Volume I Issue 8 May 1996
THE PHYSICALLY HANDICAPPED
CHILDREN'S PROGRAM
Copyright 1996, Neighborhood Legal Services, Inc.
INTRODUCTION
The Physically Handicapped Children's Program (PHCP) is New York's best kept secret. This program will, in most counties, provide funding for medical services and equipment for children under age 21 who have physical disabilities. The PHCP often pays for assistive technology (AT), like electric wheelchairs, for children whose families have too much income to qualify for Medicaid.
This article discusses the administration of the PHCP, the eligibility criteria and the services and equipment potentially available through the program. It also explains how to appeal an adverse decision and how one county was forced to establish a due process hearing system following a court decision. Because the variations in PHCPs from county-to-county are so great, we will not attempt to describe the specific criteria that is unique to each county.
ADMINISTRATION OF THE PHCP
In most counties the County Department of Health operates the PHCP. In the larger counties, the PHCP may be its own division within the Health Department. In smaller counties, an administrator who has other duties may run the program.
The PHCP is often referred to by other names. Many still refer to it as the State Aid Program or the Medical Rehabilitation Program, former names for the program. Officially, it has been called the Program for Children with Physical Disabilities since 1986. The official name has not caught on, however, and we will refer to it as the PHCP to avoid confusion.
The state and county split funding for the PHCP, with each covering 50 percent of approved expenditures. The State Department of Health oversees the program on the state level and approves all county claims for the 50 percent state reimbursement.
LAW, REGULATION AND POLICY GOVERNING THE PHCP
The law governing the PHCP is found in Public Health Law sections 2580-2584. The relevant regulations are found in 10 N.Y.C.R.R. Part 46. The State Department of Health also has numerous policies governing the program and each county will have its individual policies.
The PHCP differs from Medicaid in two critical respects. First, unlike Medicaid, the PHCP is not a uniform statewide program; each county's program is unique. The PHCP is optional and counties choosing to operate a PHCP establish their own rules, subject to state rules limiting when reimbursement will be available. Currently, nearly every county operates a PHCP.
The PHCP also differs from Medicaid because it is not subject to a comprehensive set of rules and regulations. A person wishing to read all relevant Medicaid laws, regulations and policies will need a few days in the library. By contrast, reviewing the relevant laws, regulations and policies governing the PHCP would take no more than an hour or two.
The lack of uniformity and the lack of a comprehensive set of rules governing the PHCP make writing this article a challenge. However, we can describe the key components of the program and the services and equipment that may be available in many counties.
PHCP ELIGIBILITY CRITERIA
County PHCP applications must be submitted on a form approved by the State Department of Health. If approved, the county pays for the item in question subject to any copayment requirements1 and after deducting for private insurance payments. The county then submits the claim for reimbursement.
For a claim to be approved, the following criteria must be met:
· The child must be under age 21;
· The child must have a medical diagnosis on the state's list of approved conditions;
· The child must not have a condition the county has opted not to cover;
· Family income must fall within limits established by the county;
· The services or equipment sought must be eligible for approval under the state's policies and must not be an item which the county has opted not to cover;
· The child must need the services or equipment; and
· The child's family must exhaust other potential resources for payment, such as private health insurance.
SERVICES AND EQUIPMENT AVAILABLE THROUGH THE PHCP
Each county determines what it will cover under the PHCP. Some counties cover only a few items and other counties cover practically every item that is eligible for state reimbursement. The optional nature of this program also means that what a county will cover may vary from year-to-year. For example, one county, which in the past had funded ramps and lifts, has now eliminated those items from its PHCP.
If PHCP criteria are met and the county has opted to cover an item, funding can be approved for traditional medical services, including physician services, hospitalization, speech therapy, physical therapy, occupational therapy and home health care services. Funding can also be approved for many AT devices, including: manually operated and electric wheelchairs; ramps, lifts and stair glides; and electronic communication equipment, such as Touch Talkers. PHCPs have historically funded many other items that are designed for children with disabilities, such as specialized car seats, strollers, beds and bath equipment.
PHCP APPEALS
State law and regulations do not require a county to issue decisions within a specific time frame. Nor do state law or regulations require that a PHCP send a written decision to families when it denies benefits. State law and regulations do not require a county PHCP to establish an appeal process. Nor has the State Department of Health established a policy on appeals. As a result the right to challenge a county's PHCP decision will vary county-by-county.
Most counties will provide an informal review process for appealing PHCP denials. This often allows a family or advocate to produce additional information to convince the PHCP that, for example, the family income is less than what it appears. It may also provide a forum for the family to submit new information to explain why a specific item of equipment should be approved. Since many counties will not send a written notice to families inviting them to appeal a PHCP decision, the parent or advocate may need to aggressively assert their right to have the decision reviewed.
The Colson Decision
Erie County has an appeal system which allows a parent or legal guardian the right to an administrative hearing if they wish to challenge a PHCP denial. This is the result of a 1992 U.S. District Court decision in Colson v. Sillman and a court-approved settlement which followed that decision.2 The settlement also requires that the Erie County PHCP issue its decision within 45 days of receiving a completed application. The written decision must explain why the service or item of equipment was denied and advise the parent or guardian of the right to request a hearing.
The Colson decision was based on the court's finding that the federal Constitution requires some notice and opportunity to be heard on appeal when benefits are denied under the PHCP. Similar challenges to a lack of due process in the PHCP could be successful in other counties.3
The Article 78 Court Appeal
In all cases, the PHCP applicant or recipient may appeal the denial in state court once the county PHCP's decision becomes final. This is known as an Article 78 appeal and is filed in State Supreme Court.4 In counties with a formal appeal process, the PHCP decision is final and can be appealed in court after the family receives the final appeal decision. The Article 78 appeal must be filed within four months of the final decision. If there is no written decision, the four months should be counted from the date the family was first told of the decision.5
CONCLUSION
Families seeking benefits from a PHCP and advocates who are assisting them will need to become familiar with your county's program. We suggest that you ask for copies of their financial eligibility guidelines and any other written policies which govern the county's PHCP. In some cases the PHCP may be the only funding source available for services and equipment needed by a child with a disability.
NOTES:
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1. Some counties require families to pay a portion of the cost as a copayment.
2. Colson v. Sillman, 852 F.Supp. 1183 (W.D.N.Y. 1992), reversed in part, 35 F.3d 106 (2d Cir. 1994)(state not required to provide appeal when original denial made by state, for example, in case seeking state's prior approval for out-of-state treatment.
3. The Colson case was handled by Jim Sheldon, an attorney with our AT Project. Call us if you want copies of the pleadings or briefs.
4. See N.Y. Civil Practice Law and Rules, Article 78.
5. Call the AT Project if you need help locating a lawyer to assist with an appeal. In many cases, we can help you find a lawyer who will not charge for their services.
IMPACT UPDATE
VESID AGREES TO PAY STATE
TUITION RATES
In March 1996 we described VESID and the Commission for the Blind, New York's vocational rehabilitation agencies. A court-approved settlement in Scott v. Gloeckler has changed VESID's tuition payment rates for students it sponsors in undergraduate, graduate and professional programs. VESID's rates had lagged behind recent tuition increases at the state schools.
VESID's new tuition rates are effective with the fall 1995 semester:
· For students at City University of New York or a State University of New York school, VESID will pay the CUNY or SUNY tuition rate.
· For an in-state private school, not a part of CUNY or SUNY, VESID will pay CUNY or SUNY rates for an equivalent program or the private school's tuition rate, whichever is less.
· For an out-of-state program not offered through CUNY or SUNY, VESID will pay the rate charged by the least expensive school in New York that offers the course of study. If no school within New York offers the course, VESID will pay the rate of the least expensive school outside New York.
These are maximum rates. Students must contribute to costs as required by VESID's economic need policy, must exhaust all sources of tuition payment and make maximum efforts to secure grant assistance. If the student, by attending a private or out-of-state school, forgoes tuition assistance payments (TAP) that would be available for a similar course of study at CUNY or SUNY, VESID will deduct TAP the student would have received from the maximum tuition available.
*** The Scott case was handled by Bill Mastroleo, an attorney with the AT Project. Call us if you want copies of the settlement papers in Scott.