HOWARD T. OWENS, JUDGE TRIAL REFEREE.
This case is an administrative appeal from the final decision of the Department of Social Services discontinuing plaintiff's benefits under the Personal Care Assistance (PCA) Medical Waiver Program.
On May 19, 2006, the hearing officer issued a decision affirming the discontinuance of plaintiff's PCA benefits. One of the reasons was plaintiff's testimony that although he did not receive PCA benefits for the four-month time period at issue (July 31, 2005 to December 5, 2005) he did not require institutionalization. The sole issue before the hearing officer was whether the Department's discontinuance of plaintiff's PCA benefits for a six-month period was correct. This court remanded this matter to the agency hearing officer to allow the plaintiff to produce evidence that he met this criteria for the time period at issue. Plaintiff produced no such evidence. The agency correctly determined that the plaintiff did not meet the programmatic requirement of requiring institutionalization absent PCA services.
Medicaid is a federally sponsored welfare program established by Congress in 1965 as Title XIX of the Social Security Act. Medicaid is a medical benefit of needy individuals and is co-operatively administered by the federal government with the state. Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784 (1980). The Medicaid program is administered in Connecticut by the Department of Social Services (DSS).
Section 1915(c) of the Social Security Act, Medicaid law authorizes the Secretary of the U.S. Department of Health and Human Services to waive certain Medicaid statutory requirements. These waivers enable states to cover a broad array of home and community-based services for targeted populations as an CT Page 20289 alternative to institutionalization. Waiver services may be optional state plan services which either are not covered by a particular state or which enhance the state's coverage.
The State of Connecticut's PCA program is one such Medicaid "waiver" program. The PCA program was established pursuant to Conn. Gen. Stat. § 17b-605a, which authorized DSS to seek a waiver from federal Medicaid requirements in order to use Medicaid funds for a personal care assistance program for disabled persons between the ages of eighteen (18) and sixty-four (64). The Regulations of Connecticut State Agencies §§ 17b-262-588, 17b-262-596b govern the administration of the PCA program.
Programmatic eligibility requirements are set forth in RCSA § 17b-262-589 which provides that
(a) In order to be eligible to receive coverage for the cost of personal care assistance services under (PCA), an individual shall either have already been determined eligible to participate in the Department's Title XIX medical assistance program and also be determined to meet the additional programmatic requirements for coverage of personal care assistance services that are specified in this section or qualify for personal care assistance services by meeting all of the technical, special financial, and programmatic requirements stated in this section
. . .
(e) The programmatic requirement for eligibility are: In addition to meeting all technical and special financial eligibility requirements . . .
an applicant for coverage of personal care assistant services shall meet all of the following programmatic requirements for eligibility: (1) the consumer shall be 18 through 64 years of age inclusive; (2) the consumer shall have a primary medical diagnosis that is chronic, severe, and permanent physical disability which results in a significant need for physical assistance with two or more of the following activities of daily living: battling, dressing, eating, transfers, bowel and bladder care; and the CT Page 20290 consumer shall be in a condition that would otherwise require institutionalization in a nursing facility without such services. (Emphasis supplied.)
Accordingly, in order to receive PCA services, an individual must be between 18 and 64 years of age; must have a physical disability resulting in the need for physical assistance with two activities of daily living; and be in a condition that would result in institutionalization in a nursing facility absent the receipt of PCA services. All of these criteria must be met.
RCSA § 17b-252-588(1) defines "activities of daily living" as "hands-on activities or tasks which are essential for a consumer's healthful and safe existence and include, but are not limited to: bathing, dressing, eating, transfers, and bowel and bladder care."
RCSA § 17b-262-587 defines "nursing facility" as "an institution as defined in section 1919 of the Social Security Act . . . that participates in Connecticut's (Medicaid) program pursuant to the terms of a provider agreement with the Department."
After an administrative hearing, the hearing officer determined that the plaintiff did in fact require assistance with two ADLs (bathing and transfers in and out of the tub), but that he did not meet the second criteria of the PCA waiver program, specifically that he would not require institutional care in a nursing facility if PCA services were not provided.
The case was subsequently remanded by this court pursuant to Conn. Gen. Stat. § 4-183(h) to allow the plaintiff to present evidence as to whether he would require institutional care for the time period at issue. The plaintiff did not present any evidence to support his claim that he met these criteria (Supp. Rec.). The plaintiff testified that during the time period for which he did not have PCA, he was able to obtain assistance with activities of daily living from family members. (Supp. Rec. 125-26, 133.)
The hearing officer again affirmed the agency's denial of benefits on the basis that the plaintiff did not meet the criteria of requiring institutionalization in a nursing facility absent PCA services.
This case is an appeal from the decision of a Department of Social Services Fair Hearing Officer. As an appeal from an administrative agency, it is governed by the requirements of the Uniform Administrative Procedures ("UAPA"). Conn. Gen. Stat. § 4-166 et seq. The UAPA provides that in an administrative appeal:
The court shall not substitute its judgment for that 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 CT Page 20291 decision if substantial rights of the appellant have been prejudiced because the administrative findings, references, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions: (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Conn. Gen. Stat. § 4-183(g).
It is well established that the scope of judicial review under the Uniform Administrative Procedure Act (UAPA) is very restricted. Perkins v. FOIC, 228 Conn. 158, 164, 635 A.2d 783 (1993); Ottochian v. Freedom of Inf. Comm'n., 221 Conn., 393, 397, 604 A.2d 351 (1992); Griffin Hospital v. Com'n. on Hospitals and Health Care, 200 Conn. 489, 495-96, 512 S.2d 489 (1987).
In this case, the record clearly demonstrates that the hearing officer properly applied the law to the facts in upholding the agency's denial. Here, the plaintiff did not present any evidence at either the original hearing or the hearing on remand that absent PCA services, he would require institutionalization in a nursing facility. (Rec.; Supp. Rec.) In fact, he testified that for the four-five-month time period that he did not receive PCA benefits, he was able to obtain assistance from "family" with activities of daily living, and, therefore, was able to stay at home and was not admitted to a nursing facility (Supp. Rec. at 125-26, 133).
The hearing officer properly found that "[t]he preponderance of evidence indicates that [the plaintiff] would not require institutional care in a nursing facility if PCA services were not provided." (Supp. Rec. At 3, FOF #23.) The hearing officer reached this conclusion after considering evidence including that when the plaintiff was approved for PCA services in 2003, he required assistance with the ADSs of dressing and bathing (Supp. Rec. At 37-30); during the Department's February 2005 assessment, it was noted that the plaintiff no longer needed assistance with dressing (Rec. 8-10; Supp. Rec. At 8, 9-14); that although the plaintiff was approved for services five days a week, he only CT Page 20292 received them two or three times a week (Supp. Rec. 88-96); that the plaintiff did not require assistance with his bladder routine (Supp. Rec.); that the plaintiff could feed himself (Supp. Rec.); that the plaintiff did not require transfers except for transfers in and out of the tub (Rec. At 8-10; Supp. Rec. at 9-14); that the plaintiff uses a wheelchair, but is able to use a prostheses and walk for short periods of time (Supp. Rec.); that during the February 2005 assessment, the plaintiff acknowledged his physical ability to cut and trim his parents' trees and bushes (Supp. Rec. at 9-14); and that the plaintiff was able to remain at home and did not require institutionalization in a nursing facility for the time period that he did not receive PCA services. (Supp. Rec. at 125, 127, 133.) (See FOF #5-20, citing to specific evidence in the administrative record.)
At the hearing on remand, an agency manager explained the regulatory requirement that in addition to being physically disabled and requiring significant physical assistance with at least two ADLs, an individual must also meet the requirement that without the PCA services, he would require institutionalization in a nursing facility:
[t]hey need to meet nursing facility level of care in order to qualify for waiver services . . .
It would ben additional criterion if they do have — require hands-on assistance with two ADLs without the services the waiver requires a but for.
A but for. And that's part of the social worker's assessment when they do the initial determination.
(Supp. Rec. At 118-19; emphasis supplied.)
An agency's interpretation of its own regulations is entitled to deference. "[I]t is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement." Griffin Hospital v. Commission on Hospitals Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819, (1986); accord Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 372, 627 A.2d 1296 (1993). "This principle applies with even greater force to an agency's interpretation of its own duly adopted regulations." Griffin Hospital v. Commission on Hospitals Health Care, CT Page 20293 supra, at 497, 512 A.2d 199. When an agency has expertise in a given area and a history of determining factual and legal questions similar to those at issue, its interpretation is granted by the courts. See, e.g. Anderson v. Ludgin, 175 Conn. 545, 555-56, 400 A.2d 712 (1978); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975).
The administrative hearing officer's findings of fact and conclusions of law in this case are clearly supported by the administrative record.
The plaintiff's appeal is dismissed.