This is the second of two articles on the status of Medicaid’s Intellectual/Developmental Disability Waiver Program. Sunday’s story focused on unusable overpayments to certain clients.
The plaintiffs in a federal civil suit affecting the Medicaid Title XIX Intellectual/Developmental Disability (IDD) Waiver program suffered a setback in a recent court ruling.
In his March 26 order, the judge modified his September 2016 preliminary injunction that protected the five named plaintiffs from benefit cuts resulting from changes to the program undertaken by the state Bureau for Medical Services in 2014.
Now, the plaintiffs will be subject to BMS’s new methodology for calculating their care budgets that went into effect April 1. They could potentially face 20 percent cuts based on a stop-loss provision in the new system designed to prevent deeper budget cuts.
The suit was filed in July 2015 against the Department of Health and Human Resources — BMS is an agency of that department — and former Secretary Karen Bowling (current Secretary Bill Crouch is now named in filings) in the U.S. District Court for the Southern District of West Virginia. Mountain State Justice filed it on behalf of five waiver clients whose benefits had been reduced.
The program is intended to help its 4,634 members maintain independent lives and stay out of institutions. DHHR had claimed it was cutting services to operate within its $89 million budget and bring some new clients off its 1,100-person waiting list.
Waiver benefits had been determined by state contractor APS Healthcare — now called Kepro (pronounced key-pro) — using a proprietary computer algorithm. Since 2011, the algorithm has overestimated the budget for some clients; and routinely lowballed budgets for others, requiring appeals for more funding that were routinely granted.
But in September 2014, BMS discovered that APS had been routinely granting funds beyond the clients’ budgets and ordered it to stop. From that point, all requests for additional funds had to go through an appeal process and were routinely denied.
In September 2016, Judge Thomas E. Johnston determined that the APS algorithm is problematic. Because it’s secret, the factors it uses, the weighting of factors and the method for calculating benefits are unclear. He granted the preliminary injunction to restore 2014-level benefits to the named plaintiffs.
The judge later granted Mountain State’s motion to extend class status to all waiver members. But he denied Mountain State’s request to extend the injunction restoring 2014-level benefits to all class members.
DHHR had argued that it was devising the new system and that restoring the benefits of all 4,364 members would cost millions of dollars it doesn’t have, and prevent DHHR from adding 50 new members.
Discussing his reasoning, Johnston says the new BMS methodology does not violate clients’ due process rights as the secret algorithm did. It is based on “transparent and discernable standards” and outlines a clear, multi-step dispute and appeal process.
Johnston also explains at length that his decision has no connection with the plaintiffs’ actual budgets. The preliminary injunction concerned due process and a fair procedure, not dollar figures.
He wrote, “Thus, plaintiffs’ argument that the new authorization system will decrease the IDD Waiver Program budgets across the board cannot be the focus — regardless of its truth — in deciding whether to modify or vacate the current injunction.”
He continues, “Defendant has complied with the injunction to this point. … There is no indication that the faulty conditions of the old system will recur as the new system is in the process of being implemented.”
Each waiver client has an anchor date marking the anniversary of their entry into the program. Kepro typically conducts a new annual assessment within 90 days of the anchor date. Under the order, the injunction for reach each named plaintiff will expire at their anchor date unless their 90-day period had already commenced at the time of the order. For them, it will expire at the next anchor date.
The case remains open. DHHR does not comment on litigation. Mountain State did not respond to two requests for comment.
