Riding the Healthcare Rollercoaster

By Cara Cookson

In re Jean Brett, 2011 VT 28

Sometimes, the “facts” of a case, as recited by us in the profession, and the “issues” as defined legal structures we’ve created, don’t quite give the impression of how the legal system might appear to a litigant.  Imagine this story . . .

You have a medical condition that leaves you homebound and requires long-term care.  Just picture what that would be like for a minute.  Since can no longer work and lack the benefit of great wealth, you go to the State for help and ask for in-home personal care five days a week, alongside some annual services like respite care.  Because she can, your adult daughter helps care for you the other two days of the week.  Let’s imagine that, like most of us, your daughter works full time during the week; so she’s only helping on her days off.  For two years, you owe nothing extra for the in-home and annual services. This is because your income ($2500 per month) is exempt.  It is exempt because the State determines that you can deduct the following monthly amounts $950 for your family’s upkeep, $185 for health insurance, and $1450 mostly as a credit to you for using your daughter for weekend care coverage.  Since no income remains after these deductions, no payments are due for the in-home care and services. 

Three months later, your income bumps up to $2670, and the State determines on the same formula that you must now contribute $45 per month because the deductions remain the same. 

A month later, the State notifies you that you now owe $1155 per month.  Your income has not changed, but according to Department of Disability, Aging and Independent Living (DAIL), you don’t actually need help seven days a week.  Besides, the services provided by your daughter on the extra two days, which you never asked the state for, can’t be deducted anymore—the rule being that if the State could be providing you with that service, you can’t deduct it.  (Neither the facts nor the letter from the State reveal how you are expected to live on the $977 that would remain after paying this “patient share” and the $538 per month you pay in other health insurance expenses.)

With help from Vermont Legal Aid, you appeal this determination to the Human Services Board in August 2009.  In January 2010, they hold a hearing.  In April 2010, the Board adopts its Findings and Order.  The Board reduces your patient share back to zero, finding that you do require the seven days a week of in-home personal care and ordering the Agency to deduct accordingly.

But then the Secretary of Human Services reverses the Board, because according to the Secretary, the Board can’t decide that you require seven days of care when you’ve never requested more than five days.  The Secretary didn’t actually address whether you actually do need seven days of care.  But remember, for the past three years, you have received seven days of care—five from the State and two from your daughter.  Regardless, the Secretary says that the law doesn’t allow you to deduct for services provided by your daughter, because again, it’s the type of service that the State theoretically provides.

(Insert a GIGANTIC footnote here, folks: the State appears to cap the number of hours that one can receive for this type of service . . . so even though this belongs to a category of service that the State provides, it probably wouldn't provide it here.  But since the Secretary here is only dealing in legal principles, this point is never raised.)

Back to imagining ourselves as our litigant here . . . .  You appeal to the SCOV, and in February 2011, a year and a half later, you lose.  But, says, SCOV, you have the option of applying for seven days of care, and then it’s up to DAIL to decide if seven days of care is medically necessary. Oh, yeah, and if it is, your daughter might be able to provide the service anyway if and only if the total hours exceed what the State would otherwise provide.

Fasten your seatbelt, dear litigant, and keep your arms and legs inside the car.

From a legal point of view, I completely respect and understand the reasoning that I will proceed to explain.  From a human point of view, I’m saddened.  I suppose we each have our own health care system frustrations these days, but I’m thankful to have never experienced one like this.

The legal issue is here how to define “noncovered” medical expenses under the Vermont Medicaid provisions.  Our litigant urges the SCOV to define “noncovered” as “not currently” covered—because the services provided by her daughter aren’t covered now, but they could be.  The State argues that “noncovered” means “not capable of being covered”—because deductions for noncovered care cannot include payment for services that the State would otherwise cover.  Long regulatory story short, SCOV finds the State’s argument more persuasive.

Keep in mind that the SCOV is not making the decision here about the merits of the litigant’s claims or what is most fair.  The SCOV is simply trying to figure out what the Legislature meant when it used the word “noncovered.”  The SCOV’s decision reflects its analysis that the legislation puts the Department of Human Services in charge of establishing benefits and does not give a Vermonter seeking services to become his or her own “architect of benefit administration.”  As the SCOV notes, if it ruled otherwise, it would open the gates to situations where applicants could purposefully under-request coverage through Medicare program to game the system for windfall deductions.  Vermonters should use Medicaid programs first.  This program is a resource of last and limited resort.  Given that most of the people in these cases are at or below a modest level of income, this may be a point that is more salient on paper than in practice. 

It all makes perfect sense from a legal and overall public policy standpoint, but what a long and unfortunate ride for Ms. Brett.  Hopefully now that SCOV has cleared this one up, applicants will be instructed to apply for all of the services they could possibly need or otherwise qualify for at the very outset, learn what services are capped, and then seek an accounting for the services that they require but can’t receive from the State.