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VOL. 124 | NO. 215 | Monday, November 2, 2009

The Best of the Worst: One Patient's Survival Story

By Rebekah Hearn

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"We were intimidated by the state and didn't know the right path to take," said Linda Fann, left.  Fann's daughter, Jacqueatha Phillips, recently won an appeal to get back some of her health care. -- PHOTO BY LANCE MURPHEY

When Linda Fann found out her 39-year-old daughter, Jacqueatha Phillips, who was born with spina bifida and is covered under TennCare’s Medically Needy Spend Down category, was facing service cuts, she took matters into her own hands.

Fann went out and became certified as a personal needs assistant (PNA) so she could stay home and take care of her daughter. But TennCare, which had been paying for 16 hours of care every day for Phillips, attempted to cut her hours down to four a day, five days a week.

“I went through all the training and I was hired by a local agency here in Memphis and I served as her PA. And it was a wonderful situation, because I then could be at home with her,” Fann said.

Phillips also has kidney stones, for which she had several surgeries. She needs catheters and someone to help maintain her medications.

In December 2008, Fann said they learned that TennCare intended to cut Phillips’ services.

“They said, ‘We think that you are Mom, and we feel as though you are doing things Mom should do, and the state not compensate you for it,’” Fann said. “And if anything, her medical situation had gotten worse. She’s now on oxygen 24/7 and she’s been through three surgeries (for infected kidney stones). She’d had pneumonia again. Nothing had decreased in reference to her needs; if anything, it had increased.”

Fann said she was “naïve” in that she’d never gone through the appeals process before, and didn’t know her daughter was entitled to an in-person hearing. TennCare then gave them a date for their first conference call, during which a TennCare nurse said, based on Phillips’ diagnosis, her appeal was denied.

“I said, ‘You don’t have all the facts. You’ve got to get all her medical records.’ And they said they would do that,” she said.

Phillips’ service was continued.

At the second conference call, the attorney who talked to them the first time was not available, and the second attorney “had absolutely no idea” about Phillips’ situation, Fann said.

“We actually had a judge on the call at that point, and the judge said, ‘I’m sorry, I was unprepared; I didn’t know the previous attorney was supposed to get these medical records.’ So it was postponed a second time.”

After another call from the attorney’s assistant asking for Phillips’ medical records from her primary care doctor and nothing more, Fann said she knew something wasn’t right. She had read about legal help through Memphis Area Legal Services Inc., and she contacted MALS’ director of pro bono projects, Linda Warren Seely, who took on the case. Seely advised her to postpone her next scheduled conference call, as Phillips was seeking legal representation and it couldn’t be in place soon enough for the coming call.

“They immediately jumped on that,” Fann said, with the state arguing the case had been continued too long. However, they still didn’t have all of Phillips’ medical records.

“That was my ace in the hole,” she said.

Finally, Fann had a court hearing in Memphis, where Seely advised her to take the stance that having Fann care for her daughter saved the state a significant amount of money.

“If Linda weren’t there to take care of Jacqueatha on a full-time basis, TennCare would have to pay a nurse to come in,” Seely said. “And you’re like, ‘Excuse me? Mom went out and got this certification so she could make sure she could care for this young woman in her home; she performs the same duties as a nurse. You don’t have to haul someone else out there.’”

With the help of two interns, Diana Comes and Haavi Morreim, Seely was able to take the case in July, at which point Seely said TennCare “still had never talked to Jacqueatha’s physician.”

“So, fortunately, we were able to get him to provide an affidavit that was submitted with everything – and I think the combination of having all the medical records, having the physician’s affidavit and having Linda and Jacqueatha’s testimonies really did make a big difference for the judge,” Seely said. “She was very sympathetic.” (The case was heard on administrative appeal, not in a court of record.)

The judge ruled that Phillips should keep her 16 hours of care, seven days a week.

However, a statutory authority allows TennCare to override even a judge’s ruling, which is what happened in this case. TennCare ended up allowing Phillips to keep 11 hours of care a day rather than 16 hours.

An e-mail from Seely to Fann dated Aug. 26 reads: “Received decision. Judge reversed TennCare denial of requested services. TennCare Bureau has until 9/3 to request a reconsideration. ... I am thrilled!”

The judge considered Seely’s argument that if Fann was not her daughter’s PA, Phillips would need a nurse and the services of another PA through TennCare.

Even though TennCare reached down and overrode the judge’s ruling, Seely said her position was, “Let it go.”

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