Husrefovich v. Department of Aging & Independent Living

Husrefovich v. Dept. of Aging & Independent Living (2004-459); 179 Vt. 456;
898 A.2d 726

2006 VT 17

[Filed 24-Feb-2006]

[Motion for Reargument Denied 18-Apr-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 17

                                No. 2004-459


  Esma Husrefovich, et al.	                 Supreme Court

          v.	                                 On Appeal from
                                                 Human Services Board
  Department of Aging and Independent	
  Living	                                 April Term, 2005


  Beverly F. Fiertz, Chair

  William R. Dysart, Vermont Senior Citizens Law Project, Vermont Legal Aid,
    Inc., for Appellants.

  Christina Byrom, Waterbury, for Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and 
            Allen, C.J. (Ret.),  Specially Assigned

        
       ¶  1.  ALLEN, C.J. (Ret.), Specially Assigned.  Appellants in this
  case are elderly and disabled individuals who received in-home personal
  care services pursuant to a federally-approved Medicaid waiver program.
  (FN1)  They filed a consolidated appeal with the Human Services Board,
  asserting that the Department of Aging and Independent Living (DAIL)
  violated the law by failing to engage in rulemaking before imposing
  "maximums" on the amount of weekly service hours that they could receive. 
  As relief, appellants sought the same level of service hours that they had
  received the year before the maximums were imposed.  Two appellants, Esma
  Husrefovich and Earl Hoben, also argued that DAIL improperly denied their
  requests for variances from the maximums in certain service areas.  In its
  opinion, the Board assumed arguendo that the alleged procedural violations
  had occurred, but it rejected appellants' claim that, as a result, they
  should receive more hours of services than warranted by their medical
  conditions.  As to the two named appellants, the Board concluded that they
  were receiving an appropriate level of services for their medical needs,
  and therefore, their variance requests were properly denied.  Because the
  Board's decisions are supported by the evidence, we affirm. 

       ¶  2.  The HCBS Medicaid waiver program, administered by DAIL,
  provided eligible recipients with in-home care services as an alternative
  to institutionalized nursing home care.  The program covered personal care
  services, designed to assist individuals in living at home, including
  assistance with eating, bathing, and dressing (called "activities of daily
  living" (ADLs)), as well as assistance with meal preparation, housekeeping
  chores, and other activities incidental to the care furnished or essential
  to the health and welfare of the individual (called "instrumental
  activities of daily living" (IADLs)).  Under the terms of the waiver, there
  was no specific limit on the amount or volume of personal care services but
  the "frequency, duration and volume of services" needed to be reasonable in
  terms of the participant's demonstrated needs for assistance and the
  presence of other comparable services that were intended to meet the
  participant's demonstrated needs.
   
       ¶  3.  Pursuant to the terms of the waiver, participants' needs were
  assessed annually through the formulation of a written individualized "plan
  of care."  The plan of care was the "fundamental tool" by which the State
  would "ensure the health and welfare of the individuals served under [the]
  waiver" and for this reason, it was subject to periodic review and update. 
  The annual reviews were designed to "determine the appropriateness and
  adequacy of the services" and "ensure that the services [were] consistent
  with the nature and severity of the individual's disability."

       ¶  4.  The annual assessments were generally conducted by a trained
  case manager who completed a "personal care worksheet."  On the worksheet,
  the case manager specified the number of minutes per day that an individual
  needed assistance with various ADLs and IADLs.  These figures were derived
  from a detailed functional assessment form, which was part of the
  participant's "individual living assessment."  DAIL would then review each
  worksheet and authorize payment to the providers of the services in
  accordance with the number of hours that were approved for each service. 

       ¶  5.  In early 2003, as part of a deficit reduction strategy, DAIL
  revised its worksheets and procedures to address inequities in the program
  that had developed statewide.  The major change was to place "maximums" on
  the amount of time allowed for each ADL and IADL on the personal care
  worksheet, and to require recipients to request variances for any requested
  service above the maximums.  Although previous worksheets contained
  guidelines for covered services, DAIL had generally approved the level of
  services requested.  DAIL indicated that the changes were designed to
  encourage statewide uniformity and ensure that decisions were based on each
  individual's actual medical needs as opposed to lifestyle or personal
  preferences and habits, or both.
   
       ¶  6.  Appellants received services under the HCBS program, and
  before 2003, they were routinely approved for the level of services that
  they requested.  During 2003, several appellants requested the same or
  nearly the same total number of service hours as had been approved the
  previous year.  Because of the newly imposed maximums, however, these
  appellants had to request waivers in some service areas.  Other appellants
  did not initially request any level of services that exceeded the maximums
  even though they thereby received a lower level of services than the
  previous year.

       ¶  7.  Appellants appealed the reduction in their overall hours, and
  DAIL reviewed each appellant's request for waivers.  In June 2003, DAIL
  issued a new plan of care for each appellant.  These decisions resulted in
  revisions in the number of hours for some appellants (i.e., some waiver
  requests were granted in whole or in part), but it left all appellants with
  varying decreases in the number of weekly hours from the previous year. 
  Appellants obtained a review of the decisions by the Commissioner of DAIL,
  and the Commissioner essentially affirmed DAIL's plan-of-care
  determinations.  During this process, but not thereafter, DAIL continued
  each appellant's level of services at the 2002 levels.  Only two
  appellants, Earl Hoben and Esma Husrefovich, requested further review of
  the factual bases of their 2003 care plans.  In those cases, a hearing
  officer found that appellants had not shown sufficient medical evidence to
  overturn DAIL's decisions.

       ¶  8.  Appellants then brought a consolidated appeal to the Human
  Services Board, challenging the reduction in the hourly levels of personal
  care services that they received.  They argued that: (1) the policy changes
  implemented by DAIL violated the Vermont Administrative Procedure Act
  (VAPA) because they were not promulgated pursuant to statutory rulemaking
  procedures; (2) DAIL violated their due process rights by reducing their
  hours without sufficient advance personal written notice and by failing to
  continue them at their 2002 service levels before their cases were decided
  on appeal; and (3) DAIL's policies were contrary to the terms of the waiver
  program.  Appellants asked the Board to declare that the policy change was
  illegal and reinstate them at their 2002 service levels pending compliance
  with the VAPA and due process.
   
       ¶  9.  In its opinion, the Board assumed arguendo that the legal bases
  of appellants' arguments were correct, but it rejected appellants' claim
  that they were consequently entitled to receive services at their previous
  levels.  The Board explained that only two appellants had challenged the
  factual bases of DAIL's 2003 individualized determinations.  Thus, in
  effect, the remaining appellants had conceded that DAIL's 2003 plan-of-care
  decisions were appropriate to their actual medical needs.  The Board
  explained that appellants did not allege any actual disagreement with the
  2003 policy changes, and they were therefore left with only a procedural
  basis for the relief  they sought.  The Board concluded that, given the
  facts and procedural histories of these cases, no further relief was
  appropriate for appellants either as a matter of law or as a matter of
  fundamental fairness.  

       ¶  10.  The Board described the considerable discretion afforded to
  states in administering the Medicaid waiver program, and noted that, unlike
  many other benefit programs, initial eligibility for Medicaid waiver
  services was not an entitlement.  The Board also recognized that funding
  for the program was fixed on an annual basis and Vermont, like other
  states, maintained a waiting list of otherwise-eligible program
  participants due to funding limitations.  In light of these and other
  considerations, the Board found it reasonable, and arguably imperative,
  especially in periods of budget crises, for DAIL to attempt to ensure that
  program funds were distributed fairly and equitably among those who had
  been found eligible for services.
   
       ¶  11.  The Board found that appellants did not dispute DAIL's
  assertion that its new policy of imposing maximums on the levels of each
  service, and requiring waivers to exceed those maximums, was reasonably
  intended and likely to obtain more statewide oversight and uniformity in
  the provision of those services.  They similarly did not dispute that the
  maximums were based on the generous assessments of medical experts as to
  the time necessary to perform each covered ADL and IADL for most
  individuals who required assistance in those areas.  In recognition that
  individual needs might vary, DAIL allowed and clearly advised all
  recipients to request a waiver of the maximums to obtain the level of
  service for any ADL or IADL that they felt was necessary and appropriate. 
  The Board found that, in keeping with the purposes of the program and with
  its goal of statewide uniformity, DAIL made each waiver determination in
  light of a recipient's demonstrated medical need, rather than on the basis
  of individual lifestyle or habit.  Appellants did not challenge the wisdom
  and fairness of the procedure, nor that it had been made fully available to
  them during the course of the proceedings.  

       ¶  12.  The Board found that, although the new policy resulted in
  decreased levels of services for many recipients, including appellants,
  given the lack of evidence (or, in all but two cases, even the claim) that
  anyone's medical needs were being unmet, both parties were forced to
  concede that appellants for many years prior to 2003 received levels of
  service that were not truly commensurate with their medical needs.  The
  Board explained that, now, solely on the basis of alleged procedural
  deficiencies in DAIL's implementation of the 2003 policy revisions,
  appellants were in effect asking the Board to grant them the "relief" of
  continuing to receive more hours of service than their medical conditions
  warranted, at least in comparison to everyone else in the program. 
  Regardless of the merits of the appellants' legal arguments, the Board
  explained, the hearing officer concluded that such relief was neither
  required nor appropriate under the Board's statutes and regulations.  
   
       ¶  13.  The Board stated that, if it were to conclude that appellants
  were "entitled" to a further continuation of their 2002 benefit levels
  solely on the basis of the procedural defects that they alleged, it would
  mean that every waiver recipient whose hours were reduced in this manner
  would be similarly entitled.  Arguably, due process and equal protection
  considerations would then force DAIL to reinstate their benefits as well. 
  Hundreds of recipients could thereby see their levels of service reinstated
  to a level above their presently demonstrated medical need.  Due to the
  limited nature of the funding for the program, such "relief" by necessity
  could only come at the expense of the many needy applicants currently on
  the waiting list for future coverage. 

       ¶  14.  The Board explained that the above considerations argued
  forcefully that it should defer such technical questions of procedural
  entitlement to a court of competent jurisdiction that, unlike the Board,
  was empowered to grant class action relief to all those recipients with
  potential claims identical to those of the appellants herein. (FN2)  Given
  the unique nature of the Medicaid waiver program, and the lack of any
  claimed or demonstrated "inequity" in these appellants' present situation,
  the Board affirmed DAIL's decisions.  Appellants appealed.               
   
       ¶  15.  We begin with the individual claims raised by appellants
  Husrefovich and Hoben.  As noted above, the Board concluded that these
  appellants' needs were served by their plans of care and appellants had
  failed to establish that they were entitled to the variances that they
  requested.  The Board made numerous findings in support of its decision. 
  Appellants do not challenge any of the Board's findings as unsupported by
  the evidence.  Instead, they maintain that they were "entitled to
  continuous personal care services" until their medical conditions changed
  or improved.  By this, appellants apparently mean that they were entitled
  to continue at the same level of services from year to year.  Appellants
  also maintain that, even if it was their burden to demonstrate the
  continuous need for a certain level of services each year, they provided
  evidence from their treating physicians that supported their variance
  requests. 

       ¶  16.  The Board reached a conclusion opposite to that urged on us by
  appellants, and its decisions are supported by the record.  See Hall v.
  Dep't of Soc. Welfare, 153 Vt. 479, 486-87, 572 A.2d 1342, 1346 (1990)
  (Supreme Court will uphold Board's decision "where the record contains any
  credible evidence to fairly and reasonably support" its findings).  We
  briefly recount the Board's findings as to each appellant.  Appellant
  Husrefovich challenged the denial of her request for a variance in the area
  of "transferring" (she requested twenty minutes per day,  which exceeded
  the maximum allotted time of fifteen minutes per day) and meal preparation
  (she requested ninety minutes of assistance per day, which exceeded the
  sixty-minute maximum).  Appellant based her first request on her need for
  "supervision" when she moved around the home because she was at the risk of
  falling.  Her second request was based on special dietary needs and
  preferences for her and her family.
   
       ¶  17.  After a hearing, DAIL determined that appellant's need for
  supervision in transferring was not a covered item under the Medicaid
  waiver program, and it advised her of several alternative services
  available to her and her family that would either provide or obviate the
  need for this form of assistance.  DAIL also advised appellant of alternate
  services that would cover any claimed additional needs in the area of meal
  preparation.  DAIL thus denied appellant's request for increases in time
  for transferring beyond the maximum of fifteen minutes per day and for meal
  preparation beyond the maximum of sixty minutes per day.

       ¶  18.  On appeal, the Board found that appellant had not submitted
  any direct evidence rebutting DAIL's assessment of her needs for
  transferring and meal preparation.  It explained that the only evidence she
  offered was an opinion from her treating physician that the additional time
  was "medically necessary."  The Board concluded that the limited variances
  that had already been granted by DAIL were sufficient to meet appellant's
  reasonable and legitimate needs in these areas as required by her medical
  condition, and it could not find that the amount of hours that she was
  granted significantly impaired her ability to remain living in her home as
  opposed to being placed in a nursing home.  The Board also concluded that
  the general opinions expressed by appellant's doctor did not meaningfully
  contradict DAIL's well-considered assessment of appellant's particular
  medical needs in the areas of transferring and meal preparation.  The Board
  therefore affirmed DAIL's decision. 

       ¶  19.  We find no basis to disturb the Board's decision.  As
  discussed more fully below,  appellant Husrefovich did not possess a right
  to receive personal care services at the same level from year to year.  Nor
  was the Board required to accept the conclusory statement of her treating
  physician as irrefutable proof that the additional service hours she
  requested were medically necessary.  As the Board found, the general
  statement offered by appellant's doctor was unpersuasive in light of the
  detailed assessment made by DAIL.  The Board's decision is supported by
  credible evidence, and we find no error. 
   
       ¶  20.  We reach a similar conclusion with respect to appellant Earl
  Hoben.  Mr. Hoben requested variances in two services areas, heavy and
  light housekeeping.  DAIL partially granted appellant's request, awarding
  300 minutes per week out of the 400 minutes requested for light
  housekeeping, which exceeded the maximum of 180 minutes per week.  DAIL
  determined that this level of service was sufficient to accommodate
  appellant's needs in light of his medical condition.  DAIL denied
  appellant's request for a variance for heavy housekeeping (appellant
  requested 150 minutes per week but DAIL granted only the guideline maximum
  of 60 minutes per week) after finding that the extra hours were based on
  appellant's housekeeping preference rather than their necessity for his
  health and well-being. 

       ¶  21.  At the hearing before the Board, appellant did not offer any
  direct argument addressing his need for housekeeping, and the only medical
  evidence offered was a letter from his treating physician that the
  requested services were "medically necessary" to allow him to live
  independently.  Based on the evidence, the Board concluded that the limited
  variance granted by DAIL was sufficient to meet the reasonable housekeeping
  needs required by appellant's medical condition, and the level of services
  he received did not significantly impair his ability to remain living at
  home as opposed to being placed in a nursing home.  The Board also found
  that the general opinion offered by appellant Hoben's doctor did not
  meaningfully contradict DAIL's well-considered assessment of appellant's
  particular medical needs in the areas of light and heavy housekeeping.  It
  therefore affirmed DAIL's decision.  As with appellant Husrefovich, the
  Board's decision is supported by the evidence, and we find no error.   
   
       ¶  22.  We turn to the merits of the consolidated appeal.  On appeal,
  appellants reiterate their assertion that DAIL violated state and federal
  law by: (1) administering the HCBS program without valid regulations; (2)
  implementing "maximums" without engaging in rulemaking; (3) reducing the
  level of waiver services that they received without providing them
  appropriate written notice and an opportunity to appeal; and (4) failing to
  continue them at previous service levels during the pendency of the appeal
  process.  Appellants maintain that the Board erred in denying them relief
  for these violations, and that its decision was based on factual findings
  and policy considerations that were not supported by the record or properly
  before the Board.  

       ¶  23.  The Board's findings are supported by the evidence, and we
  find no error in its refusal to grant appellants the relief that they
  requested.  As previously noted, the Board assumed arguendo that
  appellants' legal arguments were correct, but it denied appellants' request
  for relief based on its determination that appellants were receiving an
  appropriate level of services for their medical needs.  The evidence
  supports this finding.  The record shows that appellants' needs were
  reassessed during the annual review process, and an individualized
  plan-of-care was established for each appellant.  With the exception of
  appellants Husrefovich and Hoben, appellants did not challenge the factual
  determinations underlying their individualized plans-of-care before the
  Board.  They thus conceded that the plans were appropriate for their
  medical needs.  Like the Board, therefore, we need not decide whether
  appellants' legal arguments are correct because, even assuming that they
  have merit, appellants offer no compelling support for their assertion that
  because of alleged procedural violations in administering the waiver
  program, they were entitled to receive more service hours than warranted by
  their medical needs. 
   
       ¶  24.  Appellants cite In re Diel, 158 Vt. 549, 554, 614 A.2d 1223,
  1227 (1992), as support  for their argument that the appropriate relief in
  this case was the invalidation of the policy changes "that reduced the
  levels of appellants' waiver services."  Appellants' reliance is misplaced. 
  In In re Diel, the Department of Social Welfare unilaterally implemented a
  policy change that would have increased benefit payments to individuals who
  received benefits under the Aid to Needy Families with Children program. 
  It then rescinded the change.  Recipients appealed, and we held that the
  agency had violated the recipients' due process rights by rescinding the
  new policy.  Id. at 553-54, 614 A.2d  at 1226.  We declined to delineate the
  exact procedures required by due process, however, because we found that
  the Department's action fell within the definition of rulemaking under the
  VAPA, and the VAPA provided procedures that adequately protected
  appellants' rights.  Id. at 554, 614 A.2d  at 1226.  Because the Department
  failed to comply with the APA, we concluded that its policy change was
  invalid.  Id. at 554, 614 A.2d  at 1227 (citing 3 V.S.A. § 846).  

       ¶  25.  In this case, even if we were to conclude that DAIL's policy
  of imposing "maximums" was invalid, it does not follow that appellants
  would therefore be entitled to receive personal care services at their 2002
  levels.  As noted above, appellants' needs were reevaluated, and new plans
  of care were issued based on DAIL's individualized assessment of their
  needs.  Appellants were plainly informed of their right to seek variances
  from the "maximums" during the evaluation process, and they had the
  opportunity to challenge any denial of their variance requests before the
  Board.  With two exceptions, they failed to do so.  Indeed, the Board
  specifically found that appellants did not contest the wisdom or fairness
  of the variance procedure nor that DAIL had made it fully available to them
  during the assessment process.  Appellants have not shown that  the
  rescission of the challenged policies would necessarily entitle them to the
  relief they requested from the Board.   
   
       ¶  26.  We similarly reject appellants' assertion that they have a
  protected property interest in "the continued receipt of Medicaid personal
  care services they had been receiving."  According to appellants, the Board
  erred as a matter of law in failing to recognize their "entitlement to
  continuing services as waiver participants."  Appellants apparently assert
  that they are entitled to receive the same level of services each year. 
  This argument is plainly refuted by the terms of the waiver program, which
  provide for an annual reevaluation process.  Appellants continued to
  receive personal care services at a level deemed appropriate for their
  medical needs; they were not entitled to receive a level of personal care
  services that exceeded their needs. 

       ¶  27.  Finally, we find no merit in appellants' assertions that the
  Board's decision rested on unsupported factual findings or policy
  considerations that were not properly before the Board.  Appellants
  maintain that DAIL did not present any evidence in support of its policy
  change or the methodology that it used in establishing the maximums. 
  According to appellants, the Board had no evidence to support its finding
  that the maximums imposed by DAIL were based on the "generous assessments
  of medical experts," and they maintain that the Board's determination was
  premised on "the unsubstantiated assertions of DAIL's counsel" instead of
  evidence in the record.  We are unpersuaded by these arguments.  The Board
  specifically found that appellants did not challenge DAIL's assertions
  regarding how or why the maximums were established or imposed, nor the
  effect that they would have on establishing a more uniform administration
  of the HCBS program.  In any event, given appellants' failure to
  demonstrate that their medical needs were not being met by their current
  plans-of-care, the resolution of this claim of error is immaterial here. 
   
       ¶  28.  The Board's power is limited to affirmance, modification, or
  reversal of agency decisions.  3 V.S.A. § 3091(d).  While the Board can
  review "agency policy," it may do so only as far "as it affects [a
  claimant's] . . . situation."  Id. § 3091(a).  The Board does not have the
  power to issue a declaratory judgment or an injunction.  Here, any
  determination made by the Board about  the validity of DAIL's policy would
  not affect the level of services that appellants' received, so the Board
  could grant no relief.  Thus, despite the Board's power to reverse or
  modify agency decisions based on rules that the Board "determines to be in
  conflict with state or federal law," id. at § 3091(d), this is not a case
  where use of that power was necessary.  Under the circumstances present in
  this case, and because the record supports the Board's findings that
  appellants' needs were met by their plans-of-care, the Board did not err in
  refusing to award appellants personal care services at their 2002 levels as
  relief for DAIL's alleged procedural violations.  


       Affirmed.



                                       FOR THE COURT:


                                       _______________________________________
                                       Chief Justice (Ret.), Specially Assigned



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                                  Footnotes


FN1.  The program at issue, called the "Home and Community Based Services
  for Elders and Adults with Disabilities," (HCBS) no longer exists.  See
  2005, No. 57, § 7, eff. June 13, 2005, repealing 33 V.S.A. §§ 6301-6303. 
  The program was replaced by a new federally-approved waiver program called
  "Choices for Care."

FN2.  Several participants in the HCBS program, including appellant Earl
  Hoben, filed a declaratory judgment action in Washington Superior Court in
  April 2005, challenging the State's administration of the HCBS program. 
  See Hoben v. State, Docket No. 200-4-05 Wncv; see also 3 V.S.A. § 807
  (validity or applicability of rule may be determined in action for
  declaratory judgment in Washington Superior Court if it is alleged that
  rule, or its threatened application, interferes with or impairs, or
  threatens to interfere with or impair, plaintiff's legal rights or
  privileges).  Plaintiffs challenged certain policy changes in the program
  that had been or were about to be implemented, alleging that the changes
  would reduce their eligibility for two types of home care.  Plaintiffs
  asserted that the State had enacted the changes without complying with
  formal rulemaking procedures, and they sought injunctive and declaratory
  relief; plaintiffs also sought class certification.  In December 2005, the
  superior court dismissed the case as moot in light of the discontinuation
  of the HCBS program and the implementation of a new waiver program with
  regulations promulgated pursuant to formal rulemaking procedures.