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DEPARTMENT OF HEALTH

STATE OF HAWAll

IN THE MATTER OF THE )

)

APPEAL OF HANNAH HARRISON, )

)

Appellant. )

) ) ) ) )

----------------------__)

Docket No. 09-DDD-MW -09-064

FINDINGS OF FACT, CONCLUSIONS OF LAW~ DECISION~ AND ORDER.

FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER

This administrative contested case came before Hearings Officer, Gino R. Merez, on

September 9 , 2009 with Appellant, Hannah Harrison, appearing through her parent/guardian,

Summer Harrison, and the Department of Health, Developmental Disabilities Division ("DDD")

being represented by Compliance Officer, Joanne Ha'o.

Based upon the testimony and evidence presented, and the record and pleadings in this

case, the Hearings Officer, having been delegated final decision-making authority by the

Director of Health, makes the following Findings of Fact and Conclusions of Law, Decision, and

Order:

FINDINGS OF FACT.

1. Appellant is a participant/recipient in DDD's Home and Community Based

Services DD/1\.1R Medicaid Waiver program ..

2. Appellant has or suffers from cerebral palsy and seizure disorder.

3. Appellant is being treated for her condition by Dr. Julia Griffith, MD.

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4. Appellant receives twenty-four (24) hours per day, seven (7) days per week

skilled nursing services (both RN and LPN) C'SN RN") funded by DDD and the Medicaid Waiver Program.

5. Prior to December 26, 2008, DDD authorized Appellant to receive the budgeted

amount of $32,077.61.

6. On December 26, 2008, DDD sent a letter to all Home and Community Based

Services DD/MR Medicaid Waiver Program Participants, Family Members and Guardians advising the recipients and/or their guardians that due to the budget situation, a 15% reduction in " ... participant services ... " would be imposed beginning February 1, 2009. The December 26th letter also included a Budget Reduction Worksheet, recipient's last year's monthly budget and revised monthly budget and a Frequently Asked Questions brochure.

7. The proposed 15% budget reduction was based on DDD's calculation of

expenditures and funds allocated and available for the remaining fiscal year. DDD determined that without a cut back, DDD would ron out of funding before the end of the fiscal year.

8. The December 26th mailing asked the Medicaid Waiver recipients to identify

where they could best handle the 15% budget cut by completing and returning the Budget Reduction Worksheet to DDD.

9. DDD's December 26, 2008 letter and Budget Reduction Worksheet identified the

reduction period as February 2009 to June 2009.

10. DDD's Budget Reduction Worksheet instructed the recipient to fill in the days

and hours per week of services provided or needed and multiply that number by four (4) weeks to arrive at the new monthly cost.

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11. DDD's Budget. Reduction Worksheet also contained a newly revised allowable

monthly budget amount. Appellant's revised budget amount was listed as $27,265.97.

11. Appellant return the Budget Reduction Worksheet to DDD with an amount

greater than the approved budgeted amount of $32,077.61, with a hand-written notation stating,

inter alia, "1 have filled this out per doctor's instructions",

12. On January 21, 2009, DDD sent Appellant's iparent/guardian the Budget

Reduction letter and Notice of Action wherein DDD planned to reduce Appellant's budget

effective February 1, 2009. The letter also contained Appellant's right to request an informal

appeal.

13. The informal appeal panel convened on March 9,2009 and upheld the decision to

reduce Appellant's budget by 15%. Appellant was given notice of the panel's decision on July

10.2009, along with her right to request a formal appeal.

14. Appellant's representative (hereafter, "Summer Harrison') stated that they are

currently insured under United Health Care (COBRA). which expires at the end of September.

15. DRS Evercare completed an assessment on Appellant on September 3, 2009.

16_ Appellant receives at-home educational services (e.g., OTIPT, speech therapy,

etc.) from the Department of Education ("DOE").

CONCLUSIONS OF LAW

1. To the extent that any of the foregoing Findings of Fact are deemed to be

Conclusions of Law, they are incorporated herein as Conclusions of Law. Should any of the

Conclusions of Law be deemed Findings of Fact, the same are incorporated into the Findings of

Fact. 09-PDD·MW-09-064

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2. Hawaii Revised Statutes ("HRS") §333F-2 provides, in pertinent part, that the

Department of Healthl shall provide support and services for persons with developmental

disabilities within the limits of state and federal resources allocated or available for such

purposes.

3. HRS §333F-7 provides, in pertinent part, that the Department of Health shall

identify the amount of dollars available to DDD recipient to effectuate the individual service

plan.

4. HRS §333F-13 states in pertinent part, "[a] parent, conservator, or other person

liable for the support of any person receiving services under this chapter shall be required to pay

for the care and treatment of the person. The parent or conservator of a minor receiving services

under this chapter shall be liable for the care and treatment until the person has reached the age

of majority.

5. HRS §333F-19 provides that the Department of Health's responsibility to carry

out the responsibilities imposed by HRS Chapter 333F is limited to the available resources.

6. HRS §333F-21 provides. in pertinent part, that within the limits of state and

federal resources allocated or available, the Department of Health shall provide community

based developmental disabilities services.

7. Appellant party bears the burden of preponderance under HRS §91-10(5) to show

that the current amount of services should be maintained.

1 The Developmental Disabilities Division of the Department of Health is charged with carrying out the duties and responsibilities set forth in HRS Chapter 333F.

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8. Clients who are able to show that the proposed reduction in service(s) would

unduly compromise their health, safety. or ability to reside in the community would not be subject to the reduction.

9. With respect to procedural due process, clients whose services were subject to the

reduction could request an informal appeal and, should the informal appeals panel return an adverse decision to the client, a contested case hearing could then be requested. Any reduction in service/a) would be tolled for the duration of the informal appeal, and if necessary, the contested case hearing and any subsequent challenges?

10. The Early Periodic Screening, Diagnosis, and Treatment ("EPSDT") Program is

the child health component of Medicaid. It is required in every state and is designed to improve the health of low-income children by financing appropriate and necessary pediatric services.

11. Due to the economic situation and projected budget shortfall, DDD was

authorized to reduce the amount of service hours to be funded under Appellant's Individual Service Plan.

12. A 15% reduction in service budget allocated to Appellant would unduly

compromise Appellant's health, safety or ability to remain in the community.

DECISION

Under Hawaii Revised Statutes (HRS) Chapter 333F~ Developmental Disabilities Division (DDD) is charged with providing services to developmentally disabled residents 'Within the limits of state and federal resources allocated or available. In particular, HRS §333F-2(b)

2 Refer to Findings of Fact, Numbers 12 and 13, p. 3, supra

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prohibits DDD from supplanting or duplicating services provided under other federal, State, or

county acts; and furthermore; parents are required to pay for the care and treatment of their

minor children (HRS §333F-13). In addition, HRS §333F-19 limits DDD's ability to carry out

its responsibilities to the resources available. Once those resources are exhausted, DDD has. no

obligation to continue services and no legal action may be brought to compel the provision of

further services.

DOD, in evaluating its expenditures and available funding, determined that at the then

current level of spending, it would likely run out of funding before the end of the current fiscal

year (June 30, 2009). Should that ocelli, DDD would have no further duty to its clients and no

services would be provided until money was available during the next fiscal year. Rather than

cut off all service when the funding was exhausted, DDD chose to impose an across the board

15% reduction in order that services could continue for the remaining fiscal year.

The intent of the DDD waiver is to provide behavioral support through its services to

clients who meet eligibility standards. Under State statute.', DDD services are provided under the

"last dollar" principle where other health insurance/health plans available to the client must be

accessed before DDD services are made available. Ms. Harrison testified that she is currently

under United Health Care (COBRA) until the end of September. Ms. Harrison further testified

that Appellant was assessed by Evercare on two occasions (2/09 and 9109). As of this hearing,

the outcome of the assessments are unclear. Both Evercare and BPSDT are viable sources of

funding for Appellant's 2417 SN RN services; however, as of the date of this hearing Appellant's

eligibility for these programs was not determined. Ms. Harrison stated that she did not instigate

access to these programs as it is a case management responsibility. This Hearings Offices agrees

3 HRS §333F-13 09-0DD-MW-09-064

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with Ms. Harrison that case management is charged with assisting families to access such

services and similarly situated families can defer to case management for assistance.

Exhibits submitted from doctors Griffith and Okamoto confirm Appellant's seizure

disorder condition (see Respondent's Exhibits "8" and "9", and Appellant's Exhibits "I" and

"4')); however, their opinions conflict regarding the necessity of the current level of SN RN

service. As was mentioned in the Findings of Fact, Appellant is authorized to receive SN RN

services twenty-four (24) hours per day, seven (7) days a week ("2411"), which could be

provided by either a registered nurse or a licensed practical nurse.

DDD raised the issue of the need for SN RN services during the time Appellant receives

in-home educational services from the DOE. According to Ms. Harrison's testimony, Appellant

receives between three (3) to seven (7) hours of educational services per day. She (Ms. Harrison)

further stated the DOE expressed that it "takes no responsibility for Appellant's health" and does

not want their workers at Appellant's home without a nurse present. The waiver option of

allowing a P AB worker to administer medication under the supervision of a nurse was

discounted since the types of medication needed by Appellant (oxygen, IV medication, feeding

tube, etc.) requires direct administration and not merely making the medication available to the

client.

DDD also raised the issue of Appellant's natural supports as a method of supplanting

some of the SN RN services. According to Ms. Harrison, she has no immediate family on Kauai

to provide assistance in lieu of SN RN services, and friends of Ms. Harrison are not willing to

provide medical intervention. As Ms. Harrison states, "her friends are afraid to touch her

daughter because they might hurt her." It is the opinion of this Hearings Officer that the options

proposed by DDD to replace SN RN services equivalent to meet the 15% reduction are not

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sufficient. Due to issues of possible liability, the DOE staff should not be placed in a position that requires them to respond in the event that Appellant suffers. a seizure while no nurse is present. To the same extent, friends of Ms. Harrison are not a viable substitute for a nurse given the severity of Appellant's disorder and the reluctance of friends to provide natural supports.

The 24/7 SN RN schedule is supported by Doctor Griffith to ensure that .Appellant is continuously monitored for seizures and to intervene (emphasis added) "in case of status epilepticus or a worsening of seizures develops." (see Appellant's Exhibit <;4", p. 1) Doctor Okamoto disputes Doctor Griffith's requirement of 2417 SN RN services. He cites, inter alia, that Summer Harrison should be trained to care for Appellant; 2417 nursing services for monitoring is not the standard of care even in a hospital setting; because 2417 SN RN services are being requested, should indicate that Appellant is not safe at home; and that families who have children with seizure disorders who are not responsive to treatment.. .do get discharged from the hospital without nursing services for seizure monitoring.

In response, Dr. Griffith states (see Appellant's Exhibit "4") that Summer Harrison is, in fact, trained to intervene in case of status epilepticus (e.g., administering Diastat, further monitoring and the use of various equipment to prevent hypoventilation, etc.), However, Ms . . Harrison testified that there were two occasions when the nurse was not available during shift change and Appellant's ensuing seizures required her being taken to the hospital by medevac-in spite of Ms. Harrison's presence. It is the opinion of this Hearings Officer that while the training Ms. Harrison possess is adequate in some instances when Appellant suffers a seizure, there is no guarantee that such training will be effective in every circumstance, and the expertise of a nurse may be necessary, Although the level of training Ms. Harrison possess, by itself, does not

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necessarily make the Appellant's home placement unsafe, Ms. Harrison cannot be expected to

address every emergency by herself.

Regarding Dr. Okamoto's assertion that 24/7 nursing care is not the standard of care, this

statement is inconsistent with DDD's actual utilization of its nursing services. Ms. Harrison

testified stated that Appellant was allowed such a level of care beginning in November of 2006

after Ms. Harrison injured her knee. The 2417 SN RN was allowed to continue when a telemetry

report showed that Appellant's night seizures had greatly increased. If such a level of care is "not

the standard of care" as Dr- Okamoto attests, why was Appellant allowed this level of care to

continue for nearly three years? Since 24/7 SN RN is not the standard of care, it would seem

appropriate that the DDD administration/case management schedule regular assessment of the

need for such services from that point on to determine when such a level of care is no longer

necessary. Clearly. the authorization of 2417 nursing services to Appellant preceded DDD's

reduction policy to remedy the budget short-fall (Respondent's Exhibit "5", para. 10, establishes

that on December of2008 clients were given. notice ofDDD's ratification of the 15% reduction).

Therefore, any utilization issues of this level of service should have been addressed earlier and

not raised as a budget short-fall issue nearly three years after the fact.

Furthermore, Dr. Okamoto's argument against 2417 SN RN 15 based only upon

"monitoring" Appellant for seizures; however, he makes no mention of the need for SR RN

services as an intervention in the event a seizure related emergency arises. This is an important

omission since this Hearing Officer Would be inclined to agree with Dr. Okamoto's assessment if

SN RN was only in place to monitor Appellant for seizures. In response to Dr. Okamoto's claim

that other patients Whom are unresponsive to treatment yet are discharged from hospitals without

equivalent nursing services to monitor seizures, Dr. Griffith asserts that in Appellant's particular

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case such monitoring and intervention is necessary in order to prevent Appellant's possible death due to what is termed as "sudden unexplained death in epilepsy."

It is the opinion of this Hearings Officer that Appellant bas met her burden pursuant to HRS §91-10(5) in showing that her current amount of services should be maintained pending a determination of eligibility for funding of SN RN services provided by other sources of health coverage such as the Evercare and EPSTD program. It is the opinion of this Hearings Officer that the reduction in the current level of services would jeopardize Appellant's health and safety.

ORDER 10

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Based upon the foregoing Findings of Fact, Conclusions of Law, and Decision, it is hereby ORDERED:

1. DDD case management shall assist Appellant to pursue payment for nursing

services form alternative source of insurance (i.e_~ DHS Moo-QUEST QExA).

2. If not already done, Appellant shall seek a referral to the EPSDT program through

her physician or the Evercare Health Plan Coordinator.

3. Appellant's service hours shall be maintained at its current level pending a

determination of Dr. Griffith's assessment from the DHS Evercare Medical Director or as set

forth in Paragraph 1, infra or eligibility for other available health plans.

4. The hours for service specified in Paragraph 2 of the Order will take effect as of

the date of this Order and shall remain in effect until the next Individualized Service Plan (ISP)

revision pursuant to HRS §333F-6 and HAR § 11-88-34.

5. Each party shall bear its own costs and/or attorneys fees arising out of this

contested case.

DATED: Honolulu. Hawaii, October 13~ 2009.

AINO R. MEREZ .

Hearings Officer

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DEPARTMENT OF HEALTH

STATE OF HAWAII

IN THE MATTER OF THE

Docket No. 09-DDD-MW-09-046

Appellant

) ) ) ) ) ) ) ) ) )

CERTIFICATE OF SERVICE

APPEAL OF HANNAH HARRISON,

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on October 13, 2009, certified copies of the

Findings of Fact, Conclusions of Law, Decision and Order dated October 13, 2009 were duly

served on the following parties at their last known addresses, in the manner specified:

Ms. Summer Harrison 3663 Papaline Road Kalaheo, HI 96741

u.S. Mail. postage prepaid Certified Mail, Return Receipt

Parent/Guardian of Appellant

Joanne Ha'o, Esq. Inter-Departmental Mail

Hawaii State Dept. of Health

Developmental Disabilities Division

Compliance Officer, Developmental Disabilities Division

Attorney for the Developmental Disabilities Division

DATED: Honolulu, Hawaii, October 13, 2009.

/<.fvv-..~

(~R.MEREZ

Hearings Officer

09-DDD-MW -09-049

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