Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-311

                                        MARCH TERM, 2011

 In re Edmund Bills                                    }    APPEALED FROM:
                                                       }
                                                       }
                                                       }    Human Services Board
                                                       }
                                                       }
                                                       }    FAIR HEARING NO. T-04/09-209


                          In the above-entitled cause, the Clerk will enter:

        Petitioner Edmund Bills appeals the Human Services Board’s denial of his application for
the Choices for Care (CFC) Program. Following a hearing, the Board concluded that petitioner
does not meet the clinical eligibility criteria for either the highest needs or the high needs group.
Petitioner argues that the Board: (1) ignored credible evidence and made findings unsupported
by the evidence, (2) incorrectly applied the eligibility criteria, and (3) impermissibly considered
whether petitioner required care in a nursing home. We reverse and remand.

        Petitioner is seventy-nine and is diagnosed with schizophrenia and chronic kidney
disease. He was hospitalized in December 2008 with acute urinary blockage and kidney failure.
Upon discharge, he was admitted to the Vermont Veterans Home’s skilled nursing unit for
rehabilitative care. He applied for CFC to help pay for his care. CFC is a state-administered
Medicaid waiver program that “provides long-term care services to elderly or physically disabled
Vermont adults.” Choices for Care; 1115 Long-Term Care Medicaid Waiver Regulations § I(A),
4 Code of Vt. Rules 13 110 008-1, available at http://www.michie.com/vermont [hereinafter
CFC Regulations]. The goal of the program is to give individuals “equal access to either nursing
facility care or home and community-based services, consistent with their choice.” Id. To
qualify for the program, an individual must meet clinical eligibility requirements, which are
administered by the Department of Disabilities, Aging and Independent Living (DAIL).

        DAIL regulations set forth several ways to qualify for benefits. Petitioner claims he
meets the criteria for the highest needs group in two ways. First, petitioner argues that he
requires “extensive or total assistance with at least one of the following Activities of Daily
Living (ADLs): toilet use; eating; bed mobility; or transfer, and require[s] at least limited
assistance with any other ADL.” CFC Regulations § IV(B)(1)(b)(i), at 13 110 008-3. Petitioner
asserts that the evidence demonstrates that he needs extensive assistance with toileting and at
least limited assistance with bathing. Second, petitioner argues that he has “a moderate
impairment with decision-making skills” and a behavioral symptom—wandering—that is
frequent and not easily altered. Id. § IV(B)(1)(b)(ii), at 13 110 008-3. In the alternative,
petitioner argues that he meets the high needs eligibility group criteria because he requires
extensive assistance on a daily basis with bathing. Id. § IV(B)(2)(b)(i), at 13 110 008-4.
        On February 4, 2009, DAIL’s Long Term Care Clinical Coordinator (LTCCC) completed
a clinical assessment of petitioner and determined that he required limited assistance with
toileting and extensive assistance with bathing. The LTCCC also determined that petitioner
wanders on a daily basis, but could be redirected. Based on this assessment, the Department
denied his application.

        Petitioner appealed to the Human Services Board. Petitioner’s case was heard before a
hearing officer. At the hearing, petitioner presented testimony from his primary care physician,
and two nurses who work at the Veteran’s Home. One nurse is the coordinator of the Minimum
Data Set (MDS) program, which the Veteran’s Home uses to assess the needs of patients for
purposes unrelated to this appeal. The MDS nurse coordinator testified that the MDS assessment
revealed that petitioner requires extensive assistance with toileting and at least limited assistance
with bathing. Following the testimony of petitioner’s physician and the MDS nurse coordinator,
petitioner called one of his treating nurses. Apparently, at this point the hearing officer sought to
terminate the hearing, petitioner objected, and there was an off-the-record discussion. Petitioner
represents on appeal that during this discussion the hearing officer directed DAIL to submit its
case through exhibits and affidavits. The transcript indicates only that after the discussion the
hearing officer explained he was “ready to find the facts as to the petitioner’s condition and
needs as had been testified to by the prior two witnesses,” but nonetheless allowed petitioner to
proceed with his remaining witness. While petitioner complains that the hearing officer
“prematurely terminated the hearing,” given that the witness was permitted to testify, we
consider this testimony as admitted and part of the record on appeal.

         The hearing officer determined that petitioner’s main physical problems are his needs for
urinary catheterization and monitoring for risk of renal infection. The hearing officer found that
petitioner needs daily assistance in switching his catheter bag to his other leg, and in regular
monitoring of his urine flow. The hearing officer noted that “petitioner’s mental illness makes
him incapable of monitoring and reporting his physical condition and . . . resistant to people
touching him.” He found, however, that petitioner does not require daily skilled nursing care,
and instead his daily needs were mostly for monitoring and cueing that “could be performed by a
trained caregiver outside of a skilled nursing facility, with medical overview.” In addition, the
hearing officer found that petitioner’s behavioral issues, such as wandering, were easily handled
through redirection. The hearing officer concluded that petitioner did not meet the eligibility
requirements for CFC because he did not require extensive to total assistance on a daily basis for
at least one activity of daily living. According to the hearing officer, “the need for cueing, verbal
assistance, and verbal behavioral redirection, even if required on a daily basis” did not meet the
regulatory definition. Therefore, the hearing officer recommended denial of petitioner’s request.
Petitioner filed objections with the Human Services Board. The Board heard oral argument, but
ultimately adopted the hearing officer’s recommendation.

        On appeal, petitioner first argues that the evidence does not support the Board’s denial of
his application. “This Court will set aside the clearly erroneous findings of an administrative
board, but where the record contains any credible evidence to fairly and reasonably support the
findings, the board’s decision will stand.” Hall v. Dep’t of Soc. Welfare, 153 Vt. 479, 486-87
(1990). With limited exception, the rules of evidence apply to hearings before the Board. See
Fair Hearing Rules, § 1000.3(O)(5), 4 Code of Vt. Rules 13 020 002-2 to -3, available at
http://www.michie.com/vermont. Evidence must, however, be admitted at the hearing before it
can be relied upon. 3 V.S.A. § 809(g); see In re Twenty-Four Vt. Utils., 159 Vt. 339, 349-50
(1992) (explaining that although rules of evidence are relaxed, administrative board’s decision
must rely on evidence actually admitted).
                                                 2
        Our review of the Board’s decision in this case is complicated by the difficulty of
determining what evidence was actually admitted before the hearing officer. The transcript of
the hearing indicates that petitioner’s two physician reports (petitioner’s exhibits thirteen and
nineteen) were admitted following the testimony of petitioner’s physician. While other
documents were discussed at the hearing, no other exhibits were admitted at the hearing through
petitioner’s witnesses. DAIL did not present any witnesses. The parties filed memoranda
following the hearing. Petitioner’s filing indicates that DAIL entered two exhibits: the Choices
for Care Clinical Assessment and the MDS assessment. DAIL’s memorandum indicates that at
the close of the hearing, the hearing officer agreed to allow DAIL to supplement the record with
a memo with affidavits and/or exhibits. While this may be, no affidavit is attached to DAIL’s
filing, nor is there a list of the exhibits that DAIL requested to admit. To further complicate
matters, the record received from the Human Services Board indicates that DAIL admitted four
exhibits at the hearing, including the LTCCC’s evaluation and the MDS evaluation. This
difficulty is not resolved by the hearing officer’s decision, which does not explain what exhibits
were admitted, either by stipulation or otherwise, and notes simply that the findings “are based
on testimony and documents submitted at a hearing in this matter held on January 19, 2010.”
Given this lack of clarity, we limit our review of the Board’s findings to the testimony of
petitioner’s three witnesses and petitioner’s two exhibits that were actually admitted at the
hearing.

        We turn, then, to petitioner’s first argument that the Board’s finding that he does not meet
the highest needs eligibility group because he does not need extensive assistance with toileting is
not supported by the evidence. Petitioner asserts that the testimony of his witnesses to the
contrary is unchallenged. His primary care physician testified that although petitioner does not
need weight-bearing assistance for toileting, he is unable to manage his catheter by himself
because he cannot identify complications, such as possible infections or insufficient urine flow.
In addition, a nurse at the Veteran’s Home testified that petitioner needs extensive assistance
with the management of his catheter, including checking whether: it is working; the urine is free
of blood; it is correctly positioned and the input matches the output. Similarly, one of
petitioner’s treating nurses testified that petitioner is unable to evaluate whether something is
wrong with his urine.

        As noted, DAIL did not call any witnesses at the hearing. On cross-examination,
petitioner’s nurse concurred that the monitoring and assistance petitioner required for care of his
catheter did not require/ skilled nursing care, but could be performed by a nursing assistant. She
also testified that petitioner can independently ambulate to the toilet, clean himself, and adjust
his clothing. The Board found that petitioner’s daily needs did not qualify as extensive
assistance because, while he needs help monitoring his catheter and assistance switching the
catheter bag each day, he is otherwise physically able to empty his catheter with some verbal
cueing. The Board’s findings do not explain why the monitoring function and daily physical
assistance of moving petitioner’s catheter bag from one leg to the other does not qualify as
extensive assistance. On appeal, DAIL argues that it was within the Board’s discretion to
conclude that this level of needed care is insufficient to be “extensive” assistance, citing the
definition for extensive assistance provided on the LTCCC form. Because this form is not part
of the record on appeal and DAIL presented no witness to explain the definition, we decline to
rely on it. Without more detailed findings from the Board on what evidence was used to reach
its decision and the basis for denying petitioner eligibility, we are unable to affirm the Board’s
findings. Therefore this question is remanded to the Board for further findings. See Sec’y,
Agency of Natural Res. v. Irish, 169 Vt. 407, 415-16 (1999) (remanding where court’s findings
were incomplete).
                                                 3
        Petitioner also argues that the evidence does not support the Board’s finding that he does
not meet the highest needs eligibility because of his impaired decisionmaking and behavioral
symptoms. In support, petitioner’s doctor testified that the impairment of his decisionmaking
was moderate and that he was paranoid and wandered. The Board found that “petitioner’s
mental illness makes him incapable of monitoring and reporting his physical condition, and
makes him dismorphic [sic] and resistant to people touching him,” but concluded that his
resulting behaviors were easily altered. This finding is supported by the testimony of petitioner’s
nurses that his wandering could be verbally redirected. Therefore there is evidence to support
the Board’s finding that although petitioner’s decisionmaking is impaired and he wanders, this
specific behavior can be easily altered. Denial of eligibility on this basis is affirmed.

        Next, we address petitioner’s argument that he meets the eligibility criteria for the high
needs group, which requires that an individual need “extensive to total assistance on a daily basis
with at least one [activity of daily living, including bathing].” CFC Regulations § IV(B)(2)(b)(i).
The Board did not address petitioner’s bathing requirements in its decision, except to note that he
can wash himself, but needs daily reminding to ensure proper hygiene. On appeal, DAIL argues
that petitioner does not meet the criteria because he does not require bathing every day and
therefore the assistance is not required on a daily basis. Because this argument was not
evaluated by the Board and the factual issue remains unresolved, we reverse and remand for
consideration of whether petitioner meets the criteria for the high needs group. See In re M.G.,
2010 VT 101, ¶ 15, ___ Vt. ___ (reversing and remanding for additional proceedings where
board failed to make necessary findings to support its conclusion).

        Finally, petitioner argues that the Board erred as a matter of law by impermissibly
considering whether petitioner could receive his care outside of a nursing home. Petitioner
construes the Board’s observation that “petitioner’s medical and functional needs can be met, at
least hypothetically, in a setting other than a nursing home,” as demonstrating that the Board
denied his application simply because it thought he should not be in a nursing home instead of
based on an evaluation of the criteria in the regulations. Because we remand for further
consideration of petitioner’s eligibility for the highest and high needs group, any error in
considering alternative placement for petitioner was harmless.

       Reversed and remanded.

                                             BY THE COURT:


                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice




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