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Decision of the Division of Social Services to discontinue Medicaid Program benefits.


In re:
DCIS No. Redacted
Redacted, a minor

Appearances:
Redacted, Appellant’s Mother
Redacted, Sr., Appellant’s Mother
Redacted, Appellant’s Grandfather
Redacted, Appellant’s Grandmother
Nancy Kling, Social Services Administrator, Division of Social Services
Anthony J. Brazen, D.O., Medical Director, Division of Social Services

I.

Redacted (Appellant), by and through his mother Redacted, 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) (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.) Ms. Redacted contends that Redacted should continue to receive CCADP benefits because his condition has not changed and that his parents cannot afford to provide him with the best equipment and speech therapy.

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 the program for benefits. Specifically, DSS has determined that the Appellant’s medical condition does not require an institutional level of care. Moreover, DSS contends that the approval for the Disabled Children’s Medicaid Program in 1996 was in error and Redacted should not have continued to receive benefits at that time.

II.

On December 14, 2004, DSS sent Appellant a Notice to Close Your Medical Assistance. (Exhibit 3). The Appellant thereafter filed a request for a fair hearing on January 21, 2005. (Exhibit 2). In that request, Appellant asked that benefits continue, if eligible. On the DSS Fair Hearing Summary (Exhibit 1), it indicates that benefits have continued pending the hearing decision, however, at the hearing, Nancy Kling, a Social Services Administrator, testified that benefits were not continued because the request for hearing was not made before the effective date of the termination. (See, DSSM §5305) Mrs. Redacted testified that she was never made aware that if she requested a hearing before the action went into effect that her benefits could be continued. A review of the hearing request form submitted shows that it did not have the requisite language at the top of the page indicating what the appeal rights were. (Exhibit 2) During the hearing DSS was asked to provide a copy of the closure notice as printed from the Delaware Computer Information System (“DCIS”), which would include the appeals right notice. DSS advised this hearing officer that because the closure notice had extensive information on it, that it was generated by hand and the appeals right notice would have been attached by hand as well. Since DSS has been unable to show that Appellant received the complete appeals rights page, benefits should have continued pending the hearing decision and DSS should provide reimbursement for all out-of-pocket medical expenses covered by the CCADP and incurred by Appellant from January 1, 2005 until March 24, 2005.

The Appellant was notified by certified letter dated February 8, 2005, that a fair hearing would be held on March 3, 2005. The hearing was conducted on that date in Dover, DE.

This is the decision resulting from that hearing.

III.

The records presented for the hearing initially indicate that the Appellant began receiving Disabled Children Medicaid Program benefits on or about July 1996.(Appellant’s mother testified that Appellant has been receiving some type of medical assistance since 1989, but it is unnecessary to address this issue for purposes of rendering a decision in this matter.) Sometime in late 2004, DSS determined that they were going to review the Appellant’s eligibility for the CCADP. The DSS Medical Review Team (MRT) requested and received information, and determined that based on the information available to them Redacted was not in need of institutional care, and was therefore not eligible for benefits under CCADP. At the time of the closure, Redacted was a 15-year-old male with a diagnosis of bilateral congenital hearing loss. The conclusion that Redacted is disabled is not at issue in this case.

At the time of the hearing and pursuant to an Individualized Educational Plan (IEP), Redacted was to receive consultative speech special education with no frequency indicated. He also had an interpreter in all of his classes, which consisted of a regular curriculum, including Driver’s Education Redacted wears hearing aids in both ears and utilizes an FM system while in school. His hearing aids are evaluated and repaired, and his hearing is tested, every 6 months when he visits Milford Memorial Hospital, the last time being November 4, 2004. The results of Redacted hearing test on November 4, 2004, were not provided to the MRT for review.

In addition, based on the questionnaire completed by Appellant’s mother in November 2004, Redacted actively participates in football, drag racing, soccer, basketball, fishing and bowling, he is in a regular classroom at school, has only missed two (2) days of school in the past year, and views himself as being normal.

A review by the MRT of the medical and other documentation provided, and the testimony provided at the hearing indicates that Redacted is not in need of skilled nursing or other institutional level of care, requires no ventilator support, has no problems with activities of daily living, and is not fed by G-tube. Redacted parents concede that he is not in need of institutionalized care. They do, however, believe that Redacted should be entitled to medical assistance benefits to cover the cost of hearing aids and related services, especially because his condition has not changed since 1996 when he was last approved.

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, 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)

DSSM §25150 states that eligibility determinations are expected to occur on at least an annual basis. (Emphasis added) This did not happen in Redacted case. The drafters of DSSM §25150, had they wanted to, could have made the annual determination of eligibility mandatory by simply replacing the word "expected" with the word "required." Mrs. Redacted argues that because DSS continued to authorize coverage from the date of initial approval in 1996 up to December 2004, he should continue to be covered now because nothing has changed. Of primary importance, however, is what was explicitly acknowledged and known by all parties – that Redacted continued to be eligible based solely upon his assessment in 1996, which DSS argues was in error.

In this case, the appropriate timeframe for comparison is 1996, which represents the best comparison to the only other time that Redacted medical condition was reviewed that we have records for. DSS argues that given time and treatment, not only has Redacted medical condition changed to no longer require regular speech therapy, but so have environmental factors such as school, his ability to care for himself, and his level of activity. Based upon DSS’s right to re-evaluate its’ clients for eligibility, DSS re-evaluated Redacted and found that he does not require an institutional level of care at this point in time. It is admitted by DSS that they are not sure why Redacted was approved in the first instance and question that initial approval, despite Mrs. Redacted contention that the very same process was used in the initial determination that went into the current re-determination and that DSS approved him in the past, knowing that his medical condition did not require a requisite institutional level of care. Dr. Brazen testified that the 1996 application was improperly approved.

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. Appellant’s mother notes that Redacted medical condition has not changed since the 1996 approval. Importantly, Appellant’s mother does not argue that DSS is prohibited from reviewing Redacted case, only that the review performed did not establish a requisite change in circumstances sufficient to terminate coverage.

Based upon the medical documentation supplied and testimony regarding Redacted daily regime and medical condition in 2004, there is no doubt about whether Jamie’s medical condition is consistent with placement in an institutional facility - there is no credible evidence to support the position that Redacted medical condition is consistent with a profile of one with a qualifying level of care. In fact, Mrs. Redacted acknowledges changes in pointing out that since 1996, Redacted requires no physical therapy and less speech therapy. Moreover, while Mrs. Redacted indicated that her son is now receiving speech therapy at school three (3) times per week (which is less than the five (5) times per week in 1996), the IEP from the school indicates that Redacted is only receiving speech services on a consultative basis, with no frequency noted.

In this case, it is abundantly clear that there are several changes in circumstances since the initial evaluation, as well as good cause for terminating Redacted 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.

IV.

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).

When his 1996 application for CCADP was processed, the DSS Medical Review Team determined that Redacted did not meet the requisite level of care to qualify. However, and for some unknown reason, the Appellant was provided with benefits under the Disabled Children’s Medicaid Program. The MRT, in reviewing the current information, also determined that Redacted medical condition does not meet a requisite level of care and accordingly, closed the Appellant’s benefit case.

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 either an acute hospital setting or a SNF 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 §25400.4. 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 25400.4 sets forth that an ICF is an institutional setting in which nursing, and allied health and support services are provided on a daily basis. Appellant’s parents concede that Jamie is not in need of institutionalized care. The medical and other documentation provided supports this position.

The Appellant’s parents do, however, take issue with the determination to terminate Redacted benefits now, after he has been qualified for benefits all along. A review by the MRT of the current documentation provided by Appellant’s treating healthcare providers and his parents indicates that Redacted is receiving speech/language services on a consultative basis only at school to treat his medical condition, in addition to being schooled pursuant to an IEP. In addition, every six (6) months, Redacted has a hearing aid and hearing evaluation. No other treatment or therapy has been identified or prescribed at this time. Moreover, there has been no credible testimony provided to show that Jamie would need to be institutionalized. Speech/language services, only on a consultative basis, do not support the need for institutional care.

Accordingly, since DSS has correctly determined that Jamie is not in need of institutional care, I find that Jamie is ineligible for CCADP Medicaid coverage.

V.

For these reasons, the Division of Social Services determination to close Appellant’s Medical Assistance benefits under CCADP is AFFIRMED. DSS is directed to make prompt corrective payments, if any, for medical expenses covered by the CCADP and incurred by Appellant from January 1, 2005 until March 24, 2005.

Date: March 24, 2005

STEVEN A. GREENSPAN
HEARING OFFICER

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

POSTED
SAG/vmd

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

EXHIBITS FILED IN OR FOR THE PROCEEDING

  • EXHIBIT #1 – Copy of DSS Hearing Summary consisting of two (2) pages date-stamped February 4, 2005.
  • EXHIBIT #2 – Copy of the Appellant’s request for a fair hearing date-stamped January 21, 2005, consisting of one (1) page.
  • EXHIBIT #3 – Copy of Notice to Close Your Medical Assistance, dated December 14, 2004, consisting of two (2) pages.
  • EXHIBIT #4 – Copy of medical and other documentation used by the MRT to render a determination, consisting of 48 pages.


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