The Community Alternatives Program for people with intellectual and developmental disabilities (CAP I/DD, formerly known as CAP MR/DD) is expected to change beginning November 1st, 2011. Changes to the program still need to be approved by the Federal Government, however approval is expected and the Division of Medicaid Assistance which operates the CAP I/DD in North Carolina is moving ahead as if the plan will be implemented November 1st, 2011. These changes are being made so that the CAP I/DD Waiver has similar services to the new Innovations Waiver that will be part of the new managed care system in North Carolina. Reductions in habilitation hours are also the result of cuts to Medicaid funding.
The Biggest Change:
There will be a 129 hour per month limitation on habilitation hours for adults and children.
“Habilitation” includes Day Supports, Supported Employment, Long Term Vocational Supports and Home and Community Supports.
The 129 hour limit is inclusive of all these habilitation services; the total number of hours of these services cannot exceed 129 hours.
It does not include habilitation hours provided in Residential Supports and/or Home Supports.
Habilitation hours for children in school will be reduced to 20 hours per week.
The 129 hour limit is a monthly limit; it is not a yearly average of habilitation hours.
This is a difficult time for families and people on the autism spectrum who get CAP I/DD (MR/DD). The system is already confusing and many changes are going on all at once. It is hard for the Autism Society in North Carolina (ASNC) to give good advice about the upcoming changes: on the one hand, the waiver has not yet been approved so if you make changes to your CAP plan, hours will be reduced now. On the other hand if you wait to make those changes there may be some delay in getting a new plan approved which could mean services are interrupted.
Recommendations and Rights:
Legal Services of Southern Piedmont, in consultation with Disability Rights North Carolina and the National Health Law Program, has issued the following advice.
1. Personal care: If the recipient is under age 21, EPSDT [Federal laws about early periodic screening diagnosis and treatment] applies. This means the family can request in their plan more hours of personal care than the clinical policy criteria allow and/or can ask in the plan to keep enhanced personal care because it is medically necessary.
2. If the recipient is age 21 or older, the family can ask in the plan for enhanced personal care or for additional hours as a reasonable modification under the Americans with Disabilities Act (ADA) if the recipient at serious risk of institutionalization without the service.
3. Either a child or adult can request more hours of personal care if a revised SNAP is submitted showing higher level of need than previous SNAP.
4. Habilitative services and respite: EPSDT probably does not apply. But either a child or adult can ask in the plan for more than 129 hours per month as a reasonable modification under the ADA if at serious risk of institutionalization without the service.
5. Private Duty Nursing (PDN): if the recipient is under age 21 the family can ask to keep the service under EPSDT if medically necessary.
6. PDN: if the recipient is age 21 or older, the family can request to keep the service for longer than 30 days so long as criteria for PDN are met or as a reasonable modification under ADA if at serious risk of institutionalization without the service.
7. Other new restrictions on services: the family can request a waiver of the rule as a reasonable modification under ADA if at serious risk of institutionalization due to restriction.
8. The family absolutely has the right to submit a plan asking for services in excess of policy limits in the above circumstances.
9. If the recipient is under age 21 and the plan is denied, the family will receive a written notice with appeal rights. The family must appeal to the Office of Administrative Hearings (OAH) within 30 days. The recipient will be able to continue to receive services at the prior level pending the outcome of the appeal. The appeal process starts with a telephone mediation. If the mediation is not successful, the case goes to an Administrative Law Judge (ALJ) for hearing.
10. If the recipient is age 21 or older and the plan is denied as in excess of policy limits, the provider will get notice but not the family. The notice will not include appeal rights. However, the family nonetheless can file an appeal in OAH if there is a valid factual issue for appeal rather than just a challenge to the legality of the policy. The family can argue to the ALJ that whether a reasonable modification under the ADA is needed in that case is a factual issue. If the ALJ agrees, the family can ask that services be reinstated pending the outcome of the appeal.
11. Even if the family decides not to request services in excess of policy limits at this time or not to appeal if that request is denied, the family and case manager should monitor the recipient’s conditions and health. If that deteriorates, the family can ask for the plan of care to be amended to increase the level of service and appeal if that request is denied. However there is no right to continued services pending appeal in that instance.
12. The family also has the right to challenge the plan denial in federal court instead of OAH.
13. Legal representation is likely to be needed to succeed in an appeal in these cases. Families who submit a plan that is denied and who want to appeal can contact:
Disability Rights NC (statewide) 1-877-235-4210
Legal Aid of NC (statewide) 1-866-369-6923
Legal Services of Southern Piedmont (if recipient lives in Mecklenburg county) 704 376 1600
Council for Children’s Rights (if recipient is a child and lives in Mecklenburg) 704 372 7961
Pisgah Legal Services (if recipient lives in Buncombe, Henderson, Madison, Polk, Rutherford or Transylvania counties) 1-800-489-6144
However, be aware that these nonprofit agencies have limited resources and cannot represent many of the families that contact them. Families with the means to do so may wish to contact a private attorney.
Additional Recommendations from ASNC:
14. Go to one of the information session listed below, if you can. They are free of charge.
15. Meet with your case manager and have a new Person Centered Plan prepared and ready to sign (but not actually signed), should the CAP waiver changes be approved in time for the Nov 1 deadline.
16. Due to the expected number of person centered plan revisions that will be submitted to Medicaid and Local Management Entities, the Division of Medical Assistance is recommending that services are transitioned at least 15 business days prior to October 31st. Plan revisions should be submitted no later than October 4th to allow time to complete authorization of services. Some areas of the state may be able to process plan changes more quickly and Local Management Entities may be saying its ok to wait until October 15th. You should use your best judgment in determining how long to wait before changing CAP plans; delays could mean interruption of services.
Information Sessions on New Waiver:
The Developmental Disabilities Training Institute has scheduled 5 CAP-I/DD Informational Sessions for the purpose of communicating the changes in the CAP-I/DD Comprehensive and Supports Waivers that will be effective 11/1/11. The sites for the sessions were selected to accommodate as many interested individuals as possible. Please be sure to register early and encourage others to do the same. They are free of charge, be sure to sign up ahead of time and arrive early.
Please use the links below for obtaining all the details regarding each of the events and for registration purposes:
Tuesday, Sept. 20, Greenville
Wednesday, Sept. 21, Wilmington
Monday, Sept. 26, Asheville
Tuesday, Sept. 27, Newton
Wednesday, Sept. 28, Sanford
NC Division of Mental Health, Developmental Disabilities and Substance Abuse Services Implementation Updates Page (current information on services, policies)
Chart Comparing CAP Waiver to Innovations Waiver (Note that the Innovations waiver is currently operating in PBH and will begin operation in several other LME regions in 2012. This chart does not compare the existing CAP waiver to the CAP waiver that is expected to begin Nov. 1, 2011.)