Jacobus v. Department of PATH

• Decision Date: 29 July 2004
• Docket Number: No. 03-220.,03-220.
• Citation: 857 A.2d 785
• Court: Vermont Supreme Court
• Parties: Christina JACOBUS, Lindsey Turgeon and Megan Woods v. DEPARTMENT OF PATH.

857 A.2d 785

Christina JACOBUS, Lindsey Turgeon and Megan Woods v. DEPARTMENT OF PATH.

No. 03-220.

Supreme Court of Vermont.

July 29, 2004.

Present: AMESTOY, C.J., JOHNSON, SKOGLUND and REIBER, JJ., and GIBSON, J. (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. In these consolidated cases, petitioners Lindsey Turgeon and Megan Woods appeal the Secretary of Human Services' (Secretary) denial of their request for coverage of interceptive orthodontic treatment under Medicaid's Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program.¹ Originally, the Human Services Board granted coverage on grounds that, although petitioners do not meet the State's listed criteria for medically necessary orthodontic treatment, they have at least the same medical need for treatment as children whose conditions are on the list. The Secretary rejected certain of the board's factual findings and reversed its decision. Because the Secretary's order violates federal law, we reverse.

¶ 2. At the time of the proceedings below, petitioners were nine-year-old Medicaid eligible girls. Megan had persistent pain in her teeth, particularly when eating. Lindsey had chronic pain in her jaw and speech difficulties. The girls' family dentists referred them for orthodontic treatment and they saw the same orthodontist, Dr. Fred Salvatoriello. Dr. Salvatoriello diagnosed various multiple malocclusions in each girl and recommended interceptive orthodontic treatment in each case.

¶ 3. The Department of Prevention, Assistance, Transition and Health Access (PATH) denied petitioners request for Medicaid coverage on grounds that interceptive treatment was not "medically necessary" for either child. PATH regulations provide two means by which treatment can qualify as medically necessary. Under the first method, PATH requires that a child have either one major or two minor malocclusions, which are defined according to diagnostic criteria established by PATH's dental consultants. Medicaid Manual § M622.4, 5 Code of Vermont Rules 13 1 XXXXX-XXX (2001).² In Megan's case, she met the criteria for one minor condition (blocked cuspids) but fell just below the criteria for two others (anterior open bite and crowding per arch). In Lindsey's case, none of her four diagnosed malocclusions (blocked cuspids, anterior open bite, anterior crossbite and crowding) met the listed criteria. Alternatively, PATH also provides for coverage of orthodontic treatment "if otherwise necessary under EPSDT found at M100." Id. It is undisputed that PATH did not review either girl's condition to determine whether treatment was "otherwise necessary."

¶ 4. In consolidated appeals to the board, petitioners argued that by limiting interceptive orthodontic coverage to the exact conditions described in the listed criteria, without conducting an individualized review of each child's medical need, PATH violated its own regulations as well as federal statutes and regulations governing the EPSDT program. Petitioners further argued that the State's denial of coverage violated their right to equal treatment under the Vermont and federal constitutions. After a de novo fair hearing, the board approved coverage under the individualized review prong of the state regulations, holding that each child's condition was at least as severe in terms of functional compromise as conditions preapproved by the State for coverage.

¶ 5. On review pursuant to 3 V.S.A. § 3091(h)(2), the Secretary overturned the board's decision. First, the Secretary reversed without explanation the board's findings that each girl's multiple malocclusions, considered cumulatively, were at least as severe as any listed conditions. Second, the Secretary held that "even assuming for argument's sake that they did have such an `equivalent' condition to those described in our criteria," that is not enough. Instead, the Secretary held that state regulations require coverage of orthodontic treatment only where a child has a "handicapping malocclusion." Petitioners timely appealed the Secretary's order to this Court pursuant to 3 V.S.A. § 3091(h)(3).

¶ 6. Petitioners first challenge the Secretary's rejection of board findings thirty-nine and forty-six, which determined that the net effect of each child's combined dental impairments was at least as severe "in terms of functional compromise" (Lindsey), or "in terms of present functioning" (Megan) as the conditions listed by the State.

¶ 7. The Secretary may reverse or modify factual findings in a board decision only if "the board's findings of fact lack any support in the record." 3 V.S.A. § 3091(h)(1)(A) (emphasis added). This is identical to the clearly erroneous standard that this Court applies when reviewing the board's findings of fact. See, e.g., In re Potter, 2003 VT 101, ¶ 10, 176 Vt. ___, 838 A.2d 105 (mem.). The Secretary, therefore, must uphold the board's findings "if the record contains any credible evidence that fairly and reasonably supports its findings." Id. (citing Hall v. Dep't of Social Welfare, 153 Vt. 479, 486-87, 572 A.2d 1342, 1346 (1990)).

¶ 8. The record here provides ample evidence to support these findings. In Megan's case (finding forty-six), Dr. Salvatoriello provided written testimony that Megan had three malocclusions: 2 blocked cuspids, which met the minor criteria; crowding which met the criteria in her upper arch and was barely below the criteria in her lower arch; and an anterior open bite, which measured below the State's criteria. Dr. Salvatoriello testified that these conditions are interrelated, that in combination they are at least as serious as any two of the State's minor criteria, and that if left untreated there was "a virtual certainty that full orthodontic treatment will be necessary" including extraction of permanent teeth.

¶ 9. In Lindsey's case (finding thirty-nine), Dr. Salvatoriello testified that although all four of her malocclusions fell below the State's minor criteria, there was no medically significant difference between Lindsey's anterior openbite and anterior crossbite and the State's criteria for those conditions; that the combined effect of her impairments was at least as serious as having a condition that met any two of the State's minor criteria; and that orthodontic treatment was necessary to correct current conditions and to prevent the malocclusions from worsening into a significantly greater and more expensive problem that could possibly require corrective maxillofacial surgery.

¶ 10. Although the State contends that Dr. Salvatoriello's testimony is not credible, our review of the record reveals it to be credible and reasonable. The State's primary argument appears to be that findings thirty-nine and forty-six are inconsistent with the board's simultaneous findings that neither Lindsey nor Megan have a current or likely functional deficit. We see no inconsistency. As PATH admitted and as the board also found, "ninety percent of children who meet [the State's criteria] do not actually have `handicapping malocclusions.'" Rather, the State's criteria were "purposefully drawn at a low level of impediment for the safety of the children."

¶ 11. Similarly, we agree with the board that Dr. Salvatoriello's testimony regarding the severity of the girls' cumulative conditions was uncontroverted. The State's dental consultant, Dr. Kevin Risko, never personally examined either girl, nor did he analyze the cumulative impact of their multiple malocclusions. Rather, he contended only that the girls did not meet the criteria and that "the Department's criteria must be given deference." Simply reapplying the listed criteria is not an individualized review. Nothing in Dr. Risko's testimony counters the weight of Dr. Salvatoriello's testimony on the issue of cumulative impact. Therefore, pursuant to 3 V.S.A. § 3091(h)(1)(A), findings thirty-nine and forty-six must be reinstated.

¶ 12. Petitioners also argue that the Secretary wrongly rejected board finding number nine, that PATH's written regulations do not contain the definition of "severe malocclusion" offered by the Department's experts. Given our conclusion below, we do not reach this issue.

¶ 13. Petitioners next challenge the Secretary's conclusion that the board's decision erroneously interpreted PATH's Medicaid regulations. See 3 V.S.A. § 3091(h)(1)(B) (Secretary may modify or reverse a board decision if it "implicates the validity or applicability of any agency policy or rule"). The board determined that § M622.4 established a de facto level of medical severity for EPSDT coverage of orthodontic treatment, and that any child with conditions of equal or greater severity qualified for coverage. The Secretary disagreed, holding that PATH developed its criteria and designed its orthodontics program solely "to identify and treat serious handicapping malocclusions — those malocclusions that carry with them real functional deficit." Thus, he concluded treatment is "medically necessary" under § M622.4 only if the child meets the State's criteria or has a "real functional deficit."

¶ 14. The parties spend much of their time on appeal disputing whether the Secretary's interpretation of § M622.4 complies with the minimum federal treatment standard. See 42 U.S.C. § 1396d(r)(3)(B) (EPSDT dental services "shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health"). We decline to reach this question since, even assuming, arguendo, that the Secretary's definition of the treatment standard is valid, we conclude that the State is in violation of the Medicaid Act's comparability provisions as described below.

¶ 15. State participation in the federal Medicaid program is optional. But once a state elects to participate, in return for federal dollars it must comply with federal statutory and regulatory requirements. Cushion v. Dep't of PATH, 174 Vt. 475, 477, 807 A.2d 425, 428 (2002) (mem.). Under 1989 amendments to the ...