Samantha A. v. Dep't of Soc.

• Decision Date: 26 May 2011
• Docket Number: No. 84325–2.,84325–2.
• Citation: 171 Wash.2d 623,256 P.3d 1138
• Parties: SAMANTHA A., Respondent,v.DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Appellant.
• Court: Washington Supreme Court

171 Wash.2d 623

256 P.3d 1138

SAMANTHA A., Respondent,

v.DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Appellant.

No. 84325–2.

Supreme Court of Washington, En Banc.

Argued Nov. 9, 2010.Decided May 26, 2011.

OPINION TEXT STARTS HEREWest CodenotesHeld InvalidWAC 388–106–0130(3)(b), 388–106–0213(2, 3) William Bruce Work, Edward J. Dee, Office of the Attorney General, Social and Health Services Division, Olympia, WA, for Appellant.Regan Bailey, Susan L. Kas, Disability Rights Washington, Eleanor Hamburger, Sirianni Youtz Meier and Spoonemore, Seattle, WA, for Respondent.Daniel S. Gross, Janet Chantal Varon, Northwest Health Law Advocates, Seattle, WA, amicus counsel for ARC of Washington State, National Health Law Program, Northwest Health Law Advocates, and TEAMCHILD.Amy Louise Crewdson, Columbia Legal Services, Olympia, WA, amicus counsel for Columbia Legal Services.C. JOHNSON, J.

[171 Wash.2d 626] ¶ 1 This case involves a challenge to a Department of Social and Health Services (DSHS) regulation, WAC 388–106–0213, that reduces the financial assistance payable for in-home personal care services (based upon the child's age and whether the child lives with a parent). The superior court found this regulation invalid as violating federal Medicaid comparability requirements under 42 U.S.C. § 1396a and Medicaid Early and Periodic Screening Diagnosis and Treatment (EPSDT) laws under 42 U.S.C. § 1396d. The superior court also awarded respondent Samantha A. attorney fees under RCW 74.08.080.

¶ 2 We affirm the superior court in part and hold that WAC 388–106–0213 violates federal comparability requirements under 42 U.S.C. § 1396a. Furthermore, we hold WAC 388–106–0130 invalid to the extent it authorizes WAC 388–106–0213. We also affirm the superior court's award of attorney fees. Because we find WAC 388–106–0213 invalid based on federal comparability requirements, we decline to reach or decide any other issues.

FACTS

¶ 3 Samantha A. is a 15–year–old ¹ with a wide range of medical maladies.² Samantha is unable to perform a majority of the activities of independent daily living. Samantha has difficulty speaking and being understood. She is assaultive, disrobes in public, and wanders away if unsupervised. Samantha requires assistance with mundane tasks such as eating, using the restroom, dressing, and personal grooming.

¶ 4 DSHS has determined that Samantha is eligible for 24–hour institutional care because of the extreme nature of her needs. Because Samantha is cared for by a single mother committed to meeting Samantha's needs, Samantha is enrolled in the Medicaid Home and Community Based Waiver program, so she can receive benefits at home and not be institutionalized. As part of these in-home benefits, Samantha receives Medicaid personal care (MPC).

¶ 5 DSHS determines a child's MPC service level using DSHS's Comprehensive Assessment Reporting Evaluation (CARE) formula. Numerous regulations govern the operation of the CARE assessment formula. See WAC 388–106–0050 through–0235. In the initial stage of a CARE evaluation, the individual is scored on factors such as an individual's ability to perform daily activities and an individual's mental status. The individual is then assigned to 1 of 17 classification groups, each group having a set number of base MPC hours associated with it. WAC 388–106–0125. Once these base hours are established, an assessor individually considers the recipient's self-performance and the amount of informal support available for the recipient's activities of daily living (ADL) and instrumental activities of daily living (IADL).³ The recipient's level of informal support for each ADL and IADL then reduces the base hours allocated to that recipient by a predetermined percentage. WAC 388–106–0130. This process is the same for children and for adults.

¶ 6 In 2005, DSHS adopted changes to its CARE assessment formula to be applied solely to children. Included in the changes was a new rule, WAC 388–106–0213, which establishes automatic reductions to a child's base MPC hours. This new rule mechanically categorizes certain ADL and IADL as being “met” based solely upon a child's age. The rule also further reduces a child's base MPC hours by mandating that the “status and assistance available are met or partially met over three-fourths of the time” if the child lives with their legally responsible natural parent, stepparent, or adoptive parent. WAC 388–106–0213(3).

¶ 7 DSHS regulations do not require consideration of evidence from a child's medical provider regarding the amount of MPC services necessary to support a disabled child's condition. DSHS regulations also do not allow recipient children to challenge the automatic reductions imposed by WAC 388–106–0213 by showing their needs are still unmet following the reductions. DSHS does provide a process for seeking an exception to rule (ETR) from department staff, but this process does not grant any administrative hearing rights to denials of these ETR requests. See WAC 388–106–0140; WAC 388–440–0001.

¶ 8 Before the implementation of WAC 388–106–0213, DSHS assessed Samantha as needing 90 hours of MPC. The following year, Samantha was reassessed under the new rule. The new assessment showed that Samantha was exhibiting increased behavioral problems affecting her ability to complete personal care tasks. The new assessment calculated that Samantha still required 90 base MPC hours. However, pursuant to WAC 388–106–0213, the CARE formula automatically reduced these 90 base hours to 39 hours. In effect, the CARE formula classified many of Samantha's dressing, eating, hygiene, and transportation needs as being met because of her age and because she lived with her mother. Although Samantha was eligible for 24–hour institutional care and had previously been assessed to require an average of three MPC hours daily, WAC 388–106–0213 operated to reduce Samantha's MPC hours to just over one hour a day.

¶ 9 Samantha's mother requested an ETR hearing to contest the reduction of MPC hours. Samantha's medical provider conducted an EPSDT exam⁴ and determined that Samantha required 96 hours of MPC in order “to maximize her potential and achieve her best possible functional level.” Ex. 8 (Mot. to Transfer to Washington State Supreme Ct.) at 8. DSHS neither approved additional MPC hours nor granted Samantha an ETR exception. The administrative record does not show that DSHS considered, weighed, or integrated the recommendations of Samantha's medical provider.

¶ 10 Samantha petitioned the Thurston County Superior Court for review. The superior court found that WAC 388–106–0213 violated federal Medicaid comparability and EPSDT laws. Furthermore, the superior court invalidated another rule, WAC 388–106–0130(3)(b), to the extent that it authorizes WAC 388–106–0213. The superior court also awarded Samantha attorney fees. DSHS appealed to Division Two of the Court of Appeals. This court then granted Samantha's motion to transfer.

ISSUES

1. Whether WAC 388–106–0213 violates federal Medicaid comparability requirements.

2. Whether the superior court properly awarded Samantha attorney fees under RCW 74.08.080.

ANALYSIS

¶ 11 The Administrative Procedure Act provides that in a proceeding involving review of administrative rules, “the court shall declare the rule invalid only if ... the rule exceeds the statutory authority of the agency ... or the rule is arbitrary and capricious.” RCW 34.05.570(2)(c).

¶ 12 We review an agency interpretation of federal law de novo under an “error of law” standard. Skamania County v. Columbia River Gorge Comm'n, 144 Wash.2d 30, 42, 26 P.3d 241 (2001) (citing Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 175–76, 4 P.3d 123 (2000)).

1. Whether WAC 388–106–0213 violates federal Medicaid comparability requirements.

¶ 13 MPC is a Medicaid state plan program authorized under 42 U.S.C. § 1396d(a)(24) and RCW 74.09.520(2). As a voluntary participant in the federal Medicaid program, Washington State must comply with Medicaid statutes and related regulations. S.A.H. ex rel. S.J.H. v. Dep't of Soc. & Health Servs., 136 Wash.App. 342, 348, 149 P.3d 410 (2006). DSHS administers Medicaid medical assistance programs in Washington State. RCW 74.04.050; RCW 74.09.500.

¶ 14 The federal Medicaid comparability provision mandates that a state Medicaid plan must provide “that the medical assistance made available to any individual ... shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual.” 42 U.S.C. § 1396a(a)(10)(B)(i); see also 42 C.F.R. § 440.240(b). As with all Medicaid services, states “may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.” 42 C.F.R. § 440.230(d).

¶ 15 WAC 388–106–0130(3)(b) mandates DSHS to reduce MPC service hours for children under the age of 18 pursuant to the framework established in WAC 388–106–0213. Under WAC 388–106–0213(2), DSHS provides automatic cuts to MPC hours based upon a child's age. Also, under WAC 388–106–0213(3), DSHS reduces MPC hours based upon a presumption that a child's needs are “met or partially met” when that child lives with a legally responsible natural parent, stepparent, or adoptive parent.

¶ 16 DSHS argues that WAC 388–106–0213(2) properly withholds payment for assistance with needs that are based upon age, not disability. DSHS reasons that all children below certain ages are presumed to have the same personal care needs. Put another way, DSHS argues that assisting a four-year-old with bathing fulfills a developmental need, not a medical need; therefore, DSHS will withhold providing paid assistance regarding bathing needs for all four- year-old children. DSHS also argues that the age- and parent-based reductions in WAC 388–106–0213 create a global benchmark in order to avoid paying for a service that is unrelated to a child's disability. Thus, the question posed to us here is whether...