Opinion
No. CV 03 0520876 S
December 24, 2003
MEMORANDUM OF DECISION
I INTRODUCTION
The captioned matter is an appeal from a decision ("decision") by the defendant, the commissioner of the department of social services ("commissioner"), denying an application made by the plaintiff on behalf of her minor daughter for medicaid benefits for orthodontic services. The decision relies on regulations of the commissioner as the basis for its denial of benefits. The plaintiff claims that those regulations violate provisions of Title XIX of the Social Security Act, codified at 42 U.S.C. § 1396 et seq. (medicaid act), which require that a participating state (which Connecticut is) must provide certain mandated services to eligible persons, including the type of services for which the plaintiff applied, and that under federal and Connecticut law, a Connecticut statute or regulation which is violative of those federal mandates is void.
Federal Statutory and Regulatory Framework
This case concerns the portion of the federal medicaid act known as "Early and periodic screening, diagnostic and treatment services," relating to people under 21 years of age, which can be found at 42 U.S.C. § 1396d(r) ("epsdt"). According to epsdt, a participating state is obligated to pay for certain services which are defined therein as follows: "(r) The term `early and periodic screening, diagnostic, and treatment services' means the following items and services: . . . (3) Dental services . . . (B) which shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health . . . (5) Such other necessary health care, diagnostic services, treatment . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan."
Pursuant to 42 U.S.C. § 1396, a state which wishes to implement a medicaid program must adopt a plan. The federal regulation governing states' plans provides, at 42 C.F.R. § 440.230(d): "The [state] agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures."
Boiled down, this case poses the question whether a provision in Connecticut's medicaid plan, which is intended to limit the state's obligation to pay for orthodontic services on the ground of utilization control, is permitted under the above excerpt from 42 C.F.R. § 440.230(d), or whether it runs afoul of the mandated services provision of 42 U.S.C. § 1396d(r).
Connecticut Statutory and Regulatory Framework
Connecticut's plan for its medicaid program begins with General Statutes § 17b-2, (unless otherwise indicated, further section references are to the General Statutes) which provides, in relevant part: "The Department of Social Services is designated as the state agency for the administration of . . . (8) the Medicaid program pursuant to Title XIX of the Social Security Act . . ." Section 17b-3 authorizes the commissioner to adopt regulations for the implementation of all programs administered by the department, as follows: "The Commissioner of Social Services shall administer all law under the jurisdiction of the Department of Social Services. The commissioner shall have the power and duty to do the following . . . (2) adopt and enforce regulations, in accordance with chapter 54, as are necessary to implement the purposes of the department as established by statute . . ."
Pursuant to the authority contained in § 17b-3, the commissioner has promulgated regulations relative to Connecticut's medicaid program which can be found in Title 17 of the Regulations of Connecticut State Agencies. Section 17-134d-35(e)(1) of the Regulations of Connecticut State Agencies states: "The need for orthodontic services shall be determined on the basis of the magnitude of the malocclusion. Accordingly, the `Preliminary Handicapping Malocclusion Assessment Record,' available from the Department, must be fully completed in accordance with the instructions sections of the form. The Department deems orthodontic services to be medically necessary when a correctly scored total of twenty-four (24) points or greater is calculated from the preliminary assessment. However, if the total score is less than twenty-four (24) points the Department shall consider additional information of a substantial nature about the presence of other severe deviations affecting the mouth and underlying structures. Other deviations shall be considered to be severe if, left untreated, they would cause irreversible damage to the teeth and underlying structures."
Section 17-134d-35(e)(2) of the Regulations of Connecticut State Agencies states, in relevant part: "If the total score is less than twenty-four (24) points the Department shall consider additional information of a substantial nature about the presence of severe mental, emotional, and/or behavior problems, disturbances or dysfunctions, as defined in the most current edition of the Diagnostic Statistical Manual of the American Psychiatric Association, and which may be caused by the recipient's daily functioning."
Connecticut Case Law
In Ahern v. Thomas, 248 Conn. 708, 713, 733 A.2d 756 (1999), the court said: "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." See also Persico v. Maher, 191 Conn. 384, 393, 465 A.2d 308 (1983) (federal statutes and regulations set limits upon the authority of the commissioner and "[furnish] a guide to the state's administration of the Medicaid program."); and Morgan v. White, 168 Conn. 336, 344, 362 A.2d 505 (1975) ("where the state sets stricter standards for eligibility than those enumerated by the pertinent federal law, the state standards are tacitly inconsistent with those federal provisions.") In Persico, the court also said: "Pursuant to [the medicaid act], the secretary [of Health and Human Services] has promulgated regulations which are binding upon the states . . . We conclude that . . . [the portion of the state plan under attack] does not meet the federal requirements and is, therefore, void." Persico v. Maher, supra, 141 Conn. 392-93.
From Ahern, Morgan and Persico, it is clear that attempts by the commissioner to establish eligibility requirements for medicaid which are stricter than those authorized by the medicaid act are ineffective. The plaintiff claims that the commissioner, in regard to orthodontic treatment, has established, by regulation and in the decision, "stricter standards for eligibility than those enumerated by pertinent federal law . . . [which] are tacitly inconsistent with those federal provisions." (Internal quotation marks omitted.) Id., 393. As a result, the plaintiff argues, the commissioner committed an error of law by relying on those regulations to support the denial of orthodontic services to the plaintiff's daughter.
II. DISCUSSION
It has been agreed by the parties that the plaintiff's daughter is eligible for services under epsdt.
The "Preliminary Handicapping Malocclusion Assessment Record" referenced in § 17-234d-35(e)(i) of the Regulations of Connecticut State Agencies is generally known, and is referred to hereinafter, as the "Salzmann Assessment."
The Connecticut regulations governing orthodontic services under epstd provide that one qualifies for orthodontic services under one of two conditions: (1) if a Salzmann Assessment produces a score of 24 points, or more; or, (2) if a Salzmann Assessment produces a score of less than 24 points, but the person has severe "deviations" or severe mental, emotional or behavior problems resulting from orthodontic issues. The commissioner's decision applies those criteria, as follows: "In this case, because the Appellant's daughter's condition resulted in a score well below the twenty-four-point threshold in two separate reviews, she did not present substantial evidence of a severe deviation, and she has no mental health issues, the Department's denial of orthodontia services is upheld." (Return of Record ("ROR"), p. 6.)
While the decision addresses the elements of Connecticut's plan which deal with the criteria for orthodontic services, it ignores the mandate of 42 U.S.C. § 1396d(r)(5) that a state shall provide "such other necessary health care . . . to correct or ameliorate defects . . . whether or not such services are covered under the State plan." (Emphasis added.) Simply, the decision applies a one-step analysis, dealing only with Connecticut's plan, and it fails to take the second step of the analysis mandated by 42 U.S.C. § 1396d(r)(5), which requires that a determination be made whether orthodontic services are "necessary," even though not provided for in Connecticut's plan.
The decision not only fails to apply the analysis required by 42 U.S.C. § 1396d(r)(3) and (5), but it also imposes a new criterion for orthodontic services which does not appear in Connecticut's plan. In language the court finds bizarre, the decision states: "The treating orthodontist states that `the child has enough deviations in her bite that it is quite likely there will be future damage to the bone and mouth structures.' He states it is impossible to predict exactly what could happen if she were not to receive this treatment. He does not state that the damage would be irreversible." (ROR, p. 6.) (Emphasis added.)
By establishing irreversibility as a criterion for eligibility, without authority to do so in federal or Connecticut statute or regulation, the decision contravenes the dicta of Persico v. Maher, supra, 191 Conn. 395, in which, while citing with approval Brooks v. Smith, 356 A.2d 723 (Me. 1976), the court applied to medicaid interpretations the "rule of liberal construction in furtherance of the beneficent purposes for which the remedial legislation of Medicaid was enacted . . ." The Persico court also quoted from the Brooks opinion approvingly in saying: "With regard to the state's authority to impose utilization control, the court stated (p. 728) that that was not a grant of authority under Medicaid to make available less treatment than that mandated by the federal regulation . . ." (Emphasis in original; internal quotation marks omitted.) Persico v. Maher, supra, 191 Conn. 395.
III. CONCLUSION
Substantial rights of the plaintiff, and of her daughter, have been prejudiced by the decision, which contains a material error of law. The appeal is sustained, and this matter is remanded to the commissioner to conduct a new hearing.
It appears that the hearing officer consciously ignored the provision of 42 U.S.C. § 1396d(r)(5) that mandates payment for "necessary health care . . . whether or not such services are covered under the State plan . . ." and that the hearing officer officiously established irreversibility as a criterion for eligibility. As a result, it could be persuasively argued that the hearing officer has "in some measure adjudged . . . the law of [this] case in advance of hearing it . . ." on remand (Internal quotation marks omitted.) Clisham v. Board of Police Commissioners, 223 Conn. 354, 362, 613 A.2d 254 (1992). In order to avoid any issue of bias at the hearing on remand, if the hearing is conducted by a hearing officer, that hearing officer shall not be the same person who authored the decision.
G. LEVINE, JUDGE.