1. REPRESENTING CLIENTS WHO CHALLENGE MEDICAID WAIVER DETERMINATIONS BY THE AGENCY FOR PERSONS WITH DISABILITIES (APD) Overview of Medicaid & Medicaid Waiver Programs November 14, 2008 Tallahassee, Florida Anne Swerlick, Florida Legal Services, Inc.

2. Medicaid Basics Medicaid, created by Congress in 1965, is the largest publicly funded health care program for low income individuals and families. – Covers 2.3 million Floridians annually Medicaid is the largest source of federal funding in Florida. – Federal government pays about 57¢ of every $1 spent by the state on Medicaid.

3. State and Federal Administration Medicaid is jointly administered by the state and federal governments. – U.S. Centers for Medicare and Medicaid Services (CMS) – Florida Agency for Health Care Administration (AHCA) – ”designated single state agency.” Federal statute includes “mandatory” and “optional” coverage groups and services. 42 U.S.C.§§1396a(a) (10)(A) & 1396d(a) For the adult population, states can decide which optional services it will cover.

4. Medicaid Eligibility Being poor is not enough; You must also meet: – Categorical requirements (e.g., 65+ or disabled - “SSI-related” categories) – Financial requirements (e.g., must have low enough income and assets to qualify for SSI) – Technical requirements (e.g., residency & a citizen or “qualified alien”) See SSI-Related Fact Sheets

5. Medicaid Services for Adults Florida Medicaid Mandatory Services- See § 409.905, Fla. Stat. & Medicaid Provider Handbooks for service descriptions and limitations: – Advanced Registered Nurse Practitioner Services – Family Planning – Home Health Care – Hospital Inpatient – Hospital Outpatient – Independent Lab – Nursing Facility – Physician Services – Portable X-ray Services – Rural Health – Transportation

6. Florida “Optional” Services for Adults – Dental, vision, optometric & hearing services – Chiropractic & podiatry services – Adult Health Screening – Durable medical equipment – Prescribed drugs – Dialysis facility services – Birth center services – Healthy Start services – Community mental health services See § 409.905, Fla. Stat. & Medicaid Provider Handbooks for service descriptions and limitations – Hospice care – Intermediate Care Facilities/Developmentally Disabled – Intermediate Nursing Home care – Physician Assistant Services – Assistive Care services – Child welfare targeted case management – State hospital services – Registered nurse first assistant services – Home and community based services under a waiver program – Anesthesiologist assistant services

7. Federal Medicaid Service Requirements Services must be: – “Sufficient in amount, duration & scope to reasonably achieve their purpose.” – Statewide – Comparable within coverage groups & between coverage groups States may place limits on services based on “medical necessity” criteria. States may impose other service utilization controls, such as prior authorization.

8. Medicaid Services for Children & Youth up to Age 20 Medicaid-eligible children/youth are entitled to a comprehensive benefit package called “EPSDT” services, referred to in Florida as the “Child Health Check-Up Program.”

9. WHAT IS “EPSDT?” Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Includes any “necessary health care, diagnostic services, treatment and other measures…to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5) All mandatory and optional services under the federal Medicaid statute must be made available to Medicaid-eligible children /youth through age 20.

10. EPSDT Federal Requirements EPSDT services cannot be capped. There can be no waiting lists for EPSDT services. ● There can be no charge for EPSDT services. ● EPSDT services can be used in conjunction with Medicaid waiver services.

11. Medicaid Waiver Programs- Federal Law In 1981, Congress created the Home and Community- Based Waiver program. 42 U.S.C. §1396n ( c). The law permits states to offer, under a waiver program, an array of home and community based services that an individual needs to avoid institutionalization. 42 C.F.R.§ 441.300.

12. Developmental Disabilities (DD) Waiver Program The DD waiver program targets individuals who otherwise would need care in a nursing home or ICF/DD. – An ICF/DD is a Medicaid funded facility providing residential, health and habilitation services to persons with developmental disabilities, such as mental retardation. – Habilitation services are “services designed to assist individuals in acquiring, retaining, and improving the self- help, socialization, and adaptive skills necessary to reside successfully in home and community based setting:..” 42 U.S.C. § 1396n (c ) (5).

13. Medicaid Waiver Flexibility Waivers allow states to avoid federal requirements that would otherwise apply under Medicaid law. – For example, states can: target particular populations, (e.g., persons with developmental disabilities); limit the number of people receiving waiver services; offer additional services not available under the state plan; (e.g., habilitation services) or limit the program to certain geographic areas.

14. Federal Waiver Assurances The state must guarantee under their waiver programs that “necessary safeguards…have been taken to protect the health and welfare of individuals provided services under the waiver…” 42 U.S.C. 1396 n (c )(2)(A). The state must spend less per capita under the waiver than it would without the waiver (i.e., less than the cost of institutional care, referred to as “cost neutrality.”)

15. State Authority for Florida’s Developmental Disabilities (DD) Waivers Authorized under §§ 409.906(13) & 393.0661, Fla. Stat. – See also Fla. Admin. Code Rules 65G-4.0021-.0025. The DD Waiver program now includes multiple waivers corresponding with the new 4 tier system. Florida’s waiver applications submitted to the federal government define the target population and services offered under each of the waivers. – These documents are not online, but can be obtained from AHCA through public records requests.

16. DD Waiver Eligibility Determinations DD Waiver applicants must first apply and be determined eligible for services through their local Agency for Persons with Disabilities (APD) office. Once determined eligible for APD services, there is a separate eligibility determination for DD waiver services.

17. DD Waiver Eligibility con’t. Waiver applicants must meet the following criteria: – Be three (3) or older; – Have a diagnosis of a developmental disability before age 18; – Have a primary disability of mental retardation (IQ of 59 or less) or – Have a primary diagnosis or MR (IQ of 60-69) and severe functional limitations in at least 3 major life areas; or – Have a primary diagnosis of autism, cerebral palsy, spina bifida, or Prader-Willi Syndrome and severe functional limitations in at least 3 major life areas. – Meet “level of care” criteria for placement in an ICF/DD.

18. DD Waiver Eligibility con’t. Waiver services must be needed for a person to remain in the community; The applicant or legal guardian must choose to receive services in a non-institutional setting.

19. Waiver Eligibility Con’t. If the person is not already Medicaid eligible, a separate Medicaid application must also be filed with the Department of Children and Families (DCF). DCF determines technical & financial Medicaid eligibility for the Waiver program. – Income must be not greater than $ 1911 per month for an individual (300% of the SSI limit ); – Assets must be at or below $2,000; – Parents’ income and assets are not counted towards Medicaid waiver eligibility for their minor and adult children.

20. Waiver Waiting Lists Enrollment on the DD Waivers is capped. – About 30,000 individuals are currently served under DD Waiver programs; Once determined eligible, a waiver applicant is likely to be placed on a waiting list due to lack of funded waiver slots.

21. Waiver Waiting List con’t. The central APD office maintains a statewide waiting list. – 16,000+ are on the waiting list. – Children in foster care are required to be placed at the top of the waiting list. See 393.065, Fla. Stat. – Also persons determined to be “in crisis” go to the head of the line. See Fla. Admin. Code R. 65G- 1.046.

22. Agency Responsibilities- AHCA Agency for Health Care Administration (AHCA) – As the “single state agency” is responsible to the federal government for operation of the DD Waiver program in compliance with federal law; – Provides oversight of the DD Waiver program through an interagency agreement with APD;

23. AHCA responsibilities con’t. – Is responsible for submitting waiver applications and amendments and getting approval from the federal government; – Promulgates the DD Medicaid Waiver Provider Handbook incorporated by reference into Fla. Admin. Code R. 59G- 13.080(12). – Pays claims submitted for reimbursement by waiver providers. – Oversees all 15 home and community based waiver programs, including waivers not serving persons with developmental disabilities.

24. Agency Responsibilities- APD Agency for Persons with Disabilities (APD) – AHCA has delegated authority to APD for operation of the DD Waivers. – APD is responsible for: making DD waiver eligibility determinations (except the financial and technical Medicaid eligibility determinations); overseeing service planning and delivery under the DD waivers; Monitoring waiver expenditures against approved limits; licensing various residential facilities where DD Waiver clients are served (e.g., group homes, foster homes, residential habilitation facilities).

25. Agency Responsibilities -DCF Department of Children & Families (DCF) – Responsible for making Medicaid eligibility determinations, including for all waiver program applicants; – Adults with disabilities will be required by DCF to apply at Social Security for social security benefits; Persons qualifying for Supplemental Security Income (SSI) are automatically determined Medicaid eligible by the Social Security Administration.

26. THE END CONTACT INFORMATION: Anne Swerlick Florida Legal Services 2425 Torreya Drive Tallahassee, Fl. 32303 850-385-7900 x 1813 anne@floridalegal.org