September 12, Enclosed is a copy of the decision resulting from the hearing held in the above-referenced matter.

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1 State of West Virginia DEPARTMENT OF HEALTH AND HUMAN RESOURCES Office of Inspector General Board of Review 203 East Third Avenue Williamson, WV Earl Ray Tomblin Governor September 12, 2014 Karen L. Bowling Cabinet Secretary Deborah Efaw 5096 West Washington Street Apartment #104 Cross Lanes, WV RE: EFAW v. WV DHHR ACTION NO.: 14-BOR-2189 Dear Ms. Efaw: Enclosed is a copy of the decision resulting from the hearing held in the above-referenced matter. In arriving at a decision, the State Hearing Officer is governed by the Public Welfare Laws of West Virginia and the rules and regulations established by the Department of Health and Human Resources. These same laws and regulations are used in all cases to assure that all persons are treated alike. You will find attached an explanation of possible actions you may take if you disagree with the decision reached in this matter. Sincerely, Encl: The Claimant s Recourse to Hearing Decision Form IG-BR-29 Stephen M. Baisden State Hearing Officer Member, State Board of Review cc: Tamra R. Grueser, RN, WV Bureau of Senior Services Debbie Casebolt, Central WV Aging Services, Charleston, WV

2 WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES BOARD OF REVIEW DEBORAH EFAW, The Claimant, v. ACTION NO.: 14-BOR-2189 WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Respondent. DECISION OF STATE HEARING OFFICER INTRODUCTION This is the decision of the State Hearing Officer resulting from a fair hearing for Deborah Efaw. This hearing was held in accordance with the provisions found in Chapter 700 of the West Virginia Department of Health and Human Resources (WV DHHR) Common Chapters Manual. This fair hearing was convened on September 4, 2014, on an appeal filed January 27, This hearing originally was scheduled for July 24, 2014, but was rescheduled at the Department s request. The matter before the Hearing Officer arises from the January 16, 2014, decision by the Respondent to reduce the Claimant s monthly service hours in the Title XIX Aged and Disabled Waiver (ADW) Program. At the hearing, the Respondent appeared by Tamra R. Grueser, RN, Bureau of Senior Services. Appearing as a witness for the Department was Brenda Myers, RN, West Virginia Medical Institute. The Claimant appeared pro se. Appearing as a witness for the Claimant was Debbie Casebolt, Central WV Aging Services. All participants were sworn and the following documents were admitted into evidence. Department s Exhibits: D-1 Aged and Disabled Waiver Services Manual Policy Sections (a) and (b) D-2 Pre-Admission Screening (PAS) completed on January 9, 2014 D-3 Medical Necessity Evaluation Request dated November 9, 2013 D-4 PAS completed on January 9, 2013 D-5 Medical Necessity Evaluation Request dated December 9, 2012 D-6 Notice of Decision dated January 16, 2014 D-7 Letter faxed from WVMI to Claimant s physician on January 10, 2014, signed by the physician and faxed back to WVMI on January 20, BOR-2189 Page 1

3 Claimant s Exhibits: C-1 Faxed list of current diagnoses, signed and dated on August 20, 2014, by Samuel Henson, MD After a review of the record, including testimony, exhibits, and stipulations admitted into evidence at the hearing, and after assessing the credibility of all witnesses and weighing the evidence in consideration of the same, the Hearing Officer sets forth the following Findings of Fact. FINDINGS OF FACT 1) The Department s witness conducted a Pre-Admission Screening (PAS) for the Aged and Disabled Waiver (ADW) Program with the Claimant on January 9, 2014 (Exhibit D-2). Present for the PAS was the Claimant and her homemaker. The Department s witness assessed the Claimant with a total of twenty-one (21) Level-of-Care points on the PAS. The Department approved the Claimant for a Level C of Care, with monthly service hours not to exceed 124 per month. The Department reported its findings to the Claimant in a Notice of Decision dated January 16, 2014 (Exhibit D-6). 2) The Department s representative stated that the assessing nurse faxed to the Claimant s physician a letter (Exhibit D-7) on January 10, 2014, asking him to verify the medical conditions of dysphagia and aphasia. She stated that the physician returned the letter on January 20, 2014, and confirmed the diagnosis of dysphagia. The Department therefore conceded that the Claimant should have been assessed with this additional point, raising her total to twenty-two (22) points on the January 2014 PAS. 3) The Claimant contended that the assessing nurse should have awarded her with additional Level-of-Care points for the medical conditions of aphasia and contractures, the functional abilities of bathing, dressing, grooming, transferring and hearing, the professional and/or technical need of skin care, the mental health issues of depression and suicidal ideation, and a terminal prognosis. 4) The Health Assessment section of the January 2014 PAS (Exhibit D-2) reads as follows regarding the medical condition of aphasia: No [diagnosis]. Speech is slower and more deliberate at times but understandable. I asked if she has ever been [diagnosed] with aphasia and she says she has. Will attempt to confirm with MD. The WVMI faxed a letter to the Claimant s physician on January 10, 2014 (Exhibit D-7), asking him to confirm the aphasia diagnosis, but he noted on the reply that he did not confirm this medical condition. 5) The Health Assessment section of the January 2014 PAS (Exhibit D-2) reads as follows regarding the medical condition of contractures: No [diagnosis] and all joints bend/flex. The Claimant testified that the assessing nurse did not ask her about contractures. She stated that she has contractures of her right hand and she has foot-draw. The Department s witness, the WVMI nurse who conducted the January 2014 PAS, testified that when she 14-BOR-2189 Page 2

4 conducted the PAS, the Claimant denied having contractures and she did not observe any signs of contractures. 6) The Nurse s Overall Comments section of the January 2014 PAS (Exhibit D-2) reads as follows regarding the functional ability of bathing: She says [homemaker] helps her to shower. She has a tub/shower and chair. She says she holds to wall with one hand and the [homemaker] with the other hand as she gets into and out of shower. She washes most of her body herself and [homemaker] washes her back and lower legs and feet. The Claimant testified that she can wash her chest area if she is having a good day. She stated that other than that, she requires total care to bathe. The Department s witness testified that during the PAS, the Claimant reported requiring assistance with bathing, but not that she required total care to bathe. 7) The Nurse s Overall Comments section of the PAS (Exhibit D-2) reads as follows regarding the functional ability of dressing: She says she leaves pajama tops buttoned and will just put them over her head and arms through the sleeves and can do that herself... She says [homemaker] will start her pants and then she can finish pulling them up... She verbally told me that she doesn t put socks on but per demonstration as we were talking she has full ability to cross legs and reach her feet. The Claimant testified that she required total care in dressing. She stated that her caregiver has to put her pajama tops over her head, then pull them down. She stated the caregiver has to put her pants on her legs, then pull them up and fasten them. The Claimant added that during the January 2014 PAS, she did not reach down to her feet at any time during the assessment. The Department s witness testified that based on her observations and on what the Claimant told her on the day of the PAS, she did not assess the Claimant as requiring total care in dressing. 8) The Nurse s Overall Comments section of the PAS (Exhibit D-2) reads as follows regarding the functional ability of grooming: She says [homemaker] washes her hair for her while in the shower as it s hard to keep arms held up over head due to tremors. She says she can brush her hair sometimes and if tremors are worse [homemaker] does it. She says she raises her arms and [homemaker] applies deodorant. [Homemaker] clips her fingernails and toenails due to tremors. She can apply lotion to upper body and [homemaker] applies to lower legs, feet and back. The Claimant testified that she was unable to do any grooming by herself, except on a particularly good day. She stated that she sometimes brushes her own hair. The Department s witness testified that during the PAS, the Claimant reported requiring assistance with grooming, but not that she required total care for this ability. 9) The Nurse s Overall Comments section of the PAS (Exhibit D-2) reads as follows regarding the functional ability of transferring: Short time into visit, [Claimant] demonstrated ability to transfer... She pushed with hands against armrest of chair and stood... I asked her if she can get into and out of bed herself and she says that she can and does. Says she raises head up and sits herself up and then can swing legs down over and then sits up and then stands. I asked and she tells me she can get herself back into bed as well. The Claimant testified that during the assessment, she sat in the only chair in which she was able to sit on and stand up from by herself. She stated this chair was a very straight chair and high off the ground, which helped her to transfer to and from it. She added that she 14-BOR-2189 Page 3

5 cannot sit on the other chairs and the couch in her home without someone present to help her transfer to and from them. The Department s witness testified that she assessed the Claimant as needing an assistive device to transfer based on both a demonstration of and her description of her physical abilities. 10) The Nurse s Overall Comments section of the PAS (Exhibit D-2) reads as follows regarding the functional ability of hearing: [Clamant] says she has noticed some decrease with hearing in the passed [sic] year. Does not use hearing aids. RN spoke in normal tone of voice and no repeats needed. The Claimant testified that her hearing was impaired. She stated that she had significant scarring in both ears due as a result of having lupus, and that she has been told it is not correctable with hearing aids. 11) The Claimant argued during the hearing that she should have received a Level-of-Care point for section #27 of the PAS (Exhibit D-2), Professional and Technical Care needs, for item (n), skin care. The Department s representative pointed out that the only item under Professional and Technical Care needs wherein a Level-of-Care point may be derived is item (e), continuous oxygen. She also noted that the Claimant received a Level-of-Care point for the use of continuous oxygen. 12) The Claimant argued during the hearing that she should have received a Level-of-Care point for section #34 of the PAS (Exhibit D-2), mental health issues, for depression and suicidal ideation. The Department s representative pointed out that the only item under section #34 wherein a Level-of-Care point may be derived is for a diagnosis of Alzheimer s, multi-farct, senile dementia or related condition. She noted that the Claimant did not have such a diagnosis. 13) The Claimant argued that she should have received a Level-of-Care point for section #35 of the PAS (Exhibit D-2), for a terminal prognosis. The Department s representative stated that before a PAS may be scheduled, the WVMI receives a Medical Necessity Evaluation Request from a participant s physician. She stated that the Claimant s physician sent WVMI a Medical Necessity Evaluation Request, which he signed on November 9, 2013 (Exhibit D- 3). She pointed out that this document contains a question which states, Is the patient terminal? (circle one) Yes No. On this document, the physician has circled No. 14) The Claimant argued that the Department s witness knew nothing about her diagnoses or her personal history when she conducted the January 2014 PAS. She stated that the PAS (Exhibit D-2) contained several inaccuracies, including the statement on page one of the document that indicates she lives on a first-floor apartment. She pointed out that there is a sixteen-step flight of stairs leading to her floor of her apartment building. She stated that the PAS indicated she could reach down and touch her feet, while she was unable to do so. APPLICABLE POLICY Aged and Disabled Home and Community-Based Services Waiver Policy Manual Sections (a) and (b) establish the Level of Care criteria. There are four (4) Service 14-BOR-2189 Page 4

6 Levels for Personal Assistance/Homemaker services, and points are determined based on the following sections of the PAS: #23- Medical Conditions/Symptoms- 1 point for each (can have total of 12 points) #24- Decubitus - 1 point #25-1 point for b., c., or d. #26- Functional abilities: Level 1-0 points Level 2-1 point for each item a. through i. Level 3-2 points for each item a. through m.; i. (walking) must be equal to or greater than Level 3 before points are given for j. (wheeling) Level 4-1 point for a., 1 point for e., 1 point for f., 2 points for g. through m. #27- Professional and Technical Care Needs- 1 point for continuous oxygen #28- Medication Administration- 1 point for b. or c. #34- Dementia- 1 point if Alzheimer s or other dementia #34- Prognosis- 1 point if terminal The total number of points allowable is 44. SERVICE LEVEL LIMITS Level A 5-9 points 0 to 62 hours per month Level B points 63 to 93 hours per month Level C points 94 to 124 hours per month Level D points 125 to 155 hours per month DISCUSSION The Claimant s physician did not provide confirmation of the Claimant s medical conditions of aphasia or contractures, or her terminal prognosis, so the assessing nurse could not award the Claimant with Level-of-Care points for any of these areas of the PAS. By policy, the professional or technical need of skin care and the mental health issues of depression or suicidal ideation are not eligible areas of the PAS wherein Level-of-Care points may be derived, so the assessing nurse could not award the Claimant with points for any of these areas. The Claimant did not provide testimony or evidence to indicate that she required total care for the abilities of bathing, dressing and grooming. The assessing nurse recorded on the PAS that the Claimant indicated she could participate in each of these activities to some degree. This meets the definition of physical assistance and not total care, and the assessing nurse acted correctly in awarding one point for each of these functional abilities. 14-BOR-2189 Page 5

7 The Claimant testified that the only reason she transferred during the assessment session was that she was sitting in a particular chair which facilitated her ability to do this. However, the PAS indicates the Claimant told the assessing nurse she could transfer with the assistance of certain supports, and she demonstrated her ability to transfer from a standing to a seated position during the assessment. Therefore, the assessing nurse acted correctly in not awarding a Level-of-Care point for this functional ability. The Claimant testified that she had uncorrectable hearing loss due to her lupus. The PAS indicates that at the time of the assessment session, the Claimant reported some hearing loss, but that she did not use a hearing aid, nor did the assessing nurse have to raise her voice or repeat anything to the Claimant. Therefore, the assessing nurse acted correctly in not awarding a Levelof-Care point for this functional ability. CONCLUSION OF LAW The Department assessed The Claimant with twenty-one (21) Level-of-Care points on the PAS conducted on January 9, The Department conceded that an additional point should have been assessed for the medical condition of dysphagia, and that the Claimant should have received twenty-two (22) Level-of-Care points on the PAS. The Claimant did not provide evidence to support that the Department should have assessed her with additional Level-of-Care points for the medical conditions of aphasia or contractures, the functional abilities of bathing, dressing, grooming, transferring or hearing, for the mental health issues of depression or suicidal ideation, or for a terminal prognosis. The addition of another Level-of-Care point is not sufficient to raise the Claimant to a service level of D. The Claimant qualifies for a service level of C in the Aged and Disabled Waiver Program, as defined in BMS Provider Manual (a) and (b). DECISION It is the decision of the State Hearing Officer to UPHOLD the Department s proposal to reduce the Claimant s service level from D to C in the Aged and Disabled Waiver Program. ENTERED this 12 th Day of September, Stephen M. Baisden State Hearing Officer 14-BOR-2189 Page 6