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Decision by the Division of Social Services to terminate Medical Assistance benefits


In re:
DCIS No. Redacted
Redacted, a minor

Appearances:
Redacted, Appellant's Mother
MaryBeth Musumeci, Esquire, CLASI, counsel for Christofer Hubbard
Nancy Kling, Social Service Administrator, Division of Social Services
Anthony J. Brazen, D.O., Chief Medical Officer/Medical Director,
Division of Social Services

I.

Redacted (sometimes hereinafter referred to as Appellant or Redacted), by and through his representative, MaryBeth Musumeci, Esq., opposes a decision by the Division of Social Services (DSS) to terminate his Medical Assistance benefits under the Children's Community Alternative Disability Program (CCADP).

The Division of Social Services (DSS) contends that the Appellant is not eligible for benefits because he fails to meet the criteria set forth under this program for benefits. Specifically, DSS has determined that the Appellant's medical condition does not possess a profile that is consistent with a qualifying level of care and that he does not meet SSI medical disability standards for Meningomyelocele (and related disorders) (111.08) Moreover, DSS contends that they erred in approving Redacted last year, and that this action was taken to correct that mistake.

II.

On October 5, 2004, DSS sent Appellant a Notice to Close Your Medical Assistance (Exhibit 3). The Appellant thereafter filed a request for fair hearing. (Exhibit 2). Benefits have been continued pending a hearing decision.

The Appellant was notified by certified letter dated October 21, 2004, that a fair hearing would be held on November 15, 2004. The hearing was conducted on that date in New Castle, DE. This is the decision resulting from that hearing.

III.

Jurisdiction for this hearing is pursuant to §5304 and §5304.3 of the Division of Social Services Manual (DSSM). Under §5304:

an opportunity for a hearing will be granted to any applicant who requests a hearing because his/her claim is denied and to any recipient who is aggrieved by any action of the Division of Social Services. Only issues described in the notice of action sent to the Claimant or issues fairly presented in the Claimant's request for a fair hearing or in the Division's response in its hearing summary may be presented for the hearing officer's review at the hearing.

IV.

At the time of the hearing, Redacted was an 11-year-old male with diagnoses of Neurogenic Bladder/Bowel, Attention Deficit Hyperactivity Disorder (ADHD), and Lipomyelomeningocele. According to Dr. Alexander, Redacted rehabilitation physician, Redacted was taking Adderall XL, 10 mg. once per day, Ditropan XL, 15 mg. once per day, and Imipramine, 10 mg, twice per day as of July 30, 2004. According to the documentary evidence, Redacted was last evaluated for medical assistance in March 2003. At that time, the Medical Eligibility Fact Sheet noted that he was an appropriate candidate for an intermediate care facility and questionable for an intermediate care facility for mental disease. (Exhibit 4) During a recent medical re-evaluation of Redacted, beginning on or about August 2004, the DSS Medical Review Team (MRT) reviewed and determined that based on the information available to them, Redacted did not have a profile consistent with a qualifying level of care and did not meet the SSI medical disability standards for Meningomyelocele (and related disorders) (Section 111.08), and was therefore not eligible for continuation of benefits under CCADP.

V.

Appellant maintains that DSS has not shown a change in circumstances or other good cause as required for a termination of medical assistance under the state Medicaid program. Moreover, the Appellant argues that because he meets a qualifying level of care, he is presumptively disabled under CCADP.

Change in Circumstances/Good Cause

Medicaid benefits may not be terminated or reduced absent a demonstration of a change in circumstances or other good cause. See, Collins v. Eichler, C.A. Mo. 90A-JL2 (Del.Super.1991) (Emphasis added). In addition, counsel for Appellant correctly notes that when DSS terminates coverage it has the burden of proof to show either a change in circumstances or other good cause. (See, Delaware Division of Social Services Administrative Notice A-17-91, Exhibit 6))

The Collins case specifically mandates that Medicaid benefits not be terminated or reduced absent a demonstration of a change in circumstances or other good cause. Counsel for Appellant argues that since Redacted was approved last year and his medical condition has not changed, DSS is not entitled to terminate his coverage. The Collins case addressed a change in medical condition as the basis for the denial and the Court reversed the action taken by DSS in that case because DSS did not establish the Appellant's medical condition when she was initially approved, therefore, they did not meet their burden of showing a change in circumstances or other good cause. The Court went on to note that notwithstanding the "change in circumstances" requirement, DSS never even established that the Appellant was not nursing home eligible. From this, the Appellant concludes that there is no rational basis to terminate Redacted eligibility after being determined eligible last year. Moreover, Counsel for Appellant also argues that any doubt about coverage should be resolved in Redacted favor. (See, DSSM §25050).

To address this last issue first, counsel has correctly pointed out that, "any benefit of the doubt concerning program qualification should be resolved in favor of eligibility." However, counsel has failed to address three (3) important factors in making this statement. First, in this case, there is no doubt in the mind of DSS or this Hearing Officer that Redacted is not qualified for the CCADP program and the facts of this case have raised none. Second, the benefit of doubt argument is read in tandem with the State's commitment to promoting children's access to basic health care. Nathan is not in need of basic health care. Nathan has primary health care coverage from Blue Cross/Blue Shield and is only seeking CCADP benefits to assist in paying for supplies that his primary insurer does not cover. Finally, a review of Section 25050, entitled, "Purpose," reveals that this particular medical assistance program is not designed for children like Redacted. The program is designed for children with significant disabilities who would otherwise qualify to be cared for in an institutional setting. The Appellant's own medical records indicate that Redacted does not need to be in an institution considering the type of care that he needs and the type of care that his physicians and his family can and do provide.

Importantly, Appellant does not argue that DSS is prohibited from reviewing Redacted's case, only that the review performed did not establish a requisite change in circumstances or other good cause sufficient to terminate coverage. Here, the Appellant argues that because DSS authorized coverage last year and that his medical record remains primarily unchanged since that time, that DSS has not shown a change in circumstances to indicate why coverage is no longer appropriate. DSSM §25150 authorizes a redetermination of eligibility. The regulation further sets forth that the redetermination shall include a reassessment of whether the child meets all seven (7) of the eligibility criteria under DSSM §25100. The "shall" language indicates that DSS must look at all of the seven (7) criteria in redetermining eligibility for the program. Here, in performing its redetermination and assessing the seven (7) criteria, DSS determined that based upon the medical evidence they erred in approving the Appellant last year and that his current medical condition, which is similar to his condition last year, does not meet eligibility criteria.

DSS raised the issue of error in making last year's initial determination. It is admitted by DSS that they are not sure why Redacted was approved in the first instance and question that initial approval. In fact, Dr. Brazen, a member of the Medical Review Team (MRT) who participated in the initial determination as well as the redetermination, admitted that he erred in approving the case last year because he thought he had read that the Appellant needed assistance with catheterization, when in fact, the Appellant is able to self-catheterize. Unlike the Collins case, DSS does not argue that there was a change in the Appellant's medical condition and that the change resulted in the termination of his benefits. Here, DSS maintains that they erred in their initial determination and that they are not prohibited from correcting that mistake because the Appellant's condition did not change.

Appellant argues that pursuant to DSS regulations, since DSS has not shown a change in Redacted's condition (as opposed to a change in circumstances or other good cause as required under Collins) he therefore continues to meet the level of care requirement and, as such under the regulation, presumptively meets the SSI medical disability standards. Counsel's argument would have merit if she had been able to rebut that; (1) there was no good cause for termination, and (2) that Redacted does not require a level of care. Here, they have done neither. Mindful of their own burden of proof not only as to the particulars of this case, but to their burden of using program funds for a proper purpose, DSS re-evaluated Redacted, as they are allowed to do, and found that he does not and never did require an institutional level of care and is not disabled under SSI criteria. This position was supported by the medical records from the Appellant's own medical providers.

Based upon the medical documentation supplied and testimony regarding Redacted's daily regime and medical condition in 2004, there is no doubt about whether Redacted's medical condition is consistent with placement in an institutional facility - there is no credible evidence to support the position that Redacted's medical condition is consistent with a profile of one with a qualifying level of care.

In this case, the re-evaluation of Redacted's medical condition against the SSI medical disability standards as well as DSS's correction of their initial determination error, supported by medical documentation, provides the necessary "other good cause" espoused in Collins to support a termination of his medical assistance benefits.

The information provided to DSS shows a child whose medical condition does not support a profile consistent with a qualifying level of care for institutionalization and is not consistent with the SSI medical disability standards for Meningomyelocele (and related disorders) (111.08).

VI.

The Division of Social Services of the Department of Health and Social Services operates the Medicaid Program under Title XIX of the federal Social Security Act and under the authority it derives from 31 Del. C. 502(5), 503(b) and 505(3). The Medicaid Program provides for services to defined groups of individuals and families and is financed with State and federal funds. Children qualifying for benefits must meet income, resource and status eligibility tests.

The Children's Community Alternative Disability Program (CCADP) is a Delaware Medicaid option that is designed to serve children with significant disabilities. Such children would otherwise qualify to be cared for in an institutional setting.

The Medicaid program previously known as the Disabled Children's Program (now CCADP) has a wide-ranging background. Before 1987 the income of parents of disabled children was counted in the determination of Medicaid program eligibility if a child lived at home, but was not counted if a child was institutionalized. This created an inducement to institutionalize disabled children to qualify for Medicaid through the Supplemental Security Income (SSI) Program. To avoid this, States were permitted to apply for a "Katie Beckett" waiver or release from the institutional residence requirement so that medical assistance could be offered to children who resided at home, but required an institutional level of care.

In 1987, the Congress amended Title XIX of the Social Security Act to enable participating states to furnish Medicaid to disabled children. Under the amendment, children who would be eligible for Medicaid if they were institutionalized could be deemed to be eligible for Medicaid. DSS began to participate in the program and operate the Disabled Children's Program.

Under federal law a state can provide Medicaid to disabled children after the state determines that, (1) the child would be eligible for medical assistance if he or she were living in an institution; (2) while living at home the child receives "medical care that would be provided in a medical institution" such as a hospital, nursing home, or other facility; (3) it is appropriate to provide such care for the child outside an institution; and (4) the estimated cost of the care outside an institution is not greater than the coast in an appropriate institution.

The law is implemented by the federal rule at 42 C.F.R. 435.225 which enables states to authorize medical assistance to children who are blind or disabled under §1614(a) and who require a level of medical care that is equivalent to the care received by residents of institutions. The federal rule sets out a two-part test to provide medical assistance to children who, (1) "qualify under section 1614(a)" of the Social Security Act; and (2) who are determined to need the level of care provided at a medical institution.

Program eligibility is contingent upon a finding that non-institutional care is appropriate and services are available (DSSM 25100). To fulfill this requirement, DSS utilizes a Medicaid Review Team to make the determination that a child needs the level of care provided at an institution. As a member of the MRT, Dr. Brazen testified that a determination is made based upon the following factors: the Appellant's age, diagnosis, date of onset and medical treatment plan (this includes medications, treatments, therapies, special appliances, medical history, prognosis, and functional abilities); the medical and non-medical documentation submitted for review; the frequency, duration, severity and level of interference; response to treatment; substantial limitation of functioning under any condition; and, a determination if any conditions or effects of conditions are consistent with institutional care as would be received in an acute hospital, Skilled Nursing Facility ("SNF"), Intermediate Care Facility ("ICF"), or and Intermediate Care Facility for Mental Retardation or Mental Disease ("ICF/MR" or "ICF/MD"). (See, DSSM §25300).

DSS records indicate that the Appellant's mother, Kristina Hubbard, initially applied for Medical Assistance benefits in March 2003. At that time, the case was approved for benefits citing an ICF and with a question as to an ICF/MR. On September 30, 2004, the DSS Medical Review Team re-evaluated Appellant's case and determined that based on the information available to them, Redacted did not have a profile consistent with a qualifying level of care and did not meet the SSI medical disability standards for Meningomyelocele (and related disorders) (111.08) and was therefore not eligible for benefits under CCADP.

DSSM §25100 sets forth seven (7) criteria, all of which must be satisfied in order to be eligible for benefits under CCADP. One of those criteria mandates that the recipient of benefits require a level of care of either an acute hospital, Skilled Nursing Facility (SNF), Intermediate Care Facility (ICF), Intermediate Care Facility for Mental Retardation (ICF/MR), or Intermediate Care Facility for Mental Disease (ICF/MD). (DSSM 25100(5)). The testimony and evidence produced did not suggest that the Appellant required an acute hospital setting, a SNF, an ICF/MR or an ICF/MD, and these facilities were not considered. In addition, the evidence presented here failed to substantiate that Appellant is an appropriate candidate for an ICF pursuant to DSSM §25300 and §25300.4. Under section 25300, a level of care determination is made taking into account those characteristics previously described by Dr. Brazen, which include medical, mental, physical, familial, and environmental factors. Included within making the determination of a level of care is the facility in which the required care would be provided. Section 25300.4 sets forth that an ICF is an institutional setting in which nursing, and allied health and support services are provided on a daily basis.

In this case, while Redacted's medical condition does require daily drug therapies, which are self-administered (but which require prompting), catheterization four (4) times per day, which Redacted is also capable of performing on his own, and regular but not frequent physician visits, there is no indication that Redacted has a profile consistent with a qualifying level of care required to qualify for Medical Assistance under CCADP. A review by the MRT of the current documentation provided by Appellant's treating healthcare providers and his mother indicates that few other treatments have been identified or prescribed at this time, and none of the prescribed therapies requires a skilled level of care. Redacted's treatments and therapies are currently being provided in a non-healthcare institution without complication and are not otherwise consistent with care normally provided in a facility.

Here, counsel for Appellant argues that because Appellant has a chronic condition and meets a qualifying level of care, he presumptively meets the SSI medical disability standards for Meningomyelocele (and related disorders) (111.08). However, as has been shown, the Appellant does not meet a qualifying level of care and is therefore not entitled to any presumption regarding disability. In reviewing the criteria under SSI medical disability standards, the MRT acknowledges that the Appellant has Lipomyelomeningocele, but the Appellant does not otherwise have any of the required complications required under the disability standards. Counsel for Appellant did not dispute this determination, but relied upon her assertion that Appellant has a qualifying level of care.

Accordingly, since DSS has correctly determined that Redacted does not have a profile consistent with a qualifying level of care, he is not presumptively disabled under CCADP. In addition, since a review of the medical records upon redetermination indicates that the Appellant is not disabled pursuant to SSI Medical Disability Standards, he is ineligible for CCADP Medicaid coverage.

VII.

For these reasons, the Division of Social Services determination to terminate Redacted's Medical Assistance under CCADP is AFFIRMED.

Date: December 29, 2004

MICHAEL L. STEINBERG
HEARING OFFICER

THE FOREGOING IS THE FINAL DECISION OF THE DIVISION OF SOCIAL SERVICES

POSTED
MLS/vmd

cc:
MaryBeth Musumeci, Esquire, CLASI
Nancy Kling, DSS
Anthony J. Brazen, D.O., DSS

EXHIBITS FILED IN OR FOR THE PROCEEDING

  • EXHIBIT #1 - Copy of Fair Hearing Summary dated October 15, 2004, consisting of two (2) pages.
  • EXHIBIT #2 - Copy of Fair Hearing Request dated October 21, 2003, consisting of one (1) page.
  • EXHIBIT #3 - Copy of Notice to Close Your Medical Assistance, dated October 5, 2004, consisting of two (2) pages.
  • EXHIBIT #4 - Copy of Medical Records provided to MRT, consisting of 70 pages.
  • EXHIBIT #5 - Copy of Myelodysplasia and Neurogenic Bladder Dysfunction article from www.emedicine.com, last updated May 31, 2002, printed on August 11, 2004, consisting of 23 pages.
  • EXHIBIT #6 - Copy of Administrative Notice A-17-91, dated August 30, 1991, consisting of six (6) pages.
  • EXHIBIT #7 - Copy of Comprehensive Medical Report (handwritten), date-stamped January 9, 2003 and March 7, 2003, consisting of a front and back page, signed by Dr. McManus on January 3, 2002.
  • EXHIBIT #8 - Copy of Comprehensive Medical Report (handwritten and typewritten), date-stamped January 9, 2003 and March 7, 2003, consisting of a front and back page, signed by someone from Dr. Borin's Kids First on January 10, 2003.


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