STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF CALDWELL 02 DHR 0901
Cleon A. Gibbs, )
Petitioner, )
)
v. ) DECISION
)
Division of Medical Assistance )
(DMA), )
Respondent. )
THIS MATTER came on for hearing before the undersigned Administrative Law Judge, Augustus B. Elkins II, on October 9, 2002, in Morganton, North Carolina. The record was held open until November 18, 2002, to allow the parties time to submit additional evidence on the type of care the Petitioner currently receives and how a reduction in level of care would impact the care she now receives along with proposed findings of fact and conclusions of law.
The Petitioner was represented by Fred D. Pike, Attorney at Law. Grady L. Balentine, Jr., Assistant Attorney General appeared on behalf of the Respondent.
ISSUE
Whether the Respondent properly moved to reduce the level of care for which the Petitioner receives Medicaid reimbursement from skilled level of care to intermediate level of care.
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. The parties stipulated to the admission of affidavits by Michael J. Phoenix, Case Manager with the Caldwell County Department of Social Services, and Bruce J. Steel, Chief of the Community Care Section of the Division of Medical Assistance.
FINDINGS OF FACT
1. The parties received notice of the hearing more than 15 days prior to the October 9, 2002 hearing date and stipulated that notice of the hearing was in all respects proper.
2. The Petitioner, Cleon A. Gibbs, is a recipient of assistance from the North Carolina Department of Health and Human Services, Division of Medical Assistance. The Petitioner is an 82 year old with a remote history of left hemispheric CVA with dense right hemiplegia, dysphagia, and dysarthria. She communicates with grunts and gestures. She has chronic pain, chronic atrial fibrillation, allergies, depression, arthritis, recurrent UTI's and seizure disorder.
3. The Respondent is the agency responsible for administering North Carolina's medical assistance (Medicaid) program.
4. The Respondent provides a Community Alternatives Program for Disabled Adults (CAP/DA). CAP/DA is a waiver program under federal Medicaid law that allows disabled adults who qualify for nursing facility care to receive services in their homes.
5. Under CAP/DA eligible recipients receive services at a specified level of care. The level of care criteria applicable to CAP/DA recipients is the same criteria as that applicable to nursing facility residents (Respondent's Exhibit 6).
6. Petitioner is receiving assistance through the Community Alternatives Program, which program is administered by the Respondent. She has received assistance through this program for at least fifteen (15) years. For at least fifteen (15) years, the Petitioner has been found by the Respondent to need assistance at a level denominated “skilled.”
7. The benefits that Petitioner who resides in her own home, receive include: in-home aid services, case management assessment, case management, at least one nursing visit per month by an RN, 120 cans of Ensure, supplies (bed underpads), and Lifeline.
8. During an annual review the Respondent determined that the Petitioner did not qualify for skilled level of care. By letter dated May 10, 2002, the Petitioner was notified that the Respondent's reconsideration review upheld the decision that Petitioner did not qualify for skilled level of care and that her needs could be met at the intermediate level of care.
9. In making the determination the Respondent reviewed the Petitioner's FL-2 dated February 8, 2002, which is the physician order for long term care services (Respondent's Exhibit 1); nursing notes from November 26, 2001 through March 25, 2002 (Respondent's Exhibit 2); medication logs from July, 2001 through March, 2002 (Respondent's Exhibit 3); attending physician office notes from February, 2000 through April, 2002 (Respondent's Exhibit 4); and letters from the Petitioner's attending physician, Dr. John Bowen, dated February 27, 2002 and April 15, 2002 (Respondent's Exhibit 5). Dr. Bowen’s letter, dated February 27, 2002, indicates the Petitioner’s diagnoses and concludes, “I believe she remains a skilled level of need with chronic coagulation and her personal needs.” Dr. Bowen’s letter dated April 15, 2002, states “She requires 24 hour care per day. She requires assistance with bathing, feeding, dressing, and all transportation. As such, it is hard to imagine her being a lower skill level than intermediate care.”
10. The Petitioner was not present at the hearing. The Petitioner's primary care giver is her grandson William Beard, who lives in the home with the Petitioner. The Petitioner receives 8 hours of in-home aide care per day Monday through Friday and 5 hours of in-home aide care on Saturdays. Mr. Beard provides the Petitioner's care at all other times with intermittent help from his sister. Mr. Beard is also in the home during some of the time that the in-home aide is in the home. Mr. Beard is self-employed and has no place of business outside of the home.
11. The Petitioner's conditions are significant and chronic. They have been relatively stable and have not required frequent or continuous nursing intervention. The Petitioner is seen monthly for a skilled nursing assessment and for venipuncture/lab draws as ordered. All of her other needs are being met by her primary care giver and her in-home aides. Her in-home aides provide assistance with daily living.
12. A reduction to intermediate level of care would reduce the maximum budget available to the Petitioner for the provision of services. The Petitioner does not use the maximum budget available to her under the skilled level of care. However, a reduction to intermediate level of care would amount to a maximum budget allowance that is $610.14 below the Petitioner's current expenditures. The Petitioner's case manager developed one scenario in which the in-home aide hours the Petitioner receives would be reduced by 8 hours per week and reimbursement for Ensure that the Petitioner uses to supplement her diet would be eliminated. (Phoenix Affidavit)
13. Mr. Beard testified that his grandmother needs constant care. He also testified that the Petitioner was very emotionally attached to the caregivers provided to her through CAP. He believed that she would be psychologically disturbed if the level of care provided by the Petitioner, in terms of personal assistance hours, were decreased such that there was less contact with the care providers. His testimony indicated that Petitioner is most concerned with having different personnel care for her due to a change in the level of care.
14. In-home aide services are available to CAP/DA enrollees who need such services at both the skilled and intermediate levels of care. The in-home aide services are provided at two levels; the aide levels relate to the tasks that must be performed by the aide and are not controlled by the nursing facility level of care. A reduction in level of care from skilled to intermediate would not, therefore, necessitate a change in the level of in-home aide or require a change in the aide providing services to the enrollee. (Steel Affidavit)
15. The Petitioner's family switched in-home aide providers beginning April 19, 2002. The in-home aide who has provided services to the Petitioner Monday through Friday since April 19, 2002, provided in-home aide services on Saturdays prior to that date. (Phoenix Affidavit)
BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:
CONCLUSIONS OF LAW
1. The parties are properly before the Office of Administrative Hearings (OAH) and OAH has jurisdiction over the subject matter involved in this contested case.
2. In accord with Painter v. Wake County Bd of Ed., 288 N.C. 165, 217 S.E.2d 650 (1975), absent evidence to the contrary, it will always be presumed that “public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. Every reasonable intendment will be made in support of the presumption.” See also Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961). The burden is upon the party asserting the contrary to overcome the presumption by competent and substantial evidence. See Styers v. Phillips, 277 N.C. 460, 178 S.E.2d 583 (1971). The North Carolina Court of Appeals directs that, "an administrative agency's interpretation of its own regulation should be accorded due deference unless it is plainly erroneous or inconsistent with the regulation." Simonel v. N.C. School of the Arts, 119 N.C.App. 772, 775, 460 S.E.2d 194, 196 (1995).
3. Based upon the evidence at hearing including the written statement from Petitioner’s own doctor that, “it is hard to imagine her being a lower skill level than intermediate care,” and giving due deference to the Respondent’s investigation and findings, the Undersigned concludes that the intermediate level of care for Petitioner is appropriate and lawful.
4. As it appears from the evidence that Petitioner should be able to keep the same staff or suitable comparable staff, potential psychosocial considerations do not warrant keeping the Petitioner at the skilled level of care at this time.
BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned makes the following:
DECISION
The Respondent's decision to reduce the level of care for which the Petitioner receives Medicaid reimbursement from skilled level of care to intermediate level of care is affirmed.
NOTICE
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision issued by the Undersigned, and to present written arguments to those in the agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a).
In accordance with N.C. Gen. Stat. § 150B-36 the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.
The agency shall adopt the decision of the Administrative Law Judge unless the agency demonstrates that the decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. The agency that will make the final decision in this case is the North Carolina Department of Health and Human Services.
ORDER
It is hereby ordered that the agency making the final decision in this matter serve a copy of the final decision to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36.
IT IS SO ORDERED.
This the 16th day of December, 2002.
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Augustus B. Elkins II
Administrative Law Judge