December 11, 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 Earl Ray Tomblin BOARD OF REVIEW Karen L. Bowling Governor 4190 Washington Street, West Cabinet Secretary Charleston, West Virginia December 11, 2014 RE: v. WVDHHR ACTION NO.: 14-BOR-3409 Dear : 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, Donna L. Toler State Hearing Officer Member, State Board of Review Encl: Claimant s Recourse to Hearing Decision Form IG-BR-29 cc: Tamra Grueser, RN, Bureau of Senior Services

2 WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES BOARD OF REVIEW, Claimant, v. Action Number: 14-BOR-3409 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. This hearing was held in accordance with the provisions found in Chapter 700 of the West Virginia Department of Health and Human Resources Common Chapters Manual. This fair hearing was convened on December 9, 2014, on an appeal filed September 17, The matter before the Hearing Officer arises from the September 10, 2014 decision by the Respondent to discontinue Claimant s services under the Medicaid Aged and Disabled Waiver program. At the hearing, the Respondent appeared by Tamra Grueser, R.N., Bureau of Senior Services (BoSS). Appearing as witnesses for the Department were, R.N., and, R.N., Case Manager,. The Claimant appeared pro se. All witnesses were sworn and the following documents were admitted into evidence. Department s Exhibits: D-1 Bureau for Medical Services, Aged and Disabled Home and Community Based Waiver Policy Manual D-2 Aged and Disabled Waiver Request for Discontinuation of Service, dated September 5, 2014 D-3 Notice of Discontinuation of services, dated September 10, 2014 D-4 Case Management Notes dated March 18, 2013 through September 2, 2014, and case note, no entry date D-5 Log Review, dated December 31, 2013, July 21, 2014 and September 2, 2014 D-6 Aged and Disabled Waiver Case Management Monthly Contact, dated January 2014 through April BOR-3409 Page 1

3 D-7 RN Progress Notes, dated August 4, 2014 through August 28, 2014 D-8 Member Transfer Log, dated August 13 through September 10, no year indicated Claimant s Exhibits: C-1 Character Reference from, dated September 10, 2014 C-2 Character Reference from, undated C-3 Character References from, dated November 15, 2014 C-4 Character References from and C-5 Treatment Summary from, M.A., M.A., Licensed Psychologist, dated December 7, 2014 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) On or about September 10, 2014, the Claimant was notified that her benefits and services provided through the Medicaid Aged and Disabled Waiver Program (ADW Program) were being discontinued due to an unsafe environment and non-compliance with the ADW Program. (Exhibit D-3) 2) On September 5, 2014, the ( ) requested a discontinuation of services for the Claimant based on an unsafe environment and member non-compliance with the ADW Program. (Exhibit D-2) 3) The Department s Representative cited policy wherein ADW Program services can be discontinued in cases when the member has not received services in excess of 180 days, an unsafe environment exists or the member is persistently non-compliant with the Plan of Care. (Exhibit D-1) DISCONTINUATION DUE TO NON-COMPLIANCE 4) The Department contended that the Claimant was non-compliant with her Plan of Care by failing to keep her scheduled appointments, failing to return phone calls, failing to return her Medical Necessity Evaluation Request (MNER) when requested and failing to provide her own homemaker. (Exhibit D-5, D-6 and D-7) 5) The Department s representative described the Plan of Care as a document which established the homemaker s essential duties. Such duties included light housekeeping, bathing, cooking, laundry and travel. The Department s representative added that an emphasis was placed on providing for the member s personal needs. 14-BOR-3409 Page 2

4 6) Case Management Notes indicated that the Claimant reported that she was not well and cancelled appointments with Clay Development on two (2) occasions between March 2013 and October A case management note dated March 18, 2013, indicated that the Claimant called and cancelled an appointment wherein she reported she did not feel well and will call us back to reschedule when she is ready to reschedule. A case management note dated October 30, 2013, indicated that the Claimant cancelled her appointment due to illness. She advised she would call the following week and reschedule. The Claimant called on November 7, 2013, and rescheduled her appointment for November 18, (Exhibit D-4) 7) Case Management Notes entered as July 29 and July 30, 2014, indicated that, R.N. (Nurse ), with, left voic s for the Claimant to call her ASAP re: renewal. It should be noted that the dates on the document had been over-written, modified, and were not initialed. Case Management Notes from July 3, 2014, indicated that Nurse was unable to reach the Claimant and would be gone on vacation until July 14, There were no additional Case Management Notes until July 14, 2014, when it was noted that, a homemaker applicant with, had not returned phone calls or been back in the office. Case Management Notes did not indicate that the Claimant had not returned phone calls during this time period. (Exhibit D-4) 8) The Department s representative testified that the Claimant failed to comply with her Plan of Care by not providing her own homemaker in a timely manner., R.N., (Nurse ) stated that due to the nature of the Claimant s health conditions, the Claimant must choose her own homemaker. Nurse stated that the homemaker must be someone the Claimant is familiar with and not a stranger. 9) Monthly contact notes from January, February, March and April 2014 indicate Clay Development was in contact with the Claimant and was aware she was having difficulty finding a homemaker. Notes from January 2014 indicate will try to assist her but [due to] current conditions we can t send anyone at this time and from March 2014 reads, in part, Client still needs worker, we are looking for one and she is too. (Exhibit D-6) 10) The Claimant reported that she tried to find a homemaker and eventually found an individual referred to as, who agreed to work as her homemaker. The Claimant reported that failed to provide with documentation that she had completed first aid and CPR training. The Claimant reported that she did not realize failed to provide with verification of the required certification. The Claimant added that reported to her home and worked on two (2) separate days. 11) The Claimant testified that in late July or early August 2014, ( ) agreed to be her homemaker. The Claimant reported that because she needed a homemaker she provided with transportation to the homemaker training classes. The Claimant stated that completed her training and was hired by 14-BOR-3409 Page 3

5 as a homemaker. She indicated that she received correspondence that the transfer of services had been approved and she thought everything was okay. 12) On August 24, 2014 agreed to provide Case Management services for the Claimant with an effective date of October 1, 2014, and Homemaker services beginning September 1, (Exhibit D-8) 13) Case Management Notes dated September 2, 2014, indicate that Nurse was to call the Department s representative for advice on closure due to non-compliance. There was no mention of closure due to an unsafe environment. (Exhibit D-4) 14) The Department contended that the Claimant failed to comply with her Plan of Care by failing to return the MNER form in a timely manner., R.N.,, reported that the MNER form was mailed to the Claimant and that the Claimant then came to the office to pick up another copy as she had lost the first one. The Claimant argued that she had taken the documentation to her physician on more than one occasion and did not know why they had not forwarded it to the Department like they said they would. The Department conceded that the Claimant did return the completed MNER form prior to the established deadline. DISCONTINUATION FOR FAILURE TO UTILIZE SERVICES FOR 180 DAYS 15) The Department s witnesses and representative provided testimony that the Claimant demonstrated non-compliance with ADW Program requirements by failing to use services in the 180-day time frame required. It is noted that Case Management Notes dated July 28, 2014, indicated that, RN,, spoke with the Department s representative who told them the Claimant s case could not be closed for 180 days without service. DISCONTINUATION DUE TO UNSAFE ENVIRONMENT 16) The Department contends that the Claimant s ADW Program services should be discontinued due to an unsafe environment. The contention was based upon a report received on December 31, 2013, by the Claimant s homemaker,, who stated she feels uncomfortable with activities at house and wouldn t elaborate but also a few weeks ago she and were disagreeing on what the homemakers actual duties were. The homemaker reported that she failed to stick to the Plan of Care because she was afraid not to do the things [Claimant] asked due to [Claimant s] [history] of bipolar disorder, [history] of violence and incarceration. It was noted that the Claimant and homemaker had a long personal relationship. (Exhibit D-5) 17) Nurse testified that the [Claimant] was very good to us and very polite. We [referring to Nurse and Nurse ] did not feel unsafe. She reiterated, [Claimant] was very, very kind to us we enjoyed her as a client and [Claimant] was kind to us whenever we went to see her. Nurse added that they just wanted the Claimant to have a homemaker she was comfortable with. 14-BOR-3409 Page 4

6 18) The Claimant reported that she agreed to have as her worker because of a long-term friendship with father, (Exhibit C-2). The Claimant testified that she did have personal disputes with regarding prescription medication taken from her home and with regard to the care of horse which was housed in the Claimant s barn. The Claimant testified that she had two (2) disagreements with related to her homemaker duties. The Claimant reported one dispute involved refusal to sweep her front steps. The Claimant reported that she asked to sweep them because she was afraid she would slip and fall on the wet leaves which had accumulated. The Claimant reported that the second dispute involved allegedly requesting the Claimant to initial inaccurate time sheets. The Claimant added that she thought the request to discontinue her services was retaliatory, based on her request to change her Case Management Agency. 19) Member Transfer Notes dated September 10, 2014, indicate that per [Director of Medicaid Program Operations] we are to close this member and cancel this transfer. It should be noted that the Member Transfer Notes did not indicate the case was closed due the refusal by another agency to accept the Claimant s transfer. (Exhibit D-8) APPLICABLE POLICY The West Virginia Department of Health and Human Resources, Bureau for Medical Services Provider Manual requires the submission of a discontinuation of services form be submitted and approved by BoSS when no services have been provided for 180 continuous days, due to unsafe environment, is persistently non-compliant with the Plan of Care and if the member no longer desires care. Policy regarding an unsafe environment reads: B. Unsafe Environment an unsafe environment is one in which the personal assistance/homemaker and/or other agency staff are threatened or abused and the staff s welfare is in jeopardy (emphasis added). This may include, but is not limited to, the following circumstances: 1) The member or other household members repeatedly demonstrate sexually inappropriate behavior; display verbally and/or physically abusive behavior; and/or threaten a personal assistance/homemaker or other agency staff with guns, knives, or other potentially dangerous weapons, including menacing animals. 2) The member or other household members display an abusive use of alcohol and/or drugs. Note: When BoSS receives an unsafe closure request, they will attempt to process the request as a transfer. To do so, BoSS will require the member (or legal representative) to sign Consent for Release of Information Form. This will permit all information regarding the unsafe circumstances to be disclosed to other 14-BOR-3409 Page 5

7 agencies and APS Healthcare/IRG. If another agency is not willing to accept the member due to unsafe circumstances, the case will be closed. DISCUSSION While the Department contended that the Claimant should be closed for non-compliance with the Plan of Care, no Plan of Care was provided by the Department to establish there was persistent non-compliance on the part of the Claimant. The Department s representative described the Plan of Care as a document which established the essential duties to be completed by the homemaker for the Claimant, such as light housework, bathing, cooking and travel, with an emphasis on providing for the member s personal needs. While the Claimant failed to immediately return a couple of phone calls, cancelled two appointments due to illness, and had to be reminded to return renewal paperwork, such actions are not what is contained on the Plan of Care, per the Department s representative and witness testimony. Furthermore, the Department conceded that while the Claimant required some reminders, she completed reviews and in-home visits within the prescribed timeframes. With respect to the Department s contention the Claimant s benefits should be closed due to an unsafe environment, the homemaker who quit working for the Claimant indicated that she felt uncomfortable with activities in the house, but failed to elaborate. The homemaker failed to provide any specific instances in which she was threatened or abused by the Claimant. While case notes indicate that the Claimant called an Agency worker on August 25, 2014, cussing, the Claimant later called back and apologized for her behavior. While cursing is a display of verbally abusive behavior, there was no indication that it rose to the level of placing any staff member in jeopardy. Furthermore, Nurse testimony that the Claimant was very good to us and very polite and that she and her co-worker did not feel unsafe revealed that she did not feel any threat to staff members safety or well-being. With respect to the Department s contention the Claimant s case should be closed for failure to utilize services for a period of 180 days, the Claimant did not receive notice that her benefits were being discontinued for failure to use services in the 180-day timeframe and no evidence was provided to support the Department s contention. CONCLUSIONS OF LAW 1) The Department failed to establish that the Claimant was persistently non-compliant with the Plan of Care as required by policy. 2) The Department failed to establish that the Claimant s actions met the definition of an unsafe environment contained in policy. 14-BOR-3409 Page 6

8 DECISION It is the decision of the State Hearing Officer to reverse the action of the Department to discontinue the Claimant s benefits and services through the Medicaid Aged/Disabled Title XIX Waiver Services Program. ENTERED this Day of December Donna L. Toler State Hearing Officer 14-BOR-3409 Page 7