Good News for Families: Ohio Department of Medicaid Freezing Level of Care Waiver Disenrollments for Six Months

The Ohio Department of Medicaid has announced that, for six months, it will freeze disenrollments from three Ohio Medicaid Waiver programs regarding people it alleges no longer meet the “level of care” required to participate in the program. Why is this important?

In Ohio, Medicaid Waiver programs allow people with serious care needs to receive care outside of an institution. For instance, a person can stay in their home instead of a group home or nursing facility. This allows people to have her needs met in the community, usually at a cost savings to the state.

The three waiver programs with the freeze in disenrollments are: 1) the Ohio Home Care Waiver, 2) the Passport Waiver, and 3) the Assisted Living Waiver. The Ohio Home Care Waivers serves individuals with physical disabilities and unstable medical conditions who are under the age of 60.1 The Passport serves people 60 and older in a community setting such as their home or a loved one’s home.2 The Assisted Living Waiver provides funding to pay for an individual age 21 or over to live in an assisted living facility.3

Many families over the past year have received shocking news that a loved one who receives care in their home or in another setting, like an apartment, is being disenrolled from the Medicaid Waiver program.   Each year, to remain in the Waiver program, an individual has a new assessment. This year, across the state, families have received notices saying that their loved

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The ABLE Act: Current Developments

You have probably heard of the Achieving a Better Life Experience (ABLE) Act, enacted in December 2014. In the past year alone, plenty of developments have taken place to ensure successful implementation of the Act in Ohio. In writing this article, I want to explain just how extraordinary the ABLE Act is to people with special needs and focus on the current developments in implementation.

ABLE accounts are financial accounts that can be established by or for a person with special needs. The person must have a disability as determined by the Social Security Administration or some equivalent disability determination. The disability must have occurred before the person reaches age 26.

The money in ABLE accounts does not count against the person’s eligibility for Supplemental Security Income (SSI), Medicaid, Supplemental Nutrition Assistance Program (SNAP or “food stamps,”) Section 8 housing, and other means tested public assistance programs. ABLE accounts can be used to pay for “qualified disability expenses” and the expenditures from the accounts will not impact benefit eligibility.

A person can have only one ABLE account. Annual contributions to an ABLE account are limited to $14,000 (in 2015). If the able account balance exceeds $100,000, the person’s SSI benefits are suspended until the account goes below $100,000. No other benefits are suspended. The maximum amount that can be held in and able account is approximately $414,000.

Any money left in an ABLE account at the death of the owner of the account must be used to pay back the

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What is Due Process?

In the world of special education, DUE PROCESS is like a mini trial. One party “files due process” against the other, and then there is a hearing with witnesses and evidence presented. An Independent Hearing Officer (IHO) is appointed by the Ohio Department of Education to hear the case and decide who wins and what they get. Either party can appeal the decision to state court.

Due process is available to any student with a disability who has an Individual Education Program (IEP). It is also available where a school district refuses to evaluate a student to see if they qualify for special education and related services.

Typically, it’s the parents of a child with special needs who will initiate a due process proceeding against a school district, but there are some rare situations in which the district will file due process against the parents. The individuals filing due process–again, this is typically the parents–have the burden of proof. This means that they have to prove to the IHO that Individuals with Disabilities Education Act (IDEA) laws have been violated and that their child is entitled to something from the district. For this reason, and some others, the proceedings are stacked in favor of the district.

The trend we are seeing in due process matters is that the IHO will “split the baby,” meaning that they may find that the school district did not provide a free appropriate public education (FAPE), but instead of requiring the district to pay for

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The ABCs of ABA Funding: Part Four of Four

By Attorney Franklin J. Hickman

The Affordable Care Act, as implemented in Ohio, requires covered health plans to pay for up to 20 hours per week of Applied Behavior Analysis (ABA) or other comparable evidentiary based services for children up to 21 years of age diagnosed with Autism Spectrum Disorder. This is an extraordinary advance for families with children with autism. While the implications and implementation of this directive are not fully realized at this point; the following provides some guidance based on information available to date.

Background

The Affordable Care Act requires States to ensure that covered plans include specified Essential Health Benefits (EHB). EHBs are listed at 45 CFR 156.110 and include rehabilitative and habilitative services and devices. “Habilitative Services” are not defined in the Federal rules; States have discretion to define services to be included in this category. 45 CFR 156.110(f).

On December 26, 2012, Governor Kasich confirmed that Ohio was exercising its authority to define habilitative services as follows:

Habilitative services benefits shall be determined by the individual plans and must include, but shall not be limited to, Habilitative Services to children (0 to 21) with a medical diagnosis of Autism Spectrum disorder which at a minimum shall include:

(1) Out-Patient Physical Rehabilitation Services including

(a) Speech and Language therapy and/or Occupational therapy, performed by a licensed therapists, 20 visits per year of each service; and

(b) Clinical Therapeutic Intervention defined as therapies supported by empirical evidence, which include but are not limited to Applied Behavioral Analysis,

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The ABCs of ABA Funding, Part Three of Four: Accessing ABA through Public Schools

By Attorney Franklin J. Hickman

This is the third in a series of articles on access funding for Applied Behavior Analysis – ABA. The Federal law governing school-aged children with disabilities is a valuable tool in obtaining such services.

The Basics
The Individuals with Disabilities Education Act (IDEA) is the Federal law requiring states that receive certain types of Federal funding to provide a Free, Appropriate Public Education (FAPE) to children aged 3 through 21 until graduation or GED. The Federal law can be found at 20 USC §§1401 et seq. and 34 CFR Part 300.

The educational program must meet the unique needs of the child and be offered at no cost to parents. A program is appropriate if it enables the child to be involved in and make progress in the general education curriculum. In Deal v. Hamilton County Board of Education, 392 F. 3d 840 (2004), the 6th Circuit Court of Appeals defined the scope of IDEA’s requirements as follows:

  • IDEA requires an IEP to “confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue.”
  • “[T]he intent of Congress: …to require a program providing a meaningful educational benefit toward the goal of self-sufficiency.”
  • “Some” benefit is not enough.

Services must include academic and related services which are necessary to allow the child to benefit educationally from instruction. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). Examples of related services include transportation, speech/language, PT, OT, counseling, and services

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The ABCs of ABA, Part Two of Four: Accessing Services Through EPSDT

By Attorney Franklin J. Hickman

On July 7, 2014, the Centers for Medicare and Medicaid Services (“CMS”), the Federal office responsible for overseeing Medicaid programs, issued an informational bulletin to Medicaid agencies and constituents. This important communication affirms the availability of Medicaid funding for Applied Behavioral Analysis (“ABA”) services if federal requirements are met. 

CMS affirmed the following points:

  • Autism spectrum disorder (“ASD”) is a developmental disability that can cause significant social, communication, and behavioral challenges.
  • Treatments for children with ASD can improve physical and mental development.
  • The federal Medicaid program may reimburse for services, including, but not limited to, ABA to address ASD.
  • States are required to arrange for and cover individuals eligible for the EPSDT benefit any Medicaid coverable service listed in section 1905(a) of the Act that is determined to be medically necessary to correct or ameliorate any physical or behavioral conditions.
  • Under EPSDT, if a service, supply, or equipment that has been determined to be medically necessary for a child is not listed as covered (for adults) in a state’s Medicaid State Plan, the state will nonetheless need to arrange for and cover it for the child, as long as the service or supply is included within the categories of mandatory and optional services listed in section 1905(a) of the Social Security Act.

What is EPSDT?
EPSDT stands for Early and Periodic Screening, Diagnosis, and Treatment. 

EPSDT is a mandatory Medicaid program; if a state elects to participate in Medicaid, it must provide EPSDT services.

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The ABCs of ABA Funding: Part One of Four

By Attorney Franklin J. Hickman

When looking for sources of funding for Applied Behavioral Analysis (ABA) services, remember the following from your alphabet soup: EI, ACA, IDEA and EPSDT.   This article is the first in a series of four installments which will explain each of the programs and summarize the procedures needed to obtain ABA benefits.

Early Intervention (EI)
Early Intervention services are part of Help Me Grow, an Ohio program for services for children under the age of three who are eligible under requirements established by the Ohio Department of Health (“ODH”). Help Me Grow is administered by ODH and funded through Part C of the Individuals with Disabilities Education Act (“IDEA”). Help Me Grow requires an assessment of infants/toddlers with a disability and development of a service plan (“IFSP”) for the family, which is subject to periodic review. An eligible child is entitled to services which are necessary to meet the unique needs of the child and family to achieve results or outcomes identified in the IFSP.

Two recent developments affirm that Ohio’s Department of Health (“ODH”) has a duty to fund necessary ABA services for eligible children:

  • The US District Court in Young v. State of Ohio, 12CV967 issued a temporary order for emergency relief on January 14, 2013, which held, in part, that ODH’s blanket policy of refusing to provide ABA services under the EI program is a violation of Federal law.
  • At Several points during 2013, the Federal Office of Special Education and
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