Semen gavlin v. dhmh

DECISION
STATEMENT OF THE CASE
On July 21, 2006, the Appellant applied for the Older Adults Waiver (OAW) program, a program administered under the auspices of the Department of Health and Mental Hygiene (DHMH). On August 21, 2006, the DHMH sent a notice to the Appellant informing him that based on the determination of its utilization reviewer, he did not qualify for the OAW program. The Appellant disagreed with DHMH’s decision and, on October 30, 2006, he requested a hearing. The Office of Administrative Hearings (OAH) postponed convening a hearing in this matter twice, once at the request of the Appellant to obtain legal counsel and once at the request of DHMH based on a scheduling conflict. I subsequently conducted a hearing in this matter on Tuesday, November 20, 2007 at the Administrative Law Building in Hunt Valley, Maryland. Code of Maryland Regulations (COMAR) 10.01.04.02. Trace Krueger, Attorney-at-Law, represented the Appellant. The Appellant was also present and participated in the hearing with the assistance of a Russian language interpreter. Assistant Attorney General Erin Reilly represented The contested case provisions of the Administrative Procedure Act, the Procedures for Fair Hearing Appeals under the Maryland State Medical Assistance Program, and the Rules of Procedure of the Office of Administrative Hearings govern procedure in this case. Md. Code Ann., State Gov’t §§ 10-201 through 10-226 (2004 & Supp. 2007); COMAR 10.01.04; and COMAR 28.02.01. Is the Appellant eligible for the OAW program? SUMMARY OF THE EVIDENCE
DHMH submitted eight exhibits. The Appellant submitted four exhibits. I admitted all exhibits. (An Exhibit List is attached as an Appendix.) [Redacted], the Appellant’s nephew, testified for the Appellant. The Appellant also testified in his own behalf. Barry Friedman, M.D., Director of DHMH’s Division of Long-Term Care and Community Support Services, testified for DHMH as expert in FINDINGS OF FACT
Having considered the evidence presented, I find the following facts by a At all times relevant, the Appellant (D.O.B.: October 20, 1934) has resided with family members. He suffers from retinitis pigmentosa, coronary artery disease – status post (s/p) myocardial infarction, coronary artery bypass graft, s/p surgery for benign prostate hyperplasia, spinal stenosis, severe osteoarthritis of multiple joints and a history of depression, the most recent occurrence was five years ago. The Appellant did not have any symptoms of depression at the time of his application for the OAW, nor does have any of those symptoms at present. (App. Ex. 1; DHMH Exs. 4, 5 and 6) The Appellant’s retinitis pigmentosa condition has made him legally blind. The Appellant had the following medical care profile as of July 21, 2006: The Appellant needed assistance with his activities of daily The Appellant could not manage his own medications because of his vision problems and must have his medications administered to him. The Appellant had a mini-mental score of 29/30. The Appellant’s medical conditions were stable. The Appellant took the following medications as of July 21, 2006: Toprel XL: 25 mg by mouth daily; Lipitor: 20 mg daily; Prevacid: 30 mg daily; Amadarone: 200 mg daily; Cyclopenzap: 10 mg at bedtime; Acapcodeine: 30 – 300 mg three times daily as needed; Diclofenac XL: 100 mg daily; Flomax: [illegible] mg at bedtime; Furosemide: 40 mg daily; Nitroglycerine: 4 mg under the tongue as needed; Centrum Silver: 1 tablet daily; and Aspirin: 81 mg daily. In July 2006, the Appellant’s severe osteoarthritis required constant physical therapy and occupational therapy evaluations and therapy at home and requires the same level of care today. (App. Ex. 2) At present, the Appellant’s medical conditions require him to have care provided by health provider caretakers and not family members. (App. Ex. 2) DISCUSSION
While this decision was pending, the Maryland Court of Special Appeals issued its opinion in the case of Department of Health and Mental Hygiene v. Ida Brown, – Md. App. – (2007), 2007 WL 4180700 (November 27, 2007). In that case, the appellant, Ida Brown, challenged an administrative law judge’s decision to uphold DHMH’s denial of her application for the OAW program. The Court of Special Appeals determined that the administrative law judge hearing the appellant’s case—and by extension DHMH— “did not apply the proper legal standard” in denying the appellant’s eligibility for the OAW program and, at the conclusion of its decision, the Court stated the proper legal standard for determining the eligibility for the OAW program. (2007 WL 4180700 at 2 and 26 – 27) Using the legal standard promulgated by the Court of Special Appeals in Brown, I conclude that based on a review of all of the evidence of record, DHMH improperly denied the Appellant’s application for the OAW program and find that he, in fact, qualifies for that program. I have set out the reasons for my conclusion in detail The OAW program provides certain home and community-based services to adults over the age of fifty as an alternative to nursing facility services. COMAR 10.09.54.03. The OAW program is available to individuals who are being deinstitutionalized or diverted from nursing facilities into services in the community and who would be institutionalized but for the waiver services. COMAR 10.09.54.03B(1). To be eligible for services, DHMH or its designee must certify that the applicant is in need of nursing facility services. COMAR 10.09.54.03A(1). The OAW program then permits a person who would otherwise be living in a nursing facility to receive nursing facility services in a community setting. Section .03A(1) states the following: .03 Participant Eligibility.
(1) To be eligible for the services covered under this chapter, an applicant shall be certified by the Department or its designee as needing nursing facility services, pursuant to COMAR 10.09.10. 1 Although Brown will not be enrolled until December 27, 2007, I find its reasoning sufficiently persuasive to base my decision here on the Court of Special Appeals’ ruling. Applicants receiving reimbursement under the OAW program must be certified by DHMH or its designee as needing nursing facility services, pursuant to COMAR 10.09.10. COMAR 10.09.10.06B states the following: B. The Department or its designee will certify as requiring nursing facility services only those financially eligible recipients requiring nursing facility services as defined in Regulation .01B(31) of this chapter. COMAR 10.09.10.01B(31), in turn, states: (31) "Nursing facility services" means services provided to individuals who do not require hospital care, but who, because of their mental or physical condition, require skilled nursing care and related services, rehabilitation services, or, on a regular basis, health-related care and services (above the level of room and board) which can be made available to them only through institutional facilities under the supervision of licensed health care professionals. DHMH’s own personnel do not determine whether an applicant qualifies for the OAW program. The Department has contracted with an independent utilization review organization to determine an applicant’s eligibility.According to DHMH’s expert witness, Dr. Barry Friedman, the independent review process as of July and August 2006 consisted of the following: A computer technician performed the first review of an applicant’s application and supporting documentation. If the technician found that an applicant had attained a certain score based on his or her medical needs, the review organization found the applicant de facto eligible for the waiver and forwarded its determination report to DHMH. If the applicant did not attain the necessary score, the technician forwarded the application to a nurse reviewer. If the nurse reviewer found the applicant ineligible, the nurse reviewer sent the application to a physician reviewer. Until January 31, 2007, Delmarva Foundation was the utilization reviewer. A successor organization, KePro, won the contract to perform the same services as Delmarva, effective February 1, 2007. The physician reviewer made the ultimate determination of eligibility and forwarded a report to DHMH. In this case, the Appellant did not qualify at any step of the review process, resulting in DHMH’s denial and the Appellant’s subsequent request for a In a hearing involving the denial of an application for the OAW program, the appellant has the burden of proof because he or she is seeking to be qualified for the OAW program and, as such, the appellant is asserting the affirmative of an issue before an administrative body. Md. Comm’r of Labor & Indus. v. Bethlehem Steel Corp., 344 Md. 17 (1996); Bernstein v. Real Estate Comm’n., 221 Md. 221, 231 (1959). Here, the Appellant is a seventy-three-year-old man who suffers from multiple medical conditions. Those conditions include retinitis pigmentosa, coronary artery disease – status post myocardial infarction, coronary artery bypass graft, status post surgery for benign prostate hyperplasia, spinal stenosis and a history of depression, all of which are stable. As of July 2006, he required some assistance with his ADLs. He also required assistance with the administration of his oral medication regimen because he is legally blind from the effects of retinitis pigmentosa. Those care requirements The Appellant disagreed with DHMH’s conclusion that he is ineligible for the OAW program. He maintained that he receives services from health care providers
and that, in the past, he has received physical and occupational therapy services. He averred that he has only been able to function with the assistance of family members and that DHMH did not know how much he depends on his family so he can perform his ADLs. The Appellant’s own doctor, in fact, has certified that he needs the assistance of “healthcare provider caretakers,” who are the equivalent of the “licensed health care providers” specified in COMAR 10.09.10.01B(31). DHMH maintained that as of July 2006 the Appellant did not qualify for the OAW because his level of care was such that he did not require “nursing facility services” as defined by COMAR 10.09.10.01(B)(31). As noted, Dr. Barry Friedman, Director of DHMH’s Division of Long-Term Care and Community Support Services, testified as an expert witness for DHMH to interpret this term and explain why the Appellant did not require nursing facility services. Dr. Friedman explained that for an individual to require nursing facility services, he or she must have medical needs that call for the judgment of licensed medical personnel on a “regular” basis (which has been interpreted by DHMH to be on a “daily” basis). A person requiring daily suctioning of a tracheotomy tube, for example, needs to have such care supervised by licensed medical care staff and, thus, would qualify as requiring nursing facility services. Physician-ordered rehabilitative services that a licensed therapist must monitor would also constitute nursing facility services, but simply having a person engage in an exercise program does not reach this level of care. Additionally, if an individual has an unstable medical condition needing the daily judgment of licensed health care professionals, that individual would also be said to require nursing facility services. A person who has had a heart attack and whose condition is unstable would fall into this category. Dr. Friedman maintained that based on his review of the Appellant’s application, the Adult Evaluation and Review Services (AERS) report and Delmarva’s evaluation of the Appellant’s medical profile, the Appellant did not require the judgment of licensed health care professionals on a daily basis and, hence, he did not require nursing facility services. The Appellant’s loss of vision necessitates that individuals have to assist him in performing his ADLs and administering medications to him, but all of the Appellant’s medical conditions are stable, so licensed health care professionals do not need to make daily judgment calls about his treatment, nor do they need to adjust his medication regimen on a daily basis. According to Dr. Freidman, individuals without medical training can assist the Appellant with his ADLS and medication administration. The Court of Special Appeals in Brown, however, invalidated COMAR 10.09.10.01B(31), the touchstone for Dr. Friedman’s conclusions. The Court relied on the definitions of “nursing facility services” contained in Title 42 of the United States Code and Title 42 of the Code of Federal Regulations (C.F.R.). The Court addressed this subject as follows, beginning its discussion by setting out the definition of nursing facility found in Title 42 of the United States Code: “Nursing facility” is now defined, in relevant part, as: [A]n institution (or a distinct part of an institution) which- (1) is primarily engaged in providing to residents- (A) skilled nursing care and related services for residents (B) rehabilitation services for the rehabilitation of injured, (C) on a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services (above the level of room and board) which can be made available to them only through institutional facilities, and is not primarily for the care and treatment of mental diseases[.] 42 U.S.C. § 1396r(a) [(Supp. 2007)]. The phrase “nursing facility services” is defined as follows: For purposes of this subchapter, the term “nursing facility services” means services which are or were required to be given an individual who needs or needed on a daily basis nursing care (provided directly by or requiring the supervision of nursing personnel) or other rehabilitation services which as a practical matter can only be provided in a nursing facility on an inpatient basis. 42 U.S.C. § 1396d(f) [(Supp. 2007)]. Notably, 42 U.S.C. § 1396d(f) does not require in all instances that the services be provided directly by nursing personnel. Rather, in some instances, the services need only require “the supervision of nursing personnel.” The Code of Federal Regulations contains two definitions of “nursing facility services.” One regulation evidently pertains to services that are provided at facilities addressed in 42 U.S.C. § 1396r(a)(1)(A), essentially “skilled level care,” and the other pertains to services that are provided at facilities addressed in 42 U.S.C. § 1396r(a)(1)(C), “intermediate level care.” The regulation that addresses skilled level care, 42 C.F.R. § 440.40(a)(i), describes skilled nursing services as those that are “[n]eeded on a daily basis and required to be provided on an inpatient basis under §§ 409.31 through 409.35 of this chapter.” 42 C.F.R. § 409.31(a)(2) - (3) in turn defines “skilled services” as those that “[r]equire the skills of technical or professional personnel such as registered nurses [or] licensed practical (vocational) nurses . furnished directly by, or under the supervision of, such personnel,” on a daily basis. The second regulation defining “nursing facility services,” 42 C.F.R. § 440.155, addresses the “intermediate” level of care described in 42 U.S.C. § 1396r(a)(1)(C). 42 C.F.R. § 440.155 [(2006)] provides, in part: (a) “Nursing facility services, other than in an institution for mental diseases means services provided in a facility that- (1) Fully meets the requirements for a State license to provide, on a regular basis, health-related services to individuals who do not require hospital care, but whose mental or physical condition requires services that- (i) Are above the level of room and board; and (ii) Can be made available only through institutional facilities[.] Plainly, 42 C.F.R. § 440.155 does not require involvement of, or service provided by, skilled or trained medical personnel. The parties are in apparent agreement that the nursing facility level of care that Ms. Brown claims to require for admission into Maryland's Older Adults Waiver Program (which we shall discuss next) is the level of care addressed by 42 U.S.C. § 1396r(a)(1)(C) and 42 C.F.R. § 440.155. That level of nursing care is not “skilled nursing care,” but, rather, what used to be described in the federal law as “intermediate” nursing facility level of care. That is, Ms. Brown seeks to qualify under Maryland's Older Adults Waiver Program as needing, “on a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services (above the level of room and board) which can be made available to them only through institutional facilities.” 42 U.S.C. § 1396r(a)(1)(C); see 42 C.F.R. § 440.155. Based on its analysis of federal law, the Court of Special Appeals concluded that COMAR 10.09.10.01B(31)’s requirement that the intermediate level of care must be provided under the supervision of licensed health care professionals conflicts with the section 1396r(a)(1)(C)’s requirement that “health-related care” need only require “the supervision of nursing personnel.” (Emphasis added.) 2007 WL 4180700 at 6. Since a state’s eligibility criteria for the OAW cannot exceed that which the federal government mandates, COMAR 10.09.10.01B(31) is invalid. 2007 WL 4180700 at 15. The Court in Brown announced that the proper standard for determining OAW eligibility is found at section 15-132(a)(9) of the Health-General Article, which the Maryland legislature enacted in 1999, the year that DHMH applied to the federal government for authorization to participate in the OAW program. That section defines the standard for the “intermediate level of care.” The Court found this standard applied not only because COMAR 10.09.10.01B(31) conflicted with federal law, but also because a statutory directive controls over a regulation. The current version of section (9) "Intermediate level of care,[“] for purposes of paragraph (11)(ii) of this subsection, includes health related care and services provided to individuals who do not require hospital or a skilled level of nursing facility care but whose mental, physical, functional, or cognitive condition requires health services that: are provided on a regular basis at least 5 days in a 7-day Can be made available to the individuals through institutional Md. Code Ann., Health-Gen. I § 15-132(a)(9) (2005). Applying the standard found in section 15-132(a)(9) to the facts of this case, I conclude that the Appellant is eligible for the OAW. Although the effects of the Appellant’s retinitis pigmentosa have made him legally blind, and the Appellant’s heart problems require some degree of monitoring, the care that the Appellant needs for those conditions alone does not qualify him for the OAW program. Rather, it is the combination of the Appellant’s severe osteoarthritis requiring “constant PT [physical therapy] and OT [occupational therapy] evaluation at home,” as determined by Dr. Rida Frayha, combined with his other conditions, that necessitate “his care should be at [the] level of a health provider caretaker and not a family member.” (App. Ex. 2) I infer that Dr. Frayha’s use of the adjective “constant” to modify the Appellant’s evaluation and service needs satisfies the “five out of seven day” criterion found in section 15- 132(a)(9)(ii). The kinds of medical services that the Appellant needs are above the level of room and board and would be similar to those he would receive in institutional Moreover, the Court of Special Appeals in Brown also ruled that an administrative law judge hearing a case involving a review of DHMH’s denial of an OAW receive all medical evidence related to an appellant’s eligibility for the OAW, not just that evidence that might relate back to the time of his application. At the hearing in this case, I took all medical documentation that the Appellant offered into evidence and have evaluated it. Upon examination of that medical documentation, I conclude that the Appellant’s condition has essentially remained unchanged since the date of his application (and DHMH’s review in August 2006). In summary, an applicant for the OAW program must demonstrate that he or she requires nursing facility services. The Appellant has demonstrated that under the criteria annunciated in Brown, he requires nursing facility services. Consequently, I will reverse DHMH’s August 21, 2006 decision to deny the Appellant’s application for the OAW program and direct DHMH to find the Appellant eligible for all services under that program, assuming that he meets all of the program’s other eligibility requirements. CONCLUSION OF LAW
Based upon the foregoing finds of fact and discussion, I conclude as a matter of law that the Appellant qualifies for the Older Adults Waiver program as of July 21, 2006, the date of his application, because he requires nursing facility services. 42 U.S.C.A. § 3 Dr. Frayha’s October 12, 2006 letter, found in Appellant’s Exhibit No. 2, which Dr. Frayha wrote only three months after the Appellant’s application for the OAW program, contains many of the same conclusions as his November 9, 2007 letter. 1396d(f) (Supp. 2007); 42 U.S.C.A. § 1396r(a)(1)(C) (Supp. 2007); 42 C.F.R. § 440.155 (2006); Md. Code Ann., Health-Gen. I § 15-132(a)(9) (Supp. 2007) and Department of Health and Mental Hygiene v. Ida Brown, – Md. App. –, 2007 WL 4180700 (November I ORDER that the decision of the Department of Health and Mental Hygiene to
deny the Appellant’s July 21, 2006 application for the Older Adults Waiver program be REVERSED; and
I further ORDER that the Department of Health and Mental Hygiene find the
Appellant eligible for the Older Adults Waiver program provided that he meets all other requirements for participation in that program; and I further ORDER that the Department of Health and Mental Hygiene notify this
Administrative Law Judge of its compliance with this decision within ten days of the REVIEW RIGHTS
If you are not satisfied with this decision, you may appeal it to the Board of Review of the Department of Health and Mental Hygiene within thirty days of the date of this decision. To do so, you must write to the Secretary of the Board of Review, Department of Health and Mental Hygiene, 201 West Preston Street, Baltimore, MD 21201. COMAR 10.01.04.08B(3) and COMAR 10.01.05. The Office of Administrative Hearings is not a party to any review process. LIST OF EXHIBITS
Appellant’s Exhibits
Medical records from Dr. Gruen, 2003 – 06 Medical records from Dr. Gakuba, 2005 – 07 DHMH Exhibits
March 28, 2000 letter from Nancy-Ann Min DeParle of the federal Health Care Financing Administration (HCFA) to Georges C. Benjamin, M.D., Secretary of the Maryland Department of Health and Mental Hygiene April 1, 2006 Application for a § 1915(c) HCBC Waiver submitted by DHMH to the Centers for Medicare and Medicaid Services September 21, 2006, Centers for Medicare and Medicaid’s acceptance of DHMH’s application for the HCBC Waiver July 25, 2006 Medical Care Eligibility Review Form #3871B July 26, 2006 Adult Evaluation and Review (AERS) Comprehensive August 17, 2006 Zale letter to Jeter-Cutting DHMH’s August 21, 2006 denial notice sent to the Appellant

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