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Pashby Settlement

Read the proposed Pashby Settlement Agreement here.

Summary of the Terms of the Settlement

Eligibility Criteria.  Defendant will assure that the PCS eligibility criteria used to authorize or reauthorize or determine the number of PCS hours for Medicaid beneficiaries is the same for applicants and recipients who reside at home and those who reside in Adult Care Homes and other residential placements.

Assessment Methods.  Defendant will assure that the practices, forms, procedures, and instructions used in authorizing PCS shall be comparable to the extent practicable for applicants and recipients regardless of residential setting, including the assessment of the following:

  • The need for assistance with any ADL;
  • Whether the need for assistance is met or unmet;
  • Whether informal caregivers are able and willing to provide the needed assistance.

Scheduling In-Home Assessments.  When scheduling an in-home PCS assessment, Defendant will assure that its contractor first makes contact with the beneficiary or the beneficiary’s authorized representative (including either the attorney in fact or guardian), to schedule the assessment.  If the beneficiary requests that the scheduler contact a third person to schedule the assessment, the scheduler will do so.

Reasonable Efforts to Contact Applicants and Recipients.  Prior to issuing a technical denial for failure to schedule an in-home PCS assessment or reassessment, Defendant will assure that the contractor makes at least the following efforts to reach the beneficiary/ authorized representative to schedule the in-home PCS assessment: (1) three attempts by telephone on three different days; (2) checking all available data sources (e.g. NCTracks, the Qi- Report, PCS referral form, prior assessment documents, contact with the PCS provider) as needed to obtain the beneficiary’s/authorized representative’s current telephone number and address; (3) posting an electronic notification through the provider portal of Qi-Reports to the PCS provider that the beneficiary has an upcoming annual reassessment; and (4) in the case of a reassessment, if the scheduler is unable to verify a current working phone number for the beneficiary/authorized representative or to leave a message at that number, contacting the PCS provider. In addition, Defendant will assure that the PCS provider is copied on the notice of termination of PCS for failure to schedule or attend a reassessment. Defendant will assure that if the beneficiary/authorized representative contacts the scheduler within 10 business days of the date of the notice of termination of PCS for failure to schedule or attend a reassessment, the termination of PCS will be set aside provided that the beneficiary has not initiated an appeal.

A Caregiver or Other Trusted Person May Attend the Assessment.  When scheduling the assessment or reassessment for PCS, Defendant will assure that its contractor verbally asks the beneficiary or his or her authorized representative whether he or she wishes to have a trusted person with knowledge of the beneficiary’s condition (e.g. family member, friend, social worker, PCS caregiver), present during the assessment. If the beneficiary or authorized representative elects to have one or more additional persons present, Defendant will assure that its contractor makes reasonable efforts with the beneficiary/authorized representative to schedule the assessment for a date and time when the selected person(s) may attend the assessment and provide information to the assessor. Defendant will assure that its contractor informs the beneficiary/authorized representative that relevant medical records that are made available at the time of the assessment will be reviewed by the assessor.

Evidence of Cognitive Limitations.  If the applicant’s or recipient’s PCS referral form or a prior assessment indicates a diagnosis suggesting a cognitive impairment or difficulty communicating which may result in diminished capacity to remember, understand, or communicate, or if the contact to schedule the assessment suggests that the beneficiary is likely to need assistance in communicating or decision-making, Defendant will assure that its contractor makes reasonable efforts to identify an appropriate alternative contact person to schedule the in-home assessment. In cases where a cognitive impairment or difficulty communicating is present and where the assessor determines during the assessment that the beneficiary has a cognitive impairment or difficulty communicating, Defendant will assure that its contractor will use all reasonable efforts to schedule or reschedule the assessment at a time when a caregiver or other trusted person indicated that he or she can be present.

Notices; Content of Notices.  Unless based upon a change in federal or state law, any denial, reduction, or termination of PCS by Defendant will be communicated to the Medicaid beneficiary in writing with appeal rights. The reason(s) for the decision will be included in the written notice, including, if relevant, identification of the ADLs for which the beneficiary does and does not need assistance. The notice shall be sent by mail that does not require the beneficiary’s signature, to the last known address of the beneficiary or, if appropriate, the authorized representative of the beneficiary.

Requesting Additional Hours of Service After an Initial Assessment.  For initial requests for PCS, initial authorization for less than 80 hours per month:

  1. After receiving an initial approval for an amount of hours less than 80 hours per month, a beneficiary must wait 30 days to submit a request for reconsideration of the level of service determined during the initial approval. This 30 day requirement does not apply to a beneficiary’s submission of a Change of Status request which may be submitted at any time if the criteria for such a request are met.
  2. The request for hours in excess of those initially approval must be submitted with supporting documentation that explains and supports why more hours of PCS are needed and which ADLs and tasks are not being met with the hours authorized. The documentation should also provide information indicating why the assessment did not accurately reflect the beneficiary’s functional capacity or why the prior determination is otherwise erroneous.
  3. Upon receipt of a completed request for additional hours, the Defendant will reconsider the request and at the Defendant’s discretion, a reassessment may be scheduled.
  4. If the reconsideration determines a need for additional PCS hours as requested, additional hours will be authorized according to Policy. This constitutes an approval and no adverse notice or appeal rights will be provided. If the reconsideration determines that the PCS hours authorized during the initial assessment are sufficient to meet the beneficiary’s needs, an adverse decision will be issued with appeal rights.
  5. A beneficiary must submit a request for hours in excess of those initially approved within 60 days of the initiation of PCS services. A request after the 60 day time period must be in the form of and meet the requirements for a Change of Status request. The reconsideration request as set out above may be submitted no more than one time during the initial benefit period.

Those Eligible for Reinstatement of Services or Reassessment.  Defendant will identify, reinstate and reassess under the above procedures the following members of the Plaintiff class for whom PCS was denied or terminated, unless the class member is currently receiving PCS, is currently ineligible for Medicaid, or is currently receiving nursing home services:

1.   All persons who were determined by Defendant to be ineligible for PCS for whom no third person was present during the PCS assessment if there is any indication that the beneficiary had a cognitive impairment or a mental health diagnosis;

2.   All persons denied or terminated from PCS because of the receipt of hospice services.

If the reassessment required under this provision demonstrates eligibility for PCS, PCS will be promptly approved at the level determined through the assessment. If the reassessment does not demonstrate eligibility, the beneficiary will receive a notice of denial with appeal rights.

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