Opinion
No. CV 03 0070708
May 4, 2004
MEMORANDUM OF DECISION
In April of 2003, Ram Sikand, a medicare and medicaid recipient, received notice that the defendant, Department of Social Services (DSS), would no longer provide her non-emergency medical transportation (NEMT) for treatment with a clinical psychologist. She had been treated by Dr. Danitz, for over thirteen years and the department had been providing her with the transportation for those treatments. The department determined that although Ms. Sikand's treatment was medically necessary, that since her psychologist was not a medicaid enrolled provider, and that since January 1, 2003 services by an independent psychologist to an individual over 21 years of age were no longer covered as an optional service under the state medicaid plan, that she was no longer eligible for NEMT transportation funded by medicaid.
Ms. Sikand appealed the denial of NEMT benefits. She claimed that since her psychologist's fees were paid by medicare, not medicaid, that she was entitled to NEMT pursuant § 17-134d-33(e)(1)(C) of the Regulations of Connecticut State Agencies which provides: "Transportation may be paid only for trips to or from a medical provider for the purpose of obtaining medical services covered by Medicaid. If the medical service is paid for by a source other than the Department, the Department may pay for the transportation as long as the medical service is necessary and is covered by Medicaid." The DSS hearing officer denied Ms. Sikand's appeal after a fair hearing. Ms. Sikand brings this administrative appeal from a final decision of the DSS pursuant to General Statutes §§ 17b-61 and 4-183.
PROCEDURAL HISTORY AND FACTS
On May 19, 2003, the DSS conducted an administrative hearing in response to Rani Sikand's appeal from the termination of the non-emergency medical transportation. A hearing officer issued a final decision in favor of the department on May 28, 2003.
At the hearing the defendant claimed that as a result of new legislation DSS was no longer required to provide the transportation requested by the applicant. See Public Acts 2002, No. 02-07, enacted as General Statutes § 17-28e. In particular, under the amended State Medicaid Plan (SMP), a private psychologist, such as Dr. Danitz, providing services to a medicaid recipient over the age of 21, such as Rani Sikand, would no longer be paid by medicaid. The amended SMP continued to provide services provided by psychologists for medicaid recipients over the age of 21 if the services were provided within the setting of a clinic, hospital or other institutional program. (AR page 11. Also see AR, page 83, paragraphs 7-14.) With regard to NEMT, 42 C.F.R. § 431.55 mandates that a SMP "must specify that the medicaid agency will ensure necessary transportation for recipients to and from providers, and describe the method the agency will use to meet this requirement." Under medicaid, psychologists are an "optional service." Transportation is not an optional service.
General Statutes § 17b-28e Amendment to Medicaid state plan re optional services. Not later than September 30, 2002, the Commissioner of Social Services shall submit an amendment to the Medicaid state plan to implement the provisions of public act 02-1 of the May 9 special session concerning optional services under the Medicaid program. Said state plan amendment shall supersede any regulations of Connecticut state agencies concerning such optional services.
The hearing officer framed the issue as "whether the Department's medical transportation broker, LogistiCare, Inc., was correct in its action to discontinue the [plaintiff's] non-emergency medical transportation from her home to the office of her psychologist."
The DSS hearing officer found the following facts.
The plaintiff receives aid from both medicare and medicaid. The plaintiff receives medicaid as a disabled individual.
The plaintiff suffers from many mental disabilities including schizoaffective disorder, borderline personality with associated self-mutilation. She further is diagnosed with diabetic gastroparesis, hyperlipidemia, diabetic peripheral neuropathy, and morbid obesity. The plaintiff takes numerous medications each day.
Over the course of the last 13 years, the plaintiff has visited, usually twice each week, Dr. Mitchell Danitz, a clinical psychologist in West Hartford. In 2002, Dr. Danitz ceased to be an enrolled medicaid provider. Dr. Danitz's treatment of the plaintiff is paid for by a third party, medicare.
Until April 2003 medicaid provided the plaintiff with non-emergency medical transportation to and from her home to Dr. Danitz's office.
Effective January 1, 2003, state plan amendment SPA 02-009 took effect and eliminated certain services from Connecticut's state plan. On April 22, 2003, the plaintiff was notified that medicaid would cease to provide non-emergency medical transportation to and from Dr. Danitz's office since his services, as they applied to the plaintiff, were no longer covered by Connecticut's state plan.
Dr. Danitz's affidavit (AR page 15-16) provides detail about the trauma that he expects the plaintiff will suffer if she is required to find a new psychologist. He attributes the expected trauma to the plaintiff's "overwhelming fear of separation." Furthermore, "[h]er fear of loss and aloneness occupies much of her thoughts and shapes many of her actions." Dr. Danitz expects that it would be devastating to the plaintiff on both a clinical and personal level if she is required to begin a relationship with a new psychologist. "Despite her instability, Ms. Sikand has with only a few exceptions since her discharge from the Institute of Living twelve years ago, been able to stay out of the hospital. Her success in this area is likely more than partially due to the impact of the consistency of the therapeutic relationship." He also believes that changing therapists will lead to a greater likelihood of hospitalization and onset of negative behaviors. Ultimately, Dr. Danitz concludes that "the potential regression and disorganization brought on by termination could very well result in the utilization of high-cost intensive treatment services that would dwarf the expenditure being laid out to cover transportation to and from therapy."
Patricia Sipples, a registered nurse at LogistiCare, the DSS transportation provider acknowledges that it will be devastating to the plaintiff if she is forced to terminate her treatments from Dr. Danitz. (AR 13-14.)
The plaintiff filed this administrative appeal, complaint, and an ex-parte motion for injunctive relief on June 26, 2003. The injunction sought a court order that DSS continue the plaintiff's NEMT to and from the office of her independent psychologist pursuant to § 17-134d-33(e)(1)(C) of the Regulations of Connecticut State Agencies. Section 17-134d-33(e)(1)(C) specifically provides: "Transportation may be paid only for trips to or from a medical provider for the purpose of obtaining medical services covered by Medicaid. If the medical service is paid for by a source other than the Department, the Department may pay for the transportation as long as the medical service is necessary and is covered by Medicaid." Ms. Sikand, a medicare and medicaid recipient, asserted that since medicare paid for her doctor's fees and that the type of services — psychological services were generally covered by medicaid, that she was entitled to medicaid NEMT. On June 27, 2003, the court granted the ex-parte stay/injunction. The order set a hearing on the stay/injunction. On September 17, 2003, the court heard arguments regarding the stay/injunction. After supplemental briefs from each party were received, the court continued the stay/injunction pending the outcome of this appeal and ordered an expedited hearing on the appeal.
Arguments on the appeal were entertained by the court on January 7, 2004.
AGGRIEVEMENT
The plaintiff, Rani Sikand, requests that the decision rendered by the hearing officer be vacated and set aside.
Pursuant to General Statutes § 17b-61(b), appeals from the decision of the DSS fair hearing officer are filed in accordance with § 4-183. Section 4-183(a) provides in part that: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section." General Statutes § 4-183(a). "It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002).
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision . . . Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Seymour v. Seymour, 262 Conn. 107, 110, 809 A.2d 1114 (2002).
In the present matter the plaintiff was denied Title XIX benefits. Rani Sikand has a specific personal and legal interest in the subject matter of the department's decision and her specific personal and legal interest has been injured by that decision. This court finds, therefore, that the plaintiff is aggrieved.
STANDARD OF REVIEW
"[The court] begin[s] by articulating the applicable standard of review in an appeal from the decision of an administrative agency. Judicial review of [an administrative agency's] action is governed by the [Uniform Administrative Procedure Act, § 4-166 et seq.] . . . and the scope of that review is very restricted." (Internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 668, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001).
"[A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . [The supreme court has] determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's, time-tested interpretation . . ." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept of Public Utility Control, 261 Conn. 1, 13, 803 A.2d 879 (2002). See also Burinskas v. Department of Social Services, 240 Conn. 141, 147, 691 A.2d 586 (1997). "Consequently, an agency's interpretation of a statute is accorded deference [only] when the agency's interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable." Hartford v. Hartford Municipal Employees Ass'n, 259 Conn. 251, 262, CT Page 6819 788 A.2d 60 (2002).
The facts as found by the hearing officer in this case are not disputed by the parties. The state does not dispute the medical necessity of the plaintiff's treatment with Dr. Danitz. The plaintiff does not dispute that Dr. Danitz is no longer an enrolled provider with medicaid and that the amendments to the State Medicaid Plan no longer allow medicaid to pay for Ms. Sikand's treatment with Dr. Danitz. The state agrees that Ms. Sikand is entitled to medicare insurance coverage, based upon her work history prior to the onset of her disability, and that medicare will pay for her treatment with Dr. Danitz. The parties dispute is about the legal consequences that flow from those facts. It is clear that the hearing officer's decision was based upon her interpretation of the legal effect of General Statute § 17b-28. "Therefore, the Department's April 22, 2003 action to terminate the Appellant's non-emergency medical transportation services to her psychologist was correct, based upon changes to its state Medicaid plan, as approved January 30, 2003 for an effective date of January 1, 2003." (AR 5.)
The plaintiff argues that § 17b-28e has not been subjected to judicial scrutiny or tested by time and thus the court should not defer to the agency interpretation. The DSS, however, argued that the statute had been tested by the agency on several occasions and provided the court with a copy of administrative hearings, held between January 1 and September 10, 2003, addressing non-emergency medical transportation for optional services. In total, DSS provided eight (one of which was the plaintiff's appeal) administrative decisions and in each case the hearing officer affirmed the department's decision to deny the non-emergency medical transportation for optional services.
In this matter, the court finds that the agency's interpretation of § 17b-28 and of the regulations in question have not been tested by time or subjected to judicial scrutiny. The statute was enacted just over one year ago and eight decisions by the department's hearing officer do not rise to the level required to be considered tested by time.
DISCUSSION
At issue is whether DSS is required to provide Ms. Sikand with medicaid funded, non-emergency medical transportation to her independent psychologist, Dr. Danitz. Ms. Sikand seeks non-emergency medical transportation under § 17-134d-33(e)(1)(C) of the Regulations of Connecticut State Agencies. Section 17-134d-33(e)(1)(C) specifically provides: "Transportation may be paid only for trips to or from a medical provider for the purpose of obtaining medical services covered by Medicaid. If the medical service is paid for by a source other than the Department, the Department may pay for the transportation as long as the medical service is necessary and is covered by Medicaid." Thus, in order to qualify for non-emergency medical transportation under this section, Ms. Sikand must (1) receive treatment that is paid for by a source other than medicaid; (2) the treatment must be necessary and (3) the medical service must be covered by medicaid.
It is undisputed that Ms. Sikand satisfies the first two requirements of the regulation. The present controversy revolves around the question of whether Dr. Danitz's treatment of Rani Sikand is a medical service covered by medicaid. The state argues that the amended state plan eliminates reimbursements to psychologists for clients 21 years of age and older. The state acknowledges that mental health services, similar in kind to psychological counseling, "meaning behavioral or mental health services, which may or may not ultimately be provided by a psychologist, could be obtained from a hospital or a clinic . . . whether or not from staff psychologists, because the providers of those services are not reimbursed directly; rather, the facility is reimbursed though a rate system." (Defendant's brief, December 5, 2003, p. 10.) The legal issue thus presented to the hearing officer involved resolving the tension between the requirement of providing NEMT and the statutorily mandated amendments to the SMP to eliminate optional coverage for psychologists.
The plaintiff's claim of error is that the DSS decision to deny her non-emergency medical transportation was clearly erroneous and that it was arbitrary, capricious and is characterized by an abuse of discretion. The plaintiff argues that the agency's interpretation of the phrase medical service covered by medicaid, as it is used in § 17-134d-33(e)(1)(C) of the Regulations of Connecticut State Agencies, erroneously narrows the scope of medical professionals that a medicaid recipient may choose to be treated by when using non-emergency medical transportation provided by medicaid.
Conversely, DSS argues that in accordance with a legislative mandate it was required to amend the services that would be covered under medicaid. Therefore, the agency eliminated some "optional" services. As a discrete service, psychological services for individuals over 21 years old was an "optional" service that was eliminated and the elimination of said service was approved by the Federal medicare and medicaid services. Thus, the agency argues that it is not required to provide non-emergency medical transportation to medical professionals providing this distinct service.
"[The court's] analysis begins with an overview of the medicaid program. The program, which was established in 1965 as Title XIX of the Social Security Act and is codified at 42 U.S.C. § 1396 et seq. (medicaid act), is a joint federal-state venture providing financial assistance to persons whose income and resources are inadequate to meet the costs of . . . [medically necessary services] . . . The federal government shares the costs of medicaid with those states that elect to participate in the program, and, in return, the states are required to comply with requirements imposed by the medicaid act and by the secretary of the department of Health and Human Services . . . Specifically, participating states are required to develop a plan, approved by the secretary of health and human services, containing reasonable standards . . . for determining eligibility for and the extent of medical assistance to be provided." (Citations omitted; internal quotation marks omitted.) Ahern v. Thomas, 248 Conn. 708, 713, 733 A.2d 756 (1999). General Statutes § 17b-28 designates DSS as the state agency responsible for administration of the medicaid program. "In construing the language of the federal statutes and supplementary rules, we recognize first that the statute is in the nature of remedial legislation and must be liberally construed in furtherance of the beneficient purposes for which it was enacted." Brooks v. Smith, 356 A.2d 723, 729 (Maine, 1976).
The federal government will appropriate funds to participating states so that the state may "furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the cost of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self care." 42 U.S.C. § 1396. The federal medicaid scheme requires that a participating state implement a state plan that will, among other things, provide "for making medical assistance available, including at least the care and services listed in paragraphs (1) through (5), (17) and (21) of [42 U.S.C. §] 1396d(a)" to all individuals. 42 U.S.C. § 1396a(a)(10)(A) (italics added).
Title 42 U.S.C. § 1396d(a) defines medical assistance as "payment of part or all of the cost of the following care and services . . . for individuals . . ." 42 U.S.C. § 1396d(a). The 42 U.S.C. § 1396d(a) services that 42 U.S.C. § 1396a requires a state to provide are: inpatient hospital services, § 1396.d(a)(1); outpatient hospital services, rural health clinic services, and Federally qualified health center services, § 1396d(a)(2)(A)-(C); laboratory and X-ray services, § 1396d(a)(3); nursing facility services, early and periodic screening, diagnostic, and treatment services, and family planning services, § 1396d(a)(4)(A)-(C); physician services furnished by a physician and medical surgical services furnished by a dentist, § 1396d(a)(5)(A) and (B); services furnished by a nurse-midwife, § 1396d(a)(17); and the services provided by a certified pediatric nurse practitioner or certified family nurse practitioner, § 1396d(a)(21).
The Department of Health and Human Services (HHS) is the department charged with administering and interpreting the medicaid act on the federal, level. The regulations pertinent to the present case, aside from definitions provided in the introduction, 42 C.F.R. § 400.203, are found in 42 C.F.R. § 440 et seq. See 42 C.F.R. § 440.1 and 440.200.
The pertinent regulation states that: "Services means the types of medical assistance specified in [ 42 U.S.C. § 1396d(a)] of the Act and defined in subpart A of part 440 of this chapter." 42 C.F.R. § 400.203. HHS interprets 42 U.S.C. § 1396a(a)(10) via 42 C.F.R. § 440.200 et seq., Requirements and Limits Applicable to All Services. In this subpart, the department further defines which services a participating state is required to offer to the categorically needy, 42 C.F.R. § 440.210, and medically needy, 42 C.F.R. § 440.220.
In addition to the identified medical services, Federal law requires that transportation to necessary medical care be provided.
Federal law clearly requires a state which wishes to receive Medicaid funds to have a plan which, in actuality, ensures that every eligible recipient receives necessary transportation to and from the doctor and other medical providers. It is recognized that a promise of medical care would be hollow indeed if the person who qualifies for the care because of poverty found it impossible, for the same reason, to get to and from the place where the care was to be given. Therefore, if a state elects to receive federal funds from the Medicaid program to provide medical services to its poor citizens, it must also ensure that those citizens have transportation that will enable them to receive the services. This is not an optional benefit, as are some features of the program; it is mandatory.
Harris v. James, 896 F. Sup. 1120, 1135 (M.D. Alabama, 1995); see also Smith v. Vowell, 379 F. Sup. 139, 143-54 (W.D.Tex.), aff'd, 504 F.2d 759 (5th Cir. 1974).
Connecticut provides for the transportation of medicaid recipients as a part of its state medicaid program. The portion of the program relevant to the issue in this case is codified in the Regulations of Connecticut State Agencies. The regulation that governs non-emergency transportation (NEMT) is § 17-134d-33 of the Regulations of Connecticut State Agencies and it provides in part:
(e) Services Covered and Limitations
(1) Services Covered
(A) Medicaid assures that necessary transportation is available for recipients to and from providers of medical services covered by Medicaid, and, subject to this regulation, may pay for such transportation.
(B) Payment for transportation may be made for eligible recipients under the Medicaid program, except as otherwise provided in these regulations, when needed to obtain necessary medical services covered by Medicaid, and when it is not available from volunteer organizations, other agencies, personal resources, or is not included in the medical provider's Medicaid rate.
(C) Transportation may be paid only for trips to or from a medical provider for the purpose of obtaining medical services covered by Medicaid. If the medical service is paid for by a source other than the Department, the Department may pay for the transportation as long as the medical service is necessary and is covered by Medicaid.
Regs. Conn. State Agencies § 17-134d-33(e)(1)(A)-(C).
The regulation provides that medicaid will provide and pay for non-emergency medical transportation to and from providers of medical services covered by medicaid. The provision of transportation is limited to circumstances where alternative transportation is not available. It also provides that medicaid will pay for transportation when the medical service is paid for by another source if the "medical service is necessary and is covered by medicaid." The parties agree that the state medicaid plan no longer covers payment for the services of Dr. Danitz. The parties also agree that medicaid covers psychological counseling or like services in settings other than in a private psychologist's office.
The plaintiff cites an August 11, 1993 DSS fair hearing decision where the department was required to provide non-emergency medical transportation in a situation similar to the plaintiff's situation. (See Mrs. H. Decision, attachment 2, Plaintiff's brief, October 29, 2003). In the cited case, the medicaid recipient sought medicaid non-emergency medical transportation to a physical therapist that was not an enrolled medicaid provider. The recipient's mother was paying for the physical therapy but could not provide the transportation to the therapy. The department initially denied NEMT because the provider of the physical therapy was not a medicaid enrolled provider, that he was not providing a medical service covered by medicaid and therefore medicaid would not provide the non-emergency medical transportation for these treatments. The hearing officer, interpreting, however, held that medical services covered by medicaid is not defined by whether the provider is a medicaid enrolled provider but rather is defined by the service.
The "Mrs. H." case supports a determination that in deciding whether or not NEMT is required is determined by the type of "medical service." to be provided rather than the status of the "service provider." The department does not directly address the "Mrs. H. "decision. Indirectly, the department justifies this change of policy by reference to the newly enacted legislation. The department notes that "(t)o the extent that the Plaintiff argues that she is entitled to the transportation under state regulations, the Defendant notes that General Statute 17b-28e clearly provides that the state plan amendment eliminating optional services shall supersede any regulations of Connecticut State agencies . . ." (Defendant's Brief, p. 6, fn. 1.) The difficulty with the department's position is that transportation for medicaid recipients is not an "optional service." It is clear that the state of Connecticut can and has amended its state plan to eliminate or limit the coverage for independent psychologists. The state cannot and has not eliminated transportation services to medicaid recipients from the state plan. As previously stated both parties agree that the state plan continues to provide and pay for psychological services so long as they are provided in an institutional or clinic setting. The terms of the department's regulations require that in this situation, the department provide Ms. Sikand transportation to medical services that are necessary and are of a type of service "covered by medicaid."
CONCLUSION
The court, therefore, finds that the agency's decision to deny the plaintiff non emergency medical transportation to the medically necessary treatment by her psychologist is inconsistent with its own regulations, is inconsistent with its prior fair hearing decision and is inconsistent with the intent of the federal/state medicaid laws. The decision of the department is arbitrary and capricious and in abuse of its discretion. Where as here the medicaid recipient has a source other than medicaid to pay for medically necessary services that are of a type covered by medicaid, then the department is required by its own regulations to provide NEMT for the recipient. This court is not ordering the department to pay for the services in question. Clearly the state has the authority to limit its obligation to pay for an optional service such as "psychological services for individuals over the age of 21." If Ms. Sikand was not entitled to medicare benefits and did not have any other source available to pay for those benefits the court would not order that she be provided NEMT. Pursuant to General Statutes § 4-183(k), the court sustains the appeal of the plaintiff and orders the agency to provide the plaintiff services in accordance with this decision and its own regulations.
Cosgrove, J.