Persico v. Maher

• Decision Date: 13 September 1983
• Citation: 191 Conn. 384,465 A.2d 308
• Court: Connecticut Supreme Court
• Parties: , 2 Soc.Sec.Rep.Ser. 1295, Medicare & Medicaid Guide P 33,428 Barbara PERSICO v. Edward MAHER, Commissioner of Social Services.

Page 308

465 A.2d 308

191 Conn. 384, 2 Soc.Sec.Rep.Ser. 1295,

Medicare & Medicaid Guide P 33,428

Barbara PERSICO v. Edward MAHER, Commissioner of Social Services.

Supreme Court of Connecticut.

Argued April 6, 1983.

Decided Sept. 13, 1983.

Michael A. Arcari, Asst. Atty. Gen., with whom, on brief, was Joseph I. Lieberman, Atty. Gen., for appellant (defendant).

Miriam Berkman, Milford, with whom were Stephen Wizner, New Haven, and, on brief, P.J. Pittman, John L. Pottenger, Jr., New Haven, and Peter Schuck, Washington, D.C., for appellee (plaintiff).

Before SPEZIALE, C.J., and PARSKEY, SHEA, BIELUCH and COVELLO, JJ.

BIELUCH, Associate Justice.

The basic issue before us is the legality of the defendant's denial of orthodontic service to the plaintiff's thirteen year old son, Donald Persico, as part of his Medicaid benefits, title XIX of the Social Security Act, administered by the defendant, commissioner of the department of social services, now the department of income maintenance.

Donald Persico was a resident of the Curtis Home, a facility for emotionally disturbed children, as a non-committed child. During his stay at the youth facility, orthodontic correction to his teeth was professionally determined to be "a crucial component of [Donald's] overall treatment plan" to relieve his physical and psychological suffering. Because the plaintiff was receiving aid to families with dependent children, the home director sought to obtain $550 for such dental repair work from the defendant under the state's Medicaid program utilizing joint federal and state funds. Authorization for the requested orthodontia was denied by the defendant's dental consultant on December 30, 1976. The plaintiff's request for the corrective dental treatment was medically supported as necessary by the dental findings of an orthodontic specialist, psychological reports and the objective findings and consistent recommended action of the director of the children's program at the Curtis Home. The defendant's dental consultant's denial, on the other hand, was unsupported by any findings of fact, dental, medical, psychological or otherwise, and consisted solely of the apologetic statement: "I am sorry to inform you that orthodontia services are excluded from the Department of Social Services dental program."

On January 28, 1977, the plaintiff requested a fair hearing under General Statutes § 17-2a "to determine whether [the corrective] care for Donald's dental problems are covered by either the dental program or another program of the Department of Social Services." The fair hearing was held on February 24, 1977. Testimony in support of the plaintiff's position was offered by Judith P. Stone, a protective services worker of the department of children and youth services, and Mary Spurr, a registered nurse and child case worker at the Curtis Home. The hearing officer received into evidence copies of the request for approval of payment submitted by the home's children's program director, the dental consultant's denial of the director's request for the youth's orthodontic treatment, the orthodontist's detailed assessment of his findings and Donald Persico's need for treatment, a picture of Donald, and a psychological and social history of him prepared by the department of children and youth services.

Except for the written denial of the requested payment by the defendant's dental consultant, all of the evidence presented at the fair hearing supported the plaintiff's appeal. Spurr described the misalignment of the boy's teeth, one upper front tooth being on top of another with a large space between them as well as to one side. She testified that when one tooth had become loose, the gums were irritated and sore, causing bleeding in the mouth. When the boy talked or smiled, he would quite frequently keep a hand over his mouth, appearing to her to be covering his imperfect teeth. In outlining Donald Persico's psychological history, Spurr emphasized that he was very withdrawn for a long period of time before he became friendly with other residents. In conclusion, she testified that in her professional opinion his dental problems made him very self-conscious in his interaction and conversations with people.

Stone testified that she knew Donald Persico since 1975 and that from the beginning of her service with him he was an extremely disturbed child. A contributing factor was his dental problems as evidenced by his tendency to put his hand over his mouth and to speak very quietly. The report of the orthodontist, Herbert R. Edelstein, dated November 16, 1976, initially submitted to the defendant's dental consultant, was the only professional medical or dental evidence presented to the hearing officer. In Edelstein's opinion, "Donald Persico presents a class I malocclusion, with a severe maxillary overjet. His maxillary right lateral incisor tooth is ectopiccally erupted and is in a position lingual to his central incisor tooth. There is a large diastama [sic] between his maxillary central incisor teeth." The written denial of the claim by the defendant's dental consultant, Harry D. Kiernan, simply expressed the exclusion of orthodontic services from the department's dental program. The defendant offered no medical or dental opinion, or other oral testimony or documentary evidence supporting his denial of the orthodontic services. The fair hearing record is devoid of any expert or professional evidence that orthodontic services were not medically necessary for the treatment of Donald Persico's dental problems and the improvement of his physical or psychological health by the correction of his malocclusion, as was presented by the plaintiff's evidence at the hearing.

Thereafter, the hearing officer submitted a transcript of the proceedings with the exhibits to a dental review team (hereinafter DRT). On March 22, 1977, the DRT replied as follows: "At your request the undersigned team has reviewed the transcript of Fair Hearing notes of February 24, 1977, and the summary of Fair Hearings. There is no medical packet provided by the district. On the basis of the above and because the transcript provides no medical evidence that denial of orthodontic treatment would be detrimental to the health of the patient, we concur with the decision made by the Dental Consultant to deny the request for orthodontic treatment. Also directive dated October 1, 1973 excludes orthodontic treatment from reimbursable dental services." (Emphasis added.)

On June 13, 1977, the fair hearing officer rendered his decision. An analysis of the memorandum of decision is pertinent here. Part A of the decision reviewed the testimony of the department of children and youth services social worker to the effect that the thirteen year old child was emotionally disturbed and has been placed in the children's program of the Curtis Home since September, 1974. It mentions that the director of the program has sought for more than a year to obtain orthodontic treatment for the boy as part of their total treatment program, but the request was denied by the defendant's dental consultant as not being covered under the title XIX assistance program. Part B identified, without discussion or review, the documentary evidence received at the hearing. At this point, the hearing officer wrote as follows: "In conclusion the appellant's attorney stated that when the dental determination evaluation was completed she wished to be contacted. The attorney was subsequently contacted by two telephone calls and a letter dated 5/13/77 in which the possibility of resuming the Fair Hearing was discussed. However, since the requesting orthodontist was not available for a resumption, this request to reopen the hearing with the subsequent Dental Review Team was not allowed."

Part C, entitled "ADDITIONAL SUBMISSION," states that "[s]ubsequent to the hearing," the hearing transcript and evidence "were submitted to a different Dental Review Team," and recited their report. (Emphasis added.)

Part D identified General Statutes § 17-134 as the relevant statute providing the legal basis for the administration of the title XIX program. ¹ In part E of the decision the hearing officer established that the defendant's pertinent policy was to be found in: "1. Instructions to Participating Dentists dated 10/1/73 from the Commissioner of the Department of Social Services. 2. Manual Volume 3, Chapter III, Index # 215 and Index # 215.2."

The brief and meager findings of fact of the hearing officer are found in part F. These consist of the following: (1) the appellant is a noncommitted child whose medical needs are being covered under title XIX; (2) an orthodontic treatment program was recommended by his dentist; (3) this request was denied; and (4) on March 22, 1977, a "different Dental Review Team concurred with the denial dated 12/30/76." Thereafter, in part G, the hearing officer concluded: "Based on the testimony and evidence presented and in accordance with agency policy, the appellant's request for orthodontic work was properly denied." (Emphasis added.)

The plaintiff then appealed to the Superior Court pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act (hereinafter UAPA) from the hearing officer's decision upholding the agency's decision. The trial court sustained the plaintiff's appeal on many grounds. Finding that " 'there was, as a matter of law, but a single conclusion' which the Fair Hearing Officer could reasonably reach," the court remanded the case to the defendant, now the commissioner of income maintenance by succession, ² with instruction to grant the plaintiff's request on behalf of her son that the orthodontic services be paid for or furnished under Medicaid.

I

In the first question presented for review, the defendant claims the court erred in concluding that the department's policy defined in its directive of October 1, 1973, and excluding orthodontic services from...