Chief Justice Menis Ketchum

McGraw

CHARLESTON - The West Virginia Supreme Court of Appeals said last week a lower court was wrong in its handling of a case over a boy's authorization request for a power wheelchair.

The petitioner -- only identified in the Court's opinion as "J.S." -- and his mother -- identified as "S.N." -- appealed a Kanawha County Circuit Court order.

The Jan. 14, 2011 order affirmed the decision of the state's Department of Health and Human Resources, denying the boy's authorization request for a new wheelchair.

The boy, 13, suffers from Quad Cerebral Palsy, meaning the palsy affects all four of his limbs.

In 2009, through his mother, he submitted an authorization request for the chair, including 55 accessories, to the DHHR, which is in charge of administering the federal Medicaid program in the state.

The DHHR denied the boy's request on the basis that it exceeded the Medicaid policy of providing "only the most economical equipment" to meet a recipient's basic health care needs.

The boy appealed the denial to the DHHR's board of review. A state hearing officer for the board subsequently held an evidentiary hearing on the issue of the boy's need for the requested wheelchair.

The boy, in response, presented a document signed by his physical therapist, occupational therapist and physician, explaining in detail the need for the new chair.

In particular, his doctors argued that the boy's current pediatric wheelchair was more than 6 years old and needed replacing. Also, they noted, the boy's functional status had declined because he did not have a chair that properly fits him.

The hearing officer, in an April 6, 2010 decision, upheld the DHHR's denial.

The officer found that the boy failed to justify 15 of the requested accessories, and that two of the requested accessories are not covered by Medicaid.

The boy appealed the hearing officer's decision to the Kanawha Circuit Court, which upheld the officer's ruling.

Attorney General Darrell McGraw's office represented the DHHR.

The state's high court, in its per curiam opinion Thursday, said the circuit court applied an "erroneous" standard of review to the DHHR board's decision.

The Court said it agreed with the boy that the circuit court was required to make an "independent review" of the hearing officer's decision.

"In the instant case, the petitioner is seeking public assistance through this state's Medicaid program to pay for a power wheelchair. Therefore, the Administrative Procedures Act does not apply to this case," the justices explained in their 10-page opinion.

"Rather, in cases such as the instant one, this Court has recognized that '(a) writ of certiorari in the Circuit Court of Kanawha County is the proper means for obtaining judicial review of a decision made by a state agency not covered by the Administrative Procedures Act.'"

The boy is correct that the lower court used the wrong standard of review, the Court said.

"It appears to this Court from our reading of the circuit court's order that the circuit court reviewed the record below to determine whether there was sufficient evidence to support the hearing officer's decision. This falls short of the independent review of the facts required of the court," the justices wrote.

"On appeal of the hearing officer's decision, the circuit court should have looked at the evidence with fresh eyes to determine whether the evidence supports the petitioner's need for the requested wheelchair."

Having determined the circuit court committed "reversible error," the Court remanded the case back to the lower court to make an "independent review of both the law and the facts in this case."

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