Burton v. Arkansas Department of Human Services

2015 Ark. App. 701, 478 S.W.3d 221, 2015 Ark. App. LEXIS 793
CourtCourt of Appeals of Arkansas
DecidedDecember 9, 2015
DocketCV-15-304
StatusPublished
Cited by3 cases

This text of 2015 Ark. App. 701 (Burton v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burton v. Arkansas Department of Human Services, 2015 Ark. App. 701, 478 S.W.3d 221, 2015 Ark. App. LEXIS 793 (Ark. Ct. App. 2015).

Opinion

DAVID M. GLOVER, Judge

| tRoddrick . Burton brings this appeal from the order of the Mississippi County Circuit Court affirming the decision of the Arkansas Department of Human Service (DHS) to terminate Burton’s eligibility under the Alternatives for Adults with Physical Disabilities (AAPD) program. Although Burton argues four points on appeal, only his challenge to the sufficiency of the evidence is preserved for our review. 'We affirm the agency’s decision.

In Juné 2012, Burton suffered a hemorrhagic stroke. In November 2012, he applied for benefits under the AAPD program. In January 2013, he was determined eligible for benefits after an assessment by a registered nurse employed by DHS. Burton received twenty-one hours of . weekly care provided by a home-health aide, who came seven days per week to help him bathe, get dressed, use the toilet, get food, and eat. Burton’s sister, Stephanie Little, a home-health aide, provided most of these services.

pin October 2013, the same DHS nurse conducted a reevaluation of Burton using DHS’s newly implemented ArPath assessment tool, 1 which was promulgated pursuant to Medicaid rules and regulations and is, therefore, afforded the full force and effect of law. Although the eligibility criteria did not change, the reassessment determined that Burton no longer met the eligibility criteria, and he was terminated from the AAPD program. Burton had originally qualified using the earlier qualitative assessment form. In DHS’s notice that Burton was no longer eligible, it cited an admittedly incorrect regulation.

Burton timely requested an administrative hearing, and, after the hearing, the hearing officer affirmed the agency’s initial decision in a written decision issued January 6, 2014. The hearing officer found that Burton was not functionally disabled in that Burton was able to perform all three activities of daily living (ADL) — toileting, eating, and ambulation or transferring — without any assistance from another person. 2 Based on the evidence, the hearing officer concluded that DHS had met its burden of proof by showing that Burton did not meet the medical criteria for an individual with a functional disability under the AAPD program.

| ¡¡Burton appealed the administrative decision to the circuit court. After hearing oral argument and reviewing written briefs, the circuit court affirmed the agency’s decision. In its order, the circuit court found.that the agency decision did not prejudice Burton’s substantial rights; was not in violation of constitutional or statutory provisions; was not in excess of the agency’s statutory authority; was not made upon unlawful procedure; was not arbitrary, capricious, or characterized by abuse of discretion; and was supported by substantial evidence. Burton now appeals.

In this appeal, our review is directed not to the decision of the circuit court but to the decision of the administrative agency. Arkansas Dep’t of Health & Human Servs. v. R.C., 368 Ark. 660, 249 S.W.3d 797 (2007). Review of administrative agency decisions, by both the circuit court and the appellate court, is limited in scope. Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency’s findings. Id.

An appellate court sitting in review of a finding of an administrative agency must affirm the agency’s finding if the finding is supported by any substantial evidence. Ark. Code Ann. § 25-15-212(h) (Repl. 2014); C.C.B. v. Arkansas Dep’t of Health & Human Servs., 368 Ark. 540, 543-44, 247 S.W.3d 870, 872 (2007). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, giving the evidence “its strongest probative force in favor of the administrative agency.” Reed v. Arvis Harper Bail Bonds, Inc., 2010 Ark. 338, at ¶ 4-5, 368 S.W.3d 69, 73.

j4As with all appeals from administrative decisions under the Administrative Procedure Act, the circuit court or the appellate court may reverse the agency decision if it concludes that the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion. Ark. Code Ann. § 25-15-212(h).

As we mentioned earlier in this opinion, Burton argues three points that are not preserved for our review. 3 DHS argues that the points are not preserved because Burton never raised them before the agency. Although we believe Burton properly raised his issues before both the agency and the circuit court, neither specifically ruled on those issues. Where neither the administrative agency nor the circuit court makes a ruling on an issue, that issue is not preserved for appellate review. See Arkansas Contractors Licensing Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001).

This leaves us with Burton’s argument that there is no substantial evidence to support the agency’s decision. He argues that the decision is against the weight of the evidence and ignores his medical records. The issue, however, is not whether the evidence would support some other finding; rather, the issue is whether the evidence supports the finding that was made by the agency. Hester v. Arkansas Prof'l Bail Bondsman Lic. Bd., 2011 Ark. App. 389, 383 S.W.3d 925. To establish a lack of substantial evidence, an appellant is required to demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach the same conclusion; Id. The evidence is given its strongest probative force in favor of the agency’s ruling. Id. Administrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. Id. An appellant must prove that there was a willful and unreasoning action, without consideration, and in disregard of the facts and circumstances of the case. Id.

Melissa Morris, the DHS nurse who conducted both the original assessment and the reassessment that resulted in the determination that Burton was no longer eligible, testified that she tries to gauge whether the patient is having a good day or a normal day when doing an assessment. She also said that she tries to ask the questions relating to the ADLs in two or more ways to make sure the patient understands what is being asked. She expressed her opinion that Burton’s condition had improved.

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Bluebook (online)
2015 Ark. App. 701, 478 S.W.3d 221, 2015 Ark. App. LEXIS 793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-arkansas-department-of-human-services-arkctapp-2015.