In re Brett & In re McCool
93 A.3d 120
Vt.2014Background
- Consolidated appeals by Brett and McCool, both Choices program recipients under Vermont Medicaid waivers.
- Board decisions disallowed deductions from petitioners’ patient shares for additional personal care services not covered by Choices.
- Petitioners argued such medically necessary, requested services should be deductible even if not paid by Choices.
- Choices for Care program caps services; a variance mechanism allows exceptions when health needs warrant.
- Petitioners sought deductions for additional hours or general supervision not approved by the program; Board upheld denies.
- Court reverses and remands to determine medical necessity and number of hours for additional personal care services, and to calculate patient shares accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether medically necessary personal care services not paid by the State plan are deductible. | Brett argues such services are deductible. | DCF/DAIL contend services are not deductible if covered by Choices or variance denied. | Yes; deductions permitted if medically necessary and not paid by the State plan. |
| Whether a DAIL denial of additional services proves non-necessity for medical purposes. | Petitioners contend denial does not prove non-necessity; evidence supports necessity. | DAIL denial reflects lack of medical necessity or no deterioration justifying more hours. | Remand required; denial does not conclusively show non-necessity. |
| Whether Brett/McCool may rely on noncovered but medically necessary services denied by Choices to claim deductions. | Petitioners seek deductions for medically necessary, requested noncovered services. | DCF relies on Brett’s framework that not all noncovered services are deductible. | Yes; such services are deductible if medically necessary and not covered, on remand calculating hours. |
Key Cases Cited
- Passion v. Dep’t of Soc. & Rehab. Servs., 166 Vt. 596 (1997 (mem.)) (preservation rule; issues not raised below not reviewable on appeal)
- Md. Dep’t of Health & Mental Hygiene v. Ctrs. for Medicare & Medicaid Servs., 542 F.3d 424 (4th Cir. 2008) (CMS interpretation of 'not covered under the State plan' broader than never-covered services)
- In re Petition of D.A. Assocs., 150 Vt. 18 (1988) (exhaustion of administrative remedies principle)
- Ploof v. Village of Enosburg Falls, 147 Vt. 196 (1986) (exhaustion and administrative remedies principles)