Important hearing decision supporting the right to live in the community

November 15, 2012

For those people who need nursing services, but would rather live at home instead of a nursing home, there is good news from the Department of Health and Human Services Administrative Appeals Unit. In an October ruling, a hearing officer found that Hilda K., who lived in a nursing home, was eligible for Choices for Independence (formerly HCBC-ECI) home-based services.

Mrs. K, 85, lived in a nursing home but wanted to live with her daughter and have services provided in her home. Through her daughter, she applied for the Choices for Independence (CFI) program, a Medicaid program for seniors and adults with chronic illnesses who medically qualify for the level of care provided in nursing facilities. The CFI program allows people to stay at home with home-based services, remain independent longer, and is a cost-effective alternative to a nursing home.

The Bureau of Elderly and Adult Services (BEAS) denied Mrs. K’s application, claiming that the cost of CFI services would exceed the cost of the nursing home. In making this decision, BEAS relied on an old assessment that did not reflect Mrs. K’s improvement in recent months and used the cost of more expensive RN/home health aide care which Mrs. K did not require. BEAS refused to conduct new assessments or to consider eligibility determinations conducted by RNs trained by BEAS. It also refused to consider that Mrs. K’s custodial care needs could be provided by a personal care service provider (PCSP), which would have brought Mrs. K’s cost of care under the cost of the nursing facility.

Attorney Cindy Robertson, Senior Staff Attorney at Disability Rights Center – NH, represented Mrs. K in an appeal of the BEAS decision. The hearings officer ruled that if the cost of CFI services is less than 100% of nursing home care, then the person is eligible for CFI services. This is important because DHHS had been requiring CFI services to cost less than 80% of the cost of a nursing home in order for the person to qualify for the CFI waiver program.

The hearings officer also ruled that DHHS must accept a medical eligibility determination if it is conducted by an RN who has had DHHS training in use of the MED assessment tool, and that these determinations are just as valid as ones conducted by a nurse specifically designated by BEAS to conduct the assessment.

Finally, the hearings officer determined that Mrs. K’s custodial care could be provided safely in the community by PCSPs rather than the more expensive home health aides.


Disability Rights Center – New Hampshire is a statewide non-profit organization dedicated to eliminating barriers for people with disabilities across New Hampshire. DRC is the federally designated protection and advocacy agency for New Hampshire and has authority under federal law to conduct investigations in cases of probable abuse or neglect.

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