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1010'4AY2SA II: 18
BEFORE THE INSURANCE COMMISSIONER
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
STATE OF HAWAII
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Respondent.
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In the Matter of the Petition of
HER-IO-153040
Petitioner,
FINDINGS OF FA CT) CONCLUSIONS OF
LAW AND ORDER; CERTIFICATE OF
SERVICE
Audrey Delos Santos)vs.
Evercare,
FINDINGS OF FACT. CONCLUSIONS OF LAWA ND ORDER
Byletter received on February 25,2010,Audrey Delos Santos (hereinafter "Petitioner"),
filed through her representatives a timely request with the Insurance Commissioner ofthe
Department of Commerce and Consumer A ffairs, State of Hawaii (hereinafter "Commissioner")
pursuant to Hawaii Revised Statutes (hereinafter "HRS")§ 432E-6 for an external review of a
finalinternal determinationby Evercare (hereinafter "Respondent")dated February 3, 2010
reducing skilled nursing hours from 75 hours per week to 60 hours per week and eliminating
chore services provided through Petitioner's grandmother.
The Commissioner appointed a review panel(hereinafter "Panel"), duly constituted
pursuant to HRS § 432E-6(a), to hear the case. A hearing was held onMay 11, 2010. Petitioner
wasrepresentedby Rafael delCastillo, Esq. and Arleen Jouxson-Meyers, Esq., Respondent was
represented by Dianne Winter Brookins, Esq. and Allison Kirk Griffiths) Esq. Ms. Griffiths was
not present at the hearing.
The Panel, having considered the testimony and evidence presented by the parties,
together with the entire record in this matter, hereby renders the following Findings of Fact,
Conclusions of Law and Order:
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FINDINGSOF FACT
1. Petitioner isa member of the QUEST Expanded A ccess managed careplan offered by Respondent. (DirectTestimony of cherylA. Ellis, M.D.,M.RA . atpage 1, paragraph3). Petitioner receivesprimary health coverage through Hawaii Medical Service Association.
Respondent provides coverage for other servicesnot coveredby HMSA's plan, including skilled
nursing the homeand other home and community based services. (Direct Testimony of Cheryl
A.Ellis,M.D., M.H.A. at page3, paragraph 13.
2. Petitioner was born at six months of gestational ageon July 31, 2003, and reportedly had
anoxia at birth. "A noxia" is a deficiency of oxygen reaching the tissues of the body of such severity as to result in permanent damage. Petitioner has severe brain damage and a seizure disorder. Petitioner was institutionalized almost continuously until July 2008 when she was discharged to her home in Lihue,Kauai, fromKulana Malama, the nursing facility where she was residing at that time. A t that time, she received her daily feedings through a Gastrostomy- tube in her stomach; her feedings Were administeredby a pump during the day and during the night. Petitioner also has a tracheostomy tube to assist in her breathing. Petitioner's
tracheostomy tube must be cleared multiple times each day using a suction machine. Petitioner
also receives aerosol treatments twice a day, or mote often if she has wheezing. Petitioner's oxygen levels are constantly monitored by a pulse oximeter. (Direct Testimony of Cheryl A . Ellis, M.D., M.H.A } at pages 1-2, paragraph 6). Petitioner was born with spastic quadriplegia and is wheelchair dependent. (Direct Testimony of CherylA. Ellis, M.D., M.H.A . at page 8, paragraph 43).
3. Petitioner became a member of Respondent's plan on February 1,2009. (Direct Testimony of
Cheryl A . Ellis, M.D., M.H.A ., at page 2, paragraph 7).
4. Respondent's assessment of Petitioner indicates that Petitioner requires the following services each day: tracheostomy care; suctioning; nebulization therapy; manual CPT, nutrition (through a gastrostomy tube); mixing formula; "Special Skin Care;" orthopedic appliance care, range of
motionexercises, administration of medication; monitoring her pulseoximeter; and bathing.
(Direct Testimony of Cheryl A . Ellis, M.D., M.H.A .~ at page 6~paragraph 33). In addition)
Petitioner has been fittedwith a mechanical chest physiotherapy vest to be used three times a
day. (Direct Testimony of Geri Young, M.D. at page 4).
5. Section 9.1.2.1 of the Hawaii Medicaid Provider Manual states that, for Medicaid coverageto
apply to skilled nursing services, "[tjhe skilled nursing service(s) requested cannot be safely performed by the recipient or hislher caregiver (the reason why the service cannot be safely performed must be stated)." (Direct Testimony of CherylA. Ellis, M.D., M.H.A . at page 5, paragraph 27, and at pageJ 0, paragraph 53).
6. The Medicaid Provider Manual does not provide further guidance regarding what nursing
services are and are not "skilled," for the purpose of determining coverage. To fill that gap, the State of Hawaii, MQD has instructed Respondent to apply Medicare guidelines in determining the medical necessity of skilled nursing services. (Direct Testimony of Cheryl A . Ellis, M.D.,
M.H.A. at page 5~paragraph 28).
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7. Respondent conducted numerous assessments of Petitioner, including one on A ugust 13,2009
and a reassessment on October 19, 2009 and incorporated findings into Respondent's Home
Skilled Nursing Scoring Tool. (Direct Testimony of CherylA. Ellis, M.D.,M,H.A . at page 4, paragraphs 20 and 23, and page 5, paragraph 24). The Home Skilled Nursing Scoring Tool was developed within Respondent and is still under development to improveit (Testimony of
Cheryl A Ellis, M.D., M.B.A . in the Hearing Transcript at page 144, lines 11-22). There is
nothing in the record to indicate that the Home Skilled Nursing Scoring Tool has been validated ina scientific manner or in accordance witha national standard. The Written DirectTestimony of Dr. Ellis indicated that the HomeSkilled Nursing Scoring Tool was heavilyrelied upon,
although perhaps not exclusively. (See e.g. Direct Testimony of Cheryl A . Ellis) M,D., M.H.A .
at paragraphs 33, 35, 36) 37) 38,41,42,43,44)
45, 46, 47 and 55).
8.Respondent's MedicalDirector authorized agiven amount of skilled nursing services to be
supplement by the care of Petitioner's mother. The Medical Director's testimony provides in .
relevant part:
"A udrey's mother had been trained to care for A udrey, and had demonstrated her ability
to do so safely and effectively.I therefore proceeded to determine how much of the
skilled nursing services could be "safely performed by" A udrey's caregivers. In making
that determination, I considered the fact that the skilled services were required
periodically throughout the day and night.It was not practicable for the family to
schedule the nursing hours so as to have the nurse available only when the skilled
services were required. Nor would that be an acceptable schedule for the nursing
agencies which provide Audrey's skilled nursing care. Under the circumstances, I
determined it would be most appropriate to authorize a block of skilled nursing time on a daily basis. That meant that there would be significant periods of time during the nursing shiftWhen the nurse was not providing skilled nursing services, and that some skilled
nursing services would need to be provided by the family when no nurse was on duty.
That was consistent with Medicaid coverage guidelines) as long as the services could be performed safely and effectively by the family. A udrey's family had demonstrated the ability to provide the services A udrey required:'
(Direct Testimony of CherylA. Ellis, M.D., M,H.A . at page 10, paragraphs 53 and 54). In the
internal appeal, Respondent's Judy Fujimoto, M.D., validated this decision "in light of the
family's ability to safely provide the remaining services [Petitioner] requires. (Direct Testimony
of Cheryl A . Ellis,MD., M.B.A . at page 13, paragraphs 67 and68).
9. Respondent took consideration of the fact that Petitioner's parents have another young child in the home. (Direct Testimony of CherylA. Ellis, M.D., M.H.A . at page 3, paragraph 18; and page 4, paragraph23).
10. Respondent's Notice of A ction confirming the reduction in skilled nursing services from 75 hours per week to 60 hours per week was sent on December 28,2009, with an effective date for the beginning of a phased in reduction of January 17,201O. The notice also informed Petitioner that the 20 hours per week of self-directed care that Petitioner's grandmother had been paid to
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