WV Drops Harsh Medicaid Cuts

(Oct. 5) The West Virginia state Medicaid agency has agreed to settle a lawsuit that challenged its changes to the clinical eligibility criteria for its Medicaid home and community-based care program. Fleshman v. Walker, No. 06-C-1301 (Kanawha Co., WV, July 3, 2006). West Virginia has agreed to restore the former eligibility criteria, reinstate all individuals terminated under the challenged criteria, and reevaluate all applicants who were denied coverage under the challenged criteria.

Prior to November 1, 2005, applicants for West Virginia’s home and community-based care program had to show deficiencies in five activities of daily living (ADLs) among a list of 12 to attain eligibility. Generally, a deficiency was demonstrated by showing of a broad need for "physical assistance" with an ADL. However, the state agency decided to make it vastly more difficult for applicants to show a deficiency by requiring them to demonstrate a total inability to accomplish the relevant tasks at all times. So, for example, it was no longer enough that an individual needed occasional assistance walking in the home; the individual had to be either completely nonambulatory or at all times unable to get around without assistance.

A suit was filed in July on behalf of Jackie Fleshman, a man with mild retardation with a history of paranoia and brain atrophy who had been receiving coverage for five years before being terminated under the new criteria. His situation starkly revealed the problem with the new criteria. The agency concluded that he did not need assistance with taking his medication, even though he is prescribed 23 medications and cannot read the labels on the prescription bottles and has a limited ability to tell time. Because Mr. Fleshman has the ability, however, to take a pill out of a bottle and place it in his mouth, he was found not to have a deficiency with taking medication.

Mr. Fleshman alleged that the new criteria discriminated against individuals with mental disabilities, violating West Virginia’s Human Rights Act, and denied individuals with mental disabilities equal protection of law in violation of West Virginia’s Constitution. He also claimed that, because the agency had not published its policy, it was denying him due process of law in violation of the state constitution by applying an unascertainable standard. Mr. Fleshman requested certification of a class.

The court never had to issue a ruling. The publicity surrounding the issue forced the state to settle. Advocates for the elderly and disabled conducted a campaign to draw attention to the issue, and the intense media attention they drew eventually captured the legislature’s attention as well. When legislators ordered state Medicaid agency staff to testify about the changes, they refused to answer questions (staff members claimed that the pending lawsuit prevented them from answering questions) and legislators were outraged. In the meantime, the state attorney general filed a motion to intervene in the case on the plaintiff’s side. Thus, on the eve of the hearing on the plaintiff’s motion for a temporary restraining order, state officials decided the better course would be to settle the lawsuit.

Bren Pomponio and Daniel Hedges of Mountain State Justice represent Mr. Fleshman.

Read the plaintiff’s complaint.

For more information, please call Gene Coffey in NSCLC’s D.C. office.