STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF CUMBERLAND 06 DHR 0966
______
KENYETTA SHAW, )
Petitioner, )
)
vs. ) DECISION
)
DMH/DD/SAS, )
Respondent. )
______
THIS MATTER came on for hearing before the undersigned Administrative Law Judge on September 12, 2006, in Fayetteville, North Carolina. The record was left open for submission of materials by the parties after each (if they desired) received a copy of the transcript of the proceeding. By letter filed November 22, 2006 in the Office of Administrative Hearings (OAH) the Respondent notified the Undersigned of receipt of the Transcript and filed its proposals on December 4, 2006. The record was held open for filing by Petitioner and closed on December 11, 2006.
APPEARANCES
For the Petitioner: Kenyatta Shaw, Pro Se
Fayetteville, NC 28314
For the Respondent: Diane Martin Pomper,
Assistant Attorney General
NC Department of Justice
Raleigh, NC
ISSUE
Whether the Respondent acted erroneously or did the State properly deny Medicaid coverage for eight hours per day of Home and Community Supports (HCS), instead allowing two hours per day of HCS and six hours per day of MR Personal Care?
BURDEN OF PROOF
As stipulated by the parties, Respondent bears the burden of proof in this matter.
EXHIBITS ADMITTED INTO EVIDENCE
For Petitioner: Petitioner did not offer any exhibits.
For Respondent: Exhibits 1 though 17 were admitted without objection.
WITNESSES
For Respondent: For Petitioner:
Kenyatta Shaw Kenyatta Shaw
James Lampros
Tammie Baldwin
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing 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. From the sworn testimony of witnesses and all other evidence, the Undersigned makes the following:
FINDINGS OF FACT
1. Becky Shaw is a 35-year-old woman who lives with her sister, Kenyatta Shaw, who is also her guardian. Becky has been diagnosed with Psychotic Disorder NOS, Moderate Mental Retardation, Atonic Cerebral Palsy, and Diabetes Mellitus II. Becky has been found eligible for services under the Community Alternatives Program for Persons with Mental Retardation/Developmental Disabilities (CAP-MR/DD).
2. Each year a team of persons including the recipient for services develops a Plan of Care (POC) for each CAP-MR/DD recipient. The plan outlines the services that the recipient and the persons working with the recipient believe should be funded by the CAP-MR/DD program. The Plan is submitted to the area mental health authority (also known as the local management entity or LME). Revisions during the year can be made when changes occur.
3. The Plan of Care (POC) in dispute in this case was prepared at a team meeting on August 31, 2005. In that meeting, the team requested Respite service (which is not in dispute) and eight hours per day, every day, of Home and Community Supports (HCS). R. Exh. 1.
4. A revision was submitted with an implementation date of September 1, 2005, because a new CAP-MR/DD waiver was being implemented State-wide. R. Exh. 12. This revision transferred the previous services which Becky had been receiving to the same number of hours of the most similar service available under the new waiver. The new annual plan was submitted during September 2005. The team asked for the same type and amount of services which were in the revision.
5. Cumberland County Mental Health Center reviewed the plan and in an October 21, 2005 letter, denied the requested hours of HCS, but indicated that two hours per day of HCS and six hours per day of Personal Care service (PC) would be approved. This had the effect of the same hours of service but with six hours being of a different character than recommended at the team meeting. The denial letter stated that the reason was “the need for 240 H/M [hours/month] of Home and Community Supports was not justified in the POC nor was it within the UR Guidelines that local approval is required to apply.” R. Exh. 9.
6. The testimony in this case showed that Becky had lived with her mother until mid-2004 when her mother passed away. When her plan for 2004 was done in late August, the team requested and was granted an increase in the level of service to be provided because Becky was experiencing an increase in negative behaviors. R. Exh. 11.
7. Mr. James Lampros of Cumberland County Mental Health Center testified that he believed that denying the continuation of the same services as before was correct, because the goals in the new plan did not involve training which is the major component of HCS. Goals which involve things that Becky can already do or which merely need monitoring and support are appropriate for PC. T. pp. 38-39, 93-94.
8. Personal Care is described in the CAP-MR/DD Manual as including “support, supervision, and engaging participation” in activities of daily living. It goes on to say that PC may be provided in a licensed day setting if the plan shows the need. R. Exh. 15, T pp. 42-43.
9. Mr. Lampros also relied on the Utilization Review guidelines in the CAP-MR/DD Manual, which limits a recipient with Becky’s level of need to no more than four hours of HCS per day. R. Exh. 15, T p. 112
10. Mr. Lampros also testified that he considered that there had been an increase in services in 2004 due to Becky’s response to her mother’s death. That plan makes clear that the increase may be temporary. R. Exh. 11, p. 6. The 2005 plan showed that she was settling into her new routine so that it was appropriate to consider if she still needed that increase. T. p. 49.
11. Kenyatta Shaw (Ms. Shaw), the Petitioner, believed that if Becky received PC rather that HCS that she would not be able to participate in community activities because PC could only be done at home. T. p. 82. However, Ms. Tammie Baldwin, who has worked with the CAP-MR/DD program for at least six years, testified that there is no such restriction. T. p. 63, T. p. 96. This is further supported by the definition of PC. R. Exh. 15.
12. Ms. Shaw testified that at the time the 2005 plan was submitted that Becky was having negative behaviors about two times a week which was an improvement over 2004 after her mother’s death. T. p. 20-21. At the time of the hearing, Ms. Shaw testified that Becky was “doing very well” and had accomplished most of the personal care and housekeeping goals in the plan. T. pp. 22, 24-25. Ms. Shaw testified that one of the goals she wanted to see for Becky was securing a job. She stated that Becky had had a job in past years and the Petitioner felt Becky would benefit from again having a job. Petitioner testified that Becky had mastered most of the self-care goals set out for her. Petitioner felt Becky could do many tasks but needed someone to prompt her to do various tasks. T. p. 23-26.
13. Several of the hours each day that the aide is with Becky are during compensatory education classes or at the recreation center. In both situations there are others involved in instructing Becky. The aide is not training her during those times. T. pp. 19-20. Based on Ms. Shaw’s testimony it appeared that the aide mostly reminded Becky to do things that she already knew how to do.
14. Ms. Shaw expressed the opinion that the change to Becky’s plan as proposed by the Respondent was due to a statewide decision to reduce funding for mental health services. T. pp. 71-72. PC is paid at a lower rate than HCS. T. p. 60.
15. The services contained in the old plan and requested again in 2005 have continued while this case is pending.
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
1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case pursuant to applicable State and Federal laws. 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. North Carolina’s CAP waiver was revised in 2005. The Centers for Medicare and Medicaid Services (CMS) approved the new waiver effective July 1, 2005, and it was implemented September 1, 2005, across the State.
5. Federal law mandates that each state participating in the Medicaid program must designate “a single state agency” responsible for the program in that state. 42 U.S.C. §1396a(a)(5). The North Carolina Department of Health and Human Services operates as this State’s agency.
6. Cumberland Mental Health Center is the Local Management Entity (LME) for recipients within its area, and makes the decisions on CAP-MR/DD services on behalf of the North Carolina Department of Human Services, Division of Medical Services (DMA) and Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (DMH). R. Exh. 16.
7. An LME is required by the Waiver to follow standardized Utilization Review criteria established by DMH and DMA. R. Exh. 16. These criteria are contained in the CAP-MR/DD Manual. R. Exh. 15. The Manual provides guidance to the LMEs making decisions on the program.
8. The CAP/MR/DD Manual (no NC Administrative Code cite) is a nonbinding statement from the agency which defines, interprets, and explains the statutes and rules for Medicaid. Although the Manual sets out the requirements for Medicaid eligibility, it merely explains the definitions that currently exist in the federal and state statutes, rules, and regulations. Violations of or failure to comply with the Manual is of no effect, but failure to meet the requirement(s) set out in the federal and state statutes and regulations is/are a ground to deny Medicaid payments. The North Carolina Courts have found that such a manual (though indeed authorized in its making) is not an agency rule or regulation, within the meaning of the administrative procedure code, and, although such a manual sets out requirements for Medicaid eligibility, it is an interpretative document, and noncompliance with such a manual is of no effect. Okale ex rel. Okale v. North Carolina Department of Health and Human Services, 153 N.C.App. 475, 570 S.E.2d. 741 (2002).
9. However, the Home and Community Based Waiver approved by the federal Centers for Medicare and Medicaid Services has the force of law, based on the reasoning of Arrowood v. N. C. Dept. of Health & Human Servs., 353 N.C. 351, 543 S.E.2d 481 (2001), adopting dissenting opinion in Arrowood v. N. C. Dept. of Health & Human Servs., 140 N.C. App. 31, 535 S.E.2d 585 (2000) (interpreting a similar waiver in the Work First program). The definitions of the HCS and PS services contained in the Manual are taken verbatim from the Waiver.
10. There is some overlap in the definitions of HCS and PC. Based on the definition of HCS and the testimony of Mr. Lampros and Ms. Baldwin, HCS is intended to provide “habilitation, training and instruction coupled with elements of support, supervision and engaging participation to reflect the natural flow of training, practice of skills, and other activities as they occur during the course of the person’s day.” R. Exh. 15, T pp. 36-37. It is clear that every moment of the time billed as HCS does not have to be training, but that needs to be the main emphasis. Where the main function is support, supervision, and maintenance of skills, then the service required best fits the definition of PC.
11. Even if part of the impetus for the proposed change in service was due to an effort to conserve funding, that is an acceptable goal so long as the individual’s needs are still met. The State has an obligation to provide services that “can be reasonably accommodated within available resources and taking into account the needs of other persons for mental health, developmental disabilities, and substance abuse services.” G.S. §122C-2.
12. The evidence as a whole showed that Becky primarily needs someone with her to guide her through her activities and that with supervision and support she can do the activities that are described in her 2005 Plan of Care. The training aspect at this point in time is a minor part of her daily activities.