In re D'Antonio

• Decision Date: 05 September 2007
• Docket Number: No. 06-153.,06-153.
• Citation: 2007 VT 100,939 A.2d 493
• Court: Vermont Supreme Court
• Parties: In re Appeal of Carol D'ANTONIO.

939 A.2d 493

2007 VT 100

In re Appeal of Carol D'ANTONIO.

No. 06-153.

Supreme Court of Vermont.

September 5, 2007.

Present: REIBER, C.J., DOOLEY, JOHNSON, BURGESS, Associate Justices and GIBSON III, Associate Justice (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. This appeal concerns a Human Services Board order requiring the Office of Vermont Health Access to provide petitioner Carol D'Antonio with Medicaid transportation reimbursement for out-of-state medical appointments for her disabled son. Petitioner argues that the Secretary of Human Services, who remanded the Board's decision for further findings, had no legal basis for disturbing the Board's order, and further asserts that the Secretary does not have authority to remand Medicaid decisions back to the Board. On cross-appeal, the Office claims that the Secretary has the statutory power to remand Board decisions and that the Board erred in declining to reconsider its decision in accordance with the Secretary's remand and the Office's motion for reconsideration. We reverse the Secretary's decision remanding petitioner's case, but conclude that the Secretary may remand Board decisions when appropriate.

¶ 2. Petitioner's twelve-year-old son, J.D., has a number of severe medical problems including autism, auto-immune disease dietary issues, and developmental delays. Twice a year, J.D. travels to out-of-state specialists—a pediatric psychiatrist specializing in autism in Maryland and a pediatrician specializing in auto-immune disease in New York—for treatment. For seven consecutive years, Medicaid paid for transportation to the out-of-state physicians twice yearly, based on a referral form filed by J.D.'s Vermont primary-care physician. Despite this history, the Office denied Medicaid transportation funding for J.D.'s appointments with the out-of-state specialists in November 2004 and March 2005. Nonetheless, petitioner took her son to the scheduled appointments and sought reimbursement from Medicaid for the transportation costs. In support of her request for reimbursement, petitioner filed two letters with the Office attesting to the medical necessity and lack of local availability of the treatment J.D. receives from the out-of-state doctors—one from his local primary-care physician and one from his out-of-state pediatric psychiatrist.

¶ 3. In June 2005, the Office agreed to pay transportation and lodging expenses for J.D.'s November 2004 appointments because its local transportation agent failed to provide petitioner with a written denial of prior authorization and notice of fair-hearing rights. It denied reimbursement for the March expenses, however, stating that it was "confident the services offered by the providers that [petitioner had] chosen: a psychiatrist, pediatrician and dietitian are available in the state of Vermont." On July 6, 2005, petitioner appealed the Office's decision, requesting a fair hearing before the Human Services Board.

¶ 4. At a status conference in July 2005, the hearing officer requested that petitioner submit further information about the specific services provided to J.D. by the out-of-state doctors and directed the Office to review the information and either approve transportation funding or provide petitioner with the names of local physicians who could provide those special services to her son. Petitioner filed a letter from J.D.'s primary-care physician attesting to the medical necessity of J.D.'s out-of-state treatments, a "physician quality report" indicating the out-of-state pediatrician's specializations, a two-page curriculum vitae of the out-of-state pediatric psychiatrist, and a three-page abstract with descriptions of articles, books, and videos authored by the pediatric psychiatrist. In response, the Office asked for dismissal of petitioner's appeal, claiming that the evidence submitted in support of her appeal was insufficient. Furthermore, the Office submitted statistics showing that a significant number of children in J.D.'s county are treated by local pediatricians, psychologists, and psychiatrists generally.

¶ 5. At a hearing on October 13, 2005, the hearing officer advised the Office that its submission was inadequate because it neither identified which, if any, of the local providers were qualified to meet the special needs identified by J.D.'s treating physician nor addressed the issue of continuity of care that J.D.'s treating physician highlighted as critical to his successful treatment. The Office requested and was given leave to submit additional evidence by October 21. No further evidence was submitted by that deadline. On November 4, 2005, the Board issued its order reversing the Office's decision to deny Medicaid transportation funding to petitioner based on the hearing officer's conclusion that: (1) petitioner had provided sufficient evidence that the out-of-state doctors have "a unique combination of qualifications which ideally suit them to provide the services needed by her son," and (2) the "vague, undetailed and unresponsive" evidence submitted by the Office was insufficient to refute petitioner's evidence.

¶ 6. On November 16, 2005, the Secretary of the Agency of Human Services issued an order modifying the Board's decision and remanding it for further proceedings. The Office moved the Board for an evidentiary hearing so that it could subpoena J.D.'s primary-care physician to explore the basis for his opinion. In a February 28, 2006 order, the Board declined to reconsider or amend its initial order, stating that the remand exceeded the Secretary's authority. The Office filed a motion to reconsider the February 28 order, which the Board denied. Both parties appeal.

¶ 7. We first consider the Office's main issue on cross-appeal: whether the Secretary has the authority to remand decisions to the Board. By statute, the Secretary must review all Board decisions pertaining to Medicaid and either adopt the Board's decision, or he "may reverse or modify a [B]oard decision or order if . . . the [B]oard's findings of fact lack any support in the record; or . . . the decision or order implicates the validity or applicability of any agency policy or rule." 3 V.S.A. § 3091(h)(1)(A)(i), (ii). In interpreting a statute, the Court initially looks to the plain meaning of the language used by the Legislature. Burlington Elec. Dep't v. Dep't of Taxes, 154 Vt. 332, 335-36, 576 A.2d 450, 452 (1990). Where the intent of the Legislature is ambiguous or unclear from the language, however, we consider the entirety of the statute, "its effects and consequences, and the reason and spirit of the law" to determine its true meaning. Sargent v. Town of Randolph Fire Dep't, 2007 VT 56, ¶ 9, ___ Vt. ___, 928 A.2d 525 (mem.) (citation omitted).

¶ 8. Petitioner's argument that the plain meaning of "reverse or modify" excludes a remand to the Board, even when additional factual findings are necessary, is unavailing. Considering the statute as a whole, the Secretary acts as an appellate body, reviewing the Board's findings and conclusions to ensure that it applied the appropriate legal standards under the relevant agency rules and policies, and that there is some factual support for its decision. See 3 V.S.A. § 3091(h)(1)(A)(i), (ii). As...