STATE OF NORTH CAROLINA IN THE OFFICE

OF ADMINISTRATIVE HEARINGS

COUNTY OF WAYNE 05 DHR 1323

______

WILLIAM D. HANCOCK II, )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT of )

HEALTH and HUMAN SERVICES, )

DIVISION OF MH/DD/SAS. )

Respondent. )

______

THIS MATTER came on for hearing before the undersigned Administrative Law Judge, Augustus B. Elkins II, on January 11, 2006 in Fayetteville, North Carolina.

APPEARANCES

For Petitioner: William D. Hancock II, Pro se

Fayetteville, North Carolina

For Respondent: Diane M. Pomper

Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Did the Respondent properly reduce Medicaid coverage for MR Personal care services from 102 hours per week to 88 hours per week for WRH?

EXHIBITS

Petitioner’s exhibits 1 through 4 were admitted.

Respondent’s exhibits 1 through 19 were admitted.

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 make 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 judgment of credibility, including but not limited to the demeanor of the witnesses, any interests, bias, or prejudice a witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witnesses testified, whether the testimony of the witness is reasonable, whether the testimony is consistent with all other believable evidence in the case, and the qualifications of the witness as an expert.

FINDINGS OF FACT

1.  Petitioner is the father and guardian of WRH. W.R.H. is a 22-year-old male who has been receiving developmental disability services coordinated by Eastpointe Area Mental Health, Developmental Disabilities and Substance Abuse Services Authority (Eastpointe). WRH is eligible for Medicaid funding.

2.  WRH has diagnoses of Profound Mental Retardation, Cerebral Palsy, Seizure Disorder, Asthma, Microcephaly and Gastroesophageal Reflux. WRH’s NCSNAP score is 5, which equates to the most extreme level of care, supervision, and assistance with tasks of daily living, and medical care. R. Exh.3. WRH was present in this hearing for part of the time, and it was clear that he is totally unable to care for himself.

3.  WRH was qualified for the Community Alternatives Program for Persons with Mental Retardation and other Developmental Disabilities (CAP-MR/DD) in approximately1996. (He was within the catchment area of LME Onslow Behavior Health during this period.) CAP-MR/DD is a Medicaid waiver program, which allows funding of services in the community for persons who would otherwise need to live in ICF-MR facilities. The terms of this program are set out in a waiver agreement between the Centers for Medicare and Medicaid Services and the NC Department of Health and Human Services. R. Ex. 5.

4.  Eastpointe makes decisions regarding the medical necessity for Medicaid mental health services on behalf of the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (DMH/DD/SAS) and the Division of Medical Assistance (DMA). R. Ex. 6. WRH was transferred from Onslow County Behavior Health System (OCBHS) to Eastpointe during August 2004 to be effective 1 September 2004.

5.  CAP-MR/DD recipients receive services pursuant to a person-centered plan. CAP recipient’s Plan of Care (POC) is prepared annually in the month before their birthday. The last POC that was uncontested was approved by Onslow County Behavior Health System (OCBHS), effective 1 April 2004 thru 31 March 2005.

6.  Petitioner and his son lived in Onslow County until 2004. There WRH was approved for 102 hours per week (approximately 14 ½ hours per day) of Personal Care Services. This service is defined in the CAP-MR/DD Waiver.

[Personal Care Services are] assistance with eating, bathing, dressing, personal hygiene, [and] activities of daily living. These services may include assistance with preparation of meals, but does not include the cost of the meals themselves. When specified in the plan of care, this service may also include such housekeeping chores as bed making, dusting and vacuuming, which are incidental to the care furnished, or which are essential to the health and welfare of the individual, rather than the individual’s family. Personal care providers must meet State standards for this service.

R. Ex. 7, p. 2; see also R. Exh. 10, Section 4.6.9.

7.  WRH also has an additional 3 hours/week of Supported Living service that was approved. The Medicaid program is funding care givers to be with WRH for 15 hours per day.

8.  Upon moving to Wayne County, the CAP services were continued by Eastpointe at the same level until his annual review. The services are provided by Crossroads Support Services. It pays Petitioner to be WRH’s CAP worker.

9.  When Wayne’s annual review was done in March 2005, Mr. Hancock requested that 102 hours per week of paid Personal Care Services continue along with the 3 hours per week of Supported Living. R. Ex. 1 and P. Exh. 1. This proposed plan was reviewed by Kim Lee, the Local Approver at Eastpointe. Ms. Lee testified that she could not find any differences in the proposed POC and the previously approved POC.

10.  Ms. Lee reduced the number of hours of Personal Care to 88 hours per week because she believed the plan of care did not support 102 hours being paid for. There was no requirement to approve the same number of hours as in Onslow County. In addition, Ms. Lee had concern about the fact that all of these hours of Personal Care were being provided by one employee of the service provider. Kim’s March 31, 2004 letter raises issues of whether the health and safety of the individual served was being considered to the fullest degree. The letter also reflects: “whether the current placement is the most suitable to meet those health and safety needs.” There was no dispute with the three hours of Supported Living.

11.  Ms. Lee testified that 102 hours per week of Personal Care was the highest amount that she had seen in her four years of reviewing plans. Therefore she contacted Steve Cherry, a consultant with DMHDDSAS to assist her in making her decision. Per Ms. Lee’s testimony, she did not attempt to inquire with the previous “local area approver” the reasoning for their approval of the prior 102 hours of authorized care.

12.  Petitioner described the care he provides WRH. WRH is awake from approximately 6:00 am to 9:00 pm or 15 hours/day. The tasks that the care giver does are detailed in R. Exhibit 4. These tasks include feeding, bathing, diapering, dressing, transfers between bed to chair, preparing and administering medication, and taking WRH outside for fresh air and stimulation. In addition, the care giver prepares meals, does the shopping, laundry, and similar homemaking tasks. There is also a need for someone to be with or near WRH at all times as he can have seizures. Petitioner agreed that the itemized specific services account for approximately 55 hours per week. R. Ex. 4

13.  Bill Joyce testified on behalf of the Respondent. He is an employee of the Respondent who does audits of area mental health authorities as part of the Federal requirements for participation in the waiver program. R. Ex. 5.

14.  Kim Lee and Bill Joyce testified that a number of the activities listed in Respondent’s Exhibit 4 are not covered under the definition of Personal Care. These include shopping, transportation, entertainment, and Mr. Hancock’s share of meal preparation, house cleaning, and other homemaking chores.

15.  Natural supports are those services and assistance that family or the community provide without the expectation of reimbursement. Under the current plan, the only time that natural supports for WRH are used is during the night when he needs changing or adjusting. Mr. Hancock does have occasional assistance from his other son, a cousin, and a friend. He also takes a day off once or twice a month and another worker from Crossroads Support Services covers that day. Petitioner is thus not the sole care provider, though the great majority of care is being provided by him.

16.  Petitioner denied needing any time during the day for his own needs. While representatives of the Respondent had concern about Petitioner providing all of WRH’s care, they stated they would have reduced the hours of Personal Care services even if more than one worker were providing the service. Respondent asserts the plan does not support the need for continuous care and it does not explain the lack of natural supports.

17.  Kim Lee testified that she was aware of the duties of the Qualified Professional (QP) and the duties of the case manager (CM). The QP and CM are required to visit the client on a monthly basis. The QP and CM are to observe the client, ensuring that the goals of the POC are being met. Neither the QP nor the CM has reported any elements reflecting the health and safety of WRH was at risk.

18.  A letter was sent to Jack St. Clair, Eastpointe Area Director on April 14. 2005. The letter was from John Sullivan, ASC Staff. The letter directed Eastpointe to conduct a local review within 14 working days of the date of the letter.

19.  Kim Lee was in attendance at the local review which was held at the client’s home on May 12, 2005. Ms. Lee testified that the review lasted for approximately 1.5 hours. She testified that she did not witness or identify any element that reflected a risk to the health and safety to the client. Kim Lee testified that Barbara Flood was the Appeal Coordinator also present at the local review. LaQuetta Robinson, the client’s case manager, could not make the meeting. Ms. Flood spoke with Ms. Robinson on the phone for approximately 45 minutes during the review.

20.  LaQuetta Robinson testified that she had been to the Petitioner’s home approximately five times, usually spending about an hour during each visit. Ms. Robinson stated she had never seen WRH in situations away from the home. She testified that WRH’s needs were substantial.

21.  In a letter dated May 19, 2005. Eastpointe indicated that a Local Review was held. The agency’s review resulted in the previous decision being upheld. The letter does not address any concerns suggesting the client’s health and safety is at risk. The letter does reflect that it is evident that the client needs assistance. The letter also states that the father provided a schedule of events to Barbara Flood. The letter states that this schedule of events does not justify the need for the 102 hours requested.

22.  The DMH/DD/SAS convened a hearing concerning this case on June 7, 2005. W. Denise Baker was assigned as the Hearing Officer. Petitioner disputes many of the findings and conclusions of Ms. Baker.

23.  Petitioner testified that WRH’s needs and care had not changed in the past year when he was receiving 102 hours. He stated one had to be strong in order to provide care for WRH. He testified that other care givers who could fulfill the needs of WRH could not be found. Petitioner testified that WRH needed care 24 hours a day, seven days a week.

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 N.C. Office of Administrative Hearings has jurisdiction over the parties and subject matter of this contested case pursuant to N.C.G.S. 150B-23, et. seq., and there is no question as to misjoinder or nonjoinder. The parties received proper notice of the hearing in the matter. To the extent that the findings of fact contain conclusions of law, or that the conclusions of law are findings of fact, they should be so considered without regard to the given labels.

2.  The Medicaid program provides a federal subsidy to states that choose to reimburse qualified individuals for certain medical care. See 42 U.S.C. § 1396 et seq. Although participation in the program is voluntary, states which choose to participate in the Medicaid program must comply with federal Medicaid law. 42 U.S.C. § 1396a(a); Schweiker v. Gray Panthers, 453 U.S. 34, 101 S.Ct. 2633 (1981). Like all other states, North Carolina participates in the federal Medicaid program and is bound by its requirements.

3.  The CAP-MR/DD is a Medicaid waiver program permitted under 42 U.S.C. § 1396n(c) which provides for home or community-based services. This waiver allows North Carolina to pay for home and community-based services for an individual who would otherwise need institutionalization in an Intermediate Care Facility for the Mentally Retarded (ICF-MR). 42 U.S.C. § 1396n(c).

4.  The Medicaid program is jointly financed with federal and state funds "and is basically administered by each state within certain broad requirements and guidelines." House Subcomm. on Health and the Environment, Data on the Medicaid Program: Eligibility, Services, Expenditures Fiscal Years 1967-77, H.R.Rep. No. 10, 95th Cong., 1st Sess. 1. The state determines the scope of the services offered and generally determines the eligibility level for the programs. Id. The Act implements a federal-state joint venture in which participating states administer a Medicaid program developed by the state within the parameters established by federal law and regulations. Generally, the Medicaid Act consists of numerous sections and subsections that together form a cooperative mosaic through which the federal government reimburses a portion of the payments made by participating states to providers furnishing care to eligible persons. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531 (1981).