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Natalie D. v. State Department of Health Care Services

California Court of Appeals, Fourth District, Third Division

July 18, 2013

NATALIE D., a Minor, etc., Plaintiff and Appellant,
v.
STATE DEPARTMENT OF HEALTH CARE SERVICES et al., Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County No. 30-2011-00461082, David T. McEachen, Judge.

Pamela Patterson for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Jennifer M. Kim and Carmen D. Snuggs, Deputy Attorneys General Defendants and Repondents

OPINION

MOORE, ACTING P. J.

Appellant Natalie D., was born with cerebral palsy and arthrogryposis, a severe congenital orthopedic disorder involving a general stiffness of joints. Since birth, she has been eligible to receive state-funded therapy through California Children’s Services (CCS). Natalie’s mother (Mother) paid for Natalie to receive physical therapy, including hippotherapy, from private companies. She then applied to CCS to pay for the therapy Natalie was receiving from private companies. CCS refused, but offered to provide Natalie two 30-minute physical therapy sessions a week for six months. An administrative law judge upheld CCS’s decision. Mother, as Natalie’s guardian ad litem, filed a petition for a writ of administrative mandate in the superior court, naming CCS and the Department of Health Care Services (DHCS) as respondents. The superior court denied the petition. We affirm and conclude hippothereapy is not covered by CCS. Hippotherapy is not a medically necessary treatment as the benefit provided by hippotherapy can be obtained from other treatments received in a gym. We also conclude the services provided by the private companies selected by Mother do not meet the criteria for vendor services and that required services can be provided by CCS.

I

FACTS

We set forth the facts in accordance with the limited scope of review we are charged with performing. Natalie was born in 1998 with cerebral palsy and arthrogryposis, a severe orthopedic condition. Arthrogryposis is a congenital disorder affecting the joints, making them stiff. When Natalie was three weeks old, she started physical therapy with Yvette Gilmour of SKY Pediatric Therapy (SKY). Natalie received physical therapy at SKY twice a week until she was about three years old. At that point, in 2001, Mother arranged for therapy through CCS and entered Natalie into the local school district program, due to limited financial resources.

Natalie was treated conservatively while at CCS because she had a number of events that made her “immediately fragile.” In November 2003, Natalie received a gastronomy tube. While being treated during 2003, Natalie was hospitalized in June, August, and October for gastrointestinal issues. She also had severe esophagitis, secondary to a hiatal hernia, in October. That condition caused Natalie to vomit blood. This concerned the therapists and they acted with limited aggressiveness in performing therapy with Natalie. Natalie’s hemoglobin counts were “quite low” between December 2005 and February 2006. She had nine blood transfusions during that period and was “not very responsive.” She became irritable and grimaced when moved a lot. CCS staff were concerned about placing Natalie upright with her hemoglobin issues. They were also concerned about the possibility of therapy causing bone fractures.

Natalie had other procedures performed in August 2006 and April 2007. She had pneumonia in April 2007, and had additional gastrointestinal issues. She missed “a lot” of school and her teacher modified her activities. Additionally, she had another procedure in June 2009. Therapy had been provided by CCS at the medical therapy unit (MTU) located at Natalie’s school. Mother testified that CCS stopped providing regular therapy in 2004 or 2005, and put Natalie on a consult basis, based on its policy of discontinuing therapy when a child fails to make progress.

In July 2009, Mother took Natalie to the J.F. Shea Therapeutic Riding Center (Shea) in San Juan Capistrano. Shea is not a Medi-Cal provider and does not bill Medi-Cal or any insurance companies; it bills the client. Shea provides physical and occupational therapy in an equestrian setting. Hippotherapy is a form of physical therapy; the therapist uses the movement of the horse to provide sensory input and as a tool. The horse’s movement helps the client with balance and gait, but Natalie does not work on balance or gait because she is not mobile. In Natalie’s case, it appears the therapy was apparently used, in part, to help with her head control. A therapist from Shea testified that the issue of head control could be addressed in many other, non-hippotherapy settings. It could done on an exercise ball or while sitting on mats.

Mother took Natalie back to SKY in September 2009. Gilmour worked with Natalie years before and noted there had been a decline in her hip and knee flexion and in her spinal mobility since Gilmour had last seen here. Gilmour said Natalie was no longer able to hold her head in position as she could before, and was “very rigid and very stiff.” Since 2009, Natalie has made progress with her hip range of motion, hip and knee flexion and in her head control in a sitting position. She is starting to use her arms while in a seated position.

Mother introduced a video at the administrative hearing showing Natalie during a therapy session at SKY. At one point it showed Natalie on a piece of equipment that appeared to emulate the movement of a horse. Gilmour said the techniques she uses are not novel and the range of motion activities are pretty standard for physical therapists.

Norma Macias, a licensed vocational nurse, has been caring for Natalie since May 2007. When she first started caring for Natalie, Natalie could not sit up and had to be placed in a recliner “in a laying position to keep her head centered and to keep her as comfortable as possible.” She could not be placed in a seated position. As of June 2010, it was ...


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