Snelling v. DEPT. OF SOCIAL SERVICES

• Decision Date: 03 March 2010
• Docket Number: No. 25337.,25337.
• Citation: 780 N.W.2d 472,2010 SD 24
• Parties: Kyla SNELLING, Appellant, v. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, South Dakota Department of Human Services, Appellees.
• Court: South Dakota Supreme Court

780 N.W.2d 472

2010 SD 24

Kyla SNELLING, Appellant, v. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, South Dakota Department of Human Services, Appellees.

No. 25337.

Supreme Court of South Dakota.

Considered on Briefs January 11, 2010.

Decided March 3, 2010.

Dominic M. Smith, South Dakota Advocacy Services, Sioux Falls, South Dakota, Attorney for appellant.

Marty J. Jackley, Attorney General, Laurie M. Bauer, Special Assistant Attorney General, Department of Human Services, Pierre, South Dakota, Attorneys for appellees.

GILBERTSON, Chief Justice.

¶ 1. Kyla Snelling (Kyla) appeals the circuit court's decision and order affirming the Administrative Law Judge's (ALJ) determination that Kyla was not eligible for services under a federally funded Medicaid waiver program for in-home/community-based services for the mentally retarded.¹ Kyla also appeals the circuit court's decision affirming the ALJ's denial of reimbursement for a functional evaluation. We affirm.

FACTS

¶ 2. Kyla is a sixteen-year-old young woman with Spinal Atrophy Type II, a degenerative muscular disease.² Unable to walk or stand, she uses an electric wheelchair. Kyla is unable to use her arms to transfer to and from her wheelchair. She is also unable to bathe, dress her lower body, attend to her personal hygiene needs, use the bathroom, prepare her meals, shop, clean her home, or do any activities of daily living without help. Kyla is physically limited by her ability to lift only small and light objects to and from her lap to a low countertop or table. She has begun experiencing difficulty tipping her head back to drink and uses a straw to compensate. Kyla can feed herself, but requires help cutting solid foods. Her mother, who also cares for two other physically disabled children in the home, provides all of Kyla's care at home and transports her to all her activities. Her mother either uses an electric lift to transfer Kyla, or lifts her manually. Kyla's mother is the sole caregiver except while Kyla is at school.

¶ 3. Kyla has an IQ of 109, well within the normal range, and attends public high school in Sioux Falls with the help of an educational assistant. A Hoyer lift is used to transfer Kyla at school. Kyla is considered bright, social, and able to comport herself in school without any behavioral issues. Kyla is currently working on obtaining a driver's license; although she will require an adapted automobile after she is licensed to drive.

¶ 4. Kyla receives Supplemental Social Security Income (SSI) and services from a non-waiver family support program administered by the Department of Social Services (DSS) through Volunteers of America and funded exclusively with general state funds. The state-funded, non-waiver program is codified at SDCL chapter 27B-2. Services through the state-funded non-waiver program are limited to individuals with a developmental disability as defined at SDCL 27B-1-18, which provides:

A developmental disability is any severe, chronic disability of a person that:

(1) Is attributable to a mental or physical impairment or combination of mental and physical impairments;

(2) Is manifested before the person attains age twenty-two;

(3) Is likely to continue indefinitely;

(4) Results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency; and

(5) Reflects the person's need for an array of generic services, met through a system of individualized planning and supports over an extended time, including those of a life-long duration.

(Emphasis added).

¶ 5. A second family support program managed by DSS, administered through a Medicaid waiver and funded with federal funds (Medicaid FS Waiver program), is available to qualified South Dakota residents. The Medicaid FS Waiver program is limited to individuals in need of and eligible for institutionalized services in an Intermediate Care Facility for People with Mental Retardation (ICF/MR) as provided by 42 C.F.R. § 440.150, but who could remain in their homes or in the community if services were available.

¶ 6. The Code of Federal Regulations, Chapter 42, Section 440.150, contains the eligibility requirements for services and institutionalization in an ICF/MR, which also determine whether an individual may also qualify for the Medicaid FS Waiver program. It provides:

(a) "ICF/MR services" means those items and services furnished in an intermediate care facility for the mentally retarded if the following conditions are met:

(1) The facility fully meets the requirements for a State license to provide services that are above the level of room and board.

(2) The primary purpose of the ICF/MR is to furnish health or rehabilitative services to persons with mental retardation or persons with related conditions.

(3) The ICF/MR meets the standards specified in subpart I of part 483 of this chapter.

(4) The recipient with mental retardation for whom payment is requested is receiving active treatment, as specified in § 483.440 of this chapter.

(5) The ICF/MR has been certified to meet the requirements of subpart C of part 442 of this chapter, as evidenced by a valid agreement between the Medicaid agency and the facility for furnishing ICF/MR services and making payments for these services under the plan.

42 C.F.R. § 440.150. The Medicaid FS Waiver program's objective is to avoid placing a qualified individual in an ICF/MR if necessary services are available in the community. See 42 U.S.C. § 1396a(a)(10)(A)(ii)(VI); 42 C.F.R. § 441.301(b)(1)(ii) and (iii)(B); 42 C.F.R. § 430.25(c)(2). An individual qualifies for placement in an ICF/MR under 42 C.F.R. § 435.1010, which defines "Persons with related conditions" as follows:

Persons with related conditions mean individuals who have a severe, chronic disability that meets all of the following conditions:

(a) It is attributable to—

(1) Cerebral palsy or epilepsy; or

(2) Any other condition, other than mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for these persons.

(b) It is manifested before the person reaches age 22.

(c) It is likely to continue indefinitely.

(d) It results in substantial functional limitations in three or more of the following areas of major life activity:

(1) Self-care.

(2) Understanding and use of language.

(3) Learning.

(4) Mobility.

(5) Self-direction.

(6) Capacity for independent living.

(Emphasis added).

¶ 7. South Dakota currently maintains one ICF/MR in Redfield, South Dakota. Services focus on the individual needs of each resident in the areas of "personal care, social interaction skills, behavioral impulse control, making appropriate choices, domestic skills, etc. Depending upon the person, techniques may be utilized to enhance sensory motor skills, responses to stimuli, orientation to one's environment, etc. Vocational and educational training are also offered." S.D. Dep't of Human Services, http://dhs.sd. gov/sddc/about.aspx (last visited February 22, 2010).

¶ 8. The Centers for Medicaid and Medicare approved South Dakota's participation in the Medicaid FS Waiver program for home and community based services (HCBS). South Dakota Administrative Rules provide the qualifications for participation in the Medicaid FS Waiver program and mirror the federal requirements. An individual seeking to participate in the Medicaid FS Waiver program must meet the requirements of ARSD 67:54:04:04, which provides:

In addition to qualifying under § 67:54:04:03, an individual must meet the following requirements:

(1) Be developmentally disabled according to § 67:54:04:05;

(2) Be appropriate for HCBS placement according to § 67:54:04:06; and

(3) Be in need of and eligible for placement in an intermediate care facility for the mentally retarded or the developmentally disabled according to § 67:54:03:04.

An individual who has been denied social security or SSI disability benefits based on a disability is ineligible for HCBS.

An individual may be eligible for the program if that person meets the requirements of ARSD 67:54:04:04, and the requirements of ARSD 67:54:04:03, which provides:

HCBS may be available to an individual who meets one of the following requirements:

(1) Is receiving AFDC, SSI, or a foster care maintenance payment under Title IV-E of the Social Security Act; or

(2) Is aged, blind, or disabled and has an income less than 300 percent of the SSI standard benefit but is not eligible for SSI.

The individual must also satisfy the requirements of ARSD 67:54:04:05, which provides:

The provider shall maintain documentation signed by a physician or psychologist which indicates that the individual is developmentally disabled. An individual is considered developmentally disabled if the individual meets all of the following criteria:

(1) The individual has a severe, chronic disability attributable to mental retardation, cerebral palsy, epilepsy, head injury, brain disease, or autism or any other condition, other than mental illness, closely related to mental retardation and requires treatment or services similar to those required for the mentally retarded. To be closely related to mental retardation, a condition must cause impairment of general intellectual functioning or adaptive behavior similar to that of mental retardation;

(2) The disability manifested itself before the individual reached age 22; and

(3) The disability is likely to continue indefinitely.

(Emphasis added). Finally, an individual qualified by virtue of having a developmental disability as defined by ARSD 67:54:04:05 must need the types of services offered in an ICF-MR by demonstrating a "substantial functional limitation" in...