By Rebecca Whitley, Esq., Staff Attorney, Disabilities Rights Center
Under the New Hampshire Medicaid Program, skilled nursing services (also called private duty nursing services) are available for individuals who require more individual and continuous skilled observation, judgment, and intervention than is available from a visiting nurse or typically provided in an institution, and which can only be provided by a registered nurse (RN) or licensed practical nurse (LPN). The New Hampshire Department of Health and Human Services (DHHS) has contracted with a private company called Schaller Anderson to administer certain Medicaid services, including private duty nursing services. All requests for Medicaid private duty nursing services must go through Schaller Anderson which makes the decision to approve, reduce or deny such requests.
The Disabilities Rights Center (DRC) has received an increasing amount of calls from individuals and families because their private duty nursing services have been reduced or denied and with complaints about Schaller Anderson. While we all know that New Hampshire is in the midst of a budget crisis in this difficult economic time, it is important for individuals to understand their rights when applying for and receiving skilled nursing services.
What are my rights when skilled nursing services are reduced or denied?
If an individual’s skilled nursing services are reduced or if a request for additional services is denied, he or she must be provided with written notice of this decision. A notice must be mailed at least 10 days before the effective date of the reduction or denial of services.
If you are told that you or your child’s services will be reduced or that a request for services will be denied, you should request written notice of this decision. If someone asks you to reduce your services, you do not need to agree to this decision. You have a right to written notice of the action and have the right to appeal a reduction or denial of your Medicaid services.
The written notice must contain a statement of the intended action (i.e. reduction or denial), a detailed explanation of the factors contributing to the reduction or denial, specific legal support for the action, and an explanation of your hearing rights, rights to representation and to continued benefits, if applicable.
What if I do not agree with the decision to reduce or deny my skilled nursing services?
An individual has the right to appeal a reduction or denial of his or her Medicaid services and to have a fair hearing in front of the State. If you wish to challenge the decision to reduce or deny your skilled nursing services, here are some steps you can take:
If my services are reduced, can I maintain my current level of services pending my appeal?
In order to maintain skilled nursing services pending the appeal, an individual must request an appeal before the date his or her services are set to be reduced. If an individual does not appeal before the date his or her services are set to be reduced, DHHS may (but is not required to) reinstate services pending the hearing if an individual appeals 10 days or less after the date his or her services are set to be reduced.
If DHHS reduces an individual’s services without providing the requisite advance notice, it must reinstate and continue services pending the hearing if an individual appeals within 10 days of the mailing of the notice.
Note that if an individual continues to receive services pending a decision on appeal, and the Hearings Officer upholds Schaller Anderson’s initial determination, the individual may be required to pay for services that were paid by DHHS between the action date and the date of decision.
How does Schaller Anderson decide how many hours of skilled nursing services I need?
All requests for skilled nursing services go through Schaller Anderson and they make the decision to approve, reduce or deny a request for skilled nursing services. This decision must be based on medical necessity. Under state law, there are certain coverage limits for skilled nursing services that apply to individuals 21 and older.
Under federal law however, these coverage limits do not apply to individuals under 21. This is based on the Early and Periodic Screening, Diagnostic and Treatment (EPSDT) provisions of the federal Medicaid Act. EPSDT is Medicaid's comprehensive and preventive child health program for individuals under the age of 21.
Under federal law, the only applicable question when deciding how many hours of skilled nursing service an individual under 21 needs is: How many hours are medically necessary to correct or ameliorate a child’s illness or condition?
Does my treating physician have a role in this process?
Treating physicians assume the primary responsibility for determining an individual’s treatment needs. Federal law requires that the State and Schaller Anderson give significant weight to a treating physician’s recommendation regarding medical necessity. Individuals and families should work closely with their primary care doctors and specialists to obtain the best possible recommendation/prescription/letter for coverage of services under EPSDT. This should describe the individual’s condition, his or her need for the service, his or her medical needs that require skilled care, and explain how the service will “correct or ameliorate” the child’s condition.
What issues might come up in my appeal?
The DRC is aware that Schaller Anderson is reducing skilled nursing hours, in part because it determined that a parent or caregiver can provide some of an individual’s skilled nursing needs. While skilled nursing services are not supposed to replace entirely the parental or caregiver duties, it is important to know that the State is not permitted to require parents or caregivers to provide skilled nursing services. Most parents and primary caregivers are not licensed to provide skilled nursing services. State law prohibits the unlicensed practice of nursing. It also does not provide for any exemptions for unlicensed family members or caregivers to perform, or assist in the performance of, the unlicensed practice of nursing.
The DRC is aware that Schaller Anderson is reducing skilled nursing hours, in part because it determined that a personal care attendant (PCA) or a license nursing assistant (LNA) can provide the necessary care. If this happens in your case, there are several steps you can take:
The DRC is aware that parents and guardians are having difficulty obtaining records from Schaller Anderson. You have the right to review your records from Schaller Anderson, DHHS, and your provider and obtain records that will be relied upon at the hearing. This includes all clinical decision criteria used to authorize, reauthorize, and reduce services, including Schaller Anderson so-called “acuity grid” or “work tool” and all physical and electronic case notes. If you are having trouble obtaining records, call the DRC at 1-800-834-1721.