Opinion
No. 2067 C.D. 2011
05-15-2012
In Re: Appeal of C.R. c/o J.R., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
C.R. c/o J.R. petitions for review of the October 6, 2011, order of the Department of Public Welfare's Bureau of Hearings and Appeals (BHA), which denied C.R.'s appeal from the decision of Community Care Behavioral Health Organization (Community Care) to partially deny C.R.'s request for therapeutic staff support (TSS) services. We affirm.
C.R. is a seventeen-year-old male with autistic disorder who lives with his natural parents and siblings. (Findings of Fact, Nos. 7-8.) C.R. attends a regular high school for art, gym, and lunch but receives homeschooling for all academic subjects. (Findings of Fact, No. 10.) C.R. works on a volunteer basis at Walgreens and participates in a community interaction program. (Findings of Fact, No. 17.)
C.R. has been receiving behavioral health rehabilitative services (BHRS), including TSS, since he was two years old. (Findings of Fact, No. 11.) The main goals of C.R.'s treatment are: engaging in activities that will make him functional in the home; developing age-appropriate behaviors and social skills; and becoming more aware of dangerous situations. (Findings of Fact, No. 12.) C.R. has had the same TSS worker for thirteen years, and there is a concern that he has become too dependent on her services. (Findings of Fact, No. 21.)
When C.R. first began receiving BHRS, he demonstrated severe behaviors such as aggression and anxiety and struggled with communication skills, focus, and judgment. (Findings of Fact, No. 16.) C.R. struggles with the pace at which he performs general tasks, including eating and drinking; he also moves at an extremely fast pace and presents a risk to himself and others. (Findings of Fact, No. 18.) C.R. displays single-mindedness when he is performing an activity, which often leads him into dangerous situations, such as darting into streets and getting too close to others. (Findings of Fact, No. 19.)
C.R. has experienced a reduction in the frequency and intensity of many of his target behaviors and has developed ways to respond to his anxiety. (Findings of Fact, No. 22.) He has also progressed in the areas of focus, decision-making, socialization, and judgment. (Findings of Fact, No. 23.) The goal of treatment is to encourage an individual not to rely exclusively on prompts. Over the course of his treatment, C.R.'s prompts have changed, and he has successfully transitioned with those changes. (Findings of Fact, No. 24.)
Since 2003, Community Care has conducted thirty-four reviews of the level of BHRS that C.R. receives. Thirty-one of those reviews indicated that C.R.'s service level was excessive. (Findings of Fact, No. 25.)
In August 2011, Community Care partially denied C.R.'s request for continued TSS due to a lack of medical necessity. C.R. appealed to the BHA, which affirmed. Noting that TSS services are meant to be temporary, the BHA concluded as follows:
With [C.R.'s] improvements, Community Care's goal to titrate is correct because titration must occur as [C.R.] transitions towards more independence, and TSS must be provided in the most appropriate, yet least intrusive, atmosphere. Here, the continuation of the requested hours is no longer clinically appropriate; while [C.R.] may initially suffer a setback with this titration, [he] must learn to cope with transitions and changes. [C.R.] has worked with the same TSS [worker] for a period of 13 years and there are serious concerns with dependency. [C.R.] is approaching an age where these services will no longer be available; it is proper to begin a titration in services at this time.(BHA Op. at 10.) The BHA noted that Community Care did not deny C.R. all requested TSS hours; it merely reduced the hours from thirty to twenty-five per week, which "represent[s] a gradual transition" and "will give the school staff the chance to learn interventions and implement them without the use of TSS." (Id.) C.R. now petitions for review of the BHA's decision.
Our scope of review of an administrative agency decision is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the essential findings of fact are supported by substantial evidence. Mazzitti & Sullivan Counseling Services, Inc. v. Department of Public Welfare, 7 A.3d 875, 882 n.5 (Pa. Cmwlth. 2010), appeal denied, ___ Pa. ___, 23 A.3d 543 (2011).
First, C.R. asserts that the BHA abused its discretion in allowing an administrative law judge (ALJ) who did not preside at the hearing to prepare the written adjudication. C.R. claims that transferring the matter to a different ALJ for adjudication violated the Department's regulations. We disagree.
ALJ Keith J. Saunders presided over the hearing in this case, but ALJ James L. Bobeck prepared the written adjudication.
Contrary to C.R.'s assertion, none of the cited regulations provides that the ALJ who received the evidence must prepare the written adjudication. In fact, this court has stated that "there is no requirement that the members of an administrative body who participate in the ultimate decision aurally receive evidence so long as they have reviewed the testimony." Makris v. Bureau of Professional & Occupational Affairs, 599 A.2d 279, 285 (Pa. Cmwlth. 1991) (citing McCarl v. State Board of Nurse Examiners, 396 A.2d 866, 868 (Pa. Cmwlth. 1979)); see also A.O. v. Department of Public Welfare, 838 A.2d 35, 38 n.5 (Pa. Cmwlth. 2003) (noting that "'administrative adjudicators are permitted to determine the credibility of testimony from the reading of a transcript'") (citation omitted). Here, it is evident that the ALJ reviewed the record before preparing the opinion in this case, as he cites the testimony and exhibits throughout.
See 55 Pa. Code §275.4(h) (setting forth the requirements for a hearing officer's decision).
C.R. also claims that this court cannot conduct a meaningful appellate review because the BHA's adjudication lacks the required credibility determinations. We disagree. Although the BHA did not make specific credibility findings in its opinion, that is not fatal to its adjudication where, as here, the BHA provided a thorough explanation of the reasons for its decision. The BHA determined that the five-hour-per-week reduction in TSS services was appropriate because: (1) C.R. has made "significant strides" in reducing the frequency and intensity of his target behaviors; (2) C.R. is approaching an age when TSS will no longer be available to him; and (3) fewer TSS hours will allow his school and natural supports to learn and implement interventions. (BHA Op. at 10.)
Cf. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987) (noting that a remand for credibility determinations would be appropriate if "specific credibility determinations do not appear in the factual findings, in the discussion or [in the] conclusions, and no other specific explanation for the adverse determination appears in the adjudication") (emphases in original).
Next, C.R. contends that the BHA erred in failing to determine if the requested TSS services were medically necessary. We disagree.
The BHA concluded that "the continuation of the requested [TSS] hours is no longer clinically appropriate." (BHA Op. at 10.) While it did not use the term "medically necessary" in that portion of the opinion, the BHA outlined the applicable medical necessity criteria on the prior page. (See id. at 9.) Specifically, the BHA explained that Appendix T of Community Care's contract with the Department sets forth the guidelines for determining the medical necessity of TSS services; the guidelines provide that "[t]he service volume intensity must be recommended as the most clinically appropriate and least intrusive necessary for the child." (Id.) Therefore, it is evident that the BHA's conclusion, when read in the context of its entire adjudication, was that the requested level of TSS services was not medically necessary as per the contract guidelines.
Finally, C.R. asserts that the BHA erred in failing to apply the treating physician rule in making its determination. Specifically, C.R. claims that the BHA was required to explain why it found the testimony of the Department's psychologist more credible than the testimony of C.R.'s treating physician. This claim lacks merit. The treating physician rule has not been adopted in Pennsylvania. See Goodman v. Department of Public Welfare, 695 A.2d 945, 949 (Pa. Cmwlth. 1997) (declining to adopt the treating physician rule used by the federal appellate court in social security disability cases); Ashe v. Workmen's Compensation Appeal Board (Department of Labor & Industry), 648 A.2d 1306, 1307-08 & n.3 (Pa. Cmwlth. 1994) (declining to adopt the treating physician rule codified in the federal social security regulations in a workers' compensation case). In any event, the BHA, as factfinder, is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. DePaolo v. Department of Public Welfare, 865 A.2d 299, 305 (Pa. Cmwlth. 2005). Where, as here, a review of the record reveals that the findings of fact are supported by substantial evidence, this court may not disturb the BHA's findings. Id.
Under this rule, the treating physician's opinion concerning medical disability is binding unless contradicted by substantial evidence. Even where there is contrary evidence, the treating physician's opinion is entitled to extra weight. See Goodman v. Department of Public Welfare, 695 A.2d 945, 948 n.8 (Pa. Cmwlth. 1997).
Not surprisingly, C.R. cites no Pennsylvania case law applying the treating physician rule. (See C.R.'s Br. at 22-23.) --------
Accordingly, because we conclude that the record contains substantial evidence to support the BHA's decision, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 15th day of May, 2012, we hereby affirm the October 6, 2011, order of the Department of Public Welfare's Bureau of Hearings and Appeals.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge