Ask the Expert - John Harrison, Hickman & Lowder Co., LPA
Posted on 04/26/18 in Employment by Milestones
Being a past conference speaker and member of the Milestones Board of Directors, John Harrison is no stranger to Milestones' mission. As an attorney, he practices mostly elder and disability law at Hickman & Lowder Co., LPA. With his practice, John mostly assists seniors and people with disabilities, while also handling disputes in litigation, such as fights over guardianships or trusts.
This year, John is lending his expertise to educate conference attendees about the recent Medicaid waiver changes and how to navigate the new system.
So how did you get into elder and special needs law, John?
I have a hidden visual impairment which gives me a great deal of understanding of what it is like to be different and to face adversity. I've always had a strong desire to help. I did public service work with Disability Rights Ohio and Legal Aid. Eventually, I found myself in private practice helping people too.
We are so excited to have you back as a speaker this year! What do you enjoy most about being a part of the conference?
I really like the people the most. Everyone at Milestones is dedicated to this work and it's reaching many families and providers who care about the special needs of individuals with autism and their loved ones!
Why is it important that law firms like Hickman & Lowder have a presence at events like the Milestones National Autism Conference?
Without information, there rarely can be a successful outcome. Hickman & Lowder, among other lawyers, are helping to advance knowledge and empower families to care for those they love who have very specialized needs. All of us are working together through Milestones to make our community a better, more inclusive place. I am hearing now we are helping people all over the country! It's so great to be a part of this.
You assist families in navigating through a lot of the logistics that come with accessing government benefits. What would you say is the most common need from families who have a family member with autism?
This is a very broad and important question! Estate planning is often more complex for families with loved ones on the spectrum because a trust is needed. There can be a concern with accessing and keeping public benefits, including Medicaid and waivers. Often, there are concerns about decision-making and guardianship, or other decisions. We see issues involving education too, and sometimes there are even issues about medical care.
You've been a presenter at the Milestones Conference in the past and are returning this year with your session, "Something to Hold Onto: Keeping Your Medicaid Waiver Through System Changes." There have been a lot of questions surrounding these recent changes to the waiver program and waitlist. Can you explain what a waiver is and describe this change in the waitlist status?
Hold onto your seats! Yes, there are many changes to the system. Generally, anyone who is otherwise eligible for Medicaid and who has serious care needs can receive this care in an institution. Examples of facilities are Intermediate Care Facilities (ICFs) or nursing facilities. However, many people and their families prefer to live and work in a community setting. When we talk about a "waiver" in this context, we are saying that the state asked for and got permission from the federal government to provide services in the community rather than the institution.
There is a big caveat - services in a facility are a "right." Services under a waiver are not guaranteed. The individual has to meet the terms of the particular waiver, and there must be an open waiver slot available.
In Ohio, there are actually many Medicaid waiver programs. Most relevant to families affected by autism are either the Ohio Home Care Waiver (administered by the Ohio Department of Medicaid involving individuals with serious, unstable medical conditions) or several waivers administered through Ohio's developmental disability system. There have been changes we will discuss in how the state is operating in both systems and a lot of the current focus is in the DD system.
Previously, there were very long waiting lists for the DD waivers. In many counties, individuals would need to show "emergency status" to receive the waiver, so oftentimes they wouldn't move very far up or down the list year after year. The state is hoping to make the system more accessible by screening potential applicants for a "current need" (services needed within one year). There will still be a higher priority for immediate need, which has similar definitions to the old emergency status. The new regulations are effective this summer!
What is "emergency status" for parents and families out there who aren't aware?
This is a situation which creates a risk of substantial harm to the individual or others under the old rules. Examples include loss of residence, loss of a caretaker, health and safety risks, abuse/neglect/exploitation, or a change in condition which cannot be met by an existing caretaker.
Under the new rules, a person is places on this list for services by showing a current need. A current need is an "unmet need" for services within 12 months, plus "substantial harm." Substantial harm's new definition is similar to emergency status with some expanded areas, such as the need for limited or intermittent support or to manage behavioral needs, and to access adult day or employment funding. We will get into more detail in my conference workshop.
Can you explain what the change to all waivers being self-directed means?
There are a couple of concepts here. First, there is person-centered planning which in some form applies to all waivers. This planning allows the person to have active input into how services will be provided. Secondly, self-direction is a process in which participants actually direct their services which can include both budget and employer authority (or both). Self-direction means the consumer or a representative has decision-making over certain services and takes direct responsibility to manage their services with the assistance of the support system. For example, this means the authority to recruit, hire, train, and supervise individuals who furnish services. Evidence indicates that individuals who direct their own care have fewer unmet needs, plus more positive health outcomes and quality of life. Recent HB 64 increases this opportunity and will require changes to all Ohio Medicaid waivers which will be forthcoming.
What direction would you give parents who are seeking a waiver?
First, we need to understand what waiver programs their minor or adult child may be eligible for and then analyze which may be the best avenue - the Ohio Home Care waiver or a DD waiver. Second, I would always encourage the family to contact the county DD board, which can be very helpful. Third, assuming we think the child will be eligible, we need to present the information to the appropriate Medicaid review agency to get the process started. There is no guarantee of a waiver, but in many circumstances, it will be offered to meet an unmet need.
People who come to your session this June will learn how to identify and protect their benefits when experiencing disenrollment in the Medicaid waiver program or a reduction in services. What advice would you give to families right now who may be going through these challenges?
These are very tough, emotional cases. Many times, this support is critical for the family to keep going or to allow one parent to work. It is important to provide all relevant information about the seriousness of the loved one's medical condition and care received at any review. Be sure that providers are documenting all interventions and medical emergencies. For example, a family caregiver may not think to document a seizure because it is commonplace, but lack of documentation could lead to a reduction in services. And if an appeal is necessary, there will need to be supporting medical or nursing evidence, so familiarize yourself with the rules of the waiver and be prepared to talk with the doctor or nurse about them. An attorney can help before the review or application which can avert a denial or reduction, or help with an appeal.
Learn more about John's workshop and our entire conference schedule here.
