Nebraska Supreme Court Reverses Medicaid Home Care Denial for Disabled Child
May 29, 2015 09:44 AM
The Nebraska Supreme Court reversed a lower court ruling and an earlier administrative determination in granting Medicaid coverage of home and community based services (HCBS) to a severely disabled child who had been receiving Medicaid HCBS for over 12 years prior to the denial. The court held that the Medicaid program, as well as the lower court, applied the wrong eligibility standards in determining that “Brayden O.” did not meet the requirements for a nursing facility level of care thereby failing to meet HCBS eligibility standards. The court concluded that the standards applied by the state Medicaid program “placed a far greater burden on disabled children than similarly situated disabled aged persons and adults” by selectively relying on mobility and transferring capabilities. Under the state’s standards, any child who could walk and get in and out of bed or a car was disqualified from HCBS coverage regardless of any other functional or cognitive limitations.
Brayden suffers from Coffin-Lowry Syndrome, which is generally characterized by craniofacial abnormalities, skeletal abnormalities, short stature, and hypotonia (a condition causing low muscle tone and reduced strength). She has also developed moderate kyphosis (a curving of the spine) and problems with her feet. She lacks pain awareness and suffers from a seizure disorder.
Brayden has a high palate, which necessitates that she be monitored for choking when she eats. She requires assistance at all times in bathing, dressing, and grooming. She is dependent on others and needs constant supervision in all parts of toileting. There is evidence that she has lost bowel and bladder control. She has extremely limited cognitive ability. She requires a hearing aid and has difficulty seeing a level of print.
At school and on the bus to and from school, Brayden requires constant supervision and has a one-on-one paraprofessional to assist her at all times. Brayden has no sense of danger or safety. She needs assistance on the playground, uneven surfaces, stairs, and curbs. She is almost completely dependent on others in her ability to communicate. She “communicates inappropriate intent” and is not able to effectively use communication boards or other adaptive devices. As to her behavior, Brayden needs and receives regular intervention in the form of redirection because she has episodes of disorientation. She does not have any sense of herself in relation to space and requires supervision with respect to orientation. As to judgment, she lacks the ability to solve problems and make appropriate decisions. She can find the letter “G” on a keyboard but has difficulty finding other letters. She can identify the numbers 1 through 5 with 80-percent accuracy but cannot identify numbers 6 through 10, nor is she accurate in counting certain sets of items (e.g., two newspapers, three markers, et cetera).
Brayden O had been covered under Medicaid for HCBS since 2001. Medicaid denied continued eligibility as a result of a periodic reassessment using an evaluation process established by Medicaid. The Supreme Court found that the evaluation process used did not conform to the criteria for HCBS which conditioned eligibility on a determination that the individual would otherwise need a nursing facility placement. The Court concluded that the eligibility process used was inconsistent with the existing regulatory requirements in that it did not take into consideration all the criteria set out in the Medicaid rules, including ADL limitations, risk factors, medical treatment and observation, and cognitive impairments. The court found that Medicaid applied the standards for care planning rather than eligibility, standards that were different from each other.
While each state Medicaid program is different and HCBS eligibility standards can greatly vary, the Nebraska Supreme Court decision is an important example of how states can misinterpret and misapply their own rules in determining eligibility for home care programs. Medicaid recipients have significant protections under federal law that require a continuation of services and benefits pending an appeal of any decision that terminates or reduces benefits. Over the past few years, NAHC has observed that state Medicaid programs have tightened their reviews of long term HCBS beneficiaries leading to denials of benefits to individuals whose conditions and needs have not changed sufficiently to justify the termination of benefits.
The case referenced is entitled, Merie B. on behalf of Brayden O. v. State of Nebraska Department of Health and Human Services. The May 22, 2015 decision can be found here: https://supremecourt.nebraska.gov/sites/supremecourt.ne.gov/files/sc/opinions/scMay22S-14-007.pdf