The New Hampshire Challenge

Volume 16, Issue 3

Spring 2004

published quarterly by: The New Hampshire Challenge, Inc. P.O. Box 579, Dover, NH 03821-0579


	Home

	In this Issue

Top Stories Other Stories Opinion

	Archives

	Area Agencies

	Where to Find Help

	Upcoming Events

	About Us

Contact Us FAQ Site Map

In This Issue

On Wednesday, April 21, 2004, the Office of the Legislative Budget Assistant (LBA) presented its performance audit of the New Hampshire Katie Beckett (HC-CSD) eligibility option. The purpose of the audit was to determine whether enrollment and eligibility guidelines are in compliance with Federal laws and regulations, as well as with State statutes.

The LBA was unable to determine enrollment as the Department of Health and Human Services (DHHS) was unable to provide reliable data.

The LBA did provide an analysis of compliance with State and Federal law.

The rule that the LBA analyzed for compliance is the rule that expired in December, 2002, the rule that DHHS is currently using to determine eligibility. This is also the rule that would remain in place if HB 1428 becomes law.

The LBA did identify compliance problems with the rule.

The audit report is short and easy to read. The link to the report can be found at: www.gencourt.state.nh.us/lba/audit.html.

Items of Concern

For the most part, the audit compliance findings were not surprising. In my opinion, the audit was done thoroughly and accurately, and I commend the LBA on its efforts.

However, as HB 1428 moves on to the Senate, there are a couple of items that many need to be clarified for the members of the Committee:

1. On Wednesday, April 21, DHHS seemed to be recommending to the Legislature that instead of amending the old rule, the State should adopt the more restrictive version of the rule that they proposed earlier this year. DHHS believes that many of the compliance issues are resolved in that proposal.

I believe that the State could still readopt the expired HC-CSD rule under HB 1428. The Legislature needs only make a few simple amendments to the rule to reflect the compliance recommendations of the audit. (See amendments below.)

Amendments to Current (Expired) HC-CSD Rule Necessary to Address Audit Findings on Federal Compliance

1. Add to eligibility rule, He-W 508.02(b), a clear reference to the SSI disability criteria requirement: Meet the disability criteria under the Supplemental Security Income program (section 1614(a) of the Social Security Act [42 USCS § 1382c(a)]);

[Note: This requirement is already effectively in the rule in He-W 508.02(b)(3), "Meet the program criteria as described 1902(e)(3) of the Social Security Act." Meeting SSI disability criteria is required by 1902(e)(3).]

2. Replace He-W 508.02(g) on cost effectiveness with the language of the federal law: "the estimated amount which would be expended for medical assistance for the individual for such care outside an institution is not greater than the estimated amount which would otherwise be expended for medical assistance for the individual within an appropriate institution."

3. Delete from He-W 508.02(b) the requirement that the child reside with at least one parent.

4. Ensure references/citations to other laws/rules are accurate.

2. DHHS is confusing the disability determination with the level of care determination. The audit report states that Federal law requires the State to use the SSI definition of disability in its eligibility determination. (As a quick reminder, the eligibility standards under Federal law are summarized below.) The SSI disability standards are found in SSI statute and regulations. The condition - or disability-specific standards are also found in what is commonly referred to as the "Blue Book."

Federal Kate Beckett law requires that:

The child must be 18 years of age or younger;
The child must be determined disabled by the SSI standards of disability;
The child must require institutional level of care, according to state standards;
The state must determine that it is appropriate to provide care for the child outside the institution;
The cost to provide care outside the institution must not be greater than it would have been in the appropriate institution.

There are three important points about this audit finding that may need to be explained to your State Senator or Representative:

1. DHHS improperly mixed the "disability" standards with the "level of care" standards. In its response to the audit finding that the rule should make clear that the SSI disability standard applies to HC-CSD, DHHS discusses the "disability" standard as if it is the same as the "level of care" standard. That is incorrect. These are two separate eligibility standards. The child must first be determined to be "disabled" by the SSI standard. If the child is determined "disabled," DHHS must then determine if the child also requires an "institutional level of care," by a separate state standard.

2. It appears that DHHS has, in practice, been following Federal law. DHHS assured me in 1998 that they used SSI standards to determine disability for the Katie Beckett (HC-CSD) eligibility option. DHHS also assured the LBA that it has used SSI standards for at least the last two years. (Of course, if DHHS were not following Federal law, the State would be out of compliance and would potentially have to reimburse the Federal government for funds improperly paid under the Katie Beckett option.)

3. While the LBA states that disability is not specifically defined in the rule currently used by DHHS (the expired rule), the rule incorporates the Federal statute and in that way implements the SSI standards. Rule He-W 508.02(b) lists the HC-CSD eligibility standards and number (3) in that list is that the child must "meet the program standards 1902(e)(3) of the Social Security Act," the Federal law that lays out the Katie Beckett eligibility standards. 1902(e)(3) requires that the child be determined disabled by the SSI standards for disability. Therefore, the requirement is already there in the rule, although one would have to check the language of 1902(e)(3) to find that out.

To Top