STATE OF WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES OFFICE OF INSPECTOR GENERAL Earl Ray Tomblin BOARD OF REVIEW Karen L. Bowling Governor 4190 Washington Street, West Cabinet Secretary Charleston, West Virginia 25313 (304) 746-2360, ext. 2227 December 30, 2014 RE: V. WV DHHR ACTION NO.: 14-BOR-2802 Dear : Enclosed is a copy of the decision resulting from the hearing held in the above-referenced matter. 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. You will find attached an explanation of possible actions you may take if you disagree with the decision reached in this matter. Sincerely, Donna L. Toler State Hearing Officer Member, State Board of Review Encl: Claimant s Recourse to Hearing Decision Form IG-BR-29 cc: Kimberly Stitzinger-Jones, Assistant Attorney General
WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES BOARD OF REVIEW Claimant,, v. Action Number: 14-BOR-2802 WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Respondent. DECISION OF STATE HEARING OFFICER INTRODUCTION This is the decision of the State Hearing Officer resulting from a fair hearing for. This hearing was held in accordance with the provisions found in Chapter 700 of the West Virginia Department of Health and Human Resources Common Chapters Manual. This fair hearing was convened on December 18, 2014, on an appeal filed August 7, 2014. The matter before the Hearing Officer arises from the July 28, 2014 decision by the Respondent to deny Claimant s application for the Title XIX I/DD Waiver Program. At the hearing, the Respondent appeared by counsel, Kimberly Stitzinger-Jones, Assistant Attorney General. Appearing as witnesses for the Respondent were Pat Nisbet, Department of Health and Human Resources Program Manager and, Psychologist consultant to the WV DHHR, Bureau for Medical Services. The Claimant appeared by counsel,, Esquire. Appearing as witnesses for the Claimant were, Ph.D., Licensed Psychologist and, Youth Services Worker, WV DHHR. All witnesses were sworn and the following documents were admitted into evidence. Department s Exhibits: D-1 Second Independent Psychological Evaluation for West Virginia I/DD Waiver D-2 Correspondence from WV DHHR to for Claimant, dated July 28, 2014 D-3 Psychological Evaluation completed by, PLLC, dated December 4, 2013 D-4 Facsimile Cover Sheet from, PLLC, dated December 20, 2013, with attached psychological evaluation dated March 15, 2011 D-5 I/DD Waiver Manual, Chapter 513 Covered Services, Limitations, and Exclusions for I/DD Waiver Services, Introduction and 513.1 through 513.2.2
D-6 I/DD Waiver Manual, Chapter 513 Applicant Enrollment and Eligibility Process, 513.3 through 513.3.3.1 D-7 Bureau for Medical Services, Request for Hearing, date-stamped received by the Board of Review January 21, 2014 D-8 Correspondence from WV DHHR to for the Claimant, dated January 6, 2014 Claimant s Exhibits: C-1 Independent Psychological Evaluation, completed by, Ph.D., Licensed Psychologist, date of report October 14, 2014 C-2 Adaptive Behavior Assessment System Second Edition (ABAS- II) Teacher Rating Summary, dated October 14, 2014 C-3 Devereaux Progress Review provided by Dr., MD, dated May 21, 2014 C-4 Second Independent Psychological Evaluation for West Virginia I/DD Waiver, completed by, M.A., LSW, Supervised Psychologist and, MA, Licensed Psychologist, dated July 21, 2014 C-5 Correspondence from WV DHHR to, dated January 13, 2014 (with attachments C-6 Devereaux Progress Review, completed March 26, 2014 C-7 Title XIX Waiver Evaluation, completed by, Ph.D., July 19, 2011 C-8 Forensic Evaluation, completed by, Ph.D., filed with the on July 26, 2011; and Forensic Evaluation completed on September 16, 2010 by, Ph.D. C-9 Correspondence from WV DHHR to, dated October 11, 2013 (with attachments) C-10 Correspondence from WV DHHR to, dated July 22, 2013 (with attachments C-11 in Claimant Court Summary of evaluations C-12 Psychiatric Evaluation completed by, M.D., dated April 24, 2012 C-13 Psychiatric Brief Note, completed by, M.D., dated May 29, 2012 C-14, Emergency Safety Physical Intervention Report, dated January 15, 2013 C-15 Psychological Evaluation *Reevaluation, The, dated June 10, 2009 C-16 Report of Psychological Evaluation, dated January 16, 19 and 20, 2009, completed by, M.A. C-17 Mansuetto-Coville Psychological Evaluation, completed by, M.A., Ed.S, March 7, 2008 and March 31, 2008 After a review of the record, including testimony, exhibits, and stipulations admitted into evidence at the hearing, and after assessing the credibility of all witnesses and weighing the evidence in consideration of the same, the Hearing Officer sets forth the following Findings of Fact. 14-BOR-2802 Page 2
FINDINGS OF FACT 1) An application for the Title XIX I/DD Waiver Program (I/DD Waiver Program) was completed on the Claimant s behalf and denied by the Department on December 13, 2013 (Exhibit D-8). At the Claimant s request, a second evaluation was completed on the Claimant s behalf and denied by the Department on July 28, 2014. The denial letter indicated the reason the Claimant s application was denied, was that the Claimant did not have an eligible diagnosis of intellectual disability or a related condition which was severe. (Exhibit D-2) 2) The Department s witness, ( ), is a licensed psychologist contracted with the Bureau for Medical Services to complete assessments for the I/DD Waiver Program. explained that the I/DD Waiver Program is intended for individuals who are so compromised they require an institutional level of care. elaborated that such individuals are generally extremely non-functioning and may grunt or scream to make their needs known, they are immobile, they need to be taught basic tasks such as how to use a spoon and require one-on-one coaching to learn daily living activities. explained that the Claimant s diagnosis of Borderline Intellectual Functioning is not an eligible diagnosis for the I/DD Waiver Program. 3) On June 16, 2014, the evaluating psychologist administered the Wechsler Adult Intelligence Scale Fourth Edition with the Claimant. The Claimant s full scale score of 75 was identified as being borderline by. stated that in order to be considered an eligible score, the scale score must be three (3) standard deviations below the mean. The Claimant would have to scored 55 or below on the scale to meet the I/DD Waiver Program criteria. (Exhibit D-1) 4) A review of the Claimant s history of IQ scale scores indicated that a few of his past scores were in the range corresponding with a diagnosis of mild mental retardation. and the Claimant s witness, Dr. (Dr. ), both agreed that the low scores obtained were not likely to be accurate. added that the Claimant had consistently obtained scores, particularly in the last four years, which were in the Borderline Intellectual Functioning range. Low scores were attributed to being under the age of six and for lack of cooperation on the part of the Claimant. 5) The Claimant s witness, (Ms. ), stated that the Claimant was not able to function independently, that he had difficulty in directing himself, had to be told to go to the bathroom, how to order food and be reminded when it was time to leave. Ms. stated that the Claimant had run away from a secure juvenile facility about two weeks prior to the hearing. She stated that he went about a mile away to go to the restaurant. When asked to elaborate on the Claimant needing to be reminded to go to the bathroom, Ms. explained that the Claimant would go to the bathroom when he needed to, but that he was reminded to go prior to a flight departure as a courtesy. 14-BOR-2802 Page 3
6) A third independent psychological evaluation completed by Dr. was ordered by the (Exhibit C-1). The evaluation was completed after the second denial by the Department and was not considered in its decision to deny the Claimant s I/DD Waiver Program application. Dr. referred to his evaluation and testified that he diagnosed the Claimant with Unspecified Neurodevelopment Disorder, Borderline Intellectual Functioning and Depressive Disorder, Unspecified. Dr. stated that he had a difference of opinion with on what constituted severity. Dr. contended that because of the longevity and difficulty of the Claimant s problems, he felt an eligible diagnosis was warranted. agreed a diagnosis of Unspecified Development Disorder could be a potentially eligible diagnosis for the I/DD Waiver Program, if severe. added that in accordance with policy, determining severity must rely on psychometric testing and the Claimant s scores did not support the diagnosis of an intellectual disability which was severe. (Exhibit D-1) 7) Dr. indicated that he felt the Claimant was also eligible under the functionality criteria, but acknowledged that he was not aware that scores had to be 3 deviations below the mean to be considered eligible scores. referred to Exhibit D-1 which indicated that even if the Claimant had an eligible diagnosis, the only functional deficit he exhibited was in the major life area of functional academics. Policy requires the presence of substantial deficits in three out of six major life areas. (Exhibits D-1 and D-6) APPLICABLE POLICY West Virginia Medicaid Regulations, Chapter 513- Applicant Eligibility and Enrollment Process for I/DD Waiver Services, 513.3 states that an applicant must have a written determination that they meet medical eligibility criteria. Initial medical eligibility is determined through review of an Independent Psychological Evaluation (IPE) report completed by a member of the Independent Psychologist Network (IPN). West Virginia Medicaid Regulations, Chapter 513 - Applicant Eligibility and Enrollment Process for I/DD Waiver Services, 513.3.2.1, lists examples of related conditions which may, if severe and chronic in nature, be program eligible diagnoses, include but are not limited to autism, Traumatic brain injury, Cerebral Palsy; Spine Bifida, and any condition, other than mental illness, closely related to mental retardation because the condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires services similar to those required for persons with mental retardation. West Virginia Medicaid Regulations, Chapter 513 - Applicant Eligibility and Enrollment Process for I/DD Waiver Services, 513.3.2, states that an individual who applies for I/DD Waiver Services must substantiate the presence of substantial adaptive deficits in three out of six major life areas, which are self-care, receptive or expressive language, learning, mobility, self-direction and the capacity for independent living. 14-BOR-2802 Page 4
West Virginia Medicaid Regulations, Chapter 513 - Applicant Eligibility and Enrollment Process for I/DD Waiver Services, 513.3.2.2 reads, Substantial deficits are defined as standardized scores of 3 standard deviations below the mean or less than one percentile when derived from a normative sample that represents the general population of the United States, or the average range or equal to or below the 75 percentile when derived from MR normative populations when mental retardation has been diagnosed and the scores are derived from a standardized measure of adaptive behavior... The presence of substantial deficits must be supported not only by the relevant test scores, but also the narrative descriptions contained in the documentation submitted for review. DISCUSSION In order to establish medical eligibility for participation in the Medicaid I/DD Waiver Program, an individual must meet the three criteria of diagnosis, functionality, and the need for active treatment. Initial medical eligibility is determined through review of an Independent Psychological Evaluation (IPE) report completed by a member of the Independent Psychologist Network (IPN). Evidence established that the Claimant failed to meet the criteria of an eligible diagnosis of mental retardation or that of a related condition which is severe in nature. While Dr. documented that the Claimant was diagnosed with Unspecified Neurodevelopment Disorder, he failed to provide any evidence that the Claimant s condition was severe in nature as required by policy. Additionally, testimony provided by the Claimant s witness that the Claimant ran a mile away from a secure juvenile center to go to the Burger King restaurant contrasts greatly with what described as a typical individual who required an institutional level of care due to intellectual disability, having to be taught basic tasks such as how to use a spoon. As pointed out by, even if the Claimant met the requirement of an eligible diagnosis, documentation outlined in the psychological evaluation failed to indicate Claimant presented scores that were three (3) standard deviations below the mean in at least three (3) of the six (6) major life areas of self-care, receptive or expressive language, learning, mobility, selfdirection and the capacity for independent living, as required by policy. The Claimant s witnesses failed to provide any evidence to refute the Department s psychological evaluation results. In fact, Dr. agreed with that the low scores received on previous assessments were not accurate reflections of the Claimant s intellectual functioning. CONCLUSIONS OF LAW Claimant s application for the Title XIX I/DD Waiver Program did not meet the policy requirement of a diagnosis of mental retardation or a related condition which is severe in nature as defined by policy. Therefore, the Claimant does not meet the medical component of eligibility. 14-BOR-2802 Page 5
DECISION It is the decision of the State Hearing Officer to uphold the Department s decision to deny Claimant s application for the Title XIX I/DD Waiver Program. ENTERED this Day of December 2014. Donna L. Toler State Hearing Officer 14-BOR-2802 Page 6