NC Register Volume 21 Issue 09 - Office of Administrative Hearings

CONTESTED CASE DECISIONS
(ICF-MR). 42 U.S.C. § 1396n(c). It was stipulated by the parties that Petitioner qualifies for these services.
7. The federal agency overseeing the Medicaid program, the Centers for Medicare and Medicaid Services (CMS) directs the
states’ Medicaid programs by means of rules and its State Medicaid Manual (SMM). With respect to services delivered pursuant to a
home and community based services waiver, such as those in dispute in this action, there exists the directive that waiver services
provided by a relative may be paid for by Medicaid only if the relative meets the qualifications for providers of care and there is
adequate justification as to why the relative is the provider of care. State Medicaid Manual, §4442.3
8. Federal law mandates that each state participating in the Medicaid program must designate “a single state agency”
responsible for the program in that state. 42 U.S.C. § 1936a(a) (5). The N.C. Department of Health and Human Services operates as
this State’s single state agency.
9. The N.C. Department of Health and Human Services’ rules concerning appeals by Medicaid recipients for the denial,
termination or reduction in services (10A N.C.A.C. Subch. 22H) have been promulgated pursuant to the federal provisions of 42
C.F.R. § 431 Subpt. E (200 to 246). These provisions, along with North Carolina’s Administrative Procedures Act, entitle Medicaid
recipients requesting review of denials of requested Medicaid services to pursue their due process rights through Article 3 of Chapter
150B of the N.C. General Statutes.
10. The CAP/MR/DD Manual (not included in the North Carolina Administrative Code) is a nonbinding interpretative statement
from Respondent which defines, interprets, and explains the federal directives, statutes and rules for Medicaid. [See, N.C. Gen. Stat.
§150B-(8a)(d)]. Although the Manual sets out the requirements for eligibility for and explanation of Medicaid waiver services, it
merely explains and interprets the definitions that currently exist in the binding federal and state statutes, rules, regulations and federal
waiver documents.
11. Violations of or failure to comply with the Manual does not have the effect of law, but failure to meet the requirement(s) set
out in the federal and state statutes and regulations is/are a ground to deny Medicaid payments. The North Carolina courts have found
that such a manual (though indeed authorized in its making) is not an agency rule or regulation, within the meaning of the
administrative procedure act, and, although such a manual sets out requirements for Medicaid eligibility, it is an interpretative
document, and noncompliance with such a manual is not of effect. Okale ex rel. Okale v. North Carolina Department of Health and
Human Services, 153 N.C.App. 475, 570 S.E.2d. 741 (2002), see also, See, Little v. Catawba Mental Health, 05 DHR 1147.
12. The binding federal waiver documents require that the individual delivering the service of Supported Employment “must
meet requirements for a paraprofessional in 10A NCAC 27G .0100-.0200.” It was stipulated by the parties that Petitioner’s relative,
his mother, meets the requirements of a paraprofessional.
13. It was stipulated by the parties that Petitioner is eligible for Supported Employment.
14. The preponderance of the evidence shows that Petitioner is motivated to engage in paid employment and would benefit from
the opportunity.
15. The preponderance of the evidence shows that the totality of Petitioner’s impairments result in an individual unique in the
range of behaviors, limitations of abilities, and the predictive ability for either behaviors or abilities. These factors are complicated by
a range of other health issues and lack of skills.
16. The preponderance of the evidence shows that the individuals paid to deliver services, either Home and Community Supports
(previously denominated as Supported Living) or respite, to Petitioner turn over at an high rate.
17. The preponderance of the evidence shows that it is difficult to obtain suitable individuals to provide paid services, either
Home and Community Supports (previously denominated as Supported Living) or respite, to Petitioner.
18. The preponderance of the evidence shows that Petitioner suffers harm from the loss of staff and the concomitant loss of
consistency in the working of his Plan of Care goals.
19. The preponderance of the evidence shows that Petitioner has demonstrated better than average gains in his Plan of Care goals
while receiving Home and Community Support services from his relative, his mother.
20. The preponderance of the evidence shows that Petitioner does not suffer detrimental social isolation. The preponderance of
the evidence shows that while Petitioner has clear social skills deficits, his social skills were a “relative strength.”
21. The preponderance of the evidence shows that there is adequate justification as to why the relative should be the provider of
care, specifically that:
a. Petitioner’s unique impairments
b. make the recruitment and maintenance of paid service staff unduly difficult
c. with the loss of consistency being harmful to Petitioner thus
21:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2006
860