Tuesday, December 22, 2009

Petition for Judicial review

This is an altered copy of a petition that was successfully used to obtain BAHA implantation services from Idaho medicaid. We wrote it ourselves, with some advice from an advocacy attorney, and with LOTS of web research, learning how to do it.


I found that what was most helpful was finding these documents that had been published online by others, so I have meant for some time to publish this online. In our case, after the petition below had been filed, the Department wanted to settle. Unsurprising, as they had no case!


PLEASE NOTE: Although it is fine to write these things for yourself, thus representing yourself, IT IS NOT OK, at least in Idaho, to do so for a family member. Or at least, there is no law supporting it. It was made clear to me that I was 'treading on thin ice' by helping my mom write this. I strongly recommend getting an attorney of some kind. Even if you do all the work yourself, and simply get the attorney to co-sign it, or something like that. Talk to the Legal Aide attorneys at the courthouse for any clarification of this issue.













*****************, ) Case No. **********************




v. ) I.C. § 67-5270

) Fee Category: R-2, $78.00




Respondent. )

__ )


1. Petitioner, _______________, Medicaid recipient assisted by her son-in-law, _____________, brings this action to petition this Court for judicial review of the Final Order in a contested case pursuant to the Idaho Administrative Procedure Act, Idaho Code §§ 67-5270. Petitioner is a Medicaid recipient who sought Auditory Osseointegrated Device (hereinafter “BAHA”) implantation services from the Idaho Department of Health and Welfare (hereinafter “Respondent”). The request was denied. An evidentiary hearing was held before __________________, a designated hearing officer for the Respondent. The hearing was conducted in person and was recorded. This recording is in the possession of the Administrative Procedures Section of the Respondent at 450 West State Street, 10th Floor, Boise, Idaho. Mr. _____________ issued a Findings of Fact, Conclusions of Law and Preliminary Decision on September 26, 2006 that overruled the Respondent’s denial. This was appealed by the Respondent on October 10, 2006 and a Final Order in Appeal No. ________________was issued on December 20, 2006 by the Director overturning the Hearing Officer’s Preliminary Order.


2. This Court has jurisdiction pursuant to I.C. § 67-5270(3), granting review in district court by a person aggrieved by a state agency’s final order in a contested case. ____________(hereinafter “Petitioner”) is a party aggrieved by the Final Decision and Order issued by the Director and Administrator of the Respondent.

3. Venue is proper in this Court pursuant to I.C. § 67-5272(1)(b), because the final agency action was taken by the Director of the Respondent located at 450 West State Street, in Boise, Ada County, State of Idaho and Petitioner resides at __________________________________, State of Idaho.


4. Petitioner, ________________, is a 61 year-old woman who resides at __________________________, State of Idaho. At all times relevant, Petitioner has been eligible for Medical Assistance from the Respondent. She is diagnosed with Asymmetric Sensorineural Hearing Loss with Deafness in the left ear. This disability has resulted in profound impairment in her ability to recognize sounds, especially to discriminate speech, in conditions of ambient noise. This impairment limits the Petitioner’s ability to participate normally in society, and live a fully engaged, meaningful life, thus limiting her independence. This disability also has resulted in the inability to determine the directionality of auditory signals, such as warnings, thus compromising her safety.

5. Respondent, Idaho Department of Health and Welfare, is a government agency of the State of Idaho and is charged with administering Idaho’s Medicaid program by I.C. § 56-201 and under the provisions of 42 U.S.C. §§ 1396 et seq.


6. Petitioner applied for BAHA implantation (Service code 69714) on or about 13 June, 2006.

7. She was denied BAHA implantation 10 July, 2006 for the stated reason: IDAPA 16.03.0940 DOES NOT MEET MEDICAL NECESSITY. [Later note: this set of code numbers is nonsense, does not correspond to Idaho code. This is a denial of due process on several levels]

8. She appealed 2 August, 2006.

9. A hearing was held on 21 September, 2006.

10. At the hearing, medical evidence submitted showed that the Petitioner’s Single Sided Deafness profoundly affects her ability to discriminate speech in noise and determine directionality of sounds, thus adversely affecting her ability to effectively communicate, localize safety sounds, and causing tremendous stress and fear, progressive isolation and dependency.

11. At the hearing, written and oral testimony was presented from family members and from professionals showing that the Petitioner’s Single Sided Deafness affects virtually every aspect of her life and severely limits her ability to live a fully engaged and meaningful life.

12. At the hearing, Respondent testified that the Petitioner would not get the BAHA because the Respondent does not view Single Sided Deafness as meeting the medical necessity requirement. Before the hearing began, attorney for the Respondent stated that it was the Respondent's position that there is no need for bilateral hearing, and that therefore these proceedings were something of an unnecessary formality. This statement was not recorded, but was made in the presence of all the individuals present at the hearing. [Later note: Actually the previous sentence is false. Upon obtaining the transcript we were delighted to find that the statement in question was very clearly recorded!] Thereafter, during the course of the hearing each of the Respondent's representatives mentioned this position with familiarity and answered questions about it. None of them were able, under examination, to cite the existence of any written rules or documents outlining this policy. They did state, however, that they had basically 'deduced' the policy by extrapolating from the 'one hearing aid' rule. When asked if this meant that the 'one hearing aid rule' came about because the Respondent considered one-sided hearing to be sufficient, the representative for the Respondent testified he actually had no idea how that rule had come about or for what reasons.

13. Medicaid rules state, “a service is medically necessary if it is reasonably calculated to . . . treat conditions in the individual that . . . cause functionally significant . . . malfunction,” so long as it meets quality standards and is the least costly appropriate alternative.

14. Petitioner met this standard by showing, as the Hearing Officer found, "her left ear deafness must be considered a 'functionally significant . . . malfunction.'"

15. The Petitioner met this standard by providing documentation that the BAHA has been approved by the FDA to treat Single Sided Deafness.

16. The Petitioner met this standard by showing third party health care plans (one provided by Respondent) which provide coverage for the BAHA for conditions met by the Petitioner.

17. The Hearing Officer found that "There was no evidence presented by either party that there exists a significantly less expensive or more conservative option for treatment of her left-side deafness."

18. Petitioner had the following difficulties participating in the hearing: She finds that even in environments with minimal to moderate background noise, which most hearing people wouldn’t even notice, she must use all of her mental concentration to understand what is being said and is therefore unable to fully process it until later. She therefore relied on her son-in-law to question and cross-examine witnesses about their testimony.

19. The BAHA® system is an implanted treatment for hearing loss that works through direct bone conduction. It consists of three parts: a titanium implant, an external abutment, and a sound processor. It uses bone as a pathway for sound to travel to the functioning inner ear. The BAHA system requires a short, minimally invasive surgical procedure lasting 30-60 minutes, performed under general or local anesthesia, typically on an outpatient basis. The BAHA system has been innovatively treating patients since 1977 and is a leading solution for patients who have a mixed or conductive hearing loss affecting the outer and/or middle ear, as well as unilateral sensorineural hearing loss, also known as Single-Sided Deafness (SSD). In 1996, the BAHA system was cleared by the Food and Drug Administration (FDA) for use in the United States to treat mixed and conductive hearing loss. In 1999, the BAHA system was cleared by the FDA for pediatric use in children age five and older. In 2001, the BAHA system was cleared by the FDA for bilateral fittings. In 2002, the BAHA system was cleared by the FDA for use in patients with unilateral sensorineural hearing loss, commonly known as Single-Sided Deafness (SSD). (See Exhibit B from the evidentiary hearing).

20. The BAHA device does not restore hearing by amplification of sound, as in a hearing aid. The outer ear is bypassed completely. The BAHA use bone transmission to stimulate the cochlea directly, resulting in far superior results, without occluding the ear canal of the one ear which does hear natural sound as is required with hearing aids. The Centers for Medicare and Medicaid Services changed the definition of hearing aids effective 10 November, 2005 to specifically exclude the BAHA device, and redefined the BAHA as a prosthetic device. Also, the FDA classifies the BAHA as a Class II medical device, whereas hearing aids are Class I. It is therefore clear that the BAHA device must be treated as a prosthetic device in any coverage determinations.

21. At the evidentiary hearing Petitioner proved that a regular hearing aid would not work. She testified she had previously attempted the use of a hearing aid but was forced to stop due to a skin sensitivity reaction, and the fact it did not improve her hearing, anyway. The fact that she had unsuccessfully attempted use of a hearing aid years ago is documented in the following document from the hearing: Exhibit F, page 1, dated 28 September, 2005. See also Exhibit D. Additionally, representatives of Respondent stated at the hearing that they did not object to the addition of new evidence at that time, therefore testimony presented at the hearing should be considered as evidence in these determinations.

22. The Hearing Officer determined that the BAHA was medically necessary.

23. The Hearing Officer overturned Respondent’s decision.

24. Respondent filed a request for review by the Director on 10 October, 2006.

25. According to the Hearing Officer’s Preliminary Order, the Director had 56 days, or until 5 December, 2006 to issue a decision. (See Preliminary Order).

26. On or about 7 December, 2006, Petitioner called Respondent to determine when a decision would be issued.

27. Petitioner was informed at that time by the Administrative Procedures Coordinator for the Respondent that the appeal had not yet been forwarded to the Director.

28. The Director issued a final decision on 20 December, 2006 reversing the Hearing Officer’s preliminary order.

29. The Director’s decision was issued 15 days after the deadline.

30. The Director’s Final Decision and Order contains numerous factual errors, as outlined below.

31. The Decision directly quotes the pertinent portion of the Medical Necessity statute three times, but two of these citations are incorrect. According to the Decision, the Petitioner must show that either her life is endangered, or she is in pain, or suffers from deformity or malformation. It is freely admitted that none of these is true. However, the word “malfunction,” which is included in the statute, is misquoted as “malformation”, which does not appear in the cited statute. The distinction between these two words is crucially important in understanding the Medical Necessity statute and its ramifications. This misrepresentation of the law, whether intentional or unintentional, reflects a disdain for the letter and spirit of the Medicaid Statute and its intended beneficiaries.

32. The Decision mentions that the Petitioner‘s “hearing loss did not prevent her from participating in the hearing.” In fact this is another misrepresentation. The Petitioner asked the Hearing Officer to allow her son-in-law to ask questions and in some cases testify on her behalf during the hearing, because she finds that in similar circumstances, she must use all of her concentration and focus to listen and understand what is being said, which doesn’t allow her sufficient time to process the information while people are speaking, as most of us take for granted. The Petitioner was at the hearing, and she did understand most of what was said, but she was unable to fully participate. Furthermore, the hearing was conducted in a quiet, closed room with minimal background noise. Only adults were present, and only one person ever spoke at one time. It was never argued that she cannot hear in these conditions. Clearly the Respondent either did not review the evidence, did not understand it, or chose to dismiss it.

33. The Decision states that “there is little evidence” that the Petitioner cannot use a “traditional hearing aid”. The evidence is on the record, so it is unclear what further evidence the Respondent desires (See Exhibit F, page 1, dated 28 September, 2005). This very issue was discussed at the hearing, at which time the Respondent’s representatives stated emphatically that they would not recommend such an approach, and that the Petitioner would not benefit from it. Most medical plans that mention the BAHA device, including the two plans entered into evidence by the Respondent, list this hypersensitivity reaction to hearing aid molds as an indication for the BAHA device. Furthermore, a traditional hearing aid, as that term is typically understood, would be useless for the Petitioner’s condition. There is a Contralateral Routing Of Sound (CROS) hearing aid system which was discussed at the hearing which can be used to treat some sufferers of Single Sided Deafness. It has proven, however, to be far inferior to the BAHA device in both performance and tolerability by its users. Regardless, __________ is not a candidate for the CROS device due to her known skin reaction to hearing aid molds. These facts were also vetted at the Hearing, and the Respondent’s representatives clearly stated they did not recommend this treatment modality in this case. Because the Petitioner’s attempt to use more traditional modalities took place decades ago in another state, it is unlikely that the original physician’s chart notation could be located describing the skin reaction the Petitioner experienced to the hearing aid mold. Nor is it clear what purpose this would serve.

34. The Petitioner has exhausted her administrative remedies as required by Idaho Code § 67-5271.


35. Pursuant to Idaho Code § 67-5279(3)(e), Respondent’s Final Order was arbitrary, capricious and an abuse of discretion because the Director ruled on a different basis, least costly means, than the Hearing Officer who heard the testimony at the hearing. The Order was also capricious because it states that the Petitioner's hearing loss is not functionally significant, in spite of much evidence to the contrary, and in agreement with the self-contradictory statement from the Respondent's Brief on Director Review: "even though she may have difficulty distinguishing speech . . . it is undisputed that [Petitioner] can functionally hear." The Order also states that the Petitioner's "Hearing loss did not prevent her from participating in the hearing," when in fact she was unable to fully participate in the hearing; and furthermore, it was never argued that the Petitioner cannot functionally hear in a quiet, controlled environment with only one person speaking at a time. It seems clear, therefore, that the Order was not based on a full review of the evidence and is therefore arbitrary and capricious. The Order contains two critical misquotations of the Medical Necessity Statute: therefore it is not based upon a thorough understanding of the law and is therefore arbitrary and capricious. The Order was based upon the Respondent's policy of not treating Single-Sided Deafness, which policy the Respondent has admitted on record is based upon an incomplete understanding of the 'one hearing aid' rule. (See page 4, paragraph 12). As the Centers for Medicare and Medicaid services define the BAHA as a prosthetic and not a hearing aid, and as this Decision is based upon a policy rather than a properly promulgated Rule (and is in fact in violation of the Medical Necessity Statute), the Order clearly represents an abuse of discretion. The Order further represents an abuse of discretion because it is clear that the Director has substituted his judgment of medical necessity for that of the treating physicians. Here is an excerpt from A.M.L. v. DEPARTMENT OF HEALTH, DIVISION OF HEALTH CARE FINANCING 863 P.2d 44 (Utah Ct. App. 1993):

Further, we note that several courts require state Medicaid agencies to recognize a presumption "in favor of the medical judgment of the attending physician in determining the medical necessity of treatment." Weaver v. Reagen, 886 F.2d 194, 200 (8th Cir.1989); see also Pinneke v. Preisser, 623 F.2d 546, 550 (8th Cir.1980) ("The decision of whether or not certain treatment or a particular type of surgery is 'medically necessary' rests with the individual recipient's physician and not with clerical personnel or government officials."). The basis for this presumption is found in part in the legislative history of the Medicaid statute: "The Committee's bill provides that the physician is to be the key figure in determining utilization of health services--and provides that it is a physician who is to decide upon admission to a hospital, order tests, drugs and treatments, and determining the length of stay." S.Rep. No. 404, 89 Cong., 1st Sess. reprinted in 1965 U.S.Code Cong. & Admin.News 1943, 1986. In addition, "[t]he Medicaid statute and regulatory scheme create a presumption in favor of the medical judgment of the tending physician in determining the medical necessity of treatment." Weaver, 886 F.2d at 200; see also Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.1987) (stating that in social security disability proceeding, reports of treating or consulting physicians are entitled to greater weight than those of physicians hired by agency resisting claim); Worthington v. Idaho Dep't of Health and Welfare, No. 69458, slip op. at 5 (2d Dist. Idaho Feb. 20, 1992) (holding that "the legislative history, Medicaid case law, and the mechanics of the Medicaid program itself require that an attending physician's opinion as to what constitutes medical necessity in a given case be given deference").

36. Pursuant to Idaho Code § 67-5279(3)(a), Respondent’s Final Order was made in violation of Petitioner’s right to due process guaranteed by the Due Process Clause of the United States Constitution and federal Medicaid statutes. U.S. Const. Amend. XIV; 42 U.S.C. §1396a(a)(3) and 42 C.F.R. § 431.210. Respondent failed to issue a timely Final Order and the Hearing Officer’s Preliminary Order dated 26 September, 2006 should be reinstated.

37. Pursuant to Idaho Code § 67-5279(3)(d), Respondent’s Final Order was not supported by substantial evidence on the record as a whole because the record contained ample evidence to support the Hearing Officer’s conclusion that “her left ear deafness must be considered a ‘functionally . . . significant . . . malfunction.”” Petitioner produced substantial evidence that the BAHA was medically necessary, i.e. reasonably calculated to . . . ., no other equally effective course of treatment . . . least costly, and meets the professional recognized standards of health care, whereas the Respondent has produced no evidence to the contrary. The Director’s Final Order is not supported by substantial evidence in the record because it states that although the Petitioner testified at the hearing to having had a hypersensitivity skin reaction to the hearing aid mold, "there is no other evidence, medical or otherwise, to support why a traditional hearing aid is not effective." In fact, Exhibits D and F both mention the Petitioner's prior attempts to use a hearing aid. Furthermore, the Respondents representative at the hearing stated unequivocally they would not recommend CROS hearing aids because they would serve no benefit. And of course a "traditional" hearing aid would be completely useless for treating Single Sided Deafness. The Order is not supported by substantial evidence on the record because although the Hearing Officer found, "There is, and can be, no dispute that [Petitioner]'s hearing loss limits her participation in society, reduces her independence and her ability to live a fully engaged and meaningful life. . . . [and her] safety may be compromised," and there has been no evidence to the contrary, the Order states that there is "insufficient evidence" of "functionally significant" impairment.

38. Pursuant to Idaho Code § 67-5279(3)(d), the Respondent’s findings, inferences, conclusions, or decisions are in violation of constitutional or statutory provisions since the decision is based not on a properly promulgated rule, but a mere policy. The Respondent denied the BAHA based on the policy that assistance will only be provided to those with bi-lateral hearing loss. This is not in the rules. Furthermore, denying medical coverage based on diagnosis rather than individual need would appear to be a violation of case law, such as Jasset v. Rhode Island.

39. Petitioner seeks review of the Final Order within the statutory timeline for judicial review provided in Idaho Code §67-5273. Substantial rights of the Petitioner have been prejudiced by the Final Order issued by Respondent. Petitioner has been denied access to medically necessary hearing or prosthetic services, which are essential to prevent continued profound hearing impairment and unnecessary disability of Petitioner.


WHEREFORE, Petitioner respectfully requests that this Court:

1. Take jurisdiction in this case pursuant to Idaho Code § 67-5272.

2. Order Respondent to submit to the Court and all parties a copy of the entire record of the Fair Hearing and Review by Agency Head held in this matter pursuant to Idaho Code § 67-5275.

3. Vacate the Final Order in this matter.

4. Remand this matter to Respondent and order that Respondent find that the BAHA is medically necessary for the Petitioner.

5. Find that Petitioner is the prevailing party and that Respondent acted without a reasonable basis in law or fact.

6. Award to the Petitioner costs pursuant to Idaho Code § 12-101, witness fees and other reasonable expenses pursuant to Idaho Code § 12-117.

7. Award such other relief as the court deems proper and just.

Respectfully submitted this 17th day of January, 2007.








I, _________________________________, HEREBY CERTIFY that on the 17th day of January, 2007,

1. Arrangements for payment are being made with the Administrative Procedures Section of the Idaho Department of Health and Welfare for the preparation of the record in this matter and for a certified transcript.

2. I caused to be served a correct copy of the foregoing PETITION FOR JUDICIAL REVIEW by the method indicated below, and addressed to the following:


Deputy Attorney General

Idaho Department of Health and Welfare

450 W. State Street, 10th Floor

P.O. Box 83720

Boise, ID 83720-0036

[ ] U.S. Mail

[ ] Fax

[ ] Electronic Mail

[X] Hand Delivery

______________, Hearing Officer



[X] U.S. Mail

[ ] Fax

[ ] Electronic Mail

[ ] Hand Delivery





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