When an individual resides in a nursing home and receives Medicaid benefits, the facility is paid an all-encompassing per diem rate which is designed to cover all of the costs of medically necessary services that the facility provides to the resident. There are times that a facility declines to provide some specialty service or equipment because of its extra cost, or the facility seeks Medicaid reimbursement for the service and is rebuffed by the Division of Medical Assistance and Health Services (DMAHS). The remedy is for an appeal to be taken. The Medicaid recipient is the petitioner, and seeks a Fair Hearing at the Office of Administrative Law. In a recent case, the nursing home resident had her day in court but the total record was considered insufficient for the Appellate Division, which remanded for further findings. The case is called M.S. v. Div. of Med. Assistance and Health Serv., App. Div. (per curiam)
M.S. was a 73-year-old hemiplegic who resided in a health care facility and used a wheelchair. She asked the Division to authorize a power wheelchair for her because of her difficulties in operating the one-armed manual wheelchair she was using. The division denied the application, saying that the wheelchair was considered part of the per diem rate paid to the facility under N.J.A.C. 10:59-1.4(a)(4). After her Fair Hearing, the Administative Law Judge (ALJ) reversed the denial, and found that the deterioration and pain in petitioner’s right shoulder were caused by her manual wheelchair and would be alleviated by a power wheelchair. The Judge found that a power wheelchair was medically necessary. The Director of DMAHS reversed the ALJ. M.S. appealed to the Appellate Division.
The Appellate panel found that: (1) power wheelchairs were “not routinely used” or essential to the facility’s function, and as such they were not considered part of the facility’s per diem rate, and (2) the power wheelchair was not excluded by (a)(4) and could be covered if “required due to the medical need of” petitioner; (3) petitioner showed that a power wheelchair was medically necessary; (4) there was no sufficient, competent and credible evidence to support the director’s conclusion that the facility was required under the Medicaid per diem rate to push petitioner’s wheelchair. However, the Court found the record below to be inadequate because the ALJ made no finding on whether the purchase of the power wheelchair was a cost-effective solution to petitioner’s increasing difficulty in propelling herself to activities with the manual wheelchair. The decision below was vacated and remanded for further fact-finding proceedings.
As the saying goes, “the squeaky wheel gets the oil” or “don’t ask, don’t get,” and this is certainly true when it comes to advocating for residents’ needs in a nursing home. And when pursuing administrative appeals — especially in the Medicaid context, given the high rate of reversal — it is particularly important to make sure that you introduce copious evidence through documents or testimony to substantiate every single fact that would be necessary to support the decision you are looking for.
Call us for representation on Medicaid applications and fair hearings … 732-382-6070
