CAP I/DD Waiver Changes Part 2

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 Medical 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 stays within its budget and so that the 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 the result of CAP I/DD being over budget and no new funds being appropriated.

If you do not make plan revisions before November 1, your CAP I/DD plan will not “roll over” to the new CAP waiver. Let me say that again: this is a new waiver, your current plan will not automatically change to the new waiver with fewer hours. You must submit a revised person centered plan in order for CAP services to continue after November 1st.

The Biggest Changes:

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. This includes any week school is in session, even for one day, even if the child is not in school that particular week.

The 129 hour limit is a monthly limit; it is not a yearly average of habilitation hours.

Home supports will no longer be a service under the 2011 CAP I/DD waiver. Personal care and Home and Community Supports may be used instead of Home Supports. Hours restrictions that apply to rest of waiver apply to those transitioning out of Home Supports.

Family members can continue to provide Home and Community Supports and Personal Care as they did under Home Supports. Other services under the CAP I/DD Waiver, such as Day Supports and Respite, cannot be provided by family members.

What You Need to Do:

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 because there may be some delay in getting a new plan approved which could mean services are interrupted.

Repeated: If you do not make plan revisions before November 1 and the Waiver is approved (and we expect it will be), your plan will not “roll over” to the new waiver. You must submit a new plan in order for services to continue after November 1st.

Legal Rights and Recommendations:

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 Recommendation from ASNC:

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 as soon as possible 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 or later. You should use your best judgment in determining how long to wait before changing CAP plans; delays could mean interruption of services because existing plans will not roll over to the new waiver.

Other Resources:

NC Division of Mental Health, Developmental Disabilities and Substance Abuse Services Implementation Updates Page (current information on services, policies)

The following information is from Western Highlands LME based on information about the CAP I/DD waiver from the NC Division of Mental Health Developmental Disabilities and Substance Abuse Services and the NC Division of Medical Assistance. It may be helpful in determining if you need to make changes to your plan.

Current CAP MR/DD Waiver New CAP I/DD Waiver  (Nov 1 2011) What should participant do?
Adult Day Health Care Services Adult Day Health Care Services No action required.
Behavioral Consultant Behavioral Consultant No action required.
Crisis Respite Crisis Respite No action required.
Crisis Services Crisis Services No action required.
Day Supports  Day Supports   Action required if total hours of habilitation services exceeds 129 hours per month in combination. See Guidance for Habilitation Services Transition.
Enhanced Personal Care  Personal Care OREnhanced Personal Care Action required if participant receives the service to address intense behavioral issues. See Guidance for Enhanced Services Transition.
Enhanced Respite Care  Respite Care  OREnhanced Personal Care Action required if participant receives the service to address intense behavioral issues. See Guidance for Enhanced Services Transition.
Home and Community Supports Home and Community Supports Action required if total hours of habilitation services exceeds 129 hours per month in combination. See Guidance for Habilitation Services Transition.
Home Modifications Home Modifications No action required.
Home Supports Home and Community Supports

AND / OR

Personal Care

Action required that terminates existing authorization. Service should be replaced with level of periodic services determined to meet the needs of the participant. Services requested should be within the Utilization Review Criteria. See Guidance for Home Supports Transition.
Individual Caregiver Training and Education Individual Caregiver Training and Education No action required.
Long Term Vocational Supports Long Term Vocational Supports Action required if total hours of habilitation services exceeds 129 hours per month in combination. See Guidance for Habilitation Services Transition.
PERS PERS No action required.
Personal Care Services Personal Care Services No action required.
Residential Supports Residential Supports Action required if combination of habilitation hours required for the daily level (see Utilization Review Guidelines) and any daily periodic habilitation services exceed 12 hours on any given day. Teams must consider direct contact hours. Targeted Case Management should update the Person Centered Plan to ensure that habilitation does not exceed 12 hours on any given day if necessary.
Respite Care Respite Care No action required.
Specialized Consultative Services Specialized Consultative Services No action required.
Specialized Equipment and Supplies Specialized Equipment and Supplies No action required.
Supported Employment Supported Employment Action required if total hours of habilitation services exceeds 129 hours per month in combination. See Guidance for Habilitation Services.
Transportation Transportation No action required.
Vehicle Adaptation Vehicle Adaptations No action required.

[Note that the timelines listed below may vary from LME to LME. See your case manager plan submission deadlines. ]

Guidance for Habilitation Services:

Periodic services are reimbursed in 15 minute units. Support services do not require a habilitation component. Currently, the waivers provide enhanced and standard periodic support services (Personal Care & Respite Care) for individuals with intense medical and/or behavioral needs. Enhanced periodic support services will not be available for intense behavioral needs on October 31st.

Enhanced periodic support services will be available for individuals that have intense medical needs that require a higher level of service to prevent hospitalization or placement in a skilled facility. To meet medical necessity criteria, the participant must require the following:

• Expertise and supervision of a Registered Nurse (RN) or a Licensed Practical Nurse (LPN) because of complexity or critical nature of activities provided

• Person Centered Plan must clearly document the need for the enhanced periodic service

• Enhanced periodic support services staff will receive training and/or supervision from an RN or LPN at minimum monthly

Enhanced periodic support services for intense behavioral needs should be replaced with standard periodic support services. Standard periodic support services will typically be limited by the Utilization Review Criteria outlined in Clinical Coverage Policy #8M.

If a participant is authorized to receive enhanced periodic support services to address intense behavioral needs past October 31st, their Person Centered Plan should be updated to either change the enhanced periodic support services to standard periodic support services or to provide justification to continue the enhanced level of services. A complete update should be submitted to the appropriate Utilization Review vendor by October 15th.

If the participant’s annual Person Centered Plan begins on November 1st, the Targeted Case Manager should submit a complete request package to the appropriate Utilization Review vendor by October 1st. Enhanced or standard periodic support services should be requested as deemed necessary by the planning team with the annual plan of care within the medical necessity and Utilization Review Criteria outlined in Clinical Coverage Policy #8M.

Should the participant and/or legal guardian of the person refuse to request services with the Person Centered Plan or update that are within the medical necessity and Utilization Review Criteria, the Targeted Case Manager should submit a complete request that reflects the periodic support services that the participant and/or legal guardian of the person believe are medically necessary. Complete requests may exceed the limits established for all periodic support services.

Upon receipt of a complete request, the Utilization Review vendor will review requests for medical necessity and render a decision. The Utilization Review vendor will offer the participant and/or legal guardian of the person due process rights as applicable.

The Utilization Review vendor will ensure that requests for children (<21 years of age) in excess of the Utilization Review Criteria are reviewed with consideration of Early and Periodic, Screening, Diagnostic, and Treatment (EPSDT) Special Provisions as applicable.

For a request to be considered complete by the Utilization Review vendor, the Person Centered Plan update or annual plan of care must be signed by the participant and/or the legal guardian of the person.

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3 Responses

  1. My son has a snap score of 4. He has behavioral issues and takes psychotic meds. He has been covered my home supports, but now the case manager has said that he only qualifies for 30 hours of pc/ and 30 hours of H&C and I am not even allowed to work all of them. She has said that he doesn’t qualify for enhanced. Because of the cut many of the things we provide for him will have to be terminated. Do they have an exception to the 40 hour rule that we don’t know about?

    • There is no exception that we know of, unless he qualifies for addtional services under EPSDT (Early Periodic Screening Diagnosis and Treatment). It may be worth attempting to get addtional services based on that, please check with your case manager. You may need to work through the Medicaid appeals process to eventually qualify.

  2. To finish the last post, he also has an issue with strangers being in his space. That causes an increase in SI behaviors.

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