STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS
COUNTY OF BUNCOMBE 06 DHR 1410
)
DARLENE COGDILL, )
Petitioner, )
)
v. ) DECISION
)
DMH/DD/SAS, )
Respondent. )
)
This case was heard before Donald W. Overby, Administrative Law Judge, on January 9, 2007, in Asheville, North Carolina.
APPEARANCES
For Petitioner: Darlene Cogdill, Pro Se
26 Nightingale Lane
Weaverville, NC 28787
For Respondent: Diane Martin Pomper
Assistant Attorney General
9001 Mail Service Center
Raleigh, NC 27699-9001
JURISDICTION
As stipulated by the parties, this matter is in the appropriate forum and venue. It was filed in a timely and appropriate fashion. All necessary parties are joined.
ISSUE
Did Respondent improperly deny Petitioner Medicaid coverage under the Respondent’s Medicaid Home and Community Based Services waiver for Mental Retarded/Developmental Disabilities for the construction of a covered deck addition to the residence where Hailey Arrington lives?
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BURDEN OF PROOF
Petitioner bears the burden of proof in this matter.
EXHIBITS
Petitioner’s Exhibit 1 was admitted without objection.
Respondent’s Exhibits 1 though 4 were admitted without objection.
WITNESSES
Witnesses for the Petitioner were:
Darlene Cogdill
Alene Summersgill
Julia Wagner
Witnesses for the Respondent were:
Jesse Smathers
Darlene Cogdill
FINDINGS OF FACT
1. Darlene Cogdill, the Petitioner, is the guardian of Hailey Arrington. Hailey has lived with Darlene Cogdill and her husband since she was 16 months old when she was removed from her biological parents after suffering shaken baby syndrome.
2. Hailey is diagnosed with Cerebral Palsy and Grand Mal Seizures. Her health condition is very fragile. She is also legally blind and wears braces on her legs. She takes medications which make her sensitive to the sun.
3. The Cogdills operate an Alternative Family Living (AFL) home as employees of Summerland Homes which is run by Alene Summersgill. Alternative Family Living is a private home which provides care for a disabled individual.
4. Hailey is ten years old. She is Medicaid-eligible and has qualified for a Medicaid waiver program known as the Community Alternatives Program for Persons with Mental Retardation and Other Developmental Disabilities (CAP-MR/DD) which pays for certain services that regular Medicaid does not.
5. Services under CAP-MR/DD are requested by the recipient through a process known as person-centered planning which involves the recipient and those involved in her life to prepare a Plan of Care describing what is needed. The requests are subject to approval by Medicaid.
6. In June of 2006, Hailey’s team requested the addition of a covered deck to the home of the Cogdills. The deck was described as 64 feet by 10 feet, covered, with handrails and ramp, and would cost $14,100. R. Exh. 1. The request was supported by a letter from Dr. Karen Walter. Attachment to R. Exh. 1. While the letter supports the benefit of a covered deck so Hailey could be outside more without being in the direct sunlight, the medical necessity for a ramp is more clear.
7. The doctor and Petitioner described the property where Hailey lives as being on a steep slope and a ramp on the front would not fit. However, a ramp at the rear would be feasible.
8. Western Highlands Network (WHN) is the area authority for coordination of mental health, developmental disabilities, and substance abuse services in the area where Hailey lives.
9. WHN reviewed the request for the deck on behalf of the Respondent, a division of the North Carolina Department of Health and Human Services (DHHS). DHHS is the single state agency for the administration of Medicaid services in North Carolina.
10. WHN sent the Petitioner a denial letter which stated that the denial was because the modification proposed was to a home not owned by Hailey or her family and because a porch was not an item which was covered by the waiver.
11. According to the CAP-MR/DD Waiver there are limitations on what can be provided as a modification to the home. These include:
Home modifications can only be provided in the following settings:
1. Dwelling where the waiver recipient resides that is owned by the individual or the family.
2. In rented residences when the modifications are portable.
R. Exh. 3, p. 39 and R. Exh. 4, Appendix B, p. 15. In addition, there is a list of the types of items that are considered to be covered home modifications. While the list is not exhaustive, there is no item similar to a covered porch.
12. The term “family” is not defined in the waiver. Respondent argued that Hailey is not living in the home of her family because the Cogdills are not her immediate family, but rather her guardians and caregivers. However, at one point, the respondent allowed the Cogdill’s AFL to be approved without licensure because it considered the Cogdills to be Hailey’s family.
13. The evidence showed that Hailey’s biological father is dead and her mother’s whereabouts are unknown. The Cogdills are the only family that Hailey has ever known. There was also testimony that Hailey is a distant relative of the Petitioner. The Cogdills have not adopted Hailey as there are other relatives with legal claim.
CONCLUSIONS OF LAW
1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapter 150B of the N.C. General Statutes.
2. CAP-MR/DD is a "1915(c)" waiver program (codified at 42 U.S.C.§1396n(c)) to assist persons who would otherwise need to be served in Intermediate Care Facilities for the Mentally Retarded (ICF-MR's). R. Exh. 4
3. North Carolina’s CAP-MR/DD waiver is the law in this state. Arrowood v. N. C. Dept. of Health & Human Servs., 353 N.C. 351, 543 S.E.2d 481 (2001), adopting dissenting opinion in 140 N.C. App. 31, 535 S.E.2d 585 (2000) (interpreting a similar waiver in the Work First program).
4. WHN made 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. 4, Appendix A(1).
5. Petitioner argued that the language in the list of included modifications which states “porch or stair lift” means that a porch can be approved. However, the only reasonable interpretation of this phrase is that it means a porch lift or a stair lift. The term “weather protective modifications” in the same list does not reasonably include a covered deck. R. Exh 3, p. 38; the same list is in R. Exh. 4.
6. The CAP-MR/DD waiver does not provide funding for the covered deck which was requested by Petitioner. However, it can provide funding for “installation, maintenance and repairs of ramps, grab bars and handrails . . . .” R. Exh 4, Appendix B, p. 14.
7. Limitations on approval of a home modification include no increase in square footage of home, only done to home owned by recipient or family, and total cost cannot exceed $15,000 over the three years of the Waiver.
8. It is reasonable to find that Hailey is living in the home of her family. A ramp would not increase the square footage of the home and the cost would be under the maximum, since it would cost less than the porch.
9. A satisfactory ramp to access the back of the house should cost no more than $5,000.00.
DECISION
The Respondent in denying funding for a covered porch addition to Petitioner’s home not exceed its authority or jurisdiction, did not act erroneously, used proper procedure, was not arbitrary or capricious, and acted as required by law. However, the forgoing findings and conclusions support the approval of a ramp as a modification to Petitioner’s home. Therefore the decision of the Respondent is AFFIRMED in part. The Respondent shall approve the installation of a ramp and handrails for access to Petitioner’s home not to exceed $5,000.00 in cost.
NOTICE AND ORDER
The North Carolina Department of Health and Human Services will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.
Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.
This the 16th day of March, 2007.
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Donald W. Overby
Administrative Law Judge
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