Elder care in the balance

Md. court rulings could allow government aid for thousands of seniors

December 10, 2007|By Andrew A. Green | Andrew A. Green,SUN REPORTER

When Ida Brown was diagnosed with Alzheimer's disease three years ago, her daughter sought assistance from a state program to help elderly people of limited means receive care in their homes or communities.

But even though Brown, now 85, was too sick to live on her own - she couldn't dress or feed herself, and she wandered off at night - she was too well to get help from the state.

Her daughter, Diane Byus, sued the state, and with the help of the Maryland Legal Aid Bureau and AARP, she won.

The Maryland Court of Special Appeals ruled last month that the Department of Health and Mental Hygiene's standards for that portion of the Medicaid program were stricter than is allowed under federal law, and now the department has been ordered to re-evaluate Brown.

The ruling could provide hope for thousands of Marylanders who have applied for the program but whose needs were deemed medically insufficient. A similar case is set for a hearing today, and 10 others are working their way through the courts.

"When it's your parent, you think you'll never place them somewhere, but I did," said Byus, a nurse who, along with her brother, is picking up much of the $2,650 monthly bill for her mother's assisted-living facility. "I'm just hoping we'll get the assistance from the state of Maryland to help us finally."

But state officials caution that a court-ordered loosening of the standards might do more harm than good: Because funding is limited, allowing more people into the program could result in the most needy cases being shut out.

"We're limited by our budget in how many people we can serve, so we want to be able to serve those with the greatest level of needs and who are most at risk of being admitted to a nursing home," Maryland Medicaid Director John Folkemer wrote in an e-mail.

The Older Adults Waiver Program, designed to provide services such as nursing and adult day care, is part of Medicaid, the federal health care program for the poor and disabled. In Maryland, the state and federal governments split the costs evenly. Poorer states pay a smaller share of the costs.

Medicaid gives the states broad flexibility to design their own programs, and all 50 states and the District of Columbia have enacted some form of home- or community-based assistance for the elderly.

Molly O'Malley, a senior policy analyst at the Kaiser Family Foundation, said the medical standards for those programs vary. But she said that in a 2006 study, only three states reported having a waiting list for those services, and Maryland's was by far the longest - 6,000 people, compared with 269 in Nevada and 180 in South Dakota.

State officials say more than 10,000 people are waiting for slots to open, but it is unknown how many of them meet Maryland's financial and medical eligibility standards.

AARP Foundation attorney Sarah Lock said Maryland's program appears to be one of the most stingy in the nation.

"We've had clients who have been seeking home-administered care and go over to Delaware and get benefits," Lock said. "Looking at the standards across the 50 states, most read it far more reasonably than Maryland does."

Maryland offers Medicaid long-term care for people over age 50 who make less than $1,869 a month. Brown meets both qualifications.

The issue in her case is the type of care required. Maryland's program limits eligibility to those who require daily care from licensed health care professionals. Although Brown, who also suffers from heart disease, arthritis and cataracts, needs help with many ordinary activities of daily living and supervision to make sure she doesn't hurt herself, she does not require constant care by a nurse or doctor.

"Mom has no idea she's on medication unless you give it to her," Byus said. "Mom doesn't eat unless you put the food in front of her. Mom doesn't put on the right clothes unless you put the right clothes out. She definitely needs 24-hour supervision."

Byus and the attorneys from the Legal Aid Bureau and AARP argued that the federal government's standard - and even the standards in Maryland law - are not so strict. They argued successfully before the Court of Special Appeals, the state's second-highest court, that the law requires eligibility for those who regularly require "health-related care and services" such as those that could be provided in a nursing home but not necessarily provided daily by a skilled nurse.

Former state Sen. Paula C. Hollinger, who sponsored the legislation that led to the establishment of the older adults program, said it was her intention that the state adopt the more relaxed federal standard. She said she tried repeatedly to enact legislation clarifying that intent, but it was always defeated because of opposition from the state Department of Health and Mental Hygiene.

(Hollinger, who retired from the Senate last year, now works for that department, though her duties do not cover the waiver program.)

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