Functional Screen Advocacy and Disability

Transcription

1 Long Term Care Functional Screen Advocacy Attorney Mitchell Hagopian Disability Rights Wisconsin January 2011 I. Introduction Non-financial eligibility for community based long term care programs that serve adults is almost exclusively determined by the use of computer based long term care functional screen. A certified screener enters data into the long term care functional screen program which then uses that data to make a functional eligibility determination. Neither the screener nor the individual being screened knows what data was dispositive to (or even considered in) the eligibility determination. In addition, the screen captures demographic data on the person being screened that is not at all relevant to the eligibility determination. The LTCFS was designed to bring consistency and objectivity to the process of determining functional eligibility for community-based waivers. It was purposely designed to make the screener a data entry person and not a determiner of eligibility. Problems with this system: the eligibility determination is secret and therefore not reviewable; the computer logic can be altered by DHS at any time to restrict eligibility findings; for all programs but FC, there is no underlying statutory or regulatory eligibility criteria, thereby leaving a due process void; quality of screeners is highly variable, inter-rater reliability is often a problem. II. Sources of Law and Policy A. Family Care Statute: (4)(f); (1)(a); (2)(a)1.a.; (2) B. Family Care Regulation: DHS 10.13(26), (27); C. Nursing Home Regulation: DHS (8r), (10), (12), (32) D. Long Term Care Functional Screen Instructions, available online at: E. Medicaid Waivers Manual, available at: 1

2 III. What the LTCFS Does and How it Does it A. Determines level of care for Family Care, Partnership, IRIS, COP-W, CIP-2 and CIP In order to be eligible for the full range of long term care services available under any Medicaid funded LTC program a person must meet an institutional or nursing home level of care; meaning the person s care needs must be great enough to have a nursing home stay covered by Medicaid. 2. For Family Care only, a person found eligible at a non-nursing home level of care is eligible for a limited LTC benefit (essentially, case management) B. Determines Target Group 1. Frail elder; physical disability; developmental disability-federal; developmental disability-state; Alzheimer s-irreversible dementia; terminal condition; severe and persistent mental illness 2. Some individuals fall within multiple target groups 3. People with brain injury may fall within either the DD or physically disabled target groups 4. Which group an individual gets placed in makes a significant difference in how the computer logic determines eligibility C. Assesses Health Related Services 1. Categorizes nursing type interventions; i.e. IV medications, medication management, medication administration, positioning, oxygen, TPN, skilled therapies, etc. 2. Determines frequency of intervention 3. Extremely important in determining level of care D. Assesses Activities of Daily Living (ADLs) and Instrumental Activities of Daily Living (IADLs) 1. Assesses need for assistance in following ADLs: bathing, dressing, eating, mobility in home, toileting, transferring 2

3 2. Generally, person is either considered: independent (0); needs help helper need not be physically present (1); or needs help helper must be physically present (2) 3. Assesses need in following IADLs: meal preparation, medication management/administration, money management, transportation, employment E. Assesses other factors relevant to long term care needs 1. Behaviors: wandering, self injurious behavior, offensive or violent behavior to others 2. Mental health and substance abuse 3. Communication and cognition F. Assesses level of risk: five levels possible 1. No risk 2. Currently failing or at high risk of failing to obtain nutrition, self-care, or safety adequate to avoid significant negative health outcomes 3. Currently institutionalized or at imminent risk of institutionalization (within next 8 weeks) if assistance not provided NOTE: This is the only risk level that has any relevance to the individual s level of care determination. 4. Statements of or evidence of possible abuse or neglect 5. Support network adequate at this time, but may be fragile in the near future (within next 4 months) G. Other uses of the LTCFS 1. Sets the capitated rate for MCOs 2. Sets the IRIS rate for individuals 3. Will be used to determine residential rates for substitute care facilities H. Collects demographic and other information not relevant to level of care determination (i.e. living situation and living situation preference) 3

4 IV. Advocacy Issues and Strategies A. Inconsistency Between the Computer Logic and the Law 1. For frail elder and physically disabled target groups screen is not programmed to recognize certain combinations of ADL and IADL deficits resulting in people who would be eligible under the regulation being found ineligible by the screen. 2. For frail elder and physically disabled target groups screen requires a finding that the person be at imminent risk of institutionalization if eligibility is based on deficits in ADLs or IADLs B. Target Group 1. In order to be found eligible for the full range of FC and Waiver services, a person with a developmental disability must meet the federal definition of developmental disability. 2. According to the FC statute and regulation a person must only meet the state definition of DD to be eligible for the full Family Care package of services state definition is less stringent than federal definition C. Rulemaking The LTCFS determines eligibility for a Medicaid program. The instructions screeners are required to follow determine what information gets entered into the screen. That data is then used by the computer to determine eligibility. When instructions to screeners change in ways that affect eligibility the Wisconsin Court of Appeals has found that the instructions fall within the definition of a rule for purposes of Chapter 227 Wis. Stats., which means the agency must comply with the rulemaking procedures of Ch See Cholvin v. WDHFS, 313 Wis.2d 749, 758 N.W.2d 118, 2008 WI App 127. D. Inter-rater reliability One of the principal goals of computerizing the functional eligibility process was to remove the subjectivity of the human screener from the process. The theory is that screeners who become certified in the use of the screen and follow the detailed instructions will enter data into the screen consistently given the same human subject. Experience shows us that this has not happened. The subjectivity now occurs in the decisions human screeners make about what data gets entered into a screen which, in turn, determines eligibility. You will frequently find that different screeners (all certified and all using the same instructions) screening the same individual come to 4

5 different conclusions about ADLs or IADLs or level of risk or other important factors in the eligibility process. V. Representing a Client in a Functional Screen Case A. Discuss the screen in detail with the client to see if the screener missed anything. Ask for a rescreen and, potentially, a new screener. Result may very well change. 1. Areas to concentrate on: a. ADLs and IADLs b. Risk of institutionalization c. Health related services, behaviors communication and cognition 2. Review LTCFS Instructions to see if screener followed them B. For Family Care cases, compare client s needs to Family Care Regulation 1. Provides you with more paths to eligibility 2. gets around the problem of the need to show the person is at imminent risk of institutionalization C. For Non Family Care cases (Partnership, PACE, IRIS, CIP, COP-W) use DRW letter and DHS response to argue that the Family Care regulation contains the same criteria as is applied by the LTCFS computer logic. Then show client meets those criteria. D. Compare client s needs to definitions of level of care for nursing home eligibility found in DHS These are the default definitions of covered levels of care. They were drafted with nursing homes in mind and are therefore not easily applied to people who seek services in the community. ALJ s use them when they can find no other source of law to use. E. In a termination of eligibility case, make sure the screener did everything she was supposed to (i.e. meet with the client face to face; check all the right boxes in the ADL and IADL sections). If the screener did not do the screen properly reversal is appropriate with instructions to do the screen correctly. Can keep doing this until the screen represents an accurate description of your client s deficits. Client remains eligible until proper procedure for terminating eligibility has been followed. DHS has mandated the LTCFS as the procedure for determining eligibility so its contractors must comply with it. 5

6 F. Always get on the record the fact that the screener has no idea what criteria the screen is applying when it makes its decision. VI. Appendices 1. DRW Memo to Advocates, 12/3/ DRW Letter to DHS, 10/13/ DHS letter to DRW, 10/19/ DHA decision No. FCP 11/ DHA decision No. MCW 36/ Paper Screening Tool 6