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In re M.F.

Court of Appeals of Missouri, Eastern District, Second Division

January 24, 2017

In Re: M.F., by her parents and guardians Carl Fields and Beverly Fields, Appellant,
CHARLES KEITH SCHAFER, in his physical Capacity as Director of the Missouri Department Of Mental Health, Respondent.

         Appeal from the Circuit Court of St. Louis County Honorable Gloria Clark Reno

          ROY L. RICHTER, Judge

         M.F. ("Consumer"), a consumer of services[1] provided by the Missouri Department of Mental Health ("DMH"), through her guardian parents (Consumer and her parents are collectively referred to simply as "Appellants" herewithin), appeals from DMH appeals referee's decision denying Consumer consultation services under the redefined Behavior Therapy for Consumer's orientation and mobility services, which Consumer has received for more than a decade at an approved rate of pay. The decision allows the services instead to be provided and billed under a different classification code that pays $27 less per hour for the highly specialized services than it allowed before. We reverse and remand.

         I. Background

         Consumer is a woman in her late twenties who receives services from the St. Louis Regional Tri-County Office of DMH. She has been diagnosed with autism, blindness, rumination disorder, hypotonia, hypothyroid, language disorder, seizure disorder, and irritable bowel syndrome. Consumer also engages in frequent aggression, maladaptive behaviors and self-injurious behaviors to the point of needing hospitalization. An in-home Independent Support Living arrangement was initiated for Consumer in 2009 to assist the family in caring for Consumer's complex medical and behavioral needs.

         In addition to the supported living arrangement, Consumer receives music therapy, occupational therapy, speech and language pathology, physical therapy, an orientation and mobility specialist, and blindness services through her participation in the Home and Community Based Services Comprehensive Medicaid Waiver. DMH's Division of Developmental Disabilities administers five Medicaid Home and Community Based Waiver programs for individuals with intellectual and developmental disabilities.[2] One of the five is the Comprehensive Waiver, which is the only waiver that provides residential and individualized supported living services.

         Within the Comprehensive Waiver, Person Centered Strategies Consultation ("PCSC") is one service, along with applied behavioral analysis, which addresses behavioral situations. Waiver codes for positive behavior supports and behavior therapy were eliminated. The PCSC definition in the Comprehensive Waiver is as follows:

This service involves consultation to the individual's support team to improve the quality of life for the individual through the development and implementation of positive, proactive, and preventative Person Centered Strategies and a modified environment and/or lifestyle for the individual. Person Centered Strategies Consultation involves evaluating a person's setting, schedule, typical daily activities, relationship with others that make up the supports for the individual, including paid staff/paid family and unpaid natural supports. The evaluation leads to changes in strategies such as rearranging the home to reduce noise and stimulation, adding a personal quiet area to get away from annoying events, teaching skills to promote more positive interactions between the individual and supporting staff or family . . . .
This is a short-term service that is not meant to be ongoing, the typical duration of the service is 12 months or less . . . .

         This is a service put in place to improve an individual's quality of life by reducing crisis and behavioral problems.

The provider qualifications for PCSC are as follows:
This service can be provided by an individual or an agency who is a Qualified Person Centered Strategies Consultant. A Person Centered Strategies Consultant is a person with a bachelor's degree with special training, approved by the Division, related to the theory and practice of Person Centered Strategies for individuals with intellectual and developmental disabilities, or Applied Behavior Analysis and implementation of Person Centered Approaches.
Training will be approved by Division of DD staff if the training syllabus describes positive, proactive interventions strategies, quality of life variables and evaluation of improvement strategies and system wide implementation of evidence based practices. This includes for example: The Tools of Choice Training with additional coaching of tools training; College course work for example within a special education department involving implementation of Tiered Supports strategies; training from a state agency on implementation of tiered supports and person centered strategies and quality of life.

         Consumer has received Orientation and Mobility Services or Blindness Services ("OMS/BS") for nearly 15 years, first provided as special education and related services and through her participation in the Sara Lopez Home and Community Based Services Comprehensive Medicaid Waiver[3] program. After aging out of the school system and the Sara Lopez Waiver, Consumer began receiving her OMS/BS from Certified Orientation and Mobility Specialists and certified Blindness Professionals through her participation in the Home and Community Based Services Comprehensive Medicaid Waiver. Every year, Appellants submit a new Individual Support Plan ("ISP") to DMH for approval, including the supporting evidence for Consumer's continued need for OMS/BS. She was continually approved for 52 units or 13 hours of OMS/BS per month, which were reimbursed to her providers at a rate of approximately $67 per hour. The Comprehensive Waiver does not have a service code specific to OMS/BS, but throughout the years, a service code was used to bill at the market rate for qualified certified Orientation and Mobility specialists and certified Blindness Professionals since at least 2005.

         In August 2012, Appellants submitted Consumer's ISP for the plan year of October 1, 2012, to September 30, 2013, to the Utilization Review Committee ("URC"), which reviews initial ISPs and budgets to ensure an individual's needs are being addressed and that levels of funding for individuals with similar needs are similar statewide. Appellants did the same for every year prior, for review and approval of the services requested therein. Appellants did not receive a decision until October 3, 2012, three days after the expiration of Consumer's October 1, 2011, to September 30, 2012 ISP. In a letter dated October 3, 2012, Julia Hillyer ("Director") of the St. Louis Regional Tri-County Office of DMH ("Facility") informed Consumer that her request for "Orientation and Mobility; Blindness through Positive Behavior Supports - PBS" was denied because "Orientation and Mobility; Blindness" is not a "waiver service that can be provided under PBS as PBS is a short term/temporary support." Director recommended that Appellants "look into" obtaining OMS and BS through Rehabilitation Services for the Blind despite the fact that Consumer was ineligible for services from Rehabilitation Services for the Blind because she is unemployable due to the severity of her disability.

         Appellants appealed on October 5, 2012, arguing that Consumer's health and safety would be jeopardized without the OMS/BS, as would the health and safety of others. Appellants argued that Consumer needs the services to live safely and independently in the community. After a brief interruption in the services, DMH reinstated them for a period of 30 days (through November 10, 2012) and gave Consumer the caveat that OMS/BS needed to be re-coded as Community Specialist ("CS")[4] because it is "the only waiver code that is not time sensitive."[5] A meeting took place on October 23, 2012, with Director and the Facility's Provider Relations Coordinator John Fischer. Consumer's father and brother attended, as did two members of Consumer's support staff, and Consumer's Board Certified Behavioral Analyst Jessica Harrison, and Kevin Hollinger, Consumer's orientation and mobility provider for many years. Although making it clear that OMS and BS were vital to Consumer's ability to access all of the services she received under the Comprehensive Waiver and thus, her ability to live independently in the community, Mr. Hollinger communicated that he could not continue to provide OMS/BS to Consumer if the services were billed under the CS and reimbursed at a rate of $40 per hour. He indicated that such a rate was not reasonable given the education and certifications required to provide OMS and BS services and that it was approximately half the rate paid to others in the COMS/CBPs in the St. Louis area. Consumer's team made it clear that their one requirement for any provider of OMS and BS to Consumer was that the provider have the requisite certifications for a COMS/CBP, and did not require that the OMS and BS be provided by Mr. Hollinger.

         Director issued a second decision on November 9, 2012, that stated, "Orientation and Mobility Services for [Consumer]" would be billed under the CS service code at a rate of $40 per hour because the "O and M services that Mr. Hollinger has been providing to [Consumer] do not fit the PBS/PCSC definition." At no time, in either Director's October 2, 2012 decision, or in Director's November 9, 2012 decision did Director ever state OMS and BS services could no longer be provided through PBS/PCPS because Mr. Hollinger was not a qualified provider. Director did state that OMS and BS could no longer be provided through PBS/PCPS because they do not meet the PBS/PCSC service definition. Director did not explain why OMS and BS did not fit the PBS/PCPS definition. However, prior correspondence from Director to Appellants, and subsequent evidence obtained during the appeal, clarify that Director believed OMS and BS could not be provided through PBS/PCPS because it is a temporary/short-term service. Director did not explain why OMS and BS fit the CS definition other than the fact that it is "the only waiver code that is not time sensitive."

         After Appellants learned of Facility's plan to limit OMS and BS to the lesser reimbursement rate, they began looking for a COMS/CBP who would provide OMS/BS at this rate of $40 per hour. They contacted Consumer's service coordinator Nimishia Gohil for assistance in finding a provider who would be able to provide OMS and BS under the CS service code at a $40 per hour rate, but Ms. Gohil was unable to find a provider who would provide services at that rate. Appellants appealed Director's decision on November 30, 2012, wherein Appellants informed Director that there were no qualified COM/CBP who were able to provide OMS and BS under the CS service code and that Director's decision that OMS and BS "did not fit the PBS/PCSC service code" amounted to an effective denial of those services. The letter also reiterates that every member of Consumer's team agrees that OMS and BS are medically necessary services and without ...

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