In re Brandenburg

126 S.W.3d 732, 83 Ark. App. 298, 2003 Ark. App. LEXIS 784
CourtCourt of Appeals of Arkansas
DecidedOctober 29, 2003
DocketCA 03-226
StatusPublished

This text of 126 S.W.3d 732 (In re Brandenburg) 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
In re Brandenburg, 126 S.W.3d 732, 83 Ark. App. 298, 2003 Ark. App. LEXIS 784 (Ark. Ct. App. 2003).

Opinion

D. Vaught, Judge.

The Arkansas Department of Human Services (DHS) appeals from an order of the Garland County Circuit Court that reversed DHS’s determination of the number of hours of private-duty nursing care that was medically necessary for the care of Charles Brandenburg. We find that DHS’s administrative action was supported by substantial evidence of record; was not arbitrary, capricious, or characterized by an abuse of discretion; and did not violate constitutional or statutory provisions. Accordingly, we reverse the decision of the Garland County Circuit Court and order the reinstatement of DHS’s determination.

Appellee Charles Brandenberg, born March 4, 1991, is a Medicaid recipient with multiple congenital abnormalities including, but not limited to: atrial septic defect, hydrocephalus, cerebral palsy and related seizures, unextended testicles, bronchial pulmonary dysplasia, scoliosis. He is unable to swallow, requires the suctioning of secretions, and receives oxygen supplementation and hyperalimentation (being fed through a “j-button”). Appellee lives with his grandmother, Ruth Anderson, who is also his guardian and primary caregiver.

Prior to 2001, appellee had been receiving private-duty, nursing care twenty-four hours per day, seven days a week. At some point, DHS decreased those hours to sixteen hours per day, seven days a week. Subsequently, based upon a prescription from appellee’s doctor and a review of the medical records submitted by CareNetwork, the provider, DHS gradually, decreased the number of private-duty nursing care hours that appellee received to sixteen hours per day, seven days a week for one month; sixteen hours per day for five days a week, and twelve hours per day for two days a week for two months; then twelve hours per day for seven days a week for three months.1 The provider alleges that the appropriate forms, constituting a prescription, were signed by appellant’s doctor on October 10, 2001. However, that form never was received by the appropriate individuals, and the last prescription received by DHS’s Division of Medical Services was dated October 18, 2001. DHS’s approval was faxed back to the provider on October 29, 2001, within the allotted thirty-day notification period. The provider subsequently requested reconsideration and submitted a new order from appellee’s doctor dated November 1, 2001, without explanation or documentation. The request for reconsideration was denied for lack of adequate justification of medical necessity. DHS’s administrative decision was appealed to the Circuit Court of Garland County. The trial court’s January 2, 2002 order reversed DHS’s administrative action and reinstated the private-duty nursing care hours of sixteen hours per day, seven days a week. This appeal follows.

Standard of Review

It is not our role to conduct a de novo review of the circuit court proceeding; rather, our review is directed at the decision of the administrative agency. Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). Our supreme court recently restated the applicable standard of review:

[W]hen reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, whether there is arbitrary and capricious action, or whether the action is characterized by abuse of discretion.

Arkansas Dep’t of Human Servs. v. Schroder, 353 Ark. 885, 888, 122 S.W.3d 10, 13 (2003). The supreme court has recognized that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Id.

To determine whether a decision is supported by substantial evidence, we review the whole record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. To establish an absence of substantial evidence to support the decision, the party challenging the decision must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusions. Id. Substantial evidence is valid, legal, and persuasive evidence. Id. To set aside an agency decision as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoned, without consideration and with a disregard of the facts and circumstances of the case. See Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980).

It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Van Curen v. Arkansas Prof'l Bail Bondsman Licensing Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002). This court reviews the entire record in making this determination. Id.; see also Ark. Code Ann. § 25-15-212 (Repl. 2002). In reviewing the record, this court gives the evidence its strongest probative force in favor of the agency’s ruling. Van Curen, supra. Between two fairly conflicting views, even if the reviewing court might have made a different choice, the Board’s choice must not be displaced. Id.

DHS’s Administrative Decision

The Arkansas Medicaid Program provides private-duty nursing services for high technology, non-ventilator dependent eligible recipients under the age of twenty-one. The program is designed to provide nursing services to the recipient in his or her place of residence by a registered nurse and/or a licensed practical nurse under the direction of the recipient’s physician.

It is undisputed that appellee is a proper recipient to receive private-duty nursing services. The only issue in the instant case is how many hours per day those services are medically necessary for his care. All medical assistance provided under Medicaid must be “medically necessary.” See 42 U.S.C. §§ 1320a-7 (2000), 1320c-5 (2000), 1396a (2000). Under 42 U.S.C. § 1396a(a)(17)„ the states have broad discretion to adopt standards for determining the extent of medical assistance, requiring only that the standards be reasonable and consistent with the objectives of the Medicaid Act.

DHS maintains that the testimony clearly shows that its decision was based upon medical necessity and was consistent with the provisions of the Medicaid Act. Dr. Judith McGhee testified that as Medical Director for the Arkansas Medicaid Program she reviewed Dr. Jon Robert’s order signed on October 18, 2001, and approved the requested services.

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Related

Van Curen v. Arkansas Professional Bail Bondsman Licensing Board
84 S.W.3d 47 (Court of Appeals of Arkansas, 2002)
H.T. Hackney Co. v. Davis
120 S.W.3d 79 (Supreme Court of Arkansas, 2003)
Partlow v. Arkansas State Police Commission
609 S.W.2d 23 (Supreme Court of Arkansas, 1980)
Holloway v. Arkansas State Board of Architects
101 S.W.3d 805 (Supreme Court of Arkansas, 2003)
ARK. DEPT. OF HUMAN SERVICES, ST FRANCIS DCFS v. Thompson
959 S.W.2d 46 (Supreme Court of Arkansas, 1998)
Arkansas Department of Human Services v. Schroder
122 S.W.3d 10 (Supreme Court of Arkansas, 2003)
ARK. BD. OF REGIS. OF GEOLOGISTS v. Ackley
984 S.W.2d 67 (Court of Appeals of Arkansas, 1998)
Arkansas Board of Registration v. Ackley
984 S.W.2d 67 (Court of Appeals of Arkansas, 1998)

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Bluebook (online)
126 S.W.3d 732, 83 Ark. App. 298, 2003 Ark. App. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-brandenburg-arkctapp-2003.