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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