Texas Health and Human Services Commission v. Jessica Lukefahr

ACCEPTED
03-15-00325-CV
7573299
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/28/2015 10:22:37 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00325-CV
_______________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS 10/28/2015 10:22:37 AM
AT AUSTIN JEFFREY D. KYLE
Clerk
_______________________________________________________________
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
Appellant,
v.
JESSICA LUKEFAHR
Appellee.
________________________________________________________________
On Appeal from the 345th Judicial District Court
of Travis County, Texas
Cause No. D-1-GN-14-002158
The Honorable Stephen Yelenosky Presiding
__________________________________________________________________
APPELLANT’S REPLY BRIEF
__________________________________________________________________
KEN PAXTON KARA HOLSINGER
Attorney General of Texas Assistant Attorney General
State Bar No. 24065444
CHARLES E. ROY OFFICE OF THE ATTORNEY GENERAL
First Assistant Attorney General OF TEXAS
Administrative Law Division
JAMES E. DAVIS P.O. Box 12548, Capitol Station
Deputy Attorney General for Civil Austin, Texas 78711-2548
Litigation Telephone: (512) 475-4203
Facsimile: (512) 320-0167
DAVID A. TALBOT, JR. kara.holsinger@texasattorneygeneral.gov
Chief, Administrative Law Division
COUNSEL FOR APPELLANT
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
ARGUMENT AND AUTHORITIES ........................................................................2
I. Ms. Lukefahr Conflates the Substantial Evidence Standard of Review in a
Suit for Judicial Review with the Preponderance of the Evidence Standard
Applicable at a Fair Hearing ............................................................................2
II. Ms. Lukefahr Artificially Limits the Reasons for Denial of the Exceptional
Circumstances Request ....................................................................................4
III. Substantial Evidence Supports HHSC’s Determination that a Static Stander
meets Ms. Lukefahr’s Medical Need to Stand ................................................8
IV. Ms. Lukefahr Received Adequate Due Process ............................................14
PRAYER ..................................................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................17
CERTIFICATE OF SERVICE ................................................................................17
ii
INDEX OF AUTHORITIES
CASES
Beal v. Doe,
432 U.S. 438 (1977) .................................................................................................12
ERI Consulting Eng'rs, Inc. v. Swinnea,
318 S.W.3d 867 (Tex. 2010) ......................................................................................3
Goldberg v. Kelly,
397 U.S. 254 (1970) .................................................................................................14
Moore v. Reese,
637 F.3d 1220 (11th Cir. 2011) ........................................................................ 10, 12
Poole v. Karnack Indep. Sch. Dist.,
344 S.W.3d 440 (Tex. App.—Austin 2011, no pet.) .................................................3
Rush v. Parham,
625 F.2d 1150 (5th Cir. 1980) .................................................................................10
State v. Pub. Util. Comm’n,
883 S.W.2d 190 (Tex. 1994) ........................................................................... 3, 4, 13
Univ. of Tex. Med. Sch. at Hous. v. Than,
901 S.W.2d 926 (Tex. 1995) ....................................................................................15
FEDERAL STATUTES
42 C.F.R. § 431.210 ...................................................................................................8
STATE STATUTES
TEX. GOV'T CODE
§ 2001.174 ................................................................................................. 2, 3, 10, 11
iii
RULES
1 TEX. ADMIN. CODE
§ 354.1039(a)(4)(D) .................................................................................................13
§ 357.5(3)(a)...............................................................................................................2
§ 357.703(3) .............................................................................................................15
§ 357.9 ........................................................................................................................2
TEX. R. APP. P.
§ 38.1(i) ......................................................................................................................3
iv
No. 03-15-00325-CV
_______________________________________________________________
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AT AUSTIN
_______________________________________________________________
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
Appellant,
v.
JESSICA LUKEFAHR
Appellee.
________________________________________________________________
On Appeal from the 345th Judicial District Court
of Travis County, Texas
Cause No. D-1-GN-14-002158
The Honorable Stephen Yelenosky Presiding
__________________________________________________________________
APPELLANT’S REPLY BRIEF
__________________________________________________________________
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES the Texas Health and Human Services Commission
(“HHSC”) and files Appellant’s Reply Brief.
ARGUMENT AND AUTHORITIES
I. Ms. Lukefahr Conflates the Substantial Evidence Standard of Review in
a Suit for Judicial Review with the Preponderance of the Evidence
Standard Applicable at a Fair Hearing.
Throughout Appellee’s Brief, Ms. Lukefahr attempts to shift the standard of
review from this Court’s proper determination of whether HHSC’s order is
supported by substantial evidence to whether HHSC proved its case by a
preponderance of the evidence at the fair hearing. Appellee’s Brief 17-30; Tex.
Gov’t Code § 2001.174 (providing for substantial evidence review under the
Administrative Procedure Act). But the issue of whether HHSC’s denial of Ms.
Lukefahr’s exceptional circumstances request was supported by a preponderance
of the evidence is not before this Court. The hearing officer who presided over the
fair hearing was the finder of fact in this case. 1 Texas Admin. Code § 357.5(3)(a)
(“After the hearing, the hearings officer makes a decision based on the evidence
presented at the hearing . . .”). And the finder of fact determined that HHSC proved
by the preponderance of the evidence that it correctly denied Ms. Lukefahr’s
exceptional circumstances request for a custom power wheelchair with an
integrated stander. 1 Tex. Admin. Code § 357.9 (the agency bears the burden of
proof by a preponderance of the evidence during a fair hearing); A.R. 564, 572.
This Court does not weigh the evidence presented at the fair hearing, but reviews
the record as a whole to determine whether “more than a mere scintilla” of
2
evidence supports HHSC’s order. Tex. Gov’t Code § 2001.174 (“a court may not
substitute its judgment for the judgment of the state agency on the weight of the
evidence on questions committed to agency discretion . . .”); State v. Pub. Util.
Comm’n, 883 S.W.2d 190, 203-204 (Tex. 1994) (“The reviewing court, then,
concerns itself with the reasonableness of the administrative order, not the
correctness of the order.” “[S]ubstantial evidence is more than a mere scintilla . .
. .”). Thus, since this Court’s review of this case is limited to a determination of
whether substantial evidence in the record supports HHSC’s decision, the Court
should reject Ms. Lukefahr’s attempts to shift the standard of review in this case.
Additionally, despite Ms. Lukefahr’s assertion that no evidence in the record
supports HHSC’s denial of the mobile stander on exceptional circumstances
review, HHSC’s order is clearly supported by substantial evidence. 1 Poole v.
Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443 (Tex. App.—Austin 2011, no pet.)
(The Court presumes the order is supported by substantial evidence, and Ms.
Lukefahr has the burden of proving otherwise.); Appellee’s Br. 19 (“HHSC offered
no evidence at the fair hearing to refute the professional opinion of Jessica’s
1
In her briefing before the district court, Ms. Lukefahr challenged HHSC’s policy exclusion of
mobile standers, but she abandons this argument on appeal. Appellee’s Br. 16 (“This issue need
not be resolved to affirm the district court’s decision and is not repeated herein.”). Thus, this
appeal is confined to the denial of the mobile stander on exceptional circumstances review. Tex.
R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”); ERI Consulting Eng'rs, Inc. v.
Swinnea, 318 S.W.3d 867, 880 (Tex. 2010) (issues not briefed are waived).
3
treating medical providers. . .”). Ms. Lukefahr’s assertion is belied by the
extensive arguments in her brief dedicated to discounting the evidence in the
record that supports the findings and conclusions contained in the orders upholding
the decision. Appellee’s Br. 19-30; A.R. 563-74, 580-91. Ultimately there is more
than a mere scintilla of evidence in the record to support the hearing officer’s and
the reviewing attorney’s findings and conclusions. State v. Pub. Util. Comm’n, 883
S.W.2d at 204. Therefore, the district court’s final judgment should be reversed
and HHSC’s order affirmed.
II. Ms. Lukefahr Artificially Limits the Reasons for Denial of the
Exceptional Circumstances Request.
Ms. Lukefahr claims that four reasons for denial of the integrated stander on
exceptional circumstances review are provided in the denial letter, and HHSC is
therefore limited to consideration of those four reasons in its decision upholding
the denial. Appellee’s Br. 9, 10 n. 10. But these “four reasons” reflect Ms.
Lukefahr’s mischaracterization of the denial letter, which does not provide four
enumerated reasons for denial and does go beyond those limited reasons stated by
Ms. Lukefahr. A.R. 58-60. As such, Ms. Lukefahr’s claims that HHSC attempts to
rely on reasons for denial outside of the denial letter is also in error. Appellee’s Br.
17-19.
4
Ms. Lukefahr states that the denial letter provides “four reasons” for the
denial:
First, TMHP claimed that ‘the main reason for requesting a standing
power was not for treatment of your medical condition’ . . . ‘the main
reason for requesting a standing power wheelchair was to help you
progress at work.’ Next, TMHP asserted that the ‘papers did not show
you can tolerate standing for longer periods of time, which limits your
ability to benefit from a standing program.’ TMHP then claimed the
‘papers did not show you can perform tasks over and over again using
your arms against gravity.’ Finally, TMHP maintained that ‘the papers
did not state why a static stander that you could transfer into and out
of would not meet your medical needs.’
Appellee’s Br. 9. Importantly, TMHP provided additional reasons for the denial
outside of Ms. Lukefahr’s proffered “four reasons.” The denial letter states:
You have asked for a power wheelchair with tilt and recline and a
standing feature. You are twenty-six years old and have spastic
quadriplegia, dystonia, and cerebral palsy. You work at a local
museum. You live by yourself and have help with getting your meds,
bathing and dressing. You are able to stand for five minutes, three
times a day using a walker. But, you are unable to stand long enough
with your walker for the standing to be deemed therapeutic or helpful.
With a seat-elevator you are able to transfer in and out of your current
power wheelchair by yourself. The papers sent state that you would
be able to reach shelves without help if you had a standing feature on
a wheelchair and this would allow you to do librarian tasks. The
papers sent in show you have very limited upper and lower body
strength, you have problems with your muscle tone and you tire
easily.
The papers sent did not show that you are able to tolerate standing for
longer periods of time and this limits your ability to benefit from
standing. The papers sent did not show you are able to perform tasks
over and over again using your arms against gravity. The papers sent
show you also have problems with your muscle tone and muscle
5
spasms and this limits the range in your arms and hands and ability to
move and use your upper body. Because you are able to transfer
yourself in and out of your wheelchair using a wheelchair seat
elevator, you would be able to use a static stander to obtain any
medical benefits that might be obtained from a standing program. The
papers did not state why a static stander that you could transfer into
and out of would not meet your medical needs. The papers sent do
not show you have a muscle or nerve condition that gets increasingly
worse as you get older. The review of the papers sent in show the
main reason for requesting a standing power wheelchair was to
help you progress at work. The main reason was not for the
treatment of your medical condition.
After reviewing and studying the clinical points of your request and
your special medical needs it was found you may have a medical need
both for a power wheelchair without a standing feature and a static
standing system to meet both your medical and mobility needs. This
equipment may be considered for you through Texas Medicaid if
requested. The papers sent failed to support medical necessity for the
standing feature (and its parts as part of the power wheelchair
requested) or that the standing feature would serve a specific medical
purpose for you. Because the standing feature on the power
wheelchair would not serve a specific medical purpose for you, it
could not be approved under the exceptional circumstances provision
of 1 Texas Administrative Code § 354.1039(a)(4)(D) as requested by
your provider. Because the standing feature cannot be separated from
the power wheelchair requested the power wheelchair requested could
not be approved.
A.R. 59 (emphasis added). As the denial letter does not enumerate four reasons for
denial, and clearly includes far more explanation of the reasons for denial than
those self-selected by Ms. Lukefahr, HHSC urges the Court to consider the notice
provided by the denial letter itself in reviewing this case under Tex. Admin. Code
§ 2001.174, rather than Ms. Lukefahr’s interpretation thereof.
6
Additionally, Ms. Lukefahr’s erroneous interpretation of the reasons for
denial has important consequences in this case. She asserts that HHSC relies on
reasons outside of the denial letter to support denial of the exceptional
circumstances request, but a full reading of the letter shows that this is not true.
Appellee’s Br. 17-19, 24-25. In one important example, Ms. Lukefahr asserts that
HHSC’s discussion of the inadequacy of the peer-reviewed literature submitted in
support of her exceptional circumstances request was not presented as a reason for
denial in the denial letter, and therefore cannot be used as substantial evidence to
support the denial herein. Appellee’s Br. 24-26; A.R. 429 (exceptional
circumstances policy requires a least two articles from “evidence-based medical
peer-reviewed literature” be submitted as part of the exceptional circumstances
request). This is incorrect because the denial letter states: “[t]he papers did not
state why a static stander that you could transfer into and out of would not meet
your medical needs” and “the papers sent failed to support medical necessity for
the standing feature. . .”. A.R. 59. These statements notified Ms. Lukefahr that the
papers sent in in support of the exceptional circumstances request, which included
the peer-reviewed literature, did not support a medical need for a custom power
wheelchair with an integrated stander. Id. As such, Ms. Lukefahr had notice that
one reason for denial was that the information provided in support of the request
7
did not show that the integrated stander was medically necessary for her.2 Id.
Therefore, as HHSC provided Ms. Lukefahr with adequate notice of the reasons
for the denial, and its order is supported by substantial evidence, HHSC’s order
should have been affirmed.
III. Substantial Evidence Supports HHSC’s Determination that a Static
Stander meets Ms. Lukefahr’s Medical Need to Stand.
Ms. Lukefahr attempts to undermine HHSC’s determination that a static
stander will meet her medical need to stand by arguing that the denial letter did not
provide notice that failure to request or rule out a static stander could be a reason
for denial of the mobile stander, that HHSC’s witnesses were not qualified to
provide testimony on this issue, and that Ms. Lukefahr’s medical provider’s
opinion on medical necessity is controlling. Appellee’s Br. 20, 24-28. These
assertions are contradicted by the record, which shows Ms. Lukefahr had adequate
notice and that substantial evidence supports HHSC’s determination that a static
stander meets Ms. Lukefahr’s medical need to stand.
Although Ms. Lukefahr claims that failure to request a static stander was not
provided as a reason for denial, this is contradicted by the record. Appellee’s Br.
2
In Appellee’s Brief, Ms. Lukefahr states that the denial letter did not specifically reference the
peer-reviewed literature, and therefore was not part of the reasons for denial. Appellee’s Br. 24-
25. But a denial letter is not required to be so detailed. According to federal regulations, a denial
letter must provide “the reasons for the intended action,” which this letter did. 42 C.F.R.
§ 431.210. Nowhere do the federal regulations or state rules require that a denial letter be as
detailed as Ms. Lukefahr would require.
8
20 n. 20. The denial letter informed Ms. Lukefahr that, in part, her request for a
custom power wheelchair with an integrated standing feature was denied because
she failed to show that a static stander would not meet her medical need to stand.
A.R. 59 (“The papers did not state why a static stander that you could transfer into
and out of would not meet your medical needs.”). Additionally, the denial letter
stated “you may have a medical need for a power wheelchair without a standing
feature and a static standing system to meet both your medical and mobility
needs.” Id. Also, HHSC’s exceptional circumstances policy required Ms. Lukefahr
to provide letters of medical necessity “documenting alternative measures and
alternative DME that have been tried and that have failed to meet the client’s
medical need(s), or have been ruled out, and an explanation of why it failed or was
ruled out.” A.R. 428. Thus, the record reflects that Ms. Lukefahr had notice that
her exceptional circumstances request for an integrated stander was denied, in part,
due to her failure to show that a static stander would not meet her medical needs.
Next, Ms. Lukefahr claims that HHSC’s witnesses were not qualified to give
testimony on the issue of whether a static stander would meet Ms. Lukefahr’s
medical needs and that the opinion of Ms. Lukefahr’s medical provider is
controlling. Appellee’s Br. 19-20, 23-24, 27-28. First, Ms. Lukefahr asserts that
HHSC witnesses Patricia Cannizzaro, a registered nurse who reviewed the
exceptional circumstances request for TMHP, and Donna Claeys, a registered
9
nurse who reviewed the exceptional circumstances request for HSHC’s Office of
the Medical Director, were not qualified testify regarding her medical need to stand
because they had not personally evaluated or treated Ms. Lukefahr.3 Appellee’s Br.
19-20, 24-28; A.R. 57, 423-24. Ms. Lukefahr has invented this standard and it is
unsupported by the law. Again, Ms. Lukefahr invites the Court to substitute its
judgement as to the credibility of witnesses for that of the finder of fact, the
hearing officer who conducted the fair hearing. Tex. Gov’t Code § 2001.174 (“a
court may not substitute its judgment for the judgment of the state agency on the
weight of the evidence on questions committed to agency discretion . . .”). Ms.
Lukefahr cannot so easily dismiss the testimony of Ms. Cannizzaro and Ms.
Claeys, which provide substantial evidence supporting the denial of the mobile
stander.
Second, Ms. Lukefahr claims that because Ms. Cannizzaro and Ms. Claeys’
testimony is not credible, the testimony of Ms. Lukefahr’s medical providers is
controlling. Appellee’s Br. 24-28. But the law provides that both the provider and
the Medicaid agency have a role in determining medical necessity. Moore v. Reese,
637 F.3d 1220, 1248 (11th Cir. 2011) citing Rush v. Parham, 625 F.2d 1150, 1155
(5th Cir. 1980) (both the physician and the State have roles in determining what
3
Ms. Claeys and Ms. Cannizzaro testified on behalf of HHSC based on medical reviews of Ms.
Lukefahr’s exceptional circumstances request by doctors at both TMHP and HHSC’s Office of
the Medical Director. A.R. 423-27; Fair Hearing Audio Recording 1:07.45.
10
medical measures are necessary, and the physician’s letter of medical necessity is
not dispositive. That is exactly what occurred in this case. Ms. Lukefahr’s durable
medical equipment (“DME”) provider and physician provided letters of medical
necessity, along with other supporting documentation in submitting the exceptional
circumstances request. A.R. 208-241. Texas Medicaid personnel, including
physician Medical Directors, then evaluated and ultimately denied the exceptional
circumstances request for an integrated stander. A.R. 58-60, 423-27. As such, Ms.
Lukefahr’s attempts to revisit witness credibility and distract this Court from its
substantial evidence review should fail. Tex. Gov’t Code § 2001.174.
Finally, substantial evidence supports HHSC’s Order that a static stander,
combined with the use of other, covered components of a custom power
wheelchair4 and the use of care providers, will meet all of Ms. Lukefahr’s medical
needs as expressed in the exceptional circumstances request. A.R. 563-74. In
Appellee’s brief, Ms. Lukefahr attempts to show that HHSC’s order is not
supported by substantial evidence by arguing that HHSC failed to provide any
evidence to dispute her medical need to stand in the community and asserting that
4
Ms. Lukefahr states that HHSC’s denial of the other custom components of her custom power
wheelchair shows that the medical necessity of these items is not undisputed, as HHSC has
asserted. Appellee’s Br. 33. But Ms. Lukefahr ignores that fact that these other custom
components were only denied because they could not be separated from the wheelchair as
requested. A.R. 59 (“Because the standing feature cannot be separated from the power
wheelchair requested the power wheelchair requested could not be approved.”); see also A.R.
572 (finding of fact 11). Thus, as the hearing officer found during the fair hearing, there is no
dispute that a custom power wheelchair and static stander are medically necessary for Ms.
Lukefahr. A.R. 572 (finding of fact 12).
11
she cannot transfer independently to and from her wheelchair nor does she have
constant access to care providers. Appellee’s Br. 21-30. None of these claims
render HHSC’s order unsupported by substantial evidence.
In the first instance, substantial evidence showed that Ms. Lukefahr has no
medical need to stand in the community. A.R. 59, Fair Hearing Audio Recording
(“H.R.”) 1:49 (Ms. Cannizzaro testifying that the integrated stander was not
requested for a therapeutic purpose and that other features will meet her medical
needs.). Other, covered DME, like the tilt/recline feature on her wheelchair, will
meet Ms. Lukefahr’s medical need to change positions while away from home.
H.R. 1:49, 2:02 (Ms. Cannizzaro testifying that the peer-reviewed literature
indicates standing and recline offer similar load reductions.). Although Ms.
Lukefahr may desire to stand to allow her to progress at work, this is not a matter
of medical necessity. A.R. 59 (“The review of the papers sent in show the main
reason for requesting a standing power wheelchair was to help you progress at
work. The main reason was not for the treatment of your medical condition.”);
Moore, 637 F.3d at 1244 citing Beal v. Doe, 432 U.S. 438, 444 (1977) (“a
participating state is not required to fund desirable but medically unnecessary
services requested by a Medicaid recipient’s physician”). Therefore, as Ms.
Lukefahr does not have a medical need to stand while in the community, her
assertion that HHSC offered no evidence to rebut this medical need is unavailing.
12
Furthermore, Ms. Lukefahr asserts that because both she and her medical
provider testified that she cannot transfer independently and she does not have
constant access to caregivers, HHSC’s determination that an integrated stander is
not medically necessary is incorrect. Appellee’s Br. 20-22. But at least some
evidence showed that Ms. Lukefahr can transfer independently to and from her
wheelchair, which is all this is required for this Court to uphold HHSC’s order on
substantial evidence review. A.R. 59, 82, 168; State v. Pub. Util. Comm’n, 883
S.W.2d at 204 (“[S]ubstantial evidence is more than a mere scintilla. . . .”).
Additionally, if Ms. Lukefahr cannot transfer independently, she has daily access
to caregiver assistance to meet her medical need to stand for about one hour a day,
five days per week.5 A.R. 59, 82; H.R. 2:09.30. Constant caregiver assistance is not
required to meet Ms. Lukefahr’s medical need to stand.6 As covered DME,
including a static stander, will meet Ms. Lukefahr’s medical needs, substantial
evidence supports HHSC’s order.
5
Ms. Lukefahr cites to Johnson v. Minnesota Dep't of Human Servs., 565 N.W.2d 453 (Minn.
Ct. App. 1997) for the proposition that the use of caregiver assistance to perform a standing
program is insufficient to meet her medical need to stand. This case has no relevance here, as it
is not based on Texas Medicaid law and policy, which requires that review of an exceptional
circumstances request be considered on an individual case basis. 1 Tex. Admin. Code
§ 354.1039(a)(4)(D) (“Medical equipment or appliances not listed in subparagraph (C) of this
paragraph [related to covered appliances and equipment] may, in exceptional circumstances, be
considered for payment when it can be medically substantiated as a part of the treatment plan
that such service would serve a specific medical purpose on an individual case basis.”).
6
The district court judge also erroneously determined that caregiver assistance was not sufficient
to meet Ms. Lukefahr’s medical need to stand because she does not have constant access to
caregivers. A.R. 224. The law simply does not require constant access to caregivers to meet a
medical need to stand for about one hour per day. A.R. 427; H.R. 2:09.30.
13
IV. Ms. Lukefahr Received Adequate Due Process.
Ms. Lukefahr alleges a denial of due process even though she has
participated in hearings at multiple levels of administrative and judicial review and
has received all required due process according to Goldberg v. Kelly, cited by Ms.
Lukefahr as the standard for due process in this case. 397 U.S. 254 (1970);
Appellee’s Br. 18 n. 16, 35-37. According to Goldberg:
The fundamental requisite of due process of law is the opportunity to
be heard. The hearing must be ‘at a meaningful time and in a
meaningful manner.’ In the present context these principles require
that a recipient have timely and adequate notice detailing the reasons
for a proposed termination, and an effective opportunity to defend by
confronting any adverse witnesses and by presenting his own
arguments and evidence orally.
...
Finally, the decision maker’s conclusion as to a recipient’s eligibility
must rest solely on the legal rules and evidence adduced at the
hearing. To demonstrate compliance with this elementary
requirement, the decision maker should state the reasons for his
determination and indicate the evidence he relied on . . . though his
statement need not amount to a full opinion or even formal findings of
fact and conclusions of law. And, of course, an impartial decision
maker is essential.
Goldberg, 397 U.S. at 267-68, 271 (citations omitted).
In this case, Ms. Lukefahr received more than the due process required by
Goldberg. After Ms. Lukefahr requested a custom power wheelchair with
integrated stander for exceptional circumstances, TMHP and HHSC’s Office of the
14
Medical Director reviewed, analyzed, and denied the request. A.R. 54-60. TMHP
provided Ms. Lukefahr with a letter explaining the reasons for denial. A.R. 58-60.
Ms. Lukefahr then participated in a fair hearing, after which the hearing officer
issued findings of fact and conclusions of law and upheld HHSC’s denial of the
exceptional circumstances request. A.R. 563-74. HHSC’s reviewing attorney
reviewed the fair hearing decision and found no error.7 A.R. 580-91. The trial court
judicially reviewed HHSC’s decision. C.R. 226. Now this Court is judicially
reviewing the trial court’s decision. Ms. Lukefahr’s experiences before the
administrative and judicial tribunals define adequate due process, and her claims to
the contrary are without merit.8
PRAYER
HHSC asks this Court to reverse the district court’s judgment because
HHSC’s order denying Ms. Lukefahr’s request for a custom power wheelchair
with an integrated stander is supported by substantial evidence and is not arbitrary
and capricious or in violation of Ms. Lukefahr’s due process rights.
7
Ms. Lukefahr asserts a denial of due process because the reviewing attorney did not address the
“procedural errors raised by Jessica . . . .” Appellee’s Br. 36. But there is no requirement, in
HHSC rule or otherwise, that the reviewing attorney respond to specific issues raised by the
Medicaid beneficiary. Rather, the reviewing attorney complied with HHSC rules by reviewing
the fair hearing decision “for errors of law and errors of fact” and ultimately sustained the
hearing officer’s decision. 1 Tex. Admin. Code § 357.703(3); A.R. 590-91.
8
In the alternative, if this Court concludes that Ms. Lukefahr is entitled to more due process, the
clear solution is to remand this case back and begin due process anew. See Univ. of Tex. Med.
Sch. at Hous. v. Than, 901 S.W.2d 926, 933 (Tex. 1995) (“In general, the remedy for a denial of
due process is due process.”).
15
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
DAVID A. TALBOT, JR.
Chief, Administrative Law Division
/s/ Kara Holsinger
KARA HOLSINGER
Assistant Attorney General
State Bar No. 24065444
Office of the Attorney General of Texas
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4203
Facsimile: (512) 320-0167
kara.holsinger@texasattorneygeneral.gov
Attorneys for Appellant
16
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3) and relying
on the word count function in the word processing software used to produce this
document, I certify that the number of words in this document is 4,626 including
the portions that would otherwise be exempted by TRAP Rule 9.4(i)(1).
/s/ Kara Holsinger
KARA HOLSINGER
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Appellant’s Reply Brief was served
via e-serve and e-mail on this the 28th day of October, 2015 to the following:
Maureen O’Connell
Texas Bar No. 00795949
Southern Disability Law Center
1307 Payne Avenue
Austin, Texas 78757
Phone: 512-458-5800
Fax: 512-458-5850
moconnell458@gmail.com
Attorney for Appellee
/s/ Kara Holsinger
KARA HOLSINGER
Assistant Attorney General
17