By Arthur Radley

On October 11, 2001, after a long and complicated 18-month struggle, the Superior Court of Dekalb County, Georgia ruled Georgia Medicaid must reimburse Hyperbaric Oxygen Therapy for a brain-injured child.

It was a stunning defeat for the state of Georgia and a magnanimous victory for brain-injured children everywhere.

The case was James Freels vs. the Commissioner of the Georgia Department of Community Health, division of Medical Assistance. The ruling actually came on appeal. Jimmy is seven years old and suffers from mid-brain injury that has impaired his mobility, balance, and speech. He is still not yet sitting up or walking.

The Freels family first sought HBOT reimbursement in April 1999. Georgia Medicaid denied the initial request because “There is no documentation from the Undersea and Hyperbaric Medical Society to support the use of Hyperbaric Oxygen Therapy for this diagnosis”.

This statement was untrue, as the UHMS possessed substantial documentation of utilizing HBOT for brain-injured children. In fact, during the fall of 1998 the UHMS had commissioned an “ethics task force” to consider the expansion of the UHMS indications list to include currently “off label” conditions.

In May 1999, Jimmy’s church, family, friends, and neighbors paid for a series of 42 treatments of hyperbaric oxygen at Atlanta Hyperbarics. Jimmy had a SPECT-scan prior to any HBOT and then a second SPECT-scan after the 21st treatment. The second SPECT revealed brain tissue that wasn’t functioning before was now functioning (since his brain blood flow had increased by 25.4%).

The federal Medicaid law states that children are entitled to “such other 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, whether or not such services are covered under the State plan.”

After the first denial, Jimmy’s parents learned that Hyperbaric Medicine is not taught as core curriculum in any American medical school, thus most physicians have no knowledge of Hyperbaric Oxygen Therapy. Thus, Jimmy’s second HBOT request on September 2, 1999 included his before/after SPECT-scans and 300 pages of HBOT documentation divided into 38 exhibits that included 3 videos, including 10 before/after cases of children receiving Hyperbaric Oxygen Therapy.

“We wanted to give them the opportunity to make an informed decision,” said David Freels, Jimmy’s father.

Georgia Medicaid denied Jimmy a second time on November 30, 1999, stating, “Our physician panel has determined that HBOT in Cerebral Palsy is experimental - investigational and is not a generally accepted practice at this time.”

The Freels family appealed because it couldn’t be determined from the denial letter if Georgia Medicaid had ever reviewed the evidence from the before/after SPECT scans. In addition, the categorization of “experimental and investigational” is irrelevant in the context of the Medicaid law for children. The only criteria are that the treatment be “necessary to correct or ameliorate”.

The third denial on January 12, 2000 declared in capital letters THERE IS NO SCIENTIFIC DATA TO SUPPORT THE MEDICAL NECESSITY FOR HBOT IN THIS CASE.

The Medicaid law for children does not require that a treatment or service be “medically necessary”. Instead, the statute actually creates its own definition of medical necessity. If it is a treatment or service for a defect or illness, then it is medical. If the treatment or service corrects or ameliorates, then it is necessary, thus creating its own definition of “medically necessary”.

The Freels family was never informed by Georgia Medicaid of any of the denials, nor were the Freels ever given written instructions on how to request a hearing. “I had to make a lot of phone calls,” said Mr. Freels. “Georgia Medicaid has no written, documented method for conducting a review, so we didn’t know why they had denied the request. Judging from the denials, we had no idea whether they had ever looked at any of the evidence that had been presented. We didn’t know who was evaluating the request or what their

qualifications were.”

The Freels big break came when a parent put this post on the Internet: