Medical-legal partnership honored for work on Medicaid waiver issue

April 22, 2015

The first hint that something had changed came from a phone call.

A client in the Stabilization Treatment and Rehabilitative Services program at Eskenazi Health Midtown Community Mental Health was agitated and upset over a letter he had received informing him he was no longer eligible for a Medicaid waiver.

Losing the waiver would have taken away the support he relied on to live semi-independently in the community. He was at risk of having his cognitive and mental health issues worsen and possibly becoming homeless.

After that first phone call, other clients started coming forward with the same notification. The STARS staff saw some clients who had been receiving the waivers were being found ineligible and a few first-time applicants for the waivers who seemed to meet the qualifications were getting denied.

The apparent resolution to the waiver problem came more than a year later with, ironically, a letter to the Indiana Family and Social Services Administration which administers the Medicaid waivers.

Through the Midtown Medical-Legal Partnership, STARS staff, including manager Meg Kovacs, and attorney Jay Chaudhary at Indiana Legal Services were able to figure out what has happening and alert the FSSA.

Neither Kovacs nor Chaudhary believe they would have been able to determine by themselves the reason behind the denials. They both attribute the collaboration that the medical-legal partnership fosters with helping to connect the dots, identify the source of the problem and reach a solution.

The integration between the hospital and the legal aid office coupled with the sustained effort to remedy the waiver issue earned the Midtown Partnership national recognition. In April, the National Center for Medical-Legal Partnership presented the Indianapolis-based partnership with a 2015 Outstanding MLP Award.

‘Going upstream’

Chaudhary described the STARS clients who receive Indiana’s Home and Community-Based waivers as “especially vulnerable.”

These are individuals who have a dual diagnosis of a mental illness and intellectual-development disability. They typically have an IQ under 70 and require specialized treatment.

The waivers create the infrastructure that make it possible for recipients to live in the community and have a support staff to help them with household chores like grocery shopping, cooking, making doctor appointments and paying bills.

Without the staff to provide care and assistance, these clients, Kovacs said, would likely have their mental illness exacerbated and could suffer what she called “spirit-breaking events” such as losing their job, their home, even ending up in jail or the hospital.

Unpacking the source of the denials took 18 months. As part of his work representing some clients in the administrative appeals process, Chaudhary combed through the individuals’ files, numbering 400 to 500 pages each.

He and the Eskenazi Health Midtown staff started “going upstream” to look for the source of the problem. The partnership learned the denials began after the FSSA switched to using the Level of Care Screening Instrument in 2012 to evaluate the STARS clients.

Next, the partnership drafted a three-page letter to FSSA, explaining what was happening with the STARS clients and outlining the problem with the 2012 screening instrument. Chaudhary and Kovacs said they were concerned about striking the right tone that would lead to a resolution rather than a confrontation.

“I think it was a much more effective way of doing this instead of just jumping straight into a lawsuit,” Chaudhary said. “There are times when advocates need to be more aggressive, but I think this was more just the state not realizing what was happening with this population.”

The Indiana FSSA declined to comment, citing ongoing litigation over this matter brought by other attorneys not connected to the Midtown Partnership.

Class action

The Midtown Partnership letter highlighted the problems with the way the evaluation was being conducted and with the assessment tool’s focus solely on the client’s behavior.

Clients and their caregivers told Midtown they had been called by FSSA’s Bureau of Developmental Disability Services and asked a series of questions. At no time were they informed they were being screened for waiver eligibility.

The letter pointed out the interviewers took these clients at their word and often failed to recognize dually diagnosed individuals sometimes don a “cloak of confidence” where they overstate their level of independence.

The bureau took the position that some clients’ problems stemmed from behavioral issues which made them ineligible for the waiver. The bureau did not consider that the behavior could be caused by the disability or the mental illness, or a combination of both.

“Unfortunately, this incorrect assumption appears to guide every step of (the bureau’s) eligibility procedures, and individuals with dual diagnoses are disproportionately harmed,” the letter stated.

Separately from the Midtown Partnership, the switch to a different evaluation tool spawned a class-action complaint filed in June 2014 in Marion Superior Court.

The lawsuit alleges the Indiana Family and Social Services Administration violated the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 along with the 14th Amendment of the U.S. Constitution. The filing contends the agency’s adoption of the 2012 Level of Care Screening Instrument was done without proper rulemaking which violated the Indiana Administrative Rules and Procedures Act.

The named plaintiff, Richard Baltzell, is a 33-year-old man with developmental disabilities and mental health conditions. He started receiving the waiver in 2006 but after being evaluated by the new method, he was informed in December 2012 that he no longer qualified for the support.

Baltzell’s attorney, Syed Ali Saeed of Saeed & Little LLP, echoed Chaudhary, saying these plaintiffs have no one else to turn to for help.

The Office of the Indiana Attorney General has opposed the plaintiffs’ motion for preliminary injunctive relief and motion for class certification. In those filings, the FSSA argued 99.12 percent of the individuals evaluated with the screening instrument qualified for a Medicaid waiver. Moreover, the FSSA told the court that enjoining the agency from using the testing tool would be financially crippling because private contractors would have to be enlisted to help with the assessments.

As an alternative, the agency asked the court to allow it the time to implement an interim solution that addresses Baltzell’s concerns.

Apparent resolution

Although the Midtown Partnership has not gotten any response from FSSA since sending the letter, the STARS staff has noticed a “whole-hearted turnaround,” Kovacs said. Clients are not being denied waivers, and those who were turned down are being re-evaluated.

Also, Baltzell’s lawsuit appears headed for a conclusion outside the courtroom. The Marion Superior Court has since granted a joint motion for stay of the preliminary injunction and class certification motions. Saeed said the two sides are in settlement talks and he is hopeful the issue will be resolved soon.

Even if the FSSA had made a public announcement it was adopting the new screening instrument, social workers might not have immediately realized the consequences, Kovacs said. And she noted sending a letter enabled Midtown and the state agency to work collaboratively.

“We depend on them and they depend on us,” she said.•


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