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


In re:
DCIS No. Redacted
Redacted, II, a minor

Appearances:
Redacted, Appellant's Father
Wanda Zebley, Sr. Social Worker/Case Manager, Division of Social Services
Anthony J. Brazen, D.O., Medical Director, Division of Social Services
Nancy Kling, Social Services Administrator, Division of Social Services

I.

Redacted (sometimes hereinafter referred to as "Appellant" or "Redacted"), by and through his parents, opposes a decision by the Division of Social Services (DSS) to deny his re-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.) In addition, the Appellant maintains that DSS's original decision to terminate benefits under CCADP was caused by a DSS representative's incorrect interpretation of a telephone conversation with Mrs. Redacted where the DSS employee noted that Redacted was no longer using the Medical Assistance benefit and Mrs. Redacted wished to close the case. Later, DSS informed Mr. Redacted that he should re-apply for Medical Assistance benefits under CCADP for the Appellant to start receiving Medical Assistance once again.

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 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 January 14, 2004, Mrs. Redacted called DSS to discuss her daughter's case. On that date, DSS representative, P. Williams, recorded in her notes that Appellant's "mother called to request that case be closed. They are not using the Medicaid. DCIS closed." Sometime after January 14, 2004, DSS sent the Redacted a letter, addressed to Redacted, confirming that Appellant's benefits would be terminated because the Appellant called to request that the case be closed.

On September 10, 2004, Mr. Redacted visited the DSS office and spoke with a supervisor concerning the Appellant's case. At that time, Mr. Redacted reapplied for Medical Assistance CCADP benefits for the Appellant. 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.

The Appellant was notified by certified letter dated January 26, 2005, that a fair hearing would be held on March 17, 2005. On February 2, 2004, DSS requested a continuance due to a scheduling conflict with a key witness. The Appellant was notified by certified letter dated February 4, 2005 that a fair hearing would be held on February 25, 2005. On February 18, 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 March 30, 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 14-year-old male with diagnoses of Attention Deficit-hyperactivity Disorder ("ADHD"), central auditory processing dysfunction, and the possibility of autistic spectrum disorder. The ADHD had been diagnosed since early childhood. Redacted received benefits under Medical Assistance CCADP and its predecessor program since January 4, 1995 at the age of 4, when he was first approved for the Disabled Kids program. At that time, Redacted suffered from encephalopathy and oppositional defiant disorder and had received medication (for his ADHD), speech therapy, and occupational therapy. Currently, Redacted attends school at Redding Middle School in the Special Education area. When Appellant's re-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.

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 DSS terminated his benefits, after incorrectly interpreting a telephone call from his mother inquiring about his sister's benefits, his Medical Assistance CCADP benefits would still be continuing at this time if the error had not occurred and he should not be penalized for a DSS error.

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. They also argue that because the Appellant never requested a hearing concerning the original January 14, 2004 Medical Assistance CCADP termination and never mentioned the January 14, 2004 termination in their January 11, 2005 request for a fair hearing, the issue concerning the January 14, 2004 termination has not been presented for review. DSS contends that the only issue to be considered is DSS's decision to deny Appellant's benefits after he reapplied on September 10, 2004 and DSS ultimately determined that he did not have a profile consistent with a qualifying level of care on October 18, 2004.

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). 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)

A review of Redacted's medical condition, applying a change in circumstances or good cause standard, would be appropriate if Redacted's Medical Assistance CCADP benefits continued past January 14, 2004 and the benefits were subject to termination due to MRT review during a period of benefit continuation. However, in this case, Redacted's benefits ended on January 14, 2004. Neither Redacted appealed the January 14, 2004 Medical Assistance CCADP benefit denial. Therefore, Appellant's contention that DSS has not shown a change in circumstance or other good cause is moot. However, the case will be reviewed considering whether DSS correctly denied Appellant's re-application for benefits.

Similarly, Appellant's assertion, that a DSS error should eliminate the need for a medical team review of the Appellant's current medical condition, must fail. Mr. Redacted could have appealed a benefit termination he believed was made in error by requesting a fair hearing in a timely manner after the January 2004 termination. Although Mr. Redacted indicated that a letter informing him of the benefit termination was addressed to Redacted, Mr. Redacted must have understood that any letter from DSS addressed to his son would have included important information relevant to Redacted's Medical Assistance CCADP benefits. Mr. Redacted had been working with DSS since 1995 and in all likelihood had received many important letters from DSS. Appellant's contention that he could not have known about the benefit termination because the DSS letter was addressed to his son is not credible.

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. A psychoeducational evaluation performed by the School Psychologist, Erin Haupt, reveals Redacted's full scale IQ at 83 and his verbal comprehension IQ at 85. Redacted is not considered disabled for mental retardation because his IQ is over 59. Additionally, Redacted could qualify as disabled if his full scale IQ fell within the 60 to 70 range with an additional mental impairment that imposed a significant functional limitation. Because Redacted's full scale IQ falls within the 80+ range, he does not qualify as disabled for mental retardation. Although Mr. Redacted emphasized that a number of Redacted's underlying IQ scores were considered clinically significant by Ms. Redacted, Dr. Brazen explained that to be considered disabled, the finding must show marked severity. Dr. Brazen indicated that clinically significant does not rise to the level of marked severity.

Redacted's basic reading skills fall within the average range. In addition, while in the 6th grade, Redacted received A's and B's with a C in math. Redacted's cognitive abilities fall within the low range; however, his scores were average considering other children within his age group. In addition, Redacted exhibits several behavioral problems including: aggressiveness, being a sore lose, blaming others for things that happen to him, complaining about rules, displaying weak social skills, being easily distracted, and appearing anxious and withdrawn.

A medical report provided by Anne Aldridge, M.D. reveals that Redacted currently receives no medication for his condition. Dr. Brazen testified that there was a suggestion within the medical documentation that Redacted would benefit from psychological counseling; however, there is no indication in the record that Redacted ever participated in counseling.

Although Redacted has been diagnosed with ADHD, he is not receiving medication to treat the condition. Dr. Brazen opined that normally individuals with ADHD and severe disabilities participate in psychotherapy and are treated with an extensive drug regimen. In addition, Dr. Brazen noted that a November 5, 2003 telephone conversation with Mr. Redacted reflected that Redacted was not on any prescription medicine for ADHD, and that Redacted had not been involved in any counseling for several years.

At some time in the past, Redacted participated in a short course of occupational therapy to improve his sensory processing difficulties. While in the program, training for a home program was initiated so Redacted could continue to decrease his sensory sensitivity at home. In addition, Redacted received occupational therapy once or twice a week at school. Redacted underwent an occupational therapy evaluation on February 26, 2004 at the time he was 13 years old, 3 months, the following results were presented: his upper-limb coordination subtest showed age equivalency of 12 years, 8 months; his visual-motor control subtest showed age equivalency of 10 years, 2 months, and his upper-limb speed and dexterity subtest showed age equivalency of 15 years, 11 months. Dr. Brazen noted that to be considered disabled, a child must be delayed in his development by more than one half his chronological age. Therefore, the test results must have shown age equivalencies between 6 to 6 1/2 years of age for Redacted to be considered disabled. Dr. Brazen opined that the test results were not close to this level.

Finally, testimony revealed conflicting opinions concerning whether Redacted suffered from autism. Dr. Brazen noted that the Delaware Autism Program's Screening Report completed in November 2004 did not support a finding of autism. Redacted did exhibit atypical behaviors during the testing including impairment in social interaction and poor eye contact. However, those behaviors were attributable to factors other than autism including his previously diagnosed behavioral difficulties; however, Redacted's anxiety affected the observer's ability to interpret the test findings. The Screening Report concluded that "[t]he results of the present assessment indicate that Redacted's skill profile is not consistent with an educational classification of autism, although there is evidence of other difficulties."

Mr. Redacted provided additional documentation from Richard Fischer, M.D. a Board Certified Pediatric Neurologist to support his position that Redacted suffers from autism. On September 14, 2004, Dr. Fischer evaluated Redacted for "possible autistic spectrum disorder." In addition, Dr. Fischer asked that Redacted be considered for placement with the Delaware Autism Program. As noted above, in November 2004, the Delaware Autism Program's Screening Report revealed that Redacted did not suffer from autism. Nevertheless, on January 10, 2005, Dr. Fischer opined that Redacted did suffer from autism. Dr. Fischer further provided that Redacted required speech and occupational therapies not available at his school and that he required homebound instruction for the remainder of the 2004-2005 school year due to his condition. Dr. Fischer did not testify at the hearing and provided no other documentation to explain his opinion concerning why Redacted suffered from autism. In response to Appellant's questions concerning why the MRT did not take Dr. Fischer's findings into consideration, Dr. Brazen noted that the MRT's decision to deny Appellant's re-application for Medical Assistance CCADP benefits occurred as of October 18, 2004, prior to Dr. Fischer's January 10, 2005 opinion.

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. 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 parents, Redacted, initially applied for Medical Assistance sometime in 1995. At that time, the case was approved for benefits with benefits provided retroactively to October 1994. After receiving a telephone call from Redacted Redacted on January 14, 2004, DSS terminated Appellant's benefits because DSS believed Mrs. Redacted wished to cancel Appellant's participation in Medical Assistance CCADP. A Medical Director did not review the Appellant's case at that time, nor was it reviewed prior to that time, as under DSS rules and regulations a review is not required in any specified time period. After Redacted re-applied for 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)). 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 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 condition requires him to participate in occupational therapy at school, 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 indicates that no other treatment has been identified or prescribed at the time the re-application was denied on October 18, 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 although psychological counseling could have been provided to Redacted while receiving Medical Assistance CCADP benefit, his parents never chose to allow him to participate although medical professionals recommended this treatment prior to September 10, 2004. Mr. Redacted now maintains that Redacted requires Medical Assistance CCADP benefits because Redacted requires psychological counseling.

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 Redacted is otherwise ineligible for benefits because he 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, he 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, 2005

MICHAEL L. STEINBERG, J.D.
HEARING OFFICER

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

POSTED
MLS/vmd

cc:
Redacted
Anthony J. Brazen, D.O., DSS
Wanda Zebley, DSS
Nancy Kling, DSS

EXHIBITS FILED IN OR FOR THE PROCEEDING

  • EXHIBIT #1 - A Copy of 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 three (3) pages.
  • EXHIBIT #3 - A Copy of Notice to Close Your Medical Assistance, dated October 15, 2003, consisting of one (1) page.
  • EXHIBIT #4 - A Copy of DSS packet of medical information, reviewed by MRT, consisting of 55 pages.
  • EXHIBIT #5 - Copies of documents provided by Appellant at the March 30, 2005 hearing, consisting of 66 pages.
  • EXHIBIT #6 - Copies of DSS case remarks from P. Williams consisting of three (3) pages.


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