SC Administrative Law Court Decisions

This matter is before the Administrative Law Court (“ALC”) on the motion of the Respondent, South Carolina Budget & Control Board, Employee Insurance Program (“EIP”), for the court to reconsider and vacate its order issued January 29, 2008 (“Order”). The Order reversed EIP’s decision to deny insurance coverage for a surgical procedure on the Appellant’s spine known as artificial disc replacement (“ADR”). The basis for EIP’s motion is that this appeal became moot when the Appellant underwent an alternative treatment for her back problems prior to the issuance of the Order and, in fact, prior to the institution of the instant appeal.

Having reviewed EIP’s motion and the case law it cites in support thereof, the court finds that its Order should not be vacated. Although this matter has become moot, it falls within the well-settled exception to the mootness doctrine that applies when the issue involved is capable of repetition, yet evading review. See, e.g., Byrd v. Irmo High Sch., 321 S.C. 426, 432, 468 S.E.2d 861, 864 (1996) (reviewing an appeal, even assuming the issue was moot, because short-term student suspensions are, “by their very nature, [] completed long before an appellate court can review the issues they implicate”); Evans v. S.C. Dep’t of Soc. Servs., 303 S.C. 108, 110, 399 S.E.2d 156, 157 (1990) (reviewing an appeal regarding a birth mother’s unwillingness to disclose the birth father’s name, despite the matter having become moot when the birth mother later identified the birth father, because it “is a recurring dilemma which may unnecessarily interfere


with the adoption process”); S.C. Dep’t of Mental Health v. State, 301 S.C. 75, 76, 390 S.E.2d 185, 185 (1990) (reviewing the issue of whether the Department of Mental Health has authority to commit juveniles for “safekeeping” because it “raises a question that is capable of repetition, but which usually becomes moot before it can be reviewed”); In re: Darlene C., 278 S.C. 664, 665, 301 S.E.2d 136, 137 (1983) (reviewing the family court’s commitment of a minor to the Department of Youth Services even though the minor had been released on probation because the “issue raised is ‘capable of repetition but evading review’”). Here, although the Order can no longer provide effectual relief to the Appellant, the underlying issue in the appeal—whether or not ADR is an “investigational” procedure that is excluded from coverage pursuant to the terms of the State Health Plan—is certainly capable of repetition. In fact, in the approximately eighteen months since the General Assembly granted the ALC jurisdiction over appeals arising out of EIP,[1] the ALC has been confronted with this identical issue at least three times. Moreover, because state employees commonly may confront time or financial constraints in making decisions about their health care before an appeal regarding insurance coverage can be briefed and resolved, the issue is also capable of evading review. Accordingly, the court finds that the law does not require that its Order be vacated due to mootness. EIP’s motion is therefore denied.

IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

February 12, 2008

Columbia, South Carolina