In re: REDACTED
DCIS No.: REDACTED

Appearances:
Daniese McMullin-Powell, Claimant's Representative
Nancy Kling, Social Services Administrator, Division of Medicaid and Medical Assistance, Witness for the Claimant
Ann Woolfolk, Deputy Attorney General, Counsel for the Department of Health and Social Services
Barbara Durham, Division of Services for Aging and Adults with Physical Disabilities (DSAAPD), Witness
Susan Fuess, DSAAPD, Witness
Joseph Keyes, Director of Professional Services, Division of Developmental Disabilities Services (DDDS), Witness

I.

REDACTED (sometimes hereinafter "the claimant"), through her representative Daniese McMullin-Powell, challenges a decision to determine that she lacks the level of medical care needed to qualify for services under a Medicaid Program designed to provide health-related services to elderly and disabled persons in their own homes as an alternative to care in a residential nursing facility.

The Division of Services for Aging and Adults with Physical Disabilities (sometimes hereinafter "DSAAPD" or "the State"), acting as an agent for the Division of Medicaid and Medical Assistance, contends that the claimant's needs include a need for "active treatment" and assistance with activities of daily living. DSAAPD asserts that the claimant does not need the level care of nursing care required to qualify for home and community-based services under the Medicaid Program approved under 1915(c) of the Social Security Act for elderly and disabled persons.

The claimant contends that she is eligible for home and community-based services under the Medicaid Program for the elderly and disabled because she meets ICF-MR (This acronym stands for "Intermediate Care Facility-Mental Retardation) eligibility criteria and a need for intermediate care is the only eligibility criterion to be considered.

II.

On or about February 18, 2005 the claimant asked for Medicaid Program home and community-based services through the Division of Services for Aging and Adults with Physical Disabilities.

By notice dated March 30, 2005 the Division of Services for Aging and Adults with Physical Disabilities announced its determination that the claimant was "not appropriate for services under the E & D Waiver." [State's Exhibit # 8]

By notice dated April 1, 2005 Susan Fuess announced a determination that the claimant did not need medical services and recommended that she seek services through the Division of Developmental Disabilities Services (DDDS). [State's Exhibit # 9]

On or about April 7, 2005 Ms. Fuess sent an amended notice to the claimant. [Exhibit # 10]

On or about May 6, 2005 the claimant requested a fair hearing. [Claimant's Exhibit # 1]

A hearing was scheduled for June 10, 2005. On June 1, 2005 DSAAPD asked for a continuance of the date of the hearing. Without objection, the request for a continuance was granted.

On or about July 18, 2005 Susan Fuess sent a "supplemental notice" letter to the claimant announcing that the State determined on March 28, 2005 that she met the qualifications under the federal rule at 42 CFR 440.15 for an ICF-MR level of care and recommending that she seek the services available to her through the Division of Developmental Disabilities Services.

The hearing was conducted at the Lewis Building at the Department of Health and Social Services in New Castle on July 21, 2005.

This is the decision resulting from that hearing.

III.

The Division of Medicaid and Medical Assistance (DMMA or "the Division") of the Department of Health and Social Services manages the Medicaid Program under Title XIX of the Social Security Act and the Delaware Healthy Children Program under Title XXI of the federal Social Security Act and under the authority it derives from 31 Del. C. §502(5), §503 (b), and §505 (3).

The medical assistance programs the Division manages provide support for medical services received by defined groups of low-income families and individuals. Persons who meet income and status eligibility tests, such as age, citizenship, and residency, may participate in the program. Participants qualify for payment for medical services.

In Medicaid waiver programs subject to approval by the federal Medicaid Program authorities and authorized under §1915(c) of the Social Security Act, States are allowed to offer community services as an alternative to institutional services. The Delaware Medicaid Program offers several Medicaid waiver programs including programs for the mentally retarded, for the elderly and disabled, for persons with AIDS, and for residential services under an Assisted Living waiver. (DSSM 20700)

Based on the information received for this hearing, I find that the State denied coverage to the claimant under the elderly and disabled waiver program and recommended that she seek coverage under the waiver for developmentally disabled persons.

This hearing decision is limited to the action to deny coverage under the elderly and disabled waiver. This is because the claimant's request for a fair hearing asks only for a hearing over the "denial of Medicaid services of elderly and disabled waiver." [Claimant's Exhibit # 1].

IV.

The Division of Services for Aging and Adults with Physical Disabilities determines medical eligibility with respect to applications for home and community-based services under a waiver for elderly and disabled persons. (See §20700 and §20700.2 of the Division of Social Services Manual.) These services are financed by the State and federal governments under the Medicaid Program. DSAAPD makes decisions about the need for care of elderly and disabled persons. (See §20700.2) DMMA makes decisions with respect to financial eligibility. I am using the acronym "HCBS" in this decision to refer to home and community-based services.

The dispute in this case is over the claimant's need for care. DSAAPD maintains that she does not need or receive medical services equivalent to those received by residents of intermediate care nursing facilities.

If I understand her case correctly, the claimant contends that the service she currently receives from attendants/home health aides is one of the types of care that participants of the HCBS Medicaid Program receive. Since she needs one or more of the benefits the HCBS Program pays for, she should qualify for services financed under the HCBS Program.

I have reviewed the rules for HCBS coverage (In reviewing the rules I found that the citations offered by the State at the hearing are not always the same as the citations for the most recent rules in the Division of Social Services Manual. I have used citations to rules published in the manual for this hearing decision.). A need for a service covered under the State's Medicaid Program is not, by itself, a qualifying factor. In order to qualify under the HCBS Program for the elderly and disabled a claimant must need nursing and allied health care and support services on a daily basis as supervised by a licensed nurse. This hearing record does not reflect that the claimant has a need for or receives the degree of health related services that are required to qualify under the elderly and disabled waiver. The claimant's opening statement assertion that she should qualify for benefits under the elderly and disabled waiver because she has an ICF-MR level of care is not supported by the rules.

I think the claimant may have misunderstood the distinctions between the various sub-types of Medicaid waiver programs and may have been confused by the unusual nomenclature and categorization used by the State.

It appears from the evidence received for the hearing that the claimant is 30 years old. She is mentally retarded with cerebral palsy and spastic quadriplegia. She qualifies for services from the Division of Developmental Disabilities Services. She uses an electric wheelchair and assistive devices. She receives Medicaid from the Division of Medicaid and Medical Assistance as a recipient of Supplemental Security Income. (See 42 CFR 435.120. The SSI Program is authorized by Title XVI of the Social Security Act )

Barbara Durham testified for DSAAPD. According to Ms. Durham, the claimant lives in an apartment in Newark. She lives by herself. She receives attendant services from DSAAPD which Ms Durham says are not related to Medicaid. Under the attendant services plan a participant interviews and hires his or her own attendant. According to Ms. Durham the claimant receives 30 hours of State-funded attendant services per week.

Susan Fuess testified next. She is a nurse consultant with DSAAPD. She testified that she met with the claimant at the Mary Campbell Center on March 9, 2005 for the purpose of assessing her medical need and need for a nursing level of care for the elderly and disabled waiver. She looked at the claimant's records at the facility. She determined that the claimant needed an IFC-MR level of care and referred her request for services to DDDS. She concluded that the claimant did not require the level of medical care needed to qualify for benefits under the elderly and disabled waiver program.

Dr. Keyes testified after Ms. Fuess. He is the Director of Professional Services and a psychologist at the Division of Developmental Disabilities Services. After he received the report of the DSAAPD assessment, his office did a review based on additional information that he had from a 2004 evaluation and determined that the claimant was eligible for services from DDDS. He concluded that the claimant had mental retardation and a developmental disability, cerebral palsy, that she required assistance with most of her activities of daily living, that she did not require nursing facility services and that she qualified for ICF-MR level services.

Nancy Kling is a Social Services Administrator with the Division of Medicaid and Medical Assistance. She testified for the claimant. She has an oversight role with respect to the operation of the various Medicaid waiver programs as administered by other divisions within the Department of Health and Social Services. It is Ms. Kling's opinion that there are some cases of individuals with developmental disabilities who also receive elderly and disabled waiver services. She believes that the claimant was approved for four hours per week of home health aide services by the Medicaid agency. Some personal care services can be included under a waiver plan of care and can be paid for by Medicaid, if authorized by a DSAAPD case manager, which would not otherwise be covered by the Medicaid Program.

The testimony received for the hearing is that the claimant moved from the Mary Campbell Center, an ICF-MR residential facility, to an apartment in Newark in or around June 2005. She has a Baclofen pump to address her spasticity. Based on the testimonial and documentary evidence received for the hearing, the pump was surgically implanted in January 2005 and is maintained by a physician. The use of the pump does not require a level of monitoring or other service that would qualify the claimant to receive HCBS services under the waiver program for the elderly and disabled.

The claimant did not offer documentary evidence of any need for medical services. She did not offer any testimony from medical professionals that would support a finding that she has a need for the level of medical services supervised by a licensed nurse that would qualify her for intermediate nursing care and, thus, for services under the waiver for elderly and disabled persons. The testimony of the State's professionals is that the claimant does not need the requisite level of medical care or services. Under these circumstances, I find that the claimant does not qualify for services under §20700.2 (2) or have needs that meet the definition of intermediate care at DSSM 20102.1.2 of the Division of Social Services Manual and the decision to deny her request for services under the elderly and disabled waiver will be sustained.

V.

For the reasons given above, the decision by DSAAPD to deny the claimant's request for services under the Medicaid elderly and disabled waiver program is affirmed.

Date: July 26, 2005
ROGER WATERS
HEARING OFFICER

THE FOREGOING IS THE FINAL DECISION OF THE DIVISION OF MEDICAID AND MEDICAL ASSISTANCE

RW

cc:
Daniese McMullin-Powell for REDACTED
Ann Woolfolk, Esq. for DHSS/DSAAPD/DDDS

EXHIBITS

State's Exhibit # 1 (two pages) consists of the first two pages of a 67 page application for a Medicaid home and community-based services waiver for the elderly and disabled under section 1915(c) of the Social Security Act.

State's Exhibit # 2 is a 17 page Assessment Report for the claimant. This is admitted a business record of DSAAPD.

State's Exhibit # 3 is a PASARR Summary dated March 16, 2005.

State's Exhibit # 4 is a photocopy of a Memorandum of Understanding between the Divisions of Services for Aging and Adults with Physical Disabilities and Mental Retardation dated as fully executed on December 20, 1999. (The Division of Mental Retardation is now known as the Division of Developmental Disabilities Services.)

State's Exhibit # 5 (four pages) consists of a photocopy of a Psychological Evaluation of the claimant signed by Joseph B. Keyes, Ph.D., Psychologist and dated March 9, 2004.

State's Exhibit # 6 (two pages) is a photocopy of statements by Loren M. Pearson a Certified School Psychologist at the Kennett Consolidated School District in a psychological evaluation with a test date of October 29, 1985.

State's Exhibit # 7 (two pages) is a photocopy of a statement by Susan Morrison Smith dated March 28, 2005.

State's Exhibit # 8 is a photocopy of a notice to the claimant dated March 30, 2005 announcing a determination that the claimant was "not appropriate for services under the E & D Waiver."

State's Exhibit # 9 (two pages) is a reproduction of an April 1, 2005 notice to the claimant from Susan Fuess RN announcing a determination that "no medically related services are needed" as well as a recommendation that the claimant "seek the services and programs available to you through DDDS."

State's Exhibit # 10 is a reproduction of an April 7, 2005 amended notice to the claimant from Susan Fuess RN, MS, CS.

State's Exhibit # 11 (two pages) is a photocopy of a supplemental notice to the claimant from Susan Fuess, MS, CS, RN announcing that "It was determined on March 28, 2005 that REDACTED meets the qualifications for an ICF/MR level of care as defined in 42 CFR §440.150" and recommending that the claimant "seek the services and programs available to you through the Division of Developmental Disabilities Services and through the non-nursing home level of care services available to your [sic] through the Division of Services of [sic] Aging and Adults with Physical Disabilities."

Claimant's Exhibit # 1 is a photocopy of the claimant's request for a fair hearing. The request is dated May 6, 2005