|Contents |Introduction |Overview| State
Actors| Concise Legal Reference |Federal
Complaint |Qs&As |Kaarla Weston’s and Peter Van Voorhis’
actual letters|
|Comments to
Mary P. Castelli”s letter|
|Complaint to the Attorney General|
|Complaint to the U.S. DHHS Office for Civil Rights|
Appellant’s Motion Opposing Dismissal of the
Appeal at the NH DHHS AAU
AAU’s Dismissal of Appeal by Hearing Officer
Paul Bernard
" States may be pressured into
attempting compliance on the cheap, placing marginal patients into integrated
settings devoid of the services and attention necessary for their
condition… .It would be unreasonable, it would be a tragic event, then,
were the Americans with Disabilities Act of 1990 (ADA) to be interpreted so
that States had some incentive, for fear of litigation, to drive those in need
of medical care and treatment out of appropriate care and into settings with
too little assistance and supervision. "
The U.S. Supreme Court Justice Kennedy in the 1999 watershed ADA case of Olmstead v. L.C.
“"[i]nadequate state
appropriations do not excuse noncompliance" with the Medicaid Act."”
Doe v. Chiles,, U.S. Ct. App.11th
Cir. (1998). The court rejected the
state’s attempt to justify limiting Medicaid services to eligible recipients
due to budgetary considerations, noting that courts had repeatedly found that
“inadequate state appropriations do not excuse noncompliance.”
"Injunctive relief may, of
course, be applied to state officials whose actions derogate federal Medicaid
laws...." Id., ( citing, Smith v. Miller, 665 F.2d 172, 175 (7th Cir.1981)
(citing Ex parte Young )).
New Hampshire Acquired Brain Disorder Medicaid
Waiver:
HOW the NH DHHS, the Bureau of Developmental Services
and “Gateways” a non-profit organization (formerly known as Area Agency of Greater Nashua) SWINDLE severely disabled people in NH out
of their Medicaid assistance
Expose NH Bureaucracy’s Abuses Against the Disabled
Dear Visitor,
I created this web-site for you and for those persons whose
disabilities require long-term institutional level of care. Here, you can learn how the
bureaucrats inside the NH Bureau of Developmental
Services and the Area Agency of
Greater Nashua (the “AAGN”) arrogantly subvert the federal and
state laws, swindling severely disabled persons out of medical assistance for
life-saving care and spelling injuries and premature death for them. These reckless bureaucrats stand the law
on its head, defending wanton and unlawful denials of medical assistance for
federally-funded life-saving and life-enhancing care as “cost
efficient.”
Contrary, however, to their claims of striving for
“cost-efficiency” for our own “good,” their unlawful
denials of medical assistance are lethal to our disabled loved ones. In addition, they create an entire class
of “volunteer” slave family care-givers forced to provide care to
their loved-ones around the clock, without any compensation or insurance
coverage. These unlawful denials of
medical assistance spell suffering and death to severely disabled persons or
slavery for their families. If, in arrogant disregard of the law, the
bureaucrats deny payment for life-saving care, preventing a disabled person
from accessing it -- they are simply committing murder – “for costs reasons.” The bureaucrats at the NH DHHS,
the BDS, and the AAGN should bear personal responsibility, in the form of
community-wide scorn and disrepute, for their meaningless crimes against the
disabled in our state.
In my opinion, only one reason can adequately explain why these
bureaucrats so vehemently fight the law to curb severely disabled
persons’ access to medical assistance for the long-term care services
covered under the ABD program and financed
by federal dollars: corruption and waste of the Medicaid funds. What else could possibly motivate these
otherwise callous, unprincipled, and indifferent bureaucrats to fight tooth and
nail over the public money, knowingly pushing the severely disabled into
obviously inadequate and dangerous care settings? – Only an ability to
point the spigot on the public-money pipe-line into their own pockets can
explain their campaign of brazen deception, outright fraud, exploitation, and
threats against the disabled and their families.
Why
spend the federal money on the disabled persons, when your own bloated
administrative expenses, salaries and benefit packages is what you would rather
fund?
BEWARE: This is a veritable trip
into the absurd.
Community
Organizing Against Routine Denials of Medical Assistance to Severely Disabled
Persons By NH DHHS, BDS, and AAGN (now the “Gateways”)
By exposing and speaking out against the arrogant bureaucratic abuse
that the disabled and their families must suffer in New Hampshire as they deal
with a catastrophic long-term disability in their families; through educating
the public about the importance of access to quality long-term care, and
through community organizing around this issue, we may be able to effect positive
changes in our community. Many of
us will one day need extensive assistance with activities of daily living. If we resign ourselves to the arrogant
abuse of power, the indifference to human life, and the corruption of the
government officials administering publicly-funded programs for the disabled,
eventually we may find ourselves in the same shoes as any disabled person
today: destitute, suffering and dieing in desperation without the needed care
and assistance.
In addition, our community deserves to know the identity and the names of the
public officials responsible for denying medical assistance to
fully-qualified severely disabled persons in our state, wreaking havoc on them
and their families. As far as the
public opinion and community organizing are concerned, the individuals who
seized control over the public money and abuse their power to deny medical
assistance for life-saving and life-enhancing care in arrogant disregard of the law
and human life, should be rightfully exposed to community-wide scorn and
notoriety for the veritable crimes they commit in broad day-light.
Subversion of the Medicaid
Act and the
at the NH DHHS, the BDS, and
the AAGN:
This site will tell you how Mr. Matthew Ertas, Dr. John
Capuco, and Ms. Kaarla Weston of the NH BDS, and Ms. Sandra
Pelletier and Mr. Peter Van Voorhis of AAGN ruthlessly and routinely
push severely disabled persons into care settings devoid of the desperately
needed attention, services, and supervision, causing them to languish, become
injured, and die prematurely. This
site will also tell you how they set entire families in our state on the road
to destitution and despair, creating a whole under-class of
“volunteer” slave care-givers, often working around the clock
without any compensation or insurance coverage.
Through a
campaign of deception, outright fraud, and threats they swindle my mother Lidia and other persons like her out of their
federally-funded medical assistance for desperately needed care. The BDS and the AAGN accomplish this by
unlawfully bundling complex long-term care services under the federally-funded ABD Medicaid
waiver with a sole provider of the bureaucrats’ own choice at a
fraction of the market rates, or by turning the family caregivers into
formidable “volunteer” slaves, toiling, uninsured, around the clock
for free. Thus, if you face a
long-term severe disability in your family, the “choices” BDS and
AAGN offer you in NH are: they
choose a commercial “care”-provider to bundle all of the needed
care at a fraction of the market rates, and to hurry your loved one to their
grave, or you become an around-the-clock slave, caring, uninsured, for your
disabled person at home and unable to work in your profession. Read here about the Medicaid Act and the
Federal Americans with Disabilities Act being turned inside out at the NH DHHS,
the BDS, and the AAGN.
If
you have a severe long-term disability in your family, if you are struggling to
keep your loved one out of harm’s way, and if, as a result, find yourself
volunteering an enormous amount of their back-breaking care for many years to
come, prevented from working in your chosen profession or holding onto any
regular job and facing destitution and despair – read on to discover that
possibly your situation is the result of the NH bureaucrats having denied
medical assistance to your loved one for the long-term care services for which
s/he may be fully entitled under federal and state law. Discover for yourself how the NH
DHHS, the BDS and the AAGN endanger and harm the severely disabled using public
funds. Speak out against these
crimes, challenge these state actors’ authority to violate the law and to
deny medical assistance to the disabled; organize your community to effect
change in this corrupt and inhumane system.
| Federal Complaint |Qs&As
|Kaarla Weston’s and Peter Van Voorhis’
actual letters|
|Comments to Mary P. Castelli”s
letter|
|Complaint to the Attorney General|
| Complaint to the U.S. DHHS Office for Civil Rights
|
Appellant’s
Motion Opposing Dismissal of her Appeal at the NH DHHS AAU
AAU’s
Dismissal of Appeal by Hearing Officer Paul Bernard
MATERIALS AND RESOURCES ON THIS WEB-SITE:
COMMENTS TO Mary P. Castelli’s
deceptive letter:
Who is Lidia and What
Happened to Her:
How the state endangered
Lidia before:
The Campaign of Deception
Engineered by the BDS and the AAGN:
Lidia’s story in Question and
Answer Form
Actual letters by Ms. Kaarla Weston and Mr. Peter Van
Voorhis
Complaint to the Attorney General
Complaint to the U.S. DHHS Office for Civil Rights:
Appellant’s Motion Opposing Dismissal of her Appeal at the NH DHHS AAU
AAU’s Dismissal of Appeal by Hearing Officer Paul
Bernard
Draft Federal Complaint against the NH DHHS
Commissioner, Nick Toumpas;
Helpful links to pertinent materials
SWINDLING THE DISABLED
NH Bureau of Developmental Services: (the BDS) “The Bureau
of Developmental Services works with NH's developmental services system to
ensure public resources are used effectively to support individuals and
families in their community through:
·
Leadership
and vision,
·
Allocation
of resources,
·
Communication,
·
Technical
assistance, and
·
Monitoring
of quality assurance and consumer safeguards.
The NH developmental services system
offers its consumers with developmental disabilities and acquired brain
disorders a wide range of supports and services within their own
communities. BDS is comprised of a main office in
Supports include:
·
Service
coordination,
·
Day
and vocational services,
·
Personal
care services,
·
Community
support services,
·
Assistive
technology services,
·
Specialty
services and flexible family supports including respite,
·
Services
and environmental modifications.
BDS Mission and Vision Statements”
GATEWAY, (formerly,
Area Agency of Greater Nashua): (The AAGN or “GATEWAYS”)
The Area Agency of Greater Nashua, Inc. is a private
non-profit corporation created in 1981 to establish and maintain programs and services which
promote growth and independence for individuals with developmental
disabilities. We bring high quality services to residents in
Sandra Pelletier: President/ CEO of the Area Agency of Greater Nashua, overseeing the $24 million non-profit corporation, “recognized nationally as a highly-effective model of delivery and promoting community inclusion.” (how about that? Nice sense of humor indeed).
Peter Van Voorhis Vice President of Community Services at Area Agency of Greater Nashua “Senior operations manager at Region VI – Southern NH Area Agency with annual operating budget over $20 million. Responsible for administration of supports for over 1,000 children, families, and adults annually… Guided development of Consumer Directed Services – a highly innovative [indeed using very creative deception and swindling methods] state-of-the art customer directed initiative with $2 million in funding …”
Mary P. Castelli, DHHS,
Office of Operations Support, Senior Division Director; (see her outrageous and deceptive letter.) See comments thereto.
Matthew Ertas: Bureau
of Developmental Services Administrator;
Ken Nielsen, Legal Counsel for the Bureau of
Developmental Svcs;
John Capuco, Acquired Brain Disorder
Administrator, BDS;
Kaarla Weston, Program
Specialist, BDS;
Since August of 2005,
the reckless bureaucrats at the Bureau of Developmental Services and the Nashua
Area Agency have refused to fund my mother’s complex home-based care as
required by law. The ABD
program allows no individual cost
caps on the amount of medical assistance for the needed services, and the state
assumes full responsibility for the health and welfare of the
participating persons.
As guidance to the
states regarding their Medicaid waiver programs, U.S. DHHS in their “olmstead
letter #4” (link at http://www.cms.hhs.gov/smdl/downloads/smd011001a.pdf)
stated that:
“Denial
of a needed and covered service within a waiver would have the practical
effect of: (a) undermining an assessment of need, (b) countermanding a plan of
care/support based on such an assessment of need, (c) converting a feasible
service into one that arbitrarily benefits some waiver participants but not
others who may have an equal or greater need, and (d) jeopardizing an
individual’s health or welfare in some cases. “
“…we
discuss limits that States may place on the number of persons served and on
services provided under an HCBS waiver. Current law requires States to identify
the total number of people who may be served in an HCBS waiver in any year.
States may derive this overall enrollment limit from the amount of funding the
legislature has appropriated. However, once
individuals are enrolled in the waiver, the State may not cap or limit the
number of enrolled waiver participants who may receive a covered waiver service
that has been found necessary by an assessment.”
“A State is obliged to provide all people enrolled in the waiver with
the opportunity for access to all needed services covered by the waiver and the
Thus,
some of the lawful ways for the state
to limit its financial outlays and to operate their ABD program
“cost-efficiently” are (1) determine
the number of individuals they will serve each year, or (2) provide the
needed services at market-based rates --- not more. Thus, they may be able to save money on
participants with a lower level of need yet spend more on those who require an
extraordinary level of care due to the severity of their disabilities. See also…
The small ABD program is 79% funded by
federal Medicaid funds and currently serves only
about 200 individuals state-wide in
For
over two years now, the BDS and the AAGN refused to provide any medical
assistance to Lidia for any of her:
1. Residence/household management;
2. Complex care and staff coordination
services;
3. Emergency management;
4. On-call assistance;
5. Any supplies;
6. Transportation;
7. Specialty services necessary to
assess and design her complex care;
8. Necessary environmental
modifications to make her bathroom and bedroom wheel-chair accessible.
9. Necessary modifications to
Lidia’s only egress from the home, which is currently so narrow and
curved that her wheel-chair barely squeezes through, and Lidia might be unable
to get out of the house in case of a fire.
Each
of the above services is a covered service under the ABD waiver and is required
for Lidia to be safe and secure in her home, to be able to participate in the
ABD program, and to choose her providers.
In the absence of medical
assistance for any of the above, Lidia must rely on sixty to seventy hours each
week in services volunteered by her aging and disabled husband and me, their
adult daughter. Ever since I took my mother home, I have been unable to
work in my profession and to earn any income. In addition, my disabled father is
forced to care for Lidia when I am unable to do so. I have been forced to
expend all of my savings on modifications for Lidia’s living space.
My mother
Lidia and father Leon had been happily married for thirty six years, when a severe
and tragic brain injury in 2004 left Lidia completely blind, paralyzed on the
left and with a unique and dangerous combination of severe cognitive,
emotional, intellectual, and behavioral impairments. Lidia also suffers now
from frequent life-threatening infections and is a constant risk of fall. Every activity of daily living is a
challenge and is dangerous for Lidia without skilled assistance. Her complex conditions require
institutional level of care, close supervision and assistance around the clock,
including assistance with all activities of daily living. Despite having become very vulnerable,
with proper care and assistance, she could improve and continue to be a
respected and contributing member of society. In contrast, in the absence of the
needed care, Lidia would suffer from serious and painful injuries, require
costly hospitalization, and die prematurely. She would not be able to live
safely and with dignity, as a valued citizen of her community. Ever since this tragedy in our family, we
have been forced to fight for Lidia’s life and against the arrogant and
callous disregard for the law and human life exhibited Mr. Matthew Ertas and Ms. Kaarla
Weston of the NH Bureau of
Developmental Services and Mr. Peter Van
Voorhis of the Area Agency of
Greater Nashua.
When, in
2005, Lidia enrolled in the state’s Acquired Brain Disorder (ABD)
Medicaid waver program, the Bureau of Developmental Services, working through
the Nashua Area Agency, placed Lidia into a specialized group home, Rosemeadow Farm, holding the
reputation of “the best brain injury care program on the East Coast. That group home was the only setting
that ever agreed to admit Lidia for long-term care. While there, Lidia did not receive the
services and assistance she desperately needed for her unique conditions. Instead, she was tied to her chair for
hours, kept in a cage-like net-bed, left soiled and without assistance and
supervision. She received
practically no rehabilitation therapies and was plagued with several painful
and life-threatening infections per month that would go untreated. Only two months into her stay, the home
became “overwhelmed” with her “behavioral outbursts”
and gave her a two-month notice to leave.
Thereafter, her room at the home was kept so cold that I had to wear a
winter jacket when I visited her. Two months later, she became hospitalized,
unconscious and hypothermic with an untreated infection that has gone bad. I
actually demanded that they immediately drive her to the emergency room because
she was non-responsive, and yet they were not about to do anything. She remained at the hospital for three
months. That tragic experience
taught us the meaning and the results of inadequate care for someone as vulnerable
and defenseless as Lidia. After
that horrible experience, since March of 2006, Lidia lives at home with us, and
we volunteer between sixty and seventy hours of care each week as well as pay
for all the supplies that Lidia needs and that receive no funding from the
Bureau of Developmental Services.
Lidia would not be able to receive her services through any other
providers, because in 2006, Ms. Kaarla Weston of the BDS, acting through Mr.
Peter Van Voorhis of AAGN, imposed an arbitrary and capricious cost cap on
Lidia’s care, funding nothing beyond Lidia’s personal care.
Since
2006, in a cruel charade pretending to give Lidia a choice of care providers
and to free her family from the overwhelming care burden (forgetting entirely
about their earlier failed experiment of bundling Lidia’s complex care on
the cheap with one sole provider of their choice), Kaarla Weston of the NH BDS
and Peter Van Voorhis of the AAGN have been hard at work to curb Lidia’s
access to services. They imposed an
arbitrary cost cap and diligently massaged the numbers on a dozen or so
proposals solicited from vendors of their choice, seeking to cheat Lidia out of
her medical assistance and to place her into care settings even more dangerous
and inadequate than Rosemeadow Farm.
Mr. Van Voorhis and Ms. Kaarla Weston engineered a “request for
proposals” process, where the vendors they solicited would submit “proposals”
for Lidia’s care with doctored figures, omitted services, and
below-market rates for the proposed plans to endanger and swindle Lidia out of
her care.
For
example, Ms. Weston and Mr. Van Voorhis demanded that for over a hundred hours
each week Lidia receive her labor-intensive and skilled care one-on-one (!)
from a single unsupervised and barely
trained “live-in” person, paid
at a fraction of the market rates and employed
and trained by a vendor of the BDS’ own choice. This particular vendor proposed to
bundle all of Lidia’s complex services at a fraction of the
market rates and make a profit of about $14,000/ year on this arrangement. Because there is no spare room in our
small family home for such a live-in person, Ms. Weston and Mr. Van Voorhis
demanded that we move out to make room.
Alternatively, they threatened to place other disabled persons into our
family home over our objections and in the absence of a spare room. Ms. Weston and Mr. Van Voorhis offered
two justifications for why they need to endanger Lidia or to throw us out of
our home – (1) this would be much cheaper than really providing Lidia
with the services she needs in the most integrated setting appropriate to her
needs, and (2) everybody else on their program is also being denied the needed
services and care in the same way.
Their colleague at the AAGN admitted that these unlawful practices
result in some severely disabled people being continuously expulsed from
various care settings, unable to receive their complex and labor-intensive care
anywhere, and even their families turn them away, overwhelmed with the
long-term care burden.
The
arbitrary and unlawful cost cap they imposed on Lidia’s care in order to
curb her access to the covered quality services that she desperately needs and
for which she fully qualifies is forcing Lidia’s disabled aging husband
and their daughter to volunteer sixty to seventy hours per week of
labor-intensive care. This is preventing me from earning an income in my chosen
profession and impoverishing me.
This is preventing me from living my life. Yet, should anything happen to us,
defenseless Lidia would immediately fall prey to Ms. Weston and Mr. Van Voorhis,
seeking to provide her care as cheaply as possible through a vendor they choose
for her, without any regard for her needs, for human life, or for the law. Thus, they cheat Lidia out of her
medical assistance and prevent her from being able to choose her care
providers, forcing her, instead, to depend on the extensive volunteer services
of her ailing and aging husband and their adult daughter as long as we live.
In stark contrast to these appalling
campaign of deception and fraud, the New Hampshire’s federally-funded
Acquired Brain Disorder Medicaid wavier program specifically disallows
individual cost caps, requires market-based rates for each covered service,
free choice of providers for each aspect of the care, and covers a broad array
of comprehensive and specialized long-term care services for persons with brain
injury to live in their homes safely and with dignity. Furthermore, various
federal laws mandate medical assistance (funding) for each covered service
within ninety days of enrollment and require market-based rates for each needed
service. Also, the U.S. Centers for Medicare and Medicaid Services maintain
that arbitrary limits on benefits to qualified participants are unlawful and
endanger participants’ lives by curbing their access to needed and
covered care.
See also, "For persons with severe disabilities and
perhaps others, restricting access to optional services, limiting the amount
and duration of mandatory services, and establishing a cap on all services is
likely to result in one of three unacceptable outcomes: (1) an increased
reliance on public institutions and segregated facilities; (2) a shift in costs
to state or locally funded programs and hospitals or (3) simply no care at
all. The first of these is expensive and inconsistent with the
President's New Freedom Initiative and the Supreme Court's mandate in Omstead v. L.C.
The second is expensive and patently inconsistent with the cost -containment
goals of the Waiver. The third is contrary to Congress' command in
enacting the Medicaid Act.”
Issue Paper: Medicaid: An Overview of Spending on "mandatory"
vs. "Optional" Populations and Services, Kaiser Commission on
Medicaid and the Uninsured (June 2005) at 6-7' Quoted by the
Advocacy Center for Persons with Disabilities and the Center for Public
Representation and the Brazelon Center for Mental Health Law. Sep.
28, 2005.
When
Lidia’s counsel filed an Administrative Appeal with the DHHS
Administrative Appeals Unit, this was also turned into a charade and dismissed
under an outrageously absurd pretext, one day before her expert witness was scheduled
to testify about her care and the market-based rates for the services. Subsequently, my family contacted
several presidential candidates, seeking their support for Lidia’s right
to medical assistance for her services.
We have contacted Hillary Clinton, personally handing her and Bill
Clinton letters for their signatures at several of Hillary’s election
campaign events. We also have
posted a blog on the Clinton’s and Barak Obama’s respective
election campaign web-sites.
Lastly,
Lidia’s complaint against these abuses is currently pending before the
U.S. DHHS Office for Civil Rights, located in
|Federal Complaint |Qs&As |Kaarla
Weston’s and Peter Van Voorhis’ actual letters|
|Comments to Mary P. Castelli”s
letter|
|Complaint to the Attorney General|
|Complaint
to the U.S. DHHS Office for Civil Rights|
Appellant’s Motion Opposing Dismissal of the Appeal at the NH DHHS AAU
AAU’s Dismissal of Appeal by Hearing Officer Paul
Bernard
The Medicaid Act, the ADA, Section 504
of the Rehabilitation Act;
(click on the link above)
LETTER: “. We presented the attached budget that had beenformulated by Granite Bay Connections to do so. After the meeting we also filed a written request for approval. This
request has been denied for costs reasons, with a suggestion that a second person be placed in the home (see e-mail belowfrom Kaarla Weston).” Read more…
LETTER: “Hello Peter, This proposal is denied. The Bureau of Developmental Services does not have the resources to fund the proposed budget and the Area Agency of Greater Nashua needs to look at other options to reduce the per person cost to a more affordable level. Please consider serving a second person within the home. Kaarla WestonBureau LiaisonBDS” Read more…
COMMENT: The proposed absurd solution of placing another disabled
person, in the absence of a spare room and over our objections, into our 1400 sq.ft. family home already housing our family, including severely disabled Lidia and her four to five personal care assistants coming and going each eight hours, seven days a week is simply unrealistic and contrary to law. In addition, Lidia’s unique behavioral challenges and care needs have been found unmanageable in a specialized group setting before, at Rosemeadow Farm, and she was expulsed as a result. Repeating the same experiment now in our family home would endanger Lidia again and is simply a threat to strong-arm us into submission. Lidia’s access to medical assistance for the full array of needed benefits and services through a truly individualized and thorough budget, is simply required by the ABD Medicaid waver program as necessary to ensure quality care for her and any other vulnerable person with severe and multiple disabilities. Peter and Kaarla may go ahead and place ten more disabled persons into our home – Lidia would still need an individualized budget developed for her based on HER unique conditions and the market-based values for HER services….. LETTER: “Peter van Voorhis"
<pvanvoorhis@areaagencynh.com>
09/28/2007 11:58 AM
To <KWeston@dhhs.state.nh.us>, <JCapuco@dhhs.state.nh.us>
cc "Sandy Pelletier" <spelletier@areaagencynh.com>,
"LynneRiendeau"<lriendeau@areaagencynh.com>,
Subject L.T. Request for Funding
Kaarla and John,
As we discussed on a preliminary basis, attached is a
request to fund a
1001 certified residence for Lidia Taranov at her
current residence in
Hours (15 [hours] d[irect] c[are]); staff
paid at an average wage of $13/hour, and funding to Cover all operating costs
of this private residence.
Conversion to this Model of service would require a substantial funding
increase to $256,747/year.
This proposal has been prepared by Granite Bay
Connections. If this
plan is implemented, the 521 certified program will
end, and all
services will be delivered by
Peter Van Voorhis
Vice President of Community Services
Area Agency of Greater Nashua, Inc.
603-459-2740
pvanvoorhis@areaagencynh.com “
COMMENT:
The above e-mail from Peter Van Voorhis refers to a
budget submitted by Granite Bay Connections at the AAGN’s own request and
appraising Lidia’s care. The
Agency (AAGN) needed to “massage” and torture George Barrett’s
numbers on the proposal quite a bit to bring them down to the $256,747 figure
that you see in Peter’s e-mail above, because the budgets that Mr.
Barrett of Granite Bay originally prepared for the same thing, appraised
Lidia’s care at $308K per year, based on Lidia’s unique needs and
market-based rates for each needed service.
LETTER:
“The Area Agency believes that
$200,000.00 in annual funding will enable you to meet Lidia’s needs in a
family-managed program.
….. The funding proffered
by the Bureau also reflects the fiscal constraints confronting our State, the
number of disabled clients who need services here in NH in the coming year,
that there is a waiting list for such services and that, in a family - managed
program, family members generally donate some care to a loved one. We understand that you are
demanding a larger stipend.
However, I believe stipends, when they are provided, are not based or calculated
on what a family manager could have earned professionally or may have earned in
the past. “ Read more….
COMMENT 1
An independent Brain Injury Care Specialist,
the founder and former President of the Case Management Association of America,
Sandra Lowery, upon a thorough examination of Lidia and her entire medical
records, appraised the cost of the bare minimum of necessary labor
to care for Lidia at approximately $300K per year based on the current
market-based costs of labor. Ninety to ninety-five percent of
Lidia’s care costs are simply staff-labor and their worker’s
compensation insurance at a rate dictated by the NH State Department of
Labor. Lidia’s
transportation, incontinence and medical supplies, the environmental
modifications required by the local building and fire safety codes are also covered services under the ABD
waiver but Lidia has been denied any
medical assistance for these.
COMMENT 2:
Lidia’s $205K/ year medical
assistance budget barely funds the 24/7 personal care/supervision for Lidia,
just one of her complex services, at the market cost of personal care labor
being $23 -$25/hour as charged by any personal care staffing agency in the
state. This labor cost includes
staff wages, recruitment advertising, interviewing and screening the staff,
pay-roll taxes, and legal/tax compliance, worker’s comp., and scheduling
the staff in shifts. The entire burden of Lidia’s around-the-clock residence
and staff supervision, all of her complex care and service coordination,
Lidia’s transportation to between fifty to seventy medical, therapy and
laboratory appointments per year, the entire 24/7 on-call emergency management,
all medical and incontinence supplies, overhead costs associated with running a
24/7 community residence, and all the wheel-chair accessibility modifications
to the home are borne by Lidia’s family. There is NO funding for ANY
of this. However, each
of these services is a covered
service under the ABD waiver – and yet the AAGN and BDS are weaseling out
of providing the medical assistance for any of them. So that, of course we receive no compensation whatsoever for the sixty
to seventy hours per week of services I or my aging and disabled father must
provide for my mother for the rest of our lives. In fact, I must pay out of my pocket for
Lidia’s transportation, medical and incontinence supplies, expensive
home-modifications for wheel-chair access, and for the entire overhead costs of
running a community residence 24/7 for Lidia, a severely disabled person. In other words, I or my ailing father
must stay open and must oversee and run the residence, the care, and the staff
for Lidia year-round, remaining, also, on-call 24 hours each day for medical,
household, and staff emergency management.
LETTER:
To protect Lidia, the Agency will,
unless the payroll company confirms that you paid that outstanding bill by noon
tomorrow—March 9, 2007, pay the payroll taxes due via a wire transfer. We will need to deduct that amount
($1440. ) from the
balance in the funds available for Lidia’s care. The stipend payable to
you in March will reflect that reduction
in the funds available. To be able
to pay your stipend, the Agency will need a signed contract covering the months
of February and for March. The
contract for March will note that the stipend was reduced to pay the payroll
taxes due your employees. In signing contracts for February and March, you can
always note on the contract that you are reserving your right to challenge the
Agency’s view of your contractual obligations or your rights as the
family manager. Read more …
COMMENT 3:
“TO PROTECT LIDIA” – how about that?! Denying her medical assistance is to
“protect her? P. Van
Voorhis expects me to pay for Lidia’s staff, because her medical
assistance does not cover the personal care staff’s salaries, since I use
a part of it to pay for the many other costs described above. By deducting the cost of the staff
salaries from Lidia’s “provider stipend” – Peter Van
Voorhis thinks he can cleverly rob Lidia of her supplies, transportation, care
coordination, etc.
COMMENT 4:
P. Van Voorhis wants a
“contract” where I would agree to volunteer sixty to seventy hours
each week of Lidia’s services without vacation or pay, and would also pay
for her supplies, transportation and overhead costs. Little does he know that there does not
exist a “contract for volunteer services.” A valid contract requires a
“meeting of the minds” and an exchange of bargained-for
consideration – or agreed upon value. And, Van Voorhis’ agreeing to do
what the law already requires him to (provide medical
assistance to Lidia) – cannot serve as the “value” he gives
to me for “contracting” with him to be a slave. Thus, what Peter Van Voorhis is doing is
absurd: he is asking me to contract
with the AAGN to serve as a volunteer slave in exchange for their doing what
the law requires them to -- or else Lidia will die in some rotten hole that
Peter Van V. will push her into.
LETTER:
We
have asked our legal counsel, Michael Chamberlain, to be available to your
attorneys at DRC. In the event any of
the actions or proposals described in this letter are not acceptable to you, we
asked Michael to assist your attorneys in scheduling an expedited administrative
appeal.
The
proposal we received from
Sincerely,
Peter Van Voorhis
Vice President of Community Services
LETTER:
“In
developing and implementing Lidia’s community and family-based program,
we need to follow or adhere to the rules or regulations set out in He-M chapter
521 (“Certification of Residential
Services Provided in the Family Home). The rules allow for a family member to
be reimbursed as a provider for some personal care. Care in the family home is typically
delivered by a mix of paid staff, some reimbursed personal care from the
client’s family and some unpaid or donated family care. Reimbursements to family members are not through payroll,
are limited, and do not involve the provision of health care and other benefits. Read
more…
COMMENT 1
Compare the above
ignorant lies with the LAW: Appendix
E of the NH ABD Waiver: “Flexibility with regard to recruitment of
providers is a key benefit under this waiver. Providers may be staff of an Area
Agency, a subcontractor of an Area Agency, a friend, relative or any qualified
person. Individuals are free to
negotiate salaries, benefits, and etc. for those providing the various
components within the Service Agreement however, rates must be reasonable
within the context of the budget and be approved by AA and BDS staff.
Budget/rate
setting is informed by regional market values, competencies and knowledge
required to serve each individual based on his/her unique needs, possible shift
differentials, and benefit packages.
Appropriate payment rates are the result of a collaborative negotiation
between individual and or guardians, Area Agencies, subcontractors and
individual service providers.”
Also, Chapters He-M 521 and 522 contain absolutely no
limitations of the suggested nature on the reimbursements for family care.
We find the following specific and clear language in
He-M 521.05(b) “In those situations where a family member is to be
reimbursed as a provider and or sub-contractor, the area agency/ provider
agency shall develop a contract with the family member: (4) Including provision
for time off…” Our current agreement blatantly violates this
mandate. It does not contain a
provision for provider time-off, nor furnishes medical assistance for the
respite care for Lidia during my absence.
Furthermore, in He-M 521.09. “Certification: (c) For each
certification request, the area agency staff shall forward to the division the
following information: (5) Whether financial reimbursement is to be made to
family members as: a. Providers; b. Staff; or c. Sub-contractors;” Clearly, “staff” is paid
through pay-roll. Obviously, there
is not a word anywhere regarding “Reimbursements to family members are
not through payroll, are limited, and do not involve the provision of health
care and other benefits.”
Furthermore, Section He-M 521.05 Administrative
Requirements gives a detailed and clear scheme for area agencies on how to
enter into service arrangements.
This section contains detailed provisions requiring that service
arrangements meet the individual’s expressed interests, preferences,
needs, and lifestyle; be consistent with the goals and services identified in
the individual’s service agreement, and meet the individual’s
environmental and personal safety needs.
There is not a word regarding the need to discriminate against family
members in terms of pay or other conditions. Thus, contrary to what Peter Van Voorhis
brazenly suggests in his letter, our family is not required to work for free or
to submit to unfair terms as a pre-condition for Lidia to receive home-based care
of her choice. Very simply and
obviously, brazen discrimination against the families of disabled persons is
prohibited.
LETTER: At this point I have to conclude that possibly, as
you have indicated in your letters, this is just too difficult an arrangement. Yes, it is challenging to find retain,
train, and keep good direct care staff.
Yes, it is especially difficult to do this in a private family home
where staff are working 1:1 with an individual with significant needs. Participation in 521 certified
arrangement with an Area Agency is voluntary. Perhaps you should reconsider facility
placement…. “ Read more…
COMMENT 1:
COMPARE ABOVE DECEPTIVE STATEMENT
WITH THE STATEMENT AND GUIDANCE FROM THE U.S. DHHS IN THEIR “OLMSTEAD LETTER #4” – link here: http://www.cms.hhs.gov/smdl/downloads/smd011001a.pdf
“Denial of a needed and covered service within
a waiver would have the practical effect of: (a) undermining an assessment
of need, (b) countermanding a plan of care/support based on such an assessment
of need, (c) converting a feasible service into one that arbitrarily benefits
some waiver participants but not others who may have an equal or greater need,
and (d) jeopardizing an individual’s health or welfare in some cases.
“ EXACTLY!!
– LIDIA HAS BEEN DENIED ACCESS TO MEDICAL ASSISTANCE FOR THE SERVICES SHE
DESPERATELY NEEDS – THIS IS THE ONLY REASON WHY CARING FOR HER AT HOME
MAY SOON BECOME IMPOSSIBLE.
Further from the Olmstead Letter #4:
“…we discuss limits that
States may place on the number of persons served and on services provided under
an HCBS waiver. Current law requires States to identify the total number of
people who may be served in an HCBS waiver in any year. States may derive this
overall enrollment limit from the amount of funding the legislature has
appropriated. However, once individuals are enrolled in the waiver,
the State may not cap or limit the number of enrolled waiver participants who
may receive a covered waiver service that has been found necessary by an
assessment.”
AND, see
also, same document “A State is obliged to provide all people
enrolled in the waiver with the opportunity for access to all needed services
covered by the waiver and the
LETTER:
“Got
your voicemail. We will not e-mail to her your prior budget submission. When I get your proposals, I will
password protect them. I also will
only FAX them to Kaarla and John.
Peter Van Voorhis..” Read
more…
COMMENT:
This
is Peter Van Voorhis of AAGN trying
to conceal from Lidia and our family the real costs of Lidia’s care based
on a proposal submitted by Jon Eriquezzo of
LETTER:
“Yes – at the moment she
is paid as a subcontractor – we met with BDS Thursday – there
is no way BDS will approve or support such a high payment for a family
member. …
Peter Van Voorhis.” Read more….
COMMENT:
Compare with the NH law as written
in the NH Acquired Brain Disorder Waiver:
“Appendix E – Participant Direction of
Services
ii. Participant-Directed
Budget. Describe in detail the
method(s) that are used to establish the amount of the participant-directed
budget for waiver goods and services over which the participant has authority,
including how the method makes use of
reliable cost estimating information and is applied consistently to each
participant. Information about
these method(s) must be made publicly available.
|
Once a Service Agreement is constructed, specific service elements are costed out
to derive an individualized budget and as noted above, all budgets are
individualized and are based on the specific needs and strengths of the
individual. Flexibility with
regard to recruitment of providers is a key benefit under this waiver. Providers may be staff of an Area
Agency, a subcontractor of an Area Agency, a friend, relative or any
qualified person. Individuals are free to negotiate
salaries, benefits, and etc. for those providing the various components
within the Service Agreement however, rates must be reasonable within the
context of the budget and be approved by AA and BDS staff. Budget/rate
setting is informed by regional market values, competencies and knowledge
required to serve each individual based on his/her unique needs, possible
shift differentials, and benefit packages. Appropriate payment rates are the result of a
collaborative negotiation between individual and or guardians, Area Agencies,
subcontractors and individual service providers.” |
|Contents |Introduction |Overview| State Actors| Concise Legal Reference |Federal Complaint |Qs&As |Kaarla
Weston’s and Peter Van Voorhis’ actual letters|
|Comments to Mary P. Castelli”s letter|
|Complaint to the Attorney General |
|Complaint to the
U.S. DHHS Office for Civil Rights|
Appellant’s
Motion Opposing Dismissal of the Appeal at the NH DHHS AAU
AAU’s
Dismissal of Appeal by Hearing Officer Paul Bernard
(NH ABD Waiver; NH state ABD Waiver Regulations;
“Olmstead Letter # 4;”
Case-law; articles on the applicable laws; nationwide litigation report from
NHeLP.org; report on the plight of care-givers from the AARP; Guide to
Medicaid-funded community-based care);
www.healthlaw.org
– The leading national expert organization on disability rights and laws
– outstanding quality of materials;
Olmstead v. L.C.. and its legal
framework in one-and-a-half pages
Olmstead Letter #4
from the U.S. DHHS http://www.cms.hhs.gov/smdl/downloads/smd011001a.pdf
The NH Acquired Brain Disorder Medicaid Waiver (the ABD Medicaid Waiver) at the DHHS web-site
http://www.nls.org/conf2003/sept2000-article.htm
“-- Medicaid (30)(A) “adequate reimbursement
rates” (un-enforceable
through Sec. 1983 but see, Nelson v. Milwaukee County, 2006 U.S. Dist. LEXIS 7513 (E.D. Wis.
Feb. 7, 2006)
Plaintiffs charge that low payments are causing Milwaukee
County group homes for the
elderly to drop out of the program. The court found the equal access provision,
§ 1396a(30)(A), to create federal rights and that plaintiffs
could also challenge the low rates as an aspect of their
http://www.healthlaw.org/library.cfm?fa=download&resourceID=67710&print
Article on Enforcing the rights
of Medicaid recipients as 3rd Party Beneficiaries
of the Contract between the State and the Federal Agency (the
http://www.healthlaw.org/library.cfm?fa=download&resourceID=67697&print Medicaid’s Reasonable
Promptness requirement
http://www.healthlaw.org/search.cfm?fa=download&resourceID=67710&print Enforcing the bargain -- Enforcing Medicaid Provisions through
Contract law.
Medicaid
Spending on Long-Term Care: The
Real Numbers
from the
New
Medicaid Study: Underfunding of Seniors’ Long Term Care Spikes 45% From
1999-2007
http://www.ahcancal.org/News/news_releases/Pages/03Oct2007.aspx
(A new independent analysis of the nation’s
Medicaid program by the accounting firms BDO Seidmans/ Eljay, LLC estimates states
are underfunding the actual cost of providing seniors’ critical nursing
home care by at least $4.4 billion annually…….’Beyond the
obvious significance of the ongoing Medicaid underfunding of life-saving and
life-enhancing nursing facility care provided to America’s most
vulnerable seniors and persons with disabilities, the program’s
structural weakness has an enormous negative impact on
Medicare…..’”)
Understanding Medicaid Home and
Community Services: A Primer
Gary Smith, Janet O'Keeffe, Letty Carpenter, Pamela
Doty, Gavin Kennedy, Brian Burwell, Robert Mollica and Loretta Williams;
Located at the link below:
http://aspe.hhs.gov/daltcp/reports/primer.htm
·
("Correcting
common misperceptions
There is no Federal requirement that dictates that the costs of supporting a
particular individual via an HCBS waiver program may not exceed institutional
costs. States may extend HCB waiver services to individuals who require
extraordinary levels of support. Many states accommodate individuals who
require costly supports in the community by virtue of their disability, while
continuing to operate HCBS waiver programs that meet Federal cost-effectiveness
tests. A state may find it necessary to impose hard cost caps for budgetary or
other reasons, but the use of such caps is not dictated by Federal policy.
· The HCBS waiver cost-effectiveness test does not discriminate against individuals who have complex conditions. Since HCBS waiver cost-effectiveness is measured against the cost of institutional services, a state may find it difficult to accommodate certain individuals, because the costs of serving them may be many times the institutional average and a state might not be able to accommodate such individuals even using aggregate cost caps. However, Federal law gives a state the latitude, when requesting a waiver, to compare the costs of serving individuals with these intensive needs in an institutional setting (rather than the average costs for all people receiving institutional services). The average annual cost of nursing facility care in a state might be $36,000, for example. If the cost of serving a person who has had a brain injury in such a facility is $50,000, that higher figure may be used as the point of comparison.
· There is no requirement that HCBS waiver programs be budget neutral with respect to Federal financial participation. Thus, Federal policy places no restrictions on the number of individuals a state may serve in its HCBS waiver program(s). Each state may establish whatever limit it chooses and may change its limits whenever it wishes.)
Here is the standard for seeking a
prelim. injinction in Fed.
1.
for a
preliminary injunction must show: (1) Lidia
will suffer irreparable harm without the injunction; (2) the likelihood of success on the merits of her case; (3) that the benefits of the injunction will
outweigh the burden to AAGN/ BDS; and (4) that
an injunction is consistent with the public interest. (remember AAGN/ BDS only bear 21% of the costs of Lidia's care!!)
·
The danger to
plaintiffs’ health, and even their lives, that may result from
termination of Medicaid benefits gives plaintiffs a strong argument of
irreparable harm. Kai
v. Ross, 336 F.3d 650, 656 (8th Cir.
2003)
·
The nature of
the claim against the state for medical services makes it impossible to say
that any remedy at law could compensate them. McMillan
v. McCrimon, 807 F. Supp. 475, 479 (C.D. Ill.
1992
·
Wrongful denial
of government benefits may constitute irreparable injury, particularly where,
as here, the denial results in a disruption of the family unit and a consequent
threat to the health of the claimant.... The possibility that a plaintiff might
be forced to enter an institution constitutes irreparable harm that cannot be
prevented or fully rectified by a later judgment.
·
Termination of
benefits that causes individuals to forgo such medical care is clearly
irreparable harm .Massachusetts Assoc’n of Older Americans v. Sharp,
700 F.2d 749, 753 (1st Cir. 1983)
·
Irreparable injury
is shown when enforcement of a Medicaid rule may deny [plaintiffs] needed
medical care. Beltran v. Meyers,
677 F.2d 1317, 1322 (9th Cir. 1982)
Olmstead
Letter #4 from the U.S. DHHS
U.S. DHHS Office For Civil Rights
|Contents
|Introduction |Overview| State Actors| Concise Legal Reference |Federal Complaint |Qs&As |Kaarla
Weston’s and Peter Van Voorhis’ actual letters|
|Comments to Mary P. Castelli”s
letter|
||Complaint to the Attorney General|
|Complaint
to the U.S. DHHS Office for Civil Rights|
Appellant’s
Motion Opposing Dismissal of the Appeal at the NH DHHS AAU
AAU’s
Dismissal of Appeal by Hearing Officer Paul Bernard