Borgueta v. Rhode Island Department of Human Services
| Decision Date | 02 May 2013 |
| Docket Number | C.A PC 2010-5813 |
| Parties | BETHANY BORGUETA, on behalf of JACOB BORGUETA v. RHODE ISLAND DEPARTMENT OF HUMAN SERVICES |
| Court | Rhode Island Superior Court |
For Plaintiff: Anne M. Mulready, Esq.
For Defendant: Gail A. Theriault, Esq.
Bethany Borgueta (Appellant), on behalf of Jacob Borgueta (Jacob) appeals a decision (the "Decision") of the Rhode Island Department of Human Services (DHS), denying Jacob's application for Medical Assistance (MA) benefits under the "Katie Beckett" option.[1] Appellant argues that the Decision is affected by error of law and is arbitrary and capricious because the agency applied incorrect standards and ignored evidence in the record when denying Jacob's application. Appellant also contends that her constitutional and statutory rights were violated because the content of DHS's denial notice was defective. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
Jacob was born without complication on October 10, 2008, but at seven months old was diagnosed with "Right Hemiparesis Seizure Disorder and Left MCA Infarct[ion]."[2] (Dec. at 7.) As a result, Jacob suffers seizures, "has significant cognitive, gross motor, fine motor and expressive communication impairments[, ] [and] limited peripheral vision on the right side of his eyes."[3] (Brown Letter, June 2, 2010 at 1); (EI Letter, June 14, 2010 at 1.) Jacob takes medication to help control his seizures[4] and is a candidate for surgery to disconnect the malformed left hemisphere of his brain from the functional right hemisphere.[5] (Brown Letter, June 2, 2010 at 1.)
Since July 2009, Jacob has also received multiple therapies from EI[6] designed to "help Jacob function with as much independence as possible in his natural environment." (EI Letter, June 14, 2010 at 1.) In particular, EI provides Jacob with physical therapy services once a week occupational therapy services twice a week, and speech therapy services once a week[7] See id Jacob has also undergone one round of "constraint therapy"[8] and begun weekly aquatic therapy sessions. See Hr'g Tr. at 22. Jacob's family members participate substantially in the provision of these services along with EI's practitioners. See id at 18-24.
Appellant applied for "Katie Beckett" assistance on December 16, 2009. (Hr'g Tr. at 5.) DHS denied Jacob's application by written notice dated March 12, 2010, determining that Jacob was "not aged (65 years or older), or blind, or permanently disabled (RI DHS Manual, Sections 0306.05.05 (aged), 0306.05.10 (blind), 0306.05.15 (permanently disabled)) . . . ." (DHS Notice, March 12, 2010 at 2.) However, the notice further stated that "[a]s of today, the [medical] information we have is insufficient to determine [Jacob's] eligibility, " and requested that Appellant send additional medical records within thirty days so that Jacob's application could "be returned to the Clinical Team for review." Id. at 3.
On March 17, 2010, Appellant appealed DHS's denial and requested an Administrative Hearing (the "Hearing"). (Hearing Request Form, March 17, 2010 at 1.) Appellant authorized the release of additional medical records of Jacob's on April 15, 2010. (Medical Information Release Form, April 15, 2010 at 1.) DHS obtained the additional medical information and began reassessing Jacob's "Katie Beckett" application on April 19, 2010. (Katie Beckett Fax Sheet, April 19, 2010 at 1.)
Appellant received written notice of DHS's subsequent denial attached to her Hearing notice. (Hr'g Tr. at 27.) This second denial notice informed Appellant that Jacob met the federal definition for "disability, " but denied his application because he did not require a sufficient "level of care" warranting "Katie Beckett" assistance. Id. DHS did not cite or reference in the second notice any federal or state regulations or policies supporting its decision to deny Jacob's application. Id.
The Hearing was held before Hearing Officer Michael J. Gorman (the "Hearing Officer") on June 3, 2010. (Dec. at 1.) Appellant was represented by attorney Anne Mulready (Mulready), and the agency presented DHS Senior Medical Care Specialist Jack Demus (Demus) and DHS Pediatrician Dr. Seth Asser, M.D. (Asser). (Hr'g Tr. at 2.)
Asser testified that "[t]here are two sets of criteria used to determine eligibility for medical assistance [under the] Katie Beckett [option]." Id. at 4. He stated that the first requirement "is disability according to [the] Social Security guidelines, " and that there was "[n]o question that Jacob meets that criterion." Id. Asser stated that the second requirement "is level of care, " meaning that "[the child must] be getting care at home that is ordinarily the kind of care that is provided . . . for people who are so disabled they are totally one hundred percent dependent on others to take care of them." Id. Asser represented that for children seeking "Katie Beckett" assistance, the level of care criteria were age dependent and "also based, at least to some degree[, ] on . . . the range of [developmental] expectations children have . . . ." Id.
Asser then noted Jacob's particular medical diagnoses and history and concluded that "the kind of issues that Jacob has are not the kind of things that are ordinarily addressed in a comprehensive, complete way in a rehab facility or nursing home." Id. at 5. He explained that while the therapies Jacob receives are among the types of care utilized in medical institutions, "you have to be getting a twenty-hour (sic), seven day a week comprehensive plan with professional input, done by professionals, to meet that level of care." Id.
When questioned by Mulready regarding the regulations applicable to his assessment of Jacob's case, Asser pointed to DHS's "Katie Beckett Level of Care Criteria Guidelines" (the "Guidelines"). Id. at 7. Asser represented that "there are three or four different [levels of care] . . . listed in the [Guidelines]." Id. The first level of care is "hospital level of care and that's . . . complex monitoring, immediate medical assessment, [and] provision of immediate services." Id. The second level of care is "psychiatric hospital[, ] which doesn't apply [here]." Id. The third level of care is "intermediate care facility for the mentally retarded ("ICF/MR") . . . [which is for] people who are intellectually disabled with IQ's below 70 . . . [and that level of care] generally doesn't apply." [9] Id. Asser stated that the fourth level of care, "nursing facility, " was "the applicable area" in this case. Id. He explained that this level of care constituted "specialized professional training and monitoring beyond those ordinarily expected [of parents], " and "Jacob isn't getting those kinds of services." Id.
Mulready disputed Asser's descriptions of the "Katie Beckett" eligibility requirements in the Guidelines and his conclusions thereunder. Id. at 8. In particular, Mulready asserted that an applicant satisfies the requirements for the "ICF/MR" level of care when the applicant is either "developmentally disabled . . . [or] mentally retarded, " and receives "active treatment" as defined by federal law. Id. at 8-9. Mulready contended that "this is the level of care criteria for which . . . Jacob falls under" because he was "developmentally disabled" and his EI therapies constituted "active treatment." Id. at 9. Mulready also requested that the record remain open after the Hearing concluded to allow Appellant to file additional materials in support of her arguments.[10] Id. at 25.
The Hearing Officer issued the Decision on September 8, 2010, affirming DHS's determination that Jacob was ineligible for "Katie Beckett" assistance. (Dec. at 1.) After reviewing the evidence and testimony submitted by the parties, see id. at 2-6, the Hearing Officer outlined the two-prong standard for determining a child's eligibility for "Katie Beckett" assistance: the child must be "disabled" as defined by federal law and receiving a sufficient level of care as enumerated in the Guidelines. Id. The Hearing Officer found that Jacob satisfied the first requirement because "[t]here is no dispute from the agency that the child's medical condition does meet the Social Security Disability criteria." Id. at 11.
The Hearing Officer noted that the remaining issue on appeal was whether "the appellant meets the [level of care] criteria of the Katie Beckett Program." Id. at 7. He stated that under the Guidelines, the level of care criteria applicable to this case were those for "a Hospital, Nursing Facility, [and an] [ICF/MR]." Id. at 11. With regard to the "Hospital" level of care, the Hearing Officer noted that "[these] criteria . . . include . . . [s]killed observation . . . skilled assessment[, ] and intervention multiple times during a 24-hour period." Id. at 11-12. The Hearing Officer determined that "[t]he medical record does not support [Jacob's] need" for this level of care. Id. at 12.
The Hearing Officer found that the "Nursing Facility" level of care encompassed a number of factors, including the need for "complex skilled nursing care or comprehensive rehabilitative interventions throughout the day[, ] specialized professional training and monitoring beyond those ordinarily expected of parents[, ] . . . skilled observation and assessment several times daily due to significant health needs[, ] . . . [and] complex care management that substantially exceeds age appropriate assistance." Id. The Hearing Officer further noted that to be eligible for this level of care, "[t]he child would need to have unstable health, functional limitations, complicating conditions, cognitive or behavioral problems, or be medically fragile . . . [and the] child's routine...
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