Semerzakis v. COM'R OF SOCIAL SERVICES

• Decision Date: 07 June 2005
• Docket Number: No. 17181., No. 17180
• Citation: 873 A.2d 911,274 Conn. 1
• Parties: Elizabeth SEMERZAKIS v. COMMISSIONER OF SOCIAL SERVICES.
• Court: Connecticut Supreme Court

873 A.2d 911

274 Conn. 1

Elizabeth SEMERZAKIS v. COMMISSIONER OF SOCIAL SERVICES.

Nos. 17180, 17181.

Supreme Court of Connecticut.

Argued March 9, 2005.

Decided June 7, 2005.

Hugh Barber, assistant attorney general, with whom were Tanya Feliciano DeMattia, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellant in Docket No. SC 17180 (defendant).

Michael J. Kolosky, with whom were Bradford S. Babbitt and, on the brief, Linda L. Morkan, Hartford, for the appellant in Docket No. SC 17181 (intervening defendant).

Randi F. Mezzy, with whom was Shirley Bergert, for the appellee in both cases (plaintiff).

Royal J. Stark, Vernon, filed a brief for the Center for Children's Advocacy et al. as amici curiae.

BORDEN, NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

NORCOTT, J.

The principal issue in these appeals is whether the orthodontics regulation, § 17-134d-35 (e) of the Regulations of Connecticut State Agencies,¹ is a reasonable utilization control over the provision of orthodontic treatment to individuals receiving medicaid early prevention, screening, diagnosis and treatment (EPSDT) services pursuant to 42 U.S.C. § 1396d (r).² The plaintiff, Elizabeth Semerzakis, brought an administrative appeal pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., from the decision of the defendant, the commissioner of the department of social services (department), and the intervening defendant, Health Net of Connecticut, Inc. (Health Net), denying the plaintiff's request for payment of orthodontic treatment for her minor daughter, Sarah Asadoorian (Sarah), who is an EPSDT recipient. The department and Health Net now appeal from the judgment of the trial court sustaining the administrative appeal and remanding the case to the department for further proceedings.³ We reverse the judgment of the trial court and remand the case to that court with direction to render judgment dismissing the plaintiff's administrative appeal.

The record reveals the following undisputed facts and procedural history. The department utilizes a points system known as the Salzmann Assessment as part of its method for determining whether orthodontic treatment is medically necessary for medicaid recipients in the EPSDT program. See Regs., Conn. State Agencies § 17-134d-35 (e)(1); see also footnote 1 of this opinion. The Salzmann Assessment was created by J.A. Salzmann, a professor of orthodontics, and adopted by the American Association of Orthodontists "to provide a method for establishing priority in accepting patients in public health and pre-payment programs in keeping with available professional personnel and budgetary requirements ...." J.A. Salzmann, "Orthodontics in Public Health and Prepayment Programs," Orthodontics in Daily Practice (1974) p. 629. The Salzmann Assessment "provides a method for assessing the severity of a malocclusion according to [a] numerical rating of the maloccluded, missing, and malpositioned permanent teeth. The deviations and assigned point values (weights) employed [therein] are based on a consensus among orthodontists of their contribution to the severity of occlusal and dentofacial deviations that interfere with dental health, function, and esthetics." Id. The scoring is done on a standard form, and the assessment may be made using either molds of the patient's teeth or directly from the patient's mouth. Id.

"The total score for an individual provides an index to the need for treatment unaffected by subjective considerations of etiology, treatment planning, difficulty and duration of treatment required, or other professional judgments. However, special circumstances that affect the acceptability of an individual patient can be inserted under [the form category for] `Remarks.'" Id., p. 630. The score utilized under the assessment "is then set at a [points total] that will include a sufficient number of children for treatment in keeping with available competent professional personnel and funds budgeted for orthodontics.... Practical experience in using the Index indicates that a score of about [twenty-six] points or more usually indicates a high-priority malocclusion that requires treatment." Id., pp. 630-31.

The department's regulations deem orthodontic treatment to be medically necessary per se for any eligible recipient who receives a Salzmann Assessment score of twenty-four or more points. Regs., Conn. State Agencies § 17-134d-35 (e)(1). If the recipient scores less than twenty-four points, the analysis proceeds to a second step whereby "the [d]epartment shall consider additional information of a substantial nature about the presence of other severe deviations affecting the mouth and underlying structures. Other deviations shall be considered to be severe if, left untreated, they would cause irreversible damage to the teeth and underlying structures." Id. The regulation also states that, "[i]f the total score is less than twenty-four... points the [d]epartment shall consider additional information of a substantial nature about the presence of severe mental, emotional, and/or behavior problems, disturbances or dysfunctions" that are related to the "dentofacial deformity" if "orthodontic treatment is necessary and ... will significantly ameliorate the problems." Id., § 17-134d-35 (e)(2); see also footnote 1 of this opinion.

In the present case, Sarah is a minor who is eligible for and receives medicaid EPSDT medical services, which are known in Connecticut as "Husky A." Health Net is Sarah's managed care provider pursuant to its contract with the department. Russell Ferrigno, an orthodontist, examined Sarah and determined that she had an overbite of seven to eight millimeters, compared to a normal range of one to three millimeters. Ferrigno requested from Doral Dental (Doral), a subcontractor of Health Net, authorization to provide Sarah with orthodontic services. Ferrigno had determined that Sarah's condition placed her at thirty points on the Salzmann Assessment.

Thereafter, Ferrigno sent Xrays and molds of Sarah's teeth to Doral. A Doral orthodontist examined them and determined that her condition warranted only eight points on the Salzmann Assessment. Accordingly, Doral denied the plaintiff's request for Sarah's orthodontic services on the ground that such services were not medically necessary.

Subsequently, Ferrigno sent a letter to Doral explaining why he felt that Sarah required orthodontic treatment. Ferrigno stated therein that, although Sarah has a class I malocclusion, which means that her back teeth line up normally, she has other conditions requiring correction. A second orthodontist at Doral then assessed the initial denial of benefits and examined new Xrays and molds of Sarah's teeth. He also assigned Sarah's condition eight points on the Salzmann Assessment. At oral argument before this court, the plaintiff conceded that Sarah's teeth were scored correctly as eight points on the Salzmann Assessment.

Thereafter, in October, 2002, an administrative hearing was held before a department hearing officer at the request of the plaintiff. The hearing officer determined that Health Net and Doral properly had denied the plaintiff's request for orthodontic services. The hearing officer found that Ferrigno improperly had assigned sixteen points to Sarah's overbite, which was not sufficiently extensive to meet the definition of an overbite under the Salzmann Assessment; therefore, it did not warrant the assignment of any points on that scale. The hearing officer also found that Ferrigno improperly had assigned points to eight teeth for the overbite, even though the Salzmann Assessment permits only four teeth to be included in the overbite scoring.

The plaintiff appealed from the decision of the department hearing officer to the trial court pursuant to General Statutes § 4-183. The trial court subsequently granted Health Net's motion to intervene as a party defendant. After considering the federal and state statutory and regulatory schemes, as well as applicable case law, including this court's decision in Persico v. Maher, 191 Conn. 384, 465 A.2d 308 (1983), the trial court stated that, "it is clear that attempts by the [department] to establish eligibility requirements for medicaid which are stricter than those authorized by the medicaid act are ineffective." The trial court concluded that the department's decision was incorrect because, although it "addresses the elements of Connecticut's plan which deal with the criteria for orthodontic services, it ignores the mandate of 42 U.S.C. § 1396d (r)(5) that a state shall provide such other necessary health care ... to correct or ameliorate defects whether or not such services are covered under the state plan." (Emphasis in original; internal quotation marks omitted.) The trial court also concluded that the department's decision improperly established irreversibility of orthodontic damage as a criterion for treatment eligibility "without authority to do so in federal or Connecticut statute or regulation ...." Accordingly, the trial court rendered judgment sustaining the plaintiff's administrative appeal and remanded the case to the department for a new hearing.⁴ These appeals followed.⁵

On appeal, the defendants contend that the trial court improperly added a step to the medical necessity analysis by applying the catch-all provision of the EPSDT statute, 42 U.S.C. § 1396d (r)(5), which they argue is inapplicable because there is a different subdivision that pertains specifically to dental care, namely, § 1396d (r)(3). They also claim that the orthodontics regulation is a reasonable restriction on orthodontic treatment and, therefore, does not violate federal medicaid law, which permits states to impose reasonable utilization controls. Finally, the defendants assert that the trial court improperly concluded that the...