>David,
>  Does this mean that once the child turns 18 or 21 that we are back to
>square one?
>  Or is the waiver system still illegal? My son was injured at 17 years
>old but is now 22. He is being rejected for community services because the
>waiver program doesn't work with his managed care Medicaid program. (in
>our county SSI Medicaid recipients are required to participate in a trial
>program that breaks them into 3 groups, 2 HMO or 1 managed care plan). The
>managed care plan best meets his medical needs but offers no community
>services. I am being forced into choosing between his medical needs and
>the community supports that could offer him so much.

I don't know, but it looks like they are supposed to do what they are
supposed to do. I do know that if you've asked for services (i.e., HBOT for
brain-injury) under EPSDT then those services (HBOT for brain-injury) must
continue/cannot be denied once the recipient turns 21 and is receiving
adult Medicaid.

It looks to me like there are two different intents of Medicaid.

(A) Providing for healthcare services for people who don't have the income
or other financial resources to afford healthcare on their own and

(B) Providing healthcare services to disabled individuals that includes
"rehabilitation and other services to help such families and individuals
attain or retain capability for independence or self-care."

What does that mean?

I would think it means, if a person cannot attain or retain the capability
for independence or self-care due to a brain-injury [or anything else] that
if a rehabilitation or "other services" are available that would in fact
"help" "such...individuals" repair their brain-injury to the extent that
they could "attain or retain capability for independence or self-care" then
(1) they would automatically qualify for Medicaid and (2) Medicaid would be
obligated to pay for anything that would "help them attain or retain
capability for independence or self-care."

Here's the reference again, found at
http://caselaw.lp.findlaw.com/casecode/uscodes/42/chapters/7/subchapters/xix/sec
tions/section%5F1396.html :

"For the purpose of enabling each State, as far as practicable under the
conditions in such State, to furnish (1) medical assistance on behalf of
families with dependent children and of aged, blind, or disabled
individuals, whose income and resources are insufficient to meet the costs
of necessary medical services, and (2) rehabilitation and other services to
help such families and individuals attain or retain capability for
independence or self-care, there is hereby authorized to be appropriated
for each fiscal year a sum sufficient to carry out the purposes of this
subchapter.  The sums made available under this section shall be used for
making payments to States which have submitted, and had approved by the
Secretary, State plans for medical assistance [F].

Now this might seem like a stretch, but I don't think so, based on our own
personal experience. The 'interpretation' given above is literal and
literally taken from the statute itself as found in the US Code itself at
42 USC § 1396d.

How could this be interpreted any other way?

In our own case we were told that Medicaid would only pay for treatments
and/or services that Georgia Medicaid itself had the sole authority to
decide what was or was not "medically necessary"; however, the Georgia
State Court of Appeals interpreted Paragraph 5 of 42 USC § 1396d(r)(5)
literally to mean treatments and/or services for Jimmy (and other Medicaid
recipient children) must be evaluated on whether they are "necessary to
correct or ameliorate." [reference
http://groups.yahoo.com/group/medicaidforhbot/files/Georgia.Appeals.Court.PDF ]

I think this opens the doors for any disabled person--child or adult--to
automatically qualify for Medicaid assistance and thus means the waiver
system is illegal.

Such an interpretation would also mean the cost of "rehabilitation and
other services" would be quite expensive--at least initially; however, this
would also create an incentive on the part of the Medicaid system to find a
way to reduce those costs.

Historically the method for reducing costs has been to deny services. Under
a literal interpretation of the federal statute the incentive would be to
look for something that instead helps "individuals attain or retain
capability for independence or self-care."

If individuals attain or retain capability for independence or self-care
they would no longer qualify for Medicaid assistance.

Which is as it should be.

Hmmm.


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"For everyone who asks receives; he who seeks finds; and to him who knocks,
the door will be opened." [Luke 11:10]


David Freels
2948 Windfield Circle
Tucker, GA 30084-6714
770/491-6776 (phone and fax)
509/275-1618 (efax, sends fax as email attachment)
mailto:[log in to unmask]

http://www.freelanceforum.org/davidfreels