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In re Brett

Supreme Court of Vermont

February 14, 2014

In re Jean Brett; In re Leslie McCool

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Human Services Board. Charles Gingo, Chair.

William R. Dysart, Vermont Legal Aid, Inc., Burlington, for Petitioners-Appellants.

William H. Sorrell, Attorney General, William H. Ahlers, Assistant Attorney General, Montpelier, and Kristen L. Clouser, Assistant Attorney General, Waterbury, for Respondent-Appellee.

Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.


Page 121

Robinson, J.

[¶1] Petitioners in these consolidated appeals, both recipients of home-based long-term care benefits through Vermont's Medicaid-funded Choices for Care (Choices) program, appeal decisions of the Human Services Board disallowing deductions for personal care services from their patient-share obligation under federal and state Medicaid laws. We conclude that, to the extent the services in question are medically necessary, expenses for those services must be deducted from petitioners' patient-share obligation even if they are of a type generally covered by Medicaid. We further reject the State's claim that the decision of the Department of

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Disabilities, Aging and Independent Living (DAIL) not to provide the personal care services in question under the Choices program constituted a conclusive finding that the services are not medically necessary. Accordingly, we reverse the Board's orders and remand the cases for determinations of medical necessity consistent with this opinion.

I. General Background Law

[¶2] Choices is a state-administered program funded through a Medicaid waiver that, in relevant part, provides home-based long-term-care services to eligible elderly or physically disabled Vermont adults. See Choices for Care 1115 Long-Term Care Medicaid Waiver Regulations § I(A), 4 Code of Vt. Rules 13 110 008-1, available at [CFC Regulations]. The Choices waiver is subject to approval by the Centers for Medicare and Medicaid Services (CMS), the federal agency charged with providing program oversight, and is managed in compliance with CMS terms and conditions of participation. Id.

[¶3] Applicants for services through the Choices program must satisfy both clinical and financial criteria. Id. § IV(A)(1). On the financial side, applicants are sometimes required to " spend down" their available income before they are eligible to participate in the program. See id. § IV(D) (discussing financial eligibility standards). Based on various clinical criteria, eligible individuals are classified into the highest-needs group, the high-needs group and the moderate-needs group. Id. § IV(B). The services available under the program vary based on the individual's classification. Id. § VIII. DAIL and the Department for Children and Families (DCF) jointly administer Choices, with DAIL determining clinical eligibility and category of clinical needs and DCF determining financial eligibility for those in the high- and highest-needs categories. Id. § VI(B)-(C).

[¶4] Among the personal care services covered by Choices are assistance with activities of daily living (ADLs) -- which are categorized into discrete units such as dressing, eating, bathing, bed mobility, and toilet use -- and assistance with instrumental activities of daily living (IADLs) -- which are also categorized into discrete units such as meal preparation, medication management, household maintenance, and transportation. Id. § III(1), (28), (37). The number of hours of personal care services available through Choices for assistance with various specified needs are capped. Id. § VIII. However, an individual may request services above the cap by seeking a variance. Id. § XI.

[¶5] People eligible for Medicaid programs, including Choices, are required, depending on their income, to pay a share of the costs of their care. Spend-down, Patient Share, and Resource Transfer Regulations § 4400, 5 Code of Vt. Rules 13 170-1, available at http// [Patient Share Regulations]. The patient share is calculated by determining a person's gross monthly income and then subtracting federally mandated deductions, including a personal needs allowance, home-upkeep expenses, family maintenance, and reasonable medical expenses. Id. § 4460. In the closely related context of spend-downs in connection with an applicant's initial eligibility, a deduction " is allowed for necessary medical and remedial expenses recognized by state law but not covered by Medicaid," id. § 4452, including " noncovered personal care services provided in an individual's own home ... when they are medically necessary in relation to an individual's medical condition," id. § 4452.3, and " [c]overed medical expenses ... that exceed limitations on amount, duration, or

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scope of services covered," id. § 4442(c). Deductions for " general supervision" of a beneficiary's well-being may be allowed where that care is required due to a specific diagnosis of certain debilitating diseases like Alzheimer's disease or dementia. Id. § 4452.3(a).

[¶6] A beneficiary claiming a deduction for the cost of personal services as a necessary medical expense submits to DAIL a Statement of Cost for Personal Care Services (form 288C) and a Statement of Need for Personal Care Services (form 288B) from a treating physician. DAIL reviews the forms and determines whether to provide the requested services under the Choices program. DCF determines the amount of the patient share. Services that are medically necessary and not covered by Choices are deducted from the beneficiary's income for purposes of calculating the patient share. See 42 C.F.R. § 435.735(c)(4)(ii) (federal regulation governing application of patient income to the cost of care); see also Patient Share Regulations § 4442 (listing deduction sequence for spend-down purposes).

II. Facts and Procedural History

A. Jean Brett

[¶7] This is Jean Brett's second appeal to this Court concerning the denial of her requests for a deduction for the cost of personal care services from her patient share obligation under the Choices program. See In re Brett, 2011 VT 28, 189 Vt. 345, 19 A.3d 154. As we noted in the first appeal, Brett has been eligible for home-based long-term care through the Choices program since 2007. Id. ¶ 2. She is in her mid-eighties, disabled, and living with her daughter. Brett initially sought only five days a week of third-party personal care services through Choices because her daughter cared for her on weekends. From 2007 through 2009, DCF determined Brett's patient share for five days a week of personal care services provided by Choices to be zero after deducting from her gross income, among other things, $1,451 in noncovered medical expenses for personal care services provided by her daughter the other two days. Brett's monthly patient share increased to $45 between April and June 2009. In July 2009, DCF determined Brett's monthly patient share to be $1,155, concluding that the cost of personal care services provided by her daughter, beyond the five days covered by Choices, could no longer be deducted as noncovered medical services as the result of DAIL's decision that seven days of general supervision was not medically necessary.

[¶8] Brett appealed DCF's patient-share determination to the Human Services Board, which found that the evidence supported the medical necessity of covered personal care services seven days a week. Because Choices provided Brett with personal care services for only the five days that she had requested, the Board ordered DCF to deduct the cost of the additional two days of personal care services provided by her daughter, thereby reducing her patient share to nearly zero. The Secretary of the Agency of Human Services reversed that decision, concluding that the Board had granted relief beyond Brett's appeal by providing personal care services for seven days when she was asking only for five days and had contravened state and federal law by deducting medical expenses that were or could be covered by Choices. The Secretary made no finding as to the medical necessity of the additional two days of care.

[¶9] On appeal to this Court, Brett argued that the two additional days of personal care services provided by her daughter should be deducted because they were ...

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