{ "id": 1451284, "name": "ARKANSAS DEPARTMENT OF HUMAN SERVICES, Division of Economic and Medical Services v. Michelle KISTLER", "name_abbreviation": "Arkansas Department of Human Services v. Kistler", "decision_date": "1995-05-15", "docket_number": "94-1409", "first_page": "501", "last_page": "510", "citations": [ { "type": "official", "cite": "320 Ark. 501" }, { "type": "parallel", "cite": "898 S.W.2d 32" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "320 Ark. 253", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451159 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0253-01" ] }, { "cite": "672 S.W.2d 48", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1879945, 1879926 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/283/0158-01", "/ark/283/0184-01" ] }, { "cite": "283 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879945 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/283/0158-01" ] }, { "cite": "Ark. Code Ann. \u00a7 25-15-212", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1992, "opinion_index": 0 }, { "cite": "304 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881070 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/304/0227-01" ] }, { "cite": "318 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455967 ], "weight": 3, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0781-01" ] }, { "cite": "856 S.W.2d 116", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1993, "opinion_index": 0 }, { "cite": "314 Ark. 98", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912732 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0098-01" ] }, { "cite": "318 Ark. 457", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455757 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0457-01" ] }, { "cite": "319 Ark. 468", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453682 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0468-01" ] }, { "cite": "319 Ark. 782", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453626 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0782-01" ] }, { "cite": "20 CFR \u00a7 404", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 25-12-212", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1992, "opinion_index": 0 } ], "analysis": { "cardinality": 763, "char_count": 17897, "ocr_confidence": 0.883, "pagerank": { "raw": 3.006640002428728e-07, "percentile": 0.8528987597346409 }, "sha256": "68f70d1fd071a830c8f3be7031111b3aaecd51fa39691bd675c5afce0052e103", "simhash": "1:216cd3e6c99853bc", "word_count": 2808 }, "last_updated": "2023-07-14T17:06:37.743482+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ARKANSAS DEPARTMENT OF HUMAN SERVICES, Division of Economic and Medical Services v. Michelle KISTLER" ], "opinions": [ { "text": "Andree Layton Roaf, Justice.\nAppellant, Arkansas Department of Human Services (DHS), Division of Economic and Medical Services, terminated appellee Michelle Kistler\u2019s participation in the Developmental Disabilities Services Alternative Community Services Waiver Program. Appellee Kistler filed a petition for judicial review pursuant to Ark. Code Ann. \u00a7 25-12-212 (Repl. 1992), and the circuit court reversed the appellant\u2019s decision. We affirm the circuit court\u2019s reversal of the appellant\u2019s decision.\nAppellee Michelle Kistler, born January 8, 1974, has congenital spina bifida and scoliosis, meningomyelocele paraplegia, hydrocephalus VP shunt, and a neurogenic bowel and bladder. She has a Wechsler Adult Intelligence Scale - Revised (WAIS-R) performance IQ of 68, WAIS-R verbal IQ of 80, WAIS-R full-scale IQ of 73, and a Vineland Adaptive Behavior Score of 109 plus or minus 8. Further, she receives Supplemental Security Income and is Medicaid qualified. She currently lives with, and is cared for by, her mother, Mrs. Jennifer Kistler. Because she is paraplegic, the appellee is confined to a wheelchair, needs assistance to get in and out of her wheelchair, needs assistance with bathing, and she cannot dress her lower extremities.\nThe Omnibus Budget Reconciliation Act of 1981 (Public Law 97-35, Section 2176) allows states the option of providing home and community based services, as an alternative to institutionalization, to a limited number of individuals with a developmental disability who would otherwise require an ICF/MR (Intermediate Care Facility for the Mentally Retarded) Level of Care. In accordance with the act, the appellant instituted the Developmental Disability Services Alternative Community Services Waiver Program (Waiver Program) and adopted eligibility requirements for applicants. See Medical Services Policy 2075.1.\nThe appellee was admitted to participate in the Waiver Program on September 18, 1991, with an effective date of August 1, 1991. The appellee was notified on August 19, 1992, that she was no longer eligible to participate in the program and her benefits would be terminated August 29, 1992. The appellee requested a hearing, which was held on November 5, 1992, before Hearing Officer Diana Little of the Appeals and Hearings Section of DHS. On October 18, 1993, the hearing officer issued a decision upholding the termination of appellee\u2019s participation in the Waiver Program. Subsequently, the appellee filed a petition for judicial review in the Circuit Court of Sebastian County.\nThe Department of Human Services appeals from the circuit court\u2019s order reversing the agency decision. Appellant raises five points on appeal: (1) the trial court erred in awarding attorney\u2019s fees and costs; (2) the trial court erred in the standard of review it used; (3) the trial court erred in substituting its judgment for the judgment of the administrative hearing officer; (4) the trial court erred in reversing the administrative decision upon finding a violation of appellee\u2019s due process rights; and (5) the trial court erred in determining that appellant failed to file the entire administrative record and reversing the administrative decision on that ground.\nI. Review of Agency Decision.\nThe appellant asserts the trial court erred in applying a preponderance of the evidence standard and in substituting its judgment for that of the administrative hearing officer. In reversing the termination of benefits, the circuit court stated:\nWhile it is not entirely clear whether or not the Defendant has formally adopted a specific criteria for entitlement to Alternative Medicaid Waiver Services by reason of mental retardation, the preponderance of the evidence reflects that if indeed any such criteria was established, either by formal action or by custom and usage, it was substantially identical to the criteria established for mental retardation under Section 12.05 C of Appendix 1, Subpart P, Regulation No. 4 (20 CFR \u00a7 404 et. seq.) adopted pursuant to the federal Social Security Act set out in Title II of the United States Code (42 USC); and that the criteria for mental retardation employed by the Vineland Adaptive Behavioral Test protocol is substantially identical to that prescribed by the federal guidelines and does not constitute a separate and additional mental retardation criteria; and that the Plaintiff, with a performance IQ of 68, verbal IQ of 80 and a full scale IQ of 73 and with other severe mental or physical impairments meets the aforesaid criteria for mental retardation.\nReview of administrative agency decisions both by the circuit court and by the Supreme Court on appeal is limited in scope. Thomas v. Arkansas Department of Human Serv., 319 Ark. 782, 894 S.W.2d 584 (1995). Our review is not directed toward the circuit court but toward the decision of the agency recognizing that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Franklin v. Ark. Dep\u2019t of Human Serv., 319 Ark. 468, 892 S.W.2d 262 (1995). In addition, this court will not substitute its judgment for that of the agency unless the agency\u2019s decision is arbitrary and capricious. Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994). Finally, the evidence is given its strongest probative force in favor of the agency\u2019s ruling, and we do not reverse an agency decision when there is substantial evidence to support it. Thomas, supra.\nBecause our review is not directed toward the circuit court, we need only review the decision of the agency. On October 18, 1993, DHS issued its final decision terminating Kistler\u2019s participation in the Waiver Program. The sole basis for the hearing officer\u2019s decision to terminate benefits was the determination by the Utilization Review Section of the Office of Long Term Care that Kistler did not meet the ICF/MR Level of Care criteria because of her WAIS and Vineland Adaptive Behavior Scores. The relevant findings of fact and conclusions of law were:\nFINDINGS OF FACT\n* *\n5. The summary of the Administrative Hearing was forwarded to the Utilization Review Section on December 15, 1992.\n6. An EMS-704 dated January 12, 1993 was received in the Appeals and Hearings Office which indicated a decision that Ms. Kistler did not meet the criteria for DDS Waiver Services.\n7. According to a memorandum from Walter O\u2019Neal, M.D., Medical Director, Economic and Medical Services, dated January 14, 1993, Ms. Kistler was determined to not meet the criteria for ICF/MR level of care because her WAIS-R and Vineland Adaptive Behavior scores exceeded 70, which represents the upper limit of eligibility for ICF/MR level of care.\nCONCLUSIONS OF LAW\n1. Medical Services Policy 2075 states that Public Law 97-35, Section 2176, the Omnibus Reconciliation Act of 1981 allows states the option of providing home and community-based services, as an alternative to institutionalization, to a limited number of individuals with a developmental disability who would otherwise require an ICF/MR Level of Care.\n2. Medical Services Policy 2075.1 lists eligibility requirements that must be met by Waiver applicants, including (#1) that individuals must be developmentally disabled as determined by the Division of Developmental Disabilities Services (DDS), and (#10) that individuals must be determined by the LTC Utilization Review Committee to require an ICF/MR level of care.\n3. Medical Services Policy 2075.3 #1 states prior to Waiver acceptance, DDS will administer a comprehensive Diagnosis and Evaluation to determine that applicants are individuals with developmental disabilities. DDS will route form EMS-703, psychological reports, and medical reports to the OLTC Utilization Review Committee.\n4. Medical Services Policy 2075.3 #2 states upon receipt of the EMS-703 and other reports, the Utilization Review Committee will determine if the applicant meets the ICF/MR Level of Care requirements. The results will be routed by EMS-704 to the County Office.\n5. Medical Services Policy 2075.3 #2 also states if at any time an individual does not meet the requirements for an ICF/MR Level of Care, he/she will not be Waiver eligible.\n6. The Level of Care Criteria issued by the Office of Long Term Care governing medical necessity eligibility for the developmentally disabled to be medicaid eligible for services provided in an Intermediate Care Facility for the Mentally Retarded provide that a client must have a diagnosis of developmental disability, due to a severe, chronic disability which: (1) is attributable to a mental or physical impairment or combination thereof, (2) is manifested before age 21; (3) is likely to continue indefinitely; (4) results in substantial functional limitations in 3 or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, economic self-sufficiency; and (5) reflects the client\u2019s need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of life-long or extended duration and are individually planned and coordinated; further, a pre-admission/pre-reimbursement evaluation of the client performed by an interdisciplinary team (including the areas of psychology, medical, nursing, social and habilitation, as a minimum) must determine the need for active treatment, outline the areas of active treatment needed by the client, and state that the needs of the client will be met as a resident in an ICF/MR.\nDECISION\nIn order to be certified for Alternate Waiver Services, an individual must meet the eligibility requirements specified in MS 2075.1, including the need for an ICF/MR level of care. At the time of Ms. Kistler\u2019s annual reevaluation, the Utilization Review Section of the Office of Long Term Care determined that she did not meet the ICF/MR Level of Care criteria, based on her WAIS and Vineland Adaptive Behavior Scores, and this determination was not reversed upon reconsideration of her eligibility following the appeal. One element of the medical necessity determination for an ICF/MR level of care classification considers the degree of functional limitations in the areas of major life activities, which is measured by the Vineland Adaptive Behavior test. Ms. Kistler\u2019s score in this testing did not support a substantial limitation; therefore, she was not determined to meet the ICF/MR Level of Care criteria. . . .\n(Emphasis supplied.)\nIn August of 1992, Ms. Kistler was notified her benefits would be terminated because she: \u201cDoes not meet ICF/MR admission criteria.\u201d After the administrative hearing, Walter O\u2019Neal, M.D., Medical Director of the Economic and Medical Services Division, was contacted by the Appeals and Hearings Office. Dr. O\u2019Neal responded in a letter that both Ms. Kistler\u2019s WAIS-R Full Scale IQ and her Vineland Adaptive Behavior Score exceed the upper limits of eligibility for ICF/MR level of care. These scores were from the testing done prior to her admission to the Waiver Program in 1991. No new testing was done for the 1992 reevaluation. Dr. O\u2019Neal stated the upper limits of eligibility were a score of 70 on both the WAIS and Vineland tests, and Ms. Kistler\u2019s \u201capplication is denied.\u201d Based upon Dr. O\u2019Neal\u2019s response, the hearing officer affirmed the termination of benefits to Ms. Kistler.\nThis case is comparable to Franklin v. Arkansas Dep\u2019t of Human Servs., supra, where we reversed the agency\u2019s decision. In his concurring opinion, Justice Newbern wrote \u201c[a] decision can be nothing but arbitrary when it is based upon no discernible standard.\u201d In the instant case, Ms. Kistler\u2019s benefits were terminated because, according to Dr. O\u2019Neal, her WAIS-R Full Scale IQ and her Vineland Adaptive Behavior Score exceeded the upper limits of eligibility for ICF/MR level of care. However, other than the letter from Dr. O\u2019Neal, we are unable to ascertain the \u201climits of eligibility.\u201d\nMedical Services Policy 2075.1 (#10) states that individuals, to be eligible, must be determined by the Long Term Care Utilization Review Committee to require an ICF/MR level of care. In her conclusions of law, the hearing officer states that the Level of Care Criteria issued by the Office of Long Term Care provide that a \u201cclient must have a diagnosis of developmental disability, due to a severe, chronic disability which: (1) is attributable to a mental or physical impairment or combination thereof. . . .\u201d The record, however, is devoid of how that determination was made \u2014 other than Dr. O\u2019Neal\u2019s statement of the applicable standard. On appeal, the appellant asserts Ms. Kistler did not fall within the definition of developmentally disabled, but the appellant has failed to express how the agency defines developmentally disabled.\nThe trial court applied federal social security guidelines and found the appellee met the mental retardation requirements. The trial court further found that the appellee has severe physical impairments which were also sufficient to justify an award of Alternative Medicaid Waiver Services. However, in its brief to the circuit court, the appellant contended the Waiver Program falls under the medicaid program which is administered by the appellant and, therefore, the social security regulations should not be applied.\nWe will not speculate, as the trial court did, that the federal criteria would be substantially identical to the state criteria if any criteria indeed existed. To be invalid as arbitrary or capricious, the agency\u2019s decision must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. See Enviroclean, Inc. v. Arkansas Pollution Control, 314 Ark. 98, 856 S.W.2d 116 (1993). Since the appellant has not established that a discernible standard exists, we hold the termination of the appellee\u2019s benefits was arbitrary.\nII. Attorney\u2019s Fees and Costs.\nThe trial court ordered the appellant to pay all court costs and an attorney\u2019s fee for the appellee\u2019s attorney in the amount of $5,000.00. Our general rule relating to attorney\u2019s fees is that the recovery of attorney\u2019s fees is not allowed except when expressly provided for by statute. State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994); Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). On appeal, the appellee submits that \u201coverriding public policy requires the finding of an implied authorization in the Administrative Procedures Act for the payment of court costs and attorney\u2019s fees to or on behalf of claimants who prevail against State Agencies in administrative reviews.\u201d However, we find no basis for the award of attorney\u2019s fees.\nArk. Code Ann. \u00a7 25-15-212 (Repl. 1992) provides the cost of the preparation of the record shall be borne by the agency, and the agency may only recover the cost of the record from the appealing party if the agency is the prevailing party. Thus, the statute provides only that the cost of the record shall be borne by the agency. The terms \u201ccosts\u201d or \u201cexpenses\u201d when used in a statute do not ordinarily include attorney\u2019s fees. State v. McLeod, supra. Consequently, an award of attorney\u2019s fees is not expressly provided for by \u00a7 25-15-212.\nFurther, \u00a7 25-15-212 establishes an entitlement to \u201cjudicial review of the action under this subchapter.\u201d Section 25-15-212 establishes the rules and procedures applicable to the process. In Whitlock v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984), this Court held the Rules of Civil Procedure do not apply to the judicial review procedure. In fact, we stated that when a party chooses to proceed pursuant to the Administrative Procedure Act he is bound by the procedures set out therein. Id. The procedures set out provide only that the cost of the preparation of the record may be borne by the agency.\nFinally, Ark. Const. art. 5, \u00a7 20 prohibits awards of damages in lawsuits against the State of Arkansas and its institutions. Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995). In Smith, we recognized that if officers and employees of the State act without malice and within the scope of their employment, they are immune from an award of damages, including attorney\u2019s fees, in litigation. The trial court did not find that any of the DHS employees acted with malice, nor is there any evidence that the employees acted with malice. Consequently, the circuit court had no basis for the award of an attorney\u2019s fee.\nIII. Statutory and Constitutional Violations.\nThe circuit court found DHS failed to inform Ms. Kistler of the existence of a substantial body of evidence considered by the hearing officer, and the failure to make her privy to all the evidence material to and considered in arriving at the administrative decision constituted a deprivation of her right to due process as guaranteed by the Arkansas and United States Constitutions, thereby rendering the administrative decision fatally defective. In addition, the court found the appellant \u201cfailed to file the entire administrative record of the administrative proceedings with this court within ninety (90) days after the filing of Plaintiff\u2019s petition as required by Ark. Code Ann. 25-15-212(d)(1) and therefore defaulted in its duties and obligations as specifically prescribed by the Act.\u201d Because we find the agency\u2019s decision was arbitrary, we need not address these points.\nIn sum, we affirm the circuit court\u2019s reversal of the agency\u2019s decision terminating Ms. Kistler\u2019s benefits and reverse the circuit court\u2019s award of an attorney\u2019s fee.", "type": "majority", "author": "Andree Layton Roaf, Justice." } ], "attorneys": [ "Charles Mackey, for appellant.", "Davis Duty, for appellee." ], "corrections": "", "head_matter": "ARKANSAS DEPARTMENT OF HUMAN SERVICES, Division of Economic and Medical Services v. Michelle KISTLER\n94-1409\n898 S.W.2d 32\nSupreme Court of Arkansas\nOpinion delivered May 15, 1995\nCharles Mackey, for appellant.\nDavis Duty, for appellee." }, "file_name": "0501-01", "first_page_order": 529, "last_page_order": 538 }