In the Appeal of: Q R for T R , Appellant
For:
Consumer Directed Community Supports MR/RC Waiver
Agency: Ramsey County Social Services
Docket: 83389
On March 2,
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:
Q R, father of
appellant
William Fisch,
Appeals Specialist, Ramsey County Social Services
Sandra
Foy, Services Coordinator, Ramsey County Social Services
Susan
Levy, Social Worker, Ramsey County Social Services
John
Bentley, CDCS Coordinator, 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.
The issue
raised in this appeal is:
Whether
the county agency correctly denied assistance through Consumer Directed
Community Supports (CDCS) funds for $8,015 for the installation of tile
flooring because the adaptation was not medically necessary and was not cost
effective.
FINDINGS OF FACT
1.
On December 26, 2004 , Ramsey
County Human Services sent the appellant a written notice of action denying the
request for tile flooring. Exhibit 2, p. 2. On January 27, 2005 , on
behalf of the appellant, her father signed an appeal request. Exhibit 1. On
January 31, 2005 , the state appeals agency received the appeal request. On
March 2, 2005 , the referee conduct a hearing at the county agency offices in
St. Paul , Minnesota . The referee closed the record, consisting of nine
exhibits, on that date.
2.
The appellants are appealing the county agency’s denial of $8,015 of assistance
under the CDCS program to install tile flooring in the appellants’ home. The
county agency denied the assistance because it determined that adaptation was
not medically necessary or cost effective.
3.
The appellant is a thirteen-year-old girl who has severe developmental delays.
The appellant attends school full-time during the day. Away from school, she
has approximately 8.2 hours of assisted care. The appellant lives with her
parents and her four siblings. The appellant has full access to all parts of
the house. The appellant gets up in the middle of the night and at least once
went outside in winter in her barefeet. Testimony of Mr. R. After that
incident the appellants’ parents installed a sensor system to alert the family
in case she tries to exit the house unsupervised. The appellant still is able
to rise in the middle of the night and sometimes cause damage before the
parents wake up. Id.
4.
Neither her CDCS service plan (exhibit 4), her Individual Service Plan (ISP) or
her school evaluation report describe any tendency of the appellant to pick at
linoleum, flooring or paint on walls, etc. See exhibits 4, 5, and 7. However,
those various reports do document that the appellant needs constant supervision
because she is unable to establish safety boundaries, that she sticks her
fingers in outlets and places bloodied hands in her mouth. Id. There are
no photographs or other documented damage to the appellant’s linoleum floor
allegedly caused by the appellant. However, the appellant’s father testified
that the appellant has torn holes in the linoleum floor multiple times using a
fork, butter knife or other objects that she gets her hands on.
5.
In drafting the appellant’s annual CDCS care plan that authorizes care and expenditures,
the appellant included a proposal for $8,015 to replace the linoleum flooring
in the kitchen, hallway, front entrance and bathroom with tile. See exhibit
3. The proposal did not include competing bids and not include a breakdown
of the various steps of the project. The proposal did not include photographs
of the damage to the current flooring. Id. The county agency denied the
expenditure because it was not shown to be cost effective or closely tied to
the appellant’s disability.
6.
At the hearing in this matter, the county agency cited two main reasons for its
denial and provided documentation to support its arguments. The county agency
indicated that the home adaptation was not shown to be cost effective because
it did not have competing bids or a break down of the various steps in the
proposed modifications. The county provided copies of several different
flooring options in vinyl flooring that could be installed in rolled out sheets
or single squares. The areas to be covered with vinyl/linoleum appear to be
significantly cheaper than the flat proposal of $8,015 for tile flooring. See
exhibit 8 and testimony of Mr. Fisch and Ms. Foy. The county argued that
the various documents of the appellant’s disabilities did not list picking at
the vinyl flooring. The county further argued that even if the appellant had
the tendency to pick at the vinyl flooring, there was no indication that
replacing the floor with tiles that the appellant wound not also pick at the
grout or tiles. The county agency suggested that the proper remedy might be to
invest in better equipment to monitor the appellant such as internal house
sensors to alert the parents when the child got up in the middle of the night.
7.
Mr. R argued that not every manifestation of the appellant’s disability is
noted in the various documents. In addition, he argued that he knew the
proposal to be cost effective because he had done other house adaptation
projects for other clients of the county. He believed that this adaptation was
comparable to other adaptations. In addition, he noted that he has had to
replace the vinyl flooring in the house about every three years at an
approximate cost of $4,000 each time because of the appellant’s destruction. He
believed that replacing the vinyl with tile flooring, the appellant would not
be able to destroy it. He acknowledged that even if the appellant managed to
destroy a portion of the tile floor that replacing a section of tile would be
more cost effective that laying out an entire new sheet of vinyl. Finally, he
noted that the regulations for the program do not require that a recipient
obtain competing bids.
CONCLUSIONS OF LAW
1.
This appeal is timely under Minn. Stat. 256.045, subd. 3.
2.
The Commissioner of Human 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 covers physical adaptations to a recipients home.
The waiver document excludes from coverage those modifications that are not
cost effective as compared to other services that would be provided in an
accessible environment and excludes adaptations that are not shown to be
closely related to the recipients disability needs.
4.
Here, the appellant has not shown that tile flooring is the most cost effective
adaptation and has not shown that the adaptation is closely tied to meet the appellant’s
needs. Unfortunately, the evidence on the record does not support this
conjecture. While the regulations do not require competing bids, the county
agency’s request for competing bids or a least a more detailed break down of
the costs of the various steps and materials was a reasonable request. The
appellant’s proposal does not offer this level of detail and therefore, it was
appropriate for the county agency to deny the request. The appellant’s fathers
opinion about the cost effectiveness is not sufficient to overcome the lack of
objective criteria. Moreover, the evidence is insufficient to support the claim
that this adaptation is closely tied to meet the appellant’s needs. There are
no photographs tying alleged damage to the floor to the appellant’s behavior.
The appellant must do more to show that the floor is actually damaged and that
the appellant’s actions were the cause of the damage. In addition, the county
agency correctly noted that at least a potential solution to the problem would
be an investment in monitoring equipment as this problem appears to be, at
least in part, a problem of supervision and redirection of the appellant. These
options must be discussed and explored with the county agency before the
proposed replacement of the floor with tile determined to be the only option.
For these reasons, the county agency was correct to deny the proposal of $8,015
to replace the floor with tile. The county agency’s denial 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.
__________________________________________
________________________
Louis Thayer
Date
Appeals
Referee
ORDER OF THE COMMISSIONER
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.
__________________________________________
________________________
Q M. Mentz
Date
Chief Appeals
Referee
Appeals and
Regulations Division
cc: Q R on
behalf of T R, appellant
Ramsey County
Social Services , ATTN: William Fische
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 10 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 10 days of the date of the decision to:
Appeals Office
Department of Human Services
444 Lafayette Road
St. Paul , MN 55155-3813
The appeals
office will deny or consider this request, at which point you can still appeal
to district court.