Monday, April 7, 2014

Let’s Do It Again [on the Healthcare Rollercoaster]

In Re Brett & In Re McCool, 2014 VT 20

By Sara Puls

In 2011, SCOV blog covered In re Jean Brett, 2011 VT 28, in Riding the Healthcare Rollercoaster.  The post lamented over the disconnect in our healthcare system between seemingly rational healthcare laws and policies and the very real and very negative effect that these laws can end up having on Vermonters who are most in need.

Well, unfortunately, this healthcare rollercoaster ride ain’t over, folks!  Here, we have another lap around the track.  Three years after petitioner’s first appearance before SCOV, she is still fighting the state healthcare bureaucracy, just to ensure she can survive and meet her basic healthcare needs. We now add another passenger to this ride, another petitioner, faced with a similar unfortunate, bureaucratic battle.

First, here is a little background to try to set the stage for this convoluted ride. Petitioners are both elderly recipients of benefits through Vermont’s Medicaid-funded “Choices for Care” (Choices) program which provides home-based, long-term-care services to elderly or physically disabled Vermont adults.  The first petitioner is in her mid-eighties, disabled, and living with her daughter.  The second petitioner is in her mid-sixties struggling with multiple sclerosis and diabetes, and lives with her son.

Choices is (dis)jointly administered by Vermont’s Department of Disabilities, Aging, and Independent Living (“DAIL”) and Department of Children and Family Services (“DCF”). Applicants for these crucial services must satisfy both clinical and financial criteria, with DCF determining financial eligibility and DAIL determining clinical eligibility.  Choices covers “personal care services” including both assistance with activities of daily living (ADL) and assistance with instrumental activities of daily living (IADL). Personal care services through Choices are capped, but an individual may seek a variance.


Beneficiaries of Choices, depending on their income, may be required to pay a patient share. The patient share is calculated by subtracting from a beneficiary’s gross-monthly income certain federally mandated deductions.  Deductions are allowed for “necessary” medical expenses recognized by state law but “not covered” by Medicaid, including “non-covered” personal care.  So, when DCF calculates the patient share, they can deduct the cost of services that are both medically necessary and “non-covered.”

With that all in mind, here are the unfortunate facts.

The first petitioner’s original appeal arose in 2009 when her Choices patient share obligation jumped from $0 to $1,155. DCF decided the cost of her personal care services, beyond the five days a week covered by Choices, were not “medically necessary” and could no longer be deducted as “non-covered” medical services when determining her patient share.

Petitioner appealed to the Human Services Board, which found that the services were medically necessary.  The Secretary of the Agency of Human Services reversed that decision on a technicality, relying on the fact that petitioner had never actually asked for more than five days of personal care services, and thus the Agency would not grant relief that had not been requested.

The SCOV affirmed the Secretary’s decision, finding that petitioner should have asked DAIL for a variance for seven days rather than five, but noted that their decision specifically left open the question of whether, upon denial of a variance by DAIL, those services would be considered “non-convered” for deduction purposes.  (Spoiler alert: That is the question before the SCOV in this case.)

Pursuant to the 2011 SCOV decision, petitioner went back and requested a variance hearing.  Meanwhile, DAIL conducted their annual assessment of petitioner’s Choices plan, including her request for a variance and an increase for personal care services. DAIL denied this request, approving only about half of her requested hours.  

Petitioner then turned to DCF and requested a deduction for the cost of general supervision. DCF denied her request. She once again was forced to appeal to the Human Services Board, this time arguing that the additional hours were both “medically necessary” as well as “non-covered” because DAIL refused to grant the variance for the additional hours. The Board affirmed DCF’s patient share calculation, holding that petitioner did not meet the criteria for a deduction based on general supervision and that the additional requested hours could not be considered “non-covered” under the Medicaid plan, misguidedly citing to the SCOV’s previous Brett decision.

In August 2011, the second petitioner jumped on the same rollercoaster when DAIL reassessed her Choices plan and declined to approve all of her requested personal care services. Thus, her patient share also went up significantly. She sought reconsideration of her monthly patient share, which DCF refused. The Human Services Board affirmed, finding that her patient share could not be reduced based on a deduction for additional personal care services because they were “non-covered” under Medicaid.

The SCOV now takes up the first petitioner’s case (again), consolidating her appeal with the second petitioner. Both petitioners appeal from their respective Human Services Board decisions to not allow deductions from their patient-share obligations for “medically necessary” yet “uncovered” personal care services. Thus, the SCOV is finally forced to grapple with the question expressly left open in Brett: whether “coverable” services, requested but denied through the variance procedures, may be considered “non-covered” for purposes of allowing deductions from patient shares.

Citing to a recent federal court decision at odds with DCF’s position, the SCOV finds in favor of petitioners.  In interpreting “non-covered,” the SCOV follows the lead of recent federal court rulings, finding for a more inclusive definition meaning: “any medical service not paid for by Medicaid” rather than the more narrow definition DCF argued for: “services that Medicaid never covers and for which is never pays.”

Thus, the SCOV holds that requested expenses for medically necessary, personal care services, generally covered but not paid for, are in fact deductible from a beneficiary’s patient share.  The SCOV distinguishes the present case from the earlier holding in Brett by pointing out that here, petitioners had actually requested the services for which they were subsequently denied coverage.  Thus, the services at issue fall into the SCOV’s aforementioned definition of “not covered” and petitioners are entitled to deductions for those medically necessary services.

The SCOV stresses that these non-covered personal care services must be medically necessary (which it found evidence of for both Petitioners).  Moreover, the hold shows that whether DAIL refuses a variance does not constitute irrefutable evidence that a service is not medically necessary.


Accordingly, the SCOV reverses the Board’s orders in each of Petitioners’ cases and remands. With this decision, hopefully petitioners will be able to get off this horrible rollercoaster (for good this time) and focus on maintaining their health and wellbeing, as they should have been able to do all along.

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