Lester and Kimberly David As Guardians of Brandon David and Brandon David Individually VS Louisiana Department of Health & Hospitals

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NOT DESIGNATED FOR PUBLICATION STATE OF LOmSIANA COURT OF APPEAL FIRST CIRCUIT fryJ c NUMBER 2006 CA 2350 LESTER AND KIMBERLY DAVID AS GUARDIANS OF BRANDON DAVID AND BRANDON DAVID INDIVIDUALLY VERSUS LOmSIANA DEPARTMENT OF HEALTH AND HOSPITALS Judgment September Rendered 14 2007 Appealed from the Eighteenth Judicial District Court in and for the Parish of Pointe Coupee State of Louisiana Docket Number 39 139 Honorable James J Best Richard B Minogue New Roads LA Judge Presiding Counsel for Plaintiffs Lester and Appellees Kimberly David Guardians of Brandon David Brandon David David L McCay Baton Rouge LA Counsel for Defendant Appellant Louisiana of Health and Department Dawn N Guillot Rouge BEFORE and Individually Hospitals Baton as WHIPPLE GUIDRY AND HUGHES JJ WHIPPLE J The Louisiana Department of Health and judgment of the district court reversing in part granting retroactive cash subsidy benefits David the as guardians to an Hospitals appeals from administrative decision and Lester and plaintiffs of Brandon David and Brandon David following reasons we a Kimberly individually For affinn FACTS AND PROCEDURAL HISTORY Pursuant to Act 378 of the 1989 the Legislature with provide benefits disabilities provided 1 Health and Dep81iment of implementing the to DHH Hospitals was Community and F81nily SuppOli Cash Subsidy families of eligible children with Codified in LSA R S for the Regular Session of the Louisiana development of a 28 821 and plan severe et seq and the act charged Plan to profound specifically system of community and family suppOli for persons with developmental disabilities and their families and for implementation of the DHH in plan by cooperation with the of Department Social Services Thus the DHH Disabilities subsidy OCDD through is the Office for Citizens with statutorily charged program to address the children under the age of nine mental exceptionalities autism severe blin ness deafdness retardation with of administering mental retardation other health the cash developmental delay traumatic handicapped orthopedic handicap and Developmental brain profound injury impairments 2 for multi Eligibility IThis statutory mandate was based on the legislature s conclusion that services needs of persons with developmental disabilities should be responsive to the for the person into existing programs and that providing services to such adults and children while living in their own homes or with their families rather than in out ofhome placements was more cost effective 2The exceptionalities listed above are as set forth in the Cash Subsidy Program individual and his family rather than Policies and Procedures Manual fitting the promulgated by 2 DHH OCDD dated January 31 2003 and of screening applicants in this which agency for cash is case benefits is subsidy Area Capital the local perfonned by Human District Services 3 Capital May 30 On 1995 Lester and benefits for their minor son Brandon who suffers from autism and is Because the number of mentally challenged outnumbers the available cash a cash slots subsidy As the local agency s to the Davids the time eligibility review The correspondence they However period application placed name set forth from the cash failed to to the respond by Capital reaches was list on s and instructed letter to properly addressed notification letter within Capital removed Brandon Thus subsidy waiting on eligibility respond within fifteen days from receipt of the to the cOlmnence is application Capital application had reached the top of the cash subsidy waiting list the Davids benefits 1998 that Brandon November 10 on name review for subject to responsible for screening Brandon notification to the Davids a applicant s is notified when his becomes application severely applications requesting an subsidy waiting list and the applicant the top of the list and the sent Kimberly David applied for cash subsidy the grounds s of failure to respond In March of 2002 status of Brandon name s the Davids contacted application on waiting had been removed from the list concluded that Brandon had been cause the did not exist list and properly removed for reinstatement to were Capital investigated on the waiting the decision to the DHH Bureau of Appeals 3Capital Capital After a inquire as to the infonned that his the removal and from the list and that list The Davids full hearing just appealed on the matter created by LSA RS 46 2661 et seq and management of such community based Area Human Services District was its board the operation mental health and developmental programs and services relative to public health disabilities for the parishes of Ascension East Baton Rouge East Feliciana Iberville and West Feliciana See LSA R S 46 2662 West Baton Pointe to direct through Coupee Rouge 3 on to August 21 comply with the promulgated rule July COlmnunity 23 No 7 2003 the Bureau of Appeals detennined that 20 forth in the Cash 6 1998 failed that to contact had telephone remove respond In so name to the eligibility As the as a Brandon list and s was approaching result of this decision infonned that Brandon eligible was was executed challenging Capital for Noting s a decision that the prospective benefits from to by to contacted the Davids to 9 2003 receive the cash the Davids and alleged commence the Davids Thus subsidy Capital were an September on subsidy rule in effect as of May of2002 second to September the participate retroactive benefits under the reinstate his expeditiously determine to appeal with the Bureau of to 9 2003 letter only referenced certification appeal alleged that the September that the met 9 2003 letter eligibility the in the program nonetheless constituted a Brandon which he should have been entitled previous decision of the telms Appeals deny Brandon retroactive eligibility for Capital notifying the Davids that Brandon had requirements Capital to subsequently began receiving cash subsidy benefits The Davids then filed benefits waiting list for failure s the maximum age for the program Capital 30 2003 in accordance with the cash and Brandon slot Capital Appeals reversed Capital By letter dated September process individual agreement a May have been availability should from the irmnediately issue Brandon eligibility slot Bureau of name set been made with the Davids the Bureau of Appeals ordered that doing and the rules Bureau of Appeals concluded that because Accordingly the decision Register Volume and Procedural Manual dated regarding slot availability notification of the via certified mail in Louisiana Family Support System Subsidy Program Policy Specifically the to prove and set forth Capital had failed Bureau of of the cash Appeals to receive The Davids further subsidy agreement presented 4 denial of to them provided that benefits would be covered solely for the fiscal year of July 1 2003 tluough June 30 2004 The matter 2004 The issues was heard before the Bureau of presented before the Bureau Brandon would have been subsidy rules been in effect in November of 1998 redetennination review succeeding of years tlu ough 2003 Appeals rendered a thirty acceptable documentation a opinion eligible name file within qualifying exceptionality that time 2 the cash whether if Brandon had eligible At the conclusion of the five page on whether hearing were 1 in November of 1998 and for any of the as a result of the for the cash one each of the hearing in favor of DHH eligibility been considered in November of forth June 2 and 3 procedure for continuing eligibility in Brandon would not have been found his and he would have been found years on eligible for cash subsidy benefits under eligible for cash subsidy benefits succeeding at the Appeals 1998 the Bureau that finding subsidy program had because there year of November 1998 was no setting for the program under the rules in effect at The Bureau of Appeals further concluded that thereafter Brandon would have been removed from the cash detennination of his continued eligibility for the subsidy waiting program in list and s no succeeding years would have been necessary The Davids appealed Judicial District Court C On review the Bureau of Appeals decision to the pursuant to LSA R S Department of amended in 2000 In written reasons 49 964 and LSA R S 46 107 the district court reversed the decision of the Bureau of Appeals in part and granted Brandon Louisiana Eighteenth to the retroactive benefits Education date he Bulletin 1508 autism began receiving benefits for judgment the district court noted 5 from the date the criteria was under the program In previous agency appeal Brandon David was found to improperly removed from the waiting list in 1998 a fact which is not in dispute If he had not been improperly removed a be from the list and he reached the top of the list in proper order he would have been evaluated and his parents would have been notified that he was not eligible in 1998 under the 1508 criteria in place at the time It is the Court that had the David opinion of this sic s been notified of Brandon s denial because his condition did fit within the criteria in place at the time they would have applied for the subsidy when amended in 2000 an opportunity he did fit the criteria after 1508 At that time to obtain the David not re was sic would have had s documentation from a licensed medical professional attesting to his fulfillment of the 1508 criteria as allowed by the regulations in place before the 2002 revision At that point in time Brandon would have been eligible for the subsidy or mental health DHH as appeals assigning now error to the judgment of the district com1 follows 1 The District Court erred in fmding that the Bureau of Appeals authority to render a money judgment DHH had jurisdiction or retroactive cash subsidy benefits 2 and 3 The District Court erred in timely appealed The District finding that the Davids had the denial of retroactive benefits Court erred in awarding retroactive benefits from 2000 to 2003 authority by reversing a decision of the for for properly Davids partial The Court exceeded its an without the presence of any of the criteria administrative agency set f011h in La R S 49 964 G STANDARD OF REVIEW The Louisiana Administrative review of administrative The Procedure Act provides for judicial As set f011h in LSA R S 49 964 G adjudications affinn the decision of the agency or for further proceedings The com1 may reverse court may remand the case modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings inferences or conclusions or decisions are 1 In violation of constitutional 2 In 3 Made upon unlawful excess of the statutory or statutory provisions authority of the agency procedure 6 4 Affected 5 by Arbitrary discretion 6 Not other of application sustainable detennined as characterized or rule this the by the by evidence based upon its shall where own on by first the witness stand and the regard shall be credibility When given to reviewing an an owed So comi by the district to 817 aggrieved party appellate court factual preponderance of a In the application of opportunity to judge the the hand observation of demeanor comi reviewing the due not determination s agency does administrative final decision in court functions Alton Ochsner Medical Foundation 2d 815 own of issues proceeding the district 879 So its evaluation of the record reviewed upon judicial review the agency has the of witnesses credibility by of the In make court of or court entirety rule abuse preponderance a reviewing determination and conclusions of fact in its by unwarranted exercise of discretion supported and evidence of law capricious or clearly or error Once a final as appellate an 2002 2677 same just as no findings or to App 1st Cir La by appeal On review of the district court appeal Maraist court v 5 26 04 judgment is rendered by the district court may seek review of court of adjudication an factual findings deference is owed s to the judgment or no appropriate deference is legal conclusions of the by the Louisiana Supreme Court legal conclusions of the court of appeal Maraist 879 2d at 817 ASSIGNMENT OF ERROR NUMBER TWO We must initially address DHH s second assigmnent of error challenging the timeliness of the Davids appeal of the denial of retroactive benefits In this from the September benefits Instead DHH contends the Davids assigmnent they should have filed 9 a DHH contends the Davids erred in 2003 petition the initial decision rendered letter setting forth Brandon appeal for judicial review or was s eligibility for untimely because enforcement directed by the Bureau of Appeals dated August 7 appealing to 28 2003 which determined that Brandon list and ordered that waiting and issue record a we slot find had been name wrongly removed fi om the Capital immediately reinstate his expeditiously determine his eligibility to no s merit to this to the name list After review of the argument The record shows that counsel for the Davids indicated their intent to appeal the decision denying Brandon retroactive eligibility for cash subsidy benefits I D by letters dated October Trent DHH Mr Director of the Bureau of Appeals Trent responded on their request to and heard before the Bureau of in which both sides hearing behalf of the by letter that appeal rights granted in the Cash Subsidy Rules set to 2003 and October 17 2003 written to Mr the Davids that their request will be docketed infonning to 1 testify Thus on Appeals participated and the record before the us same matter was the course numerous of witnesses timely was of month appeal pursuant The over appeal as an Secretary thereafter a two were day called 4 Accordingly this assignment of error lacks merit ASSIGNMENT OF ERROR NUMBER ONE In assignment of number error request for retroactive benefits constituted Bureau of subsidy Appeals is unauthorized benefits requested ago to set qualified recipients aside 4We as the funds a allege they are or DHH contends that the cash question entitled to complaint by the district comi appeal Hospitals 2001 2206 p 11 La were as distributed years on Geiger 12 4 02 recipients to pay the objection or raise tIllS issue before Because appellate comis will not generally appeal which were not pleaded in the comi an below and wmch the court below has not addressed on have been exhausted be retrieved from other cannot consider issues raised for the first time DHH which the DHH filliher contends that the judgment should be finiher note that DHH failed to asseli the Bureau of Appeals request for damages to award for the years in the benefits that the Davids DHH contends that the Davids one v State ex we 815 So 2d 80 86 8 will not address the instant reI Depaliment of Health alld Davids the DHH argues Additionally authority The Davids compiling authority a that if DHH counter accepted were hear benefits yet does have the a correct as many hours in matter it had authority no authority support of DHH render to authority grant retroactive to deny retroactive benefits is nonsensical to a argument that the Bureau of Appeals lacks the s DHH judgment money cites Hawkins State v Department of Health and Hospitals Office of Public Hospitals 613 App 1st Cir La Hawkins distinguishable In Hawkins seeking district a 1992 interest and attOlney hearing the s matter to La as Const art penalty pursuant over X attOlney s suit in the district court to LSA R S 9 relating 10 A Hawkins plaintiff s fees did not to cause render dispute was not an 9 to On wages discharge the COlllinission judgment and employment employment unpaid to the vested of action for clearly without authority as was 2d at 231 employee of DHH Further thereof that the district court arise until after her money wages 613 So an a After the penalty civil service longer was no 23 631 due wages appealed contending matters 2d facts in underlying the State Civil Service Commission determined that wages and when she wages So case employee of DHH filed fees DHH jurisdiction court fmd the plaintiff judgment for past with exclusive review this we from the facts of the instant former court awarded pursuant However judgment for unpaid a erred in s serving In 229 no The Davids further contend that DHH act upon or eight volumes for over have not enforce the payment thereof argument s argument that the Bureau of Appeals has and self to judge does Appeals wasted several days in hearings and record that encompasses to administrative law render a money judgment and to the Bureau of an ie was enforce payment related matter made subject to the exclusive authority of the State Civil Service Commission 5 So 2d at 233 234 In the instant case the Davids contend that the very hearing before the Bureau of Appeals was to previous decision and fmding that Brandon removed from the waiting list for benefits at the time his when he was to review such 5See 9110 03 in 1998 name the detennine s name essence given the had been the of the Bureau s wrongfully whether he would have been approached wrongfully denied Moreover it is Hawkins 613 eligible top of the waiting list in 1998 opportunity to prove his qualifications undisputed that the Bureau of Appeals is statutorily authorized eligibility determinations also Akins v 6 Housing Authority of New 856 So 2d 1220 writ denied 2003 2781 also distinguished Hawkins jurisdiction and authority to the calculation of Orleans 2003 1086 La 12 19 03 La App 4th Cir 861 So 2d 574 which and found that the Civil Service Commission had exclusive administer and regulate employment related matters involving due and future overtime wages which included the authority to render a money judgment for past due overtime wages where the petition was sufficient to invoke the Civil Service Commission s exclusive jurisdiction past 6The authority A ofthe Bureau of Appeals is set forth in LSA RS 46 107 as follows Depmiment of Social Services and the Depmiment of Health and Hospitals office of the secretary through their respective appeal sections shall provide for a system of hearings and is responsible for fulfillment of all hearing provisions as prescribed under Title I IV A X The 1 XIV XVI XIX Law 91 671 opportunity or recipient or of the for XX of the Social Food Stamp Act Security Act and under Public Under these provisions an hearing shall be granted at the state level to any applicant who makes a timely request for a hem ing because his claim a for assistance services or food stmnps is denied or is not acted upon with reasonable promptness and to any recipient who is aggrieved by an agency action resulting in suspension reduction discontinuance or termination of benefits 2 Under these 3 Under these opportunity for a hearing shall also be granted at the state level by the Department of Social Services to any child placing agency or day care center who is aggrieved by any agency action resulting in the denial suspension or revocation of a license grmlted at the provisions an provisions an oppOliunity for a hearing shall also be state level by the Department of Health and Hospitals to any provider of services under the provisions of Titles XIX and XXI of the Social Security Act who is aggrieved by an agency action resulting in the denial suspension or revocation of a license or the refusal to enter into suspension of or termination of a service agreement 10 Notably the at raise the defenses hearing before the raised now award retroactive benefits the authority of the that the rendition of such conectly the Bureau of note show that he would have been sufficient was requirements in be that there is e Further to award is in excess Thus these considering previous finding that Brandon by Capital the secretary at the administrative meet the eligibility arguments by DHH lack merit s name had been Bureau of cases state level at the time are and the Bureau rendered had the by authority the office of the and such decisions exhaust the claimant s remedy shall have such authority subpoenas and to provided by law authorized by RS ordinarily required to administer oaths otherwise regulate and affimlations the conduct of the in the absence of such or a law as issue proceeding as specified and 49 955 et seq The deposit or payment of witness fees of a party who desires to subpoena a witness shall not be required if the party desiring the issuance ofthe subpoena is an indigent A person shall be presumed to be indigent if the person is person certified for or which is based C is of any entitlement program the need income and or resources a on Within recipient thirty days after by the agency or if a rehearing is decision thereon an applicant or thereof by filing a petition Judicial District Court recipient improper When the venue applicant D or eligibility requested within thirty days after the recipient may obtain judicial review for review of the decision in the Nineteenth petition recipient for of notice of the final decision the district court of the domicile of the is filed in shall transfer the or case an improper venue applicant the comi of to the district court of the domicile to the Nineteenth Judicial District Court provided by Subsections Band C all adjudicatory proceedings under this Section shall be govemed by the Except and review or mailing as Administrative Procedure Act 11 s removed fiom the enoneously Appeals clearly of appeal Subsidy Program B The agency or its subordinate presiding officer conducting a proceeding authorized hereunder shall conduct such a proceeding and of the of for benefits in 1998 eligible the rules set forth in the Cash 4 All final decisions in or to Appeals detennined that show that Brandon did Policies and Procedures Manual in effect list authorization 1998 the Bureau of Appeals would have ordered that benefits assigned accordingly waiting an no if the Bureau of Appeals had instead detennined that the evidence Presumably presented to i appeal DHH failed to Appeals agency As the Davids Brandon failed or on Bureau of and was statutorily obligated requirements in an 1998 detennine whether Brandon to Moreover on review we reject assigmnent of cash subsidy benefits pursuant to the district constitutes was court an clearly award for authorized patiicularly in light Instead damages to review eligibility contention that Appeals or find the Bureau of Dlffi Appeals detenninations for the program prior luling that Brandon s from the cash we s finding of eligibility by a the Bureau of by matter of the Bureau wrongfully removed This for that or Dlffi eligibility met had been s name subsidy waiting list assignment also lacks merit ASSIGNMENT OF ERROR NUMBER THREE Dlffi next contends that the district court erred in partial retroactive benefits from 2000 to 2003 is flawed in that there is court s ruling court s assumptions that no 1 the Davids awarding Dlffi contends that the district evidence to would have support the district re applied subsidy benefits if denied eligibility in 1998 when Brandon reached the top of the that if he had name waiting list would have reached the the 2000 amendments 2 the Davids s for cash name reapplied in initially 1998 his top of the waiting list after the effective date of and 3 that Brandon would have then been detennined eligible In reaching its decision the record shows that the Bureau of reviewed the evidence and testimony presented and stated as follows in its oral reasons T he parents of Brandon David also chose current appeal back in time name the in which to they asked that the originally Subsidy Waiting removed from the list and Administrative file the agency look November 1998 when Brandon David s came up for consideration of eligibility on Cash request to at the Law List and improperly appeal of the undersigned was In accordance with the instruction Judge the agency available documentation in its records 12 as reviewed well as Appeals all all of the documentation submitted counsel in order to would have been behalf through his determine whether Brandon David on appellant eligible for s Cash Subsidy had his eligibility been considered in November 1998 After a thorough Brandon David review of all the documentation in Subsidy records and the documents submitted on behalf of the appellant the agency properly found that there was no acceptable documentation within the meaning of the Cash Subsidy Rules in effect at that time which The Cash s was CUlTent within 1 year of November 1998 appellant s attorney Kimberly David mother David s IEPs mentioned that the had but these IEPs copies were of all appellant s of Brandon neither exchanged with the undersigned counsel for the agency submitted to Administrative Law Judge offered into evidence hearing nor proffered There was no testimony hearing to the effect that an acceptable documentation no the at the IEP for Brandon David issued within 1 year of November 1998 contained exceptionality for the Cash Subsidy program is at in evidence qualifying a Thus there within CUlTent 1 year of November 1998 which establishes that Brandon David would have been eligible for the Cash Subsidy program had he been considered in November 1998 absence of this evidence ends the matter On appeal the district court reversed the decision of the Bureau of Appeals finding that the Bureau elTed in benefits that were criteria was After reasoning they clearly amended in 2000 thorough entitled to receive we agree and decision of the Bureau of for its detennination of documentation of a ineligibility in consider name or aclmowledge from the was that had DHH waiting list was district not through 2003 court that the flawed in that the basis that there was no CUlTent within The Bureau s one acceptable year of the decision failed to wrongfully eliminated Brandon when it reached the have been informed that under the rules in 13 from the time that the condition with the qualifying exceptionality detennination date of November 1998 ie s Appeals 1998 the Davids retroactive denying to include Brandon review The s top in 1998 the Davids would place at that time they could provide supporting documentation from professional that a child meets the 1508 FUliher when Brandon eligibility eventually was produced overwhelming documentation September of 2002 to in detennine the a list in 1998 and that his diagnosis or were condition evaluation in 1998 s decision of the Bureau of 3 2 or capricious Dr program meets the Thus had the Davids had reached the top of the waiting excess undisputedly same decision of the Bureau of Appeals if the 1 in violation of constitutional of the 4 or 6 determined or statutory authority of the agency affected characterized as revealed these resulting disability reverse a unwarranted exercise of discretion preponderance of evidence and to problems they could have submitted Brandon for the procedure or were provide supporting documentation of to Appeals is in made upon unlawful arbitrary entitled autism and The district court may statutory provisions s name which would have findings given Brandon s In eligibility by stating that Brandon clearly that Brandon they the Davids request of the Davids who criteria for autism and that autism is present from birth properly advised 7 psychologist and qualify for benefits afforded by the Chafetz concluded his evaluation been son s clinical nature and extent of Brandon document whether he would mental health criteria for autism support of their Brandon at the or screened in 2003 Dr Michael David Chafetz neuropsychologist evaluated seeking licensed medical a by other error by abuse of discretion not supported of law or clearly and sustainable by the reviewing cOUli 5 by a LSA R S 49 964 G 7See issued May Section V A 3 of the Cash Subsidy Program 6 1998 14 Policies and Procedures Manual Contrary its statutory to obligation here the Davids in 1998 that Brandon and that they were Then eligibility entitled at the DHH s in 2004 on to so and professional that a from the s name inform the Davids child caused them substantial purported failure deny benefits to and the record reflects After thorough of the Bureau of was review we was was This hearing arbitrary on mental or 1998 used was Indeed as as a basis to the Davids note present from birth and Accordingly and founded upon capricious properly concluded the evidence in the record Brandon eligible for the subsidy reversing opportunity in 2004 when their We further find that the district court amended in 2000 district court was of the agree with the district comi that the decision after its careful review that based would have been at the autism list in 1998 and eligibility criteria for autism certainly eligible s Clearly licensed medical a the 1508 prejudice Brandon Appeals improper procedure meets waiting deprived them produce this information in for which he list six years later the Bureau of some provide supporting documentation from health waiting the basis of insufficient documentation in the removal of Brandon the failure of DHH to had reached the top of the The absence of this evidence ends the matter stating wrongful properly notify present the necessary infonnation to support his hearing Appeals rejected the claim records to s name DHH failed to we under the criteria in fmd no error in the place after 1508 judgment of the the decision of the Bureau of Appeals assigmnent of error also lacks merit CONCLUSION Based judgment on the above and foregoing of the district court is affilmed 15 reasons Costs of this the August appeal 25 2006 in the amount of 477 5 00 Department are assessed of Health and against the defendantappellant Hospitals AFFIRMED 16 the Louisiana

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