Hardy v. B.H.
| Decision Date | 18 November 2011 |
| Docket Number | No. 101540.,101540. |
| Citation | 719 S.E.2d 804,228 W.Va. 334 |
| Court | West Virginia Supreme Court |
| Parties | Patsy HARDY, Secretary of the Department of Health and Human Resources, Defendant Below, Petitioner v. B.H., a minor, by his next friend and mother, G. H., Plaintiff Below, Respondent. |
OPINION TEXT STARTS HERE
Syllabus by the Court
When the West Virginia Department of Health and Human Resources seeks to reduce or terminate benefits that a claimant is receiving under the West Virginia Mentally Retarded/Developmentally Delayed Waiver Program, the West Virginia Department of Health and Human Resources has the burden of proof to show a change in circumstances warranting such action.
Darrell V. McGraw, Jr., Esq., Attorney General, Kimberly Stitzinger–Jones, Assistant Attorney General, Charleston, WV, for Petitioner.
Bruce Perrone, Esq., Legal Aid of West Virginia, Charleston, WV, for Respondent.
This case is before the Court upon an appeal of the Department of Health and Human Resources (“DHHR”) from an Order of the Circuit Court of Kanawha County, West Virginia, entered on July 6, 2010, directing the DHHR to reinstate B.H.'s 1 benefits under the West Virginia Mentally Retarded/Developmentally Disabled Waiver Program (“Waiver Program”). The DHHR argues that the circuit court erred in placing the burden of proof on it rather than on the claimant, the Respondent B.H.; in failing to apply the non-mental retardation norms to the Respondent because B.H. does not have a diagnosis of mental retardation; and in finding in favor of the Respondent, despite the Respondent not having substantial deficits in the required number of major life areas. Based upon a review of the briefs and arguments of the parties, the record, and all other matters submitted before the Court, the circuit court's decision is affirmed.
The Court, in Wysong ex rel. Ramsey v. Walker, 224 W.Va. 437, 686 S.E.2d 219 (2009), set forth a clear, concise overview of the Waiver Program. The Waiver Program is
a joint federal-state program established by Title XIX of the Social Security Act, 42 U.S.C. §§ 1396–1396v (2003). The Waiver Program allows the State to offer the services and level of care that are provided in an intermediate care facility for individuals diagnosed with mental retardation and/or related developmental disabilities (hereinafter referred to as an “ICF/MR”) to eligible individuals in their homes instead of in an ICF/MR. The purpose of the Waiver Program is to provide home and community-based support to individuals with mental retardation and/or other related developmental disabilities in order to achieve the highest level of independence and self-sufficiency possible in their lives. 42 U.S.C. § 1396n (2003 & Supp.2009).
In order to be eligible for the Waiver Program, an applicant must satisfy certain medical eligibility criteria. First, the applicant must have a medical diagnosis of mental retardation and/or a related condition. Related conditions include autism, cerebral palsy, epilepsy, or any condition, other than mental illness, found to be closely related to mental retardation because the condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons. If the applicant has an eligible medical diagnosis, he or she must demonstrate that the medical diagnosis is a severe chronic disability that manifested before the applicant reached twenty-two years of age and is likely to continue indefinitely. Next, the applicant must show that the medical diagnosis substantially limits functioning in three or more major life areas. The major life areas are: self-care; receptive and express language (communication); learning (functional academics); mobility; self-direction; and capacity for independent living. The applicant must also show that he or she requires active treatment. Finally, the applicant must qualify for a level of care that similarly diagnosed persons would have in an ICF/MR. See DHHR Provider Manual, Chapter 503–ICF/MR Services (2003).
B.H. was born on October 23, 1993, and is currently eighteen years old. According to Dr. Rasmi Kumar, M.D., a psychiatrist, B.H. has been diagnosed with autism with obsessive compulsive disorder traits and hyperactive traits. The circuit court found that B.H. has an IQ of 78 and has not been diagnosed with mental retardation. Additionally, B.H. has substantial limitations in the areas of self-care and capacity for independent learning. 2 According to a psychological evaluation, dated August 8, 2008, prepared by Sandi Kiser–Griffith, M.A., a licensed psychologist, B.H. has a long history of severe behavioral problems consistent with autistic disorder. He exhibits self-injurious behavior in the form of hitting himself, biting himself, and clawing or picking at his skin until he bleeds. He has poor safety skills and must be closely monitored at all times. He will jump from a moving car, walk into traffic, and climb on furniture and buildings if not closely watched. He has an obsession with hot water and must be closely monitored while in the bathroom. He can become physically and verbally aggressive when he is upset. He is resistant to personal care and will refuse to eat due to the texture or taste of food. He also exhibits improper behavior, such as pulling his pants down and urinating in inappropriate places. His overall judgment, insight and attention span are limited, which is consistent with autism.
B.H. was first found eligible for the Medicaid MRDD Waiver Program in 1998 when he was five years old. He began receiving services in 1999 at age six. B.H. was subsequently re-approved for the program until 2007. The present case arises from a termination notice issued in 2007 and 2008 issued by the DHHR. B.H. was disqualified from the program by decision dated November 3, 2008. On January 6, 2009, B.H. filed a “Petition for Certiorari and Judicial Review of State Agency Decision” 3 in the Circuit Court of Kanawha County and the DHHR filed an answer. The matter was thoroughly briefed and the circuit court decided the case based upon those briefs and the record without oral argument.
The circuit court reversed the DHHR's Board of Review decision based upon the following:
There needs to be proof of changed medical circumstances “to avoid relitigating the evidence presented in support of the initial administrative decision,” i.e., the decision to award benefits. Vaughn v. Heckler, 727 F.2d 1040 (11th Cir.1984). Courts have also held that benefits should not be terminated unless substantial evidence is brought forth to show a claimant has improved. Miranda v. Secretary, 514 F.2d 996, 998 (1st Cir.1975); Byron v. Heckler, 742 F.2d 1232, 1236 (10th Cir.1984); Torres v. Schweiker, 682 F.2d 109 (3rd Cir.1982); Hayes v. Secretary of Health, Education and Welfare, 656 F.2d 204 (6th Cir.1981); Weber v. Harris, 640 F.2d 176 (8th Cir.1981); Finnegan v. Matthews, 641 F.2d 1340 (9th Cir.1981); and Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir.1982).
Here, the Department has failed to present any evidence that Petitioner's condition had improved since he first began receiving benefits. The fairness concepts of Due Process require a showing of change in circumstances where the Petitioner's condition has improved. Byron v. Heckler, 742 F.2d 1232, 1236 (10th Cir.1984).4
(Footnoted added). It is from this Order that the DHHR appeals.
The Court has previously held an abuse of discretion standard of review governs the review of a circuit court's certiorari judgment. Wysong, 224 W.Va. at 441, 686 S.E.2d at 223 (). Consequently, Wysong, 224 W.Va. at 441, 686 S.E.2d at 223. If, however, the appeal from the circuit court involves a question of law, the Court's review is de novo. Syl. Pt. 1, Lower Donnally Ass'n v. Charleston Mun. Planning Comm'n, 212 W.Va. 623, 575 S.E.2d 233 (2002) .). Applying these standards of review, the Court considers the assigned errors.
The primary issue before the Court is whether the circuit court erred in placing the burden of proof on the DHHR, rather than on the claimant. 5 The DHHR argues, based upon Lavine v. Milne, 424 U.S. 577, 96 S.Ct. 1010, 47 L.Ed.2d 249 (1976), that there is no presumption of entitlement to public assistance benefits and that the only presumption is that a claimant is not entitled to benefits unless and until the applicant proves his or her eligibility.
In contrast, B.H. first argues that after he raised the issue regarding the DHHR having the burden of proof in establishing that he had medically improved to the point of no longer needing the benefits from the Waiver Program and citing authority from other jurisdictions supporting this legal point, the DHHR failed to address, in any way, B.H.'s argument. Additionally, B.H. argues that, in Lavine, the Supreme Court of the United States was addressing the burden of proof in a case involving a new application for public assistance, not a termination case. Further, B.H. argues that by its own regulations, the DHHR has placed the burden of proof upon itself.
The resolution of whether a...
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Bills v. Hardy, 101420.
...it necessary to remand this matter, we wish to alert both the trial court and the parties of our recent decision in Hardy v. B.H., 228 W.Va. 334, 719 S.E.2d 804 (2011), in which we held that the DHHR has the burden of showing a change in circumstances when it seeks to reduce or terminate be......