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Myers v. South Carolina Department of Health and Human Services

Court of Appeals of South Carolina

December 21, 2016

Albert C. Myers, Appellant,
South Carolina Department of Health and Human Services, Respondent. Appellate Case No. 2014-000418

          Heard April 5, 2016

         Appeal From The Administrative Law Court Shirley C. Robinson, Administrative Law Judge

          Patricia Logan Harrison, of Columbia, for Appellant.

          Damon C. Wlodarczyk, of Riley Pope & Laney, LLC, of Columbia; Richard G. Hepfer and Byron R. Roberts, of South Carolina Department of Health and Human Services, of Columbia; all for Respondent.

          WILLIAMS, J.

         In this appeal from the administrative law court (ALC), Albert Myers claims the South Carolina Department of Health and Human Services (DHHS)-and more specifically, its agent, the South Carolina Department of Disabilities and Special Needs (DDSN) (collectively, the Department)-erred in failing to properly notify him of his reduction in Medicaid services in violation of his statutory and constitutional rights. Myers also contends the ALC erred in permitting a reduction or termination of his Medicaid services when the Department's decision did not comply with regulations promulgated in accordance with the South Carolina Administrative Procedures Act[1] (APA). Further, Myers claims the ALC erred in upholding the Department's denial of requested services by Myers' treating physician because the Department failed to provide any evidence from a qualified source that contradicted the treating physician's opinion as to which services were medically necessary for Myers' care. Last, Myers claims the ALC erred in concluding the Department did not violate the anti-retaliatory provisions of section 504 of the Rehabilitation Act of 1973, [2] the Americans with Disabilities Act (ADA) of 1990, [3] and Title VI of the Civil Rights Act of 1964[4]based upon Myers' mother's public advocacy efforts after the Department either reduced or terminated Myers' Medicaid services. We affirm in part, reverse in part, and remand.


         Myers is a thirty-eight-year-old Medicaid-eligible individual, who is mentally and developmentally disabled. He is nonverbal and suffers from athetoid quadriplegia, cerebral palsy, severe scoliosis, epilepsy, and arthrogroposis. Because Myers cannot swallow properly, he must ingest food and medications through a gastric tube. Myers filed this action after the Department either reduced or eliminated certain services that Myers received pursuant to the South Carolina Intellectual Disability/Related Disabilities (ID/RD) waiver program.

         The ID/RD waiver program, created pursuant to 42 U.S.C. § 1396n(c) (2012), permits states to waive the requirement that persons with mental retardation or a related disability reside in an institutional setting to receive certain Medicaid services. See Doe v. Kidd, 501 F.3d 348');">501 F.3d 348, 351 (4th Cir. 2007). The waiver program provides Medicaid reimbursement to participant states for providing community- based services to individuals who would otherwise require institutionalized care. See 42 U.S.C. § 1396n(c).

         Because the waiver program is governed by federal statute, when a state elects to participate in the program, it must comply with all federal Medicaid laws and regulations. Kidd, 501 F.3d at 351. Among other requirements, a state's waiver program "must specify the amount, duration, and scope of each service it provides." 42 C.F.R. § 440.230(a) (2012). States are expressly authorized to place limits on services or reduce the amount, duration, or scope of a provided service, so long as such reductions are approved by the federal government prior to implementation and such reductions are not done in an arbitrary manner or upon some other impermissible basis. Id. § 440.230(b)-(d). Once a waiver program is approved, the waiver remains in effect for a period of three years, but it may be renewed thereafter in five-year increments. 42 U.S.C. § 1396n(c)(3).

         Federal law mandates a single state agency administer a state's Medicaid plan. 42 U.S.C. § 1396a(5). In South Carolina, DHHS is the state agency responsible for administering and supervising the state's Medicaid programs, including the ID/RD waiver program. See S.C. Code Ann. § 44-6-30(1) (Supp. 2016); Kidd, 501 F.3d at 351. After DHHS submits the waiver plan to the federal government and the plan is approved, DDSN is then responsible for the daily administration of the waiver program and its services. S.C. Code Ann. § 44-20-240 (Supp. 2016).

         In 2009, South Carolina submitted to the Centers for Medicare & Medicaid Services (CMS) a waiver renewal application, which eliminated certain nonmandatory services and implemented service limitations or caps on other categories of services. See Stogsdill v. S.C. Dep't of Health & Human Servs., 410 S.C. 273, 275, 763 S.E.2d 638, 639 (Ct. App. 2014). CMS approved the waiver renewal application, and the renewed waiver-including the service caps-became effective January 1, 2010. Id.

         Prior to the 2010 waiver renewal, Myers received the following: dental services; specialized medical equipment, medical supplies, and assistive technology; one hour of physical therapy per week; forty-five hours of personal care aide (PCA) II per week; six hours of community services per week; six hours of day services per week; forty-eight days of daily respite care; and 456 hours of hourly respite care per year. PCA services consist of hands-on personal care that Myers needs to accomplish his activities of daily living such as bathing, toileting, dressing, and eating. See id. "Respite [c]are can be a range of services, including personal care[, ] but is designed to provide services when the normal caregiver is absent or needs relief." Id.

         After the waiver renewal, Myers' services were modified as follows: physical therapy and daily respite care were eliminated; twenty-eight hours per week of PCA II services (reduction of seventeen hours); one full day of adult day health care services in lieu of the half-day community and day services; and sixty-eight hours per month of respite care, with an exception granting Myers an additional thirty-three hours per month (total of 101 hours of respite care per month). Beginning January 12, 2011, Myers was authorized to receive six hours of PCA I services and psychological counseling. Myers was subsequently institutionalized in a long-term care facility in December 2011. At the time of his institutionalization, he was the youngest resident of the nursing home by forty years.

         Myers filed this appeal in December 2009 when his services coordinator informed him that his Medicaid services would be reduced on January 1, 2010. On January 13, 2010, two weeks after Myers' services were altered, the director of DDSN notified Myers in writing that his request for reconsideration was denied. A hearing officer for DHHS issued an interlocutory order on February 25, 2010, in which the officer requested that Myers submit any allegations of error pertaining to his service modifications. Counsel for Myers responded on March 15, 2010, and DDSN replied to Myers' allegations. Based on these filings, the DHHS hearing officer issued an order of dismissal on May 6, 2010. However, the hearing officer failed to conduct an evidentiary hearing prior to issuing the order of dismissal.

         In light of his failure to receive an evidentiary hearing, Myers appealed the order of dismissal to the ALC on June 18, 2010, challenging DHHS's May 6, 2010 order of dismissal (First Appeal). The ALC issued an order on November 9, 2011 (November 2011 Order), finding-among other things-that Myers' argument regarding the Department's failure to provide adequate notice was abandoned, and Myers was entitled to an evidentiary hearing regarding the reduction or elimination of his services to comply with due process. The ALC accordingly remanded Myers' case to the DHHS hearing officer for an evidentiary hearing. After the hearing officer conducted a hearing, she issued an order on February 9, 2012, upholding the reductions in Myers' services. Myers timely filed a motion to alter or amend, which the hearing officer denied on March 19, 2012. Myers then appealed to the ALC on April 13, 2012 (Second Appeal), challenging DHHS's final decision in this matter.

         Myers raised the same issues[5] to the ALC in the Second Appeal that are before this court on appeal. In its February 3, 2014 order (February 2014 Order) affirming DHHS's decision, the ALC found the following: (1) Myers failed to preserve the issue of insufficient notice because Myers only raised the notice and due process arguments in the facts section of his brief to the ALC, and in the alternative, despite the Department's failure to comply with the technical requirements of the federal statute concerning notice, Myers failed to prove he was prejudiced; (2) the newly imposed service caps were not binding because they had not been promulgated as regulations under this state's APA; (3) because the service caps were not binding, the ALC was required to consider other evidence specific to Myers' case, a review of which demonstrated substantial evidence supported the Department's decision; and (4) Myers failed to prove the Department retaliated against him in violation of the ADA and the Civil Rights Act. This appeal followed.


         This court's standard of review is governed by the APA. See S.C. Code Ann. § 1-23-380(5) (2005 & Supp. 2016). Pursuant to the APA, the court of appeals may affirm the agency's decision or remand the matter for further proceedings. Id. The court may also reverse or modify the decision

if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on ...

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