Bills v. Hardy, 101420.

• Decision Date: 18 November 2011
• Docket Number: No. 101420.,101420.
• Citation: 228 W.Va. 341,719 S.E.2d 811
• Parties: Michael BILLS, a minor by his next friend and mother, Ellen Bills, Petitioner Below, Petitioner v. Patsy A. HARDY, in her official capacity as Secretary of the West Virginia Department of Health and Human Resources; and Todd Thornton, in his official capacity as State Hearing Officer for the West Virginia Department of Health and Human Resources, Respondents Below, Respondents.
• Court: West Virginia Supreme Court

228 W.Va. 341

719 S.E.2d 811

Michael BILLS, a minor by his next friend and mother, Ellen Bills, Petitioner Below, Petitioner

v.Patsy A. HARDY, in her official capacity as Secretary of the West Virginia Department of Health and Human Resources; and Todd Thornton, in his official capacity as State Hearing Officer for the West Virginia Department of Health and Human Resources, Respondents Below, Respondents.

No. 101420.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 2011.Decided Nov. 18, 2011.

Syllabus by the Court

1. “This Court applies an abuse of discretion standard in reviewing a circuit court's certiorari judgment.” Syl. Pt. 2, Jefferson Orchards, Inc. v. Zoning Bd. of Appeals, 225 W.Va. 416, 693 S.E.2d 781 (2010).

2. Under West Virginia Code § 29A–1–3(c) (2007), the Administrative Procedures Act does not apply to contested cases involving the receipt of public assistance.

3. “A writ of certiorari in the Circuit Court of Kanawha County is the proper means for obtaining judicial review of a decision made by a state agency not covered by the Administrative Procedures Act.” Syl. Pt. 2, State ex rel. Ginsberg v. Watt, 168 W.Va. 503, 285 S.E.2d 367 (1981).

4. “On certiorari the circuit court is required to make an independent review of both law and fact in order to render judgment as law and justice may require.” Syl. Pt. 3, Harrison v. Ginsberg, 169 W.Va. 162, 286 S.E.2d 276 (1982).

5. “Upon the hearing of ... [a] writ of certiorari, the circuit court is authorized to take evidence, independent of that contained in the record of the lower tribunal....” Syl. Pt. 4, in part, North v. West Virginia Bd. of Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977).

Benita Whitman, Bruce Perrone, Legal Aid of West Virginia, Charleston, WV, for the Petitioner.

Darrell V. McGraw, Jr., Attorney General, Michael Bevers, Assistant Attorney General, Bureau for Medical Services, Attorney for the DHHR Charleston, WV, for the Respondents.

McHUGH, Justice:

Michael Bills appeals from the June 24, 2010, order of the Circuit Court of Kanawha County affirming the decision of the Respondent West Virginia Department of Health and Human Resources (“DHHR”) that Petitioner was not eligible for the Mentally Retarded/Developmentally Delayed Home and Community–Based Waiver Program (“Waiver Program”). ¹ As grounds for his appeal, Mr. Bills asserts error based on the trial court's application of an incorrect standard of review and the DHHR's failure to adopt a standard for the purpose of determining whether an individual has substantially limited functioning in the major life area of self-direction.² Upon our review of this matter, we determine that the trial court committed error by failing to make an independent review of Petitioner's eligibility for participation in the Waiver Program. Accordingly, the decision of the lower court is reversed and remanded.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, who has a diagnosis of severe autism, has been participating in the Waiver Program since 2000. The Waiver Program allows the State to provide both in-home and community-based services to qualifying individuals at the level of care that would otherwise be provided in an intermediate care facility for the mentally retarded.³ To participate in the Waiver Program, an applicant must have either a diagnosis of mental retardation or a related development condition that constitutes a severe and chronic disability, such as autism,⁴ which manifested prior to the age of twenty-two and is likely to continue indefinitely. In addition to a qualifying diagnosis, an applicant for the Waiver Program must have “substantially limited” functioning in three or more major life areas. The federally-designated life areas ⁵ include: self-care; receptive or expressive language (communication); learning (functional academics); mobility; self-direction; and capacity for independent living. See 42 C.F.R. § 435.1009 (2010).

In response to Petitioner's application for continued benefits,⁶ the DHHR undertook a reevaluation of Petitioner's eligibility to participate in the Waiver Program. Based on its determination that Mr. Bills did not demonstrate substantial adaptive deficits in three or more major life areas, the DHHR issued a Notice of Termination on January 13, 2009. According to the notice, Petitioner's submitted documentation indicated a substantial limitation in only one life area: self-care.

On August 26, 2009, a hearing was held before State Hearing Officer Todd Thornton to review the DHHR's proposed decision to end Petitioner's participation in the Waiver Program. At the hearing, the State stipulated that Mr. Bills was substantially limited in two life care areas: self-care and capacity for independent living. Despite the testimony that was offered on Petitioner's behalf at the hearing, the DHHR maintained its position that Petitioner had failed to demonstrate substantial limitation in a third life area. By decision issued on October 21, 2009, the Hearing Officer Thornton upheld the DHHR's decision that the documentation submitted on behalf of Mr. Bills did not support a finding of medical eligibility for the Waiver Program based on his demonstration of qualifying functionality (i.e. “substantial limitation”) in only two life areas.

Critical to the Hearing Officer's decision that Petitioner failed to meet the requisite level of functionality in the area of self direction were Petitioner's scores on two separate testing instruments.⁷ Both instruments purport to measure Mr. Bills' adaptive behavior using the Adaptive Behavior Scale–School, second edition, or ABS–S:2 (“ABS”).⁸ Based on his IQ, the non-mental retardation norms were used for purposes of evaluating the results.⁹ On both of these testing instruments, which were prepared based upon responses provided by Petitioner's mother, Mr. Bills falls at the first percentile for purposes of self-direction. This ranking places him above the designation for qualifying as “substantially limited” as he needed an adaptive behavior score of either three standard deviations below the mean or less than one percentile.¹⁰

In addition to the scores on these testing instruments, the hearing officer looked to the narrative descriptions that were included in the documents submitted by Petitioner. In his decision, Hearing Examiner Thornton cited to the following excerpt from the September 30, 2008, psychological evaluation: “He enjoys discussions related to his perseverative topics.¹¹ He enjoys playing with pets. He will engage in leisure activities when arranged for him and participates in group activities if encouraged to do so at times.” In addition, the Hearing Examiner referenced the following narrative from an individualized education plan dated April 22, 2008:

Misho ¹² has demonstrated that he is interested in a career involving medical services. He is very interested in hearing about details concerning operations, stitches and emergencies. His interest will take over and he is known to avoid school work by continuing in conversation about his interest. When he becomes behind in his school assignments he will often state that the current class he is taking does not apply to his future in medicine or to work in an ambulance.

Hearing Officer Thornton acknowledged that “[e]xtensive testimony and documentary evidence clearly show that the Claimant [Mr. Bills] is limited with regard to self-direction.” ¹³ Following his observation that policy requires both test scores and narrative to quantify the extent of the limitation, the hearing officer concluded, without additional elaboration, that Petitioner had failed to demonstrate the requisite reduced functionality in the life area of self-direction.

Petitioner sought review of the administrative decision to terminate his participation in the Waiver Program by filing a petition for a writ of certiorari with the circuit court. See W.Va.Code § 53–3–3 (2008). After the petition was granted, Mr. Bills scheduled a hearing before the circuit court ¹⁴ and obtained a stay with regard to the subject termination. Without holding any further proceedings, the trial court undertook its review of the matter. Proceeding from the perspective that it was required to give deference to the agency's factual findings,¹⁵ the trial court essentially restated the findings previously announced by Hearing Officer Thornton. Articulating that “[t]he DHHR has followed a definite procedure that provides standards and guidelines as a proper basis for determining medical eligibility,” the trial court concluded that Petitioner had failed to demonstrate that he was substantially limited in the life area of self-direction. Believing that Mr. Bills was advocating the use of “a different method of testing” by his faulting of the DHHR for failing to adopt policy or regulations which define “self-direction,” the trial court concluded that to do so “would be contrary to law.”

Through this petition for appeal, Petitioner seeks to reverse the circuit court's decision to affirm the DHHR's determination that he is no longer eligible to participate in the Waiver Program.

II. Standard of Review

As we recently held in syllabus point two of Jefferson Orchards v. Zoning Board of Appeals, Inc., 225 W.Va. 416, 693 S.E.2d 781 (2010), “[t]his Court applies an abuse of discretion standard in reviewing a circuit court's certiorari judgment.” When questions of law are presented in the scope of such review, those matters will be reviewed by this Court in plenary fashion. See Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we proceed to determine whether the trial court abused its discretion in affirming the agency's termination decision.

III. Discussion

A. Trial Court's Review

In conducting its review of this matter, the trial court applied the standard of review contained in the Administrative Procedures Act (“APA”). See W.Va.Code § 29A–5–4(g) (2007...