COURT OF APPEALS DECISION DATED AND RELEASED November 14, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2869
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
CALLI A. MARTZ,
Petitioner-Appellant,
v.
STATE OF WISCONSIN
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES,
BUREAU OF HEALTH CARE
FINANCING,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Adams County:
DUANE H. POLIVKA, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Robert D. Sundby, Reserve Judge.
PER
CURIAM. Calli Martz appeals from a judgment affirming a
decision of the Department of Health and Social Services. After prevailing in a dispute with the
Bureau of Health Care Financing, Martz moved for costs and attorney's fees
under § 227.485, Stats. DHSS denied her motion on grounds that the
Bureau took a substantially justified position in the dispute. The trial court affirmed that ruling, and so
do we.
Martz suffers from a
disease that prevents her from metabolizing protein. The medically necessary treatment for her condition includes a
diet based on food products comprised of basic food that is extensively
processed to remove protein.
Martz receives Medical
Assistance (MA), but the Bureau refused to pay for the food products she
consumes in her treatment. The Bureau
contended that MA does not cover food.
Martz contended, and DHSS agreed in its decision on the dispute, that
the products were instead food replacement products that are covered by
MA. See Wis. Adm. Code § HSS 107.10(2)(c). DHSS concluded that the prohibition on MA
coverage for food "does not extend to extreme medical conditions which
require diets based on special types of food items that can normally only be
conveniently obtained through pharmacies at prices approaching, or exceeding,
those paid for prescription medications."
However, DHSS also found that the Bureau's position had a reasonable
basis in law and fact "because federal law does not include food in MA
covered services, and the items of question do carry strong resemblance to
food." The latter ruling is the
subject of this appeal.
One who prevails over a
state agency in a contested administrative proceeding may recover costs
incurred in the proceeding if the agency takes a position that is not
substantially justified. Section
227.485(3), Stats. Substantially justified means "having a
reasonable basis in law and fact."
Section 227.485(2)(f). The
agency bears the burden of showing its position is substantially justified. Sheely v. DHSS, 150 Wis.2d 320,
337, 442 N.W.2d 1, 9 (1989). When an
agency uses its expertise in deciding the issue, we will defer to the agency's
conclusions if they are reasonable, even if we disagree with them. Id. at 338, 442 N.W.2d at
9-10.
DHSS reasonably
concluded that the Bureau's position was substantially justified. The Bureau relied on the undisputed legal
premise that MA does not pay for food.
Factually, it contended that expensive, highly processed and medically
necessary food products are, nevertheless, still food. DHSS concluded, to the contrary, that
through processing they instead became food "replacements." The issue is not easily resolved by reference
to the applicable state and federal statutes and regulations. In its decision, DHSS plainly struggled in
its attempt to distinguish between food and food replacements, ultimately
resorting to statutory and regulatory intent.
Under those circumstances, the Bureau could, with substantial justification,
argue for one of two reasonable interpretations of highly ambiguous laws.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.