North Carolina in the Office Of

NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF SURRY 01 DHR 0122

DONNA RAY SNOW ) Petitioner, ) ) v. ) DECISION ) NORTH CAROLINA DEPARTMENT OF ) HEALTH AND HUMAN SERVICES ) Respondent. )

This contested case was commenced by the filing of a petition on January 24, 2001. A hearing was conducted in Dobson, North Carolina, on July 23-24, 2001. The record was held open until October 19, 2001, to allow the parties to submit proposed recommended decisions. The Petitioner was represented by Pauline F. Laubinger and Gretchen Aycock. Belinda A. Smith, Assistant Attorney General, represented the Respondent.

BACKGROUND

Petitioner applied for the intermediate care facility for the mentally retarded (ICF-MR) level of care in order to become eligible for the ICF-MR CAP Program and was denied by Respondent on January 5, 2001. The requirements for meeting this level of care are set forth in 42 C.F.R. 435.1009 which defines persons with related conditions as they concern institutional status. Petitioner meets the three of the four elements that define persons with related conditions.

Respondent admitted in its responses to Petitioner’s requests for admission that petitioner meets three of the four elements that define persons with related conditions. (Pet. Ex. 5)

A person aggrieved is one who is affected by an administrative decision. The administrative decision in this case was the reconsideration review decision issued by Jill Cramer on January 5, 2001. Respondent filed a copy of this decision in its Transmission of Document Constituting Agency Action. The decision sets forth the four criteria for qualifying for the ICF- MR level of care and puts the person aggrieved on notice of the issue to be heard in a contested case hearing. Respondent notified petitioner of its issue for hearing in its prehearing statement.

Whether petitioner’s condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for these persons.

FINDINGS OF FACT

ICF-MR CAP WAIVER AUTHORITY 1. The parties stipulated on the record that notice of hearing is proper.Petitioner applied for the intermediate care facility for the mentally retarded (ICF-MR) level of care in order to become eligible for the ICF-MR CAP Program and was denied by Respondent on January 5, 2001. The requirements for meeting this level of care are set forth in 42 C.F.R. 435.1009 which defines persons with related conditions as they concern institutional status. Petitioner meets the three of the four elements that define persons with related conditions.

2. 42 U.S.C. § 1396n(c)(1) provides as follows:

The Secretary may by waiver provide that a State plan approved under this title [42 USCS §§ 1396 et seq.] may include as "medical assistance" under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan. For purposes of this subsection, the term "room and board" shall not include an amount established under a method determined by the State to reflect the portion of costs of rent and food attributable to an unrelated personal care giver who is residing in the same household with an individual who, but for the assistance of such care giver, would require admission to a hospital, nursing facility, or intermediate care facility for the mentally retarded.

3. 42 C.F.R. 441.301 requires a request for a waiver to provide, inter alia, that the services are furnished “only to recipients who the agency determines would, in the absence of these services, require the Medicaid covered level of care provided in . . . an ICF/MR (as defined in 440.150).”

4. North Carolina obtained a Medicaid home and community-based services waiver and administers its ICF-MR CAP program pursuant to that federal authority. See Arrowood v. DHHS, 353 N.C. 351, 543 S.E.2d 481 (2001). The waiver constitutes the federal law that North Carolina must follow. The purpose of the waiver is “to provide home and community-based services to individuals, who but for the provision of such services, would require the ICF level of care for the mentally retarded or persons with related conditions.” N.C. Waiver Sec. 2.

5. Intermediate care facility for mentally retarded means, in pertinent part,

an institution (or distinct part thereof) for the mentally retarded or persons with related conditions if-- (1) the primary purpose of such institution (or distinct part thereof) is to provide health or rehabilitative services for mentally retarded individuals and the institution meets such standards as may be prescribed by the Secretary; (2) the mentally retarded individual with respect to whom a request for payment is made under a plan approved under this title [42 USCS §§ 1396 et seq.] is receiving active treatment under such a program.

42 U.S.C. § 1396d(d) (2001).

6. In order for an intermediate care facility for the mentally retarded to qualify for federal financial participation, that is, to be paid for by Medicaid, it must provide active treatment services for each client. 42 C.F.R. 483.440, and 435.1009. Active treatment is defined as follows:

Each client must receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in this subpart, that is directed toward--

(i) The acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and

(ii) The prevention or deceleration of regression or loss of current optimal functional status.

42 C.F.R. 483.440(a) (2001).

7. A person without mental retardation must meet the definition of persons with related conditions in order to be eligible for the ICF-MR level of care.

Persons with related conditions means individuals who have a severe, chronic disability that meets all of the following conditions:

(a) It is attributable to –

(1) Cerebral palsy or epilepsy; or

(2) Any other condition, other than mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for these persons.

(b) It is manifested before the person reaches age 22. (c) It is likely to continue indefinitely.

(d) It results in substantial functional limitations in three or more of the following areas of major life activity:

(1) Self-care.

(2) Understanding and use of language.

(3) Learning.

(4) Mobility.

(5) Self-direction.

(6) Capacity for independent living.

42 C.F.R. 435.1009 (2001).

Also see Partlow v. Indiana Family and Social Services Administration, 717 N.E.2 1212 (1999).

8. Mental retardation is defined as having an IQ of 70 or below with impairments in adaptive functioning. (T pp 37-38)

9. Petitioner completed high school and received a degree in business administration from Surry Community College. Her verbal IQ score in 1989 was 84, indicating current level of functioning in the low-normal range. Petitioner does not have a diagnosis of mental retardation. (Pet. Ex. 3) Petitioner’s condition of Friedreich’s Ataxia has not resulted in impairment of general intellectual functioning.

10. A person with mental retardation will always have impairments in adaptive functioning. The degree of impairment is correlated with the level of general intellectual functioning and educational opportunities. (T pp 66-67, 90-94)

11. Adaptive behavior refers to one’s effectiveness in areas such as social skills, communication, and daily living skills, and how well a person meets the standards of personal independence and social responsibility expected of her age. Adaptive functioning is influenced by personality characteristics, motivation, education, and social and vocational opportunities. (T pp 89-94)

12. Petitioner’s effectiveness in meeting the standards expected for a 38 year old woman is hampered solely by her physical limitations caused by the neurologically degenerative disease, Friedrich’s Ataxia. (T p 63) 13. Petitioner is completely dependent upon others in her daily living skills, but it is not because of impairment correlated with her level of intellectual functioning. (T p 63)

14. Petitioner’s effectiveness in communication is impaired, but not for lack of language skills. Her testimony demonstrated that she is articulate in her use of the English language. The use of her voice and breath control is impaired not because of impairment correlated with her level of intellectual functioning, but because of the physical impairment she experiences due to Friedrich’s Ataxia. (T p 67)

15. Petitioner’s social skills are not impaired. Her ability to use those skills is limited due to her homebound condition. In a 1989 evaluation petitioner was described as having many friends that she goes out with. Petitioner does not need to be taught appropriate social skills. (Pet. Ex. 3)

16. Petitioner is a young woman who can learn and speak and do anything so long as she has assistance. (T p 170)

17. Petitioner exhibits personal independence and motivation in her statement that everything she’s received with respect to services, she pursued herself. (T p 244) She heard about CAP-MR and applied for it. (T p 227-28) She initiated the appeal of the EDS denial. (T p 234) In her 1988 assessment petitioner went to Crossroads because she was bored at home. (P Ex. 3) To the extent she does not need to engage in physical activity, petitioner is self-sufficient.

18. Petitioner is meticulous, organized and goal-oriented. She can manage and direct everything that concerns her life. She can manage her finances up to the point of writing, which she cannot do because of her physical condition. (T pp 266-67)

19. A mentally retarded person requires specialized training to acquire age appropriate behaviors in the areas of social skills, communication and daily living skills. (T pp 67, 89-94 ) Such training would be a continuous process that would be required time after time after time. A person with cognitive deficits receives training for acquisition of skill, generalization of skill, and maintenance of skill, which means the person continues to use the skill and continues to receive prompts. (T p 158)

20. Petitioner does not have cognitive deficits, which means that once she learns a skill she would not require continuous training to maintain the skill. The use of adaptive equipment or adaptive ways to make a person more independent does not constitute skills development. (T p 160)

21. Active treatment is a medical field. (T p 161)

22. Water exercises and range of motion exercises on petitioner’s hands do not constitute continuous active treatment within the meaning of the ICF-MR definition. (T p 92)

23. Petitioner seeks to be put on the CAP-MR waiver program in order to receive more personal care services and durable medical equipment. 24. Petitioner’s adaptive behavior is not similar to that of mentally retarded persons because each deficit would not exist but for her physical disease. There is no evidence to support a finding that absent the disease, petitioner’s effectiveness in meeting the standards for her age would be impaired. (T pp 66-67)

25. Petitioner does not have a physical therapist or occupational therapist, nor is she receiving such therapies.

26. Personal care services is custodial care and does not constitute active treatment such that would qualify for ICF-MR level of care. (T p 60)

27. The use of an appliance such as a leg brace is not active treatment such that would qualify for ICF-MR level of care. (T p 60)

28. Friedreich’s Ataxia does not alter the intelligence; the pathology is in the spinal cord, not in the brain which is in contrast to mental retardation. Friedreich’s Ataxia is not a related condition similar to mental retardation. (T p 130)

29. Petitioner does not require behavior training, she does not need to learn things in rote motion. Petitioner’s deficits in activities of daily living are due to her physical limitations.

30. The water therapy and equipment needs listed in petitioner’s MR2 are not active treatment. (T p 92)

31. There are no personal skills that petitioner is developmentally incapable of acquiring because she has the cognitive ability to understand all these things. (T p 94)

32. Petitioner is not similar to a mentally retarded person in that her cognitive ability is not impaired. (T p 94)

33. Petitioner’s deficits could be compensated with a personal care attendant and support services in community. She has no behavior problems and has adequate behaviors. (T p 93)

34. Active treatment is fairly rigorous throughout the day as opposed to an hour of physical therapy. (T p 131)

35. Active treatment is a basic requirement for ICF-MR level of care. Petitioner does not need active treatment for her adaptive behavior deficits. (T p 155)

36. Physical therapy, water therapy, and occupational therapy, are examples of active treatment, but not continuous active treatment. (T p 156)

37. Petitioner, as an educated person with a two year college degree, would not need to be taught how to do personal functions as in the ICF-MR level of care. (T p 157) 38. Learning how to use a new piece of equipment does not constitute the continuous process of active treatment. (T p 158)

39. A person with adaptive behavior deficits that are caused by physical limitations lacks the potential to benefit from active treatment. (T p 160)

40. DHHS is authorized and empowered to establish a Medical Assistance Program from federal, State and county appropriations and to adopt rules and regulations under which payments are to be made in accordance with the provisions of Part 6, Chapter 108A of the General Statutes. G. S. § 108A-54.

41. The Medical Assistance Program is governed by the federal Social Security Act. G. S. § 108A-56.

42. The community alternatives program for persons with mental retardation and other developmental disabilities (“CAP-MR”) is a waiver authorized under the provisions of section 1915(c) of the Social Security Act.

43. The purpose of the ICF-MR CAP waiver is to provide home and community- based services to persons who, but for the provision of such services, would require placement in an intermediate care facility for the mentally retarded.

44. Eligibility for the CAP Program requires a person to qualify for ICF-MR level of care. One must be mentally retarded or have a related condition. 42 C.F.R. § 435.1009.

45. Persons with related conditions means individuals who have a severe, chronic disability that meets all of the following conditions:

(a) It is attributable to–

(1) Cerebral palsy or epilepsy; or

(2) Any other condition, other than mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for these persons.

(b) It is manifested before the person reaches age 22.

(c) It is likely to continue indefinitely.

(d) It results in substantial functional limitations in three or more of the following areas of major life activity:

(1) Self-care. (2) Understanding and use of language. (3) Learning. (4) Mobility. (5) Self-direction. (6) Capacity for independent living.

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings.

2. Petitioner is not mentally retarded.

3. Petitioner is not a person with a related condition within the meaning of 42 C.F.R. 435.1009.

4. The controlling definition of related condition for institutional status is 42 C.F.R. 435.1009, not 42 U.S.C. § 6001. The difference between the two is that for ICF/MR eligibility the condition must be similar to that of a mentally retarded person and require treatment similar to that required by mentally retarded persons.

5. Petitioner’s condition of Friedreich’s Ataxia has not resulted in impairment of general intellectual functioning.

6. Petitioner does not have adaptive behavior similar to that of mentally retarded persons.

7. Petitioner does not require treatment or services similar to those required for mentally retarded persons.

8. Petitioner does not qualify for the ICF-MR level of care.

9. Respondent properly denied certification of petitioner for the ICF-MR level of care.

Based on the above Conclusions of Law, the undersigned makes the following: DECISION

The evidence produced in this contested case is sufficient to support Respondent’s denial of Petitioner’s application for eligibility in the ICF-MR CAP Program because Petitioner is not mentally retarded and is not a person with a related condition within the meaning of 42 C.F. R. 435.1009.

ORDER It is hereby ordered that the agency serve a copy of its final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699 in accordance with N.C. Gen. State. §150B-36(b).

NOTICE

The agency making the final decision is this contested case is required to give each party an opportunity to file exceptions to this decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. §150B-36(c).

The agency is required by N.C. Gen. Stat. §150B-36(b) to serve a copy of the final decision on all parties and the Office of Administrative Hearings.

This the 27 th day of November, 2001.

______Beecher R. Gray Administrative Law Judge