South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Caleb T. Thompson vs. SCDHHS

AGENCY:
South Carolina Department of Health and Human Services

PARTIES:
Appellant:
Caleb T. Thompson

Respondent:
South Carolina Department of Health and Human Services
 
DOCKET NUMBER:
05-ALJ-08-0517-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter is before me pursuant to the appeal of Caleb T. Thompson (Appellant), from a final decision of the Respondent, South Carolina Department of Health and Human Services (Department), denying the Appellant’s application for Medicaid coverage. A contested case hearing was held on November 9, 2005. The hearing officer later determined on November 27, 2005, that the evidence at the contested case hearing supported the Department’s denial of TEFRA benefits for Caleb Thompson. An appeal was filed timely with the Administrative Law Court (ALC) pursuant to S.C. Code Ann. § 1-23-600 (Supp. 2005).

STANDARD OF REVIEW


As set forth above, this case is before the Court as an appeal of an agency action pursuant to S.C. Code Ann. § 1‑23‑600(D) of the Administrative Procedures Act (APA) upon appeal from a Final Order of the Department. As such, the Administrative Law Judge sits in an appellate capacity under the APA rather than as an independent finder of fact. In South Carolina, the provisions of the APA -- specifically Section 1-23-380(A)(6) -- govern the circumstances in which an appellate body may reverse or modify an agency decision. That section states:

The court may reverse or modify the 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.

S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2005).

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). The well-settled case law in this state has also interpreted the “substantial evidence” rule to mean 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). 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. Waters v. South Carolina Land Resources Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).


In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996), citing Kearse v. State Health and Human Services Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995), citing Gibson v. Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters, supra, citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).

DISCUSSION

Caleb Thompson is a two-year-old child who was diagnosed with Cerebral Palsy in May of 2005. He has experienced problems since his November 15, 2003 birth and had just begun to walk in October 2005. On or about July 1, 2005, his mother applied for benefits under the TEFRA program. Caleb was evaluated during that month and was denied benefits on September 6, 2005 as not meeting the disability criteria for TEFRA.

The Appellant’s mother, Vanessa Thompson, submitted an appeal of the Department’s decision on her son’s behalf. After being informed of her failure to timely file a brief in this case, Ms. Thompson simply submitted a letter stating the following:

I am requesting a hearing from the Department of Health and Human Services due to the denial of the Katie Beckett Children – TEFRA for my son; Caleb Thompson. I feel he meets the disability criteria to qualify for TEFRA.[1] Appellant did not point to any error, either of fact or law made by the Hearing Officer.[2] Rather she merely restated her general objections and disagreement with the Order as issued. She points to no particular portion of the evidence to support her position. Nevertheless, to insure fairness the case is discussed below.

TEFRA Medicaid Program

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. Standard federal rules set the parameters within which the states may administer their individual Medicaid Programs. See §1902 et seq. of the Social Security Act [42 USC §1396a et seq.]. Caleb Thompson made application to the Medicaid program under the TEFRA/Katie Beckett eligibility category. Established pursuant to the Tax Equity and Fiscal Responsibility Act of 1982, TEFRA was made an eligibility category in South Carolina in 1995. In order to qualify for TEFRA a child must, among other criteria, be under age 19, live at home, meet the SSI definition of disability, meet an institutional level of care and have a gross income below $1635 per month and countable resources below $2,000. A parent’s income and resources are not counted – only the child’s so some eligible children may come from relatively affluent families. The child who meets the criteria for TEFRA is eligible for the full range of Medicaid covered services. Should the child need special services, which may be provided under the Home and Community based waiver, he will have to apply to that program separately.

Evidentiary Review

Appellant submitted an application for benefits with Form NF538 which is the form used to report the disability evaluation. Appellant’s Form NF538 contained a compilation by Dr. Walsh of medical reports furnished by Appellant and his physicians. The application lists Appellant’s impairments as Cerebral Palsy and gross motor delays. It states that the impairment is severe but does not equal or functionally equal the listings in the SSI requirements. Dr. Walsh further rated Appellant as having no limitation in acquiring and using information, no limitation in the domains of attending and completing tasks, interrelating with others, and moving and manipulating objects.

On the Pediatric Physical Therapy Evaluation Summary and Plan of Care performed by physical therapist Melissa Donaldson in February 2005, less than six months prior to the hearing, Ms. Donaldson set short and long term goals for Appellant. In twelve months or by February 2006, she expected him to, among other things, be able to stand alone for three minutes while playing with a toy, walk thirty steps independently and climb three steps with assistance. By the time of the hearing, six months from the evaluation, she expected Appellant to be able to walk for five steps. In her testimony, Appellant’s mother testified that he had exceeded this goal. In response to the question from the Hearing Officer about how far Appellant could walk, Ms. Thompson replied: “Actually he took 14 steps, but he just tumble and falls over. He took 14 steps last week in therapy, and it should be in Cindy’s notes, in the therapy.” The therapist, Ms. Cindy McCravy, actually wrote that Appellant as of October 25, 2005 was taking 12 steps independently. Apparently between October 25 and the date of the hearing, Appellant improved even more. As part of her evaluation, Ms. Donaldson administered the Peabody Development Motor Scales – Second Edition to Appellant. She found that only in locomotion was he seriously deficient. She rated him at a -.73 standard deviation from the mean. In other words, his development was behind what would be expected of the ‘average’ child but he was not very much behind.

The Hearing Officer performed an extensive analysis of the disability listings and compared them to the medical reports. He found that Appellant did not meet the listing for Cerebral Palsy found at 20 CFR, Part 404, Appendix 1 of Subpart P. Based on the medical reports Appellant had no marked limitation in any of the required domains as set out in 20 CFR 416.926a. Additionally based on The Peabody Development Motor Scales – Second Edition, Appellant has a deviation from the mean of -.73 or not a full standard deviation. In order to have a marked impairment, 20 CFR 416.926a(e) requires a score of –2, or two standard deviations from the mean.

I recognize that Appellant presented conflicting evidence to the Department’s case. In particular, Ms. Thompson testified that though Appellant has taken twelve steps, Appellant was off balance while taking those steps and he was dragging his leg. Ms. Thompson also testified that Appellant has not reached his developmental milestones and that he will have many difficulties in the future including difficulty with his speech, balance, running and fatigue. Ms. Thompson’s also submitted copies of books and articles on Cerebral Palsy.

Nevertheless, the evidence set forth above establishes “substantial evidence” to support the Department’s decision. Furthermore, the Department’s decision can not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, supra. I therefore find that the Order of the Hearing Officer should be upheld.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

April 11, 2006

Columbia, South Carolina



[1] The Notice of Appeal was couched in the same language.

[2] ALC Rule 60(B)(3) sets forth that the brief shall contain :

“[a]statement of each of the issues presented for review. The statement shall be concise and direct as to each issue and may be stated in question form. Broad general statements may be disregarded by the Court. Ordinarily, no point will be considered that is not set forth in the statement of issues on appeal.

Furthermore, although full legal argument on each issue on appeal is not always required, some reference to those raised and a brief statement why a particular argument lacks merit is essential.” State v. Moosey, 504 A.2d 1001, 1007 (R.I. 1986). Moreover, an appellant must set forth more than a conclusory statement too support their position. Medical Univ. of South Carolina v. Arnaud, 360 S.C. 615, 620, 602 S.E.2d 747, 750 (2004) (issues raised by appellant were deemed abandoned because the arguments on those issues were conclusory). In fact, Appellant offered very little evidence at the hearing supporting his right to receive this particular benefit.


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