Doe v. S. Carolina Dep't of Health & Human Servs.

Decision Date28 December 2011
Docket NumberNo. 27083.,27083.
Citation398 S.C. 62,727 S.E.2d 605
CourtSouth Carolina Supreme Court


Patricia Logan Harrison, of Columbia, and Stuart M. Andrews, Jr. and Jennifer I. Cooke, Nelson Mullins Riley & Scarborough, both of Columbia, for Appellant.

William H. Davidson, II, and Kenneth P. Woodington, Davidson & Lindemann, both of Columbia, for Respondent.


This appeal presents the question of whether Respondent South Carolina Department of Health and Human Services and its agent, the South Carolina Department of Disabilities and Special Needs (DDSN), “properly ceased Mental Retardation/Related Disability services to” 1 Appellant Jane Doe, a twenty-eight-year-old woman with undeniable cognitive and adaptive deficits. Based on a purported legal standard that the “onset of Mental Retardation must be before the age of eighteen (18) years according to accepted psychological doctrine[,] the Hearing Officer concluded Doe was not mentally retarded. The Administrative Law Court (ALC) affirmed this legal determination, as well as the Hearing Officer's factual findings. Because the decision of the Hearing Officer and ALC is controlled by an error of law, we reverse and remand.


Medicaid is a program through which the federal government, through the Social Security Administration (SSA), provides financial assistance to states so that they may furnish medical care to needy individuals. Wilder v. Virginia Hosp. Assoc., 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). Participation in the program is voluntary; however, participating states must comply with requirements imposed by the Medicaid Act and related regulations. Id. To receive federal funding, a state must submit and have approved a “plan for medical assistance” that describes the nature and scope of the state's Medicaid program. Id. A state's plan must provide medical services for the “categorically needy” and, among other things, must provide services under any option to all Medicaid beneficiaries for whom they are medically necessary. See42 U.S.C. § 1396a(a)(1), (a)(10)(A)(i), (a)(10)(B) (2006); Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 651 n. 4, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003).

Supplemental Security Income (SSI), which is Title XVI of the Social Security Act, provides support for those who are aged, blind, or disabled and subsist on a limited income. 20 C.F.R. § 416.1100 (2011). To receive SSI, a recipient must have a disability such that he cannot accomplish “substantial gainful activity” for profit. 20 C.F.R. § 416.905 (2011). Federal regulations provide that an individual found eligible for SSI is automatically enrolled in the Medicaid program and is entitled to the base level of benefits the state must provide to all Medicaid beneficiaries. 42 U.S.C. § 1396a(a)(10)(A)(i)(II) (2006); 42 C.F.R. § 435.909(b)(1) (2010); Pharm. Research, 538 U.S. at 651 n. 4, 123 S.Ct. 1855.

Since 1981, Medicaid has provided funding for state-run home and community based services (“HCBS”) through a waiver program. For Medicaid-eligible individuals whose medical needs require an institutional level of care, the waiver program provides Medicaid funding to States to provide those individuals HCBS in lieu of institutional care.242 U.S.C. § 1396n(c) (2006); 42 C.F.R. § 441.300 (2010); see Olmstead v. L.C., 527 U.S. 581, 601, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). The waiver program permits an eligible recipient who is mentally retarded to receive Medicaid-funded HCBS, rather than institutional care in an Intermediate Care Facility for the Mentally Retarded (ICF/MR). Once an individual is found eligible for such waiver services, a state must conduct periodic reviews to ensure the recipient still meets the waiver program eligibility requirements. 42 C.F.R. § 441.302(c)(2) (2010).

For purposes of basic Medicaid eligibility, the definition for mental retardation, in relevant part, is as follows:

Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of impairment before age 22.

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05 (2011) (emphasis added). 3


For a state to participate in the Medicaid HCBS waiver program, it must submit a detailed application on a form provided by the federal government describing the group of individuals to whom the services will be offered. 42 C.F.R. § 441.301(b)(3) (2010). For the purpose of defining eligibility for waiver services, a state is free to impose in its waiver application eligibility criteria which are more restrictive than basic Medicaid eligibility requirements. 42 C.F.R. § 441.301(b)(6) (2010).

Based on South Carolina's waiver application, to continue to be eligible to receive HCBS waiver services, a person must meet the following criteria:

1. The person has a confirmed diagnosis of mental retardation or a related disability.


2. The person's needs are such that supervision is necessary due to at least one of the following: impaired judgment, limited capabilities, behavior problems, abusiveness, assaultiveness or because of drug effects/medical monitorship.


3. The person is in need of services directed toward a) the acquisition of the behaviors necessary to function with as much self–determination and independence as possible; or b) the prevention or deceleration of regression or loss of current optimal functional status.

Attachment 1 to Appendix D–3, South Carolina's Mental Retardation/Related Disabilities (MR/RD) Waiver Document (Effective October 1, 2004September 30, 2009).

The second and third eligibility criteria are commonly referred to collectively as “Level of Care.” These criteria describe the minimum services and functional deficits necessary to qualify for Medicaid-sponsored institutional care in an ICF/MR. South Carolina's waiver application provides that Level of Care reevaluations will take place at least every twelve months. 4 Appendix D–2, South Carolina's Mental Retardation/Related Disabilities (MR/RD) Waiver Document (Effective October 1, 2004September 30, 2009). South Carolina's waiver application with the federal government does not include any age-of-onset requirement and reveals no intent to vary from or otherwise limit the group of individuals encompassed by the SSI definition of mental retardation. On the waiver application in effect in 2005, South Carolina checked letter “f,” thereby expressing its intent to provide waiver services to the group identified as “mentally retarded persons and persons with related disabilities.” In addition, where asked whether it would impose any “ addition[al] targeting restrictions” on the provision of waiver services, South Carolina stated “Not applicable.”

In 1990, the South Carolina General Assembly adopted a definition of mental retardation that parallels the SSI definition adopted by the federal government in 1985. See Act. No. 496, 1990 S.C. Acts 2184, 2187; 50 Fed.Reg. 35038, 35068–69 (Aug. 28, 1985). The definition, codified at South Carolina Code section 44–20–30, states that mental retardation is “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.” 5 The term “developmental period” was new to the 1990 definition, and it is upon the construction of that term that this matter largely turns.

DDSN promulgated a regulation which recites the SSI/44–20–30 definition of mental retardation (with only minor changes in phrasing) and defined the term “developmental period” as the period from conception to age twenty-two, consistent with the SSI definition.6 26 S.C.Code Ann. Regs. 88–210(F) (Supp.2010). Thus the definition of mental retardation under state law— Regulation 88–210(F)—mirrors the SSI definition with respect to the age-of-onset requirement. No South Carolina regulation imposes additional diagnostic criteria for mental retardation in the context of waiver services. Nevertheless, DDSN attempted through a “Policy of Determination of Eligibility” to impose more restrictive diagnostic criteria for mental retardation for eligibility for waiver services in the form of an age-eighteen-onset requirement for mental retardation. The policy states:

DDSN evaluates referred individuals in accordance with the definitions of Mental Retardation outlined in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders–Fourth Edition (DSM–IV, 1994) and the American Association on Mental Retardation (AAMR 9th Edition, 1992).

Mental Retardation refers to substantial limitations in present functioning. Diagnosis of mental retardation based on the DSMIV and AAMR definitions requires the following three criteria be met:


3. The onset of mental retardation is before age 18 years.

South Carolina Dep't of Disabilities and Special Needs Policy for Determination of Eligibility Guidelines to Operationalize Eligibility Policy (Effective July 1, 1998) (emphasis added).7


Jane Doe was born on March 24, 1983, the product of an indisputably complicated birth. She was born at thirty weeks gestation, weighing just two pounds, three ounces. At ten months old, she was diagnosed with cerebral palsy, and her doctors diagnosed her with a seizure disorder at age eleven. As a result of her conditions, she has limited use of her left hand, difficulty with balance, and an awkward gait. Additionally, Doe presents with other physical and emotional conditions, including the nerve disorder Reflex Sympathetic Dystrophy, anxiety, depression, and anger management problems.

In 2001, Doe applied for SSI benefits from the SSA. The psychological evaluation submitted to the SSA showed her Full...

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