STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BUNCOMBE 00 DHR 2129

D.B. on her own behalf, and on behalf of her )

Daughter, A.L. )

)

Petitioners, )

-vs- )

) RECOMMENDED

BLUE RIDGE CENTER, and DEPARTMENT OF ) DECISION

HEALTH AND HUMAN SERVICES; DIVISION )

OF MENTAL HEALTH, DEVELOPMENTAL )

DISABILITIES AND SUBSTANCE ABUSE )

SERVICES, )

)

Respondents. )

This contested case was heard before James L. Conner, II, Administrative Law Judge, at the contested case hearing conducted in the City of Hendersonville, Henderson County, North Carolina August 8th and 9th, 2002, and in the City of Asheville, Buncombe County, North Carolina, on October 2nd and 3rd, 2002, and November 5th and 6th, 2002. The parties submitted their Proposed Findings on February 26 and 28, 2003.

APPEARANCES:

Petitioners: John C. Hunter

Biggers & Hunter, PLLC

Ste. 211

79 Woodfin Place

Asheville, N.C. 28801

Respondents: David E. Matney, III

Attorney At Law

22 South Pack Sq.

Suite 402

Asheville, North Carolina 28801

For Respondent Blue Ridge Center

M. Janette Soles

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, N.C. 27602-0629

For Respondent Department of Health and Human Services; Division of Mental Health, Substance Abuse and Developmental Disabilities.

WITNESSES:

For Petitioners: D.B.

Tara Reid

Jeanine Lenhart Meadows, MSW, LCSW

Mazie Warters

Katherine Reiter

Karen Lohr

Michael Thomas Warren

Kimberly Bullard

Jillian Wolf

Patrick Lillard, M.D.

Linda Gunn-Jones, Ph. D

Michael A. Todd

For the Respondents: Richard Munger, Ph. D

Michael A. Todd

ISSUES:

Whether Respondents’ denial of the requested Medicaid services for Petitioner A.L. was proper.

FINDINGS OF FACT:

A.L.’s PRIOR HISTORY AND TREATMENT

1. A.L. is a 14 year old female. She is the adoptive daughter of Petitioner D.B., and her husband G.L. D.B. and G.L. have full custodial and parental rights for A.L.

2. A.L. first came into the home of D.B. and G.L. as a foster child when she was 3 and ½ years old. At that time she had been removed from the custody of her birth parents by the Buncombe County Department of Social Services due to serious neglect and abuse, and had been housed in a series of foster homes. A.L. stayed with D.B. and G.L. for a period of ten months, at which time the Department of Social Services removed her from foster care and returned her to her birth parents. She remained in the birth parents’ home for approximately ten months at which time she was again removed and placed in “Our Place” a residential center for abused and neglected children.

3. In the 10 month period during which she had been placed back into the birth parents’ home, there was evidence that she was repeatedly physically and sexually abused, including being beaten with a belt buckle, sexually molested and locked in a closet to hide her from the police who were frequently at the house. ( T. Vol. I p. 66; Vol II P. 264 )

4. Following this second removal from the birth parents’ home, A.L., although only four years old, was exhibiting severe emotional and mental disturbances. The testimony of one of the workers at “Our Place”, Mazie Warters, who had direct responsibility for A.L. at that time, is indicative of A.L.’s condition:

A.L. stands out in my mind, and I think one of the reasons I've sort of maintained sort of a sideline interest in A.L., because she was the most self-destructive raging five-year-old I've ever worked with in my entire life, and I've been in group home care for twenty-five years.

I would be sitting with A.L. reading a book and I would let her hold the book, and A.L. would take the book, for no reason whatsoever, and slam herself in the face with it as hard as she could. We would prepare her bath water and get her into the bathtub to take abath, and if we did not stay with her the entire time, she would turn the hot water on and almost scald herself. If we were going to leave the house to go on an outing, she would run as hard as she could and literally take her head and slam it into the storm door right here. She would bite herself until she drew blood. She would pick at her fingernails. You could not get her in bed at night.

Her behavior was unpredictable to the point that you could be sitting down at the table having dinner; for no reason she would get up, like, get a bottle of detergent, start squirting it all over the kitchen floor. She did not want to sleep without a light. The cursing was phenomenal for a five-year-old. She was just - she was just malicious. Screamed, yelled, kicked. Try to get her in a van, try to get a seat belt on her, forget it. No way. (T Vol. II. pp. 339-340).

5. Due to these and other behaviors, A.L. was admitted to Charter Psychiatric Hospital in Asheville at the age of four where she began to receive in-patient and out-patient therapy.

6. Following A.L.’s removal from her birth parents’ custody this second time, D.B. and G.L. were again approached by the Department of Social Services about a foster home placement and the possibility of an adoption. In 1996, D.B and G.L. agreed to take A.L. into their home a second time. A.L. remained as a foster child with D.B. and G.L. for a period of three years, during which time the parental rights of the birth parents were terminated. (T Vol. I pp. 49,50)

7. In 1999, D.B. and G.L. legally adopted A.L., who was then 10 years old.

8. The adoption was accomplished through the “Special Needs” adoption program sponsored by the State of North Carolina and the Buncombe County Department of Social Services. This program exists to help the Department of Social Services place for adoption children such as A.L. who have special medical needs. Due to her adoption under this program, A.L. is guaranteed Medicaid eligibility until at least her 21st birthday. Further, because of her age and condition, A.L. is eligible to receive treatment services under the Early and Periodic Screening, Detection and Treatment (EPSDT) Program of Medicaid.

9. Due to her Medicaid eligibility, A.L.’s Medicaid mental health services are provided, paid for and/or coordinated by Blue Ridge Center. Blue Ridge Center is an Area Mental Health Program established under the laws of the State of North Carolina to provide publicly funded mental service to persons within its “catchment” area.

10. At the time of the adoption, A.L.’s diagnosed medical conditions included: Post-traumatic Stress Disorder associated with the physical and sexual abuse she had experienced as an infant and toddler; Fetal Alcohol Syndrome causing central nervous system damage; and Borderline I.Q. Following the adoption she was further diagnosed with Intermittent Rage Disorder and Borderline Personality Disorder. Based upon her birth parents family history, it is also likely that she suffers from some level of Bipolar Disorder which seems to be “Type II-Mixed” which includes both manic and depressed conditions at the same time. (T Vol. I pp. 50-51, 264)

11. After arriving in the D.B. and G.L. home, A.L. continued to exhibit many of the same behaviors mentioned above. D.B. testified:

She had triggers that would make her go into, like, this disassociated state. She would hurt herself. She would attack people. She was in a really, really bad shape. She had bad nightmares. A song on the radio could make her start hallucinating or a pickup truck, police, guns, cartoons. She was very, very difficult to manage, but we felt - we were really committed to her. In part, we felt like nobody is going to take this kid, and you know, we loved her and we were willing and thinking that we were going to have the support we needed to really help her.

(T Vol. I pp. 50-51)

12. Following this second placement in the D.B. and G.L. home, A.L. began to see and be treated by Dr. Kim Masters, a psychiatrist associated with Charter Psychiatric Hospital in Asheville, North Carolina. Dr. Masters’ treatment of A.L. during this time included both overnight hospitalization and treatment as needed (in-patient treatment) and visits of less than a full day to the hospital for therapy and other treatment as needed (out-patient treatment). (T Vol I p. 265-266)

13. Important to the effectiveness of A.L.’s treatment at this time was the ability of D.B. or A.L.’s therapist to call up Blue Ridge Center and have her approved for admission to Charter for short term stabilization purposes designed to prevent A.L. from escalating into dangerous and self-destructive rages. (T Vol. II p. 266) This stabilization treatment consisted of removing her from the home for the day or placing her overnight into a residential type setting where she could receive therapy necessary to allow her to de-escalate and deal constructively with the emotional and mental issues driving A.L. into the self destructive rage. (T Vol I p 264-266)

14. Blue Ridge Center approved these stabilization treatment services for A.L. on both an out-patient and in-patient basis as prescribed by the treating physician, Dr. Masters, and expended Medicaid funds in support of them.

15. At no point during this time did Blue Ridge Center question the medical necessity of such a treatment regime as prescribed by Dr. Masters for A.L.

16. With this sort of treatment regime in place, A.L.’s condition gradually improved over the next three years. Her rages became less frequent and more manageable when they did occur, and eventually did not require D.B. to seek stabilization treatment or service outside of her home. Between the ages of nine and eleven A.L. was not placed outside the home for stabilization at all. (T Vol. I p. 63-64; 267)

17. Due to her stability, progress, and apparent lack of need for on-going mental health case management during this time, Blue Ridge Center closed its file on A.L. in 1999.

18. In February, 2000, Charter Hospital closed in Asheville. Therefore, it was no longer available to provide the outpatient or in-patient treatment which had worked so well for A.L. in the past.

The local hospital system, Mission-St. Josephs, has recently established a psychiatric wing. However, the Program Director of Child and Adolescent Psychiatric Services at the Hospital, Mr. Michael Warren, testified that the program does not currently offer out-patient services or other, less restrictive options to full psychiatric hospital commitment. ( T Vol. II p. 446)

19. Beginning in early 2000, A. L. began to again undergo rages that would often escalate out of control. She had particularly severe episodes in March and September 2000. In March 2000, after her rage escalated, she threatened to do harm to both herself and her family, kicked in several walls in her house, and tore up her room. This was at night after work hours. At the start of the escalation, D.B. contacted the on -call worker with Blue Ridge Center, asking for someone to come out to her home and help her calm A.L. or, if that was not possible, to help her transport A.L. to a place outside the home where she could receive therapeutic mental health intervention. The on-call worker advised D.B. that there was no one to come to her home or to help her transport A.L. other than the police, and that there was no place other than the emergency room of the local hospital to which she could be transported. The purpose of taking her to the local emergency room was to have her examined for possible commitment, in which case she would be transported by the police to Umstead Psychiatric Hospital outside of Raleigh, some four to five hours from her home. D.B. refused to pursue either of these courses because she believed them to be harmful to her daughter’s overall mental health. D.B’s family locked themselves in their rooms and waited until morning, at which time she received direction from a psychiatrist at Blue Ridge Center to give A.L. an increased dosage of her anti-psychotic medication. (T Vol, I p. 68 et seq.)

20. The episode in September 2000 was similar. Again, D.B. sought help from Blue Ridge Center and was again told that there was no one to come out and help her and that there was no treatment available short of having A.L. committed to an out-of-town psychiatric hospital where A.L. could receive mental health intervention. After receiving no services through Blue Ridge Center, D.B. called the Department of Social Services. That Department was able to place A.L. at “Trinity Place” in Asheville, North Carolina, a shelter for homeless or run away children.(T Vol. I p. 68 et seq.)

21. Following this episode, Blue Ridge Center listed Trinity Place as a location to which A.L. could be taken if she escalated into a rage and could not remain in the home.

22. Mazie Warters, the Manager of Trinity Place, testified that while she was willing to take A.L. in order to help out D.B.’s family, Trinity Place was not an appropriate placement for A.L. in that Trinity Place did not offer any active mental health intervention for a child with A.L.’s conditions. (T Vol I p. 322)

23. Both A.L.’s current therapist and psychiatrist testified that placement at a center such as Trinity Place would be harmful for A.L and should be avoided. ( T Vol I p. 273-274)

THE DENIAL OF REQUESTED MEDICAID SERVICES

24. Due to the repeated denials of the crisis intervention and stabilization service she requested for her daughter during 2000, D.B. filed a grievance with Blue Ridge Center requesting these services under Medicaid. (Plaintiff Exhibit No. 1) This grievance resulted in a formal written denial of Medicaid services by Blue Ridge Center on October 9, 2000, in which Blue Ridge Center stated: