Devine Millimet, a law firm in Concord NH, announced that it has filed a declaratory judgment action in the Hillsborough County Superior Court seeking a ruling that the State’s Department of Health and Human Services (DHHS) current efforts to develop a managed care program for Medicaid services should not include long term care services for people with developmental disabilities or acquired brain disorders served by New Hampshire’s developmental services system.

Deborah Fournier, an analyst at the NH Fiscal Policy Institute, explains:

“The primary argument in the complaint is that the state law underlying the managed care initiative only specifies that mandatory Medicaid services be required to be provided in a managed care context. Mandatory services are distinct from optional services and presumably from waivered services. In fact, some mandatory services are long-term care services (like skilled nursing facility care or home health care for people entitled to skilled nursing facility care).

“The argument in the complaint is that waivered services for those with developmental disabilities or acquired brain disorder are not mandatory services and therefore the State doesn’t have the authority to mandate those specific long-term care services be included in the managed care initiative. The complaint actually requests that the court rule on whether the law allows DHHS to mandate the inclusion of long-term care services for these two populations in the Medicaid managed care program.”

Fournier explains further: “The complaint is not so broad as to ask whether or not the State had the authority to mandate any waivered or optional service be included in the managed care initiative or to attempt to carve out waivered or optional services all together for any and all populations. The complaint does not seek any injunctive relief either; i.e., it doesn’t ask the court to stop the state from moving forward. It does ask the court to declare as a matter of law what the right answer is on this question.”

The case, captioned R. Stuart Wallace and Ethan Wallace et al., Plaintiffs, v. State of New Hampshire and the New Hampshire Department of Health and Human Services, Defendants, was filed by attorneys Thomas Quarles, Esq. and John D. MacIntosh, Esq. The plaintiffs are led by numerous individuals and family members served by the 10 Area Agencies that currently provide Medicaid-funded residential services and long term care for the developmentally disabled and individuals with acquired brain disorders.

Senate Bill 147-FN (Chapter 125, Laws of 2011) set up a capitation-based managed care program for the provision of Medicaid services to certain parts of the Medicaid population in New Hampshire. The scope of this law was limited to specific Medicaid programs and populations, including all mandatory Medicaid programs. The long-term care services provided by the Area Agencies are not named in the law and are not mandatory Medicaid services. Therefore, the State’s new Medicaid managed care program does not apply to long term care services for the developmentally-disabled or those with acquired brain injuries. The Complaint also seeks a judicial determination that none of the individual plaintiffs are required to participate in managed care programs for these services and that none of the Area Agencies are required to enter into contracts for the provision of long-term managed care services to their Medicaid populations with the three separate managed care organizations that the State Department of Health and Human Services has contracted with to put the Medicaid managed care program into effect.

The first phase of the State’s Medicaid managed care program for acute care services was supposed to be operating by July 1, 2012. That phase is still in the planning stages and will not be operational until December 1, 2013 at the earliest. Medicaid managed care for long term care services is the second phase of the program and cannot start for at least one year after the start of the first phase. Because of this delay, the plaintiffs have sought a declaratory judgment rather than an injunction, which if successful, will have the same effect as an injunction against the State.

Click here to access a copy of Complaint Document filed.

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