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Court of Special Appeals Rejects 'Unfair' Medicaid-Eligibility Practice

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The County Times Newspaper

The Southern Calvert Gazette Newspaper

Posted on November 30, 2007

By ANDY ZIEMINSKI, Capital News Service

ANNAPOLIS (Nov. 30, 2007) - Maryland's Court of Special Appeals ruled Wednesday that the state health department was using too-strict a standard in determining Medicaid eligibility for at-home health services.

The department rejected 85-year-old Ida Brown's application for coverage under the Older Adults Waiver Program in 2005 because it said the Alzheimer's patient did not require constant care from a licensed health practitioner, its standard for admission to the program.

But a three-judge panel of Maryland's second-highest court ruled that the Department of Health and Mental Hygiene's standard was stricter than federal eligibility requirements.

"Maryland cannot set a higher bar for eligibility under the Older Adults Waiver Program than is prescribed by the federal government," Judge Mary Ellen Barbera wrote in the court's opinion.

The ruling could affect as many as 13,000 Marylanders who are either in the program or waiting for approval to apply, said Mary Aquino, a lawyer with the Legal Aid Bureau who represented Brown. An AARP lawyer was also involved in the case.

"We think this is a very encouraging sign," said Tiffany Lundquist, a spokeswoman for AARP's Maryland office. "A lot of Marylanders have been suffering under these unfair standards."

The health department was reviewing the court's decision and had no comment Wednesday, said spokeswoman Karen Black.

The Medicaid Home and Community-Based Services Waiver program allows people 50 and over to get Medicaid coverage at home or in assisted-living communities for long-term care services that are normally covered only in nursing facilities.

The court determined that people should be eligible for the program if they need constant care and supervision provided by health care aides, but not necessarily the level of care that would require licensed or highly skilled nurses.

The court panel, which included Judges James Eyler and James Kenney III, told the health department to reconsider Brown's application using the more lenient federal standard.

Brown, who is now living in an Anne Arundel assisted living facility, suffers from osteoarthritis, osteoporosis, elevated cholesterol levels, hypertension, bilateral cataracts and a benign brain tumor, in addition to Alzheimer's, according to court documents.

She and her daughter, Diane Byus, applied for the waiver program in 2005 because Byus, a registered nurse, could not give her mother the attention she needed, Aquino said.

After the health department rejected their application on the grounds that Brown did not require constant care from a highly skilled nurse, they appealed unsuccessfully to the Maryland Office of Administrative Hearings and the health department's board of review.

Brown then appealed to the Baltimore City Circuit Court in August 2006, which ruled in Brown's favor and ruled that she was eligible for the waiver program. The health department appealed and the Court of Special Appeals heard the case in June.

The appellate judges agreed with the circuit court that the state used the wrong standard in determining eligibility for the program, but it also said the lower court went too far when it ordered the state to accept Brown.

Wednesday's decision "vindicates the rights of people with dementia, who are low-income eligible and get services from health care facilities," Aquino said.

Aquino said she and AARP lawyer Sarah Lock are scheduled to argue a case before the Court of Special Appeals Dec. 10 that involves another 11 people in "the exact same" situation as Brown.

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