Opinion
No. 2252 C.D. 2011
04-30-2012
J.H., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
The parents of J.H. (Petitioners) petition pro se for review of the final order of the Department of Public Welfare (Department), Bureau of Hearings and Appeals (BHA) affirming the determination of Value Behavioral Health of Pennsylvania (VBH) partially denying their request for Behavior Specialist Consultant (BSC) and Therapeutic Staff Support (TSS) services for J.H. because the requested services were no longer medically necessary. Finding no error in the Department's decision, we affirm.
J.H. is listed (by his full name) as Petitioner in the original case caption, but his parents filed the petition for review on his behalf. Accordingly, this Memorandum Opinion will refer to J.H.'s parents as Petitioners.
VBH is a managed-care organization contracted to provide services to participants in Pennsylvania's Medical Assistance Program (MAP). MAP is "a state plan for funding the provision of medical care and services to individuals in need of government aid, conducted with the assistance of federal funding and subject to extensive federal regulation." Department of Public Welfare v. Presbyterian Medical Center of Oakmont, 583 Pa. 336, 338, 877 A.2d 419, 421 (2005). The Department is vested with the authority to administer MAP and has promulgated rules, standards and regulations relating to eligibility for assistance and the nature and extent of that assistance. See Section 403 of the Public Welfare Code.
Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §403.
To be eligible for MAP assistance, the treatment must be "medically necessary." "Medically necessary" is defined in the Department's regulations at 55 Pa. Code §1101.21 as a service, item, procedure or level of care that is: (i) compensable under the MAP; (ii) necessary to the proper treatment or management of an illness, injury or disability; and (iii) prescribed, provided or ordered by an appropriate licensed practitioner in accordance with accepted standards of practice. The definition of "medically necessary" at 55 Pa. Code §1101.21(ii) is further clarified by 55 Pa. Code §1101.21(a), which states:
A service, item, procedure or level of care that is necessary for the proper treatment or management of an illness, injury or disability is one that:
(1) Will, or is reasonably expected to, prevent the onset of an illness, condition, injury or disability.
(2) Will, or is reasonably expected to, reduce or ameliorate the physical, mental or developmental effects of an illness, condition, injury or disability.
(3) Will assist the recipient to achieve or maintain maximum functional capacity in performing daily activities, taking into account both the functional capacity of the recipient and those functional capacities that are appropriate of recipients of the same age.
J.H., a participant in MAP, is a nine-year-old male diagnosed with Pervasive Developmental Disorder (PDD). He has a history of anxiety, oppositional behavior and severe temper tantrums. J.H. is a student in the third grade with an Individualized Education Program (IEP), and has been receiving behavioral health rehabilitation services (BHRS) since 2004. For the past three years, he has received three hours per week of BSC services, 35 hours per week of TSS services in school, and eight hours per week of TSS services in the home and community during school breaks.
In April 2011, VBH received a request from Petitioners on behalf of J.H. for continued BHRS. Specifically, Petitioners requested (1) BSC services at three hours per week from May 24, 2011, through May 23, 2012; (2) TSS services in school at 35 hours per week from May 24, 2011, through June 3, 2011; August 29, 2011, through November 22, 2011; November 29, 2011, through December 23, 2011; and January 1, 2012, through May 23, 2012; and (3) TSS services at home and in the community at eight hours per week during school breaks from June 4, 2011, through August 28, 2011; November 23, 2011, through November 28, 2011; and December 24, 2011, through January 1, 2012.
VBH approved three hours per week of BSC services from May 24, 2011, through August 28, 2011; 30 hours per week of TSS services in school from May 24, 2011, through June 3, 2011; and eight hours per week of TSS services in the home and community from June 4, 2011, through August 28, 2011, but denied the remainder of Petitioners' request. Petitioners filed first and second-level grievances with VBH, which upheld its determination on the basis that the requested services were no longer medically necessary. Petitioners then appealed to the BHA.
Before an Administrative Law Judge (ALJ), J.H.'s BSC, Lisa Young (Young), testified that regular TSS services were necessary to allow J.H. to function in a mainstream classroom. She further testified that J.H. continued to require frequent prompts to remain on task, and that he required a TSS specifically trained in PDD triggers who could address his needs in the least restrictive way. J.H.'s mother testified that while J.H. had made progress, he had not made enough progress to be placed in a mainstream classroom without any support at all. However, she explained that J.H. is too high-functioning to be placed in an autistic support room for the entire school day. She further testified that J.H.'s TSS worker consoled him when he experienced anxiety, and modeled behaviors for other children so they could better interact with J.H. J.H.'s father testified that the continuation of TSS services would prevent J.H. from regressing and that if TSS services were discontinued now, J.H. would potentially require services for the remainder of his life.
Kimberly Bailey, J.H.'s speech therapist, corroborated the testimony provided by Young.
Sharon Arffa, Ph.D. (Dr. Arffa), Associate Director of Behavioral Health, and Derek Stotsky (Stotsky), Child Adolescent and Family Services Coordinator, testified on behalf of the Department. They testified that although J.H. still required frequent prompts throughout the school day, he had made significant progress, earning A's in school and improving his interactions with peers. They further testified that VBH's determination to partially deny Petitioners' request was appropriate because TSS services are meant to provide temporary support and the prompts given by the TSS could be provided by teachers at J.H.'s school.
Based on the testimony, the ALJ found that when J.H. first began receiving BHRS, he required a great deal of one-on-one interaction, could not be integrated with a small or large group, and presented safety concerns at school. However, the ALJ found that J.H. had made significant progress, and while he still required frequent prompts during the school day, a lower level of care could provide that service because it is not a sophisticated behavioral intervention. Accordingly, the ALJ concluded that the continuation of the requested hours was no longer clinically appropriate, noting that TSS services are meant to be temporary and a transfer of skills was necessary in this case. The Department's BHA issued a final administrative action order affirming the decision of the ALJ, and this appeal by Petitioners followed.
Our scope of review is limited to determining whether the adjudication is in accordance with the law, whether constitutional rights were violated and whether necessary findings of fact are supported by substantial evidence. McBride v. Department of Public Welfare, 960 A.2d 203, 205 n.3 (Pa. Cmwlth. 2008). --------
Petitioners' arguments on appeal can be summarized as follows: (1) the ALJ's conclusion that the requested services are no longer clinically appropriate and should be transitioned to a lower level of care directly contradicts the opinion of J.H.'s support team that the requested services are still medically necessary; and (2) because the requested services were deemed medically necessary in the past and J.H.'s diagnosis has not changed, it follows that the services must still be medically necessary.
Petitioners' first argument suggests that the ALJ's decision is not supported by the weight of the evidence. We disagree. The ALJ based his decision to partially deny the requested services on the undisputed testimony that J.H. had made significant progress in school, as well as the testimony of Dr. Arffa and Stotsky that a TSS worker was no longer necessary to provide J.H. with the type of support he needed to function in a traditional classroom setting. The ALJ simply found the Department's evidence more convincing than that of Petitioners. The hearing examiner is the ultimate fact-finder in matters of the Department of Public Welfare, and must resolve conflicts in the testimony and may reject the testimony of any witness. Perna ex. Rel Bekus v. Department of Public Welfare, 807 A.2d 310 (Pa. Cmwlth. 2002). Therefore, we will not disturb the ALJ's findings.
Petitioners' remaining argument is also without merit. The fact that J.H.'s diagnosis of PDD has remained unchanged does not automatically entitle him to continued behavioral health services. Appendix T of VBH's contract with the Department sets forth guidelines for the medical necessity of behavioral health services. Part B(2) of Appendix T emphasizes that "[s]ervices should take place in settings that are the most appropriate and natural for the child and family and are the least restrictive and intrusive available to meet the needs of the child." (Appendix T, Part B(2) at 5). The guidelines further state "[r]educing levels of intervention is a necessary element of therapy directed toward fostering and developing independence in the relationship formations of children with their families, peers, and functioning in normalized settings in the community." Id. at 10 (emphasis added). The ALJ's decision to partially deny Petitioners' request is consistent with these objectives.
Accordingly, the order of the Department is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 30th day of April, 2012, the Department's final order, dated September 26, 2011, at No. W11-3847, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge