Richardson v. State

547 P.3d 327

2024 WY 47

Gracie and Jeff RICHARDSON, Guardians of Jeffery Richardson, Appellants (Petitioners),

v.STATE of Wyoming, EX REL. WYOMING DEPARTMENT OF HEALTH, Appellee (Respondent).

S-23-0094

Supreme Court of Wyoming.

April 29, 2024

Appeal from the District Court of Fremont County, The Honorable Jason M. Conder, Judge

Representing Appellant: Maureen Dono-houe Howell, Donohoue Law Office, Lander Wyoming.

Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Christina F. McCabe, Deputy Attorney General; Jackson M. Engels, Senior Assistant Attorney General; Melissa S. Bartley, Senior Assistant Attorney General. Argument by Ms. Bartley.

Before FOX, C.J., and ^*KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

BOOMGAARDEN, Justice.

[¶1] Gracie and Jeff Richardson (the Richardsons) appeal the district court’s order affirming the Department of Health’s (the Department) decision to remove respite services from their son JMR’s individual plan of care under the Horne and Community Based Services Waiver Program (HCBS Program).¹ We also affirm.

ISSUE

[¶2] The Richardsons raise three issues which we rephrase as one:

Whether the Department acted in accordance with law when it removed respite services from JMR’s individual plan of care.

FACTS

[¶3] The relevant facts are undisputed. The Richardsons are the legal guardians of their adult son JMR who suffers from severe developmental and intellectual disabilities. JMR is unable to care for himself without the help of others and requires full-time care. He receives the highest level of Medicaid benefits offered through the HCBS Program administered by the Department.²

[¶4] The HCBS Program offers numerous services to participants like JMR to meet their individually assessed needs. These services include, among others, adult day services, community living services, and respite services. The providers of these services are required to bill each service based on set rates, as listed in the Department’s Comprehensive and Supports Waiver Service Index (the Index). Relevant here, the Index requires providers of respite and adult day services to bill based on units of service, with a single unit of service defined as fifteen minutes. It also requires providers of community living services to bill at a daily rate, which is defined as a twenty-four-hour period. To direct these services, the Department establishes an individual plan of care and budget amount for each participant along with a care team. Each individual plan of care is updated annually.

[¶5] In 2016, JMR was admitted to the Wyoming Life Resource Center for temporary services after flooding made his hom unsafe. Prior to his discharge from the Center, the Department entered into a settle- ment agreement (2017 Settlement Agreement) with the Richardsons to establish an individual plan of care for JMR that permitted him to spend his individual budget amount on adult day services, residential habilitation services (community living services), and respite services.

[¶6] In 2021, the Department reviewed JMR’s individual plan of care pursuant to a quality improvement review. The Department discovered JMR’s providers had been billing for respite services at the same time JMR had been receiving community living services. Under the Index, providers are not authorized to bill for both the daily rate of community living services and the fifteen-minute units of respite services. The Department, relying on the Index, notified the Richardsons that it was required to remove respite services from JMR’s individual plan of care.

[¶7] The Richardsons responded by requesting an administrative hearing. The Department granted the request and referred the matter to the Office of Administrative Hearings (OAH). OAH conducted a two-day hearing wherein both parties presented witness testimony and exhibits. Soon after, the hearing examiner upheld the Department’s decision to remove respite services from JMR’s individual plan of care based on the Index. The Department issued a final decision adopting the hearing examiner’s proposed findings of fact and conclusions of law. The Richardsons appealed to the district court raising several issues of law and fact. The district court affirmed. The Richardsons appealed to this Court raising only questions of law.

STANDARD OF REVIEW

[1–3] [¶8] This Court reviews agency actions as if the case came directly from the agency and gives no deference to the district court. Monaghan Farms Inc. v. Bd. of Cnty. Comm'rs of Albany Cnty., 2023 WY 31, ¶ 7, 527 P.3d 1195, 1201 (Wyo. 2023) (citation omitted). The scope of our review is guided by the Wyoming Administrative Procedure Act (WAPA), which requires this Court to set aside an agency decision found to be "not in accordance with law." Wyo. Stat. Ann. § 16-3-114(c)(ii)(A) (2023). We review de novo the Department’s conclusions of law and its interpretation of statutes and implementing regulations. Monaghan Farms Inc., 2023 WY 31, ¶ 8, 527 P.3d at 1201 (citations omitted).

DISCUSSION

[¶9] The Richardsons argue the Index and quality improvement review are not properly promulgated rules under WAPA and thus the Department did not act in accordance with law when it relied on them to remove respite services from JMR’s individual plan of care. They also contend the Department violated the plain language of the 2017 Settlement Agreement by removing these services. We address each argument in turn.

I. The Index and the Department's Quality Improvement Review.

[4, 5] [¶10] The Department’s rules and regulations, when adopted pursuant to statutory authority and properly promulgated, have the force and effect of law. Matter of ASA, 2018 WY 5, ¶ 22, 408 P.3d 791, 795 (Wyo. 2018) (citation omitted); see also Fullmer v. Wyo. Emp. Sec. Comm'n, 858 P.2d 1122, 1123–24 (Wyo. 1993). The Department "is bound to follow its own rules and regulations." ASA, 2018 WY 5, ¶ 22, 408 P.3d at 795 (citation omitted). As we discuss below, the Department followed its own rules and regulations when it relied on the Index to remove respite services from JMR’s individual plan of care.

[6] [¶11] The Index is a document the Department periodically issues listing the services, and corresponding billing rates, available to participants in the HCBS Program.³ See Wyoming Department of Health, Behavioral Health Division, Comprehensive and Supports Waiver Service Index at 29–30 (2019). The HCBS Program is a Medicaid program authorized through the federal Social Security Act. 42 U.S.C. § 1396n (2018). It is statutorily authorized in Wyoming at Wyo. Stat. Ann. § 42-4-103(a)(xvii) (authorizing "[s]ervices provided under a federal home and community based waiver"). Under Wyo. Stat. Ann. § 42-4-104(a)(iv), the Department is mandated to "[a]dopt, amend and rescind rules and regulations" in accordance with WAPA to administer the HCBS Program.

[¶12] The Department asserts the Index is a rule with the force and effect of law because it was incorporated by reference when the Department adopted Chapters 45 and 46 of ite Medicaid regulations. Under WAPA:

An agency may incorporate, by reference in ite rules and without publishing the incorporated matter in full, all or any part of a code, standard, rule or regulation that has been adopted by an agency of the United States or of this state, another state or by a nationally recognized organization or association, provided:

(i) The agency determines that incorporation of the full text in agency rules would be cumbersome or inefficient given the length or nature of the rules;

(ii) The reference in the rules of the incorporating agency fully identifies the incorporated matter by location, date and otherwise, and states that the rule does not Include any later amendments or editions of the incorporated matter;

(iii) The agency, organization or association originally issuing the incorporated matter makes copies of it readily available to the public;

(iv) The incorporating agency maintains and makes available for public inspection a copy of the incorporated matter at cost from the agency and the rules of the incorporating agency state where the incorporated matter is available on the internet as defined in W.S. 9-2-3219(a)(iii); and

(v) The incorporating agency otherwise complies with all procedural requirements under this act and the rules of the registrar of state agency rules governing the promulgation and filing of agency rules.

Wyo. Stat. Ann. § 16-3-103(h).

[¶13] In line with WAPA, the Department’s Medicaid rules and regulations expressly incorporated the Index by reference. See Department of Health, Medicaid, Current Rules and Regulations, Chapter 45, § 35; Chapter 46 § 21 (2019). Chapter 45, Section 35 states:

Section 35. Incorporation by Reference.

(a) For any code, standard, rule, or regulation incorporated by reference in these rules:

(i) The Department has determined that incorporation of the full text in these rules would be cumbersome or inefficient given the length or nature of the rules;

(ii) The incorporation by reference does not include any later amendments or editions of the incorporated matter beyond the applicable date identified in subsection (b) of this section; and

(iii) The incorporated code, standard, rule, or regulation is maintained at the Department and is available for public inspection and copying at cost at the same location.

(b) Each code, rule, or regulation incorporated by referenced in these rules is further identified as follows:

….

(iv) Referenced in Sections 2, 5, 6, 8, and 31 of this Chapter is Wyoming’s Comprehensive and Supports Waiver Service Index, incorporated as of the effective date of this Chapter and can be found at https://health.wyo.gov/behavioralhealth/dd/servicesandrates/.

Id. (emphasis added). Chapter 46, Section 21 contains essentially the same language. See Department of Health, Medicaid, Current Rules and Regulations, Chapter 46, § 21 (2019). Notably, the Richardsons did not challenge the Department’s promulgation of ...