing leakage) or that the Tena pad had caused any rash or other medical condition. In addition, she testified that Tena was comparable to the Serenity Pads and it was her understanding that the only difference between the Serenity Pads and the Tena pads was a plastic backing. Finally, she testified that the Serenity Pads are priced at more than double the cost of the Tena pads.

Next, Dr. Philip Waldor, DPCI Medical Director, testified that he is responsible for determining medical necessity issues on behalf of DPCI. He noted that the backing on the Tena pad is similar to that of an infant pad, and those other members of DPCI requiring the use of incontinence pads were using the Tena pads without problem. He also testified that at no point prior to the hearing had he been informed that the Appellant had either a leakage problem or medical condition that had resulted from her use of the Tena pads.

Finally, Mr. Redacted testified that there had been a change in suppliers that resulted in the need to obtain his daughter's incontinence pads from another source. He testified that he contacted DPCI and, for the most part, got the run-around about getting her new pads that worked. He testified that he had been sent diaper liners and other products that were not comparable to the Serenity Pads (Serenity Plus®) that his daughter had been using. When he contacted Ms. Dowling, she advised him that he had to use Sterling for his product, and that she advised him to check the website for a comparable product. Mr. Redacted testified that he advised Ms. Dowling that his daughter needed a pad with an hourglass shape and that had a plastic backing. He had tried a cloth-backed pad, but that pad leaked when his daughter had a full urine release. He testified that some of the products that he was sent were close, but none worked fully to prevent leakage with a full urine release.

Mr. Redacted testified that someone from DPCI named "Joel" who was a Case Manager, although not his, contacted him. He further testified that at the end of that conversation, he thought that there was agreement that all of the pads sent to him to try were not working, so they sought out another supplier, North Shore, to see if something could be found. Mr. Redacted also testified that he has not refused an alternative product, but does require one that works.

On cross examination, Mr. Redacted testified that DPCI has not been very helpful to him, but that Tiffany from North Shore had actually found the Serenity Pad and had agreed to supply it to them. Mr. Redacted also testified that he had actually told someone at DPCI that there was a leakage problem with the pads at least 50% of the time, but could not remember whom he had spoken to acknowledging that he had only spoken with Desiree, Joel, and someone named "Cheryl." When asked about the Tena pads that were supplied to him, he admitted that he had only received about four (4) pads, but had only tried two (2) or three (3) of them, determining that since one of the pads leaked during a full urine release, even though they worked properly with less than full release, these pads were not sufficient. Finally, Mr. Redacted testified that his daughter cannot tolerate a toileting schedule, and that he needs a product that can always handle a full urine release.

In rendering the hearing decision, the Hearing Officer is bound by the Delaware medical necessity definition, read in conjunction with the Mission of the Delaware Medical Assistance Program. As such, in determining whether the request for Serenity Pads is appropriate, the Hearing Officer must necessarily interject a "reasonableness" standard into the evaluation.

Based upon the evidence before me, it is clear that the requested Serenity Pads do not represent the least costly, appropriate, available health service alternative and do not represent an effective and appropriate use of program funds. At the very least, a longer trial period of using the Tena pads would be appropriate before determining that the Tena Pad was not a comparable health service alternative.

DPCI has provided credible evidence to support their decision to deny Serenity Pads. The Appellants argument that the alternative incontinence pads authorized are not comparable, based upon a trial of two or three pads, is not sufficient to override DCPI's responsibility to the DMAP in authorizing only the least costly, appropriate, available health service alternative.


For these reasons, the decision of DPCI to authorize the least costly, appropriate, available health service alternative is AFFIRMED.

Date: March 1, 2005



Jennifer Gimler Brady, Esq., for DPCI Redacted


  • EXHIBIT #1 - Copy of letter from Counsel for DPCI and DPCI Fair Hearing Summary consisting of three (3) total pages dated December 1, 2004.
  • EXHIBIT #2 - Copies of Appellant's request for a fair hearing, dated November 15, 2004, consisting of one (1) page.