* * * * * * * * * * * * * 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 LORRAINE EBERT FRASER, 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 November 17, 2006, the Appellant applied for Medical Assistance services under the Waiver for Older Adults program (OAW). On December 19, 2006, 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 March 15, I held a hearing on September 12, 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 he 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 Maryland Medical Assistance Medical Eligibility application, dated 11/17/06 DHMH # 2 Adult Evaluation and Review Services (AERS) Comprehensive Evaluation and Recommended Plan of Care, dated 11/17/06 DHMH # 3 Physician Review, dated 12/7/06 DHMH # 4 Letter to Pamela Dixon, Montgomery County Health & Human Services, from Jeffery M. Zale, M.D., Medical Director LTC and Managed Care, Delmarva Foundation for Medical Care, Inc., dated 12/13/06 DHMH # 5 Notice of ineligibility, dated 12/19/06 DHMH # 6 Letter to DHMH from the U.S. Department of Health and Human Services, dated 3/28/00 DHMH # 7 Maryland s Application for a 1915(c) HCBS Waiver, dated 4/1/06 DHMH # 8 Letter to DHMH from the U.S. Department of Health and Human Services, dated 9/21/06 The Appellant submitted the following documents, which were admitted into evidence: App. # 1 - Letter from Felix Sokolsky, M.D. App. # 2 - Letter to the Appellant from the Social Security Administration, dated 1/12/06

3 Testimony The following individuals testified on behalf of the Department: Barbara Best, R.N., Nurse Reviewer, KePro 1 Barry Friedman, M.D., Medical Director, Long-Term Care and Finance Section, DHMH, accepted as an expert in medicine. 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 a seventy-three year old male diagnosed with Arterial Sclerotic Cardio Vascular Disease, Peripheral Vascular Disease, and Coronary Artery Disease. He had an angioplasty in He has angina, high blood pressure, hyperlipidemia, lower back pain, and sciatica. He has glaucoma in his right eye from which a cataract was removed. His left eye is blind as a result of a detached retina. He has Gastro Esophageal Reflux Disease. He had surgery for a herniated lumbar disc and arthroscopy on his left knee. He has little sensation in his left foot, which impedes his ability to walk, and he uses a cane for stability. 2. The Appellant takes oral medications for his medical conditions; his medication regimen is stable. 3. The Appellant is able to feed himself, transfer to the bed or a chair without assistance, groom himself, use the toilet himself, walk, prepare light meals, handle his own money, and use the telephone. The Appellant needs assistance dressing, changing clothes, bathing, grocery shopping, traveling beyond walking distance, taking medications, and planning and decision 1 At the time of the application in this matter, Ms. Best was employed by the Delmarva Foundation for Medical Care, Inc., the Medicaid Program s former utilization control agent. As of February 2007, Ms. Best becamemployed as a nurse reviewer for KePro, the Medicaid Program s current utilization control agent.

4 making. The Appellant requires complete assistance with doing light chores. The assistance required by the Appellant can be provided by a responsible adult. 4. The Appellant completed a mini-mental examination and scored twenty-two out of thirty points. 5. As of the date of the application and of this hearing, the Appellant did not have any unstable medical conditions requiring daily monitoring and he did not require daily services by a medical professional for his conditions. 6. As of the date of the application 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 his activities of daily living, there is no evidence that he 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 a pill box to help with his medications. DHMH explains that the federal government did not approve funding for waiver

5 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. Barbara Best, R.N., Nurse Reviewer for KePro, 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 least five days per week; or, (iii) daily monitoring of an unstable medical condition that requires the judgment of a nurse or physician. Ms. Best s testimony on this point was corroborated by that of Dr. Barry Friedman. 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 gentleman with a number of conditions. He explained that the Appellant requires assistance with some of his 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 in December 2006, the time of the

6 application. The Appellant s daughter noted that some information was missing or incorrect on the application. She explained that she and the Appellant felt the interview did not go properly. The Appellant s daughter agreed, however, that the Appellant does not need to be placed in a nursing home. She stated that he forgets to take his pills. 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 he 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. He 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 his activities of daily living and in his 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 he 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 to only through institutional facilities under the supervision of licensed health

7 care professionals. Md. Code Ann., Health-Gen (2005); COMAR B(31). ORDER I ORDER that the decision of the Department is AFFIRMED. September 18, 2007 Date Decision Mailed Lorraine Ebert Fraser Administrative Law Judge 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.

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

* * * * * * * * * * * * * DECISION STATEMENT OF THE CASE ISSUE SUMMARY OF THE EVIDENCE FINDINGS OF FACT DISCUSSION CONCLUSIONS OF LAW ORDER XXXX, APPELLANT, v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE BEFORE T. AUSTIN MURPHY, AN ADMINISTRATIVE LAW JUDGE OF THE MARYLAND OFFICE OF ADMINISTRATIVE HEARINGS. OAH No.: DHMH-MCP-012-05-49911 DECISION