No. 93-617
IN THE SUPREME COURT OF THE STATE OF MONTANA
THE STATE OF MONTANA, by and
through its DEPARTMENT OF SOCIAL
AND REHABILITATION SERVICES,
Petitioner and Respondent,
vs .
SHODAIR HOSPITAL,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John F. Sullivan; Hughes, Kellner, Sullivan &
Alke, Helena, Montana
For Respondent:
Gregory G. Gould, Special Attorney General,
Department of Social and Rehabilitation Services,
Helena. Montana
Submitted on Briefs: March 9, 1995
De~ided: August 25, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Shodair Hospital (Shodair) appeals from an order of the First
Judicial District Court, Lewis and Clark County, reversing a
decision of the Board of Social and Rehabilitation Services Appeals
(Board) which awarded Shodair medicaid reimbursement for a
patient's hospitalization and reinstating the hearing examiner's
decision which denied reimbursement. We affirm.
We restate the issues on appeal as follows:
1. Did the District Court err in rejecting the Board's
finding that Shodair had met the Medicaid Inpatient
Psychiatric Services manual criteria?
2. Does substantial evidence support the hearing
examiner's finding that Shodair failed to meet the MIPS
manual criteria?
3. Does compliance with the MIPS manual criteria equate
to a "significant danger" to the patient or others
determination under § 46.12.590(2)(k), ARM (1991),
thereby entitling a treatment provider to medicaid
reimbursement for a patient's treatment?
4. Does substantial evidence support the hearing
examiner's finding that Shodair was not entitled to
medicaid reimbursement for D.B.B.'s inpatient psychiatric
care because it failed to demonstrate that D.B.B. posed
a significant danger to herself, others, or the public
safety as required by § 46.12.590(2)( k ) , ARM (1991)?
5. Was D.B.B.'s treatment at Shodair "medically
necessary" under § 46.12.102 (2), ARM (1991)?
Issues three through five are dependent on a determination of error
on issue two. Thus, our holding below that substantial evidence
supports the hearing examiner's finding that Shodair failed to meet
the MIPS manual criteria is dispositive and we need not address the
remaining issues.
Factual and Procedural Backqround
D.B.B., a sexually, physically, and emotionally abused eight-
year-old girl, was admitted to Shodair on August 8, 1991, for
inpatient psychiatric treatment of post-traumatic stress disorder.
D.B.B. was discharged from Shodair to a foster home on September
19, 1991. Shodair applied to the Department of Social and
Rehabilitation Services Medicaid Services Division (SRS) seeking
medicaid reimbursement for D.B.B.'s treatment. SRS reimbursed
Shodair for inpatient treatment provided to D.B.B. from August 8,
1991, through August 23, 1991. It denied reimbursement for the
later portion of D.B.B.'s treatment, based on its determination
that inpatient services were not medically necessary during that
time. This case involves Shodair's effort to obtain reimbursement
from SRS under the state medicaid inpatient psychiatric services
program for the later portion of D.B.B.'s inpatient treatment.
Pursuant to 42 U.S.C.A. § 1396a(30) (A) (West Supp. 199S),
states are required to implement procedures regarding the
utilization of, and reimbursement for, services rendered under a
state medical assistance plan; the purpose of the procedures is to
protect against unnecessary use of services and "assure that
payments are consistent with efficiency, economy, and quality of
care." One aspect of such a state plan is the creation of "a
statewide surveillance and utilization control programu that, among
other things, must safeguard against excess medicaid payments. 42
C.F.R. § 456.3(a) (1994). SRS is the state agency responsible for
creating and managing the utilization program to "ensur[el that
services provided through the medicaid program are . . . consistent
with both state and federal laws, rules, and regulations
establishing the conditions of reimbursement." Section
461.1012 c i , ARM.
Section 46.12.590(3), ARM (1991), authorizes medicaid
reimbursement for hospital inpatient psychiatric care if a person's
psychiatric condition Npose[sl a significant danger to self,
others, or the public safety." Section 46.12.590(2)(k), ARM
(1991). The treatment must be provided under the direction of a
physician and must be designed to discharge the patient to a less
restrictive setting as soon as possible. Section 46.12.590 (2)(k),
ARM (1991).
SRS contracted with Mental Health Management of America (MHMA)
to develop and implement a utilization management program to review
inpatient psychiatric treatment services provided to medicaid
recipients under the age of 21 pursuant to the Montana Medicaid
Inpatient Psychiatric Services Under 21 program (MIPS). Pursuant
to the contract, MHMA developed a MIPS manual for use by reviewers
of medicaid reimbursement claims under the program. The manual,
which was distributed to inpatient psychiatric treatment providers,
including Shodair, contained criteria relating to reimbursement for
hospital inpatient psychiatric treatment. The listed criteria
require treatment providers to demonstrate, with regard to a
patient's inpatient psychiatric treatment, that they have: (1)
diagnosed the patient as having an Axis I mental disorder
delineated in the Diagnostic and Statistical Manual Third Edition-
Revised (DSM-111-R); (2) obtained a DSM-111-R Axis V rating of 50
or less regarding the patient's functional level; ( 3 ) developed a
description of the treatment and discharge plan; and (4) identified
and documented one of four specific problem areas.
In this case, SRS initially denied reimbursement for the later
portion of D.B.B.'s inpatient treatment at Shodair. Shodair
requested, and received, a "fair hearing" pursuant to
5 46.12.1210(21, ARM (1991), after which the hearing examiner
issued extensive findings of fact, conclusions of law and an order
denying reimbursement. The hearing examiner determined that
Shodair did not meet the MIPS manual criteria relating to
reimbursement for hospital inpatient psychiatric treatment.
Shodair appealed to the Board, which summarily reversed the
hearing examiner's decision. The Board found that, based on the
"undisputed factsu of record, Shodair had met the MIPS manual
criteria as a matter of law and that satisfying those criteria also
satisfied the "significant dangern requirement contained in 5
46.12.590(2)(k), ARM (1991). As a result, the Board determined
that Shodair was entitled to medicaid reimbursement for the later
portion of D.B.B.'s inpatient psychiatric treatment.
SRS petitioned for judicial review of the Board's decision.
The District Court concluded that the hearing examiner had
impliedly, and correctly, determined that Shodair failed to satisfy
one of the MIPS manual criteria relating to reimbursement for
hospital inpatient psychiatric treatment. The court also concluded
that the Board erred in summarily rejecting the hearing examiner's
findings and in determining that meeting the MIPS criteria was
sufficient to establish that a patient poses a "significant dangeru
under 5 46.12.590 (2)( k ) , ARM (1991). The District Court reinstated
the hearing examiner's decision denying medicaid reimbursement for
D.B.B.'s treatment at Shodair from August 23 to September 19, 1991.
Shodair appeals.
1. Did the District Court err in rejecting the Board's
finding that Shodair had met the Medicaid Inpatient
Psychiatric Services manual criteria?
Shodair contends that the District Court erred in reinstating
the hearing examiner's decision denying Shodair medicaid
reimbursement. It argues that the Board correctly rejected the
hearing examiner's findings and conclusions and awarded Shodair
reimbursement for D.B.B.' s stay. SRS argues that the Board did not
comply with § 2-4-621(3),MCA. The District Court determined that
the Board violated 5 2-4-621(3),MCA, and we agree.
Section 2-4-621 3 ) , MCA, prohibits the Board from rejecting or
(
modifying the hearing examiner's findings of fact unless it states
with particularity that the findings were not based on competent
substantial evidence. Nowhere in the Board's brief order does it
reject or modify any of the hearing examiner's extensive findings,
much less state with particularity that the finding or findings
were not based on competent substantial evidence. Instead, the
Board summarily reversed the hearing examiner's decision, stating
that it "finds that based on undisputed facts in the record,"
Shodair met the MIPS manual criteria as a matter of law.
The purpose of § 2-4-621(3),MCA, as is the case with many of
this Court's standards of review, is to prevent a reviewing body
from substituting its judgment for that of the factfinder. Here,
the Board's order merely substitutes its judgment for that of the
hearing examiner with regard to findings of fact; in doing so, the
Board violated § 2-4-621(3),MCA.
Section 2-4-704(2)(a)(vi), MCA, authorizes a reviewing court
to reverse the Board's decision if it was "arbitrary or capricious
or characterized by abuse of discretion or clearly unwarranted
exercise of discretion [ .I I' A rejection of a hearing examiner's
findings in violation of § 2-4-621(3), MCA, constitutes an abuse of
discretion under § 2-4-704(2)(a)(vi), MCA. Brander v. Mont. Dep't
of Institutions (1991), 247 Mont. 302, 308, 806 P.2d 530, 533.
Thus, we conclude that, in violating 8 2-4-621(3), MCA, the
Board abused its discretion. We further conclude, on that basis,
that the District Court did not err in reinstating the hearing
examiner's extensive finding of fact for purposes of judicial
review.
2. Does substantial evidence support the hearing
examiner's finding that Shodair failed to meet the MIPS
manual criteria for hospital inpatient psychiatric
treatment?
Shodair and SRS disagree regarding whether satisfying the MIPS
manual criteria also suffices to meet the "significant dangeru
requirement of § 46.12.590 (2)(k), ARM (1991), and the "medical
necessity" requirement of § 46.12.102(2),ARM (1991), for medicaid
reimbursement as a matter of law. It is undisputed, however, that
a provider of inpatient psychiatric services must satisfy the four
criteria contained in the MIPS manual to establish entitlement to
7
medicaid reimbursement for an individual's inpatient psychiatric
treatment.
The parties do not dispute that Shodair established, and the
hearing examiner correctly found, that D.B.B.'s condition met three
of the four MIPS manual criteria. They disagree on whether Shodair
met the fourth criterion of identifying and documenting a listed
problem area; specifically, whether Shodair established the problem
area entitled "Impaired Safety: Threat to Self or Others." Under
the MIPS manual, the Impaired Safety problem area consists of three
components: (1) verbalization or gestures of intent to harm self or
others, caused by a mental disorder; (2) threats accompanied by
depressed mood, recent loss, recent suicide attempt or gesture, or
concomitant substance abuse; and (3) verbalization escalating in
intensity, or verbalization of intent accompanied by gesture or
plan. Each of the components must be established in order to
satisfy the fourth MIPS manual criterion.
A. Implied Finding
This Court has adopted the doctrine of implied findings for
purposes of reviewing findings of fact. Interstate Brands Corp. v .
Cannon (1985), 218 Mont. 380, 384, 708 P.2d 573, 576. That
doctrine provides that where the "findings are general in terms,
any findings not specifically made, but necessary to the
[determination], are deemed to have been implied, if supported by
the evidence." Interstate Brands, 708 P.2d at 576 (citations
omitted). We apply the doctrine only if the implied findings are
consistent with express findings. Interstate Brands, 708 P.2d at
576.
For the most part, the hearing examiner addressed the
components of the Impaired Safety problem area in a systematic
manner. With regard to the first component, the hearing examiner
expressly found that D.B.B. had verbalized an intent to harm both
others and herself and that these threats were probably caused by
her mental disorder. Under the second component, relating to the
patient's recent loss, the hearing examiner found that D.B.B.'s
threats were accompanied by "the recent loss of her family . . .
loss of self and loss of self-esteem."
The third component is comprised of two alternatives: the
patient's verbalization of intent to harm self or others must be
accompanied by gestures or plans or escalating in intensity. The
hearing examiner expressly found that the record did not support a
finding that D.B.B.'s verbalizations of intent to harm herself or
others were accompanied by gestures or plans or a finding that
verbalizations of intent to harm herself escalated in intensity.
Shodair does not dispute the finding related to verbalizations
accompanied by gesture or plan and, for purposes of appeal, has
conceded that the record does not support a finding that D.B.B.'s
verbalizations of intent to harm herself had escalated in
intensity. Thus, the only portion of the third component of the
Impaired Safety problem area at issue is whether D.B.B.'s
verbalizations of intent to harm others escalated in intensity.
The hearing examiner did not make an express finding regarding
the "escalating in intensity" factor. She continued her discussion
regarding the third component by finding that D.B.B. had harmed
peers, including one incident which could have posed a danger, but
that Shodair's treatment after the incident rendered the event
insignificant. She also found that D.B.B. did not have a serious
intent to harm and that she was not frequently violent. Shodair
does not challenge these express findings. The hearing examiner
concluded by finding that " [criterion] (4) of the Department' s
criteria for hospital inpatient psychiatric treatment has not been
met."
The hearing examiner made systematic, express, and undisputed
findings that the first two Impaired Safety problem area components
had been established and that portions of the third component had
not been established. Those express findings, together with her
finding that Shodair failed to establish the fourth MIPS manual
criterion, permitted the District Court to determine that the
hearing examiner had necessarily found that the escalating in
intensity portion of the third component had not been established,
if such a finding is supported by the evidence. See Interstate
Brands, 708 P.2d at 576. This is so because the finding that
D.B.B.'s verbalizations were not escalating in intensity was
necessary for the examiner's ultimate finding that the MIPS manual
criteria were not met. Moreover, the implied finding is entirely
consistent with the express findings made by the hearing examiner
and with the general finding that Shodair failed to meet the fourth
MIPS manual criterion. See Interstate Brands, 708 P.2d at 576.
Thus, all that remains is to determine whether the implied finding
is supported by substantial credible evidence.
B. Substantial Evidence
An implied finding must be not only necessary to the judgment,
but also supported by the evidence. Interstate Brands, 708 P.2d at
576. When reviewing an administrative agency's findings of fact,
courts defer to the agency's findings unless they are clearly
erroneous. Section 2-4-704(2)(a)(v), MCA; Westmoreland Resources
v. Dep't of Revenue (1994), 263 Mont. 303, 310, 868 P.2d 592, 596.
Generally, findings of fact are not clearly erroneous if they are
supported by substantial credible evidence. Westmoreland
Resources, 868 P.2d at 596. Substantial evidence must be more than
a scintilla, but may be less than a preponderance, of evidence.
Miller v. Frasure (1991), 248 Mont. 132, 137, 809 P.2d 1257, 1261.
Both Shodair's records of D.B.B.'s hospitalization and expert
testimony at the hearing provide substantial evidence supporting
the implied finding that D.B.B.'s intent to harm others was not
escalating in intensity. D.B.B.'s hospitalization records
documented that in forty-three days of hospitalization, she was
involved in five or six disputes with staff members or peers.
These incidents involved yelling obscenities at a staff member,
"invading another peer's space," discussion of how she feared she
would kill someone if she returned home, and shoving a peer during
an activity. The medical records establish that D.B.B.'s physical
conflicts were infrequent and that she had not seriously injured an
individual.
In addition, Dr. Larry Osborn (Osborn) testified that, based
on his review of the medical records, Shodair failed to document
that D.B.B. had verbally threatened or promised to hurt someone and
did not demonstrate how any of D.B.B.'s verbalizations escalated in
intensity. He opined that, although D.B.B.'s recreation often
contained some violent aspect, nothing in the record confirmed that
she took the initiative or had the means to hurt her peers. He
also suggested that the record supported a conclusion that D.B.B.
learned not to express her anger in an inappropriate manner, such
as hitting an individual, but to redirect her anger in a positive
manner by punching pillows or taking "time out." In Osborn's
opinion, nothing in D.B.B.'s medical record established that D.B.B.
was impulsive, violent, or dangerous to others.
The record contains substantial credible evidence supporting
a finding that Shodair failed to establish that D.B.B.'s
verbalizations of intent to harm others escalated in intensity and,
therefore, failed to establish the third Impaired Safety component.
Such a finding is consistent with the hearing examiner's findings--
not disputed here--that D.B.B. lacked serious intent to harm and
was not frequently violent and with her general express finding
that Shodair failed to meet the fourth MIPS manual criterion.
Shodair relies on other evidence of record to support its
position that D.B.B.'s verbalization of intent to harm others
increased in intensity. "We will not substitute our judgment for
that of the [fact finder] even where there is evidence in the
record to support contrary findings." Estate of Alcorn ( 1 9 9 4 ) , 263
Mont. 353, 360, 868 P.2d 629, 633. Thus, we decline to review
Shodair's citations to the record and to determine whether that
evidence supports the finding Shodair advocates.
We conclude that the District Court did not err in determining
that the hearing examiner had impliedly found that Shodair did not
establish the "escalating in intensityn component and that the
implied finding was supported by substantial credible evidence and
was not clearly erroneous. We further conclude that the hearing
examiner did not err in determining, on that basis, that Shodair
failed to meet the MIPS manual criteria. We hold, therefore, that
the District Court did not err in reinstating the hearing
examiner's decision which denied Shodair medicaid reimbursement for
the later portion of D.B.B.'s inpatient psychiatric treatment.
Af firmed.
We concur.
Chief Justice
/
@
y
&
The ~onorable'yea~. Mizner,
District Court ($idgel sitting
for Justice W. illiam Leaphart
Justice Terry N. Trieweiler dissenting
I dissent from the majority opinion.
What is notably absent from the hearing examiner's decision,
the District Court's decision, or the majority opinion, is any
mention of the enabling statute pursuant to which medical services
are reimbursed by the Medicaid program. While I do not disagree
with the majority's analysis of the evidence in this case as
applied to the nearly indecipherable MIPS criteria, I do conclude
that the Administrative Rule pursuant to which those criteria were
developed was neither consistent with nor reasonably necessary to
effectuate the purpose of its enabling statute, and therefore, was
ineffective. For these reasons, I would reverse the decision of
the District Court and remand to the hearing examiner for
consideration of the evidence as applied to the only true
requirement for Medicaid reimbursement which is established by
statute.
The enabling statute for the Administrative Rules relied on by
the department, the hearing examiner, the District Court and the
majority is set forth at § 53-6-101, MCA, which provides as
follows :
(1) There is a Montana medicaid program established
for the purpose of providing necessary medical services
to eligible persons who have need for medical assistance.
The Montana medicaid program is a joint federal-state
program administered under this chapter and in accordance
with Title XIX of the federal Social Security Act (42
U.S.C. 1396, et seq.) , as may be amended. The department
of social and rehabilitation services shall administer
the Montana medicaid program.
(2) Medical assistance provided by the Montana
medicaid program includes the following services:
(a) inpatient hospital services;
. . . .
( 3 ) Medical assistance provided by the Montana
medicaid program may, as provided by department rule,
also include the following services:
. . . .
(k) inpatient psychiatric hospital services for
persons under 21 years of age;
. . . .
(6) The services provided under this wart may be
onlv those that are medicallv necessarv and that are the
most efficient and cost-effective.
(Emphasis added.)
In other words, the Department may, by departmental rule,
decide whether or not services for inpatient psychiatric care are
reimbursed. However, the criteria for reimbursement are
established by subparagraph (6) and provide only two requirements:
(1) that the services be medically necessary, and
(2) that they be the most efficient and cost-
effective means of treatment.
Rule 46.12.590, ARM (1990), upon which the hearing examiner's
decision is based and pursuant to which that decision was affirmed
,
by this Court was enacted pursuant to 5 53-6-101(3)(k) MCA.
However, it adds to the statutory criteria an additional
requirement for reimbursement of inpatient psychiatric services.
It provides in subparagraph (k):
l r H o s p i t a l i n p a t i e n t p s y c h i a t r i ccare" means hospital
based active psychiatric treatment provided under the
direction of a physician. The individual's psychiatric
condition must be of such a nature as to Dose a
siqnificant danqer to self, others, or the public safetv,
or one which has resulted in marked wsvchosocial
dvsfunction or qrave disabilitv of the individual. The
theraweutic intervention or evaluation must be desisned -
to achieve the patientls discharge from inpatient
hospital status to a less restrictive environment at the
earliest possible time.
(Emphasis added.)
The underlined portion of subparagraph (k) adds an additional
requirement to the statutory requirements for reimbursement of
in-patient psychiatric care. It is, therefore, inconsistent with
its enabling statute and is unenforceable.
In Michels v. Department of Social and Rehabilitation Services ( 1980) , 187 Mont .
173, 177-78, 609 P.2d 271, 273, we stated that:
Whatever force and effect the regulation has must derive
from the statute under which it is enacted, and a
regulation in conflict with that statute is without
effect. See, 2 Am. Jur. 2d Administrative Law § 289, and Bell
v. Departmentoflicensing (1979), 182 Mont. 21, 594 P.2d 331, 36
St. Rep. 880. "It is axiomatic that a statute cannot be
changed by administrative regulation." State ex rel. Swart v.
Casne (1977) 172 Mont. 302, 308, 564 P.2d 983, 986.
Likewise, in Bick v. State, Department of Justice (1986) 224 Mont . 455,
458-59, 730 P.2d 418, 421, we held that:
A valid rule must meet both prongs of a two-prong test to
determine whether or not it harmonizes with its enabling
legislation. It must not engraft additional and
contradictory requirements on the statute, and it must
not engraft additional non-contradictory requirements on
the statute which were not contemplated by the
legislature. Bell v. Department of Licensing, supra, 182 Mont . at
23, 594 P.2d at 333. The rule also must be reasonably
necessary to effectuate the purpose of the statute. Board
of Barbers of the Department of Professional and Occupational Licensing v. Big Sky
College (Mont. l98l), 626 P.2d 1269, 1270, 38 St. Rep. 621,
623.
The requirement by Administrative Rule that an individual's
psychiatric condition pose a significant danger to herself or
others before she is entitled to reimbursement for inpatient
psychiatric care engrafts an additional requirement on its enabling
statute. That additional requirement is, therefore, without
effect.
There is considerable cause for concern that had the hearing
examiner, the District Court, and the majority of this Court not
focused completely on the administrative requirement of
"significant danger," and instead, focused simply on the statutory
requirement that hospitalization be "medically necessary," the
outcome in this case may have been different.
I note, for example, that the hearing examiner found that,
prior to her hospitalization, D.B.B. had digressed into fantasy and
was having nightmares; sexually acted out at school with her
friends; was observed on the playground trying to call up the
devil; and had been followed in out-patient therapy for the
previous two years. As a result of sexual abuse by her uncle and
emotional abuse by her father, she was diagnosed as suffering from
post-traumatic stress disorder. Three mental health professionals
recommended that she be placed in inpatient treatment. At the time
that SRS concluded that hospitalization was no longer medically
necessary, D.B.B. was being treated for anger, depression, and
oppositional behavior. She had frequent mood swings, decreased
self-esteem, felt overwhelmed by her environment, and she felt
worthless, helpless, and hopeless. She suffered from flashbacks
and disruptive recollections of past events of sexual abuse, she
experienced dissociative episodes, outbursts of anger and
aggression, marked difficulty concentrating, play themes consisting
of violence, avoided dealing with feelings, was unable to express
feelings openly, and she was overly anxious.
Those health care providers from Shodair who treated D.B.B.
testified, according to the hearings examiner:
I
[Hlow critical it was that [D.B.B. have a continuity of
care with time for relationships of trust and confidence
to develop. Shodair provides it would have been
counterproductive to have allowed [D.B.B.] to stay at
Shodair only two weeks and then transfer her to a
residential treatment facility.
The hearing examiner also agreed with Shodair that:
[Ul nlike MHMA reviewers or Dr. Osborne, the Shodair staff
I
dealt directly with [D.B.B. and, therefore, knows a good
deal more about the child than the MHMA reviewers. . . .
Finally, the following entries from D.B.B.'s medical records
made during the period in question suggest that, at a minimum,
continued inpatient treatment was "medically necessary":
08/29 During play therapy DBB played with puppets and
a baby doll. The puppets tucked the baby in bed, but one
puppet made too much noise and woke the baby. The puppet
then had to be killed and was buried in the sand and left
there. Shodair Exhibit I, entry for 8/29. Cheryl
Ronish, DBB's primary therapist and a master's degree
social worker, testified that: " [A] violent theme ran
through all of [DBB'sl play. Often she would be the
victim and then she would switch to be the victimizer,
people were hurt, usually the puppets or her. . . . "
Hearing Transcript, p. 309.
08/31 During activities therapy, DBB continued to
exhibit swings in mood. She was having difficulty with
her feelings, but was unable to put words to those
feelings . DBB needed redirection in all areas and
discontinued activities after participating for only a
few minutes. Shodair Exhibit J, entry for 8/31. On the
same day DBB expressed anger and used foul language with
the nursing staff. DBB stated she did not want to go
home and stated that she feared she would kill someone if
she returned home. DBB told the nursing staff, I1I1ve
killed people, the police and everyone know what I've
done." DBB was given a pillow and allowed to use the
quiet room to discharge her anger. She hit the pillow
against the wall and was observed kicking the wall and
head butting the wall. Dr. Larson, DBB's child
psychiatrist, testified at the hearing that Shodair
considered this to be "very dangerous behavior." Hearing
Transcript, p. 203. DBB was then taken to the punching
bag where she "wailed on it." The child care worker
noted that DBB had homicidal fears and appeared to have
delusional thinking. Shodair Exhibit G, entry for 8/31.
09/03 During the evening of 9/3 DBB said she was on
suicide precautions for biting herself. She hit a peer,
then started talking about "wanting to kill somebody,
anybody. I've done it and will do it again, my dad even
knows." Shodair Exhibit G, entry for 9/3.
09/06 The weekly treatment plan review for 9/6, which
is a part of Shodair Exhibit J, states that DBB was
"still unable to express anger appropriately and has a
potential to hurt others." It also noted that DBB talked
"a lot about violence."
09/07 DBB stated that she wanted to be placed on
suicide precautions, and would do it by biting and
hitting herself. She was talking with her peers about
how the Indians had killed the white man in her town.
Shodair Exhibit G, entry for 9/7.
09/14 During activities therapy DBB continued to have
great variations in mood, and her moods could change
within a single activity. There appeared to be no way of
predicting when this was going to happen. DBB continued
to close herself down when overwhelmed by her feelings,
and refused to speak to staff at such times. DBB had
particular difficulty while playing miniature golf. She
appeared to be very preoccupied and needed constant
redirection from staff, which she did not easily accept.
At times staff had to physically intervene in order to
get DBB back on task, and when DBB was touched she would
become very hostile. Shodair Exhibit K, entry for 9/14.
[The activities therapist] testified as follows about
this incident:
. . . we were playing miniature golf at Mr. T's and
DBB was having a very difficult time attending to
the activity. There was one instance where when I
tried to call her back to that activity there was
absolutely no response from her, she had her back
to me and it was as if she didn't hear anything I
was saying. I called her name four times, she
still didn't respond, I finally had to touch her
and then she was very hostile toward me at that
point. A lot of just this verbal barrage came at
me and this extremely fearful reaction in her
entire body posturing that looked as if she could
strike out at any minute. She did not reveal
anything at that point in time and did not seem
able to talk right then but it was on that same day
that she spoke about the dad possibly beating the
shit out of her if she indeed talked about things
that had happened to her. So it looked like this
was a time when she is reflecting on a lot of
what's happened to her. Possibly having flashbacks
and fortunately is able to begin disclosing some of
what's happening to her. Hearing Transcript, pp.
355-56.
The problem with the result in this case is that none of these
facts have been analyzed in terms of whether they made continuing
hospitalization "medically necessary" without the additional
requirement of proving medical necessity by establishing
significant danger according to the department's policy guidelines
which were at best indecipherable and at worst a classic example of
a bureaucratic mind run amok.
Lost in the shuffle of bureaucratic rules and guidelines was
the only real consideration which was relevant in this case. That
was whether D.B.B.'s continued hospitalization was medically
necessary. Her treating physicians said, "Yes." Her records would
indicate that it was. Yet that question was never answered.
For these reasons, I would reverse and vacate the decision of
the hearing examiner based on an incorrect application of the law
to the facts in this case and remand for further consideration
based on the correct criteria for medicaid reimbursement which is
set forth at § 53-6-101(6), MCA.
justice William E. Hunt, Sr., joins in the foregoing dissenting
opinion.
Justice James C. Nelson specially concurs.
I have signed the opinion in this case because our analysis
and decision is correct on the issues as raised in the
administrative proceedings, as reviewed by the District Court and
as presented and argued to this Court on appeal.
That is not to say, however, that I disagree with the
substance of Justice Trieweiler's dissent or with his analysis of
ARM 46.12.590 (1990), vis-a-vis 5 53-6-101, MCA, at issue here.
Rather, my decision in the instant case is dictated by the oft-
repeated principle that we will not address or determine arguments,
issues or theories unless first presented in the appropriate lower
tribunals and then preserved for decision by this Court on appeal.
Farley v. Booth Bros. Land & Livestock Co. (1995), 890 P.2d 377,
381, 52 St.Rep. 46, 49, (citing Goodover v. Lindey's Inc. (1992),