Litigation is seldom ever a quick solution. While we await the outcome of the ongoing MPC litigation, this Frequently Asked Questions(FAQ) document by Susan Kas DRW attorney is intended to provide you with solutions on what to do in the meanwhile to protect the wellbeing of your child.
1. If a child isn’t due for reassessment, why is the Division of Developmental Disabilities (DDD) contacting families to schedule assessments before April 1, 2012?
The Department of Social and Health Services (DSHS) is conducting reassessments of all Medicaid Personal Care recipients under the age of 18, on an “accelerated” schedule, to implement changes in assessment rules. DSHS has a targeted goal of completing all reassessments by April 1, 2012.
2. What if a family is asked to do a reassessment over the phone?
DSHS’s rules generally require that assessments be conducted in person. WAC 388-106-0050. Modifications to assessments may be made over the phone in limited circumstances, such as to make corrections or clarifications. If a phone assessment is not preferred, one may ask the assessment be conducted in-person. DSHS should conduct the assessment in person when asked.
3. Why are fewer hours being authorized with reassessment, even though needs haven’t changed?
One of the changes DSHS made to assessment rules involved a cut to “base hours.” Base hours are used to determine the number of personal care hours DSHS will authorize.
Everyone’s base hours are being cut. This means everyone will be getting fewer hours than they would have received if the assessment were conducted using the old base hours.
In addition to base hours cuts, there may be other reasons for lost hours. For example, change in a child’s “classification group” can result in lost hours. A child’s classification group should depend on the level of support needed, as well as other factors such as cognitive skills, medical conditions, and behavioral concerns.
Some children who are being reassessed are losing hours because the case manager is determining an increase in the amount of “informal support” available to the child. The assessment calculates “informal supports” in an attempt to quantify the amount of help a child has available naturally, which could include help from a parent or guardian, school, or other supports. Informal support is any help your child receives with personal care that isn’t paid for by DSHS. More informal support means fewer authorized hours.
One can always ask a child’s case manager for a detailed explanation to determine how many hours were lost because of base hour cuts, and whether additional hours were lost because of other changes in the child’s assessment. (Please see Question Number 6 for options if it is thought a child’s personal care hours will be insufficient.)
4. Are the base hour reductions required by the Washington Supreme Court’s decision in Samantha A. v. DSHS?
No, the Washington Supreme Court’s decision in Samantha A. does not require any cuts to the base hours for any MPC recipients. The Court’s decision in Samantha A. clarified that MPC reductions for informal supports are only allowed if the reductions correspond to an individualized assessment that determines the amount of actual informal supports a child has. The base hours cuts are a different kind of reduction, not related to the amount of informal supports a child is assessed to have.
5. Is the Department allowed to cut base hours for children?
Disability Rights Washington and Columbia Legal Services filed a class action lawsuit to challenge the base hours cuts for all MPC recipients under the age of 21. This lawsuit may take several months or even years to resolve. Until then, there is very little that can be done to stop DSHS from reducing base hours for any individual.
If it is believed a child has been harmed or will be harmed as a result of the base hour reductions, or for any questions about this information, contact Susan Kas at Disability Rights Washington (DRW) (1-800-562-2702) or Amy Crewdson at Columbia Legal Services (CLS) (1-800-26-6260 x. 213). While DRW and CLS cannot guarantee individual assistance or hour restoration, one may call if interested in sharing circumstances.
6. What if a child will not get enough personal care with the decrease in hours?
If you’re a child was placed in the wrong classification group or if DSHS incorrectly assessed the amount of informal supports, one may request a fair hearing. If a child wins the fair hearing, it is possible to restore some of the hours lost. A fair hearing, however, will not result in restoring hours lost from the base hour cuts. More information on fair hearings, from the Office of the Administrative Hearing website.
Instead of, or in addition to a fair hearing, one may make a written request to a case manager for an Exception to Rule (ETR), to authorize more hours. This request should be in writing. Oral requests can be more easily ignored than written requests. Information on the ETR process can be found on the Washington Law Help website.
If the child is a client of the Division of Developmental Disabilities (DDD) one may also submit a written complaint to document why the hours will be insufficient. Unfortunately, DSHS will not allow a fair hearing if one disagrees with DSHS’s response to a request for an Exception to Rule or complaint.
For more information on Medicaid, Medicaid Personal Care and Exception to Rule click here!