Update on the Chisholm lawsuit

Activities are still going on in the Chisholm lawsuit.  The Department of Health and Hospitals sends the Advocacy Center reports on its annual monitoring of service coordination agencies.  The Advocacy Center reviews monitoring documents to make sure that DHH is requiring service coordinators to assess class members’ needs, help them access needed services, and help them appeal if the services are denied by Medicaid.  The Advocacy Center also gets regular reports on the number of hours of EPSDT personal care services and extended home nursing services that class members have been authorized to receive.  DHH contacts each class member monthly to find out if they are getting all authorized services, and to help them find a provider who is capable of delivering the services if they cannot find one.  In addition, the Advocacy Center and its co-counsel, David Williams, are monitoring the prior authorization process to make sure that class members’ requests for services are not being denied for technical reasons.  The only reason that class members should be denied covered Medicaid services is because they are not medically needed.

Finally, the Advocacy Center is working on a way to get Medicaid to pay for Applied Behavior Analysis for children with autism spectrum disorders and pervasive developmental disorders.  If your child is on  Medicaid, needs ABA therapy, and is on the NOW request for services registry, please call Nell Hahn at 1-800-960-7705 ext. 311, or Jeanne Abadie at 800-960-7705, ext. 130.

 

Chisholm v. Hood: A Fact Sheet

What is Chisholm v. Hood? A class action lawsuit filed by the Advocacy Center in 1997 to make Louisiana Department of Health and Hospitals (DHH) live up to its obligation to arrange for necessary services under regular Medicaid to children on the “NOW” (formerly the MR/DD Waiver) waiting list or “registry.”

Reported decisions in the case are: Chisholm v. Hood, 133 F.Supp.2d 894 (E.D.La., 2001) (holding that Louisiana's Medicaid program did not adequately provide community-based behavioral and psychological services to class members diagnosed with autism); 110 F.Supp.2d 499 (E.D.La., 2000) (holding that state must make available medically necessary occupational, speech and audiological services to children confined to their homes, and may not limit providers to school boards or early intervention centers). Unpublished decisions are 1998 WL 92272 (E.D.La., 1998) (class certification) and 90 Fed.Appx. 709, 2004 WL 117633 (5th Cir. 2004) (attorneys’ fees). There are also three settlement stipulations, a contempt order, and two orders enforcing previous stipulations and orders.

Who are members of the Chisholm class? Persons under age 21 who currently receive or are eligible for Medicaid, and who are now on the MR/DD Waiver waiting list, or not on the list now, but have been on it at some point since October 20, 1997.

What are all children under age 21 entitled to under Medicaid? All Medicaid services that are necessary to treat a mental or physical condition or make it better, whether or not these services are provided to adults in this state. "EPSDT" stands for Early and Periodic Screening, Diagnostic, and Treatment." EPSDT means the same thing as Medicaid for people under age 21.

What are class members entitled to under Court orders in the Chisholm case?

1. Better Access to Services:

   • Case management(also called “service coordination”): assistance of a person employed by a case management agency, who comes to the home and develops and implements a plan to get access to the full range of needed services, both Medicaid and non-Medicaid services. To get case management, call 1-800-660-0488 and ask for it.
   • Speech therapy, occupational therapy, physical therapy, psychological evaluations and therapy, and audiology services:
     • must be reimbursed if provided outside of the schools or early intervention centers as needed; schools and early intervention centers must notify parents of this in writing at the time that an IEP or IFSP is developed.
     • must be reimbursed if provided in the home if this is medically necessary.
   • Personal care services: There is no limit on the number of hours of services that can be authorized if needed. All references to a 28-hour per week limit will be deleted from manuals, training materials, and regulations.
   • Personal care and extended home nursing or home health services: DHH has established a special toll-free number for class members to call (888-758-2220) if they cannot find a provider who is willing and able to provide these services. DHH has to help people find a provider of personal care or extended home health services within 10 working days, if the client cannot find a provider on his or her own.
   • Psychological and behavioral services: These services are now covered for class members, including evaluations, behavior and treatment plans, clinical services, and home behavioral services. Psychologists have been notified that they can enroll as Medicaid providers to provide services to class members. To get psychological services, call KIDMED (toll free): 1-877-455-9955 (voice) or 1-877-544-9544 (TTY).

2. Information:

   DHH has to give out information about EPSDT services, especially those services that class members are especially likely to need, like case management, extended home health, personal care services, speech therapy, occupational therapy, physical therapy, psychological evaluations and therapy, audiology services, and durable medical equipment. DHH was required to find out which agencies provide PCS and maintain a list of those providers DHH was required to train case managers and OCDD staff about EPSDT services and to designate an EPSDT specialist in each OCDD office and regional Medicaid office.

   • To be referred to a provider of any Medicaid service, call KIDMED at 1-877-455-9955  (voice) or 1-877-544-9544 (TTY).

3. Help with Prior Authorization

   Many Medicaid services have to be authorized by Medicaid before they can be provided. These include personal care services, extended home nursing services, therapies, and medical equipment. Authorization should be given unless the services are not medically necessary or are not coverable by any state's Medicaid program.
   • Case managers will be trained to help clients get prior authorization requests processed.
   • Case managers have to return clients' calls within 1 work day, and their agencies must have an emergency number where clients can reach a human at all times.
   • Unnecessary bureaucratic barriers will be removed:
     • Unisys (the prior authorization company) will appoint a specific liaison to help class members
     • Unisys must talk with case managers about requests
     • All reasons for denial must be given at one time
     • Notices about prior authorization will be simplified and made easier to understand
     • If Unisys disagrees with the client's doctor as to whether a service is needed, it has to spell out why, so the doctor can respond with more information.
     • DHH will now have a procedure to lessen the documentation that has to be provided in cases where services can be expected to be needed at the same level in future time periods
     • Under DHH's system, providers are the ones who send in requests for prior authorization. Sometimes, people needing services can't find a provider to submit their request, or the provider refuses to request all the services the client needs.
   • Providers will now be required to notify DHH when they refuse to submit requests for items or services that they provide.
   • A procedure will be set up for DHH to review requests directly, without submission by a provider, if a doctor's statement says what services are necessary and why.

     If you have questions about the case, call the Advocacy Center, 1-800-960-7705.

Chisholm v. Hood: A Chronology

The following is a summary of how Chisholm v. Hood has progressed through the court system and the results that that have led to critical health services for Medicaid eligible children under the age of 21.

On February 16, 2000, a partial settlement was approved. This assured that case management would be available to all class members. This settlement also provided for additional information to be given out about Medicaid services for children on the MR/DD waiver waiting list, and for training and monitoring of case managers.

On August 30, 2000, another partial judgment was issued that dealt with audiology services, occupational therapy, psychological evaluations and therapy, and speech therapy. These are services that are usually provided through schools and early intervention centers. The judgment required schools and early intervention centers to notify parents that the services could be obtained through other providers, as well as schools. Also, this judgment ordered DHH to allow home health agencies and rehabilitation centers to provide speech therapy, audiology, and occupational therapy in the home if this is medically necessary.

On October 16, 2000, another partial settlement was approved. It dealt with interperiodic screens (checkups in between the scheduled checkups that are required). It also required DHH to find a personal care service provider or an extended home nursing provider within 10 days, if recipients can't find one. It also dealt with situations in which the Medicaid Prior Authorization Unit denied items or services because cheaper items or services would supposedly work. It said that, in those cases, the cheaper items or services had to be identified and provided, while the recipient could still appeal for the requested items.

In October, 2000, there was a trial on the issue of services to children with autism and other pervasive developmental disorders.

In February of 2001, the judge entered an opinion that DHH was violating the Medicaid Act by failing to provide psychological and behavioral services for children with autism.

The parties agreed upon a remedy, and on June 27, 2001, the Court ordered the Department of Health and Hospitals to provide 15 teams of psychologists, social workers, and behavioral specialists throughout the state to provide these services to children who needed them (including some children who did not have autism or pervasive development disorders, but did have a need for similar services). Unfortunately, DHH was not able to get the teams to perform these services as planned.

Plaintiff's attorneys then asked DHH to be held in contempt, and required to allow any qualified, licensed psychologist to enroll in Medicaid to provide services to class members. This was ordered by the Court in June of 2002. Since then, class members and psychologists have been notified that these services can be provided.

In July of 2002, there was a final settlement order dealing with Medicaid's prior authorization process. Case managers now have the responsibility for tracking services that require prior authorization and assuring that all steps are followed to get the class member the necessary services. In addition, a Prior Authorization Liaison position was added to provide class members, case managers and service providers a person to call when they have questions or are having difficulty receiving an approved prior authorization for a service. Notices have been simplified, and the prior authorization process will be improved in a number of other ways that will make it easier for people who need services to get them.

In March of 2007, the Advocacy Center filed a motion to enforce parts of the stipulations and orders that require DHH to effectively monitor support coordinators (formerly known as “case managers”), and to assist class members or support coordinators to locate home nursing and personal care service providers if necessary. DHH filed a motion asking the Court to release it from all obligations under the Chisholm orders.

On June 13, 2007, the Court granted the Advocacy Center’s motion and denied DHH’s motion. The Court ordered DHH to perform enhanced monitoring of service coordination agencies and to report the results of the monitoring to the Advocacy Center. It also required the Department to come up with a plan to effectively assist class members to locate providers willing and able to provide personal care and extended home health services (which include nursing, occupational therapy, speech therapy, physical therapy in the home if necessary). This plan was approved and ordered by the Court on October 7, 2007. The Department was also ordered to report whether class members are actually receiving the amount of home services approved for them.

Plaintiffs’ attorneys notified DHH February 2008 that the relief the Court awarded in its Order of June 14, 2002 is not effectively meeting the needs of class members for psychological and behavioral services. The parties met to discuss this in March 2008, where the Department told of its intent to seek an Administrative Services Organization to manage mental and behavioral health care, including services to Chisholm class members. Plaintiffs’ attorneys are monitoring these plans to insure that they provide at least the relief awarded by the Court in it June 27, 2001 remedy.