ADMINISTRATIVE HEARINGS
COUNTY OF TRANSYLVANIA / 06 DHR 0163
JUSTIN ERIC CORNETT, )
)
Petitioner, )
) /
vs. ) /
DECISION
)N.C. DEPT. OF HEALTH & HUMAN )
SERVICES, Division of Medical Assistance, )
)
Respondent. )
______)
This contested case was heard before Beryl E. Wade, Administrative Law Judge, on April 4, 2006, in Morganton, N.C.
APPEARANCES
Attorney for Petitioner:Curtis B. Venable
Pisgah Legal Services
P.O. Box 2276
Asheville, N.C. 28802 / Attorney for Respondent:
Diane M. Pomper
Assistant Attorney General
P.O. Box 629
Raleigh, N.C. 27602-0629
JURISDICTION
As Stipulated by the parties:
This matter is in the appropriate forum and venue. This matter was filed in a timely and appropriate fashion. All parties necessary are joined.
ISSUE
As Stipulated by the parties:
Was the Plan of Care, as amended by the Plan Update/Revision dated November 21, 2005 appropriate to address the needs and preferences of the Petitioner based upon assessment and the person-centered planning process? More specifically, were Petitioner’s requested hours of services appropriate: Home and Community Supports – 150 hours/month; Enhanced Personal Care – 120 hours/month; and, Supported Employment – 80 hours/month?
BURDEN OF PROOF
As Stipulated by the parties:
Petitioner bears the burden of proof in this matter.
DOCUMENTARY EVIDENCE
As stipulated by the parties as to authenticity and admissibility:
· Plan of Care, meeting date 5.23.05, Ex. Petitioner-1;
· Plan Update/Revision, dated 10.15.05, Ex. Petitioner-2;
· Plan Update/Revision, dated 11.25.05, Ex. Petitioner-3;
· Letter of Denial, Western Highlands, dated November 28, 2005, Ex. Petitioner-4;
· N.C. Support Needs Assessment Profile, dated 5.20.05, Ex. Petitioner-5; and,
· MR-2, dated 5.20.05, Ex. Petitioner-6
Respondent Exhibits admitted:
· “Justin’s Plan”, meeting date 5.23.05, Ex. Respondent-1;
· Plan Update/Revision, dated 11.21.05, Ex. Respondent-2;
· Letter of Denial, Western Highlands, dated 11.28.05, Ex. Respondent-3;
· Justin Cornett Chart of Services, Ex. Respondent-4;
· Smathers Memo, Western Highlands, dated 11.29.05, Ex. Respondent-5;
· Leon Memo, Division of Mental Health, Developmental Disabilities, Substance Abuse, dated 11.30.05, Ex. Respondent-6;
· Excerpts of Community Alternatives Program for Persons with Mental Retardation/ Developmental Disabilities Manual (2005), Ex. Respondent-7;
· Bosstick Letter, Centers for Medicare & Medicaid Services, dated 6.30.05 and excerpts of 1915(C) Waiver with Appendices A, A1 & B2, dated 7.1.05, Ex. Respondent-8; and,
· Arrowood v. N.C. Department of Health & Human Services, 353 N.C. 351, 543 S.E.2d 481 (2001), Ex. Respondent-9.
WITNESSES
As Stipulated by the parties:
Witnesses for Petitioners:
· Justin Cornett, Petitioner;
· Metta Redding, Qualified Professional (case manager), Plans for Life, Inc., BA, Psychology/Organizational Leadership, Brevard College 2002;
· Sylvia Gash, Habilitation Technician, Turning Point Services, has worked with Petitioner since April, 2004; and,
· Talanda “Loni” Jones, Petitioner’s mother.
Witnesses for Respondent:
· Jesse Smathers, Western Highlands Area Authority;
· Errol Marioneaux, MA Psychologist; and,
· Sandy Ellsworth, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services.
APPLICABLE STATUTES AND RULES
42 CFR §431, Subpt. E (200 to 246)
10A NCAC 22H .0100
The Community Alternatives Program for Persons with Mental Retardation/Developmental Disabilities (CAP-MR/DD) is a special Medicaid community care funding source. It is designed to give persons with mental retardation/developmental disabilities a cost-effective alternative to care in an intermediate care facility for persons with mental retardation (ICF-MR). The program is authorized by a Medicaid Home and Community-Based Services (HCBS) Waiver granted by the Centers for Medicare and Medicaid Services (CMS) under Section 1915(c) of the Social Security Act [42 U.S.C. §1396n(c)(1)]. The current Waiver was renewed effective July 1, 2005 for five years and is binding upon Respondent.
Provisions of the approved Waiver documents relevant to this matter:
Appendix A—Administration:
Utilization Review:
Lead Agencies must adhere to standardized, statewide Utilization Review criteria and process established by the Division of MH/DD/SAS, and approved by the Division of Medical Assistance, in addition to the family or person-centered planning process, in order to insure that services authorized meet the needs of the individual. Utilization Review will include criteria for state level reviews for plans projected to cost greater than $85,000 a year.
(P. 3).
Appendix B—Services and Standards:
Personal Care Services include support, supervision and engaging participation with eating, bathing, dressing, personal hygiene and other activities of daily living. Support and engaging consumer participation describes the flexibility of activities that may encourage the person to maintain skills gained during active treatment and/or habilitation while also providing supervision for independent activities of the consumer. This service may include assistance with preparation of meals, but does not include the cost of the meals themselves. When specified in the plan of care, this service may also include such housekeeping chores as bed making, dusting and vacuuming, which are incidental to the care furnished, or which are essential to the health and welfare of the individual, rather than the individual’s family. Personal Care also includes assistance with monitoring health status and physical condition, assistance with transferring, ambulation and use of special mobility devices.
Service Limitations:
· This service does not include medical transportation and may not be provided during medical transportation and medical appointments; and
· Individuals who live in licensed residential facilities, licensed alternative family living homes, licensed foster care homes or unlicensed alternative family living homes serving one adult may not receive this service
(P. 4).
Home and Community Supports services provide instruction and assistance to enable the individual to acquire and maintain skills that will allow him/her to function with greater independence in the community. Home and Community Supports provides habilitation, training and instruction coupled with elements of support, supervision and engaging participation to reflect the natural flow of training, practice of skills, and other activities as they occur during the course of the person’s day. Interactions with the person are designed to achieve outcomes identified in the Plan of Care. Support and supervision of the person’s activities to sustain skills gained through habilitation and training is also an acceptable goal of Home and Community Supports. This service may be provided in an individual’s private residence and/or in the community.
Home and Community Supports consist of an integrated array of individually designed services and supports that are described in the Plan of Care. This service is distinctive from Personal Care Services by the presence of training activities in addition to support, supervision, and monitoring as described in the Plan of Care.
Home and Community Supports include:
· Training and/or support with socialization that includes development or maintenance of self-awareness and self-control, social responsiveness, social amenities, and interpersonal skills, and the development and maintenance of personal relationships,
· Training and/or support with personal skill development that includes activities designated to improve the participants’ own ability to accomplish every day activities of community living, including eating, bathing, dressing, personal hygiene, and mobility; and
· Training and support with community participation, recreation, or leisure that includes the development or maintenance of skills to use community resources, facilities or businesses and support in accessing such opportunities for community integration.
Service Limitations:
· Individuals who live in licensed residential settings or unlicensed alternative family living arrangements may only receive the community component of this service. The community component of Home and Community Supports does not replace the Residential Support provider’s responsibility to provide support to individuals in their homes and the community, but is intended to support those who choose to engage in community activities that are not provided through a licensed day program.
(Pp. 12 – 13).
Appendix E—Plan of Care
A written plan of care will be developed for each individual under this waiver utilizing a family or person-centered planning process that reflects the needs and preferences of the individual and his or her family.
Family or person-centered planning is defined as a process, directed by the family or the individual with long-term care needs, intended to identify the strengths, capacities, preferences, needs and desired outcomes of the individual. The process includes people, freely chosen by the family or individual who are able to serve as important contributors. The family or person-centered planning process enables and assists the individual to identify and access a personalized mix of paid and non-paid services that will assist him/her to achieve personally defined outcomes in the most inclusive community setting. The individual identifies planning goals to achieve these personal outcomes in collaboration with those that the individual has identified, including medical and professional staff. The identified personally-defined outcomes and training, supports, therapies, treatments, and/or other services the individual is to receive to achieve those outcomes become a part of the plan of care.
Person centered planning is a means for people with disabilities or long-term health care needs to exercise choice and responsibility in the development and implementation of their care plan. The planning process is directed by the individual and identifies strengths and capacities desires and support needs. A good person centered plan generates actions—positive steps that the person can take towards realizing a better and more complete life. Good plans also ensure that supports are delivered in a consistent, respectful manner and offer valuable insight into how to assess the quality of services being provided.
The person guides their care plan and chooses individuals to help them. Family members and friends are frequent contributors and the more traditional, professional service providers may also be included. Plans will incorporate varied supports, training, therapy, treatment and other services as needed to achieve the personal goals set by the individual. Plans draw upon diverse resources, mixing paid and natural supports to best meet the goals set.
Services, supports and treatment to individuals and families should be planned as well as implemented in accordance with each participant’s unique needs, expressed preferences and decisions concerning their life in the community. The system will include:
· Comprehensive information regarding the individual/family’s preferences and personal goals, needs and abilities, health status as well as other available supports is gathered with the individual/family and used in the development of a person centered plan. Information and support is available to assist individuals and families to make informed choices regarding service options as well as providers.
· Information and support is available to assist participants to freely choose among qualified providers.
· Each individual’s plan comprehensively addresses their identified need for supports, health care and other services in accordance with their expressed personal preferences and goals.
· Individuals and families have continuous access to assistance as needed to obtain and coordinate services and quickly address issues encountered in community living.
· All services and supports are provided in accordance with the individual or family’s plan.
· Regular, systematic and objective methods, primarily individual or family feedback, are used to monitor the individual’s well being, health status, and the effectiveness of supports and services in enabling the individual to achieve their personal goals.
· Significant changes in the individual or family’s circumstances promptly trigger consideration of modifications to the person-centered plan.
The plan of care will describe the services and supports (regardless of funding source) to be furnished, their projected frequency, and type of provider who will furnish each service or support.
(Pp.-2 – 3).
FACTUAL STIPULATIONS
The parties stipulated that at all times relevant to this matter Petitioner was and continues to be eligible for the Community Alternative Program for Persons with Mental Retardation/ Developmental Disabilities.
The parties stipulate that Petitioner’s MR-2 dated 5.20.05, provides diagnoses of:
· mild mental retardation;
· spastic quadriplegia due to cerebral palsy;
· lordosis (curvature of the spine);
· expressive language disorder;
· allergies;
· stress incontinence; and,
· impaired vision from variable esotropia (right eye).
The parties stipulated that the MR-2 notes that Petitioner needs assistance with bathing, dressing, and ambulation (using an electric wheelchair). Petitioner needs Ankle/Foot Orthotics (AFOs) and a Hoyer lift to assist with transfers. He can eat with assistance but also takes nutrition by a gastric tube during his sleep.
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entirety of the record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judgment of credibility, including but not limited to the demeanor of the witnesses, any interests, bias, or prejudice a witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witnesses testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.
FINDINGS OF FACT
Petitioner
1. Petitioner is a twenty year old man who desires his independence, despite the limitations inflicted upon him. (T pp 20, 24, 25, 61-62, 99, Ex. Petitioner-1)
2. Petitioner testified, “I do not want to be babysat.” (T p. 16, Ex. Petitioner-3)
3. Petitioner lives with his parents, acts as his own guardian, manages his own funds and care, and works at Wal-Mart four hours per day, five days per week. (T p. 13, Ex. Petitioner-3)
4. Petitioner budgets his own checking account using a computer, directing payment for a motor vehicle, groceries, and pay-for-view events. (T pp. 21, 53, 88, 89)
5. Petitioner functions at a near normal level intellectually, enjoyed regular education classes in public school (where he was designated as orthopedic-impaired) and presently enjoys books read aloud. (T pp. 20, ,27, 32, 33, 58, 97, 102)
6. Despite being higher functioning and exhibiting a desire for intellectual stimulation, Petitioner requires repetition to avoid forgetfulness and to obtain mastery. (T pp. 19, 32, 65, 96, 98)
7. This need for repetition results in Petitioner learning at a slow rate. (T pp. 58, 62, 161)
8. While Petitioner can enjoy science fiction books, Harry Potter and the NASA channel, he continues to need assistance in mastering the recitation of personal information, such as phone numbers and addresses, reading an analog clock (T pp. 61, 68, 96, 100, 154-5, Ex. Petitioner-1 & 3)