Medicaid Qualification Strategies
by Matthew Queen, Esq.
We have discussed that Medicaid provides a powerful tool for financing unreimbursed senior medical expenses. There are several different ways to qualify for Medicaid without impoverishing you and your spouse. This blog post provides an overview of some popular strategies elder attorneys use for their clients.
The concept of "spend down" is where a client receives too much income each month to qualify for Medicaid. While this may seem like a great problem to have, it's routine to be disqualified from Medicaid by only a few hundred dollars each month, which shuts down Medicaid and puts the client's whole estate at risk./p>
The classic spend down solution is to spend all of the client's monthly income on the nursing home or assisted living facility until the client qualifies for Medicaid. Assuming the client has zero other assets, then this works perfectly. In most cases, clients have other assets, such as CDs or a second home. There are a litany of ways to help these clients:
This quick list doesn't include every way to spend down the client's assets, but provides an idea as to how flexible planning can be. Remember, your situation may not permit some of these decisions, so remember to consult your attorney prior to making any changes to the titling of your assets.
You may be surprised (or relieved) to hear that children are not legally obligated to take care of their elderly parents. That's right. After slaving after the children for decades and going into debt to finance their educations, the children have an absolute right to let their parents wither away.
And smart lawyers use that to their advantage.
Children can enter into personal services contracts with their parents in exchange for a lump sum of money. This means that the child can estimate the amount of time and types of services the parent is likely to need, and then the parent can pay the child for those services in advance. Be aware, you can't simply say that your child is worth $500 per hour for their help with making the bed. You have to charge a reasonable rate for the services. The more in depth the services, the more money the parent can transfer to the child.
These contracts are scrutinized by the Department of Community Health, so make sure that they are written, detail the services to be delivered, are signed, notarized, and dated. The rates charged must be comparable to commercial rates in the elder care community. Further, the child will need to log the services performed for the parent.
Even if you opt for a DIY approach to the personal services contract, make sure to have it reviewed by an attorney. Contract law is a minefield and the last thing you want is for the DCH to invalidate a transfer of assets and suspend Medicaid because of a flaw in a homemade agreement.
You should really consult a lawyer before you start selling assets to qualify a family member for Medicaid. Be aware that there are tax penalties for cashing out retirement accounts. Although it may make sense in your situation, you need to be aware of what the Medicaid recipient could be liable for from the IRS come next April.
Further, there are penalties on cashing in certain types of annuities. Again, you need to be aware of what may happen to you if you cash in.
CDs are basically prohibited for Medicaid purposes, so these will have to be transferred or cashed in. The correct decision in this depends on your family's situation.
NEVER EVER DO THIS!
Or, put another way, feel free to hide assets to your heart's content. Just be aware that if you get one past Medicaid while applying for Medicaid for a family member, you're likely to be discovered in the next Medicaid audit. The DCH is fond of prosecuting for fraud. So, if you're interested in hiring an attorney to protect you from going to jail for fraud, then go ahead and hide assets.
Retirement Planning - What to do if your spouse gets sick
by Matthew Queen, Esq.
You and your wife have been retired for three years. You're doing fine with a dab of Social Security, IRA, and a 401k. Then, your wife has a stroke and she requires continuous care in the home. The unreimbursed medical expenses exceed $2,500 per month and you're starting to wonder how you're going to handle everything financially.
The good news is that you're not alone. This situation comes up frequently and there are strategies available to mitigate the financial and physical toll on the caretaker. This post explains how Medicaid planning can save your family's finances as well as potentially provide in-home care for your spouse.
Medicaid is a state and federal program that provides free healthcare for the blind, disabled, and the elderly. It is different from Medicare in that it pays for nursing home bills, some assisted living facilities, and in some states it even pays for in-home skilled nursing care. These services are cost prohibitive for many people.
Long Term Care Insurance
This is an insurance policy that will pay for the costs of in-home care, assisted living, adult daycare, respite, hospice, and nursing homes. In order to access these policies, the insured must generally be impaired from performing 2 activities of daily living (eating, bathing, cleaning, etc.). We encourage people to purchase these policies well in advance of actually needing them since the earlier you purchase the LTC policy, the less your monthly premium.
Several LTC policies do not take effect until 90 days after the insured starts receiving treatment covered under the policy. Also, all policies have limits. In other words, an impaired spouse only has a certain amount of time or money available under the policy.
Many LTC policies only cover 24 months of services and then expire. At that point, any additional needs are borne by the family.
Medicaid will cover care in the home, assisted living, and nursing facilities. If Medicaid can cover these costs instead of the family, then the family will be able to save tens of thousands of dollars and supplement the impaired family member's life with the available funds. In contrast to LTC insurance and Medicare, Medicaid is difficult to acquire and has plenty of strings attached.
However, if assets are transferred into a trust at least 60 months prior to the date of application for Medicaid, then the Department of Community Health (Georgia's Medicaid agency) will not include these assets as part of the Medicaid recipient's estate. In other words, proper planning can qualify you for Medicaid and preclude the State of Georgia from sending your family a bill.
The most common trust used is a Medicaid Asset Protection Trust ("MAPT"). A common MAPT is an irrevocable trust that contains two subtrusts. One trust holds real estate and other non-income producing assets, and the other holds income producing assets. There are numerous tax reasons for this that are beyond the scope of this article, but this allows the ultimate beneficiaries of the trust to inherit assets with a step-up in basis and pay less taxes upon the sale of the assets.
Any assets in the trust pass outside of probate and are distributed to beneficiaries in accordance with the terms of the trust. In many situations, this means that the family does not have to open up probate and that the terms of the trust remain private. Probate, in contrast, is part of open court and any items distributed via a traditional Will through the probate process are public knowledge.
Most veterans may also qualify for an additional benefit called "Veterans' Pension," and "Aid and Attendance." A detailed explanation of this will be provided in another post, but this benefit can generate as much as $1,700 per month of additional cash to assist with paying for elder care. This additional cash benefit can mean the difference between a private room and having a roommate, or whether or not the veteran can afford an experimental medical treatment.
Financing retirement requires a lot more than just saving a pile of cash. There techniques available that can turn the mysteries of how to afford the stresses of senior care into manageable issues.
Estate Planning and Asset Protection
by Matthew Queen, Esq.
How much money do you need to retire? This blog entry is designed to provide you with some ideas for how to plan for retirement on a conservative budget. First, we'll give you the bad news: the costs. Then, we'll give you the good news: solutions.
Out-of-pocket healthcare expenses are among the largest expenditures facing couples in their 60s. Without planning, these expenditures threaten to bankrupt many individuals who lived comfortably in the middle class while raising their families. Fidelity Investments estimates that a couple retiring at age 65 will spend at least $220,000 on out-of-pocket healthcare expenditures during their retirement. What's worse is that this estimate does not include the costs of assisted living or a nursing home. It's even harder if you retire early. Fidelity estimates that a couple retiring at age 62 should anticipate spending at least $271,000 during their retirement on out-of-pocket healthcare expenditures.
The Social Security Administration's data indicates that a man turning 65 today can expect to live until 84.3 years of age. A woman can expect to live, on average, until 86.6. This means that a couple retiring in their early 60s will have to prepare to spend around a quarter million dollars on healthcare over 20 years.
Then you factor in the cost of a nursing home or assisted living facility. The average monthly cost of a nursing home in the State of Georgia is $5,627.08, or $67,524.96 per year. If you or a loved one needs nursing home services, then men should expect to stay 2.3 years in the facility, and women should expect to stay 2.6 years. Anticipate spending over $160,000 on nursing home facilities.
Assisted living facilities in Georgia average about $2,500 per month, or $30,000 per year. The average length of stay in an assisted living facility is 22 months. If you or a loved one needs assisted living, then you should anticipate spending about $55,000 for the services.
Regardless, a single year in a nursing home for one spouse, plus a single year of assisted living for the other spouse, plus all out-of-pocket expenses means that a couple retiring at 65 needs greater than $300,000 in liquid assets just for healthcare alone. This does not include food, shelter, clothing, and entertainment.
Clearly, retirement is very expensive.
How to pay for this
Unfortunately, Medicare does not cover assisted living facilities.
Medicare does pay for nursing home expenses in some situations. In order for Medicare to cover a person's nursing home stay, the patient must:
Even then, Medicare only pays for up to 100 days for nursing home care. But this 100 day period is not totally covered by Medicare. Medicare charges a co-pay of $152 per day from day 21 through day 100.
Medicaid does cover nursing facility services. Medicaid also pays for Home and Community Based Services. This means that you may be entitled to have Medicaid pay for in-home skilled care. Certain assisted living facilities accept payment through Medicaid as well.
This means that Medicaid is among the most valuable benefits for seniors in order to assist with long term planning. The problem is that Medicaid is generally excluded from middle class couples who managed to save some money. Government agents will tell you that you are not entitled to Medicaid until you spend down all of your money and impoverish yourself.
This is not true. You do not have to impoverish yourself. There are a litany of planning techniques available to ensure that your family can access Medicaid in order to finance assisted living and nursing home services. A few of these techniques include:
We will unpack each of these techniques in separate posts. The important thing to remember is that financial planning with an attorney can manage these costs before they bankrupt you or your parents' estate.
Heroes and Victims - Georgia's Victim's Compensation Program
by Matthew Queen, Esq.
The Crime Victim's Compensation Program ("CVCP") provides up to $25,000 for victims of violent crime, people hurt trying to stop a violent crime, witnesses of violent crimes, and family members affected by violent crimes. These funds are intended to assist with the costs of crime scene clean-up, funerals, therapy, and other expenses arising from the violent crime.
How do you qualify?
Funds are distributed related to crimes reported to the authorities within 72 hours of the crime. The application must be received within 1 year of the crime unless good cause for delay is demonstrated. No compensation will be provided for applications greater than 3 years from the date of the crime.
You must complete a Georgia Crime Victims Compensation Application. The intended recipient of the funds must personally sign the application. A police report listing the victim or witness must be included along with at least one bill including the name of the intended recipient.
Can I get lost wages?
Yes, lost wages are compensable. Also, you may receive lost wages if the breadwinner of the household was injured in a violent crime. In order to receive financial assistance for lost wages, the following steps must be followed:
What does Victims' Compensation cover?
The $25,000 is not a lump sum check. There are numerous financial assistance caps.
Most notably, pain and suffering are not covered by Victim's Compensation. Those expenses should be brought forth in a civil suit.
Who is eligible?
Generally speaking, innocent victims, witnesses, family members, and people intervening in a crime are eligible.
Ineligible people include people who apply greater than 3 years from the date of the crime, parolees from felonies, victims who were committing a crime, victims who provoked the crime, and victims of property crimes. Aside from crime scene clean-up, there are no funds available for property damage arising from violent crime.
If you were injured in a foreign country that does not have a victim's compensation program, then you can apply for Georgia's program. However, if you were injured in a different state in the United States, then you have to apply through that state's program.
The injuring party does not need to be found guilty in a trial in order for you to receive benefits.
Georgia Medicaid Waiver Programs
by Matthew Queen, Esq.
Medicaid is a state and federal funded public healthcare program for the blind, disabled, and the elderly who meet strict financial criteria. Medicaid waivers are programs to help these individuals to live in their home or community instead of in an institution such as a nursing home or an intermediate care facility.
Every practitioner in the field of disability and special needs planning should be familiar with the largest waivers. This article makes no attempts to provide a comprehensive understanding of Medicaid waivers or even a complete listing of the waivers offered in Georgia. Rather, this serves as a starting point for understanding the largest waivers likely to affect a practitioner's clients.
Service Options Using Resources in a Community Environment ("SOURCE") is a Georgia Medicaid plan that links primary care with home and community-based services. This permits Medicaid resources to pay for care to be performed in the recipient's home in lieu of committing the recipient to an institution. Case managers, hired through the Department of Community Health, work with the disabled individual and their primary care physicians ("PCP") to integrate primary and specialty care in a way to reduce emergency room use, address gaps in Medicaid benefits, and reduce the possibility of expensive long-term institutional placement.
An individual is eligible if:
Why use SOURCE?
Individuals can elect SOURCE as their primary care provider under the Medicaid's Georgia Better Health Care Program. Members receive:
SOURCE also provides community services, such as home delivered meals, respite services, and personal care services. Further, the member is visited at least once every 90 days for an assessment and is contacted monthly to determine their health status.
SOURCE Providers' responsibilities
The case manager performs an assessment during a home visit and places the individual into one of three categories. Levels one and two include people with severe cognitive and physical impairments and level three includes individuals with at least one chronic condition and a need for medical monitoring. Standardized care paths exist for individuals in each level of care. Care paths evaluate the functionality of the individual and address practical concerns such as how to keep medical appointments, medication compliance, nutrition, key clinical indicators, and problematic behavior.
How to receive SOURCE
A good starting point for a SOURCE application is to call your local case management provider office and inquire about a SOURCE application. The following link provides a listing of all the local offices in Georgia: https://dch.georgia.gov/sites/dch.georgia.gov/files/imported/vgn/images/portal/cit_1210/23/55/127911927SOURCE_Case_Management_Providers0jan2012.pdf
The Community Care Services Program ("CCSP") is a Medicaid waiver program providing community-based services to eligible consumers as an alternative to institutional placement in a nursing home facility.
In order to receive CCSP services an individual must suffer from a physical impairment resulting in a doctor approving intermediate level of care. The individual must be Medicaid eligible or potentially eligible after admission to the CCSP. The individual then chooses community-based services in lieu of institutional services.
Why use CCSP?
A care coordinator assessed eligibility for CCSP and develops a plan of care with the PCP. The care coordinator ensures that the individual receives all available services, including but not limited to:
How to receive CCSP and costs
The individual calls 1-866-552-4464 for an assessment from the Area Agency on Aging. If eligible, then a care coordinator works with the individual to arrange a care plan and services. These services sometimes free, but some with higher assets may have to pay for some of the cost of their services.
What's the difference between CCSP and SOURCE?
Both SOURCE and CCSP provide home-healthcare services for the blind, disabled, and elderly. The difference is the SOURCE is only available to those who are already on SSI. CCSP recipients generally have Medicaid through their Social Security retirement benefits and then start to receive Medicaid benefits upon induction into the program. SOURCE, in contrast, requires the recipient to already receive Medicaid benefits through SSI.
CCSP has a waiting period in order to start receiving benefits whereas SOURCE does not. Individuals receiving Social Security or SSI may receive either CCSP or SOURCE, but SSI-eligible clients are better served with SOURCE.
The Independent Care Waiver Program ("ICWP") provides services to adult Medicaid recipients suffering from traumatic brain injuries resulting in severe physical impairments.
The ICWP is generally only available for Medicaid eligible people whose brain injury resulted in an impairment of at least one activity of daily living. The individual must be medically stable but at risk of placement in a hospital or nursing facility due to a lack of community-based support services.
To apply for ICWP, call 1-800-982-0411 ext. 3619. The representative will determine if the individual meets the eligibility requirements.
NOW & COMP
The New Options Waiver Program ("NOW") and Comprehensive Supports Waiver Program ("COMP") offer home and community-based services for people suffering from cognitive impairments or developmental disabilities. Developmental disabilities include cerebral palsy, epilepsy, autism, or other neurological problems.
Why use NOW & COMP?
Both programs offer a litany of services funded through Medicaid. A small sampling of services include:
The scope of services under these programs is fairly broad. The general purpose of the programs is to provide services to allow the individual to live in their home and participate in their community to the best of their abilities.
NOW & COMP Eligibility
To qualify for NOW & COMP, then individual must meet the following requirements:
How to receive NOW & COMP
Inquiries regarding applying for NOW & COMP should be directed to the Georgia Department of Community Health at 404-656-6862.
Established under the Tax Equity and Fiscal Responsibility Act (P.L. 97-248), the Katie Beckett waiver allows certain families to be excluded from Medicaid's financial eligibility requirements so that their disabled children can receive Medicaid benefits.
TEFRA/Katie Beckett Eligibility
The following conditions must be satisfied in order to qualify for the Katie Beckett waiver:
In order to satisfy the level of care requirement, the child's treating physician must complete clinical documents detailing the extent of the child's disability. The Georgia Medical Care Foundation ("GMCF") determines whether the child qualifies.
How to apply for TEFRA/Katie Beckett
Applications can be filed online at: https://compass.ga.gov/
The Georgia Pediatric Program ("GAPP") is a Medicaid program for medically fragile children. O'Brien & Feiler has litigated a number of GAPP cases and developed a comprehensive understanding of the program. As such, it shall be addressed in a separate posting.
Georgia Vocational Rehabilitation Program
by Matthew Queen, Esq.
If you or a loved one has a disability then you need to know about Georgia's Vocational Rehabilitation ("VR") services. VR services are for any citizen of Georgia with a physical or mental disability that impacts their ability to perform substantial gainful activity.
How do you enter the program?
First you need to fill out an application. Contact a representative in the Georgia VR program here: https://gvra.georgia.gov/
Who is Eligible?
An individual suffering from a physical, mental, or emotional disability that substantially interferes with the ability to work. If you receive SSDI or SSI benefits then you are presumed eligible for vocational rehabilitation services. VR services are extended in part based on financial need. No specific metrics are provided.
Businesses Can Receive Funding
In order to encourage businesses to employ qualified disabled people, the VR program extends financial assistance to any business without obligation to ultimately hire a person with a disability.
Employment specialists can be reached at: http://gvra.georgia.gov/
Tax Credits for Businesses
Two federal tax incentives are available for businesses making improvements for disabled employees. The first is a tax credit and the second is a tax deduction. A tax credit is subtracted from the business's tax liability after taxes are calculated. A tax deduction is subtracted from your total income before taxes to establish the taxable income.
Section 44 of the Internal Revenue Code ("IRC") provides for a tax credit for "eligible access expenditures" for businesses with $1,000,000 in revenue in the previous year or with 30 or fewer full time workers. This credit covers visual assistance expenditures, sign language interpreters, adaptive equipment, and removals of architectural barriers. Note, this credit does not apply to the costs of new construction. The maximum credit is $5,000 of eligible expenditures.
Section 190 of the IRC provides for a tax deduction of $15,000 per year for a business of any size performing new construction for a disabled employee.
A Primer on the Georgia Brain & Spinal Injury Trust Fund
by Matthew Queen, Esq.
"The spirit of this legislation was that it would provide for things that are not compensated for by other payers - private insurance, Medicaid, Medicare - or that were provided for only to a limited extent. It was not in any way intended to pay for medical care. It was meant to fill the gaps in the system where there was no one else providing resources." --David Goudelock, former President of the Brain and Spinal Injury Trust Fund Coalition and current Chairman of the Board of the Brain Injury Association of Georgia.
Georgia created the Brain & Spinal Injury Trust Fund ("BSITF") by constitutional amendment to provide compensation for neurotrauma not otherwise compensated via insurance. The BSITF is the payer of last resort after all other sources of funds are exhausted. The BSITF is funded through a 10% surcharge added to DUI fines. The trust fund provides up to $10,000 to assist with the costs associated with traumatic brain and spinal injuries.
What does BSITF cover?
Typical expenses paid for through the services and equipment designed to overcome disabilities resulting from the injury. There are no predetermined expenditures. Rather, expenditures are evaluated based on a number of criteria common to individuals suffering from brain and spinal injuries. The Governor must approve all expenditures out of the BSITF. Permissible expenditures include but are not limited to:
What about my medical bills?
The BSITF is a payer of last resort. BSITF provides funds after every other source of funds are exhausted, including Medicaid. Catastrophic care, such as emergency room visits or emergency surgeries, is generally not covered. While this may seem unfair, the limited funds are generally intended for goods and services not covered by other parties. >
Rachel Jones, a founding Commission member, stated the policy of the BSITF: "We never meant [Trust Fund money] to pay for hospital bills because that's what insurance is for. People usually get their hospital bills paid for. That's not the problem. It's after - the life issues you're left with - that are the problem. That's what the Trust Fund originally - the original members- agreed was what we wanted."
There is good news here. Since these funds are generally not used to pay for hospital bills, your creditors are unable to force you to apply for BSITF in order to satisfy your bills. Rather, these funds remain available to you regardless of your financial situation. In other words, BSITF distributions are protected from bankruptcy creditors, bill collectors, or other parties seeking financial satisfaction from your unpaid debts.
How do you receive funds?
In order to apply for a BSITF distribution, the patient must meet a number of criteria.
1. The patient must be a legal resident of Georgia for one year at the time of application. For individuals who move in with family who live in Georgia, additional options may be available.
2. Only six types of injuries qualify for funds.
a. Accidental fall
b. Accidentally struck by or against an object/person
d. Self-inflicted injury
e. Sports injury
f. Transportation accident
3. All other sources of treatment funds must be exhausted. The BSITF is mandated to be a payer of last resort. Other payers of last resort, such as Medicaid, must be exhausted prior to tapping the BSITF. The BSITF provides a listing of sources of funds that must be exhausted prior to accessing BSITF funds. Depending on the patient's situation, all or some of the following need to be exhausted:
e. Private Insurance
f. Short Term Disability
g. Long Term Disability
h. Vocational Rehabilitation
i. Veteran's Administration
j. Victim's Compensation Funds
k. Community Care Services
l. Independent Care Waiver Program
m. Mental Retardation Waiver Program
4. If the patient qualifies for BSITF assistance then the patient may receive up to $10,000 in funds over the course of his or her lifetime.
If someone believes they qualify for BSITF assistance, then there is a four-step process to receive funds.
1. Fill out an online application at: https://www.ciclt.net/sn/clt/bsitfa/app0010_qualify.aspx?ClientCode=bsitfa
2. The application is reviewed and forwarded to the Distribution Committee, which makes recommendations to the Commission.
3. The Commission then votes to adopt the recommendations made by the Committee. Assuming the individual's application was process without an error, it generally takes about 8 weeks from the date of application to reach the Commission.
4. Finally, the Commission sends its recommendation to the Governor for his final approval. This generally takes 4 weeks or more. After approval, the Commission send a letter providing the amount of the award to the recipient.
What does this mean for you?
Disability is a traumatic experience financially, socially, emotionally, professionally, and in just about every other way of life. If you are disabled or caring for a disabled person then you need to explore all programs and benefits available to you. While the BSITF provides minimal assistance, sometimes these funds make all the difference in the world. For example, the installation of a chair lift to help a disabled person up and down a two-story house is an essential need for many people, but they lack the funds to install one. The BSITF can help bridge the gap between a completely unlivable situation and a manageable lifestyle.
Medicaid Waivers - Georgia Pediatric Program
by Matthew Queen, Esq.
On occasion, children are born with disabilities so profound that it is unreasonable or impossible to expect a layperson to be able to care for their children without medical training. For example, if a child needs a sterile injection of medicine each hour, has to be fed through a gastrointestinal tube, and is unable to swallow his own saliva, then the only hope for the child's survival is for someone with medical training to assist the parent with these medical needs. Fortunately, the State of Georgia has the Georgia Pediatric Program ("GAPP"). This Medicaid waiver provides skilled nurses to assist parents with learning how to care for their special needs children. Sadly, GAPP is rescinded inappropriately, resulting in litigation with the Department of Community Health ("DCH").
This article examines the GAPP Medicaid waiver and provides a sampling federal and Georgia case law interpreting cases arising under this program. The purpose of this article is to illuminate the purpose of the law and to guide introductory research into litigating these cases. Nothing in this article should be construed as legal advice. This article is for educational purposes only.
What is GAPP and why does Georgia provide it?
Georgia participates in Medicaid. A state's participation in Medicaid is voluntary, but once the state decides to offer Medicaid then it is required to comply with federal law. In 1989, Congress amended the Medicaid Act to mandate that participating states provide Early and Periodic Screening, Diagnostic, and Treatment ("EPSDT") services to all Medicaid recipients less than 21 years of age. The EPSDT program mandates four types of services: (1) screening; (2) vision; (3) dental; (4) hearing. In addition, a catch-all provision states that Medicaid-eligible children must receive "[s]uch other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." This has been interpreted to mean that in addition to the four stated services, Georgia's mandatory EPSDT services must include services necessary to correct or ameliorate conditions discovered by the screening services regardless of whether Georgia provides those services to adults. Consequently, Georgia must cover "every type of health care or service necessary for EPSDT corrective or ameliorative purposes that is allowable under � 1396d(a)(1)-(29). Section 1396(d)(a)(8) provides for medical assistance in the form of "private duty nursing services.
According to federal regulations, the private duty nursing services "must be sufficient in amount, duration, and scope to reasonably achieve its purpose" and a state Medicaid agency limit these services based on "medical necessity." Thus, Georgia has an obligation to provide for private duty nursing services for Medicaid eligible children as a result of the federal EPSDT program.
The Centers for Medicare and Medicaid Services ("CMS") is an agency of the Department of Health and Human Services ("HHS"). The CMS promulgates the State Medicaid Manual ("CMS Manual") to set guidelines for the states in implementing Medicaid. The CMS Manual states that the EPSDT mandate is "a comprehensive child health program of prevention and treatment" designed to assure "that health problems found are diagnosed and treated early, before they become more complex and their treatment more costly." Regarding the limitations of services, the CMS Manual provides that EPSDT services must be necessary to correct or ameliorate defects and physical or mental illnesses and that the states may make the determination as to whether the services is necessary. Further, the CMS Manual provides that the states may establish the amount, duration, and scope of services required by the EPSDT mandate so long as any limitations are reasonable, the EPSDT mandate achieves its intended purpose, and the state's definitions of services encompass all medically necessary services needed to correct health conditions discovered in the screenings.
In Georgia, the agency charged with carrying out these mandates is the DCH. Although the 1989 amendment to the Medicaid Act requires Georgia to provide medically necessary private nursing duty services to correct or ameliorate Medicaid recipients' conditions, nothing in federal law states how Georgia must implement the mandates.
In order to meet the EPSDT mandate, the DCH created the Georgia Pediatric Program ("GAPP") in order to provide private duty skill nursing care to medically fragile children in their own homes. The GAPP Manual provides criteria for children to satisfy in order to qualify for private duty nursing services:
In summary, to receive skilled nursing services through GAPP, the child must be medically fragile, a caregiver must be available who is expected to assist in caring for the child, and the costs of skilled nursing services may not exceed the cost of institutional care.
How does a parent secure skilled nursing hours through GAPP?
Securing skilled nursing services through GAPP is a time consuming effort. Many things relating to GAPP applications begin and end with the child's primary care physician ("PCP"). The GAPP Manual states that the PCP determines the plan of care for he child and then the Georgia Medical Care Foundation ("GMCF") Medical Review Team evaluates what level of care satisfies the child's medical needs. The GMCF Medical Review Team then determines how many hours of skilled nursing care satisfy the child's level of care. Private duty nursing hours are reevaluated every three months in order to ensure that the child still needs the skilled nursing hours.
The parents or caregiver of the child must file a litany of documents with the GMCF. The child needs a physician's recommendation for pediatric care to be filed through for DMA-6 A and DMA-80. The treating physician must file a "Letter of Medical Necessity" every three months with each nursing hours authorization request. The caregiver also has to sign a "Freedom of Choice" form which provides that a member has the choice of either institutional or home and community-based services. The DCH requires the caregiver to submit a "GAPP Assessment Form," signed by the caregiver(s), the PCP, and any skilled nursing provider.
Finally, the caregiver(s) must file a "Letter of Understanding" to demonstrate comprehension of the GAPP policies and procedures. The "Letter of Understanding" states, inter alia, that the GAPP program "is designed to teach [the caregiver] on the care of my child's medical condition. I also understand that services may be reduced over time based on the medical needs of my child�"
Why would you litigate GAPP cases?
As demonstrated in part by the "Letter of Understanding," GAPP is intended to function as a teaching program for caregivers. If the child's condition stabilizes then the skilled nursing hours are reduced. This generates most of the litigation surrounding GAPP. Typical GAPP cases involve a medically fragile child receiving a certain number of skilled nursing hours, then GMCF determines that fewer hours are needed, and the caregiver(s) file suit against the DCH in order to keep the skilled nursing hours at their current level.
When reducing skilled nursing hours, the GMCF Medical Review Team notifies the caregiver(s) via an "Initial Letter of Notification." This letter provides notice of a reduction of skilled nursing hours and for ten days in which to request administrative review of the reduction. If no request is made or if the parent fails to provide additional documents for GMCF's review, then the determination is made final and the child's skilled nursing hours are permanently reduced or eliminated. If the GMCF issues a second denial then the caregiver(s) have thirty days in which to appeal their case for a hearing in front of a State administrative law judge. The second denial letter from GMCF states that if the ALJ rules against the GAPP member then the DCH may seek reimbursement for services rendered during the appeal process.
How do we litigate in front of an ALJ?
Litigation for GAPP cases is unique. The parties appear before an administrative law judge ("ALJ"). Georgia law states that when state agencies receive requests for hearings in contested cases not arbitrated by the agency itself, then the Office of State Administrative Hearings ("OSAH") presides. Hearings before OSAH are administered by an ALJ. The ALJ is afforded the powers to hold a hearing, administer oaths and affirmations, sign and issue subpoenas, rule upon offers of proof, regulate the procedures of the hearing, set the time and date of the hearing, dispose and grant motions, rule on matters of jurisdiction, and generally enforce the powers of a judge. The rules of evidence are enforced in the same manner as State and Superior Courts.
The Rules of the Georgia Civil Practice Act are potentially applicable to GAPP litigation. Georgia law provides that if a party to a case refuses an order of the ALJ in a proceeding then the ALJ may enforce the same rights and powers given to the court under the Civil Practice Act. However, the powers relating to the Georgia Civil Practice Act appear to relate to the powers to issue writs of fieri facias to collect fines and similar duties. Georgia law does not mandate the ALJ to enforce all of the rules provided under the Georgia Civil Practice Act. Therefore, whether an ALJ adheres to strict compliance with the Georgia Civil Practice Act is a matter of discretion.
Litigating before an ALJ extinguishes a party's administrative remedies. If a party is dissatisfied with a case's outcome then Georgia law permits for an appeal to Superior Court.
What important cases control?
In 2011 the 11th Circuit Court of Appeals issued a landmark ruling for GAPP litigation. In the case of Moore v Reese the Court of Appeals was presented with an alleged violation of the Medicaid Act by reducing Moore's private duty nursing care from 94 to 84 hours per week. In Moore, the Plaintiff, Moore, was a 16-year-old with profound disabilities stemming from a stroke she suffered in uterus. Her complex disabilities required chronic medical treatment and monitoring. The Plaintiff was enrolled part-time in an alternative school designed to accommodate her special needs. Her treating physician testified that there was not a "four-hour period in which Moore did not require the services of a skilled nurse or someone with comparable training and experience�" Her treating physician explained that his criteria for recommending 94 hours of skilled nursing was due to her acute respiratory distress, inability to move herself during sleep, rotovirus gastroenteritis, her chronic unmanageable seizures, and her recurrent acute urinary retention which required constant monitoring of her bladder size.
GMCF's doctor decided to reduce Moore's skilled nursing hours by 10 hours per week. GMCF relied heavily on the fact that Moore had not been to the hospital in over a year. Further, they also cited that many of Moore's conditions would not be affected by a reduction in nursing hours. For example, neither the gastroenteritis nor the urinary retention would be impacted by the reduction in skilled nursing hours. GMCF's doctor stated that the need to be repositioned during sleep was not a "home healthcare issue." Finally, GMCF stated that Moore's condition was relatively stable and her parents could take on the responsibilities of just over an additional hour each day without endangering Moore's welfare.
When asked how GMCF calculated the number of weekly skilled nursing hours for Moore, the doctor replied that the GMCF Medical Review Team ignores "caregiver's convenience" and strictly analyzes the medical necessities for the child. However, the doctor stated that calculations for medically necessary nursing hours do factor in the caregiver's work schedule and sleeping needs.
As a case of first impression, the Court of Appeals then analyzed other cases litigating the Medicaid Act. Although the cases failed to answer the issue before the Court, they provided the justification for its ultimate conclusion.
First, the Court addressed the case of Beal v. Doe. In Beal the Supreme Court weighed whether the Medicaid Act required Pennsylvania's Medicaid program to fund non-essential abortions. The plaintiffs in Beal never secured letters of medical necessity for their abortions and Pennsylvania denied Medicaid funding on the grounds the Pennsylvania requires a medical necessity certificate. The Supreme Court held that Pennsylvania did not violate the Medicaid Act by requiring letters of medical necessity because the state is required to provide funding for medically necessary services for low-income individuals. The Supreme Court further held that the language of the Medicaid Act permits broad discretion for the states to determine the standards of reasonable medical assistance consistent with the objectives of the Medicaid Act.
Next, the Court analyzed the case of Curtis v. Taylor. The Curtis Court addressed a class action lawsuit filed by plaintiffs in Florida challenging the constitutionality of Florida's Medicaid limitation to allow Medicaid recipients three doctor visits per month, exclusive of emergencies. Under the EPSDT mandate, states are required to provide physicians' services. The Curtis Court presented the issue as "whether the state may place limits on the amount of physicians' services available to a recipient, even though those limits may result in a denial of some medically necessary treatment, if most recipients do not need treatment beyond that provided." The Curtis Court held that a state may place limits on the amount of physicians' services and still reasonably achieve the intent of the Medicaid Act.
Then the Court reviewed the case of Rush v. Parham. The Rush Court confronted a situation where a transsexual male demanded Medicaid funding for a gender change surgery. The plaintiff's two treating physicians confirmed that the plaintiff was a transsexual and that only a sexual change surgery would treat the plaintiff. The State of Georgia countered that it had no obligation for pay for an experimental surgery. The District Court found in favor of the plaintiff largely due to the fact that the plaintiff's treating physicians determined the procedure to be medically necessary. On appeal, the Rush Court reversed the District Court and held that "a stated may adopt a definition of medical necessity that places reasonable limits on a physician's discretion." The Court then presented four holdings from Rush: "(1) a treating physician is not the sole arbiter of medical necessity; (2) the state may review the medical necessity of a treating physician's prescribed treatment; (3) the state may adopt a reasonable definition of medical necessity, even if it places some limits on a treating physician's discretion; and (4) the state at trial can present its own evidence of medical necessity in a dispute between the state and an individual Medicaid patient."
Finally, the Court reviewed Pittman ex rel. Pope v. Secretary, Florida Department of Health & Rehabilitative Services. In Pittman a Medicaid-eligible child sought for the state of Florida to pay for a liver-bowel transplant but the Florida Department of Health and Rehabilitative Services denied the request on the grounds that the procedure was experimental. However, Florida changed its position in district court and argued that 42 U.S.C. � 1396b(i)(1) allows states to deny coverage for organ transplants. The 11th Circuit court of appeals found for the plaintiff in holding that Florida lacked discretion to deny the medically necessary organ transplant. In short, the Pittman Court held that even if a state were permitted to deny organ transplants under � 1396b(i)(1), then this discretion was rescinded with the passage of � 1396d(r)(5).
The Moore Court then summarized its guiding principles.
The Moore Court articulates the issue in light of the case precedent as revolving around a dispute as to the amount of private duty nursing hours medically necessary for Moore. Thus, the Moore Court's analysis hinged on whether the DCH placed appropriate limits on Medicaid services without breaching its duty to provide private duty nursing care in a sufficient amount to achieve the Medicaid Act's purpose. In the end, the Moore Court held that the district court's summary judgment was improper because genuine issues of material fact existed over the amount of private duty nursing hours required resolution by a fact-finder at trial.
OSAH decisions can be found at: http://administrativelawreport.com/
OSAH-DCH-GAPP Redacted Opinion - Judge Miller Nov. 18, 2013
In a redacted opinion issued by Judge Miller on November 18th, 2013 OSAH considered an appeal by the Petitioner of DCH's decision to terminate skilled nursing hours provided by GAPP. The court held that DCH's decision to terminate hours was reversed.
The Petitioner was a fourteen year old teenager suffering from brain damage that severely impacted her cognitive functioning and resulted in quadriplegia, among other conditions. She was non-verbal, wheelchair bound, and incontinent. The court explained that GAPP is a teaching program designed to teach the child's caregivers how to perform necessary medical services when a skilled nurse is not present. As the medical condition stabilizes the skilled nursing hours are reduced and more responsibility is shifted to the caregivers. A service that begins as a skilled service may become unskilled as the caregivers gain familiarity with the process.
The Petitioner received 36 hours per week of GAPP skilled nursing services. GMCF's GAPP review team evaluated the Petitioner. The GMCF review team consisted of a pediatric physician and three or more GAPP review nurses with experience in pediatric nursing. The GAPP review team never met with the Petitioner or spoke with any of her treating physicians.
The DCH issue a Final Determination weaning the Petitioner's GAPP participation down to 0 hours per week over an 8 week period. DCH justified its position by stating:
- The Petitioner did not meet hospital inpatient-qualifying criteria;
- The Petitioner did not need care 24 hours per day;
- The Oxygen saturations hovered around 94% - 96%;
- Seizures had not increased;
- The Petitioner's condition remained stable;
- No evidence demonstrated that the documented hours were necessary;
- G-tubes are not so complex as to require a professional;
- There were no recent hospitalizations;
The Court held that the competence of the Petitioners' caregivers did not relieve her need for skilled nursing services in their entirety because the caregivers were unable to provide care for the Petitioner round the clock in perpetuity.
The Court acknowledged that EPSDT services are needed "to correct or ameliorate defects and physical and mental illnesses." Georgia defines "correct or ameliorate" as "to improve or maintain a child's health in the best condition possible, compensate for a health problem, prevent it from worsening, prevent the development of additional health problems, or improve or maintain a child's overall health, even if treatment or services will not cure the recipient's overall health."
In justifying its holding, the Court stated that it was undisputed whether the Petitioner was medically fragile; rather, the holding rested on the fact that the DCH failed meet its burden to show that the Petitioner no longer needed nursing facility level of care. The standard for nursing facility level of care is where an individual "must require service which is so inherently complex that it can be safely and effectively performed only by, or under the supervision of, technical or professional personnel such as registered nurses, licensed practical (vocational) nurses, physical therapists, and speech pathologists or audiologists." The Court found that the Petitioner's met the standard for nursing facility level of care based on the fact that she needed suctioning of her mouth to prevent asphyxiation, g-tube feedings, repositioning, and seizure monitoring. The Petitioner's family need periodic education and supervision to ensure they remain competent to perform the services on a daily basis.
With regard to the number of skilled nursing hours, the Court stated that the GMCF review team failed to consider the overall medical condition of the Petitioner or the frequency of care she needed.
Further, the Court specifically addressed the issue of respite care. The DCH's position was that respite care is not included with GAPP and that other Medicaid services, such as the Community Care Services Program, should provide respite care. The Court dismissed this argument and stated that respite care may be permitted by GAPP. The Court appeared concerned with the fact that the "respite care" characterized by the DCH was actually mandatory care required to correct or ameliorate a child's condition. In particular, while the Court acknowledged that skilled nursing care is not permitted for the convenience of the caregiver, it must be offered to minimize the risk of caregiver fatigue. A conclusion to the contrary would mean that it is unnecessary for the caregivers to sleep, maintain a household, or tend to other children. The Court also noted that caregivers who are fatigued may be unable to provide care to a medically fragile child. Thus, the state is required to address the risks inherent in caregiver fatigue or else the state failed to meet its Medicaid Act duties.
OSAH-DCH-GAPP Redacted Opinion - Judge Miller Jul. 10, 2013
In this case the Court reversed a DCH decision to reduce the Petitioner's skilled nursing care hours. The Petitioner was sixteen years old and received 84 hours of care per week. He suffered from Hurler's Syndrome, a complex disease affecting every cell of his body. The disease is progressive and is particularly detrimental to the lungs. The Petitioner required constant assessments during the day and night to ensure that his trachea did not collapse. The Petitioner's secondary caregiver was his father who had divorced his mother and lived outside the home. The primary caregiver worked two jobs as a nurse.
The Court explained that GAPP is a teaching program providing skilled nursing services until the caregivers acquire competency.
GMCF justified its reduction in skilled nursing hours based on:
- Oxygen saturations varied between 96% - 98%;
- Petitioner was able to turn himself during sleep;
- Petitioner's respirations were clear and unlabored.
- His overall condition appeared stable;
- No evidence demonstrated that the current number of hours were necessary;
- G-tubes are not so complex as to require skilled nursing;
- Petitioner attended school 5 days per week;
- Skilled nursing hours are not available for potential problems.
The Court explained that the DCG bears the burden of proof to terminate GAPP benefits and that the standard of proof is the "preponderance of evidence." In determining the number of hours of skilled nursing care, both the Petitioner and Respondent have a duty to introduce evidence of medical need. Even if a service is generally considered unskilled, it may become a skilled service if only a nurse can ensure that the unskilled care is achieving its purpose.
The Court stated that its holding rested in large part on the fact that the primary caregiver was a single mother who worked a full time job and a part time job in order to provide for her family. Her job required her to sleep while the Petitioner was awake and she was working while he slept. As such, there was no realistic way for her to provide nursing care, skilled or unskilled, for the Petitioner. Thus, the caregiver's work schedule had to be considered when determining the number of skilled nursing hours medically necessary to correct or ameliorate the Petitioner's medical condition.
This case concerned a Petitioner appealing the DCH's decision to reduce GAPP skilled nursing care. The Petitioner was a five year old child with a mitochondrial disorder. He needed a tracheostomy and a ventilator to survive and was dependent on others for all aspects of care. The Petitioner received 84 hours per week of skilled nursing. The GMCF determined that he only needed 77 hours per week based on the following reasons:
- Skilled nursing may be reduced over time based on the medical need of the member;
- The child's hours had been the same for a long period of time;
- The nurse's notes indicated that his health condition was stable;
- No evidence indicated that the current hours were medically necessary;
- Skilled nursing care services should be reduced when the medical condition of the member stabilizes.
The Court reversed the DCH's determination based on several factors. First, the Petitioner's treating physicians all testified in their affidavits that he needed the skilled nursing care. Second, a condition a that does not ordinarily require skilled services may require them because of special medical complications. Third, the Petitioner had been hospitalized recently for increased seizure activity. As such, the Court concluded that the DCH's decision was not reasonably sufficient in amount, duration, and scope to treat the Petitioner's needs.
In this case the Petitioner challenged a decision by the DCH to reduce GAPP skilled nursing care. The DCH rested its reasoning on the following allegations:
- Skilled nursing hours may be reduced over time based on the medical needs of the member and the caregiver's understanding of the needs;
- The child's condition has been stable;
- No evidence supports retaining the hours at their levels;
- G-tubes are not complex enough to require skilled nursing;
- Members in GAPP must meet the same level of care as for admission to a hospital or nursing facility.
However, the Petitioner's treating physician stated that the Petitioner requires enteral feeding of at least 26% of his daily calories, suffers from nasopharyngeal and tracheostomy aspiration, and has initial phases of a regimen of medical gases. Further, the treating physician testified that the Petitioner requires constant one-on-one care.
The Petitioner's parents testified that they did not have additional time to devote to caretaking. The Court dismissed this testimony in light of the fact that the convenience of the GAPP member is not a factor. The Court reiterated that GAPP is not intended to be a permanent solution for parents.
The DCH provided evidence that on an average day the nurse would work a six-hour hift and only perform a single skilled service. This met the DCH's burden of proof that the current levels of care were too high.
Therefore, the Petitioner had to demonstrate that the DCH's proposed hours were not reasonable to achieve the Medicaid Act's purpose. The Petitioner submitted the testimony of the treating physician demonstrating that the Petitioner receives at least 26% of his calories per day via g-tube, has a nasopharyngeal and tracheostomy aspiration, has initial phases of regimen involving medical gases, and is involved in rehabilitation for his bowel and bladder training. Each of these activities qualifies as a skilled nursing service. Further, the Court considered the rule that unskilled services can rise to the level of skill services if the underlying medical condition(s) are complex. The treating physician stressed that the Petitioner's needs were extremely complex and his overall condition remained fragile. Thus, the Court concluded that the Petitioner's plan of care required the skills of a nurse even though the individual services may not be skilled. As a result, all of the care provided to the Petitioner qualified as skilled care. The Court held that the DCH's reduction was improper.
OSAH-DCH-GAPP-Redacted-Malihi May 28, 2013
This case involved an 8-year-old Petitioner who suffered from severe brain injuries resulting from a near-drowning. These brain injuries resulted in multiple other conditions, such as seizures and quadriplegia. His primary care needs revolved around his constant need to protect his airway. As such, two of his treating physicians testified that the Petitioner required the skilled nursing hours to prevent hospitalizations. In addition to his GAPP hours, the Petitioner received 8 hours of physical, occupational, and speech therapy per week. The Petitioner attends a special needs school for six hours per day five days per week with a personal nurse.
The GMCF reduced the Petitioner's nursing hours based on the following criteria:
- Skilled nursing hours should be reduced over time based on the medical need of the member;
- The child's condition has been stable for 3 months;
- No evidence documents the necessity of the current amount of hours;
- G-tubes are not complex enough to warrant skilled nursing care;
- Skilled nursing does not prevent seizures;
- The seizures decreased in response to the new medication;
- The Petitioner is able to attend school for 30 hours per week;
- The Petitioner has not been to the hospital recently.
The Court reversed the DCH's decision to reduce the Petitioner's skilled nursing hours. The Court noted that while the State policy is that the primary caregiver should gain competency to care for the child, this policy does not replace the State's obligations under the Medicaid program. In particular, the Court relied on the Hunter case which gave greater weight to the testimony of the Petitioner's treating physicians over the testimony of the DCH's physicians due to the treating physicians' experience with the Petitioner and their specialized knowledge of his conditions. The Court also noted that the Petitioner was totally dependent upon others for even the smallest details of care. Thus, the Petitioner's condition was likely to deteriorate with fewer hours. As such, the skilled nursing hours were upheld.