                                  STATE OF WEST VIRGINIA

                                SUPREME COURT OF APPEALS



                                                                                    FILED
Carolyn Foose,                                                                   December 7, 2015
                                                                               RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                                 SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs) No. 14-1312 (Kanawha County 11-AA-48)

Karen L. Bowling, Cabinet Secretary of
The West Virginia Department of Health
and Human Resources, Respondent Below,
Respondent



                                  MEMORANDUM DECISION

       Petitioner Carolyn Foose, pro se, appeals the December 23, 2014, order of the Circuit
Court of Kanawha County dismissing as moot her petition for a writ of certiorari challenging
Respondent’s denial of prior authorization for petitioner to receive eighteen additional physical
therapy sessions from November 19, 2010, to December 31, 2010. Respondent Karen L. Bowling,
Cabinet Secretary of The West Virginia Department of Health and Human Resources
(“WVDHHR”), by counsel Mary G. McQuain, filed a summary response, and petitioner filed a
reply.

        The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner is a recipient of West Virginia Medicaid benefits, who received nineteen
sessions of general physical therapy during the year 2010. In her twentieth session, petitioner
underwent an evaluation to determine whether aquatic therapy would be an appropriate treatment
for her.1 Because petitioner already received twenty sessions of physical therapy, she was required
to obtain prior authorization for additional therapy sessions. Petitioner submitted a request for
eighteen sessions of aquatic therapy to run from November 19, 2010, to December 31, 2010. On
       1
           Aquatic therapy is classified as a type of physical therapy.

                                                   1
November 19, 2010, WVDHHR’s review contractor denied petitioner’s request as not meeting the
criteria for medical necessity.

        On November 29, 2010, petitioner requested a hearing to contest the denial of additional
physical therapy sessions before WVDHHR’s Board of Review. At the January 26, 2011, hearing,2
WVDHHR argued that petitioner’s request for additional therapy sessions had been rendered moot
by the change of the calendar year to 2011. WVDHHR explained that each Medicaid recipient was
eligible for twenty physical therapy sessions per year without prior authorization. Accordingly, in
an order entered on February 2, 2011, the Board of Review dismissed petitioner’s contest of the
denial as moot because, on January 1, 2011, petitioner became “eligible for twenty (20) [physical
therapy] visits for the new calendar year” without having to obtain prior authorization.

         On April 1, 2011, petitioner filed a petition for a writ of certiorari in the Circuit Court of
Kanawha County challenging the Board of Review’s dismissal of her contest of the denial of
continued physical therapy sessions from November 19, 2010, to December 31, 2010. WVDHHR
filed a response on May 2, 2011, and transmitted the administrative record to the circuit court on
October 12, 2011. Thereafter, the case laid largely dormant until the entry of the circuit court’s
dismissal order on November 5, 2014.3 In its dismissal order, the circuit court noted that by the
time that petitioner had filed her petition in April of 2011, the service year for which petitioner was
contesting the denial of benefits “had already ended.” Accordingly, the circuit court determined
that “[t]he issued raised by [p]etitioner . . . is moot and there is no issue to be decided by the
Court.”

       Petitioner now appeals the circuit court’s November 5, 2014, order dismissing her
challenge to the denial of benefits as moot. “This Court applies an abuse of discretion standard in
reviewing a circuit court’s certiorari judgment.” Syl. Pt. 1, Bills v. Hardy, 228 W.Va. 341, 342, 719
S.E.2d 811, 812 (2011) (internal quotations and citations omitted).4

       On appeal, petitioner first asserts that her contest of the denial of continued physical
therapy sessions from November 19, 2010, to December 31, 2010, is not moot. “‘Moot questions
       2
        Petitioner did not appear at the January 26, 2011, hearing because her request to submit
her argument in writing was granted. Petitioner was afforded the opportunity to participate in the
hearing by telephone, but declined to do so.
       3
        Petitioner filed a “motion to place case on court calendar” on January 25, 2012, that was
not acted upon by the circuit court.
       4
         WVDHHR decisions regarding Medicaid benefits are not subject to a court’s review
under the Administrative Procedures Act (“APA”) because such determinations involve receipt of
public assistance. Bills, 228 W.Va. at 345 n. 17, 719 S.E.2d at 815 n. 17. “A writ of certiorari in the
Circuit Court of Kanawha County is the proper means for obtaining judicial review of a decision
made by a state agency not covered by the [APA].” Syl. Pt. 3, Id. at 342, 719 S.E.2d at 812
(internal quotations and citations omitted).

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or abstract propositions, the decision of which would avail nothing in the determination of
controverted rights of persons or of property, are not properly cognizable by a court.’ Syl. pt. 1,
State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908).” Syl. Pt. 1, State ex rel. McCabe v.
Seifert, 220 W.Va. 79, 80, 640 S.E.2d 142, 143 (2006). We agree with the analysis of both the
circuit court and the Board of Review that when the 2010 service year—for which petitioner was
contesting the denial of benefits—ended, there was no longer a live issue between the parties
because the beginning of the new 2011 service year renewed petitioner’s eligibility for twenty
physical therapy sessions without prior authorization. Thus, we conclude that petitioner’s contest
of the denial of additional therapy sessions for 2010 has been rendered moot.

        Second, petitioner asserts that if the case is now moot, this Court should nevertheless
address the denial of benefits pursuant to the principles set forth in Syllabus Point 1 of Israel v.
Secondary Schools Activities Commission, 182 W.Va. 454, 455, 388 S.E.2d 480, 481 (1989). But,
rather than arguing those factors are present in this case, 5 petitioner instead expresses her
frustration with various WVDHHR actions that petitioner alleges have hindered her timely receipt
of benefits over a eighteen year timespan (1997 through 2015). WVDHHR counters that petitioner
raises issues totally irrelevant to the matter at hand, which is whether the circuit court abused its
discretion in dismissing petitioner’s certiorari petition as moot. We agree with WVDHHR that
while petitioner invokes the principles of Israel, she does not explain how those factors apply in
the instant case to indicate that we should address a moot issue. See United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argument,’ really nothing more than an assertion, does
not preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.”); accord
State v. Honaker, 193 W.Va. 51, 56 n. 4, 454 S.E.2d 96, 101 n. 4 (1994). Therefore, we conclude
that the circuit court did not abuse its discretion in dismissing petitioner’s challenge to the denial of
benefits as moot.

       For the foregoing reasons, we affirm the circuit court’s November 5, 2014, order
dismissing as moot petitioner’s petition for a writ of certiorari challenging the denial of benefits.


        5
            In Syllabus Point 1 of Israel, we held, as follows:

                          Three factors to be considered in deciding whether to
                  address technically moot issues are as follows: first, the court will
                  determine whether sufficient collateral consequences will result
                  from determination of the questions presented so as to justify relief;
                  second, while technically moot in the immediate context, questions
                  of great public interest may nevertheless be addressed for the future
                  guidance of the bar and of the public; and third, issues which may be
                  repeatedly presented to the trial court, yet escape review at the
                  appellate level because of their fleeting and determinate nature, may
                  appropriately be decided.

182 W.Va. at 455, 388 S.E.2d at 481.

                                                    3

                                         Affirmed.


ISSUED: December 7, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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