Opinion
No. CV02 051 62 85 S
November 7, 2003
MEMORANDUM OF DECISION
This action is an administrative appeal which the plaintiff claims to bring pursuant to the provisions of the Uniform Administrative Procedures Act, General Statutes § 4-166 et seq. ("UAPA"). The petition, dated May 21, 2002, was returned to the Superior Court for the Judicial District of Ansonia-Milford. Subsequently the action transferred to the Judicial District of New Britain and thereafter it was assigned to this judge for determination.
In her complaint, the plaintiff states that she is an adult mentally retarded resident of this state who is eligible for the programs and services of the defendant, Department of Mental Retardation (the "Department"). The plaintiff further alleges that in September 2001 she lost her primary care giver when her husband was placed in a nursing home with a terminal illness. At that time she applied to the Department for immediate group home placement. The case manager assigned to the plaintiff's case and the Family Support Group both recommended that the plaintiff be approved for an emergency priority status. However, the Placement Authorization Committee, while approving the plaintiff for group home placement, assigned her a lower, priority one, status level. The plaintiff alleges that as a result of her assignment to a lower status level she has not yet been placed in a group home, and claims that, as long as she remains in such status, such placement is unlikely.
Criteria for priority levels are established by protocols adopted by the Department on a regional basis. The emergency priority level requires any one of a number of circumstances including "loss of primary caregiver." The plaintiff claims that she was placed priority level one in violation of the Department's own protocols and regulations.
In December 2001, the plaintiff appealed her priority status to the Regional Commissioner. By decision dated January 24, 2002, the Regional Commissioner upheld the determination of priority one, rather than emergency status. On February 13, 2002, the decision of the Regional Commission was appealed to the defendant, Peter O'Meara, as Commissioner of Mental Retardation. On April 12, 2002 in a letter to the plaintiff, the Commissioner's designee, Rita Kelly, denied the appeal citing "budgetary constraints." On April 17, 2000, Rita Kelly sent the plaintiff an amended letter deleting any reference to "budgetary constraints," but nevertheless denying the appeal.
On July 2, 2002, the defendants moved to dismiss the complaint claiming that the court lacked subject matter jurisdiction. The defendants asserted that there is no statute requiring the defendants to afford plaintiff a hearing before making the decision from which the plaintiff has purportedly appealed. In the absence of such a statute, the defendants claimed the matter was not a "contested case" under UAPA and that the court therefore lacked subject matter jurisdiction. After briefing and oral argument by counsel, on October 28, 2002 the court (Levine, J.) denied the motion without articulating the basis of that denial.
On November 26, 2002 the defendants filed an answer admitting that the plaintiff was mentally retarded and qualified for services from the defendant Department. The answer admitted generally the actions of the defendants with respect to the application of the plaintiff, but denied any violation of plaintiff's rights.
The defendants have not transmitted a record to the court as required by General Statutes § 4-183(g). Instead the defendants have filed an affidavit signed by the Assistant Director of Government and Legal Affairs of the Department in which it is stated that "no statute or regulation . . . requires the Department of Mental Retardation to provide a hearing prior to or after making a determination of what level of need is assigned to those mentally retarded persons who have applied for residential placement." The affidavit further states that no hearing was conducted and that there are no findings of fact, conclusions of law, transcript or record concerning the plaintiff's request for a change in her priority level.
The parties have filed briefs supporting and opposing the appeal. The plaintiff claims that, in the absence of a record, the court should treat her submissions to the Department and the Department's responses, annexed as an appendix to her memorandum in support of her appeal, as the record and perform the judicial review contemplated by General Statutes § 4-183. The defendants' brief repeats their assertion that the court lacks subject matter jurisdiction. A hearing on the appeal was held on October 28, 2003.
In large measure, the success of this appeal depends upon plaintiff's ability to demonstrate her right to maintain this action. Plaintiff claims that Judge Levine's decision to deny the defendant's motion to dismiss establishes that the court has subject matter jurisdiction over this appeal. Subject matter jurisdiction may be raised at any time and a trial court may reverse a prior determination finding jurisdiction if it is found to be incorrect. Lewis v. Gaming Policy Board, 224 Conn. 693, 620 A.2d 780 (1993). It is therefore appropriate for this court to consider defendants' claim that the court lacks subject matter jurisdiction.
Plaintiff claims that jurisdiction is based upon General Statutes § 17a-210(d) which provides:
The parent, guardian, conservator or other legal representative of a person, or the person himself or herself, may request a hearing for any final determination by the department which denies such person eligibility for programs and services of the department. A request for a hearing shall be made in writing to the commissioner. Such hearing shall be conducted in accordance with the provisions of chapter 54.
The plaintiff reasons that the defendants' action in classifying her as priority one rather than emergency priority was a denial of eligibility for a program entitling her to an hearing as a "contested case" as that term is defined in General Statutes § 4-166(2). She points to § 17a-230-7 of the regulations adopted by the Department governing determinations of levels of care required for DMR clients and the creation of regional priority lists. The defendant claims that subsection (g) of those regulations establishes her the right to a hearing under the provisions of UAPA. That section provides: "Appeals under Section 7 shall be processed according to Section 14 — Hearings and Reviews." Section 14(c)(4) of the regulations provides for a hearing in accordance with the provisions of UAPA.
The defendants assert that the regulations cited are inapplicable. They point out that § 17a-230-7 of the regulations were adopted pursuant to the provisions of General Statutes § 17a-230(a) and claim that the scope of that statute does not include the plaintiff or her situation. That statute directs the Commissioner of Mental Retardation to adopt regulations to implement the provisions of General Statute § 17a-229 and § 17a-228(a). Neither of these statutory provisions apply to the plaintiff and her application. General Statutes § 17a-229 allows the Commissioner the discretion to advance operating costs to licensed facilities prior to the initial admission of residents. It is manifestly inapplicable to the petitioner. The scope of Genera! Statutes § 17a-228(a) is limited to persons "with mental retardation residing in a residential facility for the mentally retarded licensed under section 17a-227, but not certified to participate in the Title XIX Medicaid program as an intermediate care facility for the mentally retarded . . ." As the plaintiff does not claim that she is residing in such a facility, her reliance upon the regulations adopted with respect to that statute is misplaced.
The plaintiff also asserts that General Statutes § 17a-210(d) and the regulations adopted pursuant thereto also provide an independent basis for jurisdiction. She argues that the defendants' action in assigning her priority one rather than emergency priority constitutes a "final determination by the department which denies such person eligibility for programs and services of the department" under the statute. The defendants respond that a determination was made pursuant to § 17a-212-2(b) of the regulations that the plaintiff was "eligible for the services of the department" as she was found to be "a resident of the State of Connecticut" and "has mental retardation."
The defendants point to Foti v. Richardson, 30 Conn. App. 463, 620 A.2d 840 (1993), as an example of a determination of eligibility properly appealed to the Superior Court under UAPA. In that case, the petitioner, an autistic person, unsuccessfully sought the services of the Department of Mental Retardation. His appeal from a denial of services was dismissed by the Superior Court. The judgment of the Superior Court was affirmed by the Appellate Court. The issue was limited to the petitioner's eligibility of programs and services and did not include any discussion of particular programs or services. Plaintiff has been unable to bring to the court's attention any cases in which the Superior Court has entertained an appeal from a determination by the defendants with respect to the programs and services denied to any person found eligible to be a client of the Department.
It is clear that the defendants made an administrative determination as to the plaintiff's priority level for group home placement. However, it does not necessarily follow that plaintiff is entitled to a judicial review of that determination. In Morel v. Commissioner of Public Health, 262 Conn. 222, 811 A.2d 1256 (2002), the Supreme Court reversed a Superior Court which had sustained the administrative appeal of a vendor who was disqualified by the commissioner from participating in a federally funded nutritional program for a period of three years. The court concluded that the Superior Court lacked subject matter jurisdiction because there was no statutory provision requiring the Commissioner to hold a hearing.
"By now it is well established that one requirement for a final decision in a contested case upon which the jurisdiction of the trial court rests in a UAPA appeal, is that any hearing be required by statute, not merely by agency rule, regulation or policy." Id., 234.
The plaintiff has failed to show that the decision she purports to appeal from was required by statute. It follows that this court lacks subject matter jurisdiction. Accordingly, the appeal is dismissed.
DAVID R. TOBIN, JUDGE