REQUEST February 23, 1996
PRIOR APPROVAL # 89411988
CASE# ohsm
CENTER# OHSM
FH#2429214Y
STATE OF NEW YORK
DEPARTMENT OF SOCIAL SERVICES
In the Matter of the Appeal of
J B
DECISION
AFTER
FAIR
HEARING
from a determination by the Office of Health
Systems Management of the New York State Department of
Health (hereinafter referred to as the Agency or OHSM)
JURISDICTION
Pursuant to Section 22 of the New York State Social Services Law (hereinafter Social Services Law) and Part 358 of the Regulations of the New York State Department of Social Services (Title 18 NYCRR, hereinafter Regulations), a fair hearing was held on May 21, 1996, in Erie County, before Cory J. Ciambella, Administrative Law Judge. The following persons appeared at the hearing:
For the Appellant
J B, Appellant;Mr. Mastroleo, Neighborhood Legal Services,Attorney;Ms. Kinmartin, UCPA;R and J B, Appellant's father and mother;
For the Office of Health Systems Management
Waived, appearance on papers only
ISSUE
Was the Agency's determination to deny the Appellant's physician's prior approval request correct?
FACT FINDING
An opportunity to be heard having been afforded to all interested parties and evidence having been taken and due deliberation having been had, it is hereby found that:
1. The Appellant, age 29, has been in receipt of a Medical Assistance authorization.
2. The Appellant's physician provided a diagnosis of cerebral palsy, athetoid type.
3. The Appellant is capable of self ambulating for very short distances, but only with an unsteady, unsafe gait.
4. The Appellant is incapable of self propelling a manual wheelchair.
5. The Appellant requires a power wheelchair to ambulate for all but the shortest distances.
6. The Appellant resides alone in the community.
7. The Office of Vocational Rehabilitation (OVR) provided the Appellant with a motor scooter, which he utilized for over ten years.
8. The scooter has broken and is not repairable.
9. In May 1995, OHSM provided the Appellant with a Guardian Grand Tour walker to assist with short distance ambulation such as grocery shopping, banking, church services, counseling and accessing taxi services.
10. On January 8, 1996, the Appellant's physician requested prior approval for Quickie P200, power wheel chair and accessories for the Appellant.
11. On February 13, 1996, the Agency determined to deny the Appellant's physician's prier approval request because of lace of medical justification.
12. On February 23, 1996, the Appellant requested this fair hearing.
APPLICABLE LAW
Section 365-a of the Social Services Law provides in part:
2. "Medical Assistance" shall mean payment of part or all of the cost of medically necessary medical, dental and remedial care, services and supplies, as authorized by this title or the regulations of the department, which are necessary to prevent, diagnose, correct or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere with such person's capacity for normal activity, or threaten some significant handicap and which are furnished an eligible person in accordance with this title and the regulations of the department.
Section 364.2 of the Social Services Law provides in part, as follows:
The department of health shall be responsible for . . .
(b)establishing and maintaining standards for all non-institutional health care and services rendered pursuant to this title, . . .
Where equipment is intended for use by only one patient, it may be either custom made, or customized.
DISCUSSION
The Agency's objection to the request appears precipitated by the fact that the Appellant had used a scooter to meet his long distance ambulation needs and possesses a walker to meet short distance ambulation needs. At the fair hearing, the Appellant's witnesses argued that the Appellant requires a power wheelchair to enable him to continue to function in his daily activities. It was undisputed that the Appellant requires mechanical assistance with ambulation for all but the shortest distances.
The Agency notes that the Appellant had been provided with a walker on the theory that this would meet his ambulation needs after the breakdown of the scooter. However, as the Agency has been aware, Appellant's doctor now feels the Appellant can not safely utilize a walker. The Appellant approached exhaustion every time he used the walker and began to lose weight. Appellant's weight dropped from 132 pounds to 120 pounds while he was using the walker. Appellant's family explained that he was so exhausted he could not even eat. In his weakened condition he succumbed to numerous infections. While utilizing the walker he suffered falls and developed severe knee pain. Ms. Kinmartin testified that she has observed the Appellant utilizing the walker and he can not do so safely even when he is healthy. Appellant's condition of athetoid Cerebral Palsy means that his muscles are constantly fighting each other and he becomes exhausted from even small movements. Appellant lives alone, but his mother had to go visit him to understand him in his weakened condition. She explained that he was so weak he could not enunciate. The Appellant suffers from a chronic ear disorder which causes him to be unable to balance himself in a walker for weeks at a time.
The nature of the testimony and the evidence offered at the hearing was provided by Appellant's counsel to the Agency several days prior to the hearing. The Agency determination was not changed, and Appellant's counsel requested that it not be remanded again with the same evidence the Agency has already reviewed.
However, the Agency did not dispute that the Appellant meets the medical criteria for a power wheelchair, and it is necessary. The evidence clearly established that the Appellant can not safely utilize the walker device, previously provided.
DECISION AND ORDER
The determination of the Agency to deny the Appellant's physician's prior approval request is not correct and is reversed.
The Agency is directed to:
1. Provide prior approval for the Quickie P200 power wheelchair and accessories, as requested by the Appellant's physician.
As required by Department Regulations at 18 NYCRR 358-6.4, the Agency must comply immediately with the directive set forth above.
DATED: Albany, New York
July
2, 1996
NEW YORK STATE DEPARTMENT
OF SOCIAL SERVICES
By
Commissioner's Designee
REQUEST April 8, 1996
PRIOR APPROVAL # 89429287
CASE# M712849 MY
CENTERS OHSM
FH# 2456079R
STATE OF NEW YORK
DEPARTMENT OF SOCIAL SERVICES
In the Matter of the Appeal of
Michael B.
DECISION
AFTER
FAIR
HEARING
from a determination by the Office of Health
Systems Management of the New York State Department of
Health (hereinafter referred to as the Agency or OHSM)
JURISDICTION
Pursuant to Section 22 of the New York State Social Services Law (hereinafter Social Services Law) and Part 358 Of the Regulations of the New York State Department of Social Services (Title 18 NYCRR, hereinafter Regulations), a fair hearing was held on July 25, 1996, in Erie County, before Cory J. Ciambella, Administrative Law Judge. The following persons appeared at the hearing:
For the Appellant
Michael B., the Appellant -
by telephone
Mrs. B., spouse - by telephone
Ms. Haefner, Physical Therapist - by
telephone
Ms. Ippolito, Physical Terapist - by
telephone
Marge Gustas, Neighborhood Legal Services
For the Office of Health Svstems Management
waived, appearance on papers only
ISSUE
Was the Agency's determination to deny the Appellant's physician's prior approval request correct?
FACT FINDING
An opportunity to be heard having been afforded to all interested parties and evidence having been taken and due deliberation having been had, it is hereby found that:
1. The Appellant, age 49, has been in receipt of a Medical Assistance authorization.
2. Due to the Appellant's Multiple Sclerosis, he has spastic quadriplegic, and is incapable of movement.
3. The Appellant resides with his wife, and she provides the majority of his case, with occasional assistance from aides.
4. Due to the Appellant's deteriorated muscle tone, and wasted physical condition, he suffers from pressure sores, ulcers, breathing and digestive problems.
5. The Appellant is sensitive to pain.
6. The Appellant's spouse regularly changes her husband's position, and follows the described medical regimen, yet the medical problems have regularly recurred.
7. The Appellant's physician determined that the dynamic flotation device would permit regular cooling of the Appellant's skin, allow air contact, and rotate areas of the skin that are in contact with the mattress. This regimen would relieve the Appellant's chronic skin conditions.
8. On January 26, 1996, the Appellant's physician requested prior approval for DFS Advanced Dynamic Flotation System for the Appellant.
9. On March 21, 1996, the Agency determined to deny the Appellant's physician's prior approval request.
10. On April 8, 1996, the Appellant requested this fair hearing.
APPLICABLE LAW
Section 365-a of the Social Services Law provides in part:
2. "Medical Assistance" shall mean payment of part or all of the cost of medically necessary medical, dental and remedial care, services and supplies, as authorized by this title or the regulations of the department, which are necessary to prevent, diagnose, correct or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere with such person's capacity for normal activity, or threaten some significant handicap and which are furnished an eligible person in accordance with this title and the regulations of the department.
Section 364.2 of the Social Services Law provides in part, as follows:
The department of health shall be responsible for . . .
(b)establishing and maintaining standards for all non-institutional health care and services rendered pursuant to this title, . . .
Pursuant to Department regulations at 18 NYCRR 513.0, where prior approval of medical, dental and remedial care, services or supplies is required under the MA program, such prior approval will be granted when the medical, dental and remedial care, services or supplies are shown to be medically necessary to prevent, diagnosed correct or cure-a condition of the recipient which: (1) causes acute suffering; (2) endangers life: (3) results in illness or infirmity; (4) interferes with the capacity for normal activity: or (5) threatens to cause a significant handicap. Pursuant to 18 NYCRR 513.6, the determination to grant, modify or deny a request initially must be made by qualified Department of Health professional staff exercising professional judgment based upon objective criteria and the written guidelines of the Department of Health and the regulations of this Department, and commonly accepted medical practice.
Section 2.1.4 of the New York State Medicaid Management Information System (MMIS) Durable Medical Equipment Provider Manual defines prior approval as the process of evaluating the aspects of a plan of care which may be for a single service or an ongoing series of services in order to determine the medical necessity and appropriateness of the care requested.
DISCUSSION
The Agency contends that there are alternative cushioning devices which may be placed atop the Appellant's bed which would meet his medical needs. The Appellant's representative provided verification that the alternative devices have already been attempted without success. The Appellant's present bed is of the foam type, similar to one of the Agency's suggestions. The Appellant's wife has ruled out a water bed because it is very difficult to reposition the Appellant, and temperature control is difficult, in addition, a water bed permits contact between a large area of mattress and the skin, which makes evaporation of perspiration almost impossible.
The Appellant's physician's report indicated that he has been frustrated by the chronic skin deterioration. It is acknowledged that most persons of the Appellant's deteriorated condition would be hospitalized. Appellant's wife detailed how difficult it is to turn her husband over in his bed, taking between ten and twenty minutes. He is not very heavy (165 lbs), but is tall (6'). He is subject to involuntary spasms, which require her to be careful that he does not fall. She still turns him at least every two hours, some times as often as every forty five minutes. He has a dislocated shoulder which makes turning painful. He also has periodic incontinence and catheter tubes, which making turning slow and difficult. She must continue to turn him on a regular basis, even during the night. He receives regular massages, lotions and physical therapy. However some areas of his skin are now so deteriorated, even constant changes of position will not remedy them.
The Appellant's physical therapist testified that she has seen patients in the area who have responded very favorably to the requested system. Two of the patients had worse skin condition than the appellant's.
The evidence established that the pressure sores, skin and medical conditions have not responded to the less costly alternatives suggested by the Agency. The Appellant's physician, physical care providers and medical equipment supplier, are of the opinion that the recommended device would relieve the Appellant's suffering and improve his medical condition. Those opinions are consistent with the other evidence. Accordingly, the Agency determination is now reversed. As all this evidence and testimony was not available to the Agency at the time it made its determination, that determination was correct when made.
DECISION AND ORDER
The determination of the Agency to deny the Appellant's physician's prior approval request was correct when made; However, based upon the additional evidence presented at the hearing and after the denial, the Agency is directed to provide prior approval for the DFS system and attachments requested by the Appellant's physician.
As required by Department Regulations at 18 NYCRR 358-6.4, the Agency must comply immediately with the directive set forth above.
DATED: Albany, New York
August
21, 1996
NEW YORK STATE DEPARTMENT
OF SOCIAL SERVICES
By
Commissioner's Designee
REQUEST:March 12, 1993
PRIOR APPROVAL NO.88949692
CASE No. n/a
CENTER No. OHSM
FH No. 1947172Y
STATE OF NEW YORK
DEPARTMENT OF SOCIAL SERVICES
In the Matter of the Appeal of
Edward S
DECISION
AFTER
FAIR
HEARING
from a determination by the Office of
Health Systems Management of the New
York State Department of Health
(hereinafter referred to as the
Agency or OHSM)
JURISDICTION
Pursuant to Section 22 of the New York State Social Services Law (hereinafter Social Services Law) and Part 358 of the Regulations of the New York State Department of Social Services (Title 18 NYCRR, hereinafter Regulations), a fair hearing was held on May 18, 1993, in Erie County, before Stephen V. Cordovani, Administrative Law Judge. The following persons appeared at the hearing:
For the Appellant
Edward S, Appellant; William Mastroleo, Attorney; Martha Farewell, Speech Therapist-UCPA; Jennifer Kuhn, Speech Pathologist-UCPA; Mary Marranca, Client Coordinator
For the Office of Health Systems Management
Personal Appearance waived
ISSUE
Was the Agency's determination to deny the Appellant's physician's prior approval request correct?
FACT FINDING
An opportunity to be heard having been afforded to all interested parties and evidence having been taken and due deliberation having been had, it is hereby found that:
1. The Appellant, age 46, has a primary diagnosis of cerebral palsy and is in receipt of a Medical Assistance authorization.
2. The Appellant currently resides at a United Cerebral Palsy Association Intermediate Care Facility and is scheduled to move into a supervised independent program in July of this year.
3. The Appellant is non-ambulatory and has intact language skills. The Appellant also possesses a normal range intellectual functioning but cannot speak intelligibly.
4. On December 31, 1992, the Appellant's physician requested prior approval for a Headpointing Liberator Speech Prosthesis (Liberator) rental with accessories for the Appellant.
5. On February 16, 1993, the Agency determined to deny the Appellant's physician's prior approval request modifying such request to grant authorization for a Light Talker, a different kind of speech prosthesis
6. On March 12, 1993, the Appellant requested this fair hearing.
APPLICABLE LAW
Section 365-a of the Social Services Law provides in part:
2. "Medical Assistance,, shall mean payment of part or all of the cost of medically necessary medical, dental and remedial care, services and supplies, as authorized in this title or the regulations of the department, which are necessary to prevent, diagnose, correct or cure conditions in the person-that cause acute suffering, endanger life, result in illness or infirmity, interfere with such person's capacity for normal activity, or threaten some significant handicap and which are furnished an eligible person in accordance with this title and the regulations of the department.
Section 364.2 of the Social Services Law provides in part, as follows:
The department of health shall be responsible for . . .
(b)establishing and maintaining standards for all noninstitutional health care and services rendered pursuant to this title. . . .
Section 2.1.4 of the New York State Medicaid Management information System (MMIS) Durable Medical Equipment Provider manual defines prior approval as the process of evaluating the aspects of a plan of care which may be for a single service or an ongoing series of services in order to determine the medical necessity and appropriateness of the care requested.
Section 2.2.2.B. of the MMIS Durable Medical Equipment Provider Manual and, effective February 20, 1991, Department Regulations at 18 NYCRR 505.5(a)(1) define "Durable Medical Equipment" as:
devices and equipment, other than prosthetic or orthotic appliances, which have been ordered by a qualified practitioner in the treatment of a specific medical condition and which have all of the following characteristics:
- Can withstand repeated use for a protracted period of time;
- Are primarily and customarily used for medical purposes;
- Are generally not useful to a person in the absence of an illness or injury; and
- Are usually not fitted, designed or fashioned for a particular individual's use.
- Where equipment is intended for use by only one patient, it may be either custom made, or customized.
"Custom-made" means fabricated solely for a particular individual and cannot be readily changed to conform to another recipient's needs. It usually requires the recipient to be measured for custom fitting and/or molding of components.
"Customized" refers to a stock item that has modifications made and/or attached (to it) to meet a recipient's needs. These modifications may be changed (by adding or deleting items such as armrests, etc.) to return the item to stock.
DISCUSSION
In reviewing the Appellant's request for a Liberator speech prosthesis, the Agency acknowledged that the Appellant is in fact in need of a communication system. In determining to deny the Appellant's prior approval request for the Liberator however, the Agency determined that the Light Talker met the Appellant's "medical needs to prevent acute suffering, alleviate life endangerment and to promote a person's capability for normal activity". Agency exhibit 1, at page 5. Such conclusion, however, is not supported by the fair hearing record.
At the hearing, Martha Farewell, a speech pathologist who examined the Appellant to determine his suitability for a speech device testified that the Light Talker had a memory capacity of 32K or approximately 6400 words. She went on to indicate that the normal adult vocabulary consisted of 36,000 words. The Liberator, she testified, had 512k in memory capacity permitting 102,000 words or sentence structures. To illustrate the difference between the two units, Ms. Farewell equated the Light Talker to a four-year old vocabulary and the Liberator to an adult vocabulary. Such characterization tends to support the finding here that the Liaht Talker does not in fact, at least as to this Appellant, prevent acute suffering, alleviate endangerment or promote a person's capability for normal activity as the Agency contends it would.
This is particularly the case where the Appellant is scheduled to depart the ICF where he currently resides and move into a supervised independent living program. Pursuant to such program, the Appellant will be moving into an apartment in the community with another disabled individual. This, and an additional, adjacent apartment with two disabled residents will be supervised by one individual. In such setting, the Appellant would be responsible for virtually all facets of his life including scheduling medical appointments and arranging transportation to and from such appointments, paying his own bills, and other related items. Ms. Farewell testified that because of its limited memory capacity, the Liaht Talker would not be able to accommodate all of the needs placed upon it by the Appellant in such a setting.
Ms. Farewell also noted that the Liberator has 1/4 row scanning and icon prediction as opposed to the Light Talker which only has row/column scanning. The result is that the Liberator has a 75 percent faster access time. This will be particularly significant when the Appellant is in the community and will be required to communicate quickly and effectively in a number of different settings. Again, in Ms. Farewell's opinion, as well as that of the other representatives at the hearing, the Light Talker could not adequately fill such need.
Lastly, it is noted that because the Appellant has normal cognitive ability and is functioning mentally at an adult level, he is undergoing counseling to help him deal with the many frustrations and limitations he experiences as a result of his cerebral palsy. A statement from the Appellant's counselor was submitted at the hearing. The counselor indicates in such statement that he believes the use of a Liberator would reduce the Appellant's "frustrations in communicating with others, which would have a positive impact on his mental health." He also believes that the Liberator would allow the Appellant to "maximize his counselling sessions." According to Ms. Farewell, the Light Talker would be of limited assistance to the Appellant in this regard. She therefore contends, as does the Appellant's counselor, that the Liberator is needed.
Based on all of the foregoing it is found here, contrary to the contention of the Agency, that the Light Talker does not meet the Appellant's need to "prevent acute suffering, alleviate life endangerment and to promote a person's capability for normal activity". As this is a need which was identified by the Agency and one which the Agency concurs must be met through the Medical Assistance program, it is found here that the Appellant's prior approval request for the Liberator, which credible testimony at the hearing establishes would meet such objective, is to be approved by the Agency.
DECISION AND ORDER
The determination of the Agency to deny the Appellant's physician's prior approval request is not correct and is reversed.
The Agency is directed to provide to the Appellant the rental of a Liberator speech prosthesis in accordance with the Appellant's physician's prior approval request.
As required by Department Regulations at 18 NYCRR 358-6.4, the Agency must comply immediately with the directives set forth above.
DATED: Albany, New York
May
28, 1993
NEW YORK STATE DEPARTMENT
OF SOCIAL SERVICES
By
Commissioner's Designee