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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
IN RE: BOBBY LEE B.
Appeal from the Circuit Court of Randolph
Hon. John L. Henning, Judge
Case No. 04-JD-26
Submitted: January 11, 2006
Filed: February 21, 2006
Timothy H. Prentice, Esq.
Elkins, West Virginia
Attorney for Appellee Bobby Lee B. Elkins,
Attorney for Appellee State of West
Darrell V. McGraw, Jr.
C. Carter Williams
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellant
The Opinion was delivered PER CURIAM.
BY THE COURT
1. Where the issue on appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard
of review. Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194
W.Va. 138, 459 S.E.2d 415 (1995).
2. When a statute is clear and unambiguous and the legislative intent
is plain, the statute should not be interpreted by the courts, and in such
case it is the duty of the courts not to construe but to apply the statute. Syllabus
Point 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign
Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).
State of West Virginia Department of Health and Human Services ( the DHHR),
appeals from an order entered by the Circuit Court of Randolph County requiring
the DHHR to pay Thomas R. Adamski, M.D. the sum of $1,000.00 for a four-hour sexual offender evaluation of Bobby Lee B., a juvenile delinquent. For the
reasons set forth below, we reverse the circuit court's order.
April 19, 2004, a juvenile petition was filed charging Bobby Lee B., a fourteen-year-old
child, with being a juvenile delinquent for having committed the offense of
sexual abuse in the first degree under W.Va. Code, 61-8B-7. The alleged
victim was five years old and was in the care of Bobby Lee B.'s mother's at the time of the abuse.
On May 5, 2004, the case was scheduled for
a preliminary hearing. Bobby Lee B. waived his preliminary hearing and entered
-style plea. The court accepted the plea and adjudicated
Bobby Lee B. a delinquent for sexual abuse in the first degree. (See
Upon agreement of the parties, the court ordered that
Bobby Lee B. undergo a sixty-day diagnostic evaluation at the Industrial Home
for Youth. The court further ordered that Dr. Thomas Adamski perform an
appropriate sexual offender evaluation of the juvenile and that
the Department of Health and Human [Resources] shall pay for services not covered
by insurance, at Medicaid rates.
August 2, 2004, a status/disposition hearing was conducted and the court ordered
that Bobby Lee B. be placed at Boys Village, Inc., in Wooster, Ohio.
2, 2004, the court entered an order requiring the DHHR to pay Dr. Thomas R. Adamski,
M.D. the sum of $1,000.00 for services performed in the case. (See
October 7, 2004, the DHHR filed a motion to vacate the payment order.
The DHHR in its motion prayed that the court find that payment at the Medicaid
rate would be proper. The DHHR claimed in its motion that it had paid Dr. Adamski
the sum of $214.89, which represented payment at the Medicaid rate.
November 8, 2004, the court conducted a hearing on the DHHR motion. After considering
argument of counsel, the court denied the DHHR motion. (See
It is from this
November 8 order that DHHR appeals.
Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459
S.E.2d 415 (1995) we held Where the issue on appeal from
the circuit court is clearly a question of law or involving an interpretation
of a statute, we apply a de novo standard of review. In Syllabus
Point 1 of In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996)
we also recognized that questions of law are subject to a de novo standard
We find that the matter at bar is a question of interpretation
and application of W.Va. Code, 49-7-33, and thus we apply a de novo standard
Code, 49-7-33 states as follows:
§49-7-33. Payment of services. At any time during
any proceedings brought pursuant to articles five and six of this chapter,
the court may upon its own motion, or upon a motion of any party, order the
West Virginia department of health and human resources to pay for professional
services rendered by a psychologist, psychiatrist, physician, therapist or
other health care professional to a child or other party to the proceedings.
Professional services include, but are not limited to, treatment, therapy,
counseling, evaluation, report preparation, consultation and preparation of
expert testimony. The West Virginia department of health and human resources
shall set the fee schedule for such services in accordance with the Medicaid
rate, if any, or the customary rate and adjust the schedule as appropriate.
Every such psychologist, psychiatrist, physician, therapist or other health
care professional shall be paid by the West Virginia department of health and
human resources upon completion of services and submission of a final report
or other information and documentation as required by the policies and procedures
implemented by the West Virginia department of health and human resources.
interpreting statutes we have held:When a statute is clear and unambiguous
and the legislative intent is plain, the statute should not be interpreted
by the courts, and in such case it is the duty of the courts not to construe
but to apply the statute. Syllabus Point 5 of State v. General Daniel Morgan
Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).
From our examination of W.Va. Code, 49-7-33, we find that the language
therein relating to payment for professional services in both abuse and neglect
cases and delinquency cases is governed by these Code provisions. We
further find that the following provision is clear and unambiguous and that
the legislative intent is clear:
West Virginia department of health and human resources shall set the fee schedule
for such services in accordance with the Medicaid rate, if any, or the customary
rate and adjust the schedule as appropriate.
W.Va. Code, 49-7-33 (2002), in part.
of expert witnesses in abuse and neglect and delinquency cases has been discussed
by this Court in two prior cases, namely Hewitt v. State Dept. of Health and
Human Resources, 212 W.Va. 698, 575 S.E.2d 308 (2002) (Hewitt I)
and State ex rel. Artimez v. Recht, 216 W.Va. 709, 613 S.E.2d 76 (2005)
(Per Curiam) (Hewitt II).
, 212 W.Va. at 703, 575 S.E.2d at 313, the Court did not apply the provision
of W.Va. Code
, 49-7-33, because the payment issues in that case predated
the effective date of the statute. (See
In Hewitt I
, the Court observed in footnote
10, however, as follows:
The provisions of West Virginia Code § 49-7-33 do not
limit the fees charged by expert witnesses where such witnesses are retained
privately. Those statutory provisions only operate as a restriction on the
amount that can be charged when DHHR is ordered by the trial court to pay for
health care services in connection with matters arising under articles five
and six of chapter 49. (See
II, 216 W.Va. at 711-712, 613 S.E.2d at 78-79, we further discussed Hewitt
I and the application of W.Va. Code, 49-7-33 and stated as follows:
This Court held that the DHHR was liable for the payment orders in abuse and
neglect cases and that it was required to pay for the services at the rate
established by the trial court, unless the order under consideration was entered
after June 7, 2002, the effective date of West Virginia Code § 49-7-33
(2002) (Repl. Vol. 2004). [FN1] That statute provides that the DHHR shall
set the fee schedule for such services in accordance with the Medicaid rate,
if any, or the customary rate and adjust the schedule as appropriate. West
Virginia Code § 49-7-33. Consequently, the Hewitt I Court concluded
the abuse and neglect fee issue by upholding the fees in underlying payment
orders entered before June 7, 2002, and explaining that the payment orders
entered after June 7, 2002, were subject to the statute's provisions regarding
the Medicaid rate. [FN2] 212 W.Va. at 703, 575 S.E.2d at 313
the instant case the payment order is for professional services performed in
a juvenile delinquency proceeding as opposed to an abuse and neglect proceeding.
As observed in Hewitt I and Hewitt II, the payment restrictions
apply equally to abuse and neglect cases as they do in delinquency cases. Therefore,
the payment order in this case requires the application of W.Va. Code,
with the discussion in Hewitt I
and Hewitt II
and the clear and
unambiguous language of W.Va. Code
, 49-7-33, we conclude that the services
provided by Dr. Thomas R. Adamski are payable at the Medicaid rate. We make
no determination, however, as to whether or not the amount asserted by the
DHHR as the proper amount to be paid to Dr. Adamski, to-wit: $214.89, is a
correct application of the Medicaid rate in this case. (See
upon the forgoing, we reverse the Circuit Court of Randolph County.
By Order dated the 19th
day of July, 2004, the circuit
court found that the record should be corrected to reflect that the plea was
to sexual abuse in the third degree.
Dr. Adamski's statement for services was for: 4.0 Hours
of Professional Time @ $250.00 per hour = $1000.00.
In the order denying DHHR's motion, the court made the following
1. That the juvenile, Bobby Lee [B.], is now fifteen (15) years of age, and
that he was fourteen (14) years of age at the time that he committed the offense
for which he was adjudicated delinquent herein, that being sexual assault of
a five (5) year old child;
2. That sexual assault of any individual at any age is a very serious matter;
however, the Court believes that sexual assault of a child is even more serious;
3. That because of his conduct and the offense that he committed, which would
have been a crime if he were an adult, the juvenile had been in detention since
approximately April of this year, or at least for a number of months;4. That
the juvenile is presently in a treatment facility in Ohio which costs roughly
$3000.00 per month and he is expected to be there for at least a year which
will result in a cost per annum roughly of $40,000;
5. That Dr. Adamski regularly does work for this Court, which is not only accepted
by the Court and respected, but also accepted by most if not all members of
the bar that practice before this Court;
6. That not only does Dr. Adamski do a thorough and excellent evaluation, he
also does it promptly which is important to the Court and the parties;
7. That a psychological or psychiatric evaluation is of huge significance to
the Court in deciding what to do with this youth, when in essence the Court
is making a $40,000 decision to try and treat this youth so that he does not
sexually assault another child;
8. That the State [Department] has suggested that the statute [§ 49-7-33]
only permits the payment of $214.00 for the evaluation completed by Dr. Adamski,
that being the applicable medicaid rate;
9. That the Court believes, however, that you generally get what you pay for,
and that the Court would be very reluctant to make a $40,000 per annum decision
which perhaps involves the sexual assault of young children on a $214.00 evaluation;
10. That the Court rather believes that it can make the best decision based
upon a thorough evaluation report which the Court has received in this matter,
and the Court does not believe that it can obtain a thorough and prompt evaluation
at the amount represented by the Department; and,
11. That the Court believes it has inherent power to take such action as it
deems appropriate to have this juvenile evaluated and perhaps prevent the sexual
assault of young children.
The provisions of W.Va. Code
, 49-7-33 went into effect
on June 7, 2002.
Article five relates to Juvenile Proceedings and
article six relates to Procedure in Cases of Child Neglect and Abuse.
If there is a difficulty in obtaining specialized court services
because of the application of Medicaid rates, W.Va. Code, 49-7-33 clearly
provides the opportunity for the DHHR to address the problem by adopting rates
other than the Medicaid rates.