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1 XXXX XXXX v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE * * * * * BEFORE DOUGLAS E. KOTEEN, AN ADMINISTRATIVE LAW JUDGE OF THE MARYLAND OFFICE OF ADMINISTRATIVE HEARINGS OAH No. DHMH-MCP-11A * * * * * * * * * * * * * DECISION STATEMENT OF THE CASE ISSUE SUMMARY OF THE EVIDENCE FINDINGS OF FACT DISCUSSION CONCLUSIONS OF LAW ORDER REVIEW RIGHTS STATEMENT OF THE CASE XXXX XXXX ( Child ) had been receiving Medical Assistance services under the Waiver for Children with Autism Spectrum Disorder Program ( Autism Waiver ). The Autism Waiver provides community-based Medical Assistance services to children with autism as an alternative to their institutionalization. By notice dated June 6, 2006, the Division of Eligibility Waiver Services ( DEWS ) of the Department of Health and Mental Hygiene ( Department or DHMH ) advised that the Child was no longer medically eligible for the Autism Waiver. On July 6, 2006, the Child s mother, XXXX XXXX ( Appellant ), filed an appeal of the denial of eligibility for the Autism Waiver. A hearing was held on November 2, 2006 before Douglas E. Koteen, Administrative Law Judge ( ALJ ), at the Office of Administrative Hearings ( OAH ) in Wheaton, Maryland, pursuant to Code of Maryland Regulations ( COMAR ) The Appellant represented

2 herself at the hearing. Brett Bierer, Esquire, Assistant Attorney General, represented the Department. Procedure in this case is governed by the contested case provisions of the Administrative Procedure Act, Md. Code Ann., State Gov't through (2004 & Supp. 2006); the Procedures for Fair Hearing Appeals under the Maryland State Medical Assistance Program, COMAR ; and the Rules of Procedure of OAH, COMAR ISSUE The issue is whether the Department properly terminated the Child s coverage under the Autism Waiver because of a failure to meet the medical eligibility requirements of the program. Exhibits into evidence: SUMMARY OF THE EVIDENCE At the hearing, the Department submitted the following documents, which were admitted 1. Autism Waiver Program Question and Answer Sheet, undated; 2. Autism Waiver Program Fact Sheet, dated November 5, 2004; 3. DSM-IV - Diagnostic Criteria for Autism Disorder, undated; 4. Determination of Eligibility for Level of Care in an Intermediate Care Facility for the Mentally Retarded and Persons with Related Conditions (ICF-MR) (blank), undated; 5. Autism Waiver Plan of Care (blank), undated; 6. Determination of Eligibility for Autism Waiver Services (blank), undated; 7. Notice of Case Activity, dated May 31, 2006; 8. Letter from DEWS to Appellant, dated June 6, 2006; 9. Resume of XXXX XXXX, School Based Psychologist, Prince George s County Public Schools ( PGPS ), dated October 31, 2006; 10. ICF-MR for Child, dated February 3, 2006; 11. ICF-MR for Child, dated October 31, 2006; 12. ICF-MR for Child, dated April 14, 2005; 13. ICF-MR for Child, dated April 2, 2004; 14. ICF-MR for Child, dated May 21, 2003; 15. ICF-MR for Child, dated October 2, 2001; 16. Parent Interview Autism Waiver Level of Care, dated October 27, The Appellant submitted no documents into evidence at the hearing. 2

3 Testimony The Department presented the following witnesses: 1. Marjorie Shulbank, Educational Program Supervisor, Division of Special Education and Early Intervention Services, Maryland State Department of Education ( MSDE ); 2. XXXX XXXX, School Psychologist, PGPS (accepted as an expert in School Psychology and Autism Waiver level of care determinations). The Appellant testified on her own behalf and also presented testimony from XXXX XXXX. FINDINGS OF FACT Having considered the evidence presented, I find the following facts by a preponderance of the evidence: Disorder. 1. The Child was born on XXXX, 1996 and was diagnosed with Autism Spectrum 2. The Child attended [School 1] ( [School 1] ) until the fourth grade. She transferred from [School 1] to [School 2] ( [School 2] ) in December 2005 during the first semester of fourth grade when her parents moved to a new school district. 3. An Intermediate Care Facility for the Mentally Retarded ( ICF-MR ) form must be completed to determine medical eligibility for the Autism Waiver. The ICF-MR measures an array of an applicant s behaviors and functional skills to determine the severity of an applicant s disability. 4. The ICF-MR evaluation is submitted for an initial eligibility determination and is resubmitted annually to evaluate an applicant s medical eligibility for the Autism Waiver. The ICF-MR evaluates a child s functional capacity in the following three domains: Basic Activities of Daily Living ( ADLs ); Functional ADLs; and Maladaptive Behaviors. 5. Minimum scores of 24 for Basic ADLs; 63 for Functional ADLs; and 54 for Maladaptive Behaviors are required to establish medical eligibility for the Autism Waiver. 3

4 An applicant must achieve the minimum scores in at least two of the three domains evaluated by the ICF-MR form to be found medically eligible for the Autism Waiver. 6. The Basic and Functional ADL domains evaluated for the ICF-MR determination each have subcategories that are scored from 0 to 4 in the area of functional capacity, with 0 indicating independent functioning and 4 indicating profound impairment. These domains also evaluate intensity of support needed by the applicant in each subcategory. The intensity of support scores range from 0 for no support needed to 5 for 100% supervision required. The intensity of support scores are tabulated to determine an applicant s eligibility in the Basic and Functional ADL domains. 7. The third domain evaluated by the ICF-MR form, Maladaptive Behaviors, considers the degree of intervention required to address an applicant s behaviors. The applicant is scored on a range from 0 for no intervention required to 6 indicating that an applicant must be removed from her peers due to a substantial degree of intervention required. 8. On April 14, 2005, the Child achieved the following scores on the ICF-MR evaluation form: 24 in Basic ADLs; 58 in Functional ADLs; and 77 in Maladaptive Behaviors. The Department found the Child medically eligible for the Autism Waiver in April 2005 because she achieved at least the minimum score in two out of the three domains: Basic ADLs and Maladaptive Behaviors. 9. Certified School Psychologist XXXX XXXX ( XXXX ) and Multidisciplinary Team Chairman XXXX XXXX ( XXXX ) completed a new ICF-MR evaluation for the Child on February 3, XXXX considered the results of the parent interview and parent questionnaire that was completed by the Appellant together with MSDE staff on October 27, XXXX also considered the evaluation of the ICF-MR criteria by the Child s teachers that was completed in January XXXX spoke with both the special education coordinator at the 4

5 Child s previous school, [School 1], and the Child s teacher at her new school, [School 2]. XXXX also considered her own knowledge and observations of the Child. Input from the Child s parent and teachers enabled the school psychologist to consider the Child s behavior in both home and school environments. 10. In February 2006, XXXX and XXXX completed the Child s ICF-MR evaluation with the following scores: 18 in Basic ADLs; 64 in Functional ADLs; and 34 in Maladaptive Behaviors. The Department determined that the Child was not medically eligible for the Autism Waiver in February 2006 because she failed to achieve the minimum score in at least two of three domains. 11. The Appellant conducted her own ICF-MR evaluation of the Child in October 2005, together with assistance from MSDE staff. Based on the Appellant s own evaluation, the Child failed to achieve the minimum scores for eligibility in the Autism Waiver in any of the required domains, Basic ADL s, Functional ADL s, and Maladaptive Behaviors. Even the Appellant did not evaluate the Child as sufficiently disabled to qualify for the Autism Waiver. 12. XXXX and XXXX signed the ICF-MR evaluation form on February 3, 2006, certifying that the Child did not require the level of care of an Intermediate Care Facility for the Mentally Retarded and Persons with Related Conditions. 13. The Department notified the Appellant on June 6, 2006 that the Child s coverage under the Autism Waiver would terminate effective June 30, 2006 because she was no longer medically eligible for the program. DISCUSSION The Waiver program at issue in this proceeding is the Home and Community-Based Services Waiver for Children with Autism Spectrum Disorder, commonly referred to as the 5

6 Autism Waiver. Persons under twenty-one years of age may participate in the Autism Waiver if they satisfy certain medical, technical and financial eligibility requirements. The Autism Waiver is designed to provide consumer-directed personal assistance and MA services to children with autism in their own homes as an alternative to institutionalization. The Division of Special Education and Early Intervention Services within MSDE participates in the Autism Waiver eligibility process by determining if an applicant has met the non-financial criteria for participation in the program. If all non-financial criteria for eligibility are met, then MSDE will certify to the Department that the applicant is authorized for participation in the Autism Waiver. The regulations governing the Autism Waiver are found at COMAR In pertinent part, COMAR provides, as follows:.02 Participant Eligibility. A. Medical Eligibility for the Autism Waiver. (1) To be medically eligible for the services covered under this chapter, an applicant shall be certified by the licensed psychologist or certified school psychologist on the multidisciplinary team to need ICF-MR level of care, as part of the multidisciplinary team process and using the form for determination of eligibility for level of care in an intermediate care facility for the mentally retarded and persons with related conditions (ICF-MR). (2) Every 12 months, or more frequently if determined necessary by the service coordinator or multidisciplinary team due to a significant change in the participant's condition or needs, a participant s medical need for ICF-MR level of care shall be reevaluated by the licensed psychologist or certified school psychologist on the multidisciplinary team, as part of the multidisciplinary team process and using the form for determination of eligibility for level of care in an ICF-MR. (3) The form certifying ICF-MR level of care shall be signed by the: (a) Chairman of the multidisciplinary team, who is the official representative of the local school system or local lead agency; and (b) Team s licensed psychologist or certified school psychologist. 6

7 The Appellant participated in the ICF-MR process in this case through her parent interview, parent questionnaire, and by providing MSDE with the requested information and documents necessary to facilitate a determination of eligibility. After review of the Child s evaluation on the ICF-MR form, MSDE did not approve and certify to the Department that the Child was authorized for continued participation in the Autism Waiver, as she failed to qualify in at least two of the three domains on the ICF-MR evaluation. XXXX XXXX, the certified school psychologist who conducted the ICF-MR evaluation, testified that she has seen the Child s condition improve over time. Based on her education, employment, training, and certification, XXXX was accepted as an expert in school psychology and level of care determinations for the Autism Waiver. She stated that the Child is more independent and more conversational than she has been in the past. She noted that the Child answers questions, participates in a girls group with arts and crafts, cooking, and games, and takes an interest in other children. The Child is also able to navigate on her own within the school. XXXX explained that the Child is able to learn academically and has performed satisfactorily in the areas of math and reading. She noted that the Child does not have behavioral problems and has never been in trouble. She asserted that the Child has a mild form of autism and is more verbal than the typical autistic child. XXXX believes that the Child is not at risk for institutionalization, and that she could hold a job and live with a roommate. XXXX explained that her evaluation was based on her own observations, as well as input from the Child s parent and teachers. XXXX obtained input from the Child s special education coordinator at [School 1], her previous school, and the Child s teacher at [School 2], her new school. The Appellant explained that the Child left [School 1] in December 2005, during fourth grade, when the family moved to the [School 2] school district. XXXX also considered the 7

8 Appellant s parent interview and parent questionnaire, which the Appellant completed together with MSDE staff. XXXX noted that the Appellant s own evaluation of the Child s behavior and level of functioning indicated that the Child was not eligible for the Waiver program in any of the three domains because the Child was not sufficiently disabled or dependent under the ICF- MR criteria. XXXX noted that the Child s scores had generally decreased over the past several years, which reflected improvement in the severity of her Autism Spectrum Disorder. The Appellant argued that the Child should be found qualified for the Autism Waiver program, and that she requires the services the program provides. The Appellant contends that she knows her child better than anyone, and claimed that staff who evaluated her had not seen her recently or spoken with her current teachers. She also claimed that the Child requires oneon-one supervision in the classroom and is not suitable for the regular high school diploma program. She contends that this status is inconsistent with the Department s evaluation of the Child. The Appellant argued further that the Child has received substantial benefit from the Waiver program and continues to need the Waiver services. Both the Appellant and her witness, XXXX XXXX, stated that since the Child was terminated from the program on June 30, 2006, she has failed to maintain the progress that she had achieved in the program, and has begun to regress. Based on her knowledge of the Child, XXXX claimed that the Child is monosyllabic, but she was not able to further assess the Child s verbal or academic skills. XXXX acknowledged that the Child has no behavioral issues. The Appellant argued that the evaluator had not seen the Child for many months and that the Department failed to consider input from the Child s current teachers. The evidence in this record fails to support the Appellant s contentions. The evidence demonstrates that the Department relied on contemporaneous information. XXXX worked with the Child and observed her for several years through third grade. Although not working directly with the Child 8

9 in fourth grade, she still had knowledge of the Child s condition and ability. The Child continued to attend [School 1], where XXXX worked, during the first semester of fourth grade until early December Moreover, XXXX explained that she obtained input from the special education coordinator at [School 1] who was familiar with the Child s behavior and educational program while attending that school. XXXX also obtained input from the Child s new teacher at [School 2], the school to which the Child transferred in December XXXX used the criteria from the ICF-MR evaluation form when obtaining input in January 2006 from the Child s teacher and special educator. The Department must evaluate the Child annually under the Autism Waiver and properly did so in February Moreover, the school psychologist from the Child s former school conducted the evaluation only two months after the Child transferred to [School 2]. XXXX supplemented her own knowledge of the Child s condition with input from the Appellant in October 2005, and from the special education coordinator at the Child s former school and the Child s teacher at her new school in January Under these circumstances, I conclude that the Department conducted an appropriate and contemporaneous evaluation of the Child s Autism Spectrum Disorder under the ICF-MR analysis. The issue to be decided in this proceeding is whether the Department s determination in February 2006 that the Child was no longer eligible for the Autism Waiver was correct and in accordance with the law. XXXX properly obtained input for that evaluation during the fall of 2005, and the winter of from the Child s parent and teachers. The Child s condition at the time of the hearing is not relevant to the issue to be decided in this proceeding. The Appellant generally contests the findings of the Department s February 2006 ICF- MR evaluation, and argues that the Child requires the services available through the Autism Waiver program. However, the Appellant has failed to provide specific evidence to rebut the 9

10 Department s findings. It is undisputed that the Child did not meet the minimum scores in the domains of Basic ADLs and Maladaptive Behaviors in the February 2006 ICF-MR. It is also undisputed that a certified school psychologist and the chairperson of the Multidisciplinary Team certified that the Child did not meet the medical eligibility criteria when they affixed their signatures to the ICF-MR form on February 3, As the Child failed to meet the minimum scores in two of the three domains of the ICF-MR, she is not medically eligible to remain in the Autism Waiver program. Consequently, the governing regulations require that the Child s participation in the Autism Waiver be terminated. Accordingly, the Child does not meet the mandatory medical eligibility requirements for participation in the Autism Waiver program. COMAR B. The Autism Waiver program is designed to provide services to children who are severely disabled with autism. Although it is likely that the Child could benefit from Autism Waiver services, it is clear that the Child functions at a higher level than other autistic children. Moreover, the evidence in this record demonstrates that even when the Child was found eligible in the past, she barely qualified for the program under the applicable criteria. The evidence in this record demonstrates that the Child has improved and no longer meets the criteria for eligibility. For the reasons set forth above, I conclude that the Department has demonstrated that the Child s condition has improved and that she no longer meets the criteria for the Autism Waiver program. The Child s evaluation under the ICF-MR demonstrates that she failed to achieve the minimum scores in the domains of Basic ADL s and Maladaptive Behaviors under the ICF-MR criteria. Therefore, the Child no longer qualifies for the Autism Waiver program. COMAR B. The evidence establishes that the Department used the correct criteria. The evidence presented in this record demonstrates that the Department s decision to terminate the 10

11 Child from the Autism Waiver program, effective June 30, 2006, was correct. CONCLUSIONS OF LAW Based on the foregoing Findings of Fact and Discussion, I conclude, as a matter of law, that the Child does not meet the medical eligibility requirements for participation in the Autism Waiver and, accordingly, her participation in this program was properly terminated effective June 30, COMAR A. ORDER Therefore, it is ORDERED, that the determination of the Division of Eligibility Waiver Services of DHMH to terminate the Appellants eligibility for the Waiver for Children with Autism Spectrum Disorder program, effective June 30, 2006, is AFFIRMED. December 13, 2006 Date Decision Mailed Douglas E. Koteen Administrative Law Judge DEK/cf REVIEW RIGHTS If you are not satisfied with this decision, you may file an appeal with the Board of Review of the Department of Health and Mental Hygiene, within thirty (30) days of receipt of this decision. To do so, you must write to the Secretary of the Board of Review, Department of Health & 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. 11