Campbell v. STATE, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, No. 74204-9
| Decision Date | 29 January 2004 |
| Docket Number | No. 74206-5., No. 74204-9 |
| Parties | Carmen CAMPBELL, Appellant, v. STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. Savannah Hurd, a minor, through her parents, Chris and Rosene Hurd, Respondent, v. State of Washington, Department of Social And Health Services, Appellant. |
| Court | Washington Supreme Court |
Rebecca Mary Coufal, Spokane, for Appellant.
Carl Perry Warring, Washington State Attorney General, Spokane, Christine Gregoire, Attorney General, Edward J. Dee, Tara Dee Blair, Olympia, for Respondent.
In these consolidated cases a number of challenges are made to the decisions of the Department of Social and Health Services, Division of Developmental Disabilities, that Carmen Campbell (Carmen) and Savannah Hurd (Savannah) are no longer eligible for Division of Developmental Disability (Department) services provided for persons with developmental disabilities. The child in each case was reevaluated upon reaching age six, as required by WAC 388-825-030, and the Department determined that the children's conditions are not developmental disabilities. Prior to age six, Department services are available to a child at risk of developmental disabilities as measured by developmental delays (as defined by WAC-388-825-030(6)(c)); after age six, a child is not entitled to Department services unless his or her condition falls within the definition of a developmental disability. In Carmen Campbell v. Department of Social & Health Services, No. 74204-9, the superior court upheld the determination of ineligibility. In Savannah Hurd v. Department of Social & Health Services, No. 74206-5, the superior court held that Savannah's equal protection rights were violated by application of RCW 71A.10.020 and WAC 388-825-030 because, the court reasoned, there is no rational basis for treating five year olds differently from six year olds.
We hold that the Department correctly determined that Carmen and Savannah no longer qualify for Department services, and that the superior court in Savannah Hurd v. Department of Social & Health Services erred in finding RCW 71A.10.020 and WAC 388-825-030 unconstitutional as applied. Accordingly, we affirm the superior court in Carmen Campbell and reverse the superior court in Savannah Hurd.
On appeal to the Department of Social and Health Services (DSHS) Board of Appeals, the review judge modified the administrative law judge's (ALJ) findings of fact. None of the findings, as modified, have been challenged, and therefore they are verities on appeal. Postema v. Pollution Control Hr'gs Bd., 142 Wash.2d 68, 100, 11 P.3d 726 (2000); Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wash.2d 22, 30, 891 P.2d 29 (1995).
Carmen Campbell was born on June 14, 1994. She has been diagnosed with early onset kyphoscoliosis, also referred to as progressive scoliosis. After unsuccessful treatment at the Shriners Hospital in Spokane, Carmen was referred to Dr. Robert Campbell at CHRISTUS Santa Rosa Children's Hospital in San Antonio, Texas, a founder of the Titanium Rib Project. Due to significant costs anticipated with multiple surgeries, associated after-care, and travel, he would not treat Carmen unless she had insurance. Carmen's mother's insurance carrier initially declined to cover the costs because the treatment was experimental. The United States Food and Drug Administration (FDA) has since approved the Titanium Rib Project and there are over 100 children nationwide participating in the project at three sites— San Antonio, Boston, and Philadelphia.1
Carmen's mother then applied to the Department for services for Carmen. Carmen was determined to be eligible because she had developmental delays and was under six. As a result, Carmen also became eligible for Community Alternative Program Services (CAP services), which allowed her to receive medical coupons (Medicaid) without regard to her mother's income. Carmen's mother's income is too high for Carmen to be eligible for supplemental security income (SSI) benefits.
Carmen had undergone 13 to 14 surgeries by the time of the administrative review, roughly twice a year, and is expected to need about two surgeries a year until her growth ceases. Carmen has also been diagnosed with thoracic insufficiency and asthma, both secondary to her progressive scoliosis, heart irregularities (not serious), some hearing loss, and vision problems. She attends a private school and is "age appropriate in her physical and academic development." Clerk's Papers (CP) (Findings of Fact 10) at 10.
Carmen's original eligibility for Department services and thus CAP services and the CAP waiver, was based upon being under six and suffering from developmental delay. Under DSHS rules, and RCW 71A.10.020, her continued eligibility depends upon her having a developmental disability as defined in the statute and in WAC 388-825-030 once she reached age six. In June 2001, the Department began the required review of Carmen's eligibility. On July 2, 2001, the Department advised her mother that Carmen's medical condition no longer qualified for Department services.
Carmen's mother filed a request for an administrative hearing. In the initial decision, the ALJ concluded that the Department had not reviewed sufficient medical information to deny eligibility and ordered the Department to continue eligibility. The Department filed a petition for administrative review. On October 26, 2001, the DSHS Board of Appeals issued its decision reversing the initial decision. On November 7, 2001, Carmen's mother filed a petition for review of the administrative decision in Spokane County Superior Court. The court determined that under RCW 71A.10.020(3) and WAC 388-825-030 the Board properly concluded that Carmen is not eligible for Department services and denied the petition.
Carmen's mother, on behalf of Carmen, appealed to the Court of Appeals pursuant to RCW 34.05.526. That court linked the case with Savannah Hurd v. Department of Social & Health Services and certified both cases to this court, which accepted certification and consolidated the cases.
The ALJ's findings of fact in Savannah Hurd are unchallenged, and therefore are verities on appeal. Postema, 142 Wash.2d at 100, 11 P.3d 726; Hilltop Terrace Homeowner's Ass'n, 126 Wash.2d at 30.
At the time of the hearing, Savannah was a seven-year-old girl suffering from congenital scoliosis, kyphosis, and thoracic insufficiency syndrome. Congenital scoliosis is a lateral deviation from the normally straight line of the spine; kyphosis is an abnormally increased convexity in the curvature of the spine (hunchback); and thoracic insufficiency syndrome is the inability of the thorax to support normal respiration or lung growth, in Savannah's case secondary to progressive scoliosis. She also suffers from clubfoot, which has been partially resolved through surgery, and some nondisabling nerve damage to her left arm as a result of one of her surgeries. Savannah was, like Carmen, admitted to Dr. Campbell's project and underwent the titanium rib procedure. At the time of the hearing, Savannah had undergone 14 surgeries and would require these surgeries until age 14 to 16 or until she ceases to grow. Her prognosis is good with continuing surgical treatment. Without the surgeries, she would probably not be alive or would "most certainly [be] a severe pulmonary crippled child, confined to a respirator." Admin. R. at 48 (). Savannah "is not cognitively impaired," and she is not enrolled in any special education classes. Admin. R. ( of Fact 6) at 3.
Savannah was found to be eligible for Department services under the same criteria as Carmen—she was under six and suffered from developmental delay; thus, she was also eligible for CAP services and the waiver of requirements for eligibility for medical benefits (Medicaid). Her mother's insurance pays for 80 percent of the medical expenses. Savannah's parents earn too much for her to qualify for SSI.
In June 2001, the Department initiated review of Savannah's eligibility for continued Department services and determined that she was no longer eligible. Savannah's parents appealed to the DSHS Board of Appeals. The review judge noted their concession that the ALJ's findings of fact were accurate and that the conclusions of law were legally correct,2 and concluded that there was no basis to modify the Initial Decision.
Savannah's parents petitioned for review of the administrative decision in Spokane County Superior Court. The superior court reversed the Board of Appeals' decision. It entered findings stating that Savannah is, by "any dictionary definition," developmentally disabled and her disability, although orthopedic, will become neurological if untreated because of unavoidable impingement of the spinal cord. CP at 75 (Findings of Fact 2.11, 2.12). As explained below, these findings are irrelevant, as well as inaccurate. The superior court also held that RCW 71A.10.020(3) and WAC 388-825-030 are unconstitutional as applied to Savannah because "there is no rational basis for treating [a] five year old differently from six year olds in this case." CP at 75 (Conclusion of Law 3.4). The Department appealed. The Court of Appeals linked the case with Carmen Campbell v. Department of Social & Health Services and certified both to this court, which accepted certification and consolidated the cases.
Most of the issues raised are common to both cases, while one issue is not. We address the common issues first.
Title 71A RCW governs the provision of services to individuals with developmental disabilities. Services may be provided to "eligible" individuals. RCW 71A.18.020. A person is eligible...
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