News from the Caregiver Front: Reduction in Nursing Hours Upheld by Appeals Court

Thursday, September 13, 2018

girl with glassesIf you or a loved one relies upon Medicaid to pay for private duty nursing, a significant case has happened in the past two weeks which may affect your care.  You already know that over the past few years, Ohio has been eliminating or cutting back on Medicaid funded nursing.

 

On August 31st, the Sixth Circuit Court of Appeals denied a claim of a family that their daughter, Megan, was being discriminated against in violation of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.  The case is Carpenter-Barker v. Ohio Department of Medicaid, and it was brought because of proposed nursing reductions.  Like with many families, Megan experienced repeated proposed reductions in her nursing hours since 2008.  Unlike many families, Megan was able to hold off these reductions with numerous appeals.  Her services were only reduced after this lawsuit went against her.

Instead of challenging the process of the multiple proposed reductions, the family alleged that Ohio was violating the “integration mandate,” which was explained in the U.S. Supreme Court’s Olmstead decision.  Basically, this mandate stands for the proposition that people who can be safely served in a community setting should receive services there, rather than being institutionalized.  

The Court decided that, under how this specific case was alleged, Ohio was entitled to rely upon its own experts to support the reduction in hours.  While the result may have been different if the family had alleged the state had a discriminatory purpose in reducing hours, this is unknown.

There is another important legal doctrine which should apply here called issue or claim preclusion.  It basically says that parties to litigation, including administrative appeals, are bound to the outcome of that litigation if it involves the same facts or issues.  In these cases, Ohio might argue that it is mandated to reassess an individual every year; therefore, it can reach a different conclusion each and every year.  However, the better argument is that, unless facts have significantly changed, for example a person’s condition is better, then Ohio should be bound by prior hearing decisions in favor of the person in need of care.

So what is a family to do?

Here are key points:  

1.     Direct litigation in federal court is probably not the answer in most cases.

2.     It is important to properly present all of your arguments and evidence at the appeal hearing.  

3.     If Ohio keeps subjecting you to proposed reductions and you are winning, this should be documented in the record and the argument made that this is improper!

In the meantime, you may still need legal advocacy to challenge a prosed reduction in nursing hours.  

- Posted by Attorney John Harrison 

 

 

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