Rickaby v. Wisconsin Department of Health & Social Services

FOLEY, J.

(concurring) I concur in the court’s decision to remand this case to the Department for further findings. As pointed out by the majority, the Department’s order appears to limit electric wheelchairs to individuals who will eventually be able to live outside nursing homes. This would be an erroneous interpretation of the Department’s own rule.

I do not, however, concur with the statement that Rickaby seems to qualify under the rules to receive an electric wheelchair. I believe the Department is entitled to find, from the record, that an electric wheelchair is not basic or necessary health care in Rickaby’s case. Rickaby’s basic need for the wheelchair is to permit him to move about the nursing home and an achievement center he is bussed to. He will not foreseeably be able to reside outside the home, and his only activities outside the home are at the center. At both the home and the center he is under supervision, and there is always someone available to move him about. His basic need is therefore being met.

Although I am sympathetic to Rickaby’s desire for additional independence of movement, I cannot conclude, as has the majority, that this necessarily qualifies him for the wheelchair. The Department is charged with the responsibility for avoiding unnecessary utilization of *464services. 42 U.S.C.A. §1396a(a) (30) (West 1974). A wheelchair would no doubt improve the quality of Rick-aby’s life. Unlimited government funds, however, would also improve the lives of many poor or disadvantaged people.

It is properly a function of the Department to determine whether a need is basic and, if it is, whether the need is being met. If the basic need is being met, it is then up to the Department to determine whether it is necessary health care to meet that need in another manner. These determinations involve interpretation and application of the Department’s own rules and, unless plainly erroneous or inconsistent with the federal regulations involved, courts should accept the Department’s determination. Vonasek v. Hirsch and Stevens, Inc., 65 Wis.2d 1, 221 N.W.2d 815 (1974).