Ohlson v. Weil
| Decision Date | 12 June 1997 |
| Docket Number | No. 96CA0395,96CA0395 |
| Citation | 953 P.2d 939 |
| Parties | 21 Colorado Journal 820 Brenda OHLSON, Plaintiff-Appellant, v. Alan WEIL, Executive Director of the Colorado Department of Health Care Policy & Financing, in his official capacity, and the Colorado Department of Health Care Policy & Financing, Defendants-Appellees. . III |
| Court | Colorado Court of Appeals |
Legal Aid Society of Metro Denver, Peter Komlos-Hrobsky, Denver, for Plaintiff-Appellant.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Wade Livingston, First Assistant Attorney General, Denver, for Defendants-Appellees.
Opinion by Judge CASEBOLT.
In this action concerning coverage under the Colorado Medical Assistance Act (Medicaid), plaintiff, Brenda Ohlson, appeals the district court's order in favor of defendants, Colorado Department of Health Care Policy and Financing (Department), and its executive director, Alan Weil, which upheld a determination by an Administrative Law Judge (ALJ) that Ohlson's medically necessary body brace was not a covered expense. We reverse and remand with directions.
Ohlson, who is 35 years old, suffers from spinal muscular dystrophy and is wheelchair-bound. She requires a molded plaster body brace in order to sit up and breathe properly in her wheelchair. The brace is not surgically implanted, but rather is clamped to the outside of her body.
The brace requires replacement approximately once per year. Without the brace, Ohlson will regress to a slumped position and will eventually need mechanical assistance to breathe. Neither Ohlson's eligibility for Medicaid nor the medical necessity of the body brace is disputed here.
In 1994, Ohlson's treating physician submitted a request for Medicaid coverage for the brace. The Department denied the request, relying upon § 26-4-302(1)(f), C.R.S. (1996 Cum.Supp.), which provides optional, non-federally mandated coverage for "prosthetic devices, except that such devices shall be limited to surgically implanted devices." The Department also concluded that the brace did not meet the definition of "durable medical equipment" under Department of Health Care Policy & Financing Regulation § 8.590, 10 Code Colo. Reg. 2505-10 (1994) (Section 8.590) and thus was not a covered expense.
The Department's decision was upheld by the ALJ and by the district court. Ohlson now appeals the district court's order.
Ohlson first contends that the Department's regulations covering durable medical equipment, in effect at the time she brought her claim, required coverage for her body brace. We agree.
The Department bears the burden, by a preponderance of the evidence, to establish the basis of the ruling being appealed. See Department of Social Services Regulation No. 8.058.54, 10 Code Colo. Reg. 2505-10.
A reviewing court may reverse an administrative agency's determination if the court finds that the agency acted in an arbitrary and capricious manner, made a determination that is unsupported by the evidence in the record, erroneously interpreted the law, or exceeded its constitutional or statutory authority. Section 24-4-106(7), C.R.S. (1988 Repl.Vol. 10A); McClellan v. Meyer, 900 P.2d 24 (Colo.1995).
Interpretation of a regulation by the agency charged with its enforcement is generally entitled to great deference. The agency interpretation is to be accepted if it has a reasonable basis in law and is warranted by the record. See Halverstadt v. Department of Corrections, 911 P.2d 654 (Colo.App.1995).
Here, at the time Ohlson sought coverage in 1994, the Department's regulations defined durable medical equipment as "equipment which can withstand repeated use and which generally does not have a value to the patient in the absence of an illness or injury." The parties also agree that the regulation required such equipment to be usable in the patient's home. Section 8.590.
In its final agency decision rejecting coverage for the brace under this regulation, the Department stated that: "Although Section 8.590 ... does not include or exclude specific types of equipment, the rule does clearly imply that its applicability is limited to equipment which is needed in the home for a finite period of time, and where it is determined that purchase of the equipment is less costly than renting."
The Department therefore concluded that: "It is clearly not the intent of this rule to cover items such as the ... brace ... which is clearly required for the rest of [Ohlson's] life, and which is not a piece of equipment which may be rented."
The Department provides no support for its interpretation of § 8.590, and we find none in the plain language of the regulation or in the record.
First, we fail to discern how the regulation can be read to exclude coverage of all equipment except that which is needed on a temporary basis. The regulation states, in part, that durable medical equipment must be able to "withstand repeated use" and must not be useful in the absence of an "illness or injury." These phrases do not contain a temporal limitation, and the inclusion of the term "illness" suggests coverage of afflictions that may be permanent. Moreover, the common meaning of the word "durable" is long-lasting. See Webster's Third New International Dictionary 703 (1986).
We reject the Department's position that a device is not durable medical equipment unless it is cheaper to buy than to rent, and we reject as without consequence the fact that Ohlson's brace is not rentable. The Department's reading would lead to the irrational result that equipment which would otherwise meet the requirements of § 8.590 would nonetheless be uncovered unless the total rental cost exceeded its purchase price.
Moreover, the Department's stated interpretation of § 8.590 is belied by its coverage, as durable medical equipment, of such items as wheelchairs, wheelchair seating devices, and other wheelchair attachments. There is no evidence in the record to suggest that these items are only covered when needed on a temporary basis or when their purchase price is less than their rental cost.
Thus, we conclude that the Department's interpretation lacks a reasonable basis in law and is unwarranted by the record. Further, even if we accept the Department's interpretation of § 8.590, basing coverage on whether an individual's affliction is temporary or on the rental versus purchase price of equipment would be arbitrary and capricious.
However, in affirming the final agency decision, the district court did so on a basis different from that relied on by the Department in the final agency decision. The court applied rules of statutory interpretation and concluded that, because the common, ordinary meaning of "body brace" falls within the definition of the word "prosthetic" and not "durable medical equipment," the more specific coverage definitions regarding prosthetics must control. We do not agree with the district court's conclusion.
First, we note that a special or specific provision of a statute prevails over a general provision only if the provisions are in conflict and the conflict is irreconcilable. See § 2-4-205, C.R.S. (1980 Repl.Vol. 1B); see also In re M.S. v. People, 812 P.2d 632 (Colo.1991). Such is not the case here.
Under federal law, acknowledged to be applicable here in the absence of a pertinent state definition, a prosthetic device is defined as a replacement, corrective, or supportive device which artificially replaces a missing portion of the body, prevents or corrects a physical deformity or malfunction, or supports a weak or deformed portion of the body. See 42 C.F.R. § 440.120(c) (1996).
The fact that Ohlson's brace fits both the state definition of durable medical equipment and the federal definition of a prosthetic device does not create an irreconcilable conflict. Nothing in the federal or state Medicaid laws precludes an item of medical equipment from falling into more than one category. Rather, federal courts confronting this issue have concluded that a single device may be covered both as durable medical equipment and as a prosthetic device. See Fred C. v. Texas Health & Human Services Commission, 924 F.Supp. 788 (W.D.Tex.1996) (); see also Charpentier v. Kizer, No. 2-90-758-EJG, 1990 WL 252191 (E.D.Cal. Nov.19, 1990) ().
Further, as stated above, the record reveals that the Department covered wheelchairs, wheelchair seating devices, and attachments as durable medical equipment, items also falling within the definition of a prosthetic device.
Therefore, because Ohlson's body brace is suitable for use and is used in Ohlson's home, has an obvious medical purpose, withstands repeated use, and would not be useful in the absence of her illness, it meets the requirements of § 8.590, and must be covered as durable medical equipment.
We note, however, that since the district court's decision, the Department has rewritten its durable medical equipment regulations. The new regulations now address prosthetic devices under the heading of durable medical equipment, but also state that "special braces" which "enable a patient ... to sit" are not covered except for children under 21 years of age. Department of Health Care Policy & Financing Regulation Nos. 8.591.02O & 8.593.04B, 10 Code Colo. Reg. 2505-10 (1996).
Ohlson does not request coverage for her body brace under the modified regulations and we offer no opinion concerning whether these new regulations preclude such coverage.
Because we conclude that Ohlson's brace must be covered as durable medical equipment up until June 1, 1996, the...
To continue reading
Request your trial
-
Sanders ex rel. Rayl v. Kansas Dept. of Social and Rehabil.
...a legitimate regulatory goal. The underlying federal purpose is to provide the service to those in greatest need of it. Ohlson v. Weil, 953 P.2d 939, 944 (Colo.App.1997). When matters of health and safety are at issue, great judicial deference is owed to the legislative judgment. Williamson......
-
Callen v. Rogers
...[of the recipient]," there is no such prohibition on medical assistance that is optional under the Act. See, e.g., Ohlson v. Weil, 953 P.2d 939, 944 (Colo. App.1997) ("We choose to honor the plain language of the regulation and, accordingly, conclude that [section] 440.230(c) is inapplicabl......
-
Colo. Div. of Ins. v. Statewide Bonding, Inc.
...if the court finds that the agency exceeded its constitutional or statutory authority. § 24-4-106(7), C.R.S. 2021; Ohlson v. Weil , 953 P.2d 939, 941 (Colo. App. 1997). Because Respondents pose a jurisdictional question, we review the Commissioner's conclusion of law de novo. Colo. Dep't of......
-
Chappell v. Rhode Island Department of Human Services
...once the state opts to participate, it must fully comply with the "federal statutory and regulatory requirements." Ohlson v. Weil, 953 P.2d 939, 943 (Colo. App. 1997). According to the provisions of the Medicaid Act, Rhode Island, through DHS, must provide certain mandatory services to reci......
-
Insights for Practicing Before Local Government Boards and Commissions in Colorado - November 2007 - Government and Administrative Law
...Licensing Auth., 490 P.2d 299, 300 (Colo. 1971). 29. Bd. of County Comm'rs v. Simmons, 494 P.2d 85, 86 (Colo. 1972). 30. Ohlson v. Weil, 953 P.2d 939, 941 (Colo.App. 1977). Appendix Suggestions for Members of Local Government Boards The author provides the following informal suggestions to ......