State of North Carolina s175

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF MECKLENBURG 04 DHR 0929

AARON ANDERSON,
Petitioner,
v.
N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE (DMA),
Respondent. / )
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Two consolidated contested cases were heard by Beecher Gray, Administrative Law Judge (ALJ), on May 11 through 13, 2005 in Charlotte, Mecklenburg County, North Carolina. At the conclusion of the hearing on May 13, 2005, the undersigned decided from the bench for Petitioner in this matter and directed Counsel for Petitioner to file a Proposed Decision thirty days after receipt of a complete transcript of the proceedings. Petitioner filed the Proposed Decision July 25, 2005. Respondent filed a Proposed Decision in 04 DHR 0929 on July 25, 2005.

ISSUE

Whether Respondent properly acted upon Petitioner’s request for prior approval for 18 units of occupational therapy services for the period March 14, 2004 – May 14, 2004, when Respondent denied prior approval authorization for this frequency but authorized two units of occupational therapy services to allow for caregiver training.

APPLICABLE LAW AND AUTHORITY

Social Security Act, Title XIX

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

N.C. State Plan for Medical Assistance

10A NCAC 22O. 0301

DMA Medical Policy No. 10A: Outpatient Specialized Therapies (formerly DMA Medical Policy No. 8F)

FINDINGS OF FACT

1.  Petitioner, Aaron Anderson, through his occupational therapist, Keith Sellick, requested prior approval for 18 units of occupational therapy (“OT”) services for the period March 14, 2004 – May 14, 2005. The OT services requested were outpatient occupational services.

2.  At the time Petitioner requested the OT services noted above, Petitioner as a 21-year-old male with Werdnig Hoffman Disease who was receiving outpatient OT services under the Medicaid program. Werdnig Hoffman disease is a type of spinal muscular atrophy. As of April 8, 2004, Respondent had authorized and Petitioner had received one hundred twenty four (124) units of outpatient OT from his current home health provider. In addition to these one hundred twenty four (124) units of OT, Petitioner previously had received OT services from Easter Seals until he reached age 21.

3.  In support of the request for prior approval for 18 units of OT services for the period March 14, 2004 – May 14, 2004, Petitioner’s medical providers submitted a home health certification and plan of care. The order for treatment included: rotational movements of head, lateral movements of tongue, upper extremity (“UE”) movements, and UE strengthening.

4.  In the documentation submitted to Respondent, the following OT goals for Petitioner were identified: 1) increase head control/lateral movements, 2) continue monitoring for UE muscle movements and increase strength, 3) write 20 word sentences with setup, 4) complete lateral movements of tongue.

5.  Respondent contracts with Medical Review of North Carolina (“MRNC”) to, among other things, conduct utilization reviews of certain outpatient specialized therapies. One such therapy is OT services.

6.  When conducting utilization reviews of OT cases, MRNC is required to comply with DMA Medical Policy No. 10A: Outpatient Specialized Therapies (Policy 10A”). That policy, in section 3.2, provides that “Medicaid accepts the medical necessity criteria for beginning, continuing, and terminating treatment as published by the American Occupational Therapy Association in their most recent edition of Occupational Therapy Practice Guidelines Series. The policy further provides that “Home Health Occupational Therapy Maintenance services are not covered services.” (emphasis added)

7.  As MRNC conducted its utilization review, a licensed occupational therapist requested additional information from Petitioner’s occupational therapist. MRNC requested that Petitioner’s occupational therapist identify the functional outcomes he was striving to achieve.

8.  Petitioner’s therapist responded and informed MRNC that the functional outcome of goal number one was to increase head and neck movements to strengthen Petitioner’s neck musculature in the wheelchair for stabilization. The functional outcome for goal number two was to increase upper extremity strength and control to continue to allow Petitioner to operate his wheelchair and to help sustain musculature for breathing and breath support. The functional outcome for goal number three was to increase writing, and for goal number four, the outcome was to increase saliva control.

9.  In compliance with Policy 10A, MRNC reviewed the American Occupational Therapy Association’s most recent edition of Occupational Therapy Practice Guidelines for Adults with Neurodegenerative Diseases. This document provides that the underlying referral premise for OT services is that “[o]ccupational therapy treatment will improve the client’s performance in one or mare areas within a reasonable time.” The treatment criteria for similar diagnoses provides for a treatment intensity, frequency and duration of one to three visits per week for one to two months. During this time, the patient must demonstrate “measurable functional improvement biweekly” in the home health care setting.

10.  The American Occupational Therapy Association’s most recent edition of Occupational Therapy Practice Guidelines for Adults with Neurodegenerative Diseases provides for termination/discharge to occur when one of the following criteria is met: 1) client has achieved functional goals and outcomes, 2) client has reached a plateau in progress, 3) client is unable to participate in treatment because of medical, psychological, or social complications, 4) client no longer needs skilled occupational therapy services.

11.  Prior to denying Petitioner’s request for OT services, MRNC, as is its practice, consulted with a physician consultant regarding Petitioner’s service request. Whenever MRNC utilizes the services of a physician consultant, it assures that the physician consultant utilized is one who specializes in the field of medicine pertaining to the matter in question. In this case, the physician consultant was Michael Lee, M.D. Dr. Lee is a physical medicine and rehabilitation specialist.

12.  After reviewing all of the information set forth in Respondent’s Exhibit 2, Dr. Lee determined that occupational therapy was not medically necessary at the requested frequency and determined that two units of OT therapy should be approved in order to allow for caregiver education.

13.  Audra Troy is employed at MRNC as a Senior Associate with the Prior Authorization of Outpatient Specialized Therapies. This position deals with utilization review. In 1993, Ms. Troy obtained a Bachelor of Science in Physical Education Studies from the University of Delaware and received her Masters of Science in Occupational Therapy from Colorado State University in 1998. She currently is licensed in the State of North Carolina as an occupational therapist and continuously has been so licensed since 1999. Ms. Troy has been employed in several different capacities as an occupational therapist. As staff occupational therapist at the National Children’s center, she assessed OT needs for students and recommended if direct OT services were needed, and if so, provided such OT services. Ms. Troy also has worked as an occupational therapist at Home Health PRN, Ballard Therapy Services, Dynamic Therapy and Pediatric Services of America. In her experience as an occupational therapist, Ms. Troy has provided direct OT services, evaluated patients, implemented treatment plans and trained caregivers who were not licensed in occupational therapy to provide therapy to patients. Ms. Troy is an expert in the field of occupational therapy and a specialist in occupational therapy utilization review for the North Carolina Division of Medical Assistance.

14.  Ms. Troy has carefully reviewed the documentation submitted to Respondent in this matter in support of Petitioner’s request for prior approval of OT services. Ms. Troy had the opportunity to hear all of Petitioner’s witnesses and evidence presented at this hearing. Ms. Troy testified and the court finds that OT services requested are not medically necessary, the records show no measurable progress, lack functional outcomes, and are exercise that can be carried out be a caregiver rather than requiring licensed occupational therapists.

15.  A review of the documentation and the testimony reveals that Petitioner has made no measurable progress toward his goals. In fact, many of Petitioner’s OT goals have remained essentially unchanged for at least one year. The fat that Petitioner’s current OT goals are substantially similar to his OT goals from over one year ago further persuades the court that this has become a maintenance service for Petitioner. Additionally, since Petitioner has shown no measurable progress, and since the exercises and goals are relatively unchanged from one year prior, a caregiver could be trained to administer exercise to maintain Petitioner’s current function, thus rendering the skills of a licensed occupational therapist as not medically necessary.

16.  The OT services requested by Petitioner are not medically necessary secondary to the lack of functional progress.

17.  The goals outlined in the plan of care do not require the services of a skilled occupational therapist.

18.  No functional progress had been demonstrated with the goal regarding increase of head and neck movement. Given the progressive nature of Petitioner’s disease and his current function, increase of head and neck movement is not a realistic goal.

19.  The goal regarding increased writing is not a functional goal for Petitioner. The evidence shows that Petitioner requires a large degree of assistance to perform limited writing tasks. Since his disease is progressive in nature, and given Petitioner’s current limitations, it is not probably or realistic that Petitioner will use handwriting as his main form of written communication. Petitioner already has learned and is able to sign his name for legal purposes. A caregiver can be trained to continue these exercises with Petitioner.

20.  The goal to monitor upper extremity muscle movements is a maintenance goal.

21.  The exercises to strive towards the goal for lateral movements of the tongue can be carried out by an unlicensed caregiver.

CONCLUSIONS OF LAW

1.  The parties properly are before the Office of Administrative Hearings (“OAH”), and OAH has subject matter jurisdiction in this contested case.

2.  All medical services paid for by Respondent must be medically necessary pursuant to 10A NCAC 22O .0301.

3.  The outpatient therapy that Petitioner has received is maintenance and, as such, is not a covered Medicaid service.

4.  Occupational therapy services at the frequency of 18 units for the period March 14, 2004 – May 14, 2004 were not medically necessary.

5.  Respondent properly denied Petitioner’s request for prior approval of 18 units of OT services. However, Respondent correctly approved two units of OT services for the purpose of caregiver training and education.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby determines that Respondent properly acted upon Petitioner’s request for prior approval for 18 units of occupational therapy services for the period March 14, 2004 – May 14, 2004 when Respondent denied prior approval authorization for this frequency but authorized two units of occupational therapy services to allow for caregiver training. The undersigned hereby determined that Respondent’s decision should be AFFIRMED.

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, N.C. 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Medical Assistance.

This the 10th day of August 2005.

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Beecher R. Gray

Administrative Law Judge

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