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Court Decision Enables More Seniors to Choose Home and Community Based Services

On November 6, 2008, the Maryland Court of Appeals issued a favorable decision that should enable more seniors to remain in their homes with community based services rather than go to nursing homes.
The per curium order affirmed a decision by the Court of Special Appeals in the Medicaid home and community-based services (HCBS) waiver program case of Dep’t of Health & Mental Hygiene v. Brown. Six months earlier the PJC had urged the Court of Appeals to affirm the lower court’s ruling in an amicus brief filed by 2007 – 2008 Murnaghan Fellow Gregory Care. The PJC, with its co-counsel from the National Senior Citizens Law Center, represented themselves and the Center For Medicare Advocacy, Greater Maryland Chapter of the Alzheimer’s Association, and the long-term care advocacy organization, NCCNHR on the brief.
This case concerns the medical eligibility standard the Department of Health and Mental Hygiene (DHMH) uses to determine which middle- and low-income seniors are eligible to participate in the highly-sought after HCBS waiver programs funded by Medicaid. The attorneys for Ms. Ida Brown, a disabled woman who was denied participation in the program, have argued throughout that Maryland’s medical eligibility standard is impermissibly higher than the federal standard. The Circuit Court for Baltimore City had agreed with Ms. Brown’s argument and decided that the State used an improper standard to determine Ms. Brown’s eligibility. The DHMH appealed this decision, but the Court of Special Appeals agreed with the trial court that the standard was incorrect.  
The PJC’s amicus brief serves to highlight the importance of HCBS waiver programs and illustrate the harm Maryland’s unduly strict standard imposes on disabled seniors in Maryland. Seniors overwhelming prefer HCBS programs because they permit seniors to receive long-term care in the comfort and familiarly of their own homes, as opposed to in a nursing facility. Research indicates that recipients of HCBS remain healthier and more functional over time than their peers who reside in nursing homes. Moreover, professional health services provided through HCBS waivers alleviate the strain on informal caregivers and eliminate the risk of harm to the cared-for senior associated with untrained individuals attempting to provide care beyond their ability to provide. In addition to the superior health outcomes associated with HCBS, such programs save the State a vast amount of money as compared to nursing home placement.
The PJC also argued that any medical evidence relevant to a decision on a HCBS waiver slot application should be accepted after the DHMH holds a hearing on the application. This is because, when denied a waiver slot, the applicant must choose between returning to the bottom of the three-year-long waiting list and accepting a nursing home placement. Neither option satisfies either the goals of the applicant in receiving long-term care at home, or the State in avoiding costly nursing home residencies that run counter to the goal of deinstitutionalization of long-term care.
The Court of Appeals’ per curiam affirmance is an important victory in this matter, and will enable seniors to obtain greater access to HCBS waiver programs.

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