In re:
DCIS No.:
REDACTED

Appearances:
Deborah I. Gottschalk, Esq., Community Legal Aid Society, Inc., Counsel for Charles White
Nancy Gise, R.N. Christiana Care Visiting Nurse Association,(VNA), Witness
Tom Bradford, Medical Social Worker, VNA, Witness
Charles White (by speakerphone)
Susan Fuess, Division of Services for Aging and Adults with Physical Disabilities (DSAAPD), Presenter
Joanna Shea, DSAAPD, Witness
Michael Serfass, R.N. DSAAPD, Witness

I.

REDACTED (sometimes hereinafter "the claimant"), through counsel, challenges a decision to determine that he 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.

He maintains that he needs an intermediate level of care and that he is currently receiving and needs health care services supervised by a licensed nurse.

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 does not need the level care of nursing care required to qualify for home and community-based services under.

II.

In May 2004 the claimant asked for Medicaid Program home medical services through the Division of Services for Aging and Adults with Physical Disabilities. [Exhibit # 5]

In December 2004 DSAAPD employee Michael Serfass assessed the claimant's medical condition by visiting him in his home and conferring with his primary care physician, Beverly Mathis, M.D.

By notice dated February 16, 2005 DSAAPD announced a determination that the claimant lacked the level of medical care needed to qualify for home and community-based services under the Medicaid Program described at §20700 of the Division of Social Services Manual on the ground that "no medically related services are needed." [Exhibit # 2]

By notice dated February 28, 2005 the Division of Social Services denied the claimant's application (The Division of Medicaid and Medical Assistance was created by the Delaware General Assembly in July 2005. Before July 2005 the Division of Social Services operated the Delaware Medicaid Program.). [Exhibit # 3]

On or about March 17, 2005 the claimant requested for a fair hearing. [Exhibit # 4]

A hearing was scheduled for May 2, 2005. On April 28, 2005 the claimant's counsel asked for a continuance of the date of the hearing in part to obtain medical records including hospital medical records for the period from April 21-27, 2005. [Exhibit # 6]

Without objection from DSAAPD, the request for a continuance was granted.

The hearing was conducted at the Lewis Building at the Department of Health and Social Services in New Castle on July 18, 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 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 Division of Services for Aging and Adults with Physical Disabilities processes applications for home and community-based medical 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 for elderly and disabled about their need for care. (See §20700.2) DMMA makes decisions with respect to financial eligibility. Under §20103, the next step in the process, if a person is determined by DSAAPD to need the necessary level of nursing care, is for the DMMA financial eligibility unit to obtain a written, signed application form.

The dispute in this case is over the claimant's need for care. DSAAPD maintains that he does not need the level of care received by residents of intermediate care nursing facilities. The claimant asserts that he meets the level of care definition.

There is no dispute over the fact that the claimant has many serious medical condition including morbid obesity, insulin dependent diabetes, arthritis, cellulitis, asthma, hypertension, esophageal reflux and coronary artery disease. He uses a wheelchair. I assume that he is disabled from the effects of these conditions because he is 57 years old and receives Medicare under Title XVIII of the Social Security Act. Since he is under the age of 65 when most individuals begin to receive Medicare, he must be a disabled wage earner who has received disability benefits under Title II of the Social Security Act for at least 24 months.

Joanna Shea is the Supervisor of the DSAAPD Community Services Program. She testified about the process of assessing client needs for home and community-based services. Her testimony is not direct testimony but she testified that a DSAAPD Staff person visited Mr. REDACTED on or about May 6, 2004. As a result of the visit DSSAPD determined that he qualified for an assessment of his medical eligibility for the Medicaid Program's elderly and disabled waiver program and, in the interim, he was also referred for personal care services under the Social Services Block Grant program. According to Ms. Shea, Mr. REDACTED was offered "six hours of personal care services", apparently in August 2004, which he refused.

Michael Serfass testified next. He is a Public Health Nurse III working for DSAAPD. He examined the claimant in his home on December 27, 2004 for the purpose of determining whether Mr. REDACTED needs health care services supervised by a licensed nurse. As a result of his examination he concluded that, on the day of his assessment, the claimant did not have the requisite need for nursing and allied health care and supportive services to be provided on a daily basis. Mr. Serfass testified that Mr. REDACTED is independent in bathing, dressing, meeting his hygiene needs, eating, mobility, transferring and toileting. Mr. Serfass found that the claimant uses a wheelchair for mobility. He testified that the claimant told him that he could prepare and eat meals without assistance and that he had no problem transferring from his bed, standing or taking steps without assistance. Mr. Serfass observed the claimant transferring and rising from a sitting to a standing position without assistance. When he performed these activities he did not appear to be in discomfort or distress, although he was slightly out of breath. Mr. Serfass observed his bathroom where he has grab bars and a shower bench. Mr. Serfass discussed toileting with the claimant; he did not observe any barrier to the wall, tub, or shower area. The claimant denied needing assistance with bathing or toileting tasks.

With respect to the claimant's medical conditions including morbid obesity, insulin dependent diabetes, arthritis, cellulitis, asthma, hypertension, esophageal reflux and coronary artery disease, Mr. Serfass concluded that the conditions did not prevent the claimant from caring for himself. He also concluded that the claimant did not need assistance with medication administration.

Mr. Serfass also testified that the claimant told him that he could not afford to eat a diabetic diet, could not afford his medications, and that he needed a new wheelchair and could not afford the co-pay.

After he determined that the claimant did not have the requisite nursing care needs, Mr. Serfass obtained a Comprehensive Medical Report from Beverly Mathis, M.D. and took into account Dr. Mathis' statements that the claimant's condition was "improving" and "static" and that she did not recommend nursing home care. [Exhibit # 1]

In March 2005, after the claimant's application was denied, Mr. Serfass discussed the claimant's status with Dr. Mathis and DSSAPD reconsidered, but did not change, its decision in this matter.

On cross-examination Mr. Serfass testified that he was aware that the claimant had a follow-up appointment in February 2005 at Christiana Care Riverside clinic for wound care. He testified that the claimant told him that he was receiving daily services from a VNA nurse to change the dressing on his leg. Mr. Serfass did not examine the claimant's leg because the claimant said that there was no need for an assessment because the VNA nurse "was going a good job." He did not contact the VNA to see what services they were providing.

Nancy Gise is a registered nurse and a wound and incontinence nurse with Christiana Care Visiting Nurses. She testified for the claimant. She has seen the claimant several times since February 2005 for his chronic cellulitis. (The State did not object to testimony about the claimant's medical condition after the December 2004 evaluation or the February 2005 decision to deny the claimant's application at the time of the claimant's request for a continuance. [See Exhibit # 6]). Her testimony is that he requires daily wound care because he can not reach his lower leg or take care of it. A registered nurse has to take care of it and does this on a daily basis. The VNA also provides a home health aide twice a week. The home health aide provides assistance with activities of daily living such as bathing the claimant, light housekeeping and emptying and cleaning urinals in the claimant's home. Her testimony is that the claimant's daily care is being supervised by a licensed nurse. Her testimony is that the claimant needs daily help from a home health aide in putting on and taking off lymphodema boots. These are needed for treatment of his chronic cellulitis. They provide pressure to increase blood flow back to the heart.

Tom Bradford works for Christiana Care Visiting Nurses as a medical social worker. He visits the claimant in his home "at least every two weeks" for about a half hour to an hour and has known him for about the last fifteen months. A purpose of his visits is to isolate and discuss the stressors that might inhibit his medical recovery. Mr. Bradford gave testimony about, among other things, the claimant's inability to reach his lower extremities, the need to do this because of his diabetes, and his history of falling.

Mr. REDACTED testified next. He says that he may have refused on offer of personal care services made in August 2004 because he was embarrassed at the time to admit that he needed care with his personal hygiene. He testified that he needed assistance with bathing and dressing. He receives this and other assistance from a home health aide twice a week. His girlfriend, REDACTED, has helped him to overcome his embarrassment at having others help him to wash up.

The testimony of the claimant's witnesses is at odds with and contradicts the State's testimonial evidence. I am inclined to give more weight to the testimony from the staff of Christiana Care Visiting Nurses because they have had more opportunity to observe the claimant in his home over a longer period of time than the State's witness. The information received for this hearing is that DSAAPD did not contact the Visiting Nurse Association to learn what care they were giving or what the claimant's care needs were or contact the claimant's wound care doctor to learn what care was given and needed.

Based on the testimony of Nancy Gise, I find that at the time that the claimant's application was denied in February 2005 he was receiving the services needed to meet the definition of intermediate care at §20102.1.2 twice a week and I find from the testimony that the claimant needs the services on a ongoing basis and that his difficulty obtaining health care services is exacerbating his health conditions. Based on the testimonial and documentary evidence received for this hearing, I find that the claimant meets the definition at §20102.1.2 of a person who needs nursing and allied health care and support services on a daily basis as supervised by a licensed nurse. Therefore, the decision by DSAAPD finding that the claimant does not require the level of care needed to qualify for home and community-based care under the Medicaid Program will be reversed.

VI.

For the reasons given above, the decision by DSAAPD that the claimant does not need the requisite level of care to receive home and community-based care under the §1915 (c) Medicaid Program implemented by §20700 of the Division of Social Services Manual (DSSM) is reversed and the action is remanded to the Division of Medicaid and Medical Assistance for further proceedings under §20103 DSSM and action consistent with this decision and the applicable Delaware and federal Medicaid Program rules.

Date: July 22, 2005
ROGER WATERS
HEARING OFFICER

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

RW

cc:
Deborah I. Gottschalk, Esq. for REDACTED
Susan Fuess for DSAAPD
Barbara McCaffery for DMMA

EXHIBITS

Exhibit # 1 (approximately eleven pages) is a copy of a Division of Social Services Comprehensive Medical Report evidently completed by the claimant's physician and dated February 15, 2005 together with assessment reports completed by Michael Serfass, RN dated December 30, 2004 and Susan Fuess dated February 17, 2005.

Exhibit # 2 (two pages) is a notice to the claimant dated February 16, 2005 from Michael Serfass, RN, BC announcing a determination that the "no medically related services are needed" and that the claimant's "medical condition [did not meet] the State of Delaware Medicaid Program criteria."

Exhibit # 3 (three pages) is a facsimile transmission copy of a notice dated February 28, 2005 from the Division of Social Services to the claimant announcing that his application for "Delaware's Elderly and Disabled HCBS Waiver program" is denied because he "does not need an intermediate or skilled level of care as provided by a nursing facility."

Exhibit # 4 is the claimant's request for a fair hearing. The request is dated March 17, 2005.

Exhibit # 5 (two pages) is a DSAAPD §5312 fair hearing summary dated April 1, 2005. This is included as a business record and for the purpose of the finding above.

Exhibit # 6 (approximately five pages) consists of a letter dated April 28, 2005 from Melissa Boyd Freeman of Community Legal Aid Society, Inc. entering an appearance for the claimant's May 2, 2005 fair hearing and asking for a continuance of the date of the hearing to obtain medical information and records of the claimant's hospitalization on April 21-27, 2005 together with a message dated April 28, 2005 to the DSAAPD representative asking if there is an objection to the request for a continuance, a copy of the April 29, 2005 response from DSAAPD, and a copy of an April 29, 2005 letter granting the request for a continuance. This is included as evidence that the State was on notice of the claimant's intention to offer post-February 2005 medical information for the hearing record.

Exhibit # 7 (three pages) is a June 27, 2005 facsimile transmission request asking that the claimant be allowed to testify for the hearing by telephone.

Exhibit # 8 (approximately twenty-five pages) is a photocopy of medical records of an assessment of the claimant by the Christiana Care Visiting Nurse Association in February 2005. This is admitted over objection from DSAAPD as evidence of an assessment of the claimant's medical condition at the time of the decision under appeal and as evidence of the claimant's needs for assistance with activities of daily living and for the purpose of the findings above. The objection is not sustained because there is unchallenged information that the State had an opportunity to obtain and study this information before the July 18, 2005 hearing and because DSAAPD was not precluded, as part of its assessment of the claimant's medical condition, from questioning VNA staff about the care that they were giving to the claimant.

Exhibit # 9 is a July 8, 2005 facsimile transmission copy of a statement by Beverly Mathis, M.D. that"My assessment remains the same. Patient is not nursing home level of care." The statement is included over an objection that it is offered out of order and is inadmissible hearsay.