State of West Virginia DEPARTMENT OF HEALTH AND HUMAN RESOURCES Office of Inspector General Joe Manchin III Board of Review Martha Yeager Walker Governor PO Box 29 Secretary Grafton WV 26354 February 26, 2007 for Dear Ms. : Attached is a copy of the findings of fact and conclusions of law on your hearing held November 15, 2006. Your hearing request was based on the Department of Health and Human Resourcesʹ proposal to terminate services under the MR/DD Home and Community Based Waiver Program. In arriving at a decision, the State Hearing Officer is governed by the Public Welfare Laws of West Virginia and the rules and regulations established by the Department of Health and Human Resources. These same laws and regulations are used in all cases to assure that all persons are treated alike. Eligibility and benefit levels for the MR/DD Home and Community Based Waiver Program are determined based on current regulations. One of these regulations specifies that in order to be eligible for the Title XIX MR/DD Home & Community Based Waiver Program, an individual must have both a diagnosis of mental retardation and/or a related condition(s), and require the level of care and services provided in an Intermediate Care Facility for individuals with Mental Retardation and /or related conditions. (MR/DD Waiver Manual 503.1 The information which was submitted at the hearing revealed that your current diagnosis is a related condition and thus qualifying. Evidence provided demonstrated substantial functional limitations in three or more of the designated major life areas, indicating that the level of care provided in an ICF/MR facility is currently required. It is the decision of the State Hearing Officer to reverse the Department s determination to terminate benefits and services under the MR/DD Waiver Program as set forth in the June 28, 2006 notification. Sincerely, Ron Anglin State Hearing Examiner Member, State Board of Review cc: Erika Young, Chairman, Board of Review Stephen Brady, Office of Behavioral Health Services Coordinating Council for Independent Living
WEST VIRGINIA DEPARTMENT OF HEALTH & HUMAN RESOURCES, Claimant, v. Action Number 06 BOR 2399 West Virginia Department of Health & Human Resources, Respondent. SUMMARY AND DECISION OF THE STATE HEARING OFFICER I. INTRODUCTION: This is a report of the State Hearing examiner resulting from a fair hearing concluded on February 26, 2007 for. This hearing was held in accordance with the provisions found in the Common Chapters Manual, Chapter 700 of the West Virginia Department of Health and Human Resources. This fair hearing was held November 15, 2006 on a timely appeal filed July 12, 2006. It should be noted here that services have continued pending a hearing decision. II. PROGRAM PURPOSE: The program entitled MR/DD Home and Community Based Waiver is set up cooperatively between the Federal and State Government and administered by the West Virginia Department of Health and Human Resources. The Medicaid Home and Community Based MR/DD Waiver (authorized under Title XIX, Section 1915 of the Social Security Act) provides an alternative to services available in Intermediate Care Facilities for individuals with Mental Retardation or related conditions (ICF/MR). West Virginia s MR/DD Waiver Program provides for individuals who require an ICF/MR level of care, and who are otherwise eligible for participation in the program, to receive certain services in a home and/or community based setting for the purpose of attaining independence, personal growth, and community inclusion. III. PARTICIPANTS:, claimant, mother to claimant Natalie Hissam, CM, CCIL Mary Sheme, grandmother to claimant
Stephen Brady, MR/DD Program, Office of Behavior Health Services (by phone) Richard Workman, Psychologist Consultant, Bureau for Medical Services (by phone) Presiding at the hearing was Ron Anglin, State Hearing Examiner and a member of the State Board of Review. IV. QUESTION(S) TO BE DECIDED: The question to be decided is whether the agency was correct in their determination that the claimant does not meet the medical eligibility criteria for continued participation in the MR/DD Home and Community Based Waiver Program. V. APPLICABLE POLICY: MR/DD Waiver Manual 503.1 VI. LISTING OF DOCUMENTARY EVIDENCE ADMITTED: Department Exhibits: A 1 Memo MR/DD to CCIL 3/27/06 A 2 Notification, 6/28/06 A 3 Letter CCIL to MR/DD 4/12/06 A 4 Annual Medical Evaluation (DD 2A), 2/7/06 A 5 Psychological evaluation with ABS sores 2/13/06 A 6 IEP, on Co., 4/21/05 A 7 MR/DD Waiver Manual 503.1 503.3 Claimant Exhibits: C 1 ABS S: 2 scores, 10/11/06 C 2 Student Summery, Big Elm Elementary C 3 IEP, on Co. Schools, 4/13/06 C 4 WVDHHR IEP, 9/13/06 The following were submitted and received 12/14/06 during the 30 day period granted for the submittal of additional material. C 5 WVDHHR ICF/MR Level of Care Evaluation (DD 2A) 11/30/06 C 6 Psychoeducational Evaluation, on Co. Schools, 12/2/06 C 7 Classroom Observation Form, 11/30/06 C 8 Statement, 12/6/06, Karen Carroll, Special Educator C 9 Psychological Evaluation, 12/4/06 with ABS scores
VII. FINDING OF FACTS: 1) On June 28, 2006, a Notice of Termination (A 2) was sent to the claimant as a result of a recertification review. The basis of decision indicated that: Based on the scores from the adaptive behavior scale utilizing Non MR norms (claimant) does not demonstrate substantial delays in three major life areas identified for eligibility for Title XIX MR/DD Waiver. Reviewed were the 2/7/06 DD 2A (A 4), 2/13/06 psychological evaluation (A 5) and 4/12/05 IEP (A 6). 2) A hearing was requested by the claimant July 12, 2006 and this request was received by the Board of Review July 21, 2006. 3) This request was received by this examiner August 1, 2006 and a hearing was scheduled for and held November 15, 2006. 4) Exhibits as listed in section VI above were accepted. Exhibits C 5 through C 9 were received 12/13/06, during the 30 day period granted for the submittal of additional material. The agency reviewed this material and on 12/13/06 indicated that this documentation resulted in no change in their prior determination. 5) Testimony was heard from the individuals listed in section III above. All persons giving testimony were placed under oath. 6) The agency acknowledged that the claimant has an eligible diagnosis Autism. 7) The agency s psychologist reviewed the available medical/social information. Noted that the medical evaluation (A 4) indicates the only area of concern is continence however the psychological evaluation contradicts this assertion. The Psychological evaluation (A 5) notes that child was diagnosed with Autism in 2002. She does some spelling and math in regular 1 st grade. (This is quite positive for someone with Autism). Report notes that claimant works with flash cards to assist in spelling. Can do simple reading, recognizes words. (This level of functioning is not found in persons in an institutional setting.) Report notes she is potty trained. Both fine and gross motor skills within normal limits. Self help section indicates potty trained, eating with some spillage, supervision and prompting required with personal hygiene and dressing. Receptive language skills good with expressive delays. Self direction and leisure skills appear well beyond those of program eligible individuals. FSIQ score of 76 (at the very upper limit of mild MR borderline). Diagnosis is Autism Disorder (fails to indicate MR). ABS scores (percentiles) self direction 37, language 5, independent functioning 9, physical development 25 (eligible program scores would be less than 1 percentile). Agency s position is that claimant doesn t meet substantial deficits in eligibility categories of mobility, language, self direction or learning.
8) The claimant s mother testified that the child had a significant progressive at the time of the evaluation but has a steady decline beginning in May. She continues to regress. She gets about ½ of her flash cards right. Books read are at a preschool level. She memorizes rather than actually reads. Math skills are also a result of memorization. Potty training is incomplete she still wears a diaper to bed and has accidents. Cannot ride a bike she only pedals cannot steer. 9) The claimant s case manager testified that she completed Exhibit C 1 ABS scores of 10/11/06. Independent functioning is 1 percentile. Stress in this report was on what child could do her self without assistance. Economic activity and language are also first percentile. 10) Exhibit C 9, Psychological Evaluation of 12/6/06 reveals no physical or sensory deficits, fine and gross motor skills within normal limits. She is potty trained and able to feed herself with some spillage. Personal hygiene and dressing require monitoring and supervision. Receptive language skills characterized as good. Delays and regression in expressive language skills are noted ( She is speaking more gibberish and more echolalia ). Mental status notes that the child s speech was very difficult to understand. She plays with dolls, watches videos, sled rides, paints/colors, and has learned to jump rope. The report notes that the claimant meets criteria for Autism and appears to fall into the low average range of intellectual functioning. ABS scores are based on Non MR norms. Scores in Domain One range from poor (socialization) to average (physical development, responsibility). Independent Functioning score < 1 percentile. Domain Two scores range from very poor (stereotyped/hyperactive behavior) to average (social behavior). Personal and Community self sufficiency poor and very poor respectively. 11) Exhibit C 5 Level of Care Evaluation (DD 2A) 11/30/06 reveals diagnoses of Autism and severe developmental delay with MR. Areas requiring special care note urinary incontinence, assistance required with personal hygiene/self care. Mental/Behavioral difficulties alert, irrational behavior needs close supervision, limited communication. 12) Exhibit A 4, Annual Medical Evaluation (DD 2A) of 2/7/06 reveals problem areas requiring special care to be Continence Status incontinent The diagnosis set forth is Autism suffers severe developmental delay and the prognosis fair to poor. 13) Exhibit C 6, Psychoeducational Evaluation, on Co. Schools, 12/2/06 states in part, While K continues to demonstrate significant deficits in verbal skills and academic areas, verbal skill deficit are most likely impaired due to her autistic disorder. 14) Eligibility for the MR/DD Waiver Program is outlined in the MR/DD Waiver Manual 503.1 Must have a diagnosis of mental retardation, which must be severe and/or chronic, in conjunction with substantial deficits (substantial limitations associated with the presence of mental retardation), and or must have a related developmental condition, which constitutes a severe, chronic disability with concurrent substantial deficits. Substantially limited functioning in three or more of the following major life areas: self care, receptive or expressive language, learning (functional academics), mobility, self direction, and capacity for independent living.
To qualify for ICF/MR level of care, evaluations of the applicant must demonstrate: A need for intensive instruction, services, assistance, and supervision in order to learn new skills and increase independence in activities daily living. A need for the same level of care and services that is provided in an ICF/MR institutional setting. VIII. CONCLUSIONS OF LAW: 1. To qualify for the MR/DD program an individual must have a diagnosis of mental retardation or must have a related developmental condition, which constitutes a severe, chronic disability with concurrent substantial deficits. The agency concedes an eligible diagnosis autism. 2) An eligible individual must possess substantially limited functioning in three or more of the following designated major life areas. 3) Mobility evidence reveals that the claimant s fine and gross motor skills are within normal limits without physical or sensory deficits. No substantial deficit found is found in this category. 4) Self Care evidence reveals the claimant continues to have issues relating to incontinence. Supervision and monitoring are required for dressing and hygiene. The agency provided no position regarding a substantial deficit in this category. Substantial deficit found 5) Receptive/Expressive Language While receptive language skills may be acceptable, significant expressive delays are documented. There appears to be a regression of verbal skills and difficulty in ability to make herself understood. Language is sometimes characterized as gibberish and echolalia is noted both increasing in frequency. Substantial deficit found 6) Learning (functional academics) While documentation seems positive here testimony suggests there is some deficit and decline in learning. Reading and math skills may in fact be merely memorization. However documentation suggests that an MR diagnosis is questionable. On the basis of this somewhat contradictory information and the IQ scores noted in documentation a finding of substantial deficit cannot be found in this category. 7) Self Direction The claimant seem to enjoy and indulge in age appropriate activities. ABS scores in self direction are in the average range. No substantial qualifying deficit found. 8) Capacity for Independent Living ABS scores in Personal and Community Self sufficiency are very poor to poor. Independent Functioning scores are consistently in the poor range with most recent scores < 1 percentile. The agency provided no position regarding a substantial deficit in this category. Deficit found.
IX. DECISION: After a thorough examination of all evidence presented, it is the decision of the State Hearing Examiner to reverse the Department s proposal in termination of the claimant s medical benefits and related services under the MR/DD Waiver Program as set forth in the June 28, 2006 notification. Substantially limiting qualifying deficits were found based on the evidence presented in 3 categories Capacity for Independent Living, Language and Self Care. IX. RIGHT OF APPEAL: See Attachment. X. ATTACHMENTS: The Claimantʹs Recourse to Hearing Decision. IG BR 29 ENTERED This 26 th Day of February 2007, RON ANGLIN STATE HEARING EXAMINER