John Everett Roush
Erwin L. Conrad
WV School Services Personnel Assoc. Conrad & Conrad
Charleston, West Virginia Fayetteville, West Virginia
Attorney for the Appellant Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE McGRAW dissents and reserves the right to file a dissenting opinion.
2. County boards of education have substantial discretion in matters relating
to the hiring, assignment, transfer, and promotion of school personnel. Nevertheless, this
discretion must be exercised reasonably, in the best interests of the schools, and in a manner
which is not arbitrary and capricious. Syl. Pt. 3, Dillon v. Board of Educ., 177 W.Va. 145,
351 S.E.2d 58 (1986).
Mitzi Akers appeals from the May 1, 2002, decision of the Circuit Court of
Kanawha County affirming the administrative denial of the grievance she filed with the
West Virginia Education and State Employees Grievance Board following her failure to be
awarded one of four summer Medicaid Billing Reviewer positions. While the position
was posted for special education teachers and Appellant is employed as a Secretary
III/Accountant II, she argues that the position should have been posted as a service
personnel position rather than as a professional position. Upon our full review of the record
in this matter along with the arguments of counsel, we find no error and, accordingly, affirm.
Appellant filed a grievance on or about June 6, 2001, pursuant to the
provisions of West Virginia Code § 18-29-4 (1995) (Repl. Vol. 2003), through which she
challenged the Board's decision that she was not qualified for the Medicaid Billing
Reviewer position. By decision dated June 16, 2001, the grievance was denied at Level I.
Following a Level II hearing on June 27, 2001, Appellant's grievance was again denied.
Appellant opted to bypass the Level III stage of the grievance process, and proceeded to
Level IV of the grievance procedures. An evidentiary hearing was held on September 7,
2001, for the purpose of supplementing the record established at the lower levels. By
decision dated December 5, 2001, the administrative law judge (ALJ) denied Appellant's
grievance. Following an appeal to the circuit court, Appellant was again denied relief when
the circuit court affirmed the ALJ through its order entered on May 1, 2002. Through her
appeal to this Court, Appellant seeks a reversal of the lower court's ruling that the position
of Medicaid Billing Reviewer was properly designated by the Board as professional in
As support for her position that the posted opening was actually a service and
not a professional position,
(See footnote 3)
Appellant looks to the definitions provided by statute for
distinguishing between professional and service school personnel. Under West Virginia
Code § 18A-1-1 (2000) (Repl. Vol. 2001), the following definitions pertaining to school
personnel are set forth:
(b) Professional personnel means persons who meet the certification and/or licensing requirements of the state, and includes the professional educator and other professional employees.
(c) Professional educator is synonymous with and has the same meaning as teacher. . . .
(d) Other professional employee means that person from another profession who is properly licensed and is employed to serve the public schools and includes a registered professional nurse. . . .
(e) Service personnel means those who serve the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch and as aides.
Determining in conclusory fashion that the position of Medicaid Billing Reviewer did not fit into any of the professional personnel definitions, Appellant then looked to the statutory descriptions for the service personnel titles of Secretary II and Accountant II. See W. Va. Code § 18A-4-8(i)(5), (76) (Supp. 2002). Since the secretarial position is defined to include the duties of performing general clerical tasks, . . . preparing reports,. . . operating office machines, keeping records and handling routine correspondence, and the accountant position requires the maintenance of records and responsibility for the accounting process associated with billings, Appellant concludes that the position of Medicaid Billing Reviewer necessarily falls into the service personnel category. Id.
In response to Appellant's argument that the Medicaid Billing Reviewer
position is definitively a service personnel title, the Board observes that the Legislature has
classified eighty-one different service personnel positions. See W. Va. Code § 18A-4-8(i)(4)
to (84). Yet, as the Board notes, nowhere within that extensive list of service personnel titles
is one which is designated as Medicaid Billing Reviewer. Given the Legislative
specification of each and every service personnel position in contrast to the more generalized
descriptions of professional personnel, the Board argues that the absence of the Medicaid
Billing Reviewer job title from the lengthy list of service titles suggests that the position at
issue does not fall within the school service personnel classification.
In resolving this issue of whether the Medicaid Billing Reviewer position falls
within the professional or the service ambit, we look to the testimony presented at the
administrative level regarding the nature of the position. Ms. Hicks explained how with the
advent of Medicaid billing for previously unreimbursed services such as initial and triennial
individualized educational programs (IEPs), IEP updates, personal care, and care
(See footnote 4)
thousands of teacher-completed forms were generated which in turn had to
be checked for accuracy, eligibility, and content to insure payment.
(See footnote 5)
If these forms were
submitted in an incomplete fashion or if they contained non-compliant information, the time
sensitive documents would be returned and the Board would then possibly forfeit its
opportunity for reimbursement of such costs.
When asked whether the position of Medicaid Billing Reviewer is a clerical
position, Ms. Hicks expounded:
Not at this time. My hope is, is that once we get this _ the new billable services up and going, that eventually it will be able _ the program, the process, will be developed, we will have simplified it, teachers will be knowledgeable to where we will not have to review for the accuracy.
Like I said, this is the first year that teachers have had to complete, in the entirety, to do everything that they've done this year. We've done extensive training.
My hope is that once we get this up and going and work all of the kinks out, that eventually this could be and could become a service personnel position. But, at this point in time, I don't think the county can stand to _ we're talking about an extensive revenue source and, if this is done incorrectly, then it's going to be kicked out and Medicaid only allows you one year. You can only go back and resubmit, and we're not the ones that submit this. This has to be submitted to RESA [regional educational service agency] who, in turn, deals with six counties; who then, in turn, has to do that. So, I do not think at this point in time it is a service personnel position.
Even Appellant herself acknowledged the need for a professional employee, somebody in the Special Ed Department, to hold at least one of the four Medicaid Billing Reviewer positions. (See footnote 6)
Appellant admitted that she had no experience in completing Medicaid billing
forms for a school system. Her only governmental billing experience was in connection with
her brief four-month period of employment by a private psychologist whose patients were
(See footnote 7)
Ms. Hicks explained how private sector billing experience would not
correlate to the school Medicaid billing experience necessary for the position at issue.
(See footnote 8)
While Appellant tried to characterize this position as one that was routinely fulfilled by
service personnel during the course of the school year, the evidence submitted below
disproves this assertion.
(See footnote 9)
On this point, the ALJ expressly found that the secretaries in the
Special Education Office do not fill out medicaid billing code information and do not review
medicaid billing forms for accuracy or return forms to teachers or other professionals when
they are inaccurate.
As to why a person applying for the Medicaid Billing Reviewer position
needed to be knowledgeable of special education due process procedures and the IEP
process in general, Ms. Hicks testified:
I'm talking about a good knowledge base, a good working knowledge of Special Education, the process, forms, law, how the process flows. You're going to have to know about eligibility, you're going to have to know about care- coordinated activities. You're going to have to know, in intimate detail, what is on that IEP, the sections, and how they relate to care-coordinated activities.
You're going to have to know if a child _ you're going to have to look at your dates to determine is this [an] annual IEP, was it held within timelines [sic], therefore, can you bill for this IEP during this timeframe [sic]; has someone else already billed for that. You're going to have to know the due process and, if there is a question, then you've got to be able to go into the file, pull the student's file, go through that due process and a make a determination. If that teacher has made an error, then you're going to have to kick that out, hold that and then go back to the teacher, at a later date, prior to submitting that.
In rejecting Appellant's arguments that the Medicaid Billing Reviewer position is clerical in nature, the ALJ determined:
While there are some clerical aspects to the duties of the Medicaid Billing Reviewer, it is clear an understanding of the laws, rules, and regulations governing special education is necessary to perform the essential assignments of the position. Additionally, detailed knowledge of the IEP process, and an awareness of the types of activities that can and cannot be covered in care coordination are essential to carrying out the tasks of the position.
Appellant suggests that had the one-day IEP training that was required of all special
education teachers been available to her,
(See footnote 10)
she would have had the knowledge necessary to
fulfill the posted job duties. We disagree. While the focus of that one-day training was
appropriate IEP development, requirements for the Continuous Improvement Process and
Medicaid billing procedures, a working knowledge of special education was required to
even be able to benefit from this highly specialized one-day update on the law type of
It is axiomatic that [c]ounty boards of education have substantial discretion in matters relating to the hiring, assignment, transfer, and promotion of school personnel. Nevertheless, this discretion must be exercised reasonably, in the best interests of the schools, and in a manner which is not arbitrary and capricious. Syl. Pt. 3, Dillon v. Board of Educ., 177 W.Va. 145, 351 S.E.2d 58 (1986). As the ALJ found below and with which the circuit court agreed, [i]t was within RCBOE's [the Board's] discretion and not arbitrary and capricious for RCBOE to identify the positions as professional. Moreover, as the circuit court observed, Appellant did not possess the requisite qualifications to assume and perform the duties required of a Medicaid Billing Reviewer. We agree. (See footnote 11)
Accordingly, the decision of the Circuit Court of Kanawha County is hereby affirmed.