South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

Peggy Troiano vs. DHHS

South Carolina Department of Health and Human Services

Peggy Troiano

South Carolina Department of Health and Human Services

Peggy Troiano, Pro Se, Appellant

George Burnett, Esquire, for Respondent




This matter is before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. § 44-6-10 et seq. (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003). Appellant Peggy Troiano, seeks review of a decision of the South Carolina Department of Health and Human Services (DHHS or Department) that affirmed the denial of Medicaid benefits for home oxygen therapy. Upon careful consideration of the record, the briefs filed, Footnote and the applicable law, I find that the Department’s decision to deny Appellant’s Medicaid therapy must be affirmed.


Appellant has been diagnosed with toxic encephalopathy by Dr. Grace Ziem and prescribed home hyperbaric oxygen therapy. Although Appellant had been prescribed this treatment since 1999, the provider, American Health Services, had not been paid by DHHS. In fact, the issue of whether American Health Services had been approved to be paid by DHHS was never conclusively proven due to missing records on the part of both parties.

Following the denial of Appellant’s request that Medicaid cover her oxygen therapy and equipment, Appellant made a request for a “fair hearing” before a DHHS hearing officer to challenge the decision to deny her Medicaid therapy. The fair hearing was held on April 18, 2003, before DHHS hearing officer Barry W. Streeter. Appellant testified at the hearing on her own behalf by telephone. Following the hearing, the hearing officer issued a decision on May 22, 2003, affirming the denial of Appellant’s Medicaid therapy. This decision was based upon the hearing officer’s determination that, based on testimony and evidence presented, there was no documented medical need for the home oxygen therapy as prescribed. By letter dated July 16, 2003, Appellant appealed that decision to the ALC.

The Medicaid Program is a joint venture between the states and the federal government to provide medical assistance to individuals meeting certain financial and other criteria. The federal government provides the majority of funding for Medicaid, although the states are required to provide “matching funds” that contribute to meeting the costs of Medicaid.

The states furnish the primary administrative oversight for Medicaid, and each state has a degree of flexibility in designing a program that can best meet the needs of its residents, given the restrictions of the state's available resources. The federal government requires that certain groups of individuals be covered by Medicaid, and a designated group of core services must be offered by the program. However, beyond these required minimums, the states can pick and choose among additional optional groups of people that may be covered and may also elect to cover additional optional services. The federal and state laws and regulations for the various programs must be complied with by the recipients.


When sitting in its appellate capacity, the ALC reviews agency decisions under the standard of review set up in S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2003). Under that standard, this court is not entitled to “substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” Id. However, this court may reverse or modify the agency’s decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Id.

“Substantial evidence” as used under this standard of review “is not a mere scintilla of

evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action.” Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). This substantial evidence “is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Id. at 136, 276 S.E.2d at 306. Accordingly, “[t]he findings of an administrative agency are presumed correct and will be set aside only if unsupported by substantial evidence.” Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996). Finally, the party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters v. South Carolina Land Resources Conservation Comm’n, 312 S.C. 219, 467 S.E.2d 913 (1996), citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).


The Appellant has failed to cite any specific errors committed by the DHHS hearing officer. Instead, she has chosen to attempt to relitigate the issues which were heard by the hearing officer below. In her brief the Appellant indicates that she would be willing to speak with the court under oath. Appellant does not seem to understand the distinction between an evidentiary hearing and an appellate one. Giving the Appellant the benefit of the doubt as a pro se litigant, I will proceed to discuss the case as if the Appellant had raised valid errors of law.

In this appeal, Appellant argues that the therapy requested is medically necessary and was prescribed by a physician as required. In response, DHHS argues that the medical test results required by federal law were not supplied, and that the Department’s decision denying Appellant’s therapy should be upheld. Although Appellant and her physician argue that the tests required by the federal statute would not accurately measure the oxygen levels of the Appellant’s blood in the brain, which is the source of her disability, the fact remains that an acceptable arterial oxygen partial pressure or oxygen saturation percentage must be established to meet the Medicaid standards.

While this court, like the Department, is well aware of and greatly sympathetic to the difficult financial situation faced by Appellant and the challenges that her affliction causes for daily living, the Department’s decision to deny Appellant’s home oxygen therapy must be affirmed. The eligibility standards for the Medicaid Durable Medical Equipment program simply do not allow for different medical tests. The Appellant has not provided up to date test results that fall within these guidelines. Therefore, the Department’s decision to deny Appellant’s home oxygen therapy must be upheld.


In the case at hand, the DHHS hearing officer applied the Medicaid guidelines accurately and with an even hand, and his findings are supported by substantial evidence. Therefore, IT IS HEREBY ORDERED that the decision of DHHS to approve the denial of Appellant’s request for home oxygen therapy as Durable Medical Equipment provided by Medicaid is AFFIRMED.



Carolyn C. Matthews,

Administrative Law Judge

October 12, 2004

Columbia, SC

Brown Bldg.






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