Memorialization of Corrective Actions Through Expedited Complaint Resolution Process for Individual Complaint Between the United States Department of Health and Human Services Office for Civil Rights and Delaware Department of Health and Social Services, Division of Medicaid and Medical Assistance

COMPLAINT # 23-542022

I. Introduction and Background

1. The purpose of this Memorialization of Corrective Actions is to set forth the corrective actions that the Delaware Department of Health and Social Services, Division of Medicaid and Medical Assistance (“DMMA”), and, under the direction of DMMA, its Managed Care Organization (“MCO”), Delaware First Health (“DFH”), have put in place to resolve a complaint filed with the United States Department of Human Services (“HHS”), Office for Civil Rights (“OCR”), through OCR’s Expedited Complaint Resolution process (“ECR”). This Memorialization also sets forth the additional actions that DMMA will take and establishes a monitoring period to ensure that the corrective actions continue and address any issues that may arise.
2. REDACTED was originally a member of Delaware Long-Term Care (“LTC”), from REDACTED, 2019 to REDACTED, 2020. REDACTED was hospitalized in 2020 and was subsequently transferred to an out-of-state nursing home in REDACTED in REDACTED, 2020, where REDACTED remained until REDACTED was discharged to REDACTED home on REDACTED, 2024.
3. Shortly after REDACTED was transferred to an out-of-state nursing home in REDACTED, DMMA eligibility for LTC was closed; however, REDACTED was later approved for Delaware LTC on REDACTED, 2023.
4. OCR received complaint # 23-542022 (the “Complaint”), on August 18, 2023 from REDACTED with the Delaware Disability Rights Center, on behalf of REDACTED, alleging DMMA discriminated against REDACTED on the basis of disability, by failing to provide REDACTED with home health services, home modifications, and specialty REDACTED equipment necessary for REDACTED to live in REDACTED community, which resulted in REDACTED being unnecessarily institutionalized in a nursing home in REDACTED for four years.
5. Pursuant to Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, and its implementing regulations at 45 C.F.R. Part 84; Section 1557 of the Affordable Care Act, (Section 1557), Act, 42 U.S.C. § 18116 and its implementing regulations at 45C.F.R. Part 92; and Title II of the Americans with Disabilities Act (ADA) of 1990, 42U.S.C. § 12132, and its implementing regulations at 45 C.F.R. Part 92, covered entities are obligated to provide services in the most integrated setting appropriate to an individual with disabilities.
6. As a recipient of Federal financial assistance from HHS, DMMA is a covered entity, and is obliged to comply with Section 504 and Section 1557 and, as a state entity, DMMA is required to comply with Title II of the ADA.
7. On September 22, 2023, OCR notified DMMA of its authority to investigate the above- mentioned Complaint under Section 504, Section 1557, and Title II, and offered DMMA an opportunity to engage in the ECR process.
8. ECR meetings were held on October 4, 2023, December 7, 2023, and April 1, 2024. Participants in the ECR meetings included DMMA, DFH, REDACTED, REDACTED, and OCR.
9. During the ECR process, DFH, under the direction of DMMA, took the following affirmative steps to provide REDACTED the opportunity to return home and reside in the most integrated setting in REDACTED community:
   1. Specialty Equipment: In accordance with REDACTED’s physical therapy evaluations, DFH approved the necessary specialty REDACTED equipment for REDACTED to reside at home. This equipment includes, but is not limited to, a REDACTED with REDACTED features, BiPap machine, and long handled sponge, and other Activities of Daily Living reaching tools.
   2. Home Modifications: In accordance with the home modification assessments, DFH ensured that modifications, including the deck renovation, door widening projects, and installation of a vertical platform lift, were completed.
   3. Conduct Assessments and Evaluations: DMMA engaged with REDACTED and DFH to conduct the evaluations and assessments necessary to determine REDACTED personal support needs.
   4. Discharge home: DMMA worked with REDACTED and DFH to support REDACTED discharge from the nursing home in REDACTED to REDACTED family home in Delaware, on REDACTED. The discharge was coordinated to include the services and training necessary to support REDACTED’s safe discharge to the community. On November 1, 2024, REDACTED confirmed with OCR that REDACTED returned home with the equipment, home modifications, and support services listed above.
10. Notwithstanding the above section, and pursuant to the Master Service Agreement between DMMA and DFH, clients currently have a lifetime limit of $20,000 for minor home modifications. See Section 3.4.3.2. The MCO’s case manager may authorize service request exceptions above this limit, when it determines the expense to be necessary. If an increase is needed, DMMA will revisit the cap.
11. The totality of DFH’s actions under the direction of DMMA supported REDACTED’s return to REDACTED community and will ensure REDACTED receives the necessary services to remain living in REDACTED community.
12. DMMA and DFH have worked cooperatively with OCR and REDACTED throughout this matter and are continuing to ensure REDACTED needs are met.
13. The Parties voluntarily agree to resolve the Complaint by memorializing the corrective actions DMMA has taken, together with a monitoring period of nine months from the date of the last signature on the Agreement; during which OCR will monitor the provision of services REDACTED receives through DFH, to ensure that REDACTED receives adequate services necessary for REDACTED to remain in the most integrated setting in REDACTED community.
14. This Memorialization of Corrective Actions is not an admission of liability by DMMA regarding the allegations in the Complaint.

II. Specific DFH Commitments

Under the direction and oversight of DMMA, DFH will take the following actions:

1. By December 16, 2024, DFH will develop a person-centered plan for REDACTED that addresses the personal care and support services REDACTED requires to reside in the community.
2. DFH, under the direction of DMMA, will regularly review the medically necessary services, including but not limited to: home care/personal care services, physical therapy, occupational therapy, adaptive equipment, a life alert bracelet, and any other support services to ensure REDACTED receives the services REDACTED needs to successfully reside in the community.
3. DFH will not make any changes to REDACTED’s care plan without first assessing REDACTED needs, ensuring the change is needed to effectuate REDACTED right to remain in the most integrated setting in REDACTED community, consulting with REDACTED, and advising OCR for any input.
4. If a determination is made that REDACTED can use the bathroom with the assistance of adaptive equipment at some point in the future, then DFH, under the direction of DMMA, will reevaluate the medical necessity for bathroom modifications.

III. General Terms

1. This Memorialization of Corrective Actions resolves OCR Complaint # 23-542022 and is limited to the facts and issues presented in the Complaint. It does not replace DMMA’s continuing obligation to comply with Section 504, Section 1557, Title II, and all other federal laws and applicable regulations; or preclude OCR from taking appropriate action to evaluate DMMA’s compliance with laws enforced by OCR.
2. If at any time OCR believes that DMMA, or any of its components, has failed to comply in a timely manner with any obligation under this Memorialization of Corrective Actions, OCR may issue DMMA a notice of alleged non-compliance, and will provide a reasonable opportunity of no less than seven calendar days to respond, unless there is an emergency, in which case the parties will promptly meet to resolve it.
3. This Memorialization of Corrective Actions is a public document that will be available on OCR’s public website, and upon request by any individual, with appropriate redactions of personally identifiable information.

IV. Mechanism for Reporting Concerns

1. DFH will designate REDACTED, Case Manager as the point of contact to receive and resolve any issues REDACTED encounters with the provision of services REDACTED receives through DFH. In the event REDACTED is not satisfied with the resolution, REDACTED can elevate REDACTED concerns to REDACTED, Director of Long-Term Services and Supports.
2. DFH will report to REDACTED, DMMA, and OCR the actions taken to address any issues REDACTED raises.

V. Monitoring and Reporting

1. On the last day of each month of the monitoring period, DMMA, with input from DFH, will provide a monthly written confirmation to OCR that REDACTED is receiving adequate personal care and support services REDACTED needs to reside in the community.
2. By January 2, 2025, DMMA, with input from DFH, will provide written confirmation to OCR of the completion of a person-centered plan for REDACTED that addresses the personal care and support services REDACTED requires to reside in the community.
3. On or before March 1, 2025, and June 1, 2025, DMMA, with input from DFH, will provide written confirmation to OCR that it evaluated and reconsidered the medical necessity of bathroom modifications in REDACTED’s home, and the reasons for the determination.
4. During the monitoring period, the Complainant may report to OCR any concerns related to the provision of REDACTED personal care and support services. A finding of non-compliance may extend the nine-month monitoring period.
5. Notwithstanding the foregoing, all deadlines will be contingent upon REDACTED’s ongoing needs, REDACTED approval of any care-related plans, and medical necessity.

VI. Effective Date and Monitoring Period

The effective date of this Memorialization of Corrective Actions is the date of the last signature below. This Memorialization of Corrective Actions will continue for a monitoring period for nine months from the date of the last signature on this document.

For the Department of Health and Social Services Division of Medicaid and Medical Assistance

/s/
Andrew B. Wilson, Esq.
Division Director for the Delaware
Department of Health and Social Services
Division of Medicaid and Medical Assistance

Date: 12/3/2024 | 6:42 PM EST

For the United States Department of Health and Human Services, Office for Civil Right

/s/
Robinsue Frohboese, J.D., Ph.D.
Deputy Director, Strategic Planning Division

Date: 12/4/24 

/s/
Mordecai Simha, J.D.
Senior Manager, Olmstead and Community
Integration Section, Strategic Planning Division

Date: 12/4/2024

/s/
Holly Gibson, J.D.
Olmstead and Community Integration Section
Enforcement Analyst, Strategic Planning Division
Date: 12/4/2024