Reduction in Nursing Hours Upheld by Appeals Court

Successfully Appealing Medicaid Waiver Service Reductions

Many children with severe or complex disabilities benefit from special Medicaid programs that enable them to receive services at home.  These programs are called “Waivers” because they “waive” consideration of parental income and resources in determining the child’s financial eligibility for Medicaid, relaxing Medicaid’s otherwise strict financial eligibility rules.  The policy rationale for these programs is to enable families to avoid institutionalizing their severely disabled children who, under regular rules, would be eligible for Medicaid only if living in an institution.  Home based care is usually better for children, and it is also usually less expensive for the Medicaid program.

The Ohio Department of Job and Family Services (ODJFS) operates two waiver programs for which children may qualify.  In brief, the Ohio Home Care (OHC) waiver covers children with complex and unstable medical conditions who require skilled nursing services on a daily basis. The Transition waiver is limited to children who have been on the OHC waiver, but who no longer qualify because their medical condition has sufficiently stabilized.  Transition waiver children are those who meet an ICF/MR level of care – children with severe disabilities and developmental delays – but who do not require skilled nursing care and/or observation on a daily basis.  Both waiver programs provide a range of services including nursing care, personal care aide services, adaptive and assistive devices, home modifications, and respite care.  ODJFS subcontracts with a private company called CareStar to administer both waiver programs.

Over the past year, ODJFS, through CareStar, has initiated cutbacks in services to many children receiving waiver services.  The reductions have ranged from inappropriately transferring children with unstable conditions from the OHC waiver to the Transition waiver, to eliminating all skilled nursing service in favor of aide care, to reducing the total number of nursing and/or aide hours provided to the child.  Sometimes CareStar makes its decisions without consulting the child’s physician, or it applies the wrong criteria, or it ignores the evidence that supports the need for continued skilled nursing.  Despite this, reductions can be so severe as to eliminate the family’s established patterns of support and care, creating a crisis that can destabilize the child and undermine the very purpose of the waiver programs – to keep children out of institutions.

As a parent, you have the right to appeal any change, reduction or termination of waiver services and if you appeal quickly, the changes cannot take effect until after you have a hearing.  ODJFS and CareStar must provide a “Prior Notice of Right to a State Hearing” that gives parents the opportunity to appeal to ODJFS’ Bureau of State Hearings.  The notice must inform parents that benefits will continue pending appeal if the hearing is requested by a date that must be identified in the notice.   The appeal is heard by a hearing officer who is independent from CareStar, who reviews the evidence from both sides, and who makes an independent decision.  If parents win the administrative hearing, the case ends there.  If parents lose, they may appeal further, and eventually to Court.

Appeals in waiver cases are often successful, particularly where the child’s treating physician does not support the changes proposed by CareStar.  Further, there are no adverse consequences associated with such appeals, which are a long-standing right associated with the Medicaid program.  In considering whether to appeal, parents should consider only the best interests of their child, without fear of punishment or retaliation from the agency.

– Posted by Judith Saltzman

Posted in Blog, Special Education.