Opinion
Fairfax County Circuit Court Case No. CL-2011-1627
05-13-2011
Jeffrey Pape v. Gregg Pane, Director VDMAS
Yahne Miorini Miorini Law, PLLC Counsel for the Petitioner Edward E. Zetlin Edward Zetlin Law Counsel for the Petitioner Usha Koduru Assistant Attorney General Counsel for the Defendant
DENNIS J. SMITH. CHIEF JUDGE
MARCUS D. WILLIAMS
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C.THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE DWHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L BRCDIE
LORRAINE NORDLUND
BRETT A KASSASIAN
MICHAEL F. DEVINE
JUDGES BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKDRT
RICHARD J, JAMBORSKY
JACK B. STEVENS
J. HOWE BROWN
F BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL P. McWEENY
GAYLORD L FINCH. JR
STANLEY P. KLEIN
RETIRED JUDGES
May 13, 2011
Dear Counsel:
This administrative appeal arises out of the decision by the Virginia Department of Medical Assistance Services ("DMAS") finding the Appellant, Jeffrey Pape, ineligible for Medicaid coverage under the Mental Retardation / Intellectual Disability ("MR/ID") Waiver services. Pape claims that the decision by DMAS's hearing officer does not comply with DMAS's regulations governing eligibility for MR/ID Waiver services, or represents an arbitrary and capricious interpretation of those regulations. Pape also claims that the factual record does not support DMAS's conclusion that Pape does not meet the diagnostic criteria for MR/ID. The Court agrees that the decision by the hearing officer is an arbitrary and capricious interpretation. Because the Court remands the matter to DMAS for further proceedings in light of this Opinion, the Court does not reach Pape's remaining claim.
FACTUAL BACKGROUND
The facts of this case, which are well known to the parties, are set forth in great detail in the written decision of the Hearing Officer. The Court will recite only those facts necessary to this appeal. Pape is twenty-five years old and develop mentally delayed. In 1996, when Pape was ten years and four months old, it was determined that Pape was autistic and had developmental delays in all areas of development. Testing indicated that be had an IQ composite score of seventy-one, placing his overall cognitive ability within the borderline range of intellectual functioning. A diagnosis of mental retardation was not made at that time. In 2003, when Pape was eighteen years and one month old, he was again evaluated. Pape presented as significantly below normal in all aspects of communication and behavior. His IQ composite score was fifty-four. The evaluation concluded that Pape was within the mild to medium level of mental retardation.
Through bis parents, Pape applied for MR/ID Waiver services in 2003 and 2008. Both applications were denied. Pape applied again in 2010. On August 13, 2010, the Fairfax-Falls Church Community Services Board ("CSB") evaluated Pape to determine his eligibility for services. That same day, the CSB concluded that Pape did not meet the diagnostic criteria for MR/ID Waiver services because he did not have an MR/ID diagnosis before his eighteenth birthday. Pape timely appealed the CSB's decision, and a hearing was held before Hearing Officer Beverly H. Ewers on November 19, 2010. On December 14, 2010, Hearing Officer Ewers issued her decision sustaining the CSB's denial of services, stating: "the Hearing Officer finds that the CSB was correct in denying the Appellant's MRID Waiver services based on not meeting the diagnostic criteria because be was not diagnosed as MR/ID before age 18 years." Appeal Decision at 6.
The ME/ED Waiver services, although funded by Medicaid, are administered by local community service boards.
Pape timely filed his appeal to the Circuit Court. Both parties submitted written briefs to the Court and oral argument was heard on May 6, 2011.
DISCUSSION
A. Standard of Review
"The Virginia Administrative Process Act authorises judicial review of agency decisions." Avante at Roanoke v. Finnerty, 56 Va. App. 190, 692 S.E.2d 277, 280 (2010) (citing Code § 2.2-4027). Under the Act, "the circuit court's role in an appeal from an agency decision is equivalent to an appellate court's role in an appeal from a trial court." School Bd. v. Nicely, 12 Va. App. 1051, 1062, 408 S.E.2d 545, 551 (1991). "Where a regulation or case decision is found by the court not to be in accordance with law under Code § 2.2-4027, the court shall suspend or set it aside and remand the matter to the agency for further proceedings, if any, as the court may permit or direct in accordance with law." Code § 2.2-4029.
An agency's interpretations of its regulations are subject to the arbitrary and capricious standard of review. Fralin v. Kozlowski, 18 Va. App. 697, 701, 447 S.E.2d 238, 240 (1-994). The statutory basis for this standard is Code § 2.2-4027, which states in relevant part:
The burden shall be upon the party complaining of agency action to designate and demonstrate an error of law subject to review by the court. Such issues of law include: (i) accordance with constitutional right, power, privilege, or immunity, (ii) compliance with statutory authority, jurisdiction limitations, or right as provided in the basic laws as to subject matter, the stated objectives for which regulations may be made, and the factual showing respecting violations or entitlement in connection with case decisions, (hi) observance of required procedure where any failure therein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact.. . . . . . [T]he court shall take due account of the presumption of official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted.Code § 2.2-4027. Regarding interpretation of agency regulations, the Court of Appeals has explained:
[W]e are to give great deference to an agency's interpretation of its own regulations. This deference stems from Code § 2.2-4027, which requires that reviewing courts take due account of the experience and
specialized competence of the agency promulgating the regulation. However, deference is not abdication, and it requires us to accept only those principles of agency interpretations that are reasonable in light of the principles of construction courts normally employ.Avante at Roanoke, 56 Va. App. at 197, 692 S.E.2d at 280 (quoting Bd. of Supervisors v. State Bldg. Code Tech. Review Bd., 52 Va. App. 460, 466, 663 S.E.2d 571, 574 (2008); Real Estate Bd. v. Clay, 9 Va. App. 152, 160-61, 384 S.E.2d 622, 627 (1989)) (citations and quotation marks omitted). See also Leach v. Commonwealth ex rel. Dep't of Med. Assistance Servs., No. 1925-94-2, 1995 Va. App. LEXIS 646, at *4 (Aug. 22, 1995) ("The [Agency] possesses the requisite experience and competence necessary to determine who is eligible for the programs it administers under the Virginia Medicaid State Plan. As such, its interpretations of the statutes and regulations governing who qualifies for the Waiver Program 'are entitled to deference by a reviewing court and should only be overturned when found to be arbitrary and capricious.'" (quoting Fralin, 18 Va. App. at 701, 447 S.E.2d at 240)).
B. The Regulations
In order to provide an alternative to institutionalization, Virginia provides a wide range of home and community-based services to individuals "with mental retardation." 12 Va. Admin. Code 30-120-213. Individuals six years of age or older must have a diagnosis of MR/ID from a licensed professional. 12 Va. Admin. Code 30-120-215(B)(2). The Medicaid Manual created by DMAS to guide the administration of the Waiver Program adopts the definition of MR/ID used by the American Association on Intellectual and Developmental Disabilities ("AAIDD"), as follows:
Mental retardation / intellectual disability is a disability characterized by significant limitations in both intellectual functioning and in adaptive behavior as expressed in conceptual, social and practical adaptive skills. This disability originates before age 18.This definition is expressly incorporated into DMAS regulations. See 12 Va. Admin. Code 30-120-211 ("'Mental retardation means a disability as defined by the American Association on Intellectual and Developmental Disabilities"). Additionally, the psychological evaluation must assess the individual's adaptive level of functioning and support the diagnosis of MR/ID. 12 Va. Admin. Code 30-120-215(B)(2).
C. DMAS's Interpretation and Application of the Regulations
The Hearing Officer sustained the CSB's denial of services to the Petitioner, finding that "the [CSB] was correct in denying the Appellant's MRID Waiver services based on not meeting the diagnostic criteria because he was not diagnosed as MR/ID before age 18 years." Appeal Decision at 6. As Pape correctly points out, this analysis equates the time of diagnosis of the disability with the time of origination.
In its brief to this Court, the Appellee concedes, as it must, that the definition of MR/ID in the governing regulations requires only that "[t]he disability originates before age 18." Appellee's Br. 4 (emphasis added). The Appellee states, however, that DMAS "interprets the regulation to require that testing is performed prior to the individual's 18th birthday." Id. (emphasis added). DMAS applies this interpretation "in order to objectively determine the disabihty originated before age 18." Id. Appellee argues that "[t]here must be a deadline by which testing and diagnosis for intellectually [sic] functioning must occur." Id.
This interpretation is arbitrary and capricious. DMAS's interpretation is not based upon its unique experience or any specialized competence necessary to determine who is eligible for the programs it administers. To the contrary, the interpretation substituting the date of diagnosis of MR/ID for the date of origination is designed to avoid the need for any specialized experience or competence in evaluating the date of origination. Moreover, the effect of DMAS's interpretation is to substantively alter the AAIDD definition of MR/ID adopted by DMAS in the Medicaid Manual and 12 Virginia Administrative Code 30-120-211.
The Virginia General Assembly, as well as courts that have considered the issue, have recognized that requiring MR/ID to be diagnosed before age eighteen is significantly different than requiring MR/ID to originate before age eighteen. Because mental retardation is a bar to imposition of the death penalty, for example, the Virginia General Assembly enacted Code § 19.2-264.3:1.1, governing the determination of MR/ID in capital murder cases. The definition of "mentally retarded" in that statute is consistent with the AAIDD definition, stating that "mentally retarded means a disability originating before the age of 18 years." Code § 19.2-264.3:1.1 (emphasis added). The General Assembly did not require diagnosis before the age of eighteen.
The Virginia Commission on Youth, "a standing bi-partisan legislative commission of the General Assembly," notes that under the generally accepted definition of intellectual disabilities, "the onset of symptoms occurs prior to the age of 18." Virginia Commission on Youth, Intellectual Disability, at 2, available at http/coy.state.va.usyvcoy/PDFfiles/InteUectual%20Disabihty_l.pdf (last visited May 13, 2011). Crucially, "[t]his does not prohibit diagnosis after age 18," provided that there is "documented evidence that the onset of symptoms occurred prior to that age." Id. 5
Applying Code § 19.2-264.3:1.1, the Fourth Circuit Court of Appeals reversed the dismissal of a habeas corpus petition in part because "[t]he district court discounted the results from the [IQ] test because it was not administered until [the defendant] was 30 years old and therefore did 'not support a manifestation of retardation before the age of 18."' Walker v. True, 399 F.3d 315, 323 n.7 (4th Cir. 2005), vacated on other grounds, 546 U.S. 1086 (2006). The Fourth Circuit noted that under the statute's definition of mentally retarded, the IQ test is not required to establish the originating date of the disability. Rather, whether the disability originated before age eighteen could be determined from the other evidence considered as part of the evaluation. Id,
Shortly after its decision in Walker, the Fourth Circuit was confronted with a similar habeas appeal in Walton v. Johnson, 407 F.3d. 285 (4th Cir. 2005). At age seventeen years and eight months, testing indicated that the defendant had a full-scale IQ of ninety. Id. at 295. At age eighteen years and five months, testing showed a full-scale IQ of seventy-seven. Id. Two other tests submitted as evidence by the defendant, "administered well after [the defendant's] eighteenth birthday," showed scores below seventy. Id. at 297. In vacating the district court's dismissal of the defendant's habeas petition, the court observed that "under the Virginia statute, '[assessment of developmental origin shall be based on multiple sources of information generally accepted by the field of psychological testing and appropriate for the particular defendants being assessed." Id. (citing Code § 19.2-264.3:1.1). The court held that "the district court may properly consider the scores from these tests, even though they were administered well after [the defendant's] eighteenth birthday." Id. (citing Walker, 399 F.3d at 323 n.7).
In Nicholson v. Branker, 739 F. Supp. 2d 839 (E.D.N.C. 2010), the court reached a similar conclusion, granted a writ of habeas corpus, and vacated the defendant's death sentence. Id. at 857. The court noted that North Carolina's statute governing mental retardation in capital murder cases
requires a defendant to show that mental retardation manifested before 18 years of age, [but] there is no requirement that he show he had scored 70 or below on a test given prior to age eighteen. Thus insofar as the [state trial] court denied petitioner's claim because he failed to produce an IQ test score from a test administered prior to the age of eighteen, the court's ruling is an unreasonable application of the law.
Id. See also Holladay v. Allen, 555 F.3d 1346, 1364 (11th Cir. 2009) (affirming the district court's grant of a habeas petition because petitioner established that he was intellectually disabled based, in part, upon IQ tests administered after age eighteen). When faced with this issue, the Oklahoma Court of Criminal Appeals held:
"Manifestation before the age of eighteen" is a fact question intended to establish that the first signs of mental retardation appeared and were recognized before the defendant turned eighteen. Lay opinion and poor school records may be considered. Thus, a defendant need not, necessarily, introduce an intelligent quotient test administered before the age of eighteen or a medical opinion given before the age of eighteen in order to prove his or her mental retardation manifested before the age of eighteen, although such proof would surely be the more credible of that fact.Murphy v. State, 66 P.3d 456, 459 n.3 (Okla. Crim. App. 2003). See also Ybarra v. State, 247 P.3d 269, 278 (Nev. 2011) (considering IQ tests administered to the defendant at age twenty-seven and age forty-seven).
Likewise, a person claiming social security benefits on the basis of an intellectual disabihty must establish the disability manifested before the age of twenty-two, not that it was diagnosed by an IQ test administered before that age. See, e.g., Branham v. Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985). In Branham, the Fourth Circuit reversed a district court finding that the disabihty could only be dated from the time of the IQ testing, noting: "there may be many reasons why an individual would not have had the opportunity or need to have a formal intelligence quotient test until later in life. The fact that one was not earlier taken does not preclude a finding of earlier retardation." Id. See also Luckey v. Dep't of Health & Human Servs., 890 F.2d 666, 668-69 (4th Cir. 1989) (reversing district court's denial of benefits, noting that an IQ test administered at age fifty indicated a full-scale IQ of sixty-eight and "there is no evidence that [the claimant's] IQ had changed, and the evidence that he could barely read or write was 'a clear manifestation' of mental retardation occurring before age twenty-two." (citing Branham)); Turner v. Bowen, 856 F.2d 695, 698 (4th Cir. 1988) (applying Branham).
DMAS's interpretation of the definition of MR/ID so as to require the diagnosis of MR/ID prior to age eighteen, rather than the origination of the disabihty before age eighteen, is unreasonable, arbitrary, and capricious. DMAS may not interpret the definition of MR/ID such a way so as to conflict with the plain language of that definition. The Hearing Officer's refusal to consider any evidence tending to show that Pape's MR/ID originated before 18 was contrary to law and DMAS's own regulations and Medicaid Manual.
Upon remand, DMAS is to apply the definition of MR/ID as it is written in the Medicaid Manual and expressly incorporated into DMAS regulations. See12 Va. Admin. Code 30-120-21. DMAS cannot deny Pape services simply because he was diagnosed as MR/ID at age eighteen years and one month and not prior to reaching age eighteen. Consistent with the regulations, DMAS must consider all of the facts and circumstances relevant to Pape's cognitive abilities and adaptive functioning to determine whether Pape's MR/ID originated before age eighteen.
CONCLUSION
The decision by the Hearing Officer denying Pape MR/ID Waiver benefits is vacated because it is not in accordance with DMAS's regulations and the Medicaid Manual and was based on an interpretation of the definition of MR/ID that was arbitrary and capricious. The matter is remanded to DMAS for further proceedings consistent with this opinion. The Court will enter an order to that effect.
Sincerely yours Circuit Court Judge
FINAL ORDER
THIS ADMINISTRATIVE APPEAL came before the Court for upon the pleadings filed by the parties herein and oral arguments on May 6, 2011; and
UPON CONSIDERATION of the evidence presented, the argument of counsel, and the applicable governing authorities, and for the reasons set forth in the Court's Letter Opinion of May 13, 2011, it is
ORDERED that the Court's Letter Opinion of May 13, 2011, is incorporated into this Order; further
ORDERED that judgment of the Virginia Department of Medical Assistance Services is REVERSED and REMANDED for further proceedings consistent with this Order.
AND THIS CAUSE IS ENDED
Entered on May 13, 2011.
JUDGE MICHAEL F. DEVINE
ENDORSEMENT OF THIS ORDER BY COUNSEL OF RECORD FOR THE PARTIES IS WAIVED IN THE DISCRETION OF THE COURT PURSUANT TO RULE 1:13 OF THE SUPREME COURT OF VIRGINIA.
9 _______________________________________________