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Decision by the Division of Social Services to deny application for Medical Assistance


In re:
DCIS No. Redacted
Redacted, a minor

Appearances:
Redacted, Appellant's Father
A. Ann Woolfolk, Esq., Deputy Attorney General, Division of Social Services
Anthony J. Brazen, D.O., Medical Director, Division of Social Services

I.

Redacted (sometimes hereinafter referred to as "Appellant" or "Redacted"), by and through her parents, Mr. and Mrs. Redacted opposes a decision by the Division of Social Services (DSS) to deny her application for Medical Assistance benefits under the Children's Community Alternative Disability Program (CCADP). (This program was formerly called the Disabled Children's Medicaid Program. The name was changed to the "Children's Community Alternative Disability Program" on November 10, 2001. See, 5 Delaware Register 1097, November 1, 2001. See also, Division of Social Services Manual section 25000 et seq.)

The Division of Social Services (DSS) contends that the Appellant is not eligible for benefits because she fails to meet the criteria set forth under Delaware Social Services Manual (DSSM) 25100 through 25800 for benefits to be provided. Specifically, DSS has determined that the Appellant does not require institutional care and does not meet Social Security Administration (SSA) disability criteria.

II.

On September 10, 2004, Appellant, through her parents Mr. and Mrs. Redacted, applied for Medical Assistance CCADP benefits claiming that she was entitled to benefits due to her diagnoses of auditor, sensory and tactile processing dysfunction.

On October 13, 2004, DSS denied the Appellant's application for Medical Assistance CCADP benefits because the Appellant did not qualify for institutional care and did not meet Social Security Administration (SSA) disability criteria. The Appellant thereafter filed a timely request for fair hearing on January 11, 2005. In the fair hearing request letter, the Redacted asked DSS to consider additional medical documentation provided by Dr. Richard Fischer ("Fischer").

The Appellant was notified by certified letter dated January 24, 2005, that a fair hearing would be held on March 10, 2005. On February 24, 2005, the Appellant requested a continuance due to a scheduling conflict. The Appellant was notified by certified letter dated March 1, 2004 that a fair hearing would be held on April 4, 2005. A hearing was held on that date, in Conference Room 258, Lewis Building, Herman Holloway Campus, 1901 N. DuPont Highway, New Castle, Delaware. 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.

Section 5304.3 provides jurisdiction for a hearing of an adverse decision of a Managed Care Organization.

IV.

At the time of the hearing, Redacted was a 5-year-old female with diagnoses of auditory, sensory and tactile processing dysfunction. Redacted underwent heart surgery with ablation in January 2004 for Wolff-Parkinson-White Syndrome. She now attends the Early Learning Center in the Appoquinimink School District where she participates in a 5 day a week kindergarten program with twelve and one half (12 1/2) hours of special education a week. Redacted participates in occupational therapy one time a week for fifteen (15) minutes to address her grasping skills and participates in speech therapy for ninety (90) minutes per week in a group setting. In addition, Zyrtec, an allergy medicine, is the only medication prescribed for Redacted When Appellant's application for Medical Assistance CCADP benefits was received on September 10, 2004, the DSS Medical Review Team (MRT) (The Medical Review Team is comprised of Dr. Anthony Brazen and Nancy Kling.) reviewed the case and determined that based on the information available to them, Redacted did not need institutional care and did not meet Social Security Administration (SSA) disability criteria, and; therefore, was not eligible for benefits under Medical Assistance CCADP. At the time of the hearing, Mr. Redacted offered additional medical testing documentation as evidence. Dr. Anthony Brazen ("Brazen") reviewed the documentation at the time of the hearing and opined that the results would not have changed the MRT's decision denying Medical Assistance CCADP benefits to Redacted. In a letter written by Hope Korbet, Speech-Language Pathologist at the Center for Autism and Related Disorders, dated February 15, 2004, Redacted's diagnoses additionally include encephalopathy and receptive/expressive language disorder. In a letter written by Dr. Fischer, pediatric neurologist, dated December 1, 2004, Redacted's diagnoses additionally include autism.

Appellant maintains that because she is autistic and cannot receive the help she needs from the Appoquinimink School District, she should qualify for Medical Assistance CCADP benefits so she can participate in the Delaware Autistic Program to receive specialized services available through the program.

DSS, on the other hand, maintains that, after reviewing relevant, current medical documentation, the Appellant does not have a profile consistent with a qualifying level of care and their decision to deny benefits should be upheld.

Based upon the medical documentation supplied during the fair hearing and testimony provided regarding Redacted's current medical condition, the record reveals the following relevant points. Redacted performance IQ is measured at 113. Redacted is not considered disabled for mental retardation because her IQ is over 59. Additionally, Redacted a could qualify as disabled if her IQ fell within the 60 to 70 range with an additional mental impairment that imposed a significant functional limitation. Because Redacted's IQ falls within the 110+ range, she does not qualify as disabled for mental retardation. Testing to establish Redacted's visual motor integration skills was completed at age 61 months. The test results revealed Redacted's performance level at 54 months. Dr. Brazen opined that the 54 month level does not equate to a significant deficit that he would find if an individual was disabled.

Mrs. Redacted reported in a questionnaire that Redacted met all of her developmental milestones within the typical limits, she occasionally used effective communication, she is not difficult to discipline, and gets along well with others. During testing observation, Redacted exhibited the following traits: she was cooperative, happy, and frequently smiling. The results of her cognitive tests results reveal that Redacted's scores were in the deficient to borderline range with a lot of scattering and her early math scores were borderline compared to others in her age group. In the behavioral area, Redacted's parents viewed her as a child with no behavioral issues, although her teachers at school were concerned about several of her behaviors.

Judy Green (Green), school psychologist, evaluated Redacted on May 20, 2004. Ms. Green concluded that Samantha scored within the borderline range for communication skills, within the low average range for daily living skills, within the deficient to borderline range for socialization skills, within the deficient range for motor skills and within the deficient range for composite adaptive behavior. Dr. Brazen indicated that the report did not provide guidance as to the significance of the deficient range; however, for disability there must be marked impairment in various areas. Dr. Brazen concluded that the report did not clearly reveal significant marked impairment to qualify as disabled.

Dr. Fischer performed an examination dated December 1, 2004 where he determined that Redacted demonstrated peculiar stiffening mannerisms with her hand and made a funny noise when she was excited, exhibited delayed echolalia, and her ability to participate in reciprocal conversation was limited; however, she was not withdrawn, aggressive, hyperactive, and she did not experience mood swings, sleep problems, temper tantrums, breath-holding spells, depression, suicidal thoughts, hallucinations, or personality changes. Dr. Fischer's report identified memory problems, delayed speech, clumsiness, school failure, and underachievement as Redacted's neurological deficits. In addition, Dr. Fischer's report noted that the Appoquinimink School District Redacted with educatable mental retardation. Dr. Brazen opined that because Dr. Fischer planned to see Redacted again in six (6) months that Redacted would not require an institutional level of care if followed by a neurologist at this interval. To require an institutional level of care, a treating neurologist would review and treat his patient on a more frequent basis.

During testing performed at the Center for Autism and Related Disorders on February 15, 2005, Redacted paid proper attention for approximately the first 90 minutes of the test but after the 90 minute interval she began to exhibit signs of restlessness Redacted testing revealed mild expressive language disorder and the report predicted that Redacted would make good progress in speech and language acquisition if the provided with appropriate intensity and frequency of intervention. During the testing, Redacted exhibited no tantrums, no negative behavior, no signs of anxiety, no unusual routine behaviors, and no compulsive or stereotypical behavior. Dr. Brazen opined that while Redacted may have some autistic traits, her condition does not rise to the level of being disabled; instead her autistic disorder is very mild.

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 or disability.

V.

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 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. (Public Law 100-203, §4118(c)) 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 (42 U.S.C.A. 1396a (e)(3)(B)) 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. The following factors are reviewed to determine if an individual requires institutional care: 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).

Redacted applied for Redacted s benefits on September 10, 2004. DSS determined that a review was appropriate to determine whether the Appellant qualified for benefits as of September 10, 2004. The DSS Medical Review Team (MRT) determined that based on the information available to them, Redacted did not have a profile consistent with a qualifying level of care or disability, 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)). Dr. Brazen explained that an individual who did qualify for institutional care in an ICF/MD due to a diagnosis of autism would suffer a disorder that must compromise age appropriate functioning in multiple areas that requires frequent and intensive medical and behavioral interventions including: 1) drug therapy, 2) professional counseling, and 3) behavioral management techniques. Dr. Brazen opined that Redacted required none of these therapies to treat her mild autism.

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. 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, 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 condition requires her to participate in occupational therapy and speech therapy at school, there is no indication 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 indicates that no other treatment has been identified or prescribed at the time the application was denied on October 13, 2004, and none of the recommended therapies requires a skilled level of care. At the time of application, Redacted's treatments and therapies were being provided by the school and were not otherwise inconsistent with care normally provided in a facility. It should be noted that on February 15, 2005, the Center for Autism and Related Disorders recommended that Redacted's occupational therapy increase from fifteen (15) minutes per week to one (1) hour per week, and the speech therapy should increase from ninety (90) minutes per week to three (3) hours per week. In addition, the Center for Autism and Related Disorders recommended a one on one personal aide to assist Redacted in the education system. There is no indication in the record that these therapies could not be continued within Redacted's current educational setting. In addition, Dr. Brazen opined that the results and conclusions of the Center's report did not change his opinion that Redacted did not require institutional care.

Dr. Brazen testified that a diagnosis of autism encompasses different degrees of impairment and that simply because an individual is diagnosed with autism does not mean that the individual is disabled. When examining autistic individuals additional medical needs would need to be present for the Appellant to qualify for institutional care. The additional medical needs include: a need for oxygen, colostomy care, gastrostomy care, tube feeding, and the need for IV medication. Dr. Brazen concluded Redacted does not require any of these treatments.

In addition to other criteria enumerated in DSSM §25100, in order for eligibility to be found, it must be shown that, under subsection 4, the child meet Supplemental Security Income (SSI) medical disability standards codified at 42 U.S.C. §1382c(a). In this case, Dr. Brazen opined that as a result of a review of the documentation provided, the MRT determined that Redacted is not disabled pursuant to current Social Security Administration guidelines. However, because it is the determination of the hearing officer that Samantha is otherwise ineligible for benefits because she fails to meet another of the seven (7) listed criteria under DSSM §25100, it is unnecessary to address the disability issue.

Accordingly, since DSS has correctly determined that Redacted does not have a profile consistent with a qualifying level of care, she is ineligible for CCADP Medicaid coverage.

VI.

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

Date: April 12, 2004

MICHAEL L. STEINBERG, J.D.
HEARING OFFICER

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

POSTED
MLS/vmd

cc:
Redacted
A. Anne Woolfolk, Esq., Deputy Attorney General, DSS
Anthony J. Brazen, D.O., DSS

EXHIBITS FILED IN OR FOR THE PROCEEDING

  • EXHIBIT #1 - A copy of the DSS Fair Hearing Summary consisting of two (2) pages date-stamped January 14, 2005.
  • EXHIBIT #2 - A copy of the Appellant's request for a fair hearing dated January 11, 2005, consisting of five (5) pages.
  • EXHIBIT #3 - A copy of Notice to Deny Your Medical Assistance, dated October 18, 2004, consisting of three (3) pages.
  • EXHIBIT #4 - DSS packet of medical information, reviewed by MRT, consisting of 22 pages.
  • EXHIBIT #5 - Documents provided by Appellant at the April 4, 2005 hearing, consisting of 10 pages.


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