Minnesota Department of Human Services
DECISION OF STATE AGENCY ON APPEAL
In the Appeal of:
--~- , Appellant
For: Consumer
Directed Community Supports
MR/RC Waiver
Agency: Ramsey County
Social Services
Docket: 83296
On February 23, 2005, Appeals Referee Louis Thayer held an evidentiary hearing under
Minn. Stat. § 256.045, subds. 3 and 4a.
The following persons appeared at the hearing:
--Appellant
-- parents of the appellant
Jacki McCormack, Arc Great Rivers
William Fisch, Appeals Specialist, Ramsey County Social Services
Sandra Foy, Services Coordinator, Ramsey County Social Services
Suzanne E. Levy, Social Worker, Ramsey County Social Services
The referee, based on the evidence in the record and considering the arguments of the
parties, recommends the following findings of fact, conclusions of law and order.
STATEMENT OF ISSUE
The issue raised in this appeal is:
Whether the county agency correctly denied assistance through Consumer Directed
Community Supports (CDCS) funds for certain items in the appellant's 2005 plan
based on the agency's determination that the items were not cost effective, were
covered by other third party funds, should be covered by normal parental/family
contributions or were not within the CDCS program parameters.
FINDINGS OF FACT
1. On December 28, 2004, Ramsey County Human Services sent the appellant a written notice of action denying several items in his 2005 Consumer Directed Community Supports (CDCS) plan.
1 On January 20,2005, on behalf of the appellant, his mother signed an appeal request. On January 24,2005, the state appeals agency received the appeal request. On February 23,2005, the referee conducted a hearing at the Minnesota Department of Human Services Building, 444 Lafayette Road in St. Paul, Minnesota. The referee kept the record open for the parties to submit additional documents and potentially resolve one or more of the outstanding issues. The referee received additional submissions from both parties. The parties were not able to resolve any of the outstanding issues. The referee closed the record, consisting of five exhibits, on March 15,2005.
2. The appellant is appealing the county agency's denial of assistance under the CDCS program for several items in his 2005 CDCS plan. The county agency denied the assistance because it determined that the items were not cost effective, could be covered by other third party funds, should be covered by normal parental/family contributions or were not within the CDCS program parameters.
3. The appellant is an eighteen-year-old who has severe developmental delays
due to Down’s syndrome. He also has an autism diagnosis and is legally blind with
vision at 20/200 or worse. He is described as stocky and hard to find standard clothing sizes to fit him. The appellant has had a series of respiratory, sinus and ear infections. Id. He was recently diagnosed with some hearing
1 Exhibit 2 contains the packet of documents that the county agency submitted with its case-in-chief including the appeal summary, CDCS service categories, CDCS expenditures attachment, CDCS plan approval/denial form, annual support plan and ISP.
2 The contents of exhibit 3 are the appellant's documents in support of his case-in-chief including photos of his special glasses, rationale for the various requested items, letters of support from physicians and other supporting documents.
3 loss at the time of the hearing in this matter was undergoing some evaluations for
hearing aids. He takes medications (Seroquel and Luvox) for behavioral outbursts. He
has self-injurious behaviors. He can also be injurious to others and to property. He has
broken several pairs of eye-glasses of his parent and siblings. In the area of self-cares,
the appellant is able to feed himself with a spoon and drink from a cup but needs frequent
reminders and close supervision. He has delays in his physical development. He is
hypotonic or diminished muscle tone. This manifests in poor stability in hips and
shoulders and poor trunk development. He has underdevelopment of gross and fine
motor skills. He functions at a 12 to 14-month old level in gross motor skills. He has
poor equilibrium and is only able to ambulate short distances. He uses a wheelchair for
long distances. The communication section of his ISP indicates that the appellant has a good size vocabulary .However, his "receptive and expressive language skills are severely delayed as related to his diagnosis of Down's syndrome." The section goes on to note "At this time speech therapy was determined to be unnecessary because skills were at approximately the same level." Id.
4. The appellant's parents outlined several items that the county agency denied
the appellant's 2005 CDCS plan. Each item and the parties' rationale for support and
denial are outlined in the following paragraphs.
5. The appellant's parents argued that he needed $5,200 per year for housekeeping services. The rationale offered was that the appellant sits on the floor a lot
and therefore it needs to be cleaned frequently for safety reasons. In addition, the areas to
be cleaned weekly are the primary areas where the appellant spends his time. Adults are
not able to supervise the appellant and do housekeeping at the same time. The appellant's
parents also try to engage him in the housekeeping activities such as laundry but this
increases, rather than reduces, the amount of time needed to complete the household
chores. The appellant also has been ill so that he has missed several days of school remaining at home or attending medical appointments. The appellant's parents noted that the appellant has had 10 absences in the first three months of 2005. The county agency denied $5,200 for housekeeping (at $100/week for the year) and instead approved half of this amount or $2,600 for the year (cleaning every other week). The county agency noted that the appellant already receives 6 hours per day for supervision, is enrolled in public school for the better part of the day and receives an additional 120 hours of support for non-school days. The county's rationale was also that the level of service sought "would be more appropriate for a person who is living in their own home with some physical disabilities, has no unpaid support system and needs this level of service to maintain a safe and healthy environment." The county agency also thought it would be useful to try to engage the appellant on some of the housekeeping.
6. $500 of CDCS funds for an air purifier and filters. The appellant's parents
argued that the air purifier and filters are needed to reduce the appellant's allergies. In
particular, they cited to information about ear, nose and throat (ENT) problems common
in many people with Down's syndrome. The appellant has frequent sinus and ear
infections and sleep apnea. They believed that an air purifier would aid in combating
these symptoms. Finally, the parents noted that appellant's ENT problems are well-
documented in his ISP. The county agency cited failure of the ISP to include any allergies and no way of knowing if the infections could be caused by the allergies. The county agency did not see a direct connection between- the appellant's disability and any medical need for an air purifying system. Also, the county agency argued that there was no proof that the air purifier would alleviate the condition.
7. $650 of CDCS funds for replacement of eyeglasses. The appellant's parents detailed the numerous outbursts that the appellant engages in and the frequent property destruction including eye glasses for his parents and siblings. The appellant has
prescription lens and sought funds for non-breakable frames. The estimate from an
optometrist was $636. The county agency denied the request for $650 for eyeglass replacement. The county agency cited the program policy that requires that an expenditure be the least costly alternative to meet the appellant's needs. The county agency noted that $450 for glasses was approved last year. It thought flexible frames typically cost between $150 and $200, although the referee could not find any documentation from an optometrist for the county worker's estimate. The county questioned why only one bid was given instead of multiple bids. Lastly, the
county noted the additional costs for non-glare, transition lenses was more for
convenience than for medical need.
8. $650 CDCS funds for clothing and clothing alterations.
The appellant is four feet, three inches tall. He weighs 139 pounds. His waist
is 34 inches and his inseam is 21 inches. These are well outside the standard
chart for individuals. The appellant sought CDCS funds to cover the costs of
several items of clothing and alterations. "Wearing clothing that is clean
and fits properly makes [the appellant] more socially acceptable and
approachable." The county agency
denied the request for $650 for clothing. The county agency denied that the
request was primarily for alterations to the clothing that make the items more
comfortable to wear and fit better. The
county agency noted that CDCS program regulations exclude items that are not
the least costly to meet the individual's needs. The county saw this request as
more of a "want" than a "need." The county agency also
noted that it can and has provided a clothing allowance for adaptations made to
clothing for people who have physical disabilities and occasionally replacing
clothing for people that wear out clothing excessively. The county agency cited
access to a personal needs allowance in SSI funds and that most people are
expected to use the personal needs funds for these purposes.
9. $320 of CDCS funds for pedicure and grooming supplies. He would like
pedicure tools (estimated at $20-30) so that he can maintain proper oral and physical
hygiene. The appellant would like a nose hair trimmer (estimated at $15) to help treat his
chronic sinus infections. He would like an electric, oral B toothbrush (estimated at $125)
to maintain oral hygiene. He is more apt to use an electric toothbrush because he likes the
electric buzzing of the item. The replacement brushes cost significantly more than
regular toothbrushes and have to be replaced because the appellant beats on the bristles.
The appellant has an electric wet/dry shaver and would like replacement cartridges
(estimated at $75 per year). The buzzing sound makes him more apt to use the item and
the wet/dry feature because he drools and often has a wet chin. The appellant would like
an electric hair clipper (estimated at $50-70) because of his verbal and physical outbursts
he cannot go to the barber. The appellant's parents also noted that the appellant uses his
personal needs allowance from SSI for other items not traditionally covered by CDCS
funds. Also, the items sought were deemed necessary by the appellant's pediatrician. The doctor indicated that "because of his age and physical size and strength, it is inappropriate to physically restrain him in order to perform routine grooming tasks. Specific [ electric] grooming .tools. ..allow [the appellant's] caregivers to perform these tasks more quickly, efficiently and safely. In addition, because [the appellant] enjoys and is calmed by the "buzzing" of electric groommg tools, he is more able to participate and cooperate with grooming procedures." The county agency denied pedicure and grooming supplies arguing that CDCS funds are "not to be used for any service that is for comfort or convenience" or "an item or support normally furnished by the recipient's parents, family, or spouse." The county agency pointed out that use of personal needs funds for other non-covered items was not a wise choice and thus resorting to CDCS funds for what the appellant should cover in his personal needs budget was not an appropriate use of CDCS funds. Id.
10. $200 of CDCS funds for Cranial Sacral/adaptive speech therapy evaluation.
On or about December 17, 2004, the appellant's parents sought approval for a speech
therapy evaluation by a speech pathologist who also has a strong background in cranial
sacral therapy . The evaluation was supported by the appellant's doctor. It was denied
and the parents sought approval through the addendum process. The parents made an
appointment and the appellant was seen by the speech pathologist in or around late
3 Cranial sacral therapy is a type of hands on therapy using subtle techniques that are relaxing and effective applied to head and spine down to the sacrum to loosen the connective tissue.
January 2005. The county agency denied the request because there was a question about the therapist's licensure and because the service should not have been obtained before approval of the procedure. The county also noted that according to the Lead agency manual, it has 30 days to approve any change to an approved plan. The appellant's summary letter dated March 9,2005, his mother noted that the therapist is
"still licensed but is no longer practicing for personal reasons (she is continuing her
education in a related field, and she is pregnant)." She goes on to indicate that
the county agency approved a previous evaluation with the speech therapist. Id.
CONCLUSIONS OF LAW
1. This appeal is timely under Minn. Stat. § 256.045, subd. 3.
2. The Commissioner ofHuman Services has jurisdiction over this appeal under Minn. Stat. § 256.045, subdivisions 3, and 4a.
3. Minn. Stat. § 256B.092, subd. 5 states that the commissioner shall apply for
any federal waivers necessary to secure the provision of services to persons who, in the
absence of the services, would need the level of care provided in a regional treatment .
center or a community intermediate care facility for persons with mental retardation or
related conditions. The commissioner may seek amendments to the waivers or apply for
additional waivers under United States Code, title 42, sections 1396 et seq., as amended,
to contain costs. The state has obtained a waiver to provide home and community based
services to persons with mental retardation. Covered services under the MR/RC waiver
include the CDCS option. The CDCS program was designed so that through flexibility
and consumer direction, more optimal outcomes within the community setting could be
achieved. The Minnesota Department of Human Services (DHS) sets policy directives
that the county agency is to interpret and administer in each of its CDCS cases. Many of
the policies governing the CDCS program changed with an effective date of October 1,
2004. The policy and procedures are found in DHS Bulletin #04-56-07. The bulletin
reads in pertinent part:
Attachment A-Consumer
Directed Community Support Service Criteria for
allowable
expenditures
The Purchase of goods and service must meet all of the following criteria:
1. Must be required to meet the identified needs and outcomes in the individual's
community support plan and assures the health, safety and welfare of the
individual; and
2. Goods and services collectively provide a feasible alternative to an institution;
and
3. Be the least costly alternative that reasonably meets the individuals to identify it
needs; and
4. Be for the sole benefit of the individual.
If all of the above criteria are met, goods and services are appropriate purchases
when they are reasonably necessary to meet the following consumer outcomes:
Maintain the ability of the individual to remain in the community;
Enhance community inclusion and a family involvement;
Develop war maintain personal, social, physical, or work related skills;
Decrease dependency on a formal support services
Increase independence of the individual
Increase the ability of on paid family members and friends to receive training and
education needed to provide support
See Minnesota DHS
bulletin #04-56-07
4. I conclude that the county agency was correct to deny the request for $5,200 of CDCS funds for housekeeping services. Weekly cleaning seems more appropriate for an individual who does not live in a household with several other individuals who are
able to do housekeeping of the common areas of the house. The appellant also spends
much of his day in school and when not in school has several hours per day of care
allocated through his CDCS plan. The $2,600 approved by the county would seem
appropriate in the appellant's circumstances. The county agency should be affirmed on this point.
5. I conclude that the county agency was correct to deny the request for $500
of CDCS funds for an air purifier and filters. While there is no question that the appellant
suffers from allergies, I conclude that the evidence is insufficient to link those allergic
reactions to his diagnosis of Down's syndrome. More importantly, I conclude that the
evidence does not show that an air purification system and filters will alleviate the
symptoms even if they could be shown to be directly linked to Down's syndrome. The
county agency should be affirmed on this point.
6. I conclude that the county agency was incorrect to deny $650 of CDCS
funds for replacement of eyeglasses. The appellant has shown his propensity for
outbursts and property destruction. He has already destroyed several pairs of glasses of
his family members. In addition, the county agency did not provide sufficient support for
its claim that the glasses should only cost $150 to $200. The appellant's optometrist's
estimate of $637 is within this range. The county agency's denial of the CDCS funds for
glasses should be reversed.
7. I conclude that the county agency was incorrect to deny $650 of CDCS funds for clothing and clothing alterations. The appellant is four feet, three inches tall.
He weighs 139 pounds. His waist is 34 inches and his inseam is 21 inches. These are
well outside the standard chart for individuals. The county agency admitted in its closing
written summary that it has approved some clothing alterations for individuals with
unique physical disabilities. While the county agency did not elaborate on what might
constitute a unique enough physical disability, I conclude that appellant's unique body
shape resulting from his Down's Syndrome requires that his clothing be altered to
properly fit. I conclude that the price list of alterations and clothing for a year's supply of
clothing appeared reasonable. Therefore, I conclude that the county agency should be
reversed on this point.
8. I conclude that the county agency was incorrect to deny $320 of CDCS
funds for pedicure and grooming supplies. The letter from the appellant's physician was
detailed and persuasive for the request for the items. The requested items allow the
appellant to aid in daily hygiene and thus are supportive of overall goals of the CDCS
programs (e.g. increasing independence, enhance community inclusion, etc.). In addition,
the appellant's parents gave detailed testimony and supporting documents showing that
use of the grooming tools allow them to quickly and efficiently groom the appellant so as
to free up their time for other challenging care provider activities. Finally, while raised
by the county agency, I took no position on the appellant's use of personal funds or family funds outside of his CDCS budget that are not required to be spent on specific items. For example, where the county agency may wish the appellant to use a personal allowance in his SSI funds for grooming instead of gifts to family members. I am not aware of any specific provision requiring such a use. My focus in this appeal was on the decisions to deny or approve requested items under the provisions of the CDCS program. I conclude that the county agency should be reversed on the denial of $650 for pedicure and grooming supplies.
9. I conclude that the county agency was correct to deny $200 of CDCS funds
for Cranial Sacral/adaptive speech therapy evaluation. There is insufficient evidence that
the therapist has sufficient licensed credentials to be approved for the service. In
addition, the appellant knew or should have known based on the correspondence from the
county agency that the evaluation could not take place before the CDCS expenditure was
approved. For these reasons, I conclude that the county agency's denial of CDCS funds
for the speech therapy evaluation should be affirmed.
RECOMMENDED ORDER
THE REFEREE RECOMMENDS THAT according to the Findings of Fact and
Conclusions of Law herein, the county agency's action be affirmed in part and reversed in
part, in accordance with the conclusions of law above.
Louis Thayer Date
Appeals Referee
ORDER OF THE COMMISHIONER
IT IS THEREFORE ORDERED THAT based upon all the evidence and proceedings, the
Commissioner of Human Services adopts the referee's recommended findings of fact,
conclusions of law and order as his final decision.
Kenneth M. Mentz Date
Chief Appeals Referee
Appeals and Regulations Division
cc: Jacki McCormack, Arc Great Rivers
Ramsey County Social Services, ATTN: William Fisch
Jennifer Stockwell, DHS-DSD 3857
Right of Appeal to
District Court and/or Reconsideration
An appellant or county agency who disagrees with this decision may:
Start an appeal in the district court. This is a separate legal proceeding, and you must start
this within 30 days of the date of the appeal decision by serving a notice of appeal upon
the other party. The law that describes this process is Minnesota Statutes, section 256.045, subdivision 7.
or
Ask the appeals office to reconsider this decision. You must put this request in writing,
and state the reason(s) you believe the decision is incorrect. Send the request within 30
days of the date of the decision to:
Appeals Office
Department of Human Services
444Lafayette Road
St. Paul, MN 55115-3813
The appeals office will deny or consider this request, at which point you can still appeal to district court.