DRCNH Home > Issue Areas > Traumatic Brain Injury > Headway Medicaid article

By Julia Freeman-Woolpert, Outreach Advocacy Specialist, Disabilities Rights Center
Published in Headway, the BIANH Newsletter
March, 2004

There are two great rules in life, the one general and the other particular. The first is that every one can in the end get what he wants if he only tries. This is the general rule. The particular rule is that every individual is more or less of an exception to the general rule.
---Samuel Butler

Quick! Think of a subject that is both very complicated and very boring.
Now raise your hand if you said, "Medicaid".
If your hand is up, you have a lot of company. Oh, sure, there are a few people who said, "income taxes", and probably somebody said, "quantum physics", but admit it: Medicaid was right up there on the list.
So, I hesitate to bring the subject up, but on the other hand, if you or your loved one has a significant disability and little or no income and resources, you need to know about Medicaid. Medicaid funds the vast majority of public services and supports to individuals with brain injuries in New Hampshire. So here goes.

What is Medicaid? Who is eligible?
What does Medicaid Cover?
What is a Medicaid waiver?
The ABD Waiver
The DD Waiver
The ECI Waiver
What’s happening with the ABD Waiting List lawsuit?
Can I obtain services from a Community Mental Health Center?
What if I apply and get a "no" but I think it should have been a "yes"?

What is Medicaid? Who is eligible? top
Medicaid is a joint federal-state program that provides medical care and services to certain low-income people who have resources below $2,500 (note: there are some exclusions of resources, such as your home), including those who are “aged, blind, or disabled”. The income level varies by individual circumstances. There are also exceptions for “medically needy” individuals who have income and resources above the limits, such as through the MEAD (Medicaid for Employed Adults with Disabilities) program. Certain other people with low incomes, such as children, pregnant women, or refugees, may also qualify.

What does Medicaid Cover? top
Medicaid will pay for medical services such as doctor’s visits, medications, physical, occupational, and speech therapy, x-rays, transportation to and from medical appointments, hospital stays, chiropractor and podiatrist visits, and a variety of other services. Most of these services are subject to limits or caps on number of visits. There are many services Medicaid will NOT cover, such as visual training, dietary services, homemaker services (except under a waiver program), communication devices, detoxification outside of an acute care facility, halfway houses, and broken appointments.

Medicaid will also cover comprehensive services to certain individuals who might otherwise have to be in an institutional setting under one of the Waiver programs.

What is a Medicaid waiver? top
A Medicaid Home and Community-Based Services Waiver (sometimes called a “Community Care Waiver”) is a program where certain rules have been “waived” so that services can be provided in community settings that normally would only be paid for when in institutions or intermediate care facilities. New Hampshire has three separate waiver programs for specific groups of adults: elderly and chronically ill, developmentally disabled, and people with acquired brain disorders. Under certain circumstances, a person with a brain injury may qualify for any one of these waivers. To be eligible individuals must meet certain eligibility requirements, such as requiring the same level of care as is provided in a skilled nursing or rehabilitative care setting, intermediate care or nursing care setting.

The ABD Waiver top
The ABD Waiver is a small program that currently serves somewhat more than 120 people in the state. A person may be eligible if he/she is 22 or older, there is a disruption in brain functioning due to external trauma, anoxia or hypoxia, infectious disease, stroke, tumor, surgery, toxic exposure, or other neurological disorders such as MS or Huntington’s, that occurred after childhood but before age 60, and “presents a severe and life-long disabling condition which significantly impairs a person's ability to function in society”. Another criteria, and one that often causes problems for applicants, is that the person must need skilled nursing or rehabilitative care. Because the eligibility criteria are so stringent, it can be difficult to qualify for the ABD Waiver.

The DD Waiver top
If the person’s brain injury or disorder occurred before age 22, is expected to continue indefinitely, and, “constitutes a severe disability to such individual's ability to function normally in society”, then the person might be eligible for services under the DD Waiver program.

Under the DD and ABD waivers, people can receive a wide variety of services through an individual service plan, including but not limited to: service coordination, personal care services, day activity or supported employment, respite, environmental modifications, and assistive technology. Both the ABD and DD waiver programs are administered by what is now the Division of Developmental Services of the Department of Health and Human Services. To apply for these services, go to the area agency for developmental services in your region. Under the ABD and DD waiver programs, individuals can get comprehensive day and residential services they need in order to remain in community settings. Although there are currently waiting lists for both programs, funding periodically becomes available. If you are in need of services and believe you may be eligible you can apply through your local area agency.

The ECI Waiver top
The “Home and Community-Based Care for the Elderly and Chronically Ill Waiver” (ECI Waiver) eligibility requirements include the following: at least 18 years of age; needs nursing facility level of care; resides in a setting free of observable hazards; supports and services are available in the community; costs for community services must be the same as, or lower than, nursing facility services, and several other requirements. Some individuals who do not qualify for the ABD waiver because they do not need skilled nursing or rehabilitative services may be able to receive services through the ECI Waiver. To apply for HCBS-ECI services, contact your local Health and Human Services District Office.

What’s happening with the ABD Waiting List lawsuit? top
Bryson et al. v. Shumway and Fox, more commonly known as the ABD Waiting List case, is currently on remand to the Federal District Court from the First Circuit Court of Appeals. The First Circuit decided in 2002 that the state could limit the number of individuals on the waiver to fewer than 200, but that the state also had to provide services to people with reasonable promptness up to the limit it had established. The Court affirmed that the Plaintiffs had standing to bring their case in federal court and remanded the case to the District Court. The parties have files Motions for Summary Judgment, with the Plaintiffs arguing, among other things, that the state’s failure to provide HCBC services violates the ADA and the Supreme Court’s decision in Olmstead. No ruling had been issued as of the beginning of February, 2004. Meanwhile, most of the individuals on the ABD waiting list have been placed into community settings and are now receiving services. (update)

Can I obtain services from a Community Mental Health Center? top
Maybe. Community Mental Health Centers (CMHCs) can provide mental health services up to the service limits specified by Medicaid (18 physician visits per year, 12 visits for psychotherapy from an ARNP or other provider, etc.). People with significant emotional or behavioral problems often require more services than allowed by the limits. Medicaid will consider requests to authorize additional services if they are medically necessary. For adults who have been found to have a severe or persistent mental illness that has caused a severe functional impairment for at least one year, more comprehensive services are available through the Community Support Programs at the CMHCs. Some people with brain injuries also have a mental illness that meets these criteria. The six mental health centers that participated in Project RESPONSE have the ability, through another waiver of the eligibility rules, to provide services to people who have had a TBI but not a mental illness, and otherwise meet eligibility criteria.

What if I apply and get a "no" but I think it should have been a "yes"? top
You looked at the rules, and it looked like you were eligible. You got the decision, and it said you were ineligible. Is it time to give up and look somewhere else for help? Not necessarily. The people who make the decisions sometimes make mistakes or change their minds. If you think the decision was wrong, you have the right ask for reconsideration or to appeal it. You can also file an appeal if you are denied services such as a failure to pay for a covered service, or if you get put on the waiting list and disagree with your priority status, or are terminated from services. There are rules about how much time you have to file an appeal, and what procedures will be used: make sure you know these rules.

Want to know exactly what the rules say? All of these rules are posted on the internet. You can start at the DRC benefits page.

There are other state government-funded benefits and services for adults with brain injuries, such as Vocational Rehabilitation, and Resource Facilitation, funded by the state and provided through the BIANH. Future articles will take a look at state services and supports for children, and other programs and supports for both adults and children with brain injuries. What would you like to know about your rights? Call Julia Freeman-Woolpert at 228-0432 or 1-800-834-1721 and tell us what you want to read about in future articles.