MORGANTOWN — A federal judge has ruled in favor of the state in a lawsuit filed on behalf of Medicaid clients with intellectual and developmental disabilities, but the story may not be over yet.
Mountain State Justice filed the suit in July 2015 on behalf of five Medicaid Title XIX Intellectual/Developmental Disability (IDD) Waiver clients, and later expanded it to a class action suit covering all 4,684 people enrolled.
The Department of Health and Human Resources’ Bureau for Medical Services operates the program. In 2014 realized that it had been running the program in the red and ordered the contractor that calculated client budgets to stop approving requests for additional funding.
Since contractor APS/Kepro had been routinely approving these requests – because its formula routinely lowballed actual client needs – this order amounted to client budget cuts.
Mountain State Justice sued, alleging the contractor’s budget process was secret and arbitrary. In 2016, District Judge Thomas E. Johnston agreed that contractor Kepro’s formula violated due process and was unconstitutional.
In response, DHHR devised a new process that began April 1. It includes interviews with the client and the client’s guardians and care team, and some paperwork. From that, a base budget is calculated based on a “highly individualized” actuarial model DHHR says in 95 percent accurate. Add-ons are available based on four criteria and a new appeal process is established.
Mountain State Justice argued that the new process is not better: It still denies them equal access to needed care as required by the Americans with Disabilities Act; and budget caps and other problems prevent their clients and family members from getting the care they need and prevent families from getting the support they need, they say in statements filed to support the case.
DHHR argued, in return, that the plaintiffs failed to amend their complaint to address the particulars of the new process, and that the allegations are moot because the new process has started.
In his ruling dismissing the case, Johnston agreed with DHHR. He noted his March ruling that said the former due process injustices are not repeated in the new system.
Lydia Milnes, a Morgantown-based Mountain State Justice attorney who worked on the case, said the judge hasn’t issued his final judgment order yet, which would trigger the appeal period. “We are still considering options.”
Those options could include appeal to federal district court, or filing a new suit regarding the new process. “We are obviously disappointed. … Until we make that decision, I don’t want to say too much.”
Discussing the reasoning behind his siding with DHHR, Johnston says, “Virtually every aspect of the system has been amended … and some waiver recipients already seem to be benefiting from it.”
He says that while Mountain State Justice alleges the new system is equally problematic, it failed to amend its earlier complaint to directly address the new one; its complaint addresses a system that no longer exists. And they haven’t demonstrated that any waiver clients have exhausted the system’s appeal process for their new budgets.
But Johnston keeps a door open: “Nothing in this opinion should be construed to hold that the legality of DHHR’s new authorization system is immune from challenge.”
The Dominion Post asked DHHR for comments on the case and the problem of the budget caps, and what’s next for its new system.
Spokeswoman Allison Adler said in an email exchange, “The DHHR believes the case was appropriately dismissed as moot, as a new budget determination process was put in place.”
Mountain State Justice and many waiver client caregivers complain that budget caps – which limit the number of service hours for such things as respite – put undue burdens on the caregivers and don’t allow the clients to use their full budgets, which needlessly ties up money.
Adler said, “Caps were first instituted in July 2010 and were modified in July 2015, so were in place prior the litigation which recently settled. Also notably, the dismissed lawsuit did not involve caps. The DHHR believes caps are necessary to maintain financial soundness of the program to ensure new members can join from the waiting list as quickly as possible.”
Regarding what’s ahead, she said, “The new process has been in place, applying to anchor dates on or after July 1. The DHHR believes the new process creates appropriate budgets for IDD/W members, as it is a transparent methodology and utilizes the member’s current circumstances to create the budget.
“Specifically, the budget is determined based on the setting in which the member lives, and the member’s functionality. This budget is not a limit on the services available to waiver members, as members are able to exceed their budget through an exceptions process administered by the Bureau of Medical Services.”
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