Monday, November 30, 2009

Ending Community Support Services not legal for those under age 21

This is an update and a request for your help on illegal due process violations in the ongoing cuts being made in Medicaid services, particularly in community support services, Level III and IV residential treatment, and private duty nursing, but also in CAP-DD services. Settlement discussions failed in DTM v. Cansler, the pending class action against the state medicaid agency for due process violations in denying mental health and developmental disability Medicaid services.;

The case is now pending in the federal appeals court but we are gathering evidence for when the case goes back to the lower court. The case has already led to some improvements in the way the agency handles Medicaid services. However, a number of big problems remain, particularly in the way the cuts to medicaid services are being implemented.

For example: 1) Families and providers were told verbally and in letters that Community Support and residential treatment are ENDING for ALL cases, even though this is NOT LEGAL for Medicaid recipients under age 21, because of federal EPSDT requirements. New requests for these services are still permitted and those who still need the services should still be getting them, even after January 1 and even after next June 30.

2) Because of the misinformation that CSS and Level III and IV services are ending, providers are going out of business or no longer offering these services, at least not to children not already getting the service. As a result children are losing or being denied these services without any notice or appeal rights, because of failure of the provider to even request that the service continue (or start), based on misinformation from the state, value options, or the LME. If the familiy finds a new provider to request that the service continue, the service is illegally interrupted and not continued pending appeal if that request is denied.

3) Doctors, case managers. and famiies are being told over the phone that they have to accept reduced services or withdraw requests for services or they could lose even more services or face illegal financial payback requirements. These oral reductions and denials are happening without written notice and are often based on misinformation about what the rules are (eg for PDN or CAP-DD services or CSS). This is happening even though DMA or EDS or Value Options has not talked to the clincians or seen any of the medical records. For example, providers are told that CSS cannot be provided in the school and cannot be provided for more than a short time or for more than a few hours a week. All of these statements are illegal under EPSDT. 3) If a written notice is sent it is often confusing and does not contain correct up to date information about the appeal process.

4) If the family appeals, they are being given the same sort of misinformation and intimidation at mediation sessions. For example, families of adult recipients have been told the family must pay medicaid back if they lose the appeal. Or they are told it doesnt matter what the ALJ decides because the agency makes the final decision. These are not true statements.

5) Services are being interrupted or reduced pending appeal because the authorization to continue the service is not promptly entered into the computer (Provider connect at value options website).

6) DHHS and OAH are not making clear to families that they can request an in person hearing in their local county instead of going to raleigh or doing the hearing by phone

7) At the OAH hearing, DHHS continues to argue that new evidence about the recipients current need for the service is not relevant, even though the legislature just said otherwise. The agency lawyers are also saying that the only period at issue on appeal is the period of time for which prior approval was requested, even if that period is now in the past.

8) If the ALJ rules for the medicaid recipient, DHHS is reversing that decision nearly 100% of the time even though the ALJ's findings of fact are supposed to be binding in most cases. The family then has to go to court.

9) LME's have told families there is a freeze on CAP-DD enrollment, even though this is not true. LME's are not providing any written notice or right to appeal if the family objects to where they are on the waiting list. If you know of examples of these or similar problems involving persons with a mental health or DD diagnosis, please contact Lauren Rico in this office. Her email is If you know of examples of these or similar problems involving private duty nursing, please contact Jennifer Bills at Disablity Rights NC. Her email is Thanks in advance for your help. Douglas SeaSenior AttorneyLegal Services of Southern Piedmont1431 Elizabeth AvenueCharlotte NC 28204dougs@lssp.org704-971-2593704-376-8627 (fax)