STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ROCKINGHAM 04 DHR 1443

KIM HALEY, )

Petitioner, )

)

v. ) DECISION )

CAP/C, DEPT. OF HEALTH AND HUMAN )

SERVICES, )

Respondent. )

__________________________________________

This matter came on for hearing before the undersigned administrative law judge on November 10, 2004, at 9:00 a.m. in the Caswell County Courthouse, Yanceyville, North Carolina. Petitioner, Kim Haley, appeared pro se. Respondent was represented by Donna D. Smith, Assistant Attorney General. Respondent presented three witnesses and introduced 11 exhibits.

ISSUE

Whether Respondent properly denied Medicaid coverage under the North Carolina Medicaid Community Alternatives Program for Children based on its determination that Petitioner’s daughter did not require nursing facility intermediate level of care.

APPLICABLE LAW

42 U.S.C. §§ 1396a-1396v

N.C. Gen. Stat. ch. 108A, art. 2, pts. 1 and 6

N.C. State Plan for Medical Assistance

42 C.F.R. pt. 431 subpt. B and pt. 441 subpt. G

North Carolina’s Home and Community Based Services Waiver for Medically Fragile Children

N.C. Medicaid Community Alternatives Program for Children (CAP/C) Manual

N.C. Medicaid Nursing Facility Provider Manual

10A N.C.A.C. 22O.0301

FINDINGS OF FACT

1. Petitioner’s daughter, Rachel Early, is seven years of age with a primary diagnosis of cystic fibrosis.

2. Rachel is a Medicaid recipient under the North Carolina Medicaid Community Alternatives Program for Children (“CAP/C”).

3. Jane Plaskie, R.N., is a CAP/C nurse consultant for Respondent. Ms. Plaskie has held this position for two and one-half years. As a CAP/C nurse consultant, Ms. Plaskie conducts annual continuing need reviews to determine if children receiving CAP/C services continue to qualify for the Program.

4. Ms. Plaskie holds baccalaureate and master’s degrees in nursing, and prior to her current position, she has served as a staff nurse, nurse manager, nurse consultant, and nurse educator in a variety of fields, including hospitals, nursing homes, home health agencies, hospices, and schools of nursing. She has supervised licensed nurses and nurse aides and is familiar with the scope and standards of practice for nurses and nurse aides under the North Carolina Nursing Practice Act and the Nursing Board rules. Ms. Plaskie is qualified as an expert in the field of nursing practice.

5. As is her custom and duty, Ms Plaskie reviewed the annual FL-2, assessment, and plan of care for Rachel Early in June, 2004, as well as nurse aide flow sheets for the month of May, 2004. These documents showed that Rachel was doing well in school and progressing in a normal child development pattern without the disease process hindering her. Rachel required some supervision with bathing, feeding and dressing, took required medications, received some supplemental feedings, required chest percussion two to three times daily, and was required to see her physician every 90 days. The nurse aide flow sheets showed that the nurse aide assisted Rachel with her activities of daily living, monitored her medications, supervised her daily exercises like blowing bubbles and jumping on a trampoline, and provided chest percussion once a day.

6. Based on her review of the documentation and her training and experience as a nurse and consultant for the CAP/C Program, Ms. Plaskie determined that Rachel did not meet the criteria for nursing facility intermediate level of care as set forth in North Carolina’s Home and Community Based Services Waiver for Medically Fragile Children (“Waiver”).

7. Under the Waiver, intermediate level of care is for children requiring a minimum of eight hours of licensed nurse coverage daily.

8. Ms. Plaskie testified that none of Rachel’s current treatments, therapies and care needs provided by the in-home aide required a licensed nurse or someone working under the supervision of a licensed nurse, such as a nurse aide.

9. Because Ms. Plaskie determined that Rachel did not meet the criteria for nursing facility intermediate level of care, she forwarded Rachel’s documentation to Electronic Data Systems (“EDS”) for review. EDS is the entity that makes the nursing facility level of care determination for recipients of CAP/C services on behalf of Respondent. Ms. Plaskie also requested that any medical records from Rachel’s physicians that would support intermediate level of care be sent to EDS for review.

10. Dr. Sarah Morrow, M.D., M.P.H., has been the Medical Director for EDS for twenty years. Part of her duties at EDS includes determining for the Medicaid Program whether patients require nursing facility level of care. Prior to coming to EDS, Dr. Morrow served as a county health director for approximately twenty-two years and as Secretary of the N.C. Department of Health and Human Services for eight years. Dr. Morrow has a medical degree and a master’s degree in public health and is licensed to practice medicine in North Carolina. She is board-certified in preventive medicine and board-qualified in pediatrics. Dr. Morrow is qualified as an expert in preventive medicine.

11. Dr. Morrow reviewed Rachel’s annual FL-2, assessment, plan of care, nurse aide flow sheets and medical reports dated June 24, 2003 through February 24, 2004 from Rachel’s pediatric pulmonologists at Wake Forest University Baptist Medical Center. Based on her review of the documentation and her training and experience, Dr. Morrow concluded that Rachel did not require nursing facility intermediate level of care. She further opined that if Rachel did not receive CAP/C services, she would not require institutionalization in a nursing facility.

12. Dr. David Goff, M.D., is a medical consultant for Respondent. Part of his duties includes reviewing medical information of CAP/C recipients to determine the appropriateness of continued CAP/C services. Dr. Goff is licensed to practice medicine in North Carolina and is board-certified in pediatrics and internal medicine. Dr. Goff has practiced medicine since 1985 and approximately fifty percent of his practice is pediatrics. He has also been a clinical assistant professor and instructor in pediatrics. Dr. Goff is qualified as an expert in pediatric medicine.

13. Dr. Goff reviewed Rachel’s annual FL-2, assessment, plan of care, nurse aide flow sheets and medical reports dated June 24, 2003 through February 24, 2004 from Rachel’s pediatric pulmonologists at Wake Forest University Baptist Medical Center. He also reviewed North Carolina Baptist Hospital records for Rachel dating back to 1998. Dr. Goff spoke by telephone with Rachel’s coordinating care physician to ensure there were no aspects of her care plan not reflected in her medical records.

14. Based on his training and experience, and review of Rachel’s medical records and conversation with her coordinating care physician, Dr. Goff concluded that Rachel no longer qualified for nursing facility intermediate level of care under the CAP/C Program. Dr. Goff testified that pulmonary function testing showed Rachel had normal lung function. He also opined that Rachel’s current treatment plan had been very successful and could be provided to Rachel without any professional nursing or nurse aide intervention. Dr. Goff concluded that if Rachel did not receive in-home aide services through the CAP/C Program, she would not require institutionalization in a nursing facility.

15. Respondent denied Medicaid coverage for nursing facility intermediate level of care for Rachel Early on July 6, 2004. This decision was reviewed at a reconsideration hearing on August 20, 2004, and a Notice of Decision upholding the denial was issued on August 24, 2004. Petitioner appealed the Decision to the Office of Administrative Hearings on September 1, 2004.

CONCLUSIONS OF LAW

1. Respondent is authorized to establish and administer the N.C. Medicaid Program under N.C.G.S. Chapter 108A, Article 2, Parts 1 and 6.

2. The CAP/C Program is operated under North Carolina’s Home and Community Based Services Waiver for Medically Fragile Children (“Waiver”) granted by the Health Care Financing Administration pursuant to Section 1915(c) of the Social Security Act.

3. The purpose of the CAP/C Program is to provide home and community based services to children through age eighteen who, but for the provision of such services, would require institutionalization in a hospital or nursing facility.

4. To be eligible for services under the CAP/C Program, a recipient must require, at a minimum, nursing facility intermediate level of care as defined in the Waiver.

5. Nursing facility intermediate level of care as defined in the Waiver is for those children who require a minimum of eight hours of licensed nurse coverage daily.

6. Rachel Early’s current condition does not require nursing facility intermediate level of care as defined in the Waiver.

7. Respondent did not act in an arbitrary and capricious manner in administering the CAP/C Program, did not fail to act as required by law or rule, did not fail to use proper procedure, did not act erroneously, nor did it exceed its authority or jurisdiction.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby determines that Rachel Early does not require nursing facility intermediate level of care as defined by North Carolina’s Home and Community Based Services Waiver for Medically Fragile Children and affirms Respondent’s decision to deny Medicaid coverage under the CAP/C Program.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center , Raleigh, NC 27699-6714, in accordance with G.S. § 150B-36(b3).

NOTICE

The parties have the right to file exceptions and to present written arguments to the agency making the final decision. G.S. § 150B-36(a). The agency making the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Medical Assistance. The agency is required to serve a copy of the final decision upon each party and to furnish a copy to each party’s attorney of record and the Office of Administrative Hearings. G.S. § 150B-36(b3).

This the 19th day of January 2005.

____________________________

Beecher R. Gray

Administrative Law Judge