Prunckun v. Del. Dep't of Health & Soc. Servs.

Citation201 A.3d 525
Decision Date03 January 2019
Docket NumberNo. 94, 2018C,No. 93, 2018C,93, 2018C,94, 2018C
Parties Edward and Pamela PRUNCKUN, as Parents and Legal Guardians of Robert Prunckun, Plaintiffs-Below, Appellants, v. DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant-Below, Appellee. Malcolm and Dominica Oldham, as Parents and Legal Guardians of Ashlee Oldham, Plaintiffs-Below, Appellants, v. Delaware Department of Health and Social Services, Defendant-Below, Appellee.
CourtUnited States State Supreme Court of Delaware

201 A.3d 525

Edward and Pamela PRUNCKUN, as Parents and Legal Guardians of Robert Prunckun, Plaintiffs-Below, Appellants,
v.
DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant-Below, Appellee.


Malcolm and Dominica Oldham, as Parents and Legal Guardians of Ashlee Oldham, Plaintiffs-Below, Appellants,
v.
Delaware Department of Health and Social Services, Defendant-Below, Appellee.

No. 93, 2018C
No. 94, 2018C

Supreme Court of Delaware.

Submitted: November 28, 2018
Decided: January 3, 2019


Francis G.X. Pileggi, Esquire, Brian D. Ahern, Esquire, Eckert Seamans Cherin & Mellott, LLC, Wilmington, Delaware. Of Counsel: Michael P. Flammia, Esquire, Eckert Seamans Cherin & Mellott, LLC, Boston, Massachusetts; Christopher E. Torkelson, Esquire (Argued), Eckert Seamans Cherin & Mellott, LLC, Princeton, New Jersey, for Appellant.

Lauren E. Maguire, Esquire (Argued), Adria B. Martinelli, Esquire, Delaware Department of Justice, Wilmington, Delaware, for Appellee.

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.

VALIHURA, Justice:

201 A.3d 527

I. Overview

Ashlee Oldham ("Ashlee") and Robert Prunckun ("Robert") (collectively, "Recipients") are the only two Delaware Medicaid recipients housed at Judge Rotenberg Center ("JRC"), a facility in Massachusetts and the only facility in the United States known to use a skin-shocking device, namely a graduated electronic decelerator ("GED"), on its residents.1 GED delivers an electric current to an individual's skin, producing a voltage of 66v through the skin. Side effects, aside from the shock, include reddening of the skin, potentially lasting for days, blisters, and anxiety. For years since the mid-2000s, while at JRC, Recipients' comprehensive behavioral treatment plans included GED and these services were covered by Medicaid with the knowledge and approval of Delaware's Department of Health and Social Services ("DHSS").

But in 2012, the Center for Medicare and Medicaid Services ("CMS"), the federal agency charged with promulgation and enforcement of Medicaid regulations and the approval of certain waivers relevant here, advised the Massachusetts state agency responsible for Medicaid administration that continued use of GED by JRC would place that state's waiver program in jeopardy of losing federal funding. That waiver is part of a program Congress has authorized in order for certain persons with developmental disabilities to receive Medicaid services in a community setting, rather than in an institutional facility. It is known as the Home and Community Based Services ("HCBS") waiver program and it has provided such services to Recipients at issue here. Before a state can participate in the HCBS waiver program, it must first apply for a waiver from CMS. Thus, the use of GED by JRC threatened Massachusetts' waiver program.

Following CMS's letter to Massachusetts, Delaware took measures to avoid placing its own HCBS waiver program at risk. In October 2013, Delaware, through DHSS, instructed JRC to cease using GED on the Recipients. It sought and received clarification from Delaware's own CMS region that the use of GED was prohibited. DHSS finally terminated JRC as a qualified provider after JRC refused to cease using GED. According to DHSS, both federal and state entities charged with enforcing Medicaid laws have deemed the use of GED unacceptable in the HCBS community-based context and generally unacceptable in modern day society.

Although the procedural history is complex, as explained below, the gist of Appellants' challenge on appeal is that they were denied due process because Delaware's administrative hearing officer bifurcated proceedings to address what she concluded was a threshold issue, namely, whether GED is a covered Medicaid service under the Medicaid Home and Community Based Waiver ("HCBS Waiver") program. Instead, Recipients contend that they should have been allowed to introduce evidence that GED is medically necessary, and that by removing GED services, DHSS has threatened Recipients' ability to remain in a community-based setting—a conclusion they desired to prove through evidence and expert testimony. Accordingly, Recipients, by and through their parents and

201 A.3d 528

guardians ("Guardians") (collectively, "Appellants"), appeal from a January 15, 2016 decision (the "Final Decision") of Delaware's Medicaid Fair Hearing Officer ("Hearing Officer"). Appellants contend that the Hearing Officer violated their due process rights in bifurcating the Fair Hearing and in concluding that aversive treatment was no longer a "covered" service under Delaware's Medicaid waiver program.

Pending this appeal, as a result of transition agreements entered into by the parties, Recipients continue to receive community-based services, including the availability of GED, at JRC to this day.2 CMS has prohibited the use of federal funding to JRC, and although the State of Delaware thereafter picked up the tab, it ceased making payments to JRC in 2014 after Delaware's contract with JRC expired.3 But the State of Delaware agreed to pay JRC in full once the Recipients' transition out of JRC is complete.

II. Facts and Procedural Background

Recipients are adult Medicaid beneficiaries and Delaware citizens with uniquely severe, behavioral, developmental, and emotional disorders, disabilities, and autism. They both require intensive behavioral health services in order to treat their violent, self-injurious, and potentially life-threatening conditions. Both received medical assistance benefits pursuant to the Delaware Home and Community Based Services Medicaid Waiver ("HCBS Waiver"), a Medicaid option available to states under Section 1915(c) of the Social Security Act (the "Act").4 HCBS waivers allow states to offer services to individuals who are elderly or have disabilities and live in a community setting in lieu of institutionalization. In Delaware, the Division of Developmental Disabilities Services ("DDDS"), a division within Delaware's Department of Health and Human Services ("DHSS"), administers Delaware's HCBS Waiver program.

The Recipients are adult males and both have extensively documented histories of self-injurious, aggressive, and destructive behavior. For example, Robert's behavior included throwing chairs, destroying property, kicking and biting others, smearing his feces, urinating on the floor and in electrical outlets, banging his head on objects, refusing medical care, and jumping out of a second story window twice, which caused severe orthopedic injuries, including a broken pelvis. He has been diagnosed with intermittent explosive disorder, impulse control disorder, pervasive developmental disorder, and personality change secondary to brain injury.

Ashlee's behavior included banging his head, causing severe head injury, self-induced vomiting, dangerous weight loss, biting others, kicking and spitting, scratching and biting himself, inappropriate urination and defecation, refusing medical care, and violently attacking staff. When he was enrolled in the Delaware's Autism Program, twenty workers' compensation claims were filed by staff members injured by Ashlee's unpredictable lunging and biting—all within a fifteen-month period.

After a long history of unsuccessful treatment and institutionalization for their

201 A.3d 529

severe behaviors and disabilities, both Ashlee and Robert, in 2004 and 2005, respectively, entered the JRC in Massachusetts where they remain. It is one of the few facilities in the country to employ aversive treatment procedures. JRC is the only facility in the United States that utilizes a graduated electronic decelerator device.

A Probate and Family Court in Massachusetts, in considering Robert's Proposed Medical Behavior Modification Treatment Plan dated June 11, 2013, explained that JRC uses the Graduated Electronic Decelerator 4 device ("GED-4"), which is manufactured by JRC. That device "consists of a transmitter operated by the JRC staff, a battery-operated receiver/stimulator worn by the JRC client and an electrode that is connected to the receiver/stimulator by a cable."5 The receiver/stimulator delivers a two-second "low-level surface application of electrical current to the client's skin upon command from the transmitter."6 The GED-4 "produces a current of 41 mA RMS, with a voltage of 66v when applied to typical skin resistance of 1.6 kilohms."7 "One or more electrical stimulations, (depending on the client's particular treatment program) are administered to the client after he engages in a targeted behavior."8 The side effects include reddening of the skin, blisters, and anxiety "during the brief period of time between the point in time when the teacher or aide announces that the client has engaged in a targeted inappropriate behavior and the point at which the skin shock is administered."9

Appellants maintain that as a result of their ongoing treatment at JRC, the Recipients no longer require any restraint, and have avoided highly restrictive institutional or isolated settings and debilitatingly high dosages of psychotropic drugs that once were the norm for them. They point out that the use of GED is part of their individualized...

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