Stinemetz v. Kan. Health Policy Auth.

• Citation: 45 Kan.App.2d 818,252 P.3d 141
• Decision Date: 04 May 2011
• Docket Number: No. 105,366.,105,366.
• Parties: Mary D. STINEMETZ, Appellant,v.KANSAS HEALTH POLICY AUTHORITY, Appellee.
• Court: Court of Appeals of Kansas

45 Kan.App.2d 818

252 P.3d 141

Mary D. STINEMETZ, Appellant,

v.KANSAS HEALTH POLICY AUTHORITY, Appellee.

No. 105,366.

Court of Appeals of Kansas.

May 4, 2011.

[252 P.3d 142 , 45 Kan.App.2d 818]

Syllabus by the Court

1. In an appeal from a decision by an administrative agency, generally a party is limited to the issues raised at the administrative hearing. But because administrative agencies cannot rule on constitutional questions, the issue of constitutionality can be raised for the first time before a court of law.

2. The scope of judicial review of a state administrative agency action is defined by the Kansas Judicial Review Act, K.S.A. 77–601 et seq. An appellate court exercises the same limited review of the agency's action as does the district court; it is as though the appeal had been made directly to the appellate court.

3. Whether a statute or regulation is constitutional as applied is a question of law over which an appellate court has unlimited review.

4. In analyzing a claim under the Free Exercise Clause of the First Amendment to the United States Constitution, a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice or belief.

5. In analyzing a claim under the Free Exercise Clause of the First Amendment to the United States Constitution, where the State has in place a system of individual exemptions to a statute or regulation, it may not refuse to extend that system to cases of religious hardship without a compelling reason.

6. Section 7 of the Kansas Constitution Bill of Rights provides greater protections concerning the free exercise of religious beliefs than does the First Amendment to the United States Constitution.

7. To determine whether government action violates an individual's right to the free exercise of religious beliefs under the Kansas Constitution, a court must determine: (1) whether the individual's religious beliefs are sincerely held; (2) whether the state action burdens the individual's free exercise of religious beliefs; (3) whether the state interest is overriding or compelling; and (4) whether the State uses the least restrictive means of achieving its interest. The individual bears the burden of proof to show that the first two steps have been satisfied, and then the burden shifts to the State to prove that the last two steps are met.

Corinne Petrik, of Kansas Legal Services, of Hays, and Lowell C. Paul, of Kansas Legal Services, of Topeka, for appellant.Brian M. Vazquez, of Kansas Health Policy Authority, for appellee.Keturah A. Dunne, associate general counsel, of Watchtower Bible and Tract Society of New York, Inc., of Patterson, New York, and Tony A. Potter, of Potter Law Office, P.A., of Hill City, for amicus curiae Watchtower Bible and Tract Society of New York, Inc.Before HILL, P.J., MALONE and BUSER, JJ.MALONE, J.

Mary D. Stinemetz, a Kansas citizen and a practicing Jehovah's Witness, needs a liver transplant, yet her religious beliefs prohibit blood transfusions. There is a medically accepted technique, known as a bloodless liver transplant, in which liver transplant surgery can be performed without a blood transfusion, although many medical facilities do not consider this technique to be the safest procedure. Cost is not the issue. The available evidence indicates that the bloodless technique is less expensive than a procedure involving blood transfusions. There is no medical facility in Kansas that performs bloodless liver transplants, but the Nebraska Medical Center in Omaha is willing to perform the surgery.

Because Stinemetz is a beneficiary of the Kansas Medical Assistance Program (Medicaid), she requested prior authorization from the Kansas Health Policy Authority (KHPA) for an out-of-state liver transplant. There is no question that the KHPA would authorize a liver transplant for Stinemetz in Kansas, including a bloodless liver transplant if a medical facility was available in Kansas to perform the technique. However, the KHPA denied Stinemetz' request for prior authorization for out-of-state services on the ground that her religious preference did not constitute a medical necessity. The district court affirmed the KHPA's denial of prior authorization. Stinemetz appeals, asserting that the denial violated her rights under the Free Exercise Clause of the First Amendment to the United States Constitution and § 7 of the Kansas Constitution Bill of Rights. For the reasons set forth herein, we agree with Stinemetz' claims under both the federal and Kansas Constitutions, and we reverse and remand with directions that the KHPA grant Stinemetz' request for prior authorization for an out-of-state liver transplant.

Factual and Procedural Background

Stinemetz was initially diagnosed with primary biliary cirrhosis in 1989; since then, her liver function has deteriorated. By 2009, it became apparent that Stinemetz needed a liver transplant. At that point, she had been a devout practicing Jehovah's Witness for over 35 years. Due to her religious beliefs, she refuses to accept whole blood transfusions. She also refuses any procedure whereby her own blood is removed from her body and stored for later use in a surgical procedure.

On June 3, 2009, a committee at the University of Kansas Medical Center (KUMC) met to review and discuss Stinemetz' case and the possibility of performing a liver transplant on Stinemetz at KUMC. The committee decided it could not safely perform a bloodless liver transplant at KUMC; therefore, it declined to evaluate her for the procedure. Dr. Ryan Taylor at KUMC recommended that Stinemetz be referred to another center with experience in bloodless transplants, such as the University of Oklahoma.

In November 2009, Stinemetz was hospitalized for 5 days at St. Luke's Hospital in Kansas City, Missouri, for treatment of a left pleural effusion. By this point, Stinemetz had been diagnosed with end-stage liver disease. Her doctors believed that her only recourse was a liver transplant. Dr. Richard Gilroy at KUMC suggested Nebraska Medical Center in Omaha as a facility that could perform a bloodless liver transplant.

Stinemetz is a recipient of Medicaid, and the KHPA is the state agency responsible for supervising and administering Medicaid assistance in Kansas. K.S.A. 2010 Supp. 75–7409. Under K.A.R. 30–5–70(c)(2), any out-of-state services that occur farther than 50 miles from the Kansas border will only be reimbursed by Medicaid if the service is an emergency service, prior authorization has been issued, or the service is provided by an independent laboratory. Because Nebraska Medical Center is more than 50 miles from the Kansas border, Stinemetz requested prior authorization from the KHPA for the out-of-state facility to perform the transplant.

On January 11, 2010, the KHPA notified Stinemetz that it was denying her request for prior authorization for the out-of-state liver transplant. Specifically, the KHPA informed Stinemetz that her request for prior authorization was “reviewed and denied for out of state services, relegious [ sic ] preference does not meet medical necessity, through the Kansas Health Policy Authority Medical Work Group.” On January 28, 2010, Dr. Gary A. Thompson wrote a letter for Stinemetz asking for an expedited appeal of the denial, stating that Stinemetz' “risk of death is high, due to liver failure.”

On February 2, 2010, Stinemetz filed her request for an administrative hearing. Christy Escobar, the fair hearings analyst for HP Enterprise Services, Kansas' fiscal agent for Medicaid, prepared an agency summary of the case and filed the summary on February 10, 2010. The agency summary stated:

“The beneficiary has requested to have a bloodless liver transplant because of her religious beliefs. The prior authorization request was denied because there is no medical necessity for the beneficiary to have a bloodless transplant—a regular liver transplant is available in Kansas and would be considered medically necessary. The beneficiary's religious preference to have a bloodless liver transplant does not meet medical necessity, through the Kansas Health Policy Authority Medical Work Group.”

An administrative hearing was held on March 1, 2010. At the hearing, Escobar testified about her agency summary. Dr. Wayne Oren Wallace, Jr., clinical consultant for the KHPA, also testified at the hearing. Wallace testified that the medical work group reviewed Stinemetz' request for prior authorization and ultimately decided that the KHPA would pay for the liver transplant at KUMC, but the KHPA would not authorize a bloodless procedure because it required Stinemetz to go to a different facility out-of-state. Wallace acknowledged that if KUMC would perform a bloodless liver transplant, Medicaid would pay for the procedure. Wallace also acknowledged that there are certain negative effects associated with blood transfusions.

Scott Bears, a program manager with the KHPA, also testified at the hearing. Bears oversees coverage issues involving transplants. Bears testified that he worked with the medical work group in discussing and resolving Stinemetz' request for prior authorization. According to Bears, when determining coverage, the first step is to determine whether the requested service is a covered service. Bears testified that Stinemetz' liver transplant at the Nebraska Medical Center was not a covered service because a hospital in Kansas could perform the procedure, but without using the bloodless technique.

Finally, Stinemetz testified at the hearing. At the time of the hearing, she was 63 years old, and she testified she had liver problems for many years. Stinemetz testified that she had been a practicing Jehovah's Witness since she was 28 years old. Stinemetz further testified that she would refuse a blood transfusion even in a life-threatening situation because she is a...