* * * * * * * * * * * * * DECISION STATEMENT OF THE CASE ISSUE SUMMARY OF THE EVIDENCE FINDINGS OF FACT DISCUSSION CONCLUSIONS OF LAW ORDER

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1 [REDACTED], APPELLANT v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE BEFORE JOHN M. ZELL, AN ADMINISTRATIVE LAW JUDGE OF THE MARYLAND OFFICE OF ADMINISTRATIVE HEARINGS OAH NO.: DHMH-MCP-11E DECISION STATEMENT OF THE CASE ISSUE SUMMARY OF THE EVIDENCE FINDINGS OF FACT DISCUSSION CONCLUSIONS OF LAW ORDER STATEMENT OF THE CASE On December 15, 2006, the Appellant reapplied for Medical Assistance services under the Waiver for Older Adults program (OAW). On January 23, 2007, the Department of Health and Mental Hygiene (DHMH or Department) determined that the Appellant was not eligible to receive services under the OAW because the Medical Assistance Program s utilization control agent found that the Appellant did not require nursing facility level of care. The Appellant filed a request for a hearing on January 29, I held a hearing on September 6, 2007, at the Office of Administrative Hearings offices in Wheaton, Maryland. Code of Maryland Regulations (COMAR) [Redacted], the Appellant s daughter, represented the Appellant. Erin Reilly, Assistant Attorney General, represented the Department. Procedure in this case is governed by the contested case provisions of the Administrative

2 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. Md. Code Ann., State Gov t through (2004 & Supp. 2006); COMAR ; and COMAR ISSUE The issue is whether DHMH properly determined that the Appellant was ineligible for services under the OAW program because she did not require nursing facility level of care. Exhibits SUMMARY OF THE EVIDENCE The Department submitted the following documents, which were admitted into evidence: DHMH # 1 March 28, 2000 letter from the Health Care Financing Administration (HCFA) to Georges C. Benjamin, M.D., DHMH, concerning the single state eligibility for waiver under the Maryland Medical Assistance Program DHMH # 2 DHMH application for the Section 1915(c) HCBS Waiver DHMH # 3 - Approval of the Section 1915(C) Application by HCFA DHMH # 4 The Appellant s Maryland Medical Assistance Program, Maryland Medical Eligibility (3871b) application for recertification, dated December 12, 2006 DHMH # 5 - Maryland Department of Health and Mental Hygiene, Adult Evaluation and Review Services (AERS) Comprehensive Evaluation and Recommended Plan of Care, dated December 11, 2006 DHMH # 6 - Letter to Carole Taliaferro, Prince George s County Department of Aging, from Jeffery M. Zale, M.D., Medical Director LTC and Managed Care, Delmarva Foundation for Medical Care, Inc. (Delmarva), dated January 19, 2007 DHMH # 7 Notice of ineligibility, dated 12/19/06 The Appellant submitted the following documents, which were admitted into evidence: App. # 1 - Letter from Alan L. Heine, M.D., dated January 29, 2007 App. # 2 - Appellant s appeal of the denial of recertification, by her daughter, by letter dated January 29, 2007 App. # 3 - Seabrook Radiological Center letter, date stamped received February 16, 2007 App. # 4 - Order for a wheel chair for the Appellant, dated March 12, 2007, written by Syed W. Asad, M.D. App # 5 - Appellant s Southern Maryland Hospital Center, Initiation Of Service Notice, dated March 1,

3 Testimony Barry Friedman, M.D., Medical Director, Long-Term Care and Finance Section, DHMH, was accepted as an expert in medicine, and he testified on behalf of the Department. The Appellant s daughter testified on behalf of the Appellant. FINDINGS OF FACT I find the following facts by a preponderance of the evidence: 1. The Appellant is an eighty year old female diagnosed with hypertension, gerd, Parkinson s disease, and Schizophrenia. 2. The Appellant takes oral medications for her medical conditions; her medication regimen is stable. 3. The Appellant is able to feed herself, transfer to the bed or a chair without assistance, groom herself and get dressed with assistance, and use the toilet herself. She is able to walk by herself, but needs assistance beyond a short walking distance. She needs assistance in washing, and combing her hair. She requires complete assistance with light chores, grocery shopping, taking medications, handling money and in making plans. The assistance required by the Appellant can be provided by a responsible adult. 4. The Appellant is considered severely disabled with an Activity of Daily Living (ADL) score of 13 of a possible 30 points. 5. The Appellant is alert and oriented as to person and place but disoriented as to time. She expresses feelings of weakness and lethargy. 6. As of the date of recertification and of this hearing, the Appellant did not have any unstable medical conditions requiring daily monitoring and she did not require daily services by a medical professional for her conditions. 3

4 7. As of the date of the recertification and of this hearing, the Appellant did not require ongoing physical therapy, occupational therapy, or speech therapy. DISCUSSION Under the Maryland Medical Assistance Program, a recipient may receive nursing facility benefits if he or she is financially eligible and if DHMH or its designee certifies the recipient as requiring nursing facility services as defined by the applicable regulation. COMAR B(31) defines nursing facility services as follows: "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. In this case, DHMH argues that while the Appellant may require assistance with her activities of daily living, there is no evidence that she meets the criteria for nursing facility services. DHMH asserts that the medical evidence shows that the Appellant does not require daily supervision by a health care professional, skilled nursing care, or rehabilitative therapy. DHMH agrees that the Appellant may benefit from custodial care and that she should not live in an unsupervised setting. DHMH explains that the federal government did not approve funding for waiver services under a lesser standard. DHMH maintains that State law is consistent with the federal law and must be in order for the State to receive federal funding for the waiver programs. Barry Friedman, M.D., testified on behalf of DHMH that there are three ways for an individual to establish eligibility under the nursing facility services level of care standard. A person meets that standard if he or she needs (i) hands on care by a nurse on a daily basis; (ii) rehabilitation services ordered by a physician and performed by a licensed physical therapist at 4

5 least five days per week; or, (iii) daily monitoring of an unstable medical condition that requires the judgment of a nurse or physician. Dr. Friedman elaborated further on the criteria for nursing facility services, noting that (i) skilled nursing care is hands-on care that can only be performed by an individual with nurse s training, such as deep wound care with daily dressing changes; (ii) rehabilitation services are ordered by a physician and performed by a licensed therapist; and, (iii) health related services are services provided by a licensed professional on a daily basis, such as the daily adjustment of medication for a patient with congestive heart failure or a diabetic patient with dementia who cannot monitor and adjust his/her own insulin level. Dr. Friedman testified that the Appellant is an elderly female with a number of conditions. He explained that the Appellant requires assistance with some of her activities of daily living. He explained further that the Appellant s medications are prescribed in set doses and are taken orally. He noted that the Appellant may need reminders and periodic monitoring by his doctor. Dr. Friedman opined that the Appellant clearly did not meet any of the three criteria for nursing facility services level of care. He stated that he would consider additional medical information if it related to the Appellant s condition at the time of the application. The Appellant s representative, her daughter, did not question Dr. Friedman. The Appellant s daughter believes that her mother requires a nursing home level of care due to the schizophrenic diagnosis. She offered as an exhibit, received into evidence as App. # 1, a January 29, 2007 letter from Alan L. Heine, M.D., the patient s psychiatrist. Dr. Heine opines that the patient requires assisted living level of care for (1) medication compliance (2) assistance with bathing, dressing, cooking, and meal preparation (3) ongoing reminders with medications (4) day 5

6 program. Dr. Heine agreed, however, that the Appellant does not need to be placed in a nursing home. I find that DHMH properly determined that the Appellant was not eligible to receive services under the OAW. The evidence demonstrates that the Appellant s medical condition is clinically stable and she does not require ongoing continuous monitoring on a daily basis. I find that the Appellant does not require a level of care and supervision that only licensed health care professionals can provide. Rather, the Appellant s needs are custodial. She does not require skilled nursing care, rehabilitation services, or health-related care and services that are available only through institutional facilities under the supervision of licensed health care professionals. COMAR B(31). An attentive, responsible adult can assist the Appellant in the performance of her activities of daily living and in her medication management. I am sympathetic to the Appellant s situation and those of others in similar situations; however, I must apply the law as it is written. Accordingly, DHMH s determination that the Appellant is not eligible to receive services under the OAW must be affirmed. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact and Discussion, I conclude as a matter of law that the Appellant is ineligible for the waiver program because she does not 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 only through institutional facilities under the supervision of licensed health care professionals. Md. Code Ann., Health-Gen (2005); COMAR B(31). 6

7 ORDER I ORDER that the decision of the Department is AFFIRMED. October 2, 2007 Date Decision Mailed John M. Zell Administrative Law Judge JMZ 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 (30) 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 COMAR B(3) and COMAR The Office of Administrative Hearings is not a party to any review process. 7