Lind v. Wells County Social Service Bd., 10021

• Decision Date: 23 October 1981
• Docket Number: No. 10021,10021
• Citation: 311 N.W.2d 547
• Parties: Mildred LIND, Appellant, v. WELLS COUNTY SOCIAL SERVICE BOARD and Social Service Board of North Dakota, Appellees. Civ.
• Court: North Dakota Supreme Court

Page 547

311 N.W.2d 547

Mildred LIND, Appellant, v. WELLS COUNTY SOCIAL SERVICE BOARD and Social Service Board of North Dakota, Appellees.

Civ. No. 10021.

Supreme Court of North Dakota.

Oct. 23, 1981.

Monte Engel, Legal Assistance of N.D., Devils Lake, for appellant; argued by Monte Engel, Devils Lake.

Blaine L. Nordwall, Asst. Atty. Gen., Social Service Board of N.D., Bismarck, for appellees; argued by Blaine L. Nordwall, Asst. Atty. Gen., Bismarck.

VANDE WALLE, Justice.

This is an appeal by Mildred Lind from the judgment of the District Court of Wells County, dated April 3, 1981, upholding a determination of the Social Service Board of North Dakota to terminate Mildred's intermediate care benefits under the Medicaid Program. We affirm.

Mildred is an 81-year old widow who, at all times pertinent to this case, has been eligible for and a recipient of Medical Assistance Benefits under the Medicaid Program. On June 5, 1979, Mildred was transferred from the Sheridan Memorial Home, Inc., which is a basic care facility located at McClusky, North Dakota, to the St. Aloisius Hospital Intermediate Care Facility located at Harvey, North Dakota where she is currently a resident. At the time of Mildred's admission to St. Aloisius she was diagnosed as suffering from hypertension, senile dementia, and bilateral cataracts.

While residing at the Sheridan Memorial Home, Inc., it is undisputed that Mildred would often refuse to take the medication prescribed for her senile dementia and hypertension conditions and that, as a consequence she would often be in a confused state of mind and suffer from greatly elevated blood pressure. Mildred's attending physician, Dr. B. F. Addy, referring to the period during which Mildred was residing at the Sheridan Memorial Home, Inc., described her as posing problems to staff, other residents, and herself. More specifically Dr. Addy stated that Mildred was in a confused state with high blood pressure because she refused to take her medication. He also reported that she would hallucinate, she would refuse to attend activities at the home, and she was paranoic believing that she was being poisoned.

Subsequent to her transfer to St. Aloisius Mildred has had successful cataract surgery and, in the words of Dr. Addy, "she has taken her medications, is not in a confused state of mind, her blood pressure has remained down, and she has adjusted quite well socially."

The Devils Lake Area Screening Team, a decision making unit of the Social Service Board of North Dakota, determined on March 25, 1980, that Mildred's needs could be met by a basic level care and that continued intermediate care benefits were unnecessary. On May 1, 1980, the State Screening and Utilization Review Team, having reviewed the Area Screening Team's decision at the request of Mrs. Art Emerson, Mildred's daughter, upheld the decision to terminate Mildred's intermediate care benefits. Mildred appealed the State Screening Team's decision to the Social Service Board which on October 16, 1980, entered its decision upholding the determination to terminate Mildred's intermediate care assistance. That decision was appealed by Mildred to the District Court of Wells County and was upheld by that court.

On appeal to this Court from the district court's judgment Mildred has raised the following issues:

(1) Whether or not the Social Service Board provided timely and adequate notice as required by the federal regulations and by due process concepts;

(2) Whether or not the following federal regulations were violated during the process by which it was determined that Mildred was no longer qualified for intermediate care benefits:

(a) physician participation requirements of 42 C.F.R. §§ 456.401(b)(2)(i) and 456.405 (1980);

(b) evaluation requirements of 42 C.F.R. §§ 456.370 and 456.372 (1980);

(c) written criteria requirement of 42 C.F.R. § 456.432 (1980);

(3) Whether or not consideration was given to the attending physician's opinion as required by 42 C.F.R. §§ 440.150(e) and 456.436 (1980); and

(4) Whether or not the Social Service Board's decision was supported by a preponderance of the evidence.

A brief explanation of the statutory and regulatory framework for the Medicaid Program will provide a useful background for discussing the issues raised by Mildred. Title XIX of the Social Security Act establishes the Medicaid Program. 42 U.S.C. § 1396 (1980), et seq. This is a cooperative federal-state program designed to provide medical assistance to individuals in need of it. Although a state is not required to participate, if it chooses to do so it must develop a plan which conforms to the federal guidelines. Upon receiving approval of the state plan by the Secretary of Health and Human Services the state receives reimbursement for a portion of the funds it expends to provide medical assistance for eligible persons under the Medicaid Program. North Dakota's state plan has received federal approval.

Each participating state must designate an agency to administer the medical assistance program, and North Dakota has designated the Social Service Board of North Dakota to fulfill that function. Subsection 1 of Section 50-06-05.1, N.D.C.C.; Chapter 50-24.1, N.D.C.C. In administering the medical assistance program the Social Service Board must follow the directives of Title XIX of the Social Security Act (42 U.S.C. § 1396 (1980), et seq. ); the federal regulations promulgated by authority of Title XIX (42 C.F.R., parts 430 through 456); Chapter 50-24.1, N.D.C.C.; and Chapter 75-02 of the North Dakota Administrative Code.

For qualifying persons the Medicaid Program pays for skilled nursing care in a skilled nursing facility and also for intermediate care provided by an intermediate care facility. The Medicaid Program does not pay for basic care, but financial assistance is available to individuals needing such care through the cooperative efforts of the State Social Service Board and the County Social Service Boards under Chapter 50-01, N.D.C.C.

Under 42 C.F.R. § 456.431(a) (1980) each recipient's need to continue receiving intermediate care benefits must be reviewed at least every six months. Pursuant to this requirement, Mildred's need for continued intermediate care benefits was reviewed by the Devils Lake Area Screening Team, and by notice dated April 3, 1980, she was informed of the team's decision that she not continue to receive such benefits. The State Screening Team reviewed the case, pursuant to 42 C.F.R. § 456.436(e) (1980), and affirmed the Area Team's decision. A notice, dated May 1, 1980, was sent to Mildred informing her of the State Screening Team's decision and stating that its effective date was April 22, 1980. An appeal of the State Screening Team's decision was taken before the State Social Service Board, and by agreement of the parties was submitted on briefs, affidavits, and other documents without benefit of an oral hearing. ¹ The Social Service Board entered its decision on October 16, 1980, upholding the decision of the State Screening Team to terminate intermediate care benefits for Mildred.

Mildred asserts that the notices provided by the Area and State Screening Teams were untimely and were inadequate in that they failed to include a statement of what action was to be taken, the reasons for the action, the specific regulations supporting the action, and the circumstances under which assistance would be continued if a hearing was requested. She also asserts that the Social Service Board's notice of its decision did not comply with 42 C.F.R. §§ 456.437 and 456.438 (1980) which specify to whom notice of any adverse decision is to be sent and that such notice is to be given not less than two days after the date of the decision.

Mildred concedes, however, that none of the alleged violations of notice resulted in any harm to her. Intermediate care benefits were paid for her by the Medicaid Program until the Social Service Board entered its final decision on October 16, 1980. Mildred's case was reviewed by the State Screening Team and the State Social Service Board, subsequent to which she has received judicial review of the Social Service Board decision by the district court and now by this Court on appeal from the district court's judgment. In view of the fact that Mildred concedes she has incurred no harm by the alleged notice violations we conclude that it is neither necessary nor appropriate for us to reach a determination of this issue.

Mildred asserts that the process by which it was determined that she should no longer continue to receive intermediate care benefits was in violation of a number of federal regulations.

She asserts that no physician participated in the decision of the Area Screening Team as is required by 42 C.F.R. § 456.406(b)(1) (1980), which provides:

"(b) UR (Utilization Review) must be performed using a method specified under § 456.401(b) by a group of professional personnel that includes

(1) At least one physician;"

The Social Service Board asserts that a physician, Dr. P. Roy Gregware, participates as a member on both the Area and the State Screening Teams. Dr. Gregware's signature appears on the Area Screening Team's decision form indicating that he approved the decision to terminate Mildred's intermediate care benefits, but his affidavit of August 6, 1980, while stating that he is a physician member of the State Screening Team, does not indicate that he is a member of any Area Screening Team. We do not believe it is necessary to ascertain whether or not Dr. Gregware is a member of the Area Screening Team, because we disagree with Mildred's assertion that the federal regulations require a physician to participate in the initial utilization review decision. The Section relied upon by Mildred is contained under Subpart F of Chapter 4, Title 42, of the Code of Federal Regulations dealing with the control of utilization of intermediate care facility services. 42 C.F.R. §...