February 2, Eligibility for the CDCSP Program is based on current policy and regulations. Some of these regulations state as follows:

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1 Joe Manchin III Governor State of West Virginia DEPARTMENT OF HEALTH AND HUMAN RESOURCES Office of Inspector General Board of Review 4190 Washington Street West Charleston, WV Martha Yeager Walker Secretary February 2, 2006 Mrs. Case Name: Dear Mrs. : Attached is a copy of the findings of fact and conclusions of law on your hearing held January 30, Your hearing request was based on the Department of Health and Human Resources proposal to deny continued benefits under the Children With Disabilities Community Services (CDCSP) Program. In arriving at a decision, the State Hearings 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. Eligibility for the CDCSP Program is based on current policy and regulations. Some of these regulations state as follows: For an applicant requiring ICF/MR or psychiatric facility Level of Care, the medical determination is made from a medical evaluation (Form DD-2a CDCSP completed within the previous ninety days) and current psychological and/or psychiatric evaluations...appropriate to the applicant=s age group. The evaluations must demonstrate that a child has a diagnosis of a severe, chronic disability which is: Attributable to a mental or physical developmental impairment, or a combination of mental and physical developmental impairments for a child requiring an ICF/MR Level of Care. (West Virginia Department of Health and Human Resources Eligibility Guide for Children With Disabilities Community Services Program (09/01/94) Program Eligibility Criteria: I. LEVEL OF CARE CRITERIA). The information submitted at your hearing revealed: does not meet the continued medical eligibility criteria for an ICF level of care. It is the decision of the State Hearings Officer to uphold the proposal of the Department to close the CDCSP case.

2 Sincerely, Ray B. Woods, Jr., M.L.S. State Hearing Officer Member, State Board of Review cc: Ms. Erika H. Young, Chairman, Board of Review Mrs. Susan Striar-May, Consultant Bureau for Medical Services - 1 -

3 WEST VIRGINIA DEPARTMENT OF HEALTH & HUMAN RESOURCES BOARD OF REVIEW Claimant, v. Action Number: 05-BOR-6991 West Virginia Department of Health and Human Resources, Respondent. DECISION OF STATE HEARING OFFICER I. INTRODUCTION: This is a report of the State Hearing Officer resulting from a fair hearing concluded on February 2, 2006 for III. This hearing was held in accordance with the provisions found in the Common Chapters Manual, Chapter 700 of the West Virginia Department of Health and Human Resources. This fair hearing was originally scheduled on January 9, 2006 on a timely appeal filed November 23, 2005 (D-8). Mrs. Striar-May requested to reschedule due to a scheduling conflict. The hearing finally convened on January 30, 2006 (D-7). It should be noted here that the claimant s benefits were not continued pending a hearing decision. After the hearing, the State Hearing Officer immediately sent a letter to the Fayette District DHHR Community Services Manager and, requested benefits reinstated. Mrs. had submitted her hearing request within 13 days of the denial letter and, benefits should have been continued pending a hearing decision (D-9 & 10). II. PROGRAM PURPOSE: The Program entitled CDCSP is set up cooperatively between the Federal and State governments and administered by the West Virginia Department of Health & Human Resources. Services for Children with Special Health Care Needs are extended to those children for whom adequate care, treatment and rehabilitation are not available from other than public resources. The Public Welfare Law permits the Program to determine administratively the conditions which will be included in the scope of the Program, such determination to be made on the basis of available funds and facilities. The Program is responsible for location, diagnosis and treatment of children between the age of 0-21 who meet pre-determined medical and financial requirements. Treatment is provided by Board certified specialists

4 III. PARTICIPANTS: Mrs., Mother of Mrs. Susan Striar-May, Consultant Bureau for Medical Services Presiding at the Hearing was, Ray B. Woods, Jr., M.L.S., State Hearing Officer and a member of the State Board of Review. IV. QUESTIONS TO BE DECIDED: The question(s) to be decided is: Does meet the continued medical eligibility criteria for the CDCSP Program? V. APPLICABLE POLICY: West Virginia Department of Health and Human Resources Eligibility Guide for Children With Disabilities Community Services Program (09/01/94) Program Eligibility Criteria: I. LEVEL OF CARE CRITERIA. VI. LISTING OF DOCUMENTARY EVIDENCE ADMITTED: Department s Exhibits: D-1 Memorandum from the Office of Behavioral and Health Care to the Fayette County Community Services Manager dated 11/04/05 D-2 West Virginia Department of Health and Human Resources Eligibility Guide for Children With Disabilities Community Services Program (09/01/94) Program Eligibility Criteria: I. LEVEL OF CARE CRITERIA D-3 Psychological Evaluation dated 07/11/05 D-4 Individualized Education Plan (IEP) dated 05/16/05 D-5 Social History dated 06/05 D-6 Annual Medical Evaluation (DD-2A) dated 07/14/ 05 D-7 Scheduling Notice dated 01/17/06 (Rescheduled) D-8 Scheduling Notice dated 11/23/05 (Initial) D-9 Hearing Request dated 11/11/05 D-10 Letter from State Hearing Officer to Fayette County Community Services Manager dated 01/30/06 D-11 Miscellaneous Documents Claimants Exhibits: None - 3 -

5 VII. FINDINGS OF FACT: 1. The Claimant is a fourteen (14) year old male with a diagnosis of Autism. He is applying for continued medical eligibility under the CDCSP program. The Department denied the case based on the lack of three or more substantially limiting functions in the major life areas, i.e., Self-Care; Receptive or Expressive Language; Learning; Mobility; Self-Direction; Capacity for Independent Living and; Economic Self Sufficiency. 2. The Department s decision is based on policy found at The West Virginia Department of Health and Human Resources Eligibility Guide for Children With Disabilities Community Services Program (09/01/94) Program Eligibility Criteria: I. LEVEL OF CARE CRITERIA (D-2) which states: Medical eligibility will be determined by the Office of Medical Services (OMS), Long Term and Alternative Care Unit. Medical eligibility will be based on: A. The applicant must be a child who is up to, but not including, age 18. At the time of application, the child must require the level of care provided in a Nursing Facility (NF) or an Intermediate Care Facility for Individuals with Mental Retardation and/or Related Conditions (ICF/MR) or an acute care hospital or an approved Medicaid in-patient psychiatric facility for children under the age of 21. B. Level of Care determinations are made from a medical evaluation (Form DD-2A CDCSP) for applicants requiring NF or hospital Level of Care. For an applicant requiring ICF/MR or psychiatric facility Level of Care, the medical determination is made from a medical evaluation (Form DD-2A CDCSP completed within the previous ninety days) and current psychological and/or psychiatric evaluations...appropriate to the applicant=s age group. The evaluations must demonstrate that a child has a diagnosis of a severe, chronic disability which is : 1. Attributable to a mental or physical developmental impairment, or a combination of mental and physical developmental impairments for a child requiring an ICF/MR Level of Care or; Attributable to a physical impairment and/or medical condition for individuals requiring a NF or hospital Level of Care or; Attributable to a psychological and/or psychiatric impairment and requiring inpatient acute care psychiatric services for individuals requiring a psychiatric facility Level of Care; 2. Likely to continue indefinitely; 3. Substantially limits functions in three or more of the following areas of major life activities: a. Self Care - 4 -

6 b. Receptive or Expressive Language c. Learning d. Mobility e. Self-Direction f. Capacity for Independent Living g. Economic Self-Sufficiency. C. The applicant must have a need for one of the medical facility levels of care described in I. A. and the corresponding services for an extended duration. D. The applicant must have an Individual Program Plan (IPP) developed by an Interdisciplinary Team (IDT) consisting of the child, family or legal representative, service providers, advocate, professionals, paraprofessionals and other stakeholders needed to ensure the delivery of the necessary level of services and develop a comprehensive IPP in accordance with Medicaid policies. The IPP must include: 1. Instructional (behavioral) objectives, applicable to the type of disability, developed with professional oversight and supervision aimed at teaching the child skills which will maintain, increase and/or support his/her independence in the activities of daily living and inclusion in community life; and 2. Services provided or supervised by qualified professionals aimed at increasing, maintaining and/or restoring the child s skills and/or health to the best physical, intellectual and/or social level that presently or potentially may be achieved. 3. The Office of Behavioral and Alternative Health Care issued a Memorandum to the Fayette County Community Services Manager on November 4, 2005 (D-1). It stated in part: This memorandum is your notification that, SS# does not meet the medical eligibility criteria For participation in the Medical Assistance Program. The reason For the denial is based on: According to documentation submitted does not have substantial deficits in three major life areas and therefore is not eligible for ICF/MR level of care. In addition, is not at risk of institutionalization which is also a criteria for CDCSP. 4. A Psychological Evaluation Update was completed on July 11, 2005 (D-3). The Claimant was approximately thirteen and a half years of age at the time of the evaluation. The Current Behaviors section of the evaluation addresses: Psychomotor; Self-Help; Language; Affective; Mental Status and; Other (social interaction, use of time, leisure activities). The following comments were the highlights of each section, as stated by the Psychologist. Psychomotor is ambulatory. He is able to navigate stairs without assistance. He is able to run, jump, skip and hop. He has no significant deficits with fine motor skills. Self-Help is able to use a table knife for cutting or spreading, drinks without spilling, holding glass in one hand, and orders simple meals in public eating places. He never - 5 -

7 has toilet accidents and is independent with self care at toilet. He prepares and completes bathing unassisted. He applies toothpaste and brushes teethe with up and down motion. He dresses and undresses self independently. He has limited clothing skills however, he is able to sort clothing. He shows some awareness of dangers in the home and answers the telephone appropriately. Language is verbally able to communicate his wants and needs. receives speech therapy weekly year round. He is able to print his name without a model. Affective is generally in a good mood according to his mother. He does not engage in any self-injurious behaviors. Mood was happy. Mental Status Oriented to person and place and not time or situation. He could not make change for a dollar. Denied feeling significantly depressed. Others He enjoys the outdoors and riding his bike. He is obsessed with traffic lights and fans. He appears to enjoy going to church and was baptized at his request. The instrument used to measure s Adaptive Behavior was an AAMR Adaptive Behavior Scale Residential and Community: Second Edition (ABS-RC: II). The evaluation was completed according to the responses provided by Mrs. on behalf of her son,. The Department is looking for Standard Scores of 1 and below when reviewing the results. The following is an example of the Part One Domain Scores: Subtest Standard Score Independent Functioning 6 Physical Development 11 Economic Activity 1 Language Development 4 Numbers and Time 8 Pre/Vocational Activity 6 Self-Direction 8 Responsibility 10 Socialization 5 The Psychologists Development Findings/Conclusions stated in part, Based on a review of s records and observation as well as interview this date, I am going to suggest a diagnosis of Autistic Disorder on Axis I and Borderline Intellectual Functioning on Axis II. The Supervised Psychologist further stated under Prognosis, is expected to continue to require as ICF/MR level of care for the next foreseeable future, in order to be maintained in the community. With this level of service and support, gains can be expected

8 5. An Individualized Education Plan was completed on May 15, 2005 (D-4). The following are highlights of the twelve page report: Parent Expectations: Home: There will be more independence in maintaining good hygiene, self control, appropriately expressing himself, as well as performing age appropriate chores in an orderly fashion. School: will be challenged academically to reach a 5 th grade level or higher in the core subjects by the time he completes the 8 th grade by the collaborative effort of a teacher s instructions at school and parents re-teaching at home. Present Level of Educational Experience: is able to comprehend and recall details at this grade level. His oral reading is below grade level due to the low speed and volume at which he reads. is able to write simple sentences. He has difficulty with major capitalization rules and identifying parts of speech According to classroom performance, is working on the third grade level in Math. He is able to read, write and identify place value of three digit numbers, make comparisons, solve basic multiplication and division problems. would benefit from using supplemental materials at his instructional level in Math. continues to make progress with his expressive communication skills, particularly on the peer level. He continues to exhibit obsessive communication behaviors and fixation on things of interest, typical of autistic communication skills. Placement: Percentage of time in: Regular Education 48% Special Education 52% 6) Mrs. completed the Social Summary (D-5), in the absence of working with a case management agency. There was nothing remarkable reported that was not previously stated in the Psychological Report. 7) The Annual Medical Evaluation for Children With Disabilities Community Services Program (DD-2A) was completed by a Physician on July 14, 2005 (D-6). The General Physical and Neurological Examinations were unremarkable. Under the heading of Requiring Special Care, the Physician made the following observations: Ambulatory Normal; Continence Status Continent; Mealtime Eats Independently; Personal Hygiene Needs Assistance and; Mental and Behavioral Status Needs minimal supervision. Additional Recommendations: Speech - 7 -

9 Diagnoses: Mental Autism; Physical None D. Doyle, M.D. of the New River Health Care Center certified that requires the level of care provided in an Intermediate Care Facility (MRDD). Dr. Doyle s preference of Home was written on the certification. 8) Mrs. Striar-May s testimony, on behalf of the Department, indicated that was too high functioning to meet the medical eligibility criteria. 9) Mrs. testified that she and her husband have high expectations for their son. They are constantly working to improve s behavior and skills. must be reminded to take a shower. He does not understand that taking a shower is more than just washing his feet. s communication skills have improved and, they have worked with his teachers to better understand him. 10) A review of the Major Life Activities provides the following facts taken from the Psychological Evaluation dated July 11, 2005; Annual Medical Evaluation (DD-2A) dated July 14, 2005; Individualized Education Plan completed on May 16, 2005 and; Social History dated June 2005: Self Care - is able to use a table knife for cutting or spreading, drinks without spilling, holding glass in one hand, and orders simple meals in public eating places. He never has toilet accidents and is independent with self care at toilet. He prepares and completes bathing unassisted. He applies toothpaste and brushes teethe with up and down motion. He dresses and undresses self independently. He has limited clothing skills however, he is able to sort clothing. He shows some awareness of dangers in the home and answers the telephone appropriately. received a Standard Score of 6 in Independent Functioning. D. Doyle, M.D. and Mrs. also indicates that needs assistance with personal hygiene and is continent. No Substantial Limitations. Receptive or Expressive Language - is verbally able to communicate his wants and needs. receives speech therapy weekly year round. He is able to print his name without a model. Mrs. attributes s improvement in speech by learning how to communicate with him. received a Standard Score of 4 in Language Development. No Substantial Limitations. Learning - is able to write simple sentences. He has difficulty with major capitalization rules and identifying parts of speech. According to classroom performance, is working on the third grade level in Math. He is able to read, write and identify place value of three digit numbers, make comparisons, solve basic multiplication and division problems. No Substantial Limitations. Mobility - is ambulatory. He is able to navigate stairs without assistance. He is able to run, jump, skip and hop. He has no significant deficits with fine motor skills. No Substantial Limitations. Self-Direction Mrs. states in the Social History that, He ( ) has been taught to do his part for the smooth operation of the household. He is responsible for many chores. He keeps his room picked up and vacuumed. He empties the dishwasher and garbage - 8 -

10 cans and, takes out the garbage. He cleans the bathroom when it is his turn. Without being asked, he takes clothes from the washing machine and puts them in the dryer. He also works in the yard. Recently, he has been taught to use the push mower. knows when he needs a haircut and will ask for one. He makes sure there is always soap and toothpaste in the bathroom and he uses it. He needs to be reminded to take his medicine at bedtime. received a Standard Score of 8 in Self-Direction and a score of 10 in Responsibility. No Substantial Limitations. Capacity for Independent Living This is not applicable since is still considered a minor child. Economic Self-Sufficiency received a Standard Score of 1 in Economic Activity. This is supported by the Psychological Evaluation which states in part, Oriented to person and place and not time or situation. He could not make change for a dollar. 11) does not have substantially limited functioning in three or more of the major life activities. VIII. CONCLUSIONS OF LAW: 1) The West Virginia Department of Health and Human Resources Eligibility Guide for Children With Disabilities Community Services Program (09/01/94) Program Eligibility Criteria: I. LEVEL OF CARE CRITERIA states: Medical eligibility will be determined by the Office of Medical Services (OMS), Long Term and Alternative Care Unit. Medical eligibility will be based on: A. The applicant must be a child who is up to, but not including, age 18. At the time of application, the child must require the level of care provided in a Nursing Facility (NF) or an Intermediate Care Facility for Individuals with Mental Retardation and/or Related Conditions (ICF/MR) or an acute care hospital or an approved Medicaid in-patient psychiatric facility for children under the age of 21. B. Level of Care determinations are made from a medical evaluation (Form DD-2A CDCSP) for applicants requiring NF or hospital Level of Care. For an applicant requiring ICF/MR or psychiatric facility Level of Care, the medical determination is made from a medical evaluation (Form DD-2A CDCSP completed within the previous ninety days) and current psychological and/or psychiatric evaluations...appropriate to the applicant s age group. The evaluations must demonstrate that a child has a diagnosis of a severe, chronic disability which is: 1. Attributable to a mental or physical developmental impairment, or a combination of mental and physical developmental impairments for a child requiring an ICF/MR Level of Care or; - 9 -

11 Attributable to a physical impairment and/or medical condition for individuals requiring a NF or hospital Level of Care or; Attributable to a psychological and/or psychiatric impairment and requiring inpatient acute care psychiatric services for individuals requiring a psychiatric facility Level of Care; 2. Likely to continue indefinitely; 3. Substantially limits functions in three or more of the following areas of major life activities: a. Self Care b. Receptive or Expressive Language c. Learning d. Mobility e. Self-Direction f. Capacity for Independent Living g. Economic Self-Sufficiency. C. The applicant must have a need for one of the medical facility levels of care described in I. A. and the corresponding services for an extended duration. D. The applicant must have an Individual Program Plan (IPP) developed by an Interdisciplinary Team (IDT) consisting of the child, family or legal representative, service providers, advocate, professionals, paraprofessionals and other stakeholders needed to ensure the delivery of the necessary level of services and develop a comprehensive IPP in accordance with Medicaid policies. The IPP must include: 1. Instructional (behavioral) objectives, applicable to the type of disability, developed with professional oversight and supervision aimed at teaching the child skills which will maintain, increase and/or support his/her independence in the activities of daily living and inclusion in community life; and 2. Services provided or supervised by qualified professionals aimed at increasing, maintaining and/or restoring the child s skills and/or health to the best physical, intellectual and/or social level that presently or potentially may be achieved. 2) D. Doyle, M.D. of the New River Health Care Center certified that requires the level of care provided in an Intermediate Care Facility (MRDD). He preferenced his certification by writing Home on the Annual Medical Evaluation. 3) The supporting medical documentation does not support having substantially limited functioning in three or more of the major life activities. The only supporting limited functioning is in the area of Economic Self-Sufficiency. IX. DECISION: It is the decision of this State Hearing Officer to uphold the proposal of the Department in this particular matter

12 X. RIGHT OF APPEAL: See Attachment XI. ATTACHMENTS: The Claimant s Recourse to Hearing Decision Form IG-BR-29 ENTERED this 2nd Day of February, Ray B. Woods, Jr., M.L.S. State Hearing Officer