Winning the War, but the Battle Never Ends: Keeping Services Once You Get Your Individual Options Waiver

August 27, 2019

student defenseSecuring and keeping your Individual Options Waiver (or IO Waiver, for short) can be a grueling campaign. But even when you win the war to obtain an IO Waiver, you can still end up fighting to keep necessary services. This process can be both disheartening and frustrating for many families who care for those with significant disabilities.

For example, those with severe disabilities may need private duty nursing services (“PDN services”) under their IO Waiver. These nursing services are delivered by either a registered nurse or a licensed practical nurse, and are provided under an IO Waiver only when “medically necessary.” The Ohio Department of Disabilities (“DODD”) authorizes PDN services in one year increments and annually re-evaluates if the PDN services are needed. Unfortunately, in determining whether PDN services are “medically necessary,” the DODD often substitutes financial considerations for sound medical judgment.

It is significantly cheaper for DODD to pay for homemaker/personal care providers (“HPC providers”) than for registered or licensed practical nurses. While RNs and LPNs receive years of medical training, HPC providers must meet only the most minimal qualifications to provide care and deliver life-saving medications. An HPC provider with Category 1 Certification needs only to be 18 years old, have a GED and complete 14 hours of in-classroom instruction and obtain a background check. HPC providers with Category 2 Certification need only to have a Category 1 Certification, plus an additional four hours of in-classroom education. While those who do not have significant disabilities may only require services from HPC providers, the results can be serious, if not fatal, if DODD denies PDN services for those who require advanced medical care.

It is important for families to take seriously the annual review process, and preparation is strongly recommended. Families should document why certain expensive services are critical to maintain care.

Finally, just because DODD denies certain services under an IO Waiver does not mean that families must accept this wrong decision. Families of those with disabilities may appeal denials and request a state hearing with the Ohio Department of Jobs and Family Services. The process for the appeal is governed by Chapter 119 of the Ohio Revised Code and Chapter 5101:6 of the Ohio Administrative Code. The steps can be complicated, as specific deadlines must be met, or even the most meritorious appeal can be lost.

We know firsthand how frustrating and scary it is for families struggling to get necessary services for their loved ones. It can be hard to get an IO Waiver, and the fight doesn’t end there. Instead, families must be vigilant and prepared for each annual review and everything that may result. Having an experienced attorney by your side can help at all levels of obtaining and keeping necessary services. There may be another battle, but you don’t need to fight it alone.

If you have any questions or would like to learn more about KJK’s Student & Athlete Defense practice, please contact Susan Stone at scs@kjk.com or 216.736.7220, or Kristina Supler at kws@kjk.com or 216.736.7217.