Joe Manchin III Governor -----for ----- ----- ----- State of West Virginia DEPARTMENT OF HEALTH AND HUMAN RESOURCES Office of Inspector General Board of Review 4190 Washington Street, West Charleston, WV 25313 Patsy A. Hardy, FACHE, MSN, MBA Cabinet Secretary January 21, 2010 Dear -----: Attached is a copy of the findings of fact and conclusions of law on your hearing held January 12, 2010. Your hearing request was based on the Department of Health and Human Resources action to terminate your daughter s medical eligibility for the Children with Disabilities Community Services Program (hereinafter CDCSP). 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 and benefit levels for CDCSP are determined based on current regulations. Some of these regulations states that to be eligible for CDCSP, 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 inpatient psychiatric facility for children (CDCSP Manual effective September 1, 2008). In your daughter s case, she would need to meet the level of care provided in a Nursing Facility (NF). For NF, nursing facility level of care is appropriate for individuals who do not require acute hospital care, but, on a regular basis, require nursing services, or other health-related services ordinarily provided in an institution. (CDCSP Manual effective September 1, 2008) The information submitted at your hearing fails to demonstrate that your daughter s current medical condition requires care at the Nursing Facility (NF) level. It is the decision of the State Hearing Officer to uphold the action of the Department in terminating your daughter s medical eligibility for the CDCSP program. Sincerely, Cheryl Henson State Hearing Officer Member, State Board of Review cc: Erika H. Young, Chairman, Board of Review ----- / Mary McQuain / PC&A
WEST VIRGINIA DEPARTMENT OF HEALTH & HUMAN RESOURCES BOARD OF REVIEW -----, Claimant, v. Action Number: 09-BOR-1222 West Virginia Department of Health and Human Resources, Respondent. I. INTRODUCTION: DECISION OF STATE HEARING OFFICER This is a report of the State Hearing Officer resulting from a fair hearing for -----. 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. The fair hearing was convened on January 12, 2010 on a timely appeal filed May 5, 2009. It should be noted that the hearing was originally scheduled for September 25, 2009 but was continued at the Claimant s request. It was again scheduled on October 30, 2009 but was continued at the Department s request. It was also rescheduled for December 10, 2009 but was continued due to technical difficulties. II. PROGRAM PURPOSE: The Children with Disabilities Community Service Program provides medical services for disabled children who would otherwise be at risk of institutionalization so that they may reside in their family homes. The medical services must be more cost effective for the State than placement in a medical institution such as a nursing home, ICF/MR facility, acute care hospital or approved Medicaid psychiatric facility for children under the age of 21. III. PARTICIPANTS: -----, Claimant s mother -----, Counsel for Claimant Mary McQuain, Counsel for Department Ashley Trador, RN Consultant, Department s witness Ronald Montgomery, BMS Program Manager, Department s witness Presiding at the Hearing was Cheryl Henson, State Hearing Officer and a member of the State Board of Review. - 1-
IV. QUESTION TO BE DECIDED: The question to be decided is whether the Department was correct in its action to terminate the Claimant s medical eligibility for CDCSP. V. APPLICABLE POLICY: WV DHHR Eligibility Guide for Children with Disabilities Community Services Program (CDCSP) Chapter 526 VI. LISTING OF DOCUMENTARY EVIDENCE ADMITTED: Department s Exhibits: D-1 Denial Notice Memorandum dated April 5, 2009 D-2 CDCSP Manual Chapter 526 D-3 Code of Federal Regulations Title 42 for CDCSP D-4 Excerpt from State Medicaid Manual D-5 Medicaid Billing History from January 1, 2008 through September 30, 2009 D-6 DD-2A dated January 26, 2009 D-7 Pre-Admission Screening dated January 26, 2009 D-8 Comprehensive Psychological Evaluation for CDCSP dated January 22, 2009 D-9 Social History dated January 22, 2009 D-10 LMMH Master Treatment Plan dated April 22, 2009 D-11 Individualized Education Program form dated May 29, 2008 D-12 BMS-CDCSP Cost Estimate Worksheet dated February 17, 2009 D-13 Request for Hearing form signed April 19, 2009 Claimant s Exhibits: C-1 HCFA ID 7983E West Virginia State Plan for CDCSP dated December 1991 Vouched Exhibits: Medicaid Program Instructions MA-03-65 and MA-94-41 VII. FINDINGS OF FACT: 1) The Claimant was actively participating in CDCSP based on her medical eligibility for Nursing Facility (NF) level of care on or about April 5, 2009 when the Department notified her via a Memorandum (D-1) from Mekell L. Golden, Project Manager, that she no longer meets the medical eligibility criteria for participation in CDCSP. This notice states: The application submitted for the above named individual could not be redetermined as one or more of the following was insufficient or missing. - 2-
Other: Review of documentation submitted does not support the need for services ordinarily provided in a nursing facility. 2) The Department s first witness, Ronald Montgomery, who is employed with the Bureau for Medical Services in the Office of Medical Management and Information Systems, testified that he has custody over the billing records submitted by medical care providers for payment by the state Medicaid agency. He also testified that the Department s Exhibit (D-5) is a report of all the medical services claims submitted by physicians, hospitals, laboratories, and the Board of Education for services rendered to the Claimant from January 2, 2008 through September 25, 2009. He added it does not include prescription billing information. Mr. Montgomery also stated the report shows there is no NF type services billed for the Claimant during the timeframe considered. He also testified that according to the printout, the Claimant received no Medicaid billed nursing services of any kind, as well as no rehabilitative, physical or occupational therapy services for the period considered. On cross examination, he testified that he is a data analyst, and he has access to the reports to examine the type of claims submitted to Medicaid for payment. 3) Another Department witness, Ashley Trador, who is a contracted Registered Nurse for Psychological Consultation and Assessments (PC&A), testified that she has received a Bachelor s degree from Marshall University in Nursing, and is currently in medical school. She stated she is licensed to practice nursing in the State of West Virginia. She added that she has worked at various hospitals throughout the State and has worked in all areas of these hospitals. She testified that she has worked for eighteen (18) months for PC&A reviewing eligibility for CDCSP. She also expressed prior experience with the Intermediate Care Facility for the Mentally Retarded (ICF/MR) program as well as Title XIX Waiver. She testified that she is familiar with the policy for CDCSP. Ms. Trador qualified as an expert in evaluation of medical eligibility for CDCSP. 4) Ms. Trador testified that she reviewed the DD-2A dated January 26, 2009 (D-6), the Pre- Admission Screening form dated January 26, 2009 (D-7), the Comprehensive Psychological Evaluation dated January 22, 2009 (D-8), the Social History dated January 22, 2009 (D-9), the Logan-Mingo Mental Health, Inc. Master Treatment Plan dated January 22, 2009 through April 22, 2009 (D-10), the Individualized Education Program form dated May 29, 2008 (D-11), and the West Virginia Department of Health and Human Resources Cost Estimate Worksheet dated February 17, 2009 (D-12) while evaluating the Claimant s continued medical eligibility for the CDCSP program. She testified that she doesn t look at the Psychological (D-8) so much, and she did not speak with either of the licensed Psychologists, Rick and Linda Workman, who are her employers, in reviewing this particular document. She stated that she gets some of the Claimant s health history information from the Psychological, and uses the document to gain a better understanding of the Claimant, away from the general medical jargon contained in many of the other exhibits. She went on to say that the Claimant is currently prescribed two medications, Nasonex and Albuterol as needed, and she does not believe that demonstrates a medically fragile person. She stated the documents show the Claimant has asthma, a fusion in her spine, and behavior listed as odd. She testified that none of the documents show that the Claimant is currently prescribed any rehabilitative services, including physical and occupational therapy. She testified the Individualized Education Program form (D-11) shows she attends regular classes in school ninety seven per cent (97%) of the time, and does not address whether she needs help with personal care or speech therapy. She testified that the - 3-
physician who completed the DD-2A (D-6) recommended nursing facility level of care for the Claimant; however, the documents do not show that she meets any of the medical criteria. 5) The Claimant presented no testimony or evidence to refute the Department s finding of medical ineligibility. 6) On cross-examination, when asked whether she had a copy of the Federal law that pertains to CDCSP, Ms. Rador answered no. The Claimant was addressing the disclaimer to the CDCSP policy in Chapter 526 which reads: DISCLAIMER: This manual does not address all the complexities of Medicaid policies and procedures, and must be supplemented with all State and Federal laws and regulations. Ms. Rador also testified on cross that she did not review the Federal law when evaluating the Claimant s medical eligibility for CDCSP. She added that she has reviewed a total of approximately thirty (30) cases for CDCSP during her tenure in her current position. When asked whether she had been given any Federal Regulation which speaks to there being a difference in characteristics between individuals who meet nursing facility level of care criteria that are in a nursing facility versus those who remain in the community, she answered no. She also testified that she had not met with the Claimant during the evaluation. The Claimant introduced not regulation or law that was germane to any issue being decided. 7) The West Virginia Department of Health and Human Resources Children with Disabilities Community Services Program Manual Chapter 526 states in pertinent part: MEMBER ELIGIBILITY AND ENROLLMENT PROCESS Targeted Population includes: A child from a newborn up through the age of 18 (Soc. Sec. Act, Sect. 10902(e)(3)(A), who lives with his/her adoptive or biological family, and; Who has a disability that qualifies him/her to receive Supplemental Security Income (SSI), but who is denied SSI because his/her parent income or assets exceeds the Social Security Administration guidelines; Whose care is provided in his/her home and community setting at the same level of quality and does not exceed the cost of care in a medical institution, and; Whose care requires the level of services provided in one of the following medical facilities: Nursing facility (NF): A child with a significant need for medical services and/or nursing services who is at risk of hospitalization or placement in a nursing facility. Nursing facility services are skilled services that are needed on a daily basis that must be provided on an inpatient basis and ordered by, and provided under the direction of a physician. (42CFR) - 4-
Nursing facility level of care is appropriate for individuals who do not require acute hospital care, but, on a regular basis, require nursing services, or other health-related services ordinarily provided in an institution. With respect to an individual who has a mental illness or mental retardation, nursing facility level of care services are usually inappropriate unless that individual s mental health needs are secondary to needs associated with a more acute physical disorder. 8) The West Virginia Department of Health and Human Resources Children with Disabilities Community Services Program Manual Section 526.3 states in pertinent part: MEMBER MEDICAL AND FINANCIAL ELIGIBILITY The member must have a determination of medical eligibility. Medical eligibility is comprised of two components: 1. The applicant must meet the level of care stated in the application; and 2. All medical costs (billed charges) the child incurred in the 12 months prior to application are less than the costs that would have been incurred in the institution for the distinct level of care during the same period. The child s proposed costs for the forthcoming year are also compared to the costs in the institution and may not exceed the ceiling for the specific level of care. 9) The West Virginia Department of Health and Human Resources Children with Disabilities Community Services Program Manual Section 526.4 states in pertinent part: 5. The Service Coordinator/Case Manager or Parent completes or may provide the following: *DD-6/CDCSP, Cost Estimate Sheet *DD-4/CDCSP, Social History *Obtains the Individualized Education Plan (IEP) for school-age children *Obtains the DD-2A/CDCSP or DD-2B/CDCSP, Medical Evaluation *DD-3/CDCSP, Psychological Evaluation (for ICF/MR Level of Care only) *Other documentation if required and/or pertinent to apply for the institutional level of care the individual is seeking *The packet of information is to be submitted directly to the contracted agency (vendor) dated and logged. Applications will be reviewed in the order received. 6. The Bureau for Medical Services (BMS) or its agent reviews the documentation to determine medical eligibility. Additional information may be requested to support application. *If the documentation does not support medical or cost eligibility, BMS informs the Service Coordinator/Case Manage, or parent and the local DHHR office. The parent/applicant is notified of the appeals process. *If the documentation substantiates medical eligibility, the local DHHR office, Service Coordinator/Case Manager or parent, is informed. - 5-
9. Medical and financial eligibility must be re-established annually, following the same guidelines. 10) The WVDHHR Children with Disabilities Community Services Program Manual Section 526.7 states in pertinent part: MEDICAL ELIGIBILITY FOR NURSING FACILITY LEVEL OF CARE Nursing facility level of care is appropriate for children who do not require acute hospital care, but who, on a regular basis, require skilled nursing services, complex rehabilitation services, and other health-related services ordinarily provided in an institution. Skilled nursing services are provided to children living at home who have significant medical needs and require complex nursing treatments, personal care, specialized therapy, and medical equipment to enhance or sustain their lives. The child s daily routine is substantially altered by the need to complete specialized, complex, and time consuming treatments. A nursing facility level of care is appropriate when the child requires complex skilled nursing care or comprehensive rehabilitative interventions throughout the day including ALL of the following: 1. The child requires skilled nursing or skilled rehabilitation services that must be performed by, or under the supervision of professional or technical personnel; AND 2. The child requires specialized professional training and monitoring beyond the capability of, and those ordinarily expected of parents; AND 3. The child requires skilled observation and assessment several times daily due to significant health needs; AND 4. The child requires these skilled services on a daily basis; AND 5. A skilled nursing facility setting must be furnished pursuant to a physician s order and be reasonable and necessary for the treatment of a child s illness or injury (i.e.,, be consistent with the nature and severity of the individual s injury or illness, his particular medical needs and accepted standards of medical practice); AND 6. The child has unstable health, functional limitations, complicating conditions, or is medically fragile such that there is a need for active care management; AND 7. The child s impairment substantially interferes with the ability to engage in everyday bathing, dressing, toileting, feeding, and walking/mobility; AND - 6-
8. The child s daily routine is substantially altered by the need to complete these specialized, complex and time consuming treatments and medical interventions or self care activities; AND 9. The child needs complex care management and/or hands on care that substantially exceeds age appropriate assistance; AND 10. The child needs complex restorative, rehabilitative and other special treatment of a chronic nature that can be provided only in a skilled nursing facility. In other words, institutionalization in a nursing facility would be necessary in the absence of these services provided in the community setting; AND 11. In addition to the general requirements above, the child s condition must require one or more of the following defined settings below on a daily basis: * Observation, assessment and monitoring of a complicated or unstable condition; OR * Complex teaching services to the child and/or family requiring 24-hour skilled nursing facility (SNF) setting vs. intermittent home health setting; OR * Complex medication regimen other than oral medication or medication otherwise deemed self administered, such as insulin or growth hormone; OR * Initiation of tube feedings; OR * Active weaning of ventilator dependent children requiring changing and monitoring of ventilator setting; OR * Wound care (including decubitus ulcers) requiring more than just superficial dressing changes, i.e. packing, debridement, etc. VIII. CONCLUSIONS OF LAW: 1) As a condition of medical eligibility, the policy that governs the Children with Disabilities Community Services Program states that the applicant must require Nursing Facility (NF) level of care at the time of application. Policy also states that nursing facility level of care is appropriate when a child requires complex skilled nursing care and comprehensive rehabilitative interventions throughout the day including eleven (11) specific elements listed in Chapter 526.7 of the CDCSP Manual. 2) The Department s witness, Ms. Trador, testified that after reviewing all the information provided for review, she determined the Claimant met none of the eleven (11) listed required elements. The Claimant contends she meets them all as she must, as policy is clear that all eleven (11) criteria must be met to be eligible; however, the evidence was not sufficient to support this claim. - 7-
3) The evidence provided is sufficient to support that the Claimant meets the requirements in one (1) of the eleven (11) specific requirements, that being number seven (7). She clearly has mobility issues due to the spina bifida that render her in need of physical assistance with eating, bathing, dressing, grooming, and toileting. Her hands and legs are weak, and the range of motion in her arms is quite limited. She also has difficulty opening and holding onto objects. Her health prognosis is listed as guarded by her physician, and she has had numerous hospitalizations. 4) Due to the fact that eleven (11) specific elements are required to be met for CDCSP, the evidence submitted to establish medical eligibility for the Claimant in this instance fails to support that she continues to meet the eligibility requirements. IX. DECISION: It is the decision of the State Hearing Officer to uphold the action of the Department in terminating the Claimant s medical eligibility for CDCSP. X. RIGHT OF APPEAL: See Attachment XI. ATTACHMENTS: The Claimant s Recourse to Hearing Decision Form IG-BR-29 ENTERED this 21 st Day of January, 2010 Cheryl Henson State Hearing Officer - 8-