Appeals & Due Process (or Lack There Of)

I try very hard not to post a great deal of personal commentary. Though today I just couldn't help myself...

The North Carolina Department of Health and Human Services reached a settlement agreement with the US Department of Justice yesterday (8/23) regarding the State's ADA and Olmstead violations surrounding the improper placement and warehousing of mentally ill and developmentally disabled adults in adult care / nursing homes across the state. [ read more... ]

It is a victory. --However big or small it may seem is moot; it is nonetheless a victory in the recognition of a tremendous need and an acknowledgement of individuals deserving of a quality life and community interaction. Definitely a step in the right direction and I commend everyone involved for their diligence and efforts toward a just resolution.

Not to rain on the parade, but...

What continues to be of concern however, is that while we scurry to "deinstitutionalize" one vulnerable population and invest in services and programs to assure these individuals are properly supported in community environments as they are entitled, we are failing to bolster all the many thousands of other special populations who are already living in integrated settings, be it at home with their families or in supported living, etc. -- the ones who are not institutionalized and don't want to be -- whose loved ones desperately want to keep them in their homes... And yet, it seems that the very supports that allow that to happen, that they also are entitled to, continue to be trimmed away.

It's the human shell game: while we move one population toward community stability, we are pushing much of the rest, slowly but surely, straight into crisis. 

Without proper supports and proper funding for those supports, the reality is that many families will be forced to make the hardest decision of our lives - surrendering our loved ones to the state either because we will have to quit our jobs to provide full time care or we just cannot physically nor mentally do it anymore because we're already hanging on by a bare thread or both (which puts us right back where we started from and begs to question: where will they go? Can't put 'em in nursing homes, that's how we got into this mess to begin with.)

I had an exchange today with a weary and frustrated fellow mom in the eastern part of NC who is about to embark upon the grueling appeals process fighting for proper services and supports for her adult DD children that her family depends upon for their very existence. 

Yes, I said existence - not just the quality of life, certainly not for convenience and most definitely NOT for financial gain; EXISTENCE.

Like filing an appeal because services for your DD child(ren) are being drastically decreased and you simply cannot make do with less because you already are.

Through this dialogue I realized that the critical issues surrounding Medicaid appeals for DD recipients and Due Process, or lack of, are still not understood even on a basic level and misinformation continues to circulate.

Unless something has changed since June 2012 when I sent out and posted my Open Letter and Outline of Critical Medicaid Waiver Issues (with supporting documents), there remains NO FAILSAFE CONSTITUTIONALLY PROTECTED DUE PROCESS APPEALS PROCEDURE for Medicaid Waiver recipients and families! 

If something has changed, someone please let me know; I will be thrilled to update.

Otherwise, currently this is the way it works - or doesn't, as the case may be (from the outline):

What do we know about the Due Process / appeal procedures under the new 1915(b)(c) Medicaid Innovations managed care plan?

• The current appeals process reflects a consumer appeals process to a unilateral hierarchy with no third-party authority to fairly referee.
• As outlined in the PBH brochure and 2012 Provider Manual (pgs. 62-67) is as follows:
• If consumer caregiver has recipient service hours and / or benefits reduced, suspended or terminated,
• consumer caregiver will receive a letter 10 days prior to changes via US Certified Mail a letter, outlining instructions to request a ‘Reconsideration Review’ through PBH (or respective LME/MCO)’s ‘Reconsideration Review Process’ within 30 days of notification.
• If Reconsideration Review, does not yield a response in favor of consumer, consumer caregiver can appeal to both DHHS and the Office of Administrative Hearings (OAH) by filing a request for a State fair hearing within 30 days.
• Once appeal is processed, consumer caregiver may participate in an informal attempt to resolve the conflict through the Mediation Network of North Carolina;
• if the conflict cannot be resolved in mediation or if consumer declines mediation, the matter will be set for hearing before an Administrative Law Judge (ALJ) at the OAH.
• The ALJ will hear the matter and evidence and make a recommendation regarding the consumer’s matter and forward the decision to DMA,
• where DMA will review and make a final decision.
• What’s the point? More time and State financial resources wasted.
• The only recourse following a final decision by DMA is for the consumer to retain counsel and file suit in Superior Court - an extraordinary expense of tens of thousands of dollars that the vast majority of consumer families, including mine, could not afford.
• It should be noted that under the new PBH model, service eligibility for DD Medicaid Waiver recipients is determined by the Supports Intensity Scale (SIS) which arguably provides a more detailed client pictorial, however, the formula specifics which equates a recipient’s level of need by the State’s representative LME is deemed “proprietary information’:
• LME representatives are required to sign and enter into a “Non-Disclosure Agreement” with PBH to protect the SIS methodology.
• This non-disclosure further prevents a fair an adequate appeals process for consumers as how can one effectively challenge information which is withheld from them?
• Proprietary information as such held by an agent of the State providing public services to citizens on behalf of the State - services which are funded by Federal and State monies is, in fact, a conflict of interest.
• This is NOT transparency and only perpetuates mistrust.
• Also noteworthy: PBH recently had a federal lawsuit against acting NC DHHS Secretary Delia and Mann [5:12-CV-46] suing to not only remove final decision-making authority from the State government entity who is to oversee and govern the managed care operation and all LME’s, but to seemingly assure totalitarian authority.
• It is my understanding that this case has since been withdrawn.

OAH, ALJs and the Regulator Reform Act of 2011.

• NC SL 2011-398, commonly referred to as the Regulatory Reform Act, became State Law July 25, 2011, granting final authoritative ruling to OAH / ALJs over Medicaid cases, effective January 1, 2012 and applies to cases contested after that date.
• SECTION 32. G.S. 108A-70.9A(f) reads as rewritten: "(f) Final Decision. – After a hearing before an administrative law judge, the judge shall return the decision to the Department in accordance with G.S. 150B-37. The Department shall promptly notify the recipient of the final decision and of the right to judicial review of the decision pursuant to Article 4 of Chapter 150B of the General Statutes."
• SECTION 33. G.S. 108A-70.9B(g) reads as rewritten: "(g) Decision. – The administrative law judge assigned to a contested Medicaid case shall hear and decide the case without unnecessary delay. The judge shall prepare a written decision and send it to the parties in accordance with G.S. 150B-37."
• Despite the January 1, 2012 effective date for OAH final authority over recipient disputes in Medicaid matters, federally-funded Medicaid Waiver programs by design have a “single agency rule” which dictates that a single state agency makes final decisions in Medicaid issues which is somewhat conflicting given the design of the new statewide managed care waiver, therefore Centers for Medicare and Medicaid Services (CMS) must grant an exception waiver to the State of NC to permit alternate authority. Currently, NC governing officials and other interested stakeholders are working toward mutually agreeable waiver submission terms, though to date, an agreement has not be solidified.
• Thus there remains NO appropriate fail-safe due process for recipients and families save the unrealistic and unfeasible hardship of unnecessary legal expenses and lengthy court battles.

So essentially, if you disagree with an LME's decision regarding Medicaid services / supports, you pretty much are appealing to the person who instructed the decision to be made in the first place. If that doesn't work out, you can opt to undergo mediation and have a hearing before an ALJ who will then advise DMA of their opinion, but ultimately DMA still has final say.

The confusion seems to come from in between the State Law and the federal hang-up with CMS. 

Yes, NC State Law 2011-398 does in fact grant OAH final decision making authority BUT because of the federal "single agency rule," CMS must have a specific waiver from the State of NC in order for the federal government to allow another governing entity (e.g. OAH) to make decisions which affect federal monies. 

If North Carolina officials cannot agree on the waiver language for exception and this exception waiver is not submitted and approved by CMS before the final implementation of the statewide 1915(b)(c) managed care waiver, the period for appeals will have been exhausted and we may all be stuck with whatever decisions are made for us.

If you are in an appeals process, keep your representatives and advocacy groups informed - and as always, feel free to forward to me anything you wish to share.

*Update : More on Appeals and Due Process (feedback on this post) from Disability Rights NC.