Appeal type: Medical necessity
Decision: Overturned

Diagnosis: Tracheostomy Dependent
Treatment: Increase in private duty nursing services in the home; by LPN per hour from 112 hours /per week to 24 hours per day-split shift by LPN
The insurer denied an Increase in private duty nursing services in the home; by LPN per hour from 112 hours /per week to 24 hours per day-split shift by LPN
The determination is overturned.

The patient has a past medical history of a tracheostomy with ventilator dependence, hypotension, hypothyroidism, severe kyphosis with chronic hypercapnic respiratory failure, paroxysmal atrial fibrillation, hearing loss, anxiety, urinary incontinence, and stool incontinence who had been hospitalized last year with a plan to return to home with services. The patient had a telephonic assessment performed assessing the patient at total assistance with all tasks except managing finances, managing medication, dressing upper body, and bed mobility for which she was assessed at maximum assistance. Tasks of walking, locomotion, and transfer toilet were noted as "activity did not occur".  Notes from this assessment stated the patient lived with her daughter in a two story home. The patient was hospitalized with acute on chronic hypercapnic respiratory failure, urinary tract infection (UTI), and aspiration pneumonia.
The insurer sent an initial adverse determination denial notice stating partial denial of a request for private duty-licensed practical nurse (LPN) services 24 hours per day, live-in, 7 days per week, but approved 112 hours /per week. This denial stated the patient currently resided with her daughter who had been trained and was able to perform and provide the patient's skilled needs. In addition, the denial stated state private duty criteria require that family and other caregivers should routinely provide hands on care to maintain their general care skills, and assure they are competent in providing back up care when the nurse is unavailable. Lastly, this denial stated private duty LPN care 16 hours/per day, 7 days/ per week was sufficient to meet the current daily skilled care needs and would be supplemented with the consumer directed personal care services to assist with the patient's personal care needs.
The patient underwent a telephonic assessment assessing the patient at total assistance with all tasks except managing finances, managing medication, and bed mobility for which she was assessed at maximum assistance. It was noted "activity did not occur" for tasks of walking, locomotion, and transfer toilet.
The plan sent initial adverse determination denial notice stating there was now a request to increase private duty, LPN services 24 hours/ per day, split-shift, 7 days/ per week and services would continue at 112 hours/ per week. The denial also stated the patient's needs could safely be met with the patient's current 112 hours/ per week of LPN services along with 56 hours/ per week of personal care assistant (PCA) services.
The patient's daughter provided a letter stating the patient is not capable of calling for help in any circumstance, of indicating when she needs suctioning, when she is in respiratory distress, or experiencing pain or discomfort. The daughter's letter further stated the patient lives with her and the daughter was trained in her care, in case a nursing shift could not be covered but as a busy mother, with several young children to care for, she could not be responsible to sit at her bedside 8 hours/ per day, 7 days/ per week and since the patient cannot communicate that is the only way to keep her safe and prevent her demise. The patient's primary care physician (PCP) provided a letter stating the patient is at constant risk of choking and aspiration and requires 24 hours of skilled nursing care daily.
The insurer sent a final adverse determination denial notice denying request to increase private duty LPN services to 24 hours/ per day, split-shift, 7 days/ per week stating the service was not medically necessary. The denial letter also stated "according to the New York Medicaid Guidance for private duty nursing (PDN) in the home, PDN services are provided to support the skilled care provided by the member's family or other responsible caregivers. It is not meant to replace that care. The family and other caregivers must be able and willing to routinely provide hands-on care to the member". The denial further stated the patient currently had PDN and PCA services and they cannot happen simultaneously as this would be considered a duplication of services. The patient's primary care physician (or provider) (PCP) provided another letter stating the patient is currently on a ventilator via tracheostomy, suffers from chronic hypercapnic respiratory failure/restrictive airway disease due to severe kyphoscoliosis, her condition necessitates nebulizer treatment and suctioning at regular times throughout the day, and requires continuous monitoring of blood pressure and administration of appropriate medication. The PCP letter also stated respiratory deterioration can occur rapidly if a mucous plug develops which requires spontaneous suctioning and treatments and alarms could be triggered on the various machines which would require the interventions of skilled nurse including adding air to a leaking tracheostomy cuff, securing the circuits and sensors on the ventilator, and in case of emergency, delivering oxygen manually via an ambu-bag. There are multiple letters from Guardians of the Sick stating coverage with skilled nursing for the other 56 hours/ per week.
The patient's daughter provided a letter stating they do not expect the 56 hours of PCA services covered by the insurer to continue if/when she is approved for 24 hours of LPN care. The letter further stated the approval is urgently needed as, due to work and family responsibilities, no one is available to physically be the patient's nurse on a daily basis. 
The insurer provided a letter stating "per New York State (NYS) Medicaid guidelines on PDN 'the intention of PDN services is to support-not replace-the skilled care provided to a members by parents, family, and other responsible caregivers. Commitment by the family and community are necessary to meet the member's needs and to ensure the member can remain safely at home. Family and other caregivers should routinely provide hands on care to maintain their general care skills, and assure they are competent in providing backup care when the nurse is unavailable. To authorize increased PDN hours, the specific reason for the request; a letter of medical necessity specifying what has changed for the member; and the back up caregiver's assumption of responsibility is required. Also, while you can have both PCA and PDN services, they cannot happen simultaneously, as PDN does both skilled and unskilled service and having then in the home simultaneously would constitute a duplication of services. Hours must be submitted to make sure this is not happening simultaneously".
The patient's advocate sent a letter to initiate an external appeal on behalf of the patient. The letter stated the patient lives with her daughter and son-in-law, the son-in-law worked full time and he and the patient's daughter are raising several children. The letter stated the patient is able to direct her care but speech is impaired by a tracheostomy. The advocate letter stated the federal Medicaid statute require that all managed care plans make services available to the same extent they are available to recipients of fee-for-service Medicaid, which state "private duty nursing services are nursing services for Medicaid members who require more individual and continuous skilled nursing care than is available from a certified home health agency ("CHHA"). A CHHA may provide nursing services only on a part-time or intermittent basis, generally fewer than two hours per service authorization. A Medicaid member may be appropriate for private duty nursing services if he or she requires nursing services that exceed the amount and scope of nursing services that a CHHA may provide. Private duty nursing services are not warranted for non-skilled tasks, such as, but not limited to, turning and positioning, ambulation, transferring, bathing, toileting, oral feeding, dressing, and household chores". The advocate letter also presented information from the private duty nursing provider policy manual 3.2 and 3.3 with 3.2 stating "the intention of PDN services is to support-not replace- the skilled care provided to a member by parents, family, and other responsible caregivers. Commitment by the family and community are necessary to meet the member's needs and to ensure the member can remain safely at home" and 3.3 stating "backup caregivers will need to be identified for use when a nurse is not available. Family and other caregivers should routinely provide hands on care to maintain their general care skills, and assure they are competent in providing backup care when the nurse is not available". The advocate stated the verbiage from sections 3.2 and 3.3 can only be fully understood when read alongside the expectations placed on back up caregivers explained in section 6.13 of the same private duty nursing policy manual stating "at least one trained backup caregiver must be identified by the member. It is recommend that there be a second caregiver identified for instances where the backup caregiver is unavailable because of: illness, emergency, or occasional respite for the backup caregiver. Caregivers must be trained and available to provide care in the home during the absence of private duty nurse and as required by the member's medical status". The advocate argues backup care is to serve as backup only, and family cannot be forced to be the nurse, noting this was established long before NYS required community based long term care patients to access services through managed care plans. The advocate letter stated the plan improperly claimed that family is required to provide nursing care whenever the nurse is not present, including during the 8 hours/day the plan decided, arbitrarily, to not provide nursing care. In addition, the advocate letter stated "plan insisted that member's daughter serve as the nursing during the remaining hours in violation of the state mandate, and the plain terms of the current PDN manual cited to above, which prohibit compelling the backup to take on a nursing shift". The advocate cited the PCP's letter stating the patient requires nursing assistance 24 hour/ per day, stated the plan did not properly evaluate the contribution of informal support in the authorization of PDN care by compelling the backup caregiver to take a nursing shift, in violation of longstanding State-mandated standards, stated the patient needs PDN care during the 8 hours/ per day in question, and not a PCA as the plan suggests, and noted the requested services were medically necessary according to New York State Social Services Law and New York State Insurance Law. At issue is the medical necessity of an increase in private duty nursing services in the home; by LPN per hour from 112 hours /per week to 24 hours per day-split shift by LPN.
Question(s):
The patient has documented 24 hour skilled nursing care needs as outlined by the patient's PCP in his two letters. The patient is at risk for mucous plugging, air leak from trach cuff, and alarm triggers, all of which would require quick intervention with a skilled nurse. Per the private duty nursing policy manual an increase in hours is considered for parent, guardian, or caregiver respite, increase in member acuity, temporary absence or limitation of the backup caregiver or other instances where the member would need additional hours of services. Per the daughter and the advocate, the primary caregiver is unavailable due to "another event", specifically work (the patient's son-in-law) and child rearing activities (the patient's daughter and son-in-law), which are cited as a reason for and increase in PDN hours as well, documented by the PCP's letter and the daughter's letter that the patient has a change in medical condition and social circumstance that warrant the increase. The daughter is available to provide backup care when the skilled nurse is not available. The plan determined the patient would have PCA services 8 hours/ per day even though the patient requires skilled nursing services 24 hours/ per day. There are social circumstances with the family and caregivers that they are unable to provide informal care 8 hours/per day, 7 days/ per week but are available to provide backup skilled care in the event of PDN unavailability but should not be relied on a daily basis, 8 hours/ per day, 7 days/ per week. Taking into account the plan's clinical standards, all information provided regarding the patient, the attending physician's recommendations, and the applicable and generally accepted practice guidelines, the requested services 24 hours/ per day, split-shift, 7 days/ per week by LPN is medically necessary.