COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Bumgardner
Argued at Salem, Virginia
AVANTÉ AT LYNCHBURG, INC.
OPINION BY
v. Record No. 2457-97-3 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 11, 1998
JOSEPH M. TEEFEY, DIRECTOR, VIRGINIA
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Jeannie A. Adams (Peter M. Mellette; Crews &
Hancock, P.L.C., on briefs), for appellant.
Brian E. Walther, Special Counsel (Mark L.
Earley, Attorney General; Ashley L.
Taylor, Jr., Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney
General, on brief), for appellee.
The Director of the Department of Medical Assistance
Services (DMAS) refused to pay Avanté at Lynchburg, Inc. for
specialized medical care provided to Patient H. 1 Avanté appealed
the Director's refusal to the Circuit Court of the City of
Lynchburg. The trial court affirmed the Director's decision,
finding substantial evidence to support the decision that
Patient H no longer required specialized care after
June 14, 1994.
Patient H was admitted to Avanté's specialized care facility
following release from surgery at Danville Regional Medical
1
To protect patient confidential information, the patient in
question has been referred to as Patient H throughout this
litigation.
Center where a tracheostomy was performed. She was admitted with
multiple diagnoses, the most relevant being Down's syndrome and
obstructive sleep apnea, which is the inability to breathe
effectively while asleep. She had a life expectancy of six
months. When admitted on March 4, 1994, DMAS had approved her
for specialized care at Avanté.
Pursuant to the DMAS Nursing Home Provider Manual, a nursing
home will be reimbursed for providing specialized care when a
patient requires weekly physician visits, twenty-four-hour-a-day
nursing supervision, and a coordinated multi-disciplinary team
approach to treatment. In addition, the individual must require
one of three specific patient care categories: (1)
rehabilitative services, (2) special equipment, or (3) special
services, such as ostomy care or ongoing administration of
medication or nutrition. Patient H met the basic specialized
care criteria and needed specialized equipment. Her physician
ordered that she be monitored with a pulse oximeter twenty-four
hours a day. The pulse oximeter measures oxygen in the blood.
If the level of saturation drops below a designated level,
special actions would be taken to correct the deficiency.
On June 13-14, 1994, DMAS's Utilization Review Team
conducted a review of the treatment provided Patient H by Avanté.
Pamalia Hollenbach, a registered nurse, reviewed the patient's
records and observed Patient H and her surroundings. Ms.
Hollenbach reviewed her findings with the other members of the
review team, which was composed of two additional registered
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nurses. The team determined that Patient H no longer needed
specialized care. After proceeding through the administrative
appeal channels, the determination by the review team was
approved by the Director. He ruled that ample evidence supported
the findings (1) that the patient did not need specialized care
because weekly nursing summaries never reflected that the patient
experienced respiratory distress, (2) the patient's goal of not
experiencing any seizure had been met, (3) the physician's
progress notes did not reflect any respiratory distress and as of
June 2, 1994 described the patient as stable, (4) the patient was
observed without a pulse oximeter and without any staff observing
her, and (5) no order had been written for defined monitoring by
a pulse oximeter or directing the response if saturation levels
reached a certain point. The Director found that the specialized
care was not necessary based on the review of the records and the
observation of Patient H made by the review team even though
Avanté may have provided the specialized care. Avanté appealed
the decree of the circuit court which upheld the Director's
denial of reimbursement for specialized care from June 24 to
December 1, 1994. After December 1, 1994, Avanté agrees the
specialized care was no longer needed.
The standard of review of an agency's factual findings on
appeal to a circuit court is limited to determining whether
substantial evidence in the agency record supports its decision.
See Code § 9-6.14:17; Turner v. Jackson, 14 Va. App. 423,
429-30, 417 S.E.2d 881, 886 (1992). On appeal, we do not disturb
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factual findings if credible evidence supports them. See James
v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d
487, 488 (1989). The reviewing court can reject an agency
decision "'only if, after considering the record as a whole, it
determines that a reasonable mind would necessarily come to a
different conclusion.'" Virginia Real Estate Comm'n v. Bias, 226
Va. 264, 269, 308 S.E.2d 123, 125 (1983) (quoting B. Mezines,
Administrative Law § 51.01 (1981)).
The Director accepted the opinion of the review team that
the specialized treatment was unnecessary. The team's opinion
was based on a review of the patient's records and the
observations made of the patient herself. The team concluded the
patient was stable. While the record reveals the data collected
from the records and the observations made, it does not reveal a
proper basis for concluding that the data and observations
support a finding of no medical necessity. A team of registered
nurses made the decision that the patient was stable and the
specialized service was not needed. The record contains no
evidence that any physician interpreted the meaning of the
nurses' objective findings.
At the administrative review a medical doctor did testify
for DMAS. However, he did not render a professional opinion that
the data and observations led him to conclude that the services
were no longer needed. He was not offered as an expert on the
needs of this patient but, rather, as an expert in medical
administration and utilization review. He testified as to
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administrative procedures normally followed. He stated that
proper procedures called for doctor's orders to be written. He
concluded that if there was no written order, and in this case
Ms. Hollenbach found no order for a pulse oximeter, then the
device was not required. The doctor did not opine that Patient H
no longer needed a pulse oximeter. He simply stated that if no
written order for a service was found, nothing indicated that a
doctor had decided it was needed. The testimony states the
obvious: only a medical opinion of necessity justifies providing
the service.
The opinion upon which the Director rested his decision was
that made by the team of nurses. However, no evidence showed
that these particular nurses or registered nurses in general have
the training, expertise, or experience necessary to render such a
medical opinion. To the contrary, the record suggests that a
registered nurse would not normally make a decision to terminate
treatment that was initiated by order of a physician. Such a
termination could be directed by a physician conditioned upon the
nurse making certain findings, but no instructions specified the
conditions under which a nurse would be authorized to stop the
service.
Even though nothing in the record establishes the nurses'
expertise to make the determination of medical necessity, that
determination could be made if the objective standards for
determining necessity were specified. If that had been done, the
objective facts could be compared to the medical standard to see
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if they matched. The observations could be evaluated against an
accepted medical gauge. However, no evidence established a
standard by which a nurse could determine when the treatment
prescribed for Patient H was no longer necessary.
The Director's decision was also based on the observations
that the patient was neither being monitored by a pulse oximeter
nor observed by a nurse. These observations do not lead to a
conclusion that Patient H no longer required the special
treatment of twenty-four-hour nursing supervision and continued
monitoring with a pulse oximeter. The nurse's finding that the
treatment was not provided at the time of her inspection does not
dispense with the need for evidence from a qualified medical
expert that the patient's condition no longer necessitated the
treatment. Finding that Avanté did not provide a service they
had contracted to provide would be clear reason not to reimburse
them for rendering the service, but it does not establish that
the service was not needed. The fact Patient H did not receive a
medical service does not mean she did not need it.
In summary, the Director's decision was based on the
patient's record that did not indicate that the special equipment
had been ordered or that any bad episodes had occurred and,
further, was based on the observations that the patient was not
connected to the monitoring device. While this might allow a
qualified expert to conclude that there was no medical necessity,
only a medical expert is qualified to draw that conclusion. The
evidence failed to establish a standard defining when the special
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equipment would no longer be needed, and no qualified expert
rendered an opinion that the need had passed. On the contrary,
all those qualified to render a medical opinion, the doctors,
stated the patient needed the treatment. Further, the trial
record establishes that the medical equipment had been ordered,
that it was furnished as ordered, and that the patient had not
stabilized in the sense of no longer needing the treatment. All
qualified expert evidence supported Avanté's position that
specialized treatment was necessary. No medical evidence to the
contrary was presented. The Director's decision was not based on
"such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Johnston-Willis, Ltd. v.
Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988). This is not
a case of conflicting medical opinions which would properly
create a question of fact to be resolved by the Director. See
Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989). The Director's decision was not based on
substantial evidence, and therefore we reverse the decision of
the trial court and hold that Avanté was entitled to
reimbursement for providing the specialized service to Patient H
during the period claimed.
Reversed and remanded.
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