MARY BELL; THOMAS E. BELL, AS NEXT OF FRIEND; AND HON. RICHARD DAWAHARE, APPELLANTS
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, DEPARTMENT FOR COMMUNITY BASED SERVICES, APPELLEE
Released for Publication March 13, 2014.
[Copyrighted Material Omitted]
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2011-CA-001482-MR. FRANKLIN CIRCUIT COURT NO. 10-CI-00268.
COUNSEL FOR APPELLANTS: Richard Frank Dawahare, Lexington, Kentucky.
COUNSEL FOR APPELLEE: Timothy J. Salansky, Cabinet for Health and Family Services, Office of Legal Services, Frankfort, Kentucky.
This case presents two questions. First, may a trial court order the payment of attorney's fees solely for egregious conduct without statutory authorization or a contract providing for such fees? Second, may a trial court order the disclosure of records of all persons participating in a federally funded community-based services program operated by the Cabinet for Health and Family Services after having decided the claim of one person without the other persons having filed claims and no class action being certified? The answer to both questions is no.
Appellant Mary Bell is a disabled person who drew SSI (Social Security Insurance) benefits, was qualified for Medicaid, and participated in a community-based program developed and run by the Cabinet for Health and Family Services known as the Home and Community Based Waiver Program (HCBW). This program is under the direct supervision of the Department of Community Based Services (DCBS), and provides services to the elderly or disabled to help them remain at home. In particular, Mary attended Redwood School and Rehab Center.
The Cabinet uses a formula to determine the cost to a participant based on her income, and there may be a co-payment to participate if the participant's income exceeds their Personal Needs Allowance (Allowance) as set by the agency. If a person's sole income is SSI, then the formula determines that the participant's Allowance is equal to the amount of SSI received, and there is zero cost to the participant for program services. If a participant has other income, the Allowance serves as a base number, and the participant is charged a co-payment commensurate with his or her excess income. Programs such as the center Mary attended have obvious costs, and state dollars for programs are limited. Thus when a participant can, she is asked to bear part of the cost for her program.
As a dependent of her father, Thomas Bell, Mary became eligible for Old Age, Survivor and Disability Insurance, known as RSDI benefits, when he retired and began to draw his Social Security benefits. This amount was larger than the amount she received from SSI. In accordance with its policy, DCBS calculated the difference between Mary's Allowance as a program participant and her new benefit amount, and determined that Mary would owe
$60.00 per month as her co-pay for continued program participation.
Her father, as her legal custodian, filed an administrative appeal on Mary's behalf, claiming that under a federal act known as the Pickle Amendment to the Social Security Act, persons in Mary's position were entitled to have their new income amount adjusted according to a federal table. He claimed that under that table, Mary's income adjustment kept her below her Allowance amount, so that she would have maintained a net zero cost for program participation. The hearing officer denied this claim, finding that the Pickle Amendment only applied to the Pass-Through program which paid for institutionalized treatment in a nursing home, that Mary was not in such treatment, and thus that the Cabinet could continue to assess the co-pay.
Mr. Bell appealed to the Franklin Circuit Court. In addition to seeking review of the administrative decision, he requested all other relief to which he might be entitled. As the case progressed, he claimed he was also entitled to attorney's fees and to disclosure of the records ...