SC Administrative Law Court Decisions

I. STATEMENT OF THE CASE

This matter is before the Administrative Law Court (“ALC”) in its appellate jurisdiction pursuant to S.C. Code Ann. § 1-23-600(D) (as amended 2008).[1] Robyn Sommer Pruitt (“Pruitt”) appeals the decision of the South Carolina Department of Health and Human Services (“HHS”) to discontinue her services under the Mental Retardation/Related Disabilities (“MR/RD”) Waiver Program based on a determination that Pruitt does not meet the requisite level of care (“LOC”) criteria for an Intermediate Care Facility for the Mentally Retarded (“ICF/MR”).

Upon careful review of this matter, considering the Record on Appeal, the briefs, oral arguments, and applicable law, HHS’s decision to discontinue Pruitt’s services under the MR/RD Waiver Program is affirmed.

II. BACKGROUND

A. Factual Background

Pruitt was born in 1983 and soon thereafter was diagnosed with cerebral palsy and left hemiparesis. At age four she was diagnosed with epilepsy, and at age eleven with a seizure disorder. Between ages six and twelve, Pruitt suffered from severe seizure activity. After age

twelve, Pruitt continued to experience some severe seizures; however, they were more controlled and included both epileptic and pseudoseizures (non-epileptic seizures).[2]

Pruitt has a mild limp and has some difficulty with balance secondary to her left hemiparesis. She has a weakness in her left arm with some contracture in her left hand. As a result, Pruitt can only use her left hand to stabilize or assist and has difficulty using her left hand with small objects such as zippers and buttons. Despite that, Pruitt is able independently to move about, dress, bathe, use the restroom, eat, and use the telephone for communication and shopping. Pruitt has a history of depression, anxiety, and behavioral problems and she takes psychotropic medications for these conditions.

Between ages six and twenty-one, Pruitt was administered approximately nine intelligence quotient (“I.Q.”) assessments utilizing various testing methods. The assessments resulted in the following I.Q. scores:

None of the tests administered before age eighteen resulted in a diagnosis of mental retardation; however, at age twelve—the year that she obtained the lowest I.Q. scores prior to age eighteen—she was diagnosed with a learning disability and borderline-to-low average intelligence. The last test prior to her eighteenth birthday occurred at age seventeen and was administered by a licensed psychologist. Based on that test, the psychologist determined that Pruitt was functioning in the borderline range of intelligence. Three more I.Q. tests were administered following her eighteenth birthday, and at age eighteen years and six months she was diagnosed with mental retardation, depression, and anxiety. Another test administered at age twenty-one resulted in a diagnosis of mental retardation and mood disorder. The experts who administered the tests take diverging views on whether Pruitt’s test scores indicate that the onset of mental retardation occurred before or after Pruitt’s eighteenth birthday.

B. Procedural Background

In 2000, Pruitt’s mother began applying to the South Carolina Department of Disabilities and Special Needs (“DDSN”)[3] on Pruitt’s behalf for MR/RD Waiver services, a federally approved and state-administered Medicaid program. DDSN denied these requests. In 2003, Pruitt appealed DDSN’s denial. The resolution of that matter resulted in DDSN’s approving Pruitt for the MR/RD Waiver Program based on a related disability due to her seizure disorder. DDSN granted Pruitt’s request to receive community-based services rather than at-home services, as neither of her parents was able to care for her at home.[4] Pruitt was placed in an out-of-home residential facility. On April 27, 2005, DDSN notified Pruitt that these services were being discontinued as of May 7, 2005 because Pruitt no longer met the ICF/MR level of care criteria.[5]

Pruitt exhausted her administrative remedies with HHS and now appeals HHS’s decision to discontinue services pursuant to S.C. Code Ann. § 1-23-600(D) (as amended 2008). During the pendency of this appeal, Pruitt filed a motion for the taking of new evidence by HHS. By order filed on June 28, 2007, the court granted Pruitt’s motion pursuant to S.C. Code Ann. § 1-23-380(A)(3) (now renumbered as § 1-23-380(3)) and directed that additional evidence be taken before the HHS Hearing Officer who issued the original decision. Further, by order filed on September 5, 2008, the court directed the HHS Hearing Officer, while considering the new evidence, to also consider the applicability of 26 S.C. Code Ann. Regs. 88-210(F), (K) (Supp.



2006)[6] to the Record, as supplemented by the new evidence received pursuant to the court’s June 28, 2007 Order, and modify his findings and decision, if necessary. In a decision dated November 15, 2007, the Hearing Officer considered the additional evidence and the applicability of 26 S.C. Code Ann. Regs. 88-210(F), (K) (Supp. 2006) and again determined that Pruitt does not meet the ICF/MR level of care criteria for MR/RD Waiver Services.

III. ISSUES ON APPEAL

Pruitt raises the following issues on appeal:

1. Is the final administrative decision (“Decision”) in violation of law in that the hearing officer failed to hold that the April 2001 determination by the Social Security Administration that Appellant has mental retardation is binding on the Respondent’s determination of the identical question under the Mentally Retarded/Related Disabilities (“MR/RD”) Waiver program?

2. Is the decision in violation of applicable law, clearly erroneous, arbitrary, capricious, and an abuse of discretion in that the hearing officer failed to apply the applicable statutory, regulatory, and professional standards in determining whether Appellant has mental retardation?

3. Is the Decision clearly erroneous, arbitrary, and capricious in the finding that a physician is not qualified to diagnose mental retardation and to certify level of care for the MR/RD Medicaid Waiver?

4. Is the Decision in excess of the statutory authority of Respondent and the South Carolina Department of Disabilities and Special Needs (“DDSN”) in that it relied on DDSN eligibility policy guidelines that are inconsistent with applicable federal and state statutes and regulations to determine that Appellant’s cerebral palsy and epilepsy are not related disabilities?

5. Did the hearing officer err by failing to require the Respondent to prove that Appellant’s related disabilities had ceased, did not exist, or were not disabling by providing substantial evidence that there had been a medical improvement in Appellant’s impairment or combination of impairments?

6. Is the Decision that Appellant does not have related disabilities clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record?

7. Is the Decision arbitrary and capricious, characterized by abuse of discretion, and an excess of the agency’s statutory authority because of the hearing officer’s refusal to grant Appellant’s request under federal law to obtain an independent, qualified medical examination?

8. Is the Decision in violation of law and an abuse of discretion as a result of DDSN’s failure to provide a prompt hearing and decision as required by 42 C.F.R. § 431?

9. Is the Decision clearly erroneous, arbitrary, capricious, and an abuse of discretion in that it concludes Appellant failed to exhaust the reconsideration process through the DDSN?

(Appellant’s Br. 1-2).

Although Pruitt raises numerous issues on appeal, the crux of her appeal is whether Pruitt was improperly denied MR/RD Waiver Services under the provisions of Medicaid.

IV. STANDARD OF REVIEW

As set forth above, this matter is before the ALC in its appellate jurisdiction pursuant to S.C. Code Ann. § 1-23-600(D) (as amended 2008).  Accordingly, the Administrative Procedures Act’s standard of review governs this appeal.  See S.C. Code Ann. §§ 1-23-600(E), -380 (as amended 2008); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995).  The standard used by appellate bodies, including the ALC, to review agency decisions is provided by S.C. Code Ann. § 1-23-380(5) (as amended 2008).  See S.C. Code Ann. § 1-23-600(E) (as amended 2008) (directing Administrative Law Judges to conduct appellate review in the same manner prescribed in Section 1-23-380).  This section provides:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact.  The court may affirm the decision of the agency or remand the case for further proceedings.  The court may reverse or modify the decision [of the agency] 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.

S.C. Code Ann. § 1-23-380(5) (as amended 2008). 

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency.  Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984).  Further, substantial evidence means that a decision will not be set aside simply because reasonable minds may differ on the judgment.  Lark v. Bi-Lo, 276 S.C.130, 276 S.E.2d 304 (1981).  Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence that, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached in order to justify its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s finding from being supported by substantial evidence.  Id.; Waters v. S.C. Land Res. Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995). However, § 1-23-380(5) requires the reviewing tribunal to consider not only the amount of evidence, but also the quality of that evidence; it must be both “reliable” and “probative,” as well as “substantial.” See S.C. Code Ann. § 1-23-380(5) (as amended 2008).

An abuse of discretion occurs when a decision is based upon an error of law, such as application of the wrong legal principle; or, when based upon factual conclusions, the ruling is without evidentiary support; or when the judge is vested with discretion, but the ruling reveals no discretion was exercised; or when the ruling does not fall within the range of permissible decisions applicable in a particular case. Ex Parte Capital U-Drive-It, Inc., 369 S.C. 1, 5, 630 S.E.2d 464, 467 (2006). A decision is arbitrary or capricious when no rational basis for the conclusion exists, when it is based on one’s will and not upon any course of reasoning and exercise of judgment. Converse Power Corp. v. S.C. Dep’t of Health & Envtl. Control, 350 S.C. 39, 564 S.E.2d 341 (Ct. App. 2002); Deese v. S.C. State Bd. of Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct. App. 1985). A decision may be arbitrary or capricious when it is made at one’s pleasure without adequate determining principles, or is governed by no fixed rules or principles. Deese, 286 S.C. at 184-85, 332 S.E.2d at 341. Non-uniform, inconsistent, or selective application of authority can indicate arbitrariness. See Mungo v. Smith, 289 S.C. 560, 571, 347 S.E.2d 514, 521 (Ct. App. 1986).

V. DISCUSSION

A. Medicaid

1. Generally

Medicaid is an optional state program created under Title XIX of the Social Security Act. It enables states to receive federal financial assistance specifically for the medical care of needy individuals. See 42 C.F.R. § 1396; Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 502 (1990); Doe v. Kidd, 501 F.3d 348, 351 (4th Cir. 2007). States are not required to participate in Medicaid; however, if they choose to do so, they must comply with all federal Medicaid laws and regulations. Wilder, 496 U.S. 498; Doe, 501 F.3d at 351; see also Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002) (“Although North Carolina may retain a special sovereignty interest in choosing whether to participate in the Medicaid program, once it elects to participate, it is not entitled to assert that interest to insulate itself from the requirements of the federal program.”), cert. denied, Odom v. Antrican, 537 U.S. 973 (2002). As a prerequisite to receiving federal assistance, a state must submit a detailed plan, referred to as the “State Plan,” to the Center for Medicare/Medicaid Services (“CMS”) for approval. 42 C.F.R. § 1396a.

In South Carolina, HHS is the state agency responsible for administering and supervising the state’s Medicaid programs. S.C. Code Ann. § 44-6-30(1); Doe, 501 F.3d at 351. Furthermore, DDSN is responsible for the state’s treatment and training programs for people with mental retardation and related disabilities. Doe, 501 F.3d at 351. Accordingly, in some instances, such as the case at hand, DDSN can act as an agent for HHS. Id.

Medicaid provides funding for state-run homes and community-based care through a waiver program. See 42 C.F.R. § 1396n(c). The waiver program provides Medicaid reimbursement to participant states for providing community-based services to individuals who would otherwise require institutional care. Id. In this appeal, the waiver program at issue is the MR/RD Waiver Program.

2. MR/RD Waiver Program

The MR/RD Waiver Program permits a recipient to receive services at home or in the community, rather than in an ICF/MR such as a nursing home. Doe, 501 F.3d at 351. The

requirements for the MR/RD Waiver Program are identical to the requirements for an ICF/MR. There are three requirements to determine whether an applicant meets the ICF/MR LOC criteria to receive the MR/RD Waiver. These include:

1.                  The applicant has a confirmed diagnosis of either mental retardation or related disability as defined by 42 C.F.R. § 435.1009, and South Carolina Code Section 44-20-30; and

2.                  Supervision is necessary “due to impaired judgment, limited capabilities, behavioral problems, abusiveness, assaultiveness, or because of drug effects/medical monitorship[;]” and

3.                  Services are needed for: (at least one of the following) a) acquisition of the behaviors necessary to function with as much self-determination and independence as possible; b) prevention or deceleration of regression or loss of current optimal functional status.

(R. at 3157). In Pruitt’s case, only the first requirement is in dispute. Therefore, for Pruitt to be entitled to receive the MR/RD Waiver, she must either be mentally retarded or have a related disability.

B. Mental Retardation

1. Social Security Determination

Pruitt first argues that the Hearing Officer erred in failing to hold the federal Social Security Administration’s (“SSA’s”) determination of disability based upon a primary diagnosis of mental retardation binding upon DDSN for the MR/RD Waiver Program. This argument is based on 42 C.F.R. § 435.541, which provides:

(a) Determinations made by SSA. The following rules and those under paragraph (b) of this section apply where an individual has applied for Medicaid on the basis of disability.

* * *

(2) The agency may not make an independent determination of disability if SSA has made a disability determination within the time limits set forth in § 435.911 on the same issues presented in the Medicaid application. A determination of eligibility for SSI payments based on disability that is made by SSA automatically confers Medicaid eligibility, as provided for under § 435.909.

42 C.F.R. § 435.541 (emphasis added). This section mandates that a determination of disability by the SSA is binding upon an application for Medicaid on the basis of disability and it is limited to that situation. Whether or not Pruitt is disabled is not the determinative issue as to whether Pruitt is eligible for the MR/RD Waiver Program, as the Waiver Program is not based solely

upon whether Pruitt is disabled. Rather, the MR/RD Waiver Program is available for persons who are disabled and who have been found to have either mental retardation or related disabilities and who meet the other ICF/MR level of care criteria. Pruitt points out that the SSA form granting her disability benefits lists mental retardation as the primary diagnosis. For Pruitt’s argument to prevail, the court would have to interpret § 435.541 to require the underlying diagnosis in a disability determination to be binding upon a Medicaid Waiver Program. Such an interpretation is beyond the plain language of § 435.541. Accordingly, the Hearing Officer did not err in finding that § 435.541 did not mandate a finding in the case at bar that Pruitt is mentally retarded.

In a similar vein, Pruitt contends that even if the SSA determination of disability based on mental retardation is not binding pursuant to 42 C.F.R. § 435.541, the doctrine of collateral estoppel should apply because SSA has determined as a factual matter that Pruitt is mentally retarded. Generally, for collateral estoppel to apply, three elements must be present: (1) the issue of fact or law must have been actually litigated in the prior litigation; (2) the issue must have been determined by a valid and final judgment; and (3) the determination must have been essential to the judgment. See Carman v. S.C. Alcoholic Beverage Control Comm’n, 317 S.C. 1, 451 S.E.2d 383 (1994) (citing S.C. Property & Casualty Ins. Guar. Ass’n v. Wal-Mart Stores, Inc., 304 S.C. 210 403 S.E.2d 625 (1991)). The South Carolina Supreme Court has applied collateral estoppel to a decision of an administrative agency “[w]hen [it] is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have an adequate opportunity to litigate . . . .” Carman, 317 S.C. at 6, 451 S.E.2d at 386. “Under the doctrine of collateral estoppel . . . the judgment in the first action precludes relitigation of only those issues ‘actually and necessarily litigated and determined in the first suit.’” Beall v. Doe, 281 S.C. 363, 369 n.1, 315 S.E.2d 186, 390 n.1 (Ct. App. 1984) (quoting Stewart, Res Judicata and Collateral Estoppel in South Carolina, 28 S.C.L.Rev. 451, 452 (1977)).

There is no evidence in the Record demonstrating that the determination by SSA was made while acting in a judicial capacity. Further, there is nothing to indicate that the diagnosis of mental retardation by SSA was disputed and actually litigated. See, e.g., Restatement (Second) of Judgments § 27. Accordingly, the doctrine of collateral estoppel does not apply to the SSA determination of disability based upon mental retardation. Thus, to the extent that SSA made a finding that Pruitt was mentally retarded, the Hearing Officer did not err in rejecting it with regard to Pruitt’s application for ICF/MR benefits.

2. Definition of Mental Retardation

Having determined that SSA’s determination was not binding on the Hearing Officer pursuant to either § 435.541 or the doctrine of collateral estoppel, the court must determine whether the Hearing Officer applied the appropriate definition of mental retardation. The parties agree that the starting point for this determination is found in S.C. Code Ann. § 44-20-30(11), which defines mental retardation as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.” The term “developmental period,” however, is not specifically defined in the statute, and it is upon the construction of this term that Pruitt’s application for benefits based upon mental retardation largely turns.

Pruitt asserts on appeal that the Hearing Officer misinterpreted the term “developmental period.” The Hearing Officer relied upon the “South Carolina Department of Disabilities and Special Needs Policy for Determination of Eligibility Guidelines to Operationalize Eligibility Policy” (“DDSN Policy” or “Policy”)—a written policy by DDSN that in part provides specific guidance with regard to the application of § 44-20-30. Essentially, this Policy results in the use of the eighteenth birthday as the end of the developmental period for purposes of determining mental retardation. By contrast, Pruitt contends that the appropriate definition for “developmental period” is contained in 24 S.C. Code Ann. Regs. 88-210(F) (Supp. 2007). This regulation defines developmental period as “[t]he period of time between conception and the twenty-second birthday.” Id.

Although a validly promulgated regulation has the force and effect of law, see S.C. Code Ann. § 1-23-10(4) (Supp. 2007); Gadson v. Mikasa Corp., 368 S.C. 214, 628 S.E.2d 262 (Ct. App. 2002); Home Health Serv., Inc. v. S.C. Tax Comm’n, 312 S.C. 324, 440 S.E.2d 375 (1994), Pruitt’s reliance on this definition is misplaced. Regulation 88-210 clearly states that these definitions apply “for the purposes of these regulations.” The entirety of Chapter 88, which is entitled “Department of Disabilities and Special Needs,” addresses facility and program licensing requirements, recreational camps, day programs, and unclassified facilities and programs. No regulations in this chapter refer to or address eligibility for benefits. Thus, the Hearing Officer properly found that § 88-210 has no applicability to the MR/RD Waiver Program.

Nor did he err in using DDSN’s interpretation of § 44-20-30(11) found in its Policy. The Policy provides:

DDSN evaluates referred individuals in accordance with the definitions of Mental Retardation outlined in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition (DSM-IV, 1994) and the American Association on Mental Retardation (AAMR 9^th Edition, 1992).

(R. at 3166). Based on those sources, the Policy requires the following three criteria to be met for a diagnosis of mental retardation:

1. Significantly sub-average intellectual functioning; an IQ of approximately 70 or below on an individually administered intelligence test . . . .;

2. Concurrent deficits in present overall adaptive functioning (i.e. the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group) with deficits in at least two of the following adaptive skills areas: communication, self care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work leisure, health, and safety[;]

3. The onset of mental retardation is before age 18 years.

(R. at 3166).

While a policy that has not been promulgated as a regulation does not have the force and effect of law, our appellate courts have repeatedly held that the interpretation of a statute by the agency charged with its administration will be accorded “the most respectful consideration” and should not be rejected absent compelling reasons.[7] Hardee v. McDowell, 372 S.C. 413, 642 S.E.2d 632 (Ct. App. 2007) (citing Bursey v. S.C. Dep’t of Health & Envtl. Control, 369 S.C. 176, 186-87, 631 S.E.2d 899, 905 (2006)); see also Vulcan Materials Co. v. Greenville County Bd. of Zoning Appeals, 342 S.C. 480, 496, 536 S.E.2d 892, 900 (Ct. App. 2000) (“The construction of a statute by the agency charged with its administration should be accorded great deference and will not be overruled without a compelling reason.”); Dorman v. Dep’t of Health & Envtl. Control, 350 S.C. 159, 167, 565 S.E.2d 119, 123 (Ct. App. 2002). Thus, although an agency’s interpretation of a statute is not binding or controlling on the court, the court gives deference to the opinion of a state agency charged with the duty and responsibility of enforcing


the statute. Georgia-Carolina Bail Bonds, Inc. v. County of Aiken, 354 S.C. 18, 579 S.E.2d 334 (Ct. App. 2003).

The Supreme Court has also noted that “where the construction of a statute has been uniform for many years in administrative practice, and has been acquiesced in by the General Assembly for a long period of time, such construction is entitled to weight, and should not be overruled without cogent reasons.” Etiwan Fertilizer Co. v. S.C. Tax Comm’n, 217 S.C. 354, 60 S.E.2d 682, 684 (1950). Furthermore, courts have tended to defer more to an agency’s non-binding policy when the issue at bar involved an ambiguous definition or the agency’s expertise. See Byerly Hosp., 319 S.C. 225, 460 S.E.2d 383 (deferring to the agency’s interpretation of a statute because of the agency’s expertise); Bunch v. Cobb, 273 S.C. 445, 452, 257 S.E.2d 225, 228 (1979) (stating that consistent application of a statute by responsible governing agency “has been given considerable judicial deference in the construction of ambiguous statutes”); United
Seniors Ass’n, Inc. v. Soc. Sec. Admin., 423 F.3d 397, 403-04 (4th Cir. 2005) (giving deference to an agency’s interpretation of an ambiguous term in a federal statute, based on the agency’s
expertise); Equal Employment Opportunity Comm’n v. Seafarers Int’l Union, 394 F.3d 197, 201 (4th Cir. 2005) (deferring to the agency where the issue at bar fell “squarely within the agency’s special competence”).

As the agency charged with applying § 44-20-30, DDSN is entitled to deference with regard to its interpretation of that section. Moreover, the term “developmental period” is ambiguous on its face and within the area of special expertise of the agency. As such, the Hearing Officer did not err in considering the DDSN Policy in determining the appropriate definition of “developmental period” and requiring the onset of mental retardation to be manifested prior to age eighteen. Moreover, it is clear from the Hearing Officer’s written decisions that he used the age of eighteen as the end of the developmental period not only because of the DDSN Policy, but also because he determined based on the evidence presented that it was consistent with “accepted psychological doctrine.” The Record contains substantial evidence supporting this conclusion.

3. Application of the Standards for Mental Retardation

Pruitt next argues that, even if reliance on the DDSN Policy were proper, the Hearing Officer erred in not finding Pruitt mentally retarded because he disregarded the applicable statutory, regulatory, and professional standards incorporated by the Policy. As stated above, the requirements for a diagnosis of mental retardation under the DDSN Policy include:

1. Significantly sub-average intellectual functioning; an IQ of approximately 70 or below on an individually administered intelligence test . . . .;

2. Concurrent deficits in present overall adaptive functioning (i.e. the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group) with deficits in at least two of the following adaptive skills areas: communication, self care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work leisure, health, and safety[;]

3. The onset of mental retardation is before age 18 years.

(R. at 3166).

The Hearing Officer concluded that due to Pruitt’s seizure activity between age six and twelve, her I.Q. scores decreased, reflecting a decrease in her cognitive abilities. Therefore, the
Hearing Officer considered Pruitt’s I.Q. scores only after Pruitt reached age twelve. Those assessments resulted in Verbal I.Q scores ranging from 76–81 with the highest score obtained at age seventeen and the lowest at age twelve; Performance I.Q. scores ranging from 64–68, with the highest score obtained at ages fifteen and sixteen and the lowest at age twelve; and Full Score I.Q. scores ranging from 68–73, with the highest score at age sixteen and the lowest at age twelve. None of the tests administered before age eighteen resulted in a diagnosis of mental
retardation; however, at age twelve—the year that she obtained the lowest I.Q. scores prior to age eighteen—she was diagnosed with a learning disability and borderline-to-low average intelligence. The testing psychologist who administered Pruitt’s test at age twelve stated that those scores “somewhat underestimate her true potential. Her optimum abilities are believed to fall between the borderline and low average ranges.” (R. at 2171). Furthermore, her highest I.Q. scores were obtained at ages sixteen and seventeen. Despite a myriad of tests, it was only after Pruitt reached age eighteen that she was diagnosed with mental retardation.[8]

The parties take diverging stances on whether these scores indicate that the onset of mental retardation occurred before age eighteen, entitling Pruitt to benefits under the MR/RD Waiver Program. The parties agree that an I.Q. score of 70 is not conclusive and that an individual may be found to be mentally retarded with an I.Q. above 70. Likewise, an individual with an I.Q. score below 70 may be found not to be mentally retarded. Accordingly, when an I.Q score falls near 70, other information must be considered, including “other clinically derived information and the case history” of the individual. (R. at 2467) (Herbert J. Grossman, Classification in Mental Retardation, 11 (American Association on Mental Deficiency 1983)).

The Appellant asserts that since Pruitt’s I.Q. scores repeatedly fell near 70, an assessment of Pruitt’s judgment and reasoning abilities inescapably leads to the conclusion that she met the criteria for mental retardation. Pruitt cites to the testimony of Dr. Jonathan Venn, who concluded that “based upon [Pruitt’s] poor judgment and reasoning and her significant adaptive deficits, she
meets the criteria for mental retardation.”[9] (Appellant’s Br. at 47). However, as the Respondent points out, Dr. Venn did not make this determination based on personal clinical observation of Pruitt prior to age eighteen; therefore, the Hearing Officer did not err in rejecting Dr. Venn’s opinion. (Respt.’s Br. at 29). Further, the experts who performed clinical observations of Pruitt prior to age eighteen unanimously agreed that Pruitt was not mentally retarded.

As discussed above, this court sits in an appellate capacity in review of HHS’s decision. Pursuant to the APA, this court’s review is limited to deciding whether the HHS’s Final Administrative Order is unsupported by substantial evidence or is affected by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 581 (Ct. App. 2005). Pruitt urges the court to consider the testimony of her experts that she was mentally retarded during the developmental period;[10] however, there was an abundance of testimony and documentation submitted at the hearing and considered by the Hearing Officer that showed otherwise. Although strenuously advocating the persuasiveness of her evidence, Pruitt has failed to show that the evidence relied upon by the Hearing Officer was not probative or reliable. The record merely shows that there are conflicting expert opinions about whether the onset of mental retardation occurred in Pruitt prior to age eighteen. In such a “battle of the experts,” the Hearing Officer was within his discretion to credit the opinions answering that query in the negative. Cf. Wilson v. State Budget & Control Bd., Employee Ins. Program, 374 S.C. 300, 305, 648 S.E.2d 310, 313 (Ct. App. 2007) (affirming an insurance plan’s denial of coverage where the opinions of multiple examining physicians conflicted and the medical records were inconsistent); Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 445 (4th Cir. 1996) (“The [United States] Supreme Court has stated that ‘[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.’”) (quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989)).

Additionally, the Hearing Officer emphasized that he considered the totality of the information rather than relying on any one piece of evidence or one test score. It is not the purview of this court to re-weigh the evidence. An administrative law judge may not substitute her judgment for “the judgment of the agency as to the weight of the evidence on questions of fact.” S.C. Code Ann. § 1-23-380(5) (as amended 2008). Here, the court finds that there was substantial evidence to support the Hearing Officer’s determination.[11]

C. Related Disability

As discussed above, one of the three criteria that an applicant must satisfy to receive the MR/RD Waiver reads as follows: “The person has: (at least one of the following) a) Mental Retardation; b) Related Disability.” (R. at 3157). Therefore, even though Pruitt does not qualify for the MR/RD Waiver Program on the basis of mental retardation, the court must determine if the Hearing Officer erred in finding that Pruitt does not have a related disability within the statutory and regulatory definitions.

“Related disability” is defined in S.C. Code Ann. § 44-20-30(15), which contains language nearly identical to the federal definition of a “related condition” found at 42 C.F.R. § 435.1010. S.C. Code Ann. § 44-20-30(15) provides:

“Related disability” is a severe, chronic condition found to be closely related to mental retardation or to require treatment similar to that required for persons with mental retardation and must meet the following conditions:

(a) It is attributable to cerebral palsy, epilepsy, autism, or any other condition other than mental illness found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation and requires treatment or services similar to those required for these persons.

(b) It is manifested before twenty‑two years of age.

(c) It is likely to continue indefinitely.

(d) It results in substantial functional limitations in three or more of the following areas of major life activity: self‑care, understanding and use of language, learning, mobility, self‑direction, and capacity for independent living.

As an initial matter, the Appellant contends that the Hearing Officer erred as a matter of law in concluding that “[a] Related Disability cannot be attributable to a mental disorder,” arguing that state and federal law provides that a related disability must not be attributable to a mental illness (rather than a disorder). Upon review, it appears that the Hearing Officer used the term “mental disorder” synonymously with mental illness. The entirety of the Hearing Officer’s statement provides: “A Related Disability cannot be attributable to a mental disorder, such as depression or anxiety, except autism.” (R. at 39); (R. on Remand at 23). Accordingly, despite any possible confusion over semantics, the Hearing Officer appears to have properly stated the law. Further, the Hearing Officer clearly analyzed Pruitt’s cerebral palsy and epileptic seizure disorders under the statutory factors for related disability. Therefore, even assuming the Hearing Officer mistakenly confused “mental illness” with “mental disorder,” it does not appear that Pruitt suffered any resulting prejudice. See S.C. Code Ann. § 1-23-380(5) (as amended 2008) (stating that the court may reverse or modify any agency’s decision if substantial rights of the Appellant are prejudiced).

1. Substantial Evidence of No Related Disability

The Appellant argues that the Hearing Officer erred in determining that Pruitt’s cerebral palsy and seizure disorder are not related disabilities.[12] The Hearing Officer concluded that Pruitt’s cerebral palsy and seizure disorder do not constitute a related disability because they “do not result in substantial functional limitations in self-care, understanding and use of language, learning, mobility, self-direction or capacity for independent living.” (R. at 39) (emphasis in original); (see also R. on Remand at 23). For example, the Hearing Officer determined that Pruitt’s “Cerebral Palsy and Epileptic Seizure Disorder do not prevent her from performing all self-care activities with little or no assistance or supervision” and that “[s]he is able to be independently mobile despite her physical handicaps.” (R. on Remand at 23). The Hearing Officer attributed Pruitt’s deficits in understanding and use of language, self-direction, and capacity for independent living to her mental disorders, learning disorder, and/or borderline intellectual functioning, none of which would qualify her for benefits under the state and federal definitions of related disability. (Id. at 23).

During the hearing on this matter, both parties provided testimony and documentation supporting each of their respective positions. (Compare, e.g., R. at 265-68 (testimony of Appellant’s expert, neurologist Dr. Lawrence Mauldin) with R. at 364-65 (testimony of Respondent’s expert, Dr. Leslie Platt)).[13] Further, during the pendency of this appeal, the court granted Pruitt’s motion for the taking of new evidence by HHS and, as a result, the Hearing Officer considered over 2,500 pages of additional medical documentation and briefs from the parties. Upon review of the Record and the briefs submitted by the parties, the court cannot say that the Hearing Officer’s decision was erroneous in view of the reliable, probative, and substantial evidence in the Record.

The Hearing Officer found that Pruitt has cerebral palsy and experiences both epileptic and non-epileptic seizures.[14] The question before the Hearing Officer was whether either the cerebral palsy or the epilepsy causes substantial functional limitations in at least three areas of major life activities. See S.C. Code Ann. § 44-20-30(15). The Hearing Officer found, based on the evidence presented at the hearing and upon consideration of additional evidence on remand, that Pruitt “is independent with dressing, bathing, toileting, eating, transferring from one surface to another and ambulation.” (R. on Remand at 7). He further found that Pruitt “has a long history of treatment for depression, anxiety and behavioral problems . . . [and] take[s] psychotropic medications for these conditions.” (Id. at 8). Finally, the Hearing Officer found that Pruitt’s “cognitive skills for daily decision-making showed modified independence as she had some difficulty in new situations only.” (Id.). Notably, additional medical evidence supplied to the Hearing Officer on remand contained numerous medical notes regarding Pruitt’s hospitalization from late April 2007 until May 28, 2007. These notes indicate that Pruitt would get out of bed, use the restroom, shower, and dress without asking for assistance. Pruitt was observed using the telephone and watching television. Her treating neurologist indicated that Pruitt’s non-epileptic seizures increased with stress. There is also evidence in the Record that Pruitt’s limitations fluctuate in nature and severity with external social stressors, such as being informed that she is being discharged from the hospital, being questioned about litigation matters, and her awareness of medical observation. Accordingly, the Hearing Officer’s conclusion that the periods when Pruitt experiences substantial limitations in her functioning result from other causes—such as her mental disorders or borderline intellectual functioning rather than her physical conditions of cerebral palsy and epilepsy—was within the range of reasonableness.

As discussed above, on appeal this court cannot re-weigh the evidence. An administrative law judge may not substitute her judgment for “the judgment of the agency as to the weight of the evidence on questions of fact.” S.C. Code Ann. § 1-23-380(5) (as amended 2008). Again, while Pruitt submitted evidence that supports her position, she has failed to show that the evidence relied upon by the Hearing Officer was not probative or reliable. The Record merely shows that there are conflicting expert opinions about whether Pruitt’s cerebral palsy and epilepsy cause substantial functional limitations. Again, in such a “battle of the experts,” the Hearing Officer was within his discretion to credit the opinions answering that query in the negative. Cf. Wilson v. State Budget & Control Bd., Employee Ins. Program, 374 S.C. 300, 305, 648 S.E.2d 310, 313 (Ct. App. 2007) (affirming an insurance plan’s denial of coverage where the opinions of multiple examining physicians conflicted and the medical records were inconsistent); Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005) (“Indeed, competing expert opinions present the ‘classic battle of the experts and it [is] up to a jury to evaluate what weight and credibility each expert opinion deserves.’”) (quoting Cadmus v. Aetna Casualty & Surety Co., 1996 WL 652769 (6th Cir. 1996) (unpublished) (citations omitted)); Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 445 (4th Cir. 1996) (“The [United States] Supreme Court has stated that ‘[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.’”) (quoting Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989)); Garner v. Santoro, 865 F.2d 629, 644 (5th Cir. 1989) (stating that in a “‘battle of the experts,’ [the finder of fact] ‘must be allowed to make credibility determinations and weigh the conflicting evidence in order to decide the likely truth of a matter not itself initially resolvable by common knowledge or lay reasoning’”) (quoting Osburn v. Anchor Laboratories, Inc., 825 F.2d 908, 916 (5th Cir. 1987), cert. denied, 485 U.S. 1009 (1988)). Accordingly, the court finds that there was substantial evidence to support the Hearing Officer’s determination.

2. Burden of Proof

The Appellant also asserts that the Hearing Officer erred by placing the burden of proof on Pruitt as the party challenging the agency decision. (See R. at 28). Pruitt contends that, because HHS is discontinuing her benefits, the burden is on HHS to prove that there was an improvement in her condition. The Appellant relies upon evaluation forms filled out by HSS employees or agents in 2003, 2004, and on January 10, 2005. These forms stated that Pruitt was qualified for MR/RD Waiver Services based on related disabilities. This matter arose out of a determination on February 18, 2005 which stated that Pruitt did not have a related disability. The Appellant also relies upon representations made by the Respondent in a prior appeal before HHS, (see R. at 2995), and an appeal before the federal court that Pruitt qualified for MR/RD Waiver Services as a basis for her assertion that HHS should bear the burden in discontinuing Pruitt’s benefits. However, the Appellant has not cited, nor has the court found, any controlling legal authority to support the position that where an agency has provided past benefits and discontinues them, the burden of proof shifts to the agency. Compare ALC Rule 29(B) (“In matters involving the assessment of civil penalties, the imposition of sanctions, or the enforcement of administrative orders, the agency shall have the burden of proof.”) and Fla. Admin. Code Ann. r. 65-2.060 (“The burden is upon the Department when the Department takes action which would reduce or terminate the benefits or payments being received by the recipient.”) with Waters v. S.C. Land Res. Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996) (stating that the burden is on the party challenging an agency’s decision). Thus, the Appellant has not shown that the Hearing Officer erred in assigning the burden of proof to Pruitt.

D. Other Issues

1. Independent Medical Assessment

As an additional ground, the Appellant asserts that the Hearing Officer erred by refusing to grant Pruitt’s request to obtain an independent, qualified medical examination. In support of her argument, Pruitt cites 42 C.F.R. § 431.240(b), which requires a hearing officer to order a medical assessment “if the hearing officer considers it necessary to have a medical assessment other than that of the individual involved in making the original decision . . . .” Pruitt argues that Dr. Platt, who examined Pruitt for DDSN and determined that she did not have a related disability, is not qualified to determine whether Pruitt’s functional limitations are attributable to cerebral palsy or a seizure disorder. Further, the Appellant argues that Dr. Platt based her decision on incorrect information. In response, HHS asserts that the request for an independent medical examination was submitted six months prior to the hearing, and since the Hearing Officer did not act on the request, the Appellant should have renewed and requested a ruling on it. Further, HHS points out that the Appellant’s own doctors had examined her at the time of her request and that there were numerous assessments by persons employed or retained by the Appellant, DDSN, and the school district.

Given the many assessments conducted by both the parties and numerous third-party experts, this court cannot say that the Hearing Officer abused his discretion in determining that an additional assessment was not necessary, especially since there were already assessments conducted by persons other that DDSN, the agency “involved in making the original decision.” 42 C.F.R. § 431.240(b). As to the Appellant’s arguments concerning Dr. Platt, while Dr. Platt as a psychologist may not be qualified to determine whether Pruitt has cerebral palsy or a seizure disorder, the issue before the Hearing Officer was not one of medical diagnosis but rather whether her cerebral palsy or seizure disorder resulted in functional limitations to such a degree that it fell within the requirements of the definition of “related disability.” See Howle v. PYA/Monarch, Inc., 288 S.C. 586, 344 S.E.2d 157 (Ct. App. 1986) (holding that “a psychologist, once qualified as an expert witness by reason of education, training, and experience, is competent to testify as to diagnosis, prognosis, and causation of mental and emotional disturbance”). The Hearing Officer did not err in considering a psychologist’s opinion as to Pruitt’s functional limitations. Accordingly, Pruitt has not demonstrated prejudice warranting reversal under § 1-23-380(5) (as amended 2008).

2. Prompt Hearing

The Appellant next alleges that the Hearing Officer’s decision was in violation of the law and an abuse of discretion as a result of DDSN’s failure to provide a prompt hearing and decision as required by 42 C.F.R. § 431.220 et seq.[15] In response HHS, contends that this issue is being raised for the first time on appeal and therefore should not be addressed.

Even if the Appellant preserved this issue for appeal, it is without merit. Section 431.244(f)(1) provides that the agency—HHS—must take final administrative action “ordinarily within ninety days of the request for the fair hearing.” 42 C.F.R § 431.244(f)(1). This language clearly provides guidance rather than an absolute mandate.

In Johnston v. S.C. Department of Labor, Licensing, and Regulation, S.C. Real Estate Appraisers Board, 365 S.C. 293, 617 S.E.2d 363 (2005), the South Carolina Supreme Court addressed the effect of an agency’s failure to comply with a statutory time frame. The Court noted that the legislature did not provide how that mandate should be enforced and stated that “[t]here is no language regarding the consequences” of failure to meet the deadline. Therefore, the Court held, even though the Board in Johnston failed to render a decision within the mandatory time frame, such failure did not deprive the Board of subject-matter jurisdiction to issue a decision.

Applying the logic of Johnston to the issue before the court, the court concludes that even if the time frame in 42 C.F.R. § 431.244(f)(1) was a mandate as opposed to a guideline, the regulation does not provide any consequences for failure to comply with it and as such, there does not appear to be any relief available to the Appellant that the ALC can provide.

Further, there is no evidence that Pruitt was prejudiced by the length of time that has passed since the Appellant’s appeal in 2005. In fact, she has continued to receive care through DDSN during the pendency of this appeal. Consequently, the Appellant has not provided a sufficient basis to warrant reversal of the Hearing Officer’s decision.

3. Plan of Care and Choice of Provider

Pruitt asserts that the Hearing Officer erred in concluding that Pruitt failed to timely appeal the issues of Pruitt’s care plan and choice of provider. However, since this court has determined that the Hearing Officer did not err in determining that Pruitt is not eligible for the MR/RD Waiver Program, this issue need not be addressed.

CONCLUSION

Viewing the record presented in this case as a whole, the court finds that the Appellant has not shown that HHS’s decision to discontinue benefits for Pruitt is unsupported by reliable, probative, and substantial evidence or otherwise violative of § 1-23-380(5) (as amended 2008). It is therefore

ORDERED that HHS’s decision is AFFIRMED.

IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

June 20, 2008

Columbia, South Carolina