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Decision by the Division of Social Services (DSS) to discontinue Medical Assistance


In re: DCIS No. Redacted Redacted, a minor

Appearances:
Redacted, Appellant's Mother
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 her parents, opposes a decision by the Division of Social Services ("DSS") to discontinue her 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 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 February 9, 2005, DSS proposed to terminate the Appellant's Medical Assistance CCADP benefits effective after February 28, 2005 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 February 24, 2005. In the fair hearing request letter, Redacted indicated that the Appellant required occupational therapy and she required assistance with her ADLs because Redacted could not function adequately given the condition of her right arm. The Appellant's benefits were re-opened on March 1, 2005 pending the appeal.

The Appellant was notified by certified letter dated March 10, 2005, that a fair hearing would be held on April 8, 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 an 8 year-old female with diagnoses of right radial aplasia and asthma. Redacted right arm is stiff and cannot bend and she is missing the thumb and forefinger of the right hand. The middle and ring fingers of the right hand are stiff with the pinky finger the only finger that is flexible causing Redacted to use claw like movements with her right hand. The right radial aplasia had been diagnosed since birth. Redacted received benefits under Medical Assistance CCADP and its predecessor program since September 27, 1999, when she was first approved for the Disabled Kids program. At that time, Redacted suffered from the previously mentioned diagnoses and hip dysplasia and had received occupational therapy. Currently, Redacted attends school at Forest Oak School where she is in the 4th grade. When Appellant's Medical Assistance CCADP benefits were reviewed on February 4, 2005, the DSS Medical Review Team ("MRT") 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.

DSS 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 suffers right unilateral aplasia of her radius with a right claw hand. Redacted has three fingers on her right hand and a stiff right elbow but her left arm and legs function normally.

Edward McReynolds, M.D. issued a report dated November 8, 2004 that revealed the following: Redacted mental status was normal and she suffers from asthma controlled by medication, Dr. McReynolds did not find any significant limitations to Redacteds ability to perform her ADLs nor he did not find that Redacted required any additional therapies.

Richard Bowen, M.D., an orthopedic specialist, issued a report dated November 17, 2004 that revealed the following: Redacted suffers from right radial aplasia from birth with limited range of motion of her elbow, her progress was good, she exhibited normal mental status, and her ADL's showed no limitations.

Redacted s mother reports that Redacted attends elementary school, church, Sunday school, and participates in Brownies, dance troupe, and she has a pet. Redacted s occupational therapists explain that she had good left extremity motion and can write with crayons with her left hand. Although occupational therapists continued to work with Redacted to improve her skills, significant occupational therapy has been discontinued.

Ms Redacted revealed in testimony that she must help Redacted with her ADLs including dressing, bathing and toileting. Ms Redacted expressed concern that in the future Redacted might require special tools to function and that Redacted will not want to continue to wear clothing fashioned with elastic as she matures. Although Ms. Redacted encourages her daughter to be independent, Redacted still requires assistance performing many day-to-day activities.

Based upon the medical documentation supplied and testimony regarding Redacted s daily regime and current medical condition, 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 addition, the medical documentation and testimony do not support a finding that Redacted is disabled even though she suffers from a limitation in the usage of her right arm.

In this case it appears that the original decision by DSS to approve the application was in error because Redacted did not require a qualifying level of care nor was she disabled when DSS first approved benefits in 1999. Currently, 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 that she is disabled.

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. 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 parents Redacted, initially applied for Medical Assistance sometime in 1999. On September 27, 1999, the case was approved for benefits. On February 21, 2000, DSS reviewed the benefits provided to the Appellant and continued Appellant's benefits because it found that she qualified for care in an intermediate nursing facility. On February 4, 2005, DSS determined that a review was appropriate to determine whether the Appellant still qualified for benefits as of February 28, 2005. The DSS Medical Review Team ("MRT") determined that based on the information available to them, Rachel 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 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. For the Appellant to qualify for institutional care she would need to exhibit medical needs that would include one or more of the following: a need for a wheelchair, tube feeding, ventilator and the need for IV medication. Dr. Brazen concluded that Redacted does not require any of these treatments.

Based on the testimony and evidence received for the hearing, I find that that Redacted does not need the level of care required to be eligible 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 that DSS proposed to discontinue the Appellant's Medical Assistance CCADP benefits on February 9, 2005, and none of the previously recommended therapies requires a skilled level of care.

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). Dr. Brazen opined that Redacted's limitation did not rise to the level identified as a disability under the SSI Bluebook Section 101.02, which provides:

[a] major dysfunction of a joint is characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With: A) Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 101.00B2b; or B) Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 101.00B2c. For Redacted's impairment to qualify as a disability under SSI criteria, the involvement must involve either one major peripheral weight-bearing joint or one major peripheral joint in each upper extremity. Neither of these requirements has been met in this case because Redacted's limitation only involves one extremity, the right hand and arm. In this case, Dr. Brazen opined that as a result of a review of the documentation provided, the MRT determined that Rachel is not disabled pursuant to current Social Security Administration guidelines.

Dr. Brazen indicated that previous DSS approvals were made in error because DSS acknowledged that Rachel suffered a deformity of her right hand. Supplemental Security Income (SSI) medical disability standards were not used when DSS made its original determination in 1999. During the February 21, 2000 review, no medical information was reviewed prior to continuing Rachel's benefits.

Since I find that 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 decision of the Division of Social Services to discontinue Redacted's Medical Assistance under CCADP after February 28, 2005 is AFFIRMED.

Date: April 26, 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
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 February 25, 2005.
  • EXHIBIT #2 - A Copy of the Appellant's request for a fair hearing dated February 24, 2005, consisting of one (1) page.
  • EXHIBIT #3 - A Copy of Notice to Terminated Your Medical Assistance, dated February 9, 2005, consisting of two (2) pages.
  • EXHIBIT #4 - A Copy of DSS packet of medical information, reviewed by MRT, consisting of 79 pages.


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