DHA Case No. MKB 207607 (Wis. Div. of Hearings and Appeals April 28, 2023) (DHS) ↓ Download PDF
To qualify for the Katie Beckett Medicaid program, a child must meet the Social Security standards for childhood disability, which requires “a disabling impairment … that causes marked and severe functional limitations.” In this case, the child was 12 years old, diagnosed with scoliosis, and had to wear a brace most of the time, but her functional limitations were minimal. ALJ Teresa Perez concluded she did not have a severe impairment and was not disabled, noting that the standards for functional eligibility (also a requirement for Katie Beckett) and disability are different.
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Pursuant to a petition filed on February 6, 2023, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03(1), to review a decision by the Bureau of Clinical Pharmacy and Policy regarding Medical Assistance (MA), a hearing was held on March 9, 2023, by telephone.
The issue for determination is whether Petitioner meets the legal standard for disability required to establish eligibility for Medical Assistance benefits through the Katie Beckett program.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
Written Submission Filed by:
Bureau of Clinical Pharmacy and Policy
PO Box 7851
Madison, WI 53707-7851
ADMINISTRATIVE LAW JUDGE:
Teresa A. Perez
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a twelve-year old resident of Juneau County who was diagnosed with scoliosis in approximately December 2021. Petitioner receives BadgerCare Plus benefits.
- Petitioner has been wearing a brace to treat her scoliosis since February 2022. Since at least October 2022, she has been wearing it approximately 18 – 20 hours per day and typically removes it only during volleyball practice and gym class. (Medical records and Testimony of —.)
- During an orthopedic examination on October 11, 2022, Petitioner was noted to have a “35 degree right thoracic curvature from T6 – T11, with a slightly abnormal T7 that is trapezoidal shaped [with] 2 pedicles present . . . elongated pars of L5 bilaterally with a dysplastic listhesis, [and no] pars fractures.” She was further noted to have “no significant left-sided rotation above or below the right curve”, was able to “demonstrate normal gait pattern as well as toe walk heel walk and tandem gait without any balance or coordination deficits”, had “normal strength and tone in bilateral lower extremities in all distributions”, tight hamstrings, “painless range of motion of bilateral hips, knees, and ankles”, and “no limb length inequality.” (Medical Records)
- While wearing her brace, Petitioner is not able to bend over. She therefore wears special shoes that she can put on herself and has “reachers” that help to accommodate her inability to bend. (Testimony of —).
- In addition to her primary diagnosis of scoliosis, Petitioner has mild intermittent asthma, without complications, seborrheic dermatitis of the scalp, and as of the date of the hearing was undergoing evaluation for ADHD. (Medical records and Testimony of —.)
- Petitioner applied for Katie Becket Medical Assistance in February 2022.
- Petitioner is a student in the — where she has an approved 504 plan based on her scoliosis diagnosis. Petitioner is unable to sit on the bus for an extended period of time due to discomfort caused from sitting while wearing her brace; the 504 plan therefore authorizes van transportation from school to home. In addition, the plan identifies the following accommodations for Petitioner: seat cushions and foot stool, sitting on a stable chair at all times, extended attendance days due to appointments / pain, and extended time to get from class to class if needed.
- By notice dated January 4, 2023, the Department of Health Services (“the department”) informed Petitioner’s parents that she did not meet the legal standard for childhood disability. They filed a request for reconsideration in September 2020 which was denied.
- On February 6, 2023, Petitioner filed an appeal with the Division of Hearings and Appeals regarding the Katie Beckett denial.
The Katie Beckett Program allows certain children with long-term disabilities who reside at home with their parents to receive Medical Assistance. Wis. Stat. §49.46(1)(d)4; 42 USC 1396a(e)(3); 42 C.F.R. §435.225; Medicaid Eligibility Handbook (MEH) §29.1. To qualify for Katie Beckett benefits, a child must be under the age of 19, capable of receiving appropriate care in his or her home, meet Social Security standards for childhood disability, require a level of care that is typically provided in a hospital, nursing home, or ICF-MR, and meet certain financial eligibility criteria. See Id.
The issue in this case is whether Petitioner meets the required legal standard to be considered disabled. The federal regulations provide the following definition of a disabling impairment for children:
[Emphasis added.] 20 C.F.R. §416.911(b).
(b) If you are a child, a disabling impairment is an impairment (or combination of impairments) that causes marked and severe functional limitations. This means that the impairment or combination of impairments:
(1) Must meet, medically equal, or functionally equal the [Listing of Impairments in appendix 1 of subpart P of part 404], or
(2) Would result in a finding that you are disabled under § 416.994a.
The process of determining whether an individual meets this definition involves several steps. See 20 C.F.R. §416.924. The first step requires a determination as to whether the claimant is working and performing “substantial gainful activity” (SGA). Petitioner is an 11-year old child and not performing SGA.
The second step entails evaluating whether the claimant has physical and mental impairments that alone or in combination are severe. If the impairment(s) is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations, it will not be found to be severe. 20 C.F.R. §416.924(c). Petitioner’s medical records demonstrated that she has been diagnosed with scoliosis but that diagnosis was discovered incidentally while she was visiting the doctor regarding unrelated concerns. There is no indication in the record that she was experiencing any functional limitations caused by her scoliosis prior to diagnosis.
Following diagnosis, Petitioner began to wear a brace and continues to do so for most of the day, every day, but she is permitted to remove it to play volleyball and in gym class. Wearing the brace causes Petitioner some functional limitations (e.g., putting shoes and socks on) since the brace inhibits her ability to bend over. However, her mother, who appeared on her behalf at hearing, explained that Petitioner has “special shoes” and “reachers” that she uses to accommodate those limitations. I also note that Petitioner is not currently receiving any kind of physical or occupational therapy services.
There is no question that scoliosis is a serious condition but the evidence in the hearing record does not demonstrate that Petitioner has more than minimal functional limitations as a result of her scoliosis. Petitioner also has diagnoses of mild asthma and dermatitis but Petitioner’s mother did not mention those diagnoses during hearing and the medical records indicate that those conditions do not, fortunately, cause Petitioner significant functional limitations. Accordingly, I find that Petitioner does not have a severe impairment or a severe combination of impairments for purposes of meeting the legal standard of disability.
Finally, I note that Petitioner’s mother expressed understandable confusion regarding how her daughter could be found to be functionally eligible for the Katie Beckett Program but also be found to not meet the legal standard for disability. Functional eligibility and a finding of disability are two distinct eligibility requirements; each must be met to be found eligible for Katie Beckett Medical Assistance. And, the criteria for determining functional eligibility are different than the criteria for establishing disability.
Conclusions of Law
Petitioner does not meet the legal standard for disability required to establish eligibility for Medical Assistance benefits through the Katie Beckett program.
THEREFORE, it is
That the petition for review is dismissed.[Request for a rehearing and appeal to court instructions omitted.]