STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
06 DHR 0901
COUNTY OF MECKLENGURG
WANDA FENNELL,
Petitioner,
v.
DHHS,
Respondent.
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DECISION
This matter came on for hearing before the undersigned Administrative Law Judge on
June 6, 2007, in Charlotte, North Carolina. Petitioner, Wanda Fennell, appeared pro se, together
with her husband, Leon Fennell, on behalf of their minor son, Matthew Fennell. Respondent was
represented by Richard J. Votta, Assistant Attorney General. Respondent presented two
witnesses, Marcia Copeland, Chief of the Behavioral Health Section, North Carolina Department
of Health and Human Services, Division of Medical Assistance (DMA), and
Dr. Jeffrey C. Holden, Clinical Psychologist and DMA consultant. Respondent introduced five
exhibits. Petitioner presented one witness, Dr. Daphne J. Timmons, Clinical Psychologist, and
introduced one exhibit.
ISSUE
Whether Respondent properly determined that the minor son of Petitioner did not meet
the criteria which are necessary to establish “intermediate care facility for the mentally retarded
(ICF/MR)” level of care and to qualify for benefits under the North Carolina Medicaid
Community Alternatives Program for Persons with Mental Retardation or Developmental
Disabilities (CAP-MR/DD).
APPLICABLE LAW
42 U.S.C. §§ 1396-1396v
42 C.F.R. §§ 483.440; 435.1010
N. C. Gen. Stat. Ch. 108A, Article 2, Parts 1 and 6
10A N.C.A.C. 22O.0301
N. C. State Plan for Medical Assistance
N.C. Medicaid CAP-MR/DD Manual
North Carolina's Community Alternatives Program for Persons with Mental Retardation
or Developmental Disabilities Waiver
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FINDINGS OF FACT
1.
Petitioner sought approval on behalf of her minor son, Matthew Fennell, for Medicaid
benefits through the North Carolina CAP-MR/DD Program. Upon review of the materials
submitted by or on behalf of Petitioner in support of her application, it was determined by
Respondent that her son did not satisfy the nursing facility level of care criteria necessary to
qualify for benefits under such program. Prior approval for such benefits was denied.
2.
Petitioner sought reconsideration review of the initial denial of CAP-MR/DD benefits
before the Hearing Office of the North Carolina Department of Health and Human Services.
Reconsideration hearing was held on May 4, 2006, and a Notice of Decision affirming the initial
denial was issued on May 16, 2006. Petitioner duly petitioned for further review of such decision
in the present forum.
3.
Respondent is authorized to establish and administer the N.C. Medicaid Program under
N.C.G.S. Chapter 108A, Article 2, Parts 1 and 6.
4.
The CAP-MR/DD Program is operated under North Carolina’s Home and Community
Based Waiver for Persons with Mental Retardation/Developmental Disabilities granted by the
United States Department of Health and Human Services, Center for Medicare and Medicaid
Services,
pursuant to Section 1915(c) of the Social Security Act , codified at
42 U.S.C. § 1396n(c).
5.
The purpose of the CAP-MR/DD Program is to provide home and community based
services as an alternative to persons who, but for the provision of such services, might require
institutionalization in an intermediate care facility for the mentally retarded or persons with
related conditions (ICF-MR). To be eligible for services under the CAP-MR/DD Program as
identified in the waiver, a recipient must require, at a minimum that same level of care as that
provided at an ICF-MR facility.
6.
In order to qualify for ICF/MR level of care as defined in applicable federal regulatory
authority and as incorporated in the North Carolina waiver, an applicant must be mentally
retarded or have a related condition. This definition as found in such authority is detailed also in
Section 2.2 of the North Carolina CAP-MR/DD Manual. (Respondent’s Exhibit 1) Petitioner
does not assert nor does the evidence support a finding that her minor son is mentally retarded.
7.
A related condition is defined as follows:
Persons with related conditions means individuals who have a severe,
chronic disability that meets all of the following conditions:
(a) It is attributable to –
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(1) Cerebral palsy or epilepsy; or
(2) Any other condition, other than mental illness, found to be
closely related to mental retardation because this condition results
in impairment of general intellectual functioning or adaptive
behavior similar to that of mentally retarded persons, and requires
treatment or services similar to those required for these persons.
(b) It is manifested before the person reaches age 22.
(c) It is likely to continue indefinitely.
(d) It results in substantial functional limitations in three or
more of the following areas of major life activity:
(1) Self-care.
(2) Understanding and use of language.
(3) Learning.
(4) Mobility.
(5) Self-direction.
(6) Capacity for independent living.
42 C.F.R. § 435.1010.
8.
In order to qualify for ICF/MR level of care as defined in applicable federal regulatory
authority and as incorporated in the North Carolina waiver, an applicant also must require active
treatment. 42 C.F.R. § 435.1010. Active treatment is defined as follows:
(1)
Each client must receive a continuous active treatment program, which includes
aggressive, consistent implementation of a program of specialized and generic training,
treatment, health services and related services described in this subpart, that is directed
toward:
(i) The acquisition of the behaviors necessary for the client to
function with as much self-determination and independence as
possible; and
(ii) The prevention or deceleration of regression or loss of current
optimal functional status.
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(2)
Active treatment does not include services to maintain generally independent
clients who are able to function with little supervision or in the absence of a continuous
active treatment program.
42 C.F.R. 483.440(a).
9.
Dr. Jeffrey C. Holden testified on behalf of Respondent. Dr. Holden holds a Ph.D. in
psychology with a specialization in mental retardation and developmental disabilities. He is
licensed to practice psychology in North Carolina. He has been the Director of Specialized
Services at the Murdoch Center in Butner, North Carolina for the last three years. He has
worked at the Murdoch Center for the last twenty-five years. The Murdoch Center is operated
by the North Carolina Department of Health and Human Services. His duties at the Murdoch
Center include supervision of behavioral consultants who provide community assessments for
persons living at home or in other programs, overseeing admissions and discharges at the facility,
and supervision of volunteer and chaplaincy services at the facility. During his years at the
Murdoch Center, Dr. Holden has conducted over one thousand psychological evaluations.
10.
Based on his education, training, and experience, Dr. Holden was tendered and accepted
as an expert in Clinical Psychology with a specialization in Mental Retardation and
Developmental Disabilities.
11.
Among his duties as Director of Specialized Services at the Murdoch Center, Dr. Holden
acts as the coordinator of ICF-MR level of care determinations for the CAP-MR/DD Program. In
such capacity he has reviewed well over a thousand applications for acceptance into such
program.
12.
In his capacity as coordinator of ICF-MR level of care determinations for the CAPMR/DD Program, Dr. Holden evaluated the initial materials submitted on behalf of Petitioner’s
minor son, Matthew Fennell. He reviewed an MR2 form, dated February 9, 2006 which was
signed by the referring physician, together with a supporting evaluation also submitted on behalf
of Petitioner. An MR2 form is required to initiate a request for prior approval of CAP-MR/DD
benefits. It reports basic patient information, including diagnosis, evaluation and proposed plan
of treatment. (Respondent’s Exhibit 2) A request for CAP-MR/DD benefits must also include a
current psychological evaluation which assesses both cognitive and adaptive functions.
13.
Upon review of the MR2 and other information submitted initially by Petitioner, Dr.
Holden determined that such information was not sufficient to establish that Matthew Fennell
was mentally retarded or that he had a related condition which satisfied the criteria necessary to
qualify for ICF/MR level of care as defined in applicable federal regulatory authority and as
incorporated in the North Carolina waiver. The request for prior approval of CAP-MR/DD
benefits was denied.
14.
At the reconsideration hearing on May 4, 2006, Dr. Holden reviewed an updated
psychological evaluation submitted in support of Petitioner’s request for prior approval of
benefits. The additional evaluation, dated April 10, 2006, was prepared by Dr. Kim Ferguson, a
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licensed psychologist affiliated with Arboretum Behavioral Health in Charlotte. (Respondent’s
Exhibit 3) Dr. Holden determined that this additional psychological evaluation and other
information presented at the hearing also did not support a diagnosis of mental retardation or of a
condition related to mental retardation. Although the additional evaluation noted certain
developmental delays and deficits in adaptive functions, Dr. Holden opined that this evaluation
did not supply sufficient information to satisfy the criteria necessary to establish ICF-MR level
of care as required by the waiver program
15.
The guidelines for CAP-MR/DD approval require that supporting psychological
evaluations for children must have been completed within the last year. This guideline is noted
in Section 2.2 of the North Carolina CAP-MR/DD Manual. (Respondent’s Exhibit 1)
Dr. Holden opined that if the evaluation of Dr. Ferguson were to be submitted on the date of the
present hearing, it could not be considered regarding the current condition of the patient. A more
current evaluation would be required.
16.
Pending appeal in the present forum of the Notice of Decision by the Hearing Office
dated May 16, 2006, Petitioner submitted several additional psychological and medical
evaluations to Respondent in support of CAP-MR/DD eligibility for her minor son.
17.
The additional psychological evaluations submitted by Petitioner during the pendency of
this appeal included an evaluation dated January 16, 2007 conducted by Dr. Ervin S. Batchelor, a
Clinical Neuropsychologist affiliated with the Carolina Center for Development and
Rehabilitation in Charlotte.
(Respondent’s Exhibit 4) This evaluation reported that
Matthew Fennell generally scored in the average to low average range in tests of his cognitive
abilities and that his scores on standard intelligence tests had improved over those of previous
tests and were also in the low average range. Although Dr. Batchelor noted certain behavioral
deficits and possible mood disorder, he specifically declined to make a diagnosis of autism or
pervasive developmental disorder. Dr. Holden reviewed this additional evaluation and
determined that it did not support a diagnosis of mental retardation or of a condition related to
mental retardation. Dr. Holden opined that this evaluation did not supply sufficient information
to satisfy the criteria necessary to establish ICF-MR level of care as required by the waiver
program
18.
The additional psychological evaluations submitted by Petitioner during the pendency of
this appeal also included an evaluation dated May 14, 2007 conducted by
Dr. Daphne J. Timmons, a licensed psychologist affiliated with Family Preservation Services,
Inc. in Charlotte.
(Respondent’s Exhibit 5) Although this evaluation diagnosed
Matthew Fennell with Asperger’s Disorder, it reported scores in all composite adaptive
behavioral assessment categories, including the conceptual, social, and practical areas used to
determine mental retardation for purposes of the CAP-MR/DD program, which were
significantly in excess of those found in persons with mental retardation, including the Global
Adaptive Composite (GAC) Score of overall adaptive functioning which was in the low average
range. Dr. Holden reviewed this additional evaluation and determined that it did not support a
diagnosis of mental retardation or of a condition related to mental retardation. Dr. Holden
opined that this evaluation did not supply sufficient information to satisfy the criteria necessary
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to establish ICF-MR level of care as required by the waiver program, including with any
probability the need for a continuous, active treatment program as required by the waiver
program
19.
Dr. Timmons testified on behalf of Petitioner. Although Dr. Timmons diagnosed
Matthew Fennell with Asperger’s Disorder and identified certain developmental deficits and
relationship problems, she opined that Matthew Fennell was not mentally retarded and she
acknowledged that his adaptive behavioral scores were not equivalent to those found in persons
with mental retardation. Dr. Timmons also testified that some persons diagnosed with
Asperger’s Disorder function competently in society without the need of institutional care.
20.
The additional evaluations submitted by Petitioner during the pendency of this appeal
also included a single paragraph, summary evaluation dated October 2, 2006 provided by Dr.
John Barkenbus, a neuropsychiatrist affiliated with North Carolina Neuropsychiatry, P.A. in
Charlotte and Chapel Hill. (Petitioner’s Exhibit 1). This summary report noted without
supporting detail diagnoses of Attention Deficit Hyperactivity Disorder, Congenital left eye
blindness, Expressive Language Disorder, Developmental Coordination Disorder, and Borderline
low FS IQ. This report does not diagnose Asperger’s or Pervasive Developmental Disorder.
Dr. Holden reviewed this additional report and determined that it did not support a diagnosis of
mental retardation or of a condition related to mental retardation. Dr. Holden opined that this
report did not supply sufficient information to satisfy the criteria necessary to establish ICF-MR
level of care as required by waiver program.
21.
The court finds that the materials submitted in support of CAP-MR/DD eligibility at the
reconsideration hearing held on May 6, 2006, including the MR2 Form and the psychological
evaluation of Dr. Kim Ferguson dated April 10, 2006, did not support a diagnosis of mental
retardation or a condition related to mental retardation as defined in applicable federal regulatory
authority and as incorporated in the North Carolina waiver.
22.
The court further finds that the additional psychological and medical evaluations
submitted by Petitioner during the pendency of this appeal, including the evaluations conducted
by Dr. Batchelor, Dr. Timmons, and Dr. Barkenbus, do not support a diagnosis of mental
retardation or a condition related to mental retardation as defined in applicable federal regulatory
authority and as incorporated in the North Carolina waiver.
23.
At the time Petitioner sought prior approval for CAP-MR/DD benefits for her minor son,
Matthew Fennell, he was not, and he is not now, mentally retarded.
24.
At the time Petitioner sought prior approval for CAP-MR/DD benefits for her minor son,
Matthew Fennell, he did not, and he does not now, have a condition related to mental retardation
as defined in applicable federal regulatory authority and as incorporated in the North Carolina
waiver.
25.
Petitioner’s minor son, Matthew Fennell, does not have impairments of general
intellectual functioning similar to those of persons with mental retardation
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26.
Petitioner’s minor son, Matthew Fennell, does not have adaptive behavioral impairments
similar to those of persons with mental retardation
27.
Petitioner’s minor son, Matthew Fennell, does not require treatment or services similar to
those required for persons with mental retardation.
28.
Based on the most recent psychological evaluation provided by Dr. Timmons,
Petitioner’s minor son, Matthew Fennell, does not require a continuous active treatment program
as defined in applicable federal regulatory authority and as incorporated in the North Carolina
waiver.
29.
Petitioner’s minor son, Matthew Fennell, does not qualify for ICF/MR level of care.
Based upon the foregoing facts, this Court makes the following:
CONCLUSIONS OF LAW
1.
All parties are properly before the Office of Administrative Hearings, and this tribunal
has jurisdiction of the parties and of the subject matter at issue.
2.
At the time Petitioner sought prior approval for CAP-MR/DD benefits for her minor son,
Matthew Fennell, he did not satisfy the criteria necessary to establish ICF-MR level of care as
defined in applicable federal regulatory authority and as incorporated in the North Carolina
waiver.
3.
The minor son of Petitioner, Matthew Fennell, does not now satisfy the criteria necessary
to establish ICF-MR level of care as defined in applicable federal regulatory authority and as
incorporated in the North Carolina waiver.
4.
Respondent properly denied prior approval of CAP-MR/DD benefits to the minor son of
Petitioner, Matthew Fennell.
Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned enters
the following
DECISION
The decision by Respondent to deny prior approval of CAP-MR/DD benefits to the minor
son of Petitioner, Matthew Fennell, should be and the same hereby is AFFIRMED.
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NOTICE
The agency making the final decision in this contested case shall adopt the Decision of
the Administrative Law Judge unless the agency demonstrates that the Decision of the
Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in
the official record. The agency is required to give each party an opportunity to file exceptions to
this Decision issued by the Undersigned, and to present written arguments to those in the agency
who will make the final decision. N.C. Gen. Stat. §150B-36(a).
In accordance with N.C. Gen. Stat. §150B-36, the agency shall adopt each finding of fact
contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the
preponderance of the admissible evidence, giving due regard to the opportunity of the
Administrative Law Judge to evaluate the credibility of witnesses. For each finding of fact not
adopted by the agency, the agency shall set forth separately and in detail the reasons for not
adopting the finding of fact and the evidence in the record relied upon by the agency. Every
finding of fact not specifically rejected as required by Chapter 150B-36 shall be deemed
accepted for purposes of judicial review. For each new finding of fact made by the agency that
is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately
and in detail the evidence in the record relied upon by the agency establishing that the new
finding of fact is supported by a preponderance of the evidence in the official record.
The agency that will make the final decision in this case is the North Carolina
Department of Health and Human Services. This agency is required by N.C. Gen. Stat. §150B36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’
attorneys of record and to the Office of Administrative Hearings.
IT IS SO ORDERED.
This is the 27th day of June, 2007.
__________________________________________
Beecher R. Gray
Administrative Law Judge
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