STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENGURG 06 DHR 0901

)

WANDA FENNELL, )

)

Petitioner, )

)

v. ) DECISION

DHHS, )

)

Respondent. )

) )

This matter came on for hearing before the undersigned Administrative Law Judge on June 6, 2007, in Charlotte, North Carolina. Petitioner, Wanda Fennell, appeared pro se, together with her husband, Leon Fennell, on behalf of their minor son, Matthew Fennell. Respondent was represented by Richard J. Votta, Assistant Attorney General. Respondent presented two witnesses, Marcia Copeland, Chief of the Behavioral Health Section, North Carolina Department of Health and Human Services, Division of Medical Assistance (DMA), and Dr. Jeffrey C. Holden, Clinical Psychologist and DMA consultant. Respondent introduced five exhibits. Petitioner presented one witness, Dr. Daphne J. Timmons, Clinical Psychologist, and introduced one exhibit.

ISSUE

Whether Respondent properly determined that the minor son of Petitioner did not meet the criteria which are necessary to establish “intermediate care facility for the mentally retarded (ICF/MR)” level of care and to qualify for benefits under the North Carolina Medicaid Community Alternatives Program for Persons with Mental Retardation or Developmental Disabilities (CAP-MR/DD).

APPLICABLE LAW

42 U.S.C. §§ 1396-1396v

42 C.F.R. §§ 483.440; 435.1010

N. C. Gen. Stat. Ch. 108A, Article 2, Parts 1 and 6

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

N. C. State Plan for Medical Assistance

N.C. Medicaid CAP-MR/DD Manual

North Carolina's Community Alternatives Program for Persons with Mental Retardation or Developmental Disabilities Waiver

FINDINGS OF FACT

1. Petitioner sought approval on behalf of her minor son, Matthew Fennell, for Medicaid benefits through the North Carolina CAP-MR/DD Program. Upon review of the materials submitted by or on behalf of Petitioner in support of her application, it was determined by Respondent that her son did not satisfy the nursing facility level of care criteria necessary to qualify for benefits under such program. Prior approval for such benefits was denied.

2. Petitioner sought reconsideration review of the initial denial of CAP-MR/DD benefits before the Hearing Office of the North Carolina Department of Health and Human Services.

Reconsideration hearing was held on May 4, 2006, and a Notice of Decision affirming the initial denial was issued on May 16, 2006. Petitioner duly petitioned for further review of such decision in the present forum.

3. 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.

4. The CAP-MR/DD Program is operated under North Carolina’s Home and Community Based Waiver for Persons with Mental Retardation/Developmental Disabilities granted by the United States Department of Health and Human Services, Center for Medicare and Medicaid Services, pursuant to Section 1915(c) of the Social Security Act , codified at 42 U.S.C. § 1396n(c).

5. The purpose of the CAP-MR/DD Program is to provide home and community based services as an alternative to persons who, but for the provision of such services, might require institutionalization in an intermediate care facility for the mentally retarded or persons with related conditions (ICF-MR). To be eligible for services under the CAP-MR/DD Program as identified in the waiver, a recipient must require, at a minimum that same level of care as that provided at an ICF-MR facility.

6. In order to qualify for ICF/MR level of care as defined in applicable federal regulatory authority and as incorporated in the North Carolina waiver, an applicant must be mentally retarded or have a related condition. This definition as found in such authority is detailed also in Section 2.2 of the North Carolina CAP-MR/DD Manual. (Respondent’s Exhibit 1) Petitioner does not assert nor does the evidence support a finding that her minor son is mentally retarded.

7. A related condition is defined as follows:

Persons with related conditions means individuals who have a severe, chronic disability that meets all of the following conditions:

(a) It is attributable to –

(1) Cerebral palsy or epilepsy; or

(2) Any other condition, other than mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for these persons.

(b) It is manifested before the person reaches age 22.

(c) It is likely to continue indefinitely.

(d) It results in substantial functional limitations in three or more of the following areas of major life activity:

(1) Self-care.

(2) Understanding and use of language.

(3) Learning.

(4) Mobility.

(5) Self-direction.

(6) Capacity for independent living.

42 C.F.R. § 435.1010.

8. In order to qualify for ICF/MR level of care as defined in applicable federal regulatory authority and as incorporated in the North Carolina waiver, an applicant also must require active treatment. 42 C.F.R. § 435.1010. Active treatment is defined as follows:

(1) Each client must receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in this subpart, that is directed toward:

(i) The acquisition of the behaviors necessary for the client to function with as much self-determination and independence as possible; and

(ii) The prevention or deceleration of regression or loss of current optimal functional status.

(2) Active treatment does not include services to maintain generally independent clients who are able to function with little supervision or in the absence of a continuous active treatment program.

42 C.F.R. 483.440(a).

9. Dr. Jeffrey C. Holden testified on behalf of Respondent. Dr. Holden holds a Ph.D. in psychology with a specialization in mental retardation and developmental disabilities. He is licensed to practice psychology in North Carolina. He has been the Director of Specialized Services at the Murdoch Center in Butner, North Carolina for the last three years. He has worked at the Murdoch Center for the last twenty-five years. The Murdoch Center is operated by the North Carolina Department of Health and Human Services. His duties at the Murdoch Center include supervision of behavioral consultants who provide community assessments for persons living at home or in other programs, overseeing admissions and discharges at the facility, and supervision of volunteer and chaplaincy services at the facility. During his years at the Murdoch Center, Dr. Holden has conducted over one thousand psychological evaluations.

10. Based on his education, training, and experience, Dr. Holden was tendered and accepted as an expert in Clinical Psychology with a specialization in Mental Retardation and Developmental Disabilities.

11. Among his duties as Director of Specialized Services at the Murdoch Center, Dr. Holden acts as the coordinator of ICF-MR level of care determinations for the CAP-MR/DD Program. In such capacity he has reviewed well over a thousand applications for acceptance into such program.

12. In his capacity as coordinator of ICF-MR level of care determinations for the CAP-MR/DD Program, Dr. Holden evaluated the initial materials submitted on behalf of Petitioner’s minor son, Matthew Fennell. He reviewed an MR2 form, dated February 9, 2006 which was signed by the referring physician, together with a supporting evaluation also submitted on behalf of Petitioner. An MR2 form is required to initiate a request for prior approval of CAP-MR/DD benefits. It reports basic patient information, including diagnosis, evaluation and proposed plan of treatment. (Respondent’s Exhibit 2) A request for CAP-MR/DD benefits must also include a current psychological evaluation which assesses both cognitive and adaptive functions.

13. Upon review of the MR2 and other information submitted initially by Petitioner, Dr. Holden determined that such information was not sufficient to establish that Matthew Fennell was mentally retarded or that he had a related condition which satisfied the criteria necessary to qualify for ICF/MR level of care as defined in applicable federal regulatory authority and as incorporated in the North Carolina waiver. The request for prior approval of CAP-MR/DD benefits was denied.

14. At the reconsideration hearing on May 4, 2006, Dr. Holden reviewed an updated psychological evaluation submitted in support of Petitioner’s request for prior approval of benefits. The additional evaluation, dated April 10, 2006, was prepared by Dr. Kim Ferguson, a licensed psychologist affiliated with Arboretum Behavioral Health in Charlotte. (Respondent’s Exhibit 3) Dr. Holden determined that this additional psychological evaluation and other information presented at the hearing also did not support a diagnosis of mental retardation or of a condition related to mental retardation. Although the additional evaluation noted certain developmental delays and deficits in adaptive functions, Dr. Holden opined that this evaluation did not supply sufficient information to satisfy the criteria necessary to establish ICF-MR level of care as required by the waiver program

15. The guidelines for CAP-MR/DD approval require that supporting psychological evaluations for children must have been completed within the last year. This guideline is noted in Section 2.2 of the North Carolina CAP-MR/DD Manual. (Respondent’s Exhibit 1) Dr. Holden opined that if the evaluation of Dr. Ferguson were to be submitted on the date of the present hearing, it could not be considered regarding the current condition of the patient. A more current evaluation would be required.

16. Pending appeal in the present forum of the Notice of Decision by the Hearing Office dated May 16, 2006, Petitioner submitted several additional psychological and medical evaluations to Respondent in support of CAP-MR/DD eligibility for her minor son.

17. The additional psychological evaluations submitted by Petitioner during the pendency of this appeal included an evaluation dated January 16, 2007 conducted by Dr. Ervin S. Batchelor, a Clinical Neuropsychologist affiliated with the Carolina Center for Development and Rehabilitation in Charlotte. (Respondent’s Exhibit 4) This evaluation reported that Matthew Fennell generally scored in the average to low average range in tests of his cognitive abilities and that his scores on standard intelligence tests had improved over those of previous tests and were also in the low average range. Although Dr. Batchelor noted certain behavioral deficits and possible mood disorder, he specifically declined to make a diagnosis of autism or pervasive developmental disorder. Dr. Holden reviewed this additional evaluation and determined that it did not support a diagnosis of mental retardation or of a condition related to mental retardation. Dr. Holden opined that this evaluation did not supply sufficient information to satisfy the criteria necessary to establish ICF-MR level of care as required by the waiver program

18. The additional psychological evaluations submitted by Petitioner during the pendency of this appeal also included an evaluation dated May 14, 2007 conducted by Dr. Daphne J. Timmons, a licensed psychologist affiliated with Family Preservation Services, Inc. in Charlotte. (Respondent’s Exhibit 5) Although this evaluation diagnosed Matthew Fennell with Asperger’s Disorder, it reported scores in all composite adaptive behavioral assessment categories, including the conceptual, social, and practical areas used to determine mental retardation for purposes of the CAP-MR/DD program, which were significantly in excess of those found in persons with mental retardation, including the Global Adaptive Composite (GAC) Score of overall adaptive functioning which was in the low average range. Dr. Holden reviewed this additional evaluation and determined that it did not support a diagnosis of mental retardation or of a condition related to mental retardation. Dr. Holden opined that this evaluation did not supply sufficient information to satisfy the criteria necessary to establish ICF-MR level of care as required by the waiver program, including with any probability the need for a continuous, active treatment program as required by the waiver program

19. Dr. Timmons testified on behalf of Petitioner. Although Dr. Timmons diagnosed Matthew Fennell with Asperger’s Disorder and identified certain developmental deficits and relationship problems, she opined that Matthew Fennell was not mentally retarded and she acknowledged that his adaptive behavioral scores were not equivalent to those found in persons with mental retardation. Dr. Timmons also testified that some persons diagnosed with Asperger’s Disorder function competently in society without the need of institutional care.

20. The additional evaluations submitted by Petitioner during the pendency of this appeal also included a single paragraph, summary evaluation dated October 2, 2006 provided by Dr. John Barkenbus, a neuropsychiatrist affiliated with North Carolina Neuropsychiatry, P.A. in Charlotte and Chapel Hill. (Petitioner’s Exhibit 1). This summary report noted without supporting detail diagnoses of Attention Deficit Hyperactivity Disorder, Congenital left eye blindness, Expressive Language Disorder, Developmental Coordination Disorder, and Borderline low FS IQ. This report does not diagnose Asperger’s or Pervasive Developmental Disorder. Dr. Holden reviewed this additional report and determined that it did not support a diagnosis of mental retardation or of a condition related to mental retardation. Dr. Holden opined that this report did not supply sufficient information to satisfy the criteria necessary to establish ICF-MR level of care as required by waiver program.

21. The court finds that the materials submitted in support of CAP-MR/DD eligibility at the reconsideration hearing held on May 6, 2006, including the MR2 Form and the psychological evaluation of Dr. Kim Ferguson dated April 10, 2006, did not support a diagnosis of mental retardation or a condition related to mental retardation as defined in applicable federal regulatory authority and as incorporated in the North Carolina waiver.

22. The court further finds that the additional psychological and medical evaluations submitted by Petitioner during the pendency of this appeal, including the evaluations conducted by Dr. Batchelor, Dr. Timmons, and Dr. Barkenbus, do not support a diagnosis of mental retardation or a condition related to mental retardation as defined in applicable federal regulatory authority and as incorporated in the North Carolina waiver.

23. At the time Petitioner sought prior approval for CAP-MR/DD benefits for her minor son, Matthew Fennell, he was not, and he is not now, mentally retarded.

24. At the time Petitioner sought prior approval for CAP-MR/DD benefits for her minor son, Matthew Fennell, he did not, and he does not now, have a condition related to mental retardation as defined in applicable federal regulatory authority and as incorporated in the North Carolina waiver.

25. Petitioner’s minor son, Matthew Fennell, does not have impairments of general intellectual functioning similar to those of persons with mental retardation

26. Petitioner’s minor son, Matthew Fennell, does not have adaptive behavioral impairments similar to those of persons with mental retardation