CHARLESTON – Thirteen aging programs have filed lawsuits against the West Virginia Department of Health and Human Resources and the state Health Care Authority for changes that have allowed for-profit companies to take money from these programs.
The facilities – Aging & Family Services of Mineral County, Cabell County Community Services Organization, Council on Aging, Greenbrier County Committee on Aging, Hampshire County Committee on Aging, Lewis County Senior Citizens Center, Lincoln County Opportunity Company, Mason County Action Group, Preston County Senior Citizens, Putnam County Aging Program, Raleigh County Commission on Aging, Summers County Council on Aging and Taylor County Senior Citizens – filed their complaints August 31 in Kanawha Circuit Court against the DHHR and HCA as well as HCA Executive Director Stacy Pridemore and Interim Director of the HCA’s Certificate of Need Program Timothy E. Adkins.
According to the complaints, county aging programs across the state have been providing in-house personal care services to eligible citizens through programs administered by the state Bureau of Senior Services.
Rich Walters
| Courtesy photo
As attorney Rich Walters told The West Virginia Record, the purpose of the programs it to give individuals the ability to remain living at home instead of living in a facility for as long as possible. When these seniors end up living in a facility, the state ends up paying more to take care of them than it does with the county aging programs. And in many counties, these programs provide services to all eligible West Virginia Medicaid recipients. The complaint says “there is no unmet need for these services.”
For a company to provide Medicaid personal care services, it must obtain a certificate of need (CON) from the HCA.
“For years it has been determined that in most counties, the senior services programs are capable of providing all necessary Medicaid personal care services and, thus, new CON applications have been rejected as there is no unmet need among Medicaid-eligible recipients,” the complaint states. “Unfortunately, the HCA has arbitrarily and capriciously changed the methodology it uses to determine unmet need to artificially inflate the actual need despite clear evidence that there is no unmet need.”
Before, the number of Medicaid-eligible persons who also were eligible for personal care services was decided by multiplying the total number of Medicaid-eligible persons by 1.25 percent. The HCA then would subtract from that figure the number of people currently receiving Medicaid personal care services in a county to determine if there was an unmet need.
As the complaint notes, the multiplier is “simply used to create an arbitrary number … regardless of the multiplier used, no one is denied services. It is a number used to determine if additional providers are needed. This number is not derived from any medical or eligibility criteria and does not create additional Medicaid-eligible recipients.”
The complaint says the HCA was having difficulty determining how many people actually were receiving Medicaid personal care services.
“Instead of addressing this issue, the HCA arbitrarily increased the multiplier from 1.25 percent to 3 percent,” the complaint states. “This arbitrary change increased the number of individuals allegedly eligible for Medicaid personal care services.
“This change … was arbitrary and capricious and not based upon any evidence of unmet need, but rather it was based on the HCA’s unjustified desire to allow unnecessary providers to flood an already competitive market to the detriment of West Virginia’s senior citizens and the non-profit organizations who serve them.”
The complaint also says the HCA failed to follow its own rule-making procedures when promulgating this new need methodology.
“In doing so, the HCA is allowing the market to be flooded with private for-profit providers seeking to replace the local non-profits who have been providing exemplary personal care services to West Virginia seniors for decades and risking the many ancillary services these non-profits also provide,” the complaint states.
Walters, an attorney with Shaffer & Shaffer in Charleston, said the HCA made the changes to the methodology earlier this year. The result, he said the numbers showed that 51 counties had unmet needs. But he said in reality, the picture isn’t that extreme.
“When they did that, these for-profits jumped in and said here’s our chance to get our certificate of need,” Walters told The Record. “The change makes no sense. There was no basis for the change. Take Putnam County, for example. There were a slew of providers thrown in fighting over a limited number of individuals.”
Walters said these county gaining programs rely on the funding from these services to provide additional services to seniors. Those additional services being affected include senior centers and meals on wheels programs.
“Now, they don’t receive enough funding,” he said. “The programs take money from these care programs to help fund the others.
“By opening up the floodgates to allow multiple providers to come in, it’s going to jeopardize their ability to provide the services like they’ve been doing for decades.”
The complaints seek an injunction to stop the plaintiff agencies from suffering “irreparable harm” if the HCA is allowed to process and approve the various CON applications pending and those not yet filed. The complaint says about 20 new CON requests have been made to provide services in 51 of the state’s 55 counties since Gov. Jim Justice signed the new standards on April 27.
However, as the complaint also notes, there is no evidence of eligible individuals not receiving services.
“There is not, has never been or ever will be a ‘wait list’ for the personal care services program,” according to a June 22 email from the Bureau of Medical Services included in the complaint.
The plaintiff agencies are being represented by Rich Walters and Ryan Walters of Shaffer & Shaffer in Charleston, and two of them (Summers and Lewis) also are being represented by Keith Lively of Hinton. The cases are assigned to various Kanawha Circuit Court judges but likely will be consolidated eventually.
Kanawha Circuit Court case numbers 23-C-766 through 23-C-778