Important information for A&D/TBI waiver recipients

This information is from SEVERNS ASSOCIATES, P.C. All expressed opinions belong to them.
Individuals should talk to their case managers and/or AAA agencies to find out how these changes will impact their plans of care, and if they are entitled to any legal action.

Independence Day Surprise for Waiver clients with heavy care needs

Medicaid Waiver clients with high care needs have been targeted for cuts by FSSA. According to FSSA's June 23rd message to AAA's, all waiver recipients whose service plans have with service hours exceeding the new caps will be automatically cut effective 8/1/08. The State's June 23rd notice to AAA's, cast as a "software update," is shown below.

Area Agencies have been effectively instructed to "re-budget or else" to conform with new caps. Area Agencies were not consulted when the new caps were developed for the State's Waiver renewal. Beneficiaries who rely on Waiver services to remain independent have not be warned or given given due process notices and, FSSA is implementing a policy change without the public hearing process required to make new rules.

The State's only "legal basis" for the new restrictions appears to be that CMS approved the waiver terms that FSSA submitted. We have talked with CMS and it is clear that CMS simply approved the request that State requested. The cuts were not required by CMS and there was no data known to the CMS officials to show that the State was in jeopardy of exceeding the cost neutrality requirement of the Waiver. The Waiver statute requires that the State's average cost for a Waiver client not exceed its average nursing home costs.

In addition to the secrecy with which the State developed and implemented these restrictions, the State appears to be reluctant to inform the beneficiaries of this dramatic restriction itself. Instead, it has instructed Area Agency on Aging case managers to carry the message and said that anyone whose budgeted hours exceed the new caps will be automatically cut, effective August 1. AAA's are put in the precarious legal position of assisting the State to implement its new policy with verbal notices telling clients that they must accept lower level of service. This could subject AAA personnel to civil rights liability. Federal statutes and Constitutional law require that reduction of Medicaid services be issued by the State, in writing, with notice of appeal rights in advance of the proposed effective date.

Home health care providers are also apparently just learning of this. They will risk not being paid if they deliver services in excess of the caps. It is commonly assumed among AAA's and providers that even if a client exercises their appeal rights right after notice, that the provider will not be paid or required to refund if the client loses the appeal. In some past cases where providers feared non-payment, providers just suddenly pull out from serving a client, leaving the client in immediate jeopardy. Information about appeal rights can be found at http://severns.com/medicaid_docs.cfm.

Affected beneficiaries whose independence and care is threatened should be informed that they have a right to appeal adverse actions and should consult with and elder law attorney, civil rights lawyer or legal services program for review and possible representation.

Here is the State's instruction to the AAA's:

INsite v. 3.6d Release Notes

June 23, 2008

Note: the DeadLine for applying this patch is June 30, 2008. Any CCB's finalized with an earlier version of INsite on or after that date will be automatically denied when received at the State.

The following have been added to the 'Release Notes' section.

• A&D Renewal Policy - July 2008

Other change in this version:

• Aged & Disabled Waiver Renewal policy changes effective July 1, 2008:
  • Respite Attendant (RATT) & Respite Homemaker (RHMK) are discontinued after July 1, 2008.
  • Attendant Care (ATTC) has a maximum of 40 hours a week. When adding this service to a CCB, the limit for any given month will be 200 hours; however, every month cannot have 200 hours because the limit for one-year plan is 2080 hours (40 hrs/week * 52 weeks per year).
  • Homemaker (HMK) has a maximum of 10 hours a week. When adding this service to a CCB, the limit for any given month will be 50 hours; however, every month cannot have 50 hours because the limit for one-year plan is 520 hours (10 hrs/week * 52 weeks per year).
  • Respite Nursing (RNUR) and Respite Home Health Aide (RHHA) have a COMBINED maximum of 60 hrs per month.
  • Community Transition lifetime cap has been raised to $1,500.
  • Health Care Coordination (HCC1) will be an allowed service.
  • Congregate Care is no longer an allowed service.
  • Conversion of CCB's: sometime before July 1st, your agency should receive a list of CCB's that have a service that is not in compliance with the above rules. Unless those CCB's are manually updated, there will be a conversion (currently scheduled for July 26th) run at the State to put the CCB's in compliance. The conversion will:
    • Replace RATT & RHMK with ATTC & HMK respectively for months of August 2008 and after.
    • Reduce ATTC hours to be in compliance with new caps for months of August 2008 and after.
    • Reduce HMK hours to be in compliance with new caps for months of August 2008 and after.
    • Reduce RNUR/RHHA hours to be in compliance with new caps for months of August 2008 and after.
    • All affected CCB's will be converted including Extension CCB's and CCB's on the Hot List.
    • The month of July will be maintained at the current level unless a CCB is prepared manually and then all months beginning July 2008 must be in compliance.

Scott R. Severns
Attorney

SEVERNS ASSOCIATES, P.C.
Pathfinders in Elder Law