Petition of Judith Tompson

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0327, Petition of Judith Tompson, the
court on March 30, 2016, issued the following order:

Having considered the briefs and certified record, the court concludes
that a formal written opinion is unnecessary in the case. The petitioner, Judith
Tompson, has petitioned for a writ of certiorari, see Sup. Ct. R. 11, challenging
a final decision of the Administrative Appeals Unit (AAU) of the New Hampshire
Department of Health and Human Services (department) that upheld the
department’s determination that she would have to pay an increased
deductible amount before she is eligible to receive Medicaid. We affirm.

The following facts were found by the AAU or are supported by the
record. The petitioner is a disabled woman in her early fifties. The petitioner
receives social security disability income (SSDI) in the amount of $1,276.00 per
month. On August 7, 2014, the petitioner completed an application for
continued eligibility for medical assistance under the Aid to the Permanently
and Totally Disabled program. On August 26, the department informed the
petitioner that her medical assistance deductible for one month would be
$672.00 or $4,032.00 in a six-month period, effective September 1, meaning
that she must incur medical expenses amounting to $672.00 each month or
$4,032.00 every six months before she is eligible to receive medical assistance
benefits under Medicaid. See N.H. Admin. Rules, He-W 878.01(a).

The petitioner requested a “fair hearing” before the AAU, challenging the
amount of her deductible. See RSA 126-A:5, VIII (2015). Following a hearing,
the hearings officer upheld the department’s decision, concluding that it had
accurately calculated the petitioner’s income and properly applied the
department’s regulations to determine her deductible amount. The petitioner
moved for reconsideration, arguing that the department’s standards for
obtaining medical assistance benefits are outdated and, therefore,
unreasonable. She further contended that she is being discriminated against
based upon her disability because, given the amount of her SSDI, the medical
assistance deductible is unreasonable and excessive. Because she cannot
afford the deductible amount, the petitioner argued that she is being denied
meaningful access to Medicaid benefits in violation of the Americans with
Disabilities Act (ADA).

The hearings officer denied her motion for reconsideration, finding that
the petitioner “is not excluded from the Medicaid program by reason of her
disability.” The hearings officer explained:
 [The petitioner] is, in fact, eligible for Medicaid services as a
“medically needy” individual: due to the size of her monthly
income, however, she must incur a specified amount of medical
expenses before Medicaid coverage begins. This [deductible]
applies to all individuals in the In and Out [Medically Needy
Medical Assistance] program, and is based on the amount of the
individual’s income, not its source.

(footnotes omitted); see N.H. Admin. Rules, He-W 878.01(a) (describing “In and
Out Medically Needy Medical Assistance”). The hearings officer further noted
that she did not have the authority to determine whether a rule or statute is
reasonable. See RSA 161:4, IV (2014) (“The decision of the [hearings] officer
shall not be contrary to rules adopted by the department of health and human
services pursuant to RSA 541-A.”). She explained that the department’s
calculation of the petitioner’s deductible amount is consistent with the
controlling federally-approved state plan which sets the protected income level
for “medically needy” individuals. This petition for writ of certiorari followed.

“The only judicial review of a fair hearings decision issued by the
department is by petition for a writ of certiorari.” Petition of Kalar, 162 N.H.
314, 318 (2011) (quotation and brackets omitted). Review on certiorari is an
extraordinary remedy, usually available only in the absence of a right to
appeal, and only at the discretion of the court. Id. Our certiorari review of the
petitioner’s appeal is limited to determining whether the AAU acted illegally
with respect to jurisdiction, authority, or observance of the law or
unsustainably exercised its discretion or acted arbitrarily, unreasonably, or
capriciously. See Petition of Parker, 158 N.H. 499, 501 (2009). We exercise
our power to grant such writs sparingly and only where to do otherwise would
result in substantial injustice. Petition of Kalar, 162 N.H. at 318.

On appeal, the petitioner makes the same arguments she made in her
motion for reconsideration filed with the AAU and asks that we reverse the AAU
decision. The petitioner does not argue that the department’s calculation of
her deductible amount was made in error; rather she argues that the
standards for determining medical eligibility are unreasonable and
unattainable because an SSDI recipient cannot meet the monthly deductible.
She further contends that the department violated Title II of the ADA by
subjecting her to discrimination on the basis of her disability. Specifically, she
maintains that the amount she receives in SSDI is greater than the amount a
non-disabled individual would receive in ordinary social security income and,
thus, her deductible, because of her disability, is higher than that of such an
individual. This higher deductible, she argues, is unreasonable, excessive, and
unattainable, and, therefore, her disability income effectively denies her
meaningful access to the medical assistance program.

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 As the appealing party, the petitioner has the burden of demonstrating
that the AAU committed reversible error. See Gallo v. Traina, 166 N.H. 737,
740 (2014). Based upon our review of the AAU’s decision, the petitioner’s
challenges to it, the relevant law, and the record submitted on appeal, we
conclude that the petitioner has not demonstrated reversible error. See id. To
the extent that the petitioner argues that the regulations governing the State’s
medical assistance program are outdated and unreasonable, she makes her
argument in the wrong forum. This argument implicates matters of public
policy that are within the purview of the department, the New Hampshire
Legislature, and/or Congress. We, therefore, leave to them the task of
addressing the concerns expressed by the petitioner. See Petition of Kilton,
156 N.H. 632, 645 (2007).

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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