A Homer assisted living home that appeared likely to close after some residents lost Medicaid waivers now will remain open at least several months. In a related case, a senior who had an appeal hearing scheduled for Tuesday got an extension to May and won’t face losing her benefits until then, if at all.
Earlier this month, Ruth Babcock, the owner and operator of three, five-resident assisted living homes, said she would close one home, Main Street Assisted Living, after some residents there had been denied benefits under Medicaid’s Home and Community Based Waiver Program. On Monday, Babcock said she got word that Alaska Legal Services will represent seniors who had been denied waivers. That prompted her to delay closing Main Street Assisted Living.
“I’m not going to close anything down. I’m going to hold tight and see what happens,” Babcock said.
Gail Sorensen, 89, a senior living at another Babcock facility, Kachemak Way Assisted Living, who had been denied a waiver had an appeal hearing this week before a judge. After also getting representation with Alaska Legal Services, Sorensen got an extension until May 2 to give lawyers time to review her case, said her son, Chip Sorensen.
Over the past six months, many seniors in Homer and elsewhere in Alaska have been denied Medicaid waivers that pay the cost of getting care in assisted living homes, about $5,800 a month at Babcock’s facilities as well as Homer Senior Citizens’ Friendship Terrace assisted living apartments. That pays for 24-hour care as well as room and board.
After word got out that seniors were being denied waivers, Alaska Legal Services agreed to represent those seniors. James Davis Jr., a lawyer with Alaska Legal Services, said he’d spoken with Babcock.
“We’d be happy to help out all the seniors she’s aware of,” Davis said. “Any other senior in the same situation, we’re ready to assist.”
Davis can be contacted at 888-478-2572 or anchorage@alsc-law.org.
Medicaid in Alaska is a joint state-federal program managed by the Alaska Department of Health and Social Services. To qualify for Medicaid’s Home and Community Based Waiver Program, seniors must pass an initial assessment that looks at factors like mobility and the ability to feed themselves, use the toilet and bathe themselves. Seniors also get reviewed annually through another assessment.
Over the past six months, people working with seniors said there has been an increase in seniors who have been denied waivers. Officials with DHSS said there had been no change in regulations or the assessment process.
There also hasn’t been a dramatic uptick in denials, said Duane Mayes, director of the Alaska Division of Senior and Disability Services. About 30 percent of reassessments over the past three years resulted in waiver denials, he said.
Davis said he doesn’t buy the state’s claim that it’s business as usual.
“I think the contrary is true and the contrary is provable,” he said.
Babcock said she thought the state might have come under pressure from the federal government. She contacted the office of Congressman Don Young, R-Alaska, about the situation, and staff there researched her case.
There doesn’t appear to be any change in federal regulations, said Matt Shuckerow, Young’s press secretary. Rather, the state was catching up on assessments.
“We think there was a backlog of state assessors who were delayed in determining if individuals were qualifying for Medicaid benefits,” Shuckerow said in a phone interview on Tuesday.
Congressman Young will continue to monitor the situation, Shuckerow said.
Rep. Paul Seaton, R-Homer, also is aware of the situation.
“This is especially frustrating when losing those services will likely cause them to revert to their previous impaired state,” Seaton said. “As the administration and the Commissioner of Health (Valerie Davidson) step into their new roles, I am hopeful they will actively work with us to find solutions to this situation.”
Davis said he thinks the waiver denials are related to a 2005 lawsuit filed by a group of seniors against the state, Krohn et. al v. DHSS. Davis also works with the Northern Justice Project, another public-interest law firm that unlike Alaska Legal Services can do class-action lawsuits.
In the Krohn case, filed in 2005, the Northern Justice Project, on behalf of the plaintiffs, challenged DHSS on how it determined eligibility for the Home and Community Based Waiver Program. Krohn et al. said the state violated their due process rights by terminating them without first finding that their medical condition had “materially improved” — the legal phrase meaning seniors had gotten well enough to live on their own.
In January 2006, the state agreed to temporarily stop terminating benefits. In 2006 the Alaska Legislature passed a law setting out the process for determining material improvement, and that law then had to be spelled out in administrative code. In November 2011 the state resumed waiver terminations, Davis said.
People in assisted living are too sick to live on their own but not sick enough to live in facilities with full nursing care like South Peninsula Hospital’s Long Term Care home. Seniors in the middle can get caught in a Catch 22 where they get better in assisted living and then the state determines they’re well enough to live on their own. Davis said the situation isn’t a Catch 22, though.
“The law as it’s written says the state must show the person must be able to live independently without the waiver services,” he said. “The law’s written to keep people from cycling out.”
That means if a person who did well in assisted living goes home, she or he could then get sick without daily care for things like taking medications regularly or getting meals. If a senior gets sick, he or she might wind up in the emergency room of the hospital. That could lead to being admitted for longer rehabilitation care in what’s called a swing bed, a hospital stay beyond immediate treatment. Medicare, the health insurance program for seniors, pays for such care up to 100-days and then Medicaid takes over.
“The cost is way higher than if the state had acted rationally and kept them in these safe and healthy settings where they are,” Davis said.
If a senior is denied a waiver, they can get general relief, Mayes said. In Homer, that comes to about $2,200 a month, Babcock said.
“It’s just not enough,” Babcock said about paying for assisted living. “It would be OK if we didn’t have round-the-clock (care).”
A senior might be able to live at home on general relief with care from family, if available, and visits from personal care attendants or PCAs. Medicaid also pays for PCAs, but the state has been cutting back PCA hours, too, Davis said. He said in one case a man who had 120 PCA hours a week got them cut back to 12 hours.
The Krohn case is still current. Last Friday, Davis said he filed a motion with Anchorage Superior Court Judge William Morse asking for an immediate hearing. Davis said that Morse’s order regarding the material improvement standard still isn’t being followed. The state should look at medical records to make its reassessment and also compare assessments from year to year, he said.
Jeran Marchbanks, a care coordinator with South Peninsula Hospital, said the Medicaid waiver denials speak to the larger issue of how a community cares for seniors. Current elder care also reflects cultural changes, such as the shift from a one-income family to a two-income family, said Sandy Miller, also an SPH care coordinator. Working families can find it hard to provide 24-hour care for elders.
“What happens when Grandma has to come home to your house to live?” Miller asked. “What happens when Grandma can’t be trusted with the cook stove?”
“We just don’t value our elders like we used to,” Marchbanks said.
Michael Armstrong can be reached at michael.armstrong@homernews.com.
