PERSICO v. MAHER

10067

191 Conn. 384 (1983) | Cited 30 times | Supreme Court of Connecticut | September 13, 1983

The basic issue before us is the legalityof the defendant's denial of orthodontic service to theplaintiff's thirteen year old son, Donald PERSICO, as partof his Medicaid benefits, title XIX of the Social SecurityAct, administered by the defendant, the commissionerof the department of social services, now thedepartment of income maintenance.

Donald Persico was a resident of the Curtis Home,a facility for emotionally disturbed children, as a noncommittedchild. During his stay at the youth facility,orthodontic correction to his teeth was professionallydetermined to be "a crucial component of [Donald's]overall treatment plan" to relieve his physical andpsychological suffering. Because the plaintiff was

[191 Conn. 386]

     receiving aid to families with dependent children, thehome director sought to obtain $550 for such dentalrepair work from the defendant under the state'sMedicaid program utilizing joint federal and statefunds. Authorization for the requested orthodontia wasdenied by the defendant's dental consultant onDecember 30, 1976. The plaintiff's request for the correctivedental treatment was medically supported asnecessary by the dental findings of an orthodonticspecialist, psychological reports and the objective findingsand consistent recommended action of the directorof the children's program at the Curtis Home. Thedefendant's dental consultant's denial, on the otherhand, was unsupported by any findings of fact, dental,medical, psychological or otherwise, and consistedsolely of the apologetic statement: "I am sorry toinform you that orthodontia services are excluded fromthe Department of Social Services dental program."

On January 28, 1977, the plaintiff requested a fairhearing under General Statutes 17-2a "to determinewhether [the corrective] care for Donald's dentalproblems are covered by either the dental program oranother program of the Department of Social Services."The fair hearing was held on February 24, 1977.Testimony in support of the plaintiff's position wasoffered by Judith P. Stone, a protective services workerof the department of children and youth services, andMary Spurr, a registered nurse and child case workerat the Curtis Home. The hearing officer received intoevidence copies of the request for approval of paymentsubmitted by the home's children's program director,the dental consultant's denial of the director's requestfor the youth's orthodontic treatment, the orthodontist'sdetailed assessment of his findings and Donald

[191 Conn. 387]

     Persico's need for treatment, a picture of Donald, anda psychological and social history of him prepared bythe department of children and youth services.

Except for the written denial of the requested paymentby the defendant's dental consultant, all of theevidence presented at the fair hearing supported theplaintiff's appeal. Spurr described the misalignment ofthe boy's teeth, one upper front tooth being on top ofanother with a large space between them as well as toone side. She testified that when one tooth had becomeloose, the gums were irritated and sore, causingbleeding in the mouth. When the boy talked or smiled,he would quite frequently keep a hand over his mouth,appearing to her to be covering his imperfect teeth. Inoutlining Donald Persico's psychological history, Spurremphasized that he was very withdrawn for a longperiod of time before he became friendly with otherresidents. In conclusion, she testified that in her professionalopinion his dental problems made him veryself-conscious in his interaction and conversations withpeople.

Stone testified that she knew Donald Persico since1975 and that from the beginning of her service withhim he was an extremely disturbed child. A contributingfactor was his dental problems as evidencedby his tendency to put his hand over his mouth and tospeak very quietly. The report of the orthodontist,Herbert R. Edelstein, dated November 16, 1976,initially submitted to the defendant's dental consultant,was the only professional medical or dental evidencepresented to the hearing officer. In Edelstein's opinion,Donald Persico presents a class I malocclusion, witha severe maxillary overjet. His maxillary right lateralincisor tooth is ectopiccally erupted and is in a positionlingual to his central incisor tooth. There is a largediastama [sic] between his maxillary central incisor

[191 Conn. 388]

     teeth." The written denial of the claim by the defendant'sdental consultant, Harry D. Kiernan, simplyexpressed the exclusion of orthodontic services fromthe department's dental program. The defendantoffered no medical or dental opinion, or other oraltestimony or documentary evidence supporting hisdenial of the orthodontic services. The fair hearingrecord is devoid of any expert or professional evidencethat orthodontic services were not medically necessaryfor the treatment of Donald Persico's dental problemsand the improvement of his physical or psychologicalhealth by the correction of his malocclusion, as waspresented by the plaintiff's evidence at the hearing.

Thereafter, the hearing officer submitted a transcriptof the proceedings with the exhibits to a dental reviewteam (hereinafter DRT). On March 22, 1977, the DRTreplied as follows: "At your request the undersignedteam has reviewed the transcript of Fair Hearing notesof February 24, 1977, and the summary of Fair Hearings.There is no medical packet provided by the district.On the basis of the above and because the transcriptprovides no medical evidence that denial of orthodontictreatment would be detrimental to the health of thepatient, we concur with the decision made by the DentalConsultant to deny the request for orthodontic treatment.Also directive dated October 1, 1973 excludesorthodontic treatment from reimbursable dental services."(Emphasis added.)

On June 13, 1977, the fair hearing officer renderedhis decision. An analysis of the memorandum of decisionis pertinent here. Part A of the decision reviewedthe testimony of the department of children and youthservices social worker to the effect that the thirteenyear old child was emotionally disturbed and has beenplaced in the children's program of the Curtis Homesince September, 1974. It mentions that the director

[191 Conn. 389]

     of the program has sought for more than a year toobtain orthodontic treatment for the boy as part of theirtotal treatment program, but the request was deniedby the defendant's dental consultant as not beingcovered under the title XIX assistance program. PartB identified, without discussion or review, the documentaryevidence received at the hearing. At this point,the hearing officer wrote as follows: "In conclusion theappellant's attorney stated that when the dental determinationevaluation was completed she wished to becontacted. The attorney was subsequently contactedby two telephone calls and a letter dated 5/13/77 inwhich the possibility of resuming the Fair Hearing wasdiscussed. However, since the requesting orthodontistwas not available for a resumption, this request toreopen the hearing with the subsequent Dental ReviewTeam was not allowed."

Part C, entitled "ADDITIONAL SUBMISSION,"states that "[s]ubsequent to the hearing," the hearingtranscript and evidence "were submitted to a differentDental Review Team," and recited their report.(Emphasis added.)

Part D identified General Statutes 17-134 as therelevant statute providing the legal basis for theadministration of the title XIX program.1 In part E ofthe decision the hearing officer established that thedefendant's pertinent policy was to be found in: "1.Instructions to Participating Dentists dated 10/1/73from the Commissioner of the Department of SocialServices. 2. Manual Volume 3, Chapter III, Index #215and Index #215.2."

The brief and meager findings of fact of the hearingofficer are found in part F. These consist of the following:(1) the appellant is a noncommitted child whose

[191 Conn. 390]

     medical needs are being covered under title XIX; (2)an orthodontic treatment program was recommendedby his dentist; (3) this request was denied; and (4) onMarch 22, 1977, a "different Dental Review Team concurredwith the denial dated 12/30/76." Thereafter, inpart G, the hearing officer concluded: "Based on thetestimony and evidence presented and in accordancewith agency policy, the appellant's request for orthodonticwork was properly denied." (Emphasis added.)

The plaintiff then appealed to the Superior Court pursuantto General Statutes 4-183 of the UniformAdministrative Procedure Act (hereinafter UAPA)from the hearing officer's decision upholding theagency's decision. The trial court sustained the plaintiff'sappeal on many grounds. Finding that "`therewas, as a matter of law, but a single conclusion' whichthe Fair Hearing Officer could reasonably reach," thecourt remanded the case to the defendant, now thecommissioner of income maintenance by succession,2with instruction to grant the plaintiff's request onbehalf of her son that the orthodontic services be paidfor or furnished under Medicaid.

In the first question presented for review, the defendantclaims the court erred in concluding that the department'spolicy defined in its directive of October 1, 1973,and excluding orthodontic services from the statedMedicaid program is inconsistent with pertinent federalstandards and the objectives of title XIX, therebyrendering the policy and the hearing officer's decisionrelying upon it void. The directive before the court isaddressed to dentists and expresses the policies andprocedures governing the provision and payment for

[191 Conn. 391]

     dental services to beneficiaries of medical assistanceunder title XIX. Seven categories of treatment arespecified for the dental care program. "Exclusive" (sic)services include orthodontics, with this proviso:"Special consideration may be granted, upon request,for these procedures of an unusual nature not includedin the program, necessary to alleviate a serious healthproblem. In all such cases, the Dental Consultant shallhave the sole responsibility of authorizing or denyingsuch request, after reviewing all available supportiveevidence of need."

Under the provisions of General Statutes 17-134athe defendant "is authorized to take advantage of themedical assistance programs provided in Title XIX,entitled `Grants to States for Medical AssistancePrograms,' contained in the Social Security Amendmentsof 1965 and may administer the same in accordancewith the requirements provided therein . . .Title XIX establishes the Medicaid program underwhich Connecticut, as a participating state, may furnishfederally funded medical assistance to needy persons.42 U.S.C. § 1396a(a)(13)(B) requires that the stateplan for medical assistance must provide, as relevanthere by virtue of the approved aid and assistancefurnished to the plaintiff and her son, Donald Persico,under the aid to families with dependent childrenprogram,3 "at least the care and services listed inclauses (1) through (5) of section 1396d(a)" of theMedicaid program. Clause (4)(B) of 1396d(a) definesthe term "medical assistance" to include "such earlyand periodic screening and diagnosis of individuals whoare eligible under the plan and are under the age of21 to ascertain their physical or mental defects, andsuch health care, treatment, and other measures to corrector ameliorate defects and chronic conditions

[191 Conn. 392]

     discovered thereby, as may be provided in regulationsof the Secretary [of Health and Human Services,formerly Health, Education and Welfare]." The plaintiff'sclaim for orthodontic treatment of her son is madeunder this provision for early and periodic screening,diagnosis and treatment, commonly called EPSDT, ofindividuals under age twenty-one.

Pursuant to this statutory authority, the secretaryhas promulgated regulations which are binding uponthe states to provide EPSDT. These define EPSDT toinclude "[h]ealth care, treatment, and other measuresto correct or ameliorate any defects and chronic conditionsdiscovered." 42 C.F.R. § 440.40(b)(2). Under theregulations, "[a] State plan must provide that theMedicaid agency meets the requirements of 441.56-441.62,with respect to EPSDT services, as defined in440.40(b) of this subchapter." (Emphasis added.)42 C.F.R. § 441.55. Section 441.56(b)(2) stipulates asfollows: "Treatment. In addition to any treatment servicesincluded in the plan, the agency must provide thefollowing services, even if they are not included in theplan - (2) Dental care needed for relief of pain andinfections, restoration of teeth and maintenance ofdental health." The federal statutes further require that"[a] State plan for medical assistance must . . .include reasonable standards . . . for determiningeligibility for and the extent of medical assistance underthe plan which . . . are consistent with the objectivesof this title. . . ." 42 U.S.C. § 1396a(a)(17). "Thislanguage confers broad discretion on the States toadopt standards for determining the extent of medicalassistance, requiring only that such standards be `reasonable'and `consistent with the objectives' of theAct." Beat v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366,53 L.Ed.2d 464 (1977).

[191 Conn. 393]

The initial question that these federal statutes andregulations raise when applied to the facts of this caseis whether the exclusion of orthodontics in the state'splan or policy of October 1, 1973, subject to the provisothat special consideration may be granted forprocedures of an unusual nature not included in theprogram necessary to alleviate a serious health problemupon the sole authority of the dental consultant, afterreviewing all available supportive evidence of need, constitutesa "reasonable" standard for determiningeligibility for and the extent of medical assistance underthe state plan consistent with the objectives ofMedicaid. We conclude that as to this proviso the statepolicy of October 1, 1973, does not meet the federalrequirements and is, therefore, void. The state's policyof excluding orthodontia with a discretionary proviso,indefinite in nature and stricter than the federalrequirements, does not comply with the federal regulationsas to EPSDT services that the state pay underits Medicaid program for "[d]ental care needed for reliefof pain and infections, restoration of teeth andmaintenance of dental health." 42 C.F.R. § 441.56(b)(2).As the trial court below noted so aptly, "[t]here isa wide divergence between that which is necessary formaintenance of dental health as required by federalstandards and that which is necessary to alleviate aserious health problem under the Policy." The federalstatutes and regulations set a limit upon the authorityof the defendant as well as furnishing a guide to thestate's administration of the Medicaid program."[T]hus, where the state sets stricter standards foreligibility than those enumerated by the pertinentfederal law, the state standards are tacitly inconsistentwith those federal provisions." Morgan v. White,168 Conn. 336, 344, 362 A.2d 505 (1975).

[191 Conn. 394]

The defendant's refusal to provide orthodontictreatments under its Medicaid program for DonaldPersico was based on the policy of October 1, 1973,excluding such services. The policy's denial of orthodontictreatments to EPSDT beneficiaries, such as theplaintiff's son, violates the federal statutes andregulations and is, therefore, illegal and void.

In Brooks v. Smith, 356 A.2d 723 (Me. 1976), factsparallel to those in the case now being considered werepresented. The plaintiff mother sought orthodontictreatment for her daughter's oral deformity. Althoughorthodontia was recognized as greatly needed by thechild, the state agency's medical consultant deniedapproval of the necessary payment for such dental careon the ground that "the Medicaid Dental Program doesnot cover orthodontia." The fair hearing officer alsorecognized the need of orthodontia, but likewise foundno error in the refusal of payment because it "wasbased on the fact that this type of care is not coveredby the rules and regulations." The Superior Court, uponappeal, reversed the fair hearing officer after findingthat the child was entitled to orthodontic treatmentunder the Medicaid statutes and regulations and theMaine Medical Assistance Manual.

The Supreme Judicial Court of Maine in Brooksobserved (p. 727) that the position of the MaineMedicaid agency "was not that the federal statutes andregulations forbid the State's furnishing orthodontictreatment but, instead, that they do not require it andthat the [Maine] Department [of Health and Welfare]was free to adopt regulations excluding such treatmentin order to utilize more advantageously the limitedfunds available to it." The court did not agree.

The conclusion of the Maine court supporting paymentfor orthodontic treatment of the minor child was

[191 Conn. 395]

     predicated upon 42 U.S.C. § 1396a(a)(13)(B) requiringEPSDT for individuals under the age of twenty-one,pursuant to 1396d(a)(4)(B), and45 C.F.R. § 249.10(a) (now substantially 42 C.F.R. § 441.56[b]),requiring that a state agency provide dental careneeded for relief of pain and infections, restoration ofteeth and maintenance of dental health. With regardto the state's authority to impose utilization control,the court stated (p. 728) that that was not a grant ofauthority under Medicaid "to make available less treatmentthan that mandated by the federal regulation -that is, such `as is necessary for restoration of teethand maintenance of dental health.'" Applying the ruleof liberal construction in furtherance of the beneficentpurposes for which the remedial legislation of Medicaidwas enacted, the court found (pp. 729-30) thatorthodontia for the claimant, although not mentionedspecifically in the federal regulations, was intended tobe included in "treatment necessary for the maintenanceof her dental health" and the medical necessityfor such treatment was not contradicted by the commissionerto support his denial of this benefit. Thecourt, therefore, affirmed the payment and denied thestate's appeal.

The United States Court of Appeals for the Third Circuit,in Philadelphia Welfare Rights Organization v.Shapp, 602 F.2d 1114 (1979), cert. denied sub nom.Thornburgh v. Philadelphia Welfare Rights Organization,444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 660(1980), adopting the holding in Brooks, also ruled(p. 1123) that the federal regulations implementing theEPSDT program mandated "the provision of all dentalservices, including orthodontia, `needed for reliefof pain and infection, restoration of teeth, and maintenanceof dental health.'"

[191 Conn. 396]

The hearing officer in his decision in the present casealso relied upon another relevant agency policy, namely:"2. [Department of Income Maintenance] Manual Volume3, Chapter III, Index #215 and Index #215.2."Index No. 215, revised to January 3, 1976, in relevantpart, provided as follows: "Dental Care. Public Assistancerecipients and children committed to the Commissionerof Children and Youth Services are eligible fornecessary dental care. Dental care includes examinationand preventive and remedial services from the dentistor clinic of their choice. General Policies. Allprocedures except emergency care require prior authorizationby the Department of Social Services DentalConsultant. . . . All other services require the DentalConsultant's authorization, based on the dentist'sestimate of the minimum adequate needs of the patient,prior to performance. . . . Remedial. Remedial services,all of which require prior authorization by theDental Consultant, include . . . in certain circumstances,orthodontia." Index No. 215.2, revised toJune 11, 1969, outlined the procedure to be followedfor orthodontic treatment when needed because of acleft palate. We conclude that the policies of the defendantas expressed in the Department of Income MaintenanceManual, index No. 215 and index No. 215.2,like the policy defined in the instructional statementof October 1, 1973, also fail to meet the minimum standardset by federal law and regulation, and are, therefore,invalid and void.

Title XIX establishes two groups of needy persons:(1) the "categorically" needy, which includes needy persons,such as the plaintiff, with dependent children, andthe aged, blind and disabled; 42 U.S.C. § 1396a(a)(10)(A);and (2) the "medically" needy, which includes otherneedy persons. 42 U.S.C. § 1396a(a)(10)(C). Participatingstates, such as Connecticut, are required to

[191 Conn. 397]

     extend Medicaid coverage to the "categorically" needy,but not to the "medically" needy. Beat v. Doe, supra,440 n. 1. Under the provisions of 42 C.F.R. § 440.210,a state plan must specify that, as a minimum, "categorically"needy recipients are provided the servicesspecified in, inter alia, 440.40. Section 440.40(b)defines EPSDT to mean: "(1) Screening and diagnosticservices to determine physical or mental defects inrecipients under age 21; and (2) Health care, treatment,and other measures to correct or ameliorate any defectsand chronic conditions discovered. (See Subpart B ofPart 441 of this subchapter.)"

Subpart B of part 441 relates entirely to EPSDT ofindividuals under the age of twenty-one. Section 441.50thereof, entitled "Basis and purpose," states: "Thissubpart implements - (a) Section 1905(a)(4)(B) of theSocial Security Act, by prescribing State plan requirementsfor providing early and periodic screening anddiagnosis of eligible Medicaid recipients under age 21to ascertain physical and mental defects, and providingtreatment to correct or ameliorate defects and chronicconditions found. . . ." Section 441.55 provides that"[a] State plan must provide that the Medicaid agencymeets the requirements of 441.56-441.62, withrespect to EPSDT services, as defined in 440.40(b)of this subchapter." The required services listed in441.56(b) are the following: "Treatment. In additionto any treatment services included in the plan, theagency must provide the following services, even if theyare not included in the plan. . . . (2) Dental careneeded for relief of pain and infections, restoration ofteeth and maintenance of dental health."

Relevant to these provisions for EPSDT of individualsunder age twenty-one is also42 C.F.R. § 440.100(a): "`Dental services' means diagnostic,preventive, or corrective procedures provided by or

[191 Conn. 398]

     under the supervision of a dentist in the practice of hisprofession, including treatment of - (1) The teeth andassociated structures of the oral cavity; and (2) Disease,injury, or impairment that may affect the oral or generalhealth of the recipient." Finally, under42 C.F.R. § 440.230, further requirements and limitations arespecified as follows: "(a) The plan must specify theamount, duration, and scope of each service that it providesfor - (1) The categorically needy . . . (2) . . .(b) Each service must be sufficient in amount, duration,and scope to reasonably achieve its purpose. (c) TheMedicaid agency may not arbitrarily deny or reducethe amount, duration, or scope of a required service[for the categorically needy under 440.210] . . . toan otherwise eligible recipient solely because of thediagnosis, type of illness, or condition. (d) The agencymay place appropriate limits on a service based on suchcriteria as medical necessity or on utilization controlprocedures."

The policy of the defendant expressed in the Departmentof Income Maintenance Manual, Volume 3, ChapterIII, index No. 215 and index No. 215.2, as does thepolicy statement of October 1, 1973, fails to meet theminimum federal standard under these regulations forEPSDT of Donald Persico. The state's policy expressedin index No. 215 and index No. 215.2 is, therefore,invalid and void and cannot support the denial of medicallynecessary orthodontia.

The fair hearing officer based his conclusion thatDonald Persico's request for orthodontic work wasproperly denied "on the testimony and evidencepresented and in accordance with agency policy[1. Instructions to Participating Dentists dated 10/1/73from the Commissioner of the Department of SocialServices. 2. Manual Volume 3, Chapter III, Index #215and Index #215.2]." Since these two policy statements

[191 Conn. 399]

     are invalid and void as contrary to federal law and regulations,the fair hearing officer's reliance upon themcannot stand and his decision was properly overruledby the trial court.

II

The lower court ruled that even if federal standardswere not violated by the exclusion of orthodontia, adecision based by the fair hearing officer on the policydirective of October 1, 1973, must be reversed becausethe policy falls within the definition of a "regulation"under the Uniform Administrative Procedure Act(hereinafter UAPA). General Statutes 4-166 through4-189. Since it was not adopted pursuant to the statutoryrequirements, it is, therefore, void and invalid.

The defendant claims that the "Directive" of October1, 1973, effected no substantive change as to thestate's regulation, policy and plan in existence priorto January 1, 1972.4 It is his contention that insofaras orthodontia under the Medicaid program is concerned,"the Directive dated October 1, 1973 is nothingmore than a clarification of an existing Statewelfare regulation and State Plan which initially cameinto effect prior to January 1, 1972." Therefore, hestates, "[i]f the administrative rule in question does nothave a substantial impact on the rights and obligationsof parties in future hearings, it is not a substantive orlegislative rule." A second claim is that, in any event,the time for contesting the "Directive" has expiredbecause 4-168(c) stipulates that "[a] proceeding tocontest any regulation on the ground of noncompliancewith the procedural requirements of this section shall becommenced within two years from the effective date ofthe regulation." A third claim is that the "Directive" of

[191 Conn. 400]

     October 1, 1973, and the original regulation pertainingto orthodontia are merely interpretive of the federalMedicaid statutes and regulations and need not complywith the review, notice and hearing requirementsof the UAPA, even if considered substantive provisions,because the various participating states act as agentsfor the federal government in carrying out the provisionsof the federal Medicaid program. Since thedefendant did not act as an agent of the state but asan agent for the federal government, the defendantclaims that "UAPA has no application to the Directivedated October 1, 1973 and to the original regulationpertaining to orthodontia in existence prior to January1, 1972."

The department of income maintenance, like itspredecessor department of social services,5 is subjectto the provisions of the UAPA. The UAPA specifiesthe procedure for the adoption, amendment, or repealof administrative regulations. See General Statutes4-168, 4-169, 4-170 and 4-172. The defendant deniesthe applicability of these requirements to what hedenominates a "Directive."

"`Regulation' means each agency statement ofgeneral applicability, without regard to its designation,that implements, interprets, or prescribes law or policy,or describes the organization, procedure, or practicerequirements of any agency. The term includes theamendment or repeal of a prior regulation, but doesnot include (A) statements concerning only the internalmanagement of any agency and not affecting privaterights or procedures available to the public . . . or(C) intraagency or interagency memoranda." General

[191 Conn. 401]

     Statutes 4-166(7). A "regulation" is a regulation bywhatever designation it is called. "`The criteria thatdetermine whether administrative action is a "regulation"are neither linguistic nor formalistic. It is not conclusivethat an agency has, or has not, denominatedits action a "regulation" or that it has, or has not, promulgatedit procedurally in the fashion that would berequired of a "regulation." Salmon Brook ConvalescentHome, Inc. v. Commission on Hospitals & Health Care,177 Conn. 356, 362, 417 A.2d 358 (1979); Lewis-Motav. Secretary of Labor, 469 F.2d 478, 481-82 (2d Cir.1972). See also Greenwich v. Connecticut TransportationAuthority, 166 Conn. 337, 345, 348 A.2d 596(1974). The test is, rather, whether "a rule has asubstantial impact on the rights and obligations of partieswho may appear before the agency in the future."Salmon Brook Convalescent Home, Inc., supra, 362.'(Footnote omitted.) Maloney v. Pac, 183 Conn. 313,325-26, 439 A.2d 349 (1981)." Walker v. Commissioner,187 Conn. 458, 462-63, 446 A.2d 822 (1982). "Implicitin this formulation is the recognition that a regulationmust be a rule of sufficient generality to impingesubstantially on others who will deal with the agencyat a future time." Maloney v. Pac, supra, 326.

Measured by these criteria, the state's policy ofOctober 1, 1973, is clearly a regulation. It is a publicstatement to dentists in general, covering, by itsdeclaration of purpose, "policies and proceduresgoverning the billing and payment for dental serviceto welfare recipients who are eligible for medicalassistance under Title XIX." Its provisions havegeneral applicability, implementing, interpreting andprescribing Medicaid policy for dental services to eligiblewelfare recipients. To the dentists it describes theeligibility requirements of the agency and the practiceand procedure for obtaining state payment for covered

[191 Conn. 402]

     dental work. The policy constitutes a rule of sufficientgenerality to impinge substantially on dentists and theirwelfare patients who will deal with the agency at afuture time. By its precise terms it is clearly not aninterdepartmental statement or memorandum"concerning only the internal management of" thedepartment which does not affect "private rights orprocedures available to the public." The policy promulgatedby the defendant's predecessor agency onOctober 1, 1973, is unmistakably a regulation under theUAPA. See General Statutes 4-166(7).

The subordinate claim that "the Directive datedOctober 1, 1973 is nothing more than a clarification ofan existing State welfare regulation and State Planwhich initially came into effect prior to January 1,1972" is self-defeating. A "clarifying" revision of aregulation, even if that were the case here, which itis not, would constitute an amendment of the regulationand come within the express terms of the definingstatute, 4-166(7), which extends the meaning of"regulation" to include "the amendment . . . of aprior regulation."

The conclusion of the court that the policy of October1, 1973, is an administrative regulation is confirmedby the agency's use and reliance upon it to affect the"private rights" of the plaintiff and her son. The fairhearing officer in his decision relied upon these instructionsto participating dentists as the basic agency policy"in accordance with [which] . . . the appellant'srequest for orthodontic work was properly denied."Similarly, the dental review team in its report to thefair hearing officer concluded that the "directive datedOctober 1, 1973 excludes orthodontic treatment fromreimbursable dental services."

[191 Conn. 403]

The defendant's further claim, however, that evenif the policy of October 1, 1973, falls within the definitionof "regulation" within the UAPA, any challengeto its validity in this action is barred by the restrictionof 4-168(c) limiting any proceeding to contest aregulation on the ground of noncompliance with theprocedural requirements of the UAPA to "two yearsfrom the effective date of the regulation." This provisionhas never before been construed by our courts>.

Since, however, this question was not raised in thecourt below, it cannot be raised for the first time onappeal. "The supreme court shall not be bound to considera claim unless it was distinctly raised at the trialor arose subsequent to the trial." Practice Book 3063."Claims of law, to receive consideration in this court,must have been raised in the court below. They maynot for the first time be raised here." Bigionti v.Argraves, 152 Conn. 700, 701, 204 A.2d 408 (1964). Thisrule alerts the trial court to possible errors while thereis still opportunity to correct them. State v. Simms,170 Conn. 206, 212, 365 A.2d 821, cert. denied, 425 U.S. 954,96 S.Ct. 1732, 48 L.Ed.2d 199 (1976).

"While we are not `bound to consider' such claimsof error, and do not ordinarily do so, we have uponoccasion considered a question which was not so raised,not by reason of the appellant's right to have it determinedbut because in our opinion in the interest ofpublic welfare or of justice between individuals it oughtto be done." Leary v. Citizens & ManufacturersNational Bank, 128 Conn. 475, 478-79, 23 A.2d 863(1942). "We have held that, although an assignmentwas defective, important rulings might be consideredwhere counsel make them definite in their briefs."Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397,401, 279 A.2d 567 (1971). It appearing that thelimiting statute was overlooked in the court below and

[191 Conn. 404]

     that public welfare would be best served by resolvingthis issue, we will consider this claim of the defendant.

General Statutes 4-168(c) in its entirety reads asfollows: "No regulation adopted after January 1, 1972,is valid unless adopted in substantial compliance withthis section. A proceeding to contest any regulation onthe ground of noncompliance with the proceduralrequirements of this section shall be commenced withintwo years from the effective date of the regulation."Thus, there are two separate parts to this statute. Thefirst part of 4-168(c) is designed to protect the publicfrom regulations adopted under any name or classificationwithout observing the procedural safeguards in theUAPA for the information, input and review of thepublic. The second part of the law, the statute of limitations,applies specifically to "[a] proceeding to contestany regulation on the ground of [procedural] noncompliance"in its adoption. Such a proceeding can beinitiated by a party plaintiff only after a regulation hasbeen admitted or identified to be such prior to the courtproceeding. Otherwise, administrative agencies couldambush the public by adopting regulations under"pseudonyms" to which the statutory steps for adoptingregulations would appear not to apply until too late.Such would be the case here where the defendant wouldhave us apply the statutory restriction after a long-delayedreclassification of what was properly, but notknown to be, a regulation at its origin. The limitationof action in 4-168(c) is inapplicable to this administrativeappeal.

The last claim of the defendant relevant to theadministrative classification of the policy of October1, 1973, contends that this "Directive" is simplyinterpretive of the federal Medicaid statutes and regulationsand is not subject to the "regulation" requirementsof the UAPA, even if considered substantive provisions.

[191 Conn. 405]

This is so, according to the defendant, becausethe department of income maintenance, as was itspredecessor, is not a state agency in this regard, butan agent of the federal government in administeringthe national Medicaid program locally.

The answer to this unusual claim is found in thefederal and state statutes. 42 U.S.C. § 1396 authorizesannual federal Medicaid appropriations to "Stateswhich have submitted, and had approved . . . plansfor medical assistance." Reciprocally, in enactingGeneral Statutes 17-134a our legislature has authorizedthe defendant to accept the federal Medicaidgrants and administer them in accordance with thefederal requirements. To implement the state program,the defendant, under 17-134d, must "make suchregulations as are necessary to administer the medicalassistance program." To these regulations, such as thepolicy of October 1, 1973, the provisions of the UAPAprescribing a statutory method for the adoption,amendment or repeal of any regulation, 4-168, 4-169,4-170 and 4-172, apply.

As a regulation subject to the UAPA, the defendant'spolicy of October 1, 1973, was required to be promulgatedwith certain formalities. Since this policy was notadopted in accordance with the procedural requirementsof 4-168, 4-169, 4-170 and 4-172, it may notbe enforced to deny the plaintiff's application forMedicaid funds to pay for Donald Persico's medicallynecessary orthodontic treatment.

III

After determining that more than ninety days hadelapsed between the date of the plaintiff's request fora fair hearing and the date of the officer's decision, the

[191 Conn. 406]

     court held that the violation of the ninety day rulerequired the defendant to grant the relief requested.The defendant claims error in this ruling.

On January 28, 1977, the plaintiff requested a fairhearing to determine whether title XIX covered thecost of her son's orthodontic work. The fair hearingwas held on February 24, 1977. The officer's decisionwas rendered on June 13, 1977, 136 days after therequest for such hearing. The defendant concedes thatstate law and federal regulations require him to takedefinitive administrative action within ninety days afterthe fair hearing request, but blames the plaintiff'scounsel for delaying the decision by requesting aresumption of the fair hearing. For this purpose thedefendant unsuccessfully sought to amend the administrativerecord in the lower court by submitting asexhibits correspondence between the plaintiff's counseland the fair hearing officer.6 He also claims errorin this ruling.

42 U.S.C. § 1396a(a) requires that "[a] State planfor medical assistance must . . . (3) provide for grantingan opportunity for a fair hearing before the Stateagency to any individual whose claim for medical assistanceunder the plan is denied or is not acted uponwith reasonable promptness." 42 C.F.R. § 431.244(f)promulgated under title XIX requires that "[t]heagency must take final administrative action within 90days from the date of the request for a hearing." GeneralStatutes 17-2b tracks the federal regulationand provides that "final definitive administrative action

[191 Conn. 407]

     shall be taken by the commissioner or his designeewithin ninety days after the request of such [fair] hearingpursuant to section 17-2a."

The lower court based its ruling on Labbe v. Norton,U.S. District Court, D. Conn., Docket No. H-136,November 4, 1974. In Labbe the court considered a similarninety day rule; 45 C.F.R. § 205.10(16); to titlesI, IV-A, X, XIV and XVI, the Social Security Act, andordered, except where a petitioner for a fair hearinghas requested a delay, or has failed to appear for ascheduled hearing, that the defendant's predecessor"grant whatever relief is requested in fair hearingrequests filed by applicants for and recipients of categoricalassistance benefits . . . in whose cases finaladministrative action is not taken within ninety (90)days of the date they originally filed their request fora fair hearing. . . ." Since Labbe was a proper classaction, its ruling was held to apply to all applicants forfair hearing.

We find that the Labbe rule applies to the same provisionfor ninety day administrative adjudication of Medicaidclaims found in 45 C.F.R. § 431.244 and in GeneralStatutes 17-2b, and now before the court. Section4-180(b) of the UAPA which provides that if an administrativeagency fails to render a final decision in a contestedcase following the close of evidence and filingof briefs as required by subsection (a), a party or interestedperson may seek a Superior Court order requiringthe agency to render a decision forthwith, afterhearing, is inapplicable to the case before the court.The relevant federal regulation applicable here takesprecedence in judicial consideration of the question.

In Labbe, the court made a single exception to theninety day requirement for a fair hearing decision "inthose cases in which the petitioner for a fair hearing

[191 Conn. 408]

     has requested a delay, or has failed to appear for ascheduled hearing." In the present case the defendantclaims that the plaintiff's counsel delayed the officer'sdecision by requesting a resumption of the fair hearing.To establish such delay the defendant sought toamend the administrative record in the lower court bysubmitting as exhibits correspondence between theplaintiff's counsel and the fair hearing officer. The courtrejected this offer of evidence as being beyond theadministrative record in the appeal before it. In thisthe court erred. Under Labbe, the defendant shouldhave been allowed to prove that the delay in the fairhearing officer's decision resulted from the plaintiff'srequest.

IV

Since there was, in the judgment of the lower court,as a matter of law, but a single conclusion which thefair hearing officer could have reasonably reached, thecourt, after sustaining the appeal, pursuant to 4-183(g)modified the decision appealed from because it was"`clearly erroneous in view of the reliable, probativeand substantial evidence on the whole record'" andremanded the matter to the defendant with directionto grant the requested relief. The defendant claims thiswas an erroneous substitution of the court's judgmentfor that of the defendant. We agree.

Section 4-183(g) of the UAPA provides that "[t]hecourt may affirm the decision of the agency or remandthe case for further proceedings. The court may reverseor modify the decision if substantial rights of theappellant have been prejudiced because the administrativefindings, inferences, conclusions, or decisionsare . . . (5) clearly erroneous in view of the reliable,probative, and substantial evidence on the wholerecord. . . ." On appeal from the final order of an

[191 Conn. 409]

     administrative agency, such as the defendant, the trialcourt does not try the case de novo. It is not the functionof the court to adjudicate the facts. The court cando no more, on the factual questions presented, thanto examine the record to determine whether theultimate findings were supported, as the statuterequires, by substantial evidence. Norwich v. NorwichFire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977)."This so-called substantial evidence rule is similar tothe `sufficiency of the evidence' standard applied injudicial review of jury verdicts, and evidence issufficient to sustain an agency finding if it affords `asubstantial basis of fact from which the fact in issuecan be reasonably inferred. . . . [I]t must be enoughto justify, if the trial were to a jury, a refusal to directa verdict when the conclusion sought to be drawn fromit is one of fact for the jury.'" Lawrence v. Kozlowski,171 Conn. 705, 713, 372 A.2d 110 (1976), cert. denied,431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977).

Our review of the record discloses that the courterred in holding that as a matter of law there wassubstantial evidence to support the plaintiff's applicationbefore the fair hearing officer. Other than thedental description of Donald Persico's malocclusion inthe appraisal of Edelstein submitted to the fair hearingofficer, there was no medical or dental testimonypresented at the hearing in support of the medicalnecessity for the requested orthodontic treatment. Thetestimony of Stone, a protective services worker of thedepartment of children and youth services, and Spurr,a registered nurse and child care worker at the CurtisHome, described the misalignment of the boy's teeth,including one instance of bleeding from soreness of thegums, and the psychological behavior appearing toresult from his dental problems. The totality of theevidence before the fair hearing officer cannot be said

[191 Conn. 410]

     to constitute "substantial evidence," as a matter of law,supporting the court's finding that only one conclusionsupporting the plaintiff's application could be reached,thereby compelling a modification of the administrativedecision and directed order to the defendant. Thetrial court failed to make the finding required underthe EPSDT program for the requested Medicaid paymentthat the orthodontic treatment of Donald Persicowas "needed for relief of pain and infections, restorationof teeth and maintenance of dental health."42 C.F.R. § 441.56(b)(2). The court's conclusion that thedecision of the fair hearing officer was "clearly erroneousin view of the reliable, probative, and substantialevidence on the whole record" is, therefore, unsupported.General Statutes 4-183(g)(5).

We conclude that the lower court exceeded its scopeof review beyond the statutory circumscription bysubstituting its judgment for that properly reserved tothe administrative agency. The court should have goneno further than to have sustained the appeal. "It is wellestablished that where a trial court has found that anadministrative agency has made invalid or insufficientfindings, such court must remand the matter to theagency for further proceedings. Bogus v. Zoning Boardof Appeals, 165 Conn. 749, 345 A.2d 9 [1974]; Watsonv. Howard, 138 Conn. 464, 86 A.2d 67 [1952]."Hartford v. Hartford Electric Light Co., 172 Conn. 71,73, 372 A.2d 131 (1976).

V

The lower court further held that the decision of thefair hearing officer required reversal because of whatit termed "unusual procedure employed by him." Afterthe hearing was closed, the officer solicited the opinionand accepted into evidence a report of a second dentalreview team without giving the plaintiff an opportunity

[191 Conn. 411]

     to confront or to cross-examine its authors. The defendantclaims that the court erred in this conclusion. Wedo not agree.

In his memorandum of decision the fair hearingofficer asserts that "[s]ubsequent to the hearing, atranscript of the Fair Hearing notes, and evidencemarked exhibits A, B, C, and D were submitted to adifferent Dental Review team." The report of thisdental review team is set forth fully in the fair hearingofficer's recital of the evidence before him. Thisteam submitted its professional conclusion as follows:"On the basis of the above and because the transcriptprovides no medical evidence that denial of orthodontictreatment would be detrimental to the health of thepatient, we concur with the decision made by the DentalConsultant to deny the request for orthodontic treatment.Also directive dated October 1, 1973 excludesorthodontic treatment from reimbursable dentalservices."

In submitting the transcript and evidence before himto the dental review team for its evaluation and conclusionas part of his determination of the minor child'sright to orthodontic treatment under Medicaid, the fairhearing officer violated the precise requirements of thefederal regulations pertinent to his duties under titleXIX. 42 C.F.R. § 431.240 governs the conduct of fairhearings and provides in subsection (b) that if the hearingofficer considers it necessary to have a medicalassessment, such medical assessment by a physicianor review team must be made a part of the hearingrecord. The procedural rights of the applicant at thehearing are recited in 42 C.F.R. § 431.242. Subsection(a)(2) specifies that the applicant must be given anopportunity to examine at a reasonable time before thedate of hearing and during the hearing all documentsand records to be used by the agency at the hearing.

[191 Conn. 412]

Subsection (e) further provides that the applicant mustbe given the opportunity to question or to refute anytestimony or evidence, including an opportunity to confrontand cross-examine adverse witnesses.

The fair hearing officer violated these federal regulationsby not making the dental review team's reporta part of the hearing record available for examinationby the plaintiff with opportunity to question or refutesuch evidence. Whether the members of the dentalreview team were adverse witnesses need not bedecided here, but their conclusions should have beenavailable to the plaintiff for refutation at the fairhearing.

There is error in part, the case is remanded to thetrial judge for the sole purpose of determining whetherthe delay in the decision of the fair hearing officer wasbrought about as a result of the plaintiff's request. Ifthe trial judge so finds then the judgment is set asideand the trial court is directed to render a judgment sustainingthe appeal. If the trial judge does not so findthen there is no error.

In this opinion the other judges concurred.

1. The correct statutory citation is General Statutes 17-134a.

2. Effective January 1, 1979, the commissioner of social servicesbecame the commissioner of income maintenance. Public Acts 1977, No. 77-614,608, 610.

3. 42 U.S.C. § 1396a(a)(10)(A).

4. The UAPA became effective on this date. Public Acts 1971, No.854, 21.

5. On January 1, 1979, by reorganization of the executive branchof the state government, the department of income maintenance became thesuccessor department to the department of social services. Public Acts1977, No. 77-614, 608 through 610. See footnote 2, supra.

6. The defendant also sought to introduce the report of the dentalreview team to the fair hearing officer dated March 22, 1977. Insofar asthis report was contained in the decision of the fair hearing officerappealed from to the court and properly in the record, this effort wasunnecessary and the defendant makes no claim of error relative to the

The basic issue before us is the legalityof the defendant's denial of orthodontic service to theplaintiff's thirteen year old son, Donald PERSICO, as partof his Medicaid benefits, title XIX of the Social SecurityAct, administered by the defendant, the commissionerof the department of social services, now thedepartment of income maintenance.

Donald Persico was a resident of the Curtis Home,a facility for emotionally disturbed children, as a noncommittedchild. During his stay at the youth facility,orthodontic correction to his teeth was professionallydetermined to be "a crucial component of [Donald's]overall treatment plan" to relieve his physical andpsychological suffering. Because the plaintiff was

[191 Conn. 386]

     receiving aid to families with dependent children, thehome director sought to obtain $550 for such dentalrepair work from the defendant under the state'sMedicaid program utilizing joint federal and statefunds. Authorization for the requested orthodontia wasdenied by the defendant's dental consultant onDecember 30, 1976. The plaintiff's request for the correctivedental treatment was medically supported asnecessary by the dental findings of an orthodonticspecialist, psychological reports and the objective findingsand consistent recommended action of the directorof the children's program at the Curtis Home. Thedefendant's dental consultant's denial, on the otherhand, was unsupported by any findings of fact, dental,medical, psychological or otherwise, and consistedsolely of the apologetic statement: "I am sorry toinform you that orthodontia services are excluded fromthe Department of Social Services dental program."

On January 28, 1977, the plaintiff requested a fairhearing under General Statutes 17-2a "to determinewhether [the corrective] care for Donald's dentalproblems are covered by either the dental program oranother program of the Department of Social Services."The fair hearing was held on February 24, 1977.Testimony in support of the plaintiff's position wasoffered by Judith P. Stone, a protective services workerof the department of children and youth services, andMary Spurr, a registered nurse and child case workerat the Curtis Home. The hearing officer received intoevidence copies of the request for approval of paymentsubmitted by the home's children's program director,the dental consultant's denial of the director's requestfor the youth's orthodontic treatment, the orthodontist'sdetailed assessment of his findings and Donald

[191 Conn. 387]

     Persico's need for treatment, a picture of Donald, anda psychological and social history of him prepared bythe department of children and youth services.

Except for the written denial of the requested paymentby the defendant's dental consultant, all of theevidence presented at the fair hearing supported theplaintiff's appeal. Spurr described the misalignment ofthe boy's teeth, one upper front tooth being on top ofanother with a large space between them as well as toone side. She testified that when one tooth had becomeloose, the gums were irritated and sore, causingbleeding in the mouth. When the boy talked or smiled,he would quite frequently keep a hand over his mouth,appearing to her to be covering his imperfect teeth. Inoutlining Donald Persico's psychological history, Spurremphasized that he was very withdrawn for a longperiod of time before he became friendly with otherresidents. In conclusion, she testified that in her professionalopinion his dental problems made him veryself-conscious in his interaction and conversations withpeople.

Stone testified that she knew Donald Persico since1975 and that from the beginning of her service withhim he was an extremely disturbed child. A contributingfactor was his dental problems as evidencedby his tendency to put his hand over his mouth and tospeak very quietly. The report of the orthodontist,Herbert R. Edelstein, dated November 16, 1976,initially submitted to the defendant's dental consultant,was the only professional medical or dental evidencepresented to the hearing officer. In Edelstein's opinion,Donald Persico presents a class I malocclusion, witha severe maxillary overjet. His maxillary right lateralincisor tooth is ectopiccally erupted and is in a positionlingual to his central incisor tooth. There is a largediastama [sic] between his maxillary central incisor

[191 Conn. 388]

     teeth." The written denial of the claim by the defendant'sdental consultant, Harry D. Kiernan, simplyexpressed the exclusion of orthodontic services fromthe department's dental program. The defendantoffered no medical or dental opinion, or other oraltestimony or documentary evidence supporting hisdenial of the orthodontic services. The fair hearingrecord is devoid of any expert or professional evidencethat orthodontic services were not medically necessaryfor the treatment of Donald Persico's dental problemsand the improvement of his physical or psychologicalhealth by the correction of his malocclusion, as waspresented by the plaintiff's evidence at the hearing.

Thereafter, the hearing officer submitted a transcriptof the proceedings with the exhibits to a dental reviewteam (hereinafter DRT). On March 22, 1977, the DRTreplied as follows: "At your request the undersignedteam has reviewed the transcript of Fair Hearing notesof February 24, 1977, and the summary of Fair Hearings.There is no medical packet provided by the district.On the basis of the above and because the transcriptprovides no medical evidence that denial of orthodontictreatment would be detrimental to the health of thepatient, we concur with the decision made by the DentalConsultant to deny the request for orthodontic treatment.Also directive dated October 1, 1973 excludesorthodontic treatment from reimbursable dental services."(Emphasis added.)

On June 13, 1977, the fair hearing officer renderedhis decision. An analysis of the memorandum of decisionis pertinent here. Part A of the decision reviewedthe testimony of the department of children and youthservices social worker to the effect that the thirteenyear old child was emotionally disturbed and has beenplaced in the children's program of the Curtis Homesince September, 1974. It mentions that the director

[191 Conn. 389]

     of the program has sought for more than a year toobtain orthodontic treatment for the boy as part of theirtotal treatment program, but the request was deniedby the defendant's dental consultant as not beingcovered under the title XIX assistance program. PartB identified, without discussion or review, the documentaryevidence received at the hearing. At this point,the hearing officer wrote as follows: "In conclusion theappellant's attorney stated that when the dental determinationevaluation was completed she wished to becontacted. The attorney was subsequently contactedby two telephone calls and a letter dated 5/13/77 inwhich the possibility of resuming the Fair Hearing wasdiscussed. However, since the requesting orthodontistwas not available for a resumption, this request toreopen the hearing with the subsequent Dental ReviewTeam was not allowed."

Part C, entitled "ADDITIONAL SUBMISSION,"states that "[s]ubsequent to the hearing," the hearingtranscript and evidence "were submitted to a differentDental Review Team," and recited their report.(Emphasis added.)

Part D identified General Statutes 17-134 as therelevant statute providing the legal basis for theadministration of the title XIX program.1 In part E ofthe decision the hearing officer established that thedefendant's pertinent policy was to be found in: "1.Instructions to Participating Dentists dated 10/1/73from the Commissioner of the Department of SocialServices. 2. Manual Volume 3, Chapter III, Index #215and Index #215.2."

The brief and meager findings of fact of the hearingofficer are found in part F. These consist of the following:(1) the appellant is a noncommitted child whose

[191 Conn. 390]

     medical needs are being covered under title XIX; (2)an orthodontic treatment program was recommendedby his dentist; (3) this request was denied; and (4) onMarch 22, 1977, a "different Dental Review Team concurredwith the denial dated 12/30/76." Thereafter, inpart G, the hearing officer concluded: "Based on thetestimony and evidence presented and in accordancewith agency policy, the appellant's request for orthodonticwork was properly denied." (Emphasis added.)

The plaintiff then appealed to the Superior Court pursuantto General Statutes 4-183 of the UniformAdministrative Procedure Act (hereinafter UAPA)from the hearing officer's decision upholding theagency's decision. The trial court sustained the plaintiff'sappeal on many grounds. Finding that "`therewas, as a matter of law, but a single conclusion' whichthe Fair Hearing Officer could reasonably reach," thecourt remanded the case to the defendant, now thecommissioner of income maintenance by succession,2with instruction to grant the plaintiff's request onbehalf of her son that the orthodontic services be paidfor or furnished under Medicaid.

In the first question presented for review, the defendantclaims the court erred in concluding that the department'spolicy defined in its directive of October 1, 1973,and excluding orthodontic services from the statedMedicaid program is inconsistent with pertinent federalstandards and the objectives of title XIX, therebyrendering the policy and the hearing officer's decisionrelying upon it void. The directive before the court isaddressed to dentists and expresses the policies andprocedures governing the provision and payment for

[191 Conn. 391]

     dental services to beneficiaries of medical assistanceunder title XIX. Seven categories of treatment arespecified for the dental care program. "Exclusive" (sic)services include orthodontics, with this proviso:"Special consideration may be granted, upon request,for these procedures of an unusual nature not includedin the program, necessary to alleviate a serious healthproblem. In all such cases, the Dental Consultant shallhave the sole responsibility of authorizing or denyingsuch request, after reviewing all available supportiveevidence of need."

Under the provisions of General Statutes 17-134athe defendant "is authorized to take advantage of themedical assistance programs provided in Title XIX,entitled `Grants to States for Medical AssistancePrograms,' contained in the Social Security Amendmentsof 1965 and may administer the same in accordancewith the requirements provided therein . . .Title XIX establishes the Medicaid program underwhich Connecticut, as a participating state, may furnishfederally funded medical assistance to needy persons.42 U.S.C. § 1396a(a)(13)(B) requires that the stateplan for medical assistance must provide, as relevanthere by virtue of the approved aid and assistancefurnished to the plaintiff and her son, Donald Persico,under the aid to families with dependent childrenprogram,3 "at least the care and services listed inclauses (1) through (5) of section 1396d(a)" of theMedicaid program. Clause (4)(B) of 1396d(a) definesthe term "medical assistance" to include "such earlyand periodic screening and diagnosis of individuals whoare eligible under the plan and are under the age of21 to ascertain their physical or mental defects, andsuch health care, treatment, and other measures to corrector ameliorate defects and chronic conditions

[191 Conn. 392]

     discovered thereby, as may be provided in regulationsof the Secretary [of Health and Human Services,formerly Health, Education and Welfare]." The plaintiff'sclaim for orthodontic treatment of her son is madeunder this provision for early and periodic screening,diagnosis and treatment, commonly called EPSDT, ofindividuals under age twenty-one.

Pursuant to this statutory authority, the secretaryhas promulgated regulations which are binding uponthe states to provide EPSDT. These define EPSDT toinclude "[h]ealth care, treatment, and other measuresto correct or ameliorate any defects and chronic conditionsdiscovered." 42 C.F.R. § 440.40(b)(2). Under theregulations, "[a] State plan must provide that theMedicaid agency meets the requirements of 441.56-441.62,with respect to EPSDT services, as defined in440.40(b) of this subchapter." (Emphasis added.)42 C.F.R. § 441.55. Section 441.56(b)(2) stipulates asfollows: "Treatment. In addition to any treatment servicesincluded in the plan, the agency must provide thefollowing services, even if they are not included in theplan - (2) Dental care needed for relief of pain andinfections, restoration of teeth and maintenance ofdental health." The federal statutes further require that"[a] State plan for medical assistance must . . .include reasonable standards . . . for determiningeligibility for and the extent of medical assistance underthe plan which . . . are consistent with the objectivesof this title. . . ." 42 U.S.C. § 1396a(a)(17). "Thislanguage confers broad discretion on the States toadopt standards for determining the extent of medicalassistance, requiring only that such standards be `reasonable'and `consistent with the objectives' of theAct." Beat v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366,53 L.Ed.2d 464 (1977).

[191 Conn. 393]

The initial question that these federal statutes andregulations raise when applied to the facts of this caseis whether the exclusion of orthodontics in the state'splan or policy of October 1, 1973, subject to the provisothat special consideration may be granted forprocedures of an unusual nature not included in theprogram necessary to alleviate a serious health problemupon the sole authority of the dental consultant, afterreviewing all available supportive evidence of need, constitutesa "reasonable" standard for determiningeligibility for and the extent of medical assistance underthe state plan consistent with the objectives ofMedicaid. We conclude that as to this proviso the statepolicy of October 1, 1973, does not meet the federalrequirements and is, therefore, void. The state's policyof excluding orthodontia with a discretionary proviso,indefinite in nature and stricter than the federalrequirements, does not comply with the federal regulationsas to EPSDT services that the state pay underits Medicaid program for "[d]ental care needed for reliefof pain and infections, restoration of teeth andmaintenance of dental health." 42 C.F.R. § 441.56(b)(2).As the trial court below noted so aptly, "[t]here isa wide divergence between that which is necessary formaintenance of dental health as required by federalstandards and that which is necessary to alleviate aserious health problem under the Policy." The federalstatutes and regulations set a limit upon the authorityof the defendant as well as furnishing a guide to thestate's administration of the Medicaid program."[T]hus, where the state sets stricter standards foreligibility than those enumerated by the pertinentfederal law, the state standards are tacitly inconsistentwith those federal provisions." Morgan v. White,168 Conn. 336, 344, 362 A.2d 505 (1975).

[191 Conn. 394]

The defendant's refusal to provide orthodontictreatments under its Medicaid program for DonaldPersico was based on the policy of October 1, 1973,excluding such services. The policy's denial of orthodontictreatments to EPSDT beneficiaries, such as theplaintiff's son, violates the federal statutes andregulations and is, therefore, illegal and void.

In Brooks v. Smith, 356 A.2d 723 (Me. 1976), factsparallel to those in the case now being considered werepresented. The plaintiff mother sought orthodontictreatment for her daughter's oral deformity. Althoughorthodontia was recognized as greatly needed by thechild, the state agency's medical consultant deniedapproval of the necessary payment for such dental careon the ground that "the Medicaid Dental Program doesnot cover orthodontia." The fair hearing officer alsorecognized the need of orthodontia, but likewise foundno error in the refusal of payment because it "wasbased on the fact that this type of care is not coveredby the rules and regulations." The Superior Court, uponappeal, reversed the fair hearing officer after findingthat the child was entitled to orthodontic treatmentunder the Medicaid statutes and regulations and theMaine Medical Assistance Manual.

The Supreme Judicial Court of Maine in Brooksobserved (p. 727) that the position of the MaineMedicaid agency "was not that the federal statutes andregulations forbid the State's furnishing orthodontictreatment but, instead, that they do not require it andthat the [Maine] Department [of Health and Welfare]was free to adopt regulations excluding such treatmentin order to utilize more advantageously the limitedfunds available to it." The court did not agree.

The conclusion of the Maine court supporting paymentfor orthodontic treatment of the minor child was

[191 Conn. 395]

     predicated upon 42 U.S.C. § 1396a(a)(13)(B) requiringEPSDT for individuals under the age of twenty-one,pursuant to 1396d(a)(4)(B), and45 C.F.R. § 249.10(a) (now substantially 42 C.F.R. § 441.56[b]),requiring that a state agency provide dental careneeded for relief of pain and infections, restoration ofteeth and maintenance of dental health. With regardto the state's authority to impose utilization control,the court stated (p. 728) that that was not a grant ofauthority under Medicaid "to make available less treatmentthan that mandated by the federal regulation -that is, such `as is necessary for restoration of teethand maintenance of dental health.'" Applying the ruleof liberal construction in furtherance of the beneficentpurposes for which the remedial legislation of Medicaidwas enacted, the court found (pp. 729-30) thatorthodontia for the claimant, although not mentionedspecifically in the federal regulations, was intended tobe included in "treatment necessary for the maintenanceof her dental health" and the medical necessityfor such treatment was not contradicted by the commissionerto support his denial of this benefit. Thecourt, therefore, affirmed the payment and denied thestate's appeal.

The United States Court of Appeals for the Third Circuit,in Philadelphia Welfare Rights Organization v.Shapp, 602 F.2d 1114 (1979), cert. denied sub nom.Thornburgh v. Philadelphia Welfare Rights Organization,444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 660(1980), adopting the holding in Brooks, also ruled(p. 1123) that the federal regulations implementing theEPSDT program mandated "the provision of all dentalservices, including orthodontia, `needed for reliefof pain and infection, restoration of teeth, and maintenanceof dental health.'"

[191 Conn. 396]

The hearing officer in his decision in the present casealso relied upon another relevant agency policy, namely:"2. [Department of Income Maintenance] Manual Volume3, Chapter III, Index #215 and Index #215.2."Index No. 215, revised to January 3, 1976, in relevantpart, provided as follows: "Dental Care. Public Assistancerecipients and children committed to the Commissionerof Children and Youth Services are eligible fornecessary dental care. Dental care includes examinationand preventive and remedial services from the dentistor clinic of their choice. General Policies. Allprocedures except emergency care require prior authorizationby the Department of Social Services DentalConsultant. . . . All other services require the DentalConsultant's authorization, based on the dentist'sestimate of the minimum adequate needs of the patient,prior to performance. . . . Remedial. Remedial services,all of which require prior authorization by theDental Consultant, include . . . in certain circumstances,orthodontia." Index No. 215.2, revised toJune 11, 1969, outlined the procedure to be followedfor orthodontic treatment when needed because of acleft palate. We conclude that the policies of the defendantas expressed in the Department of Income MaintenanceManual, index No. 215 and index No. 215.2,like the policy defined in the instructional statementof October 1, 1973, also fail to meet the minimum standardset by federal law and regulation, and are, therefore,invalid and void.

Title XIX establishes two groups of needy persons:(1) the "categorically" needy, which includes needy persons,such as the plaintiff, with dependent children, andthe aged, blind and disabled; 42 U.S.C. § 1396a(a)(10)(A);and (2) the "medically" needy, which includes otherneedy persons. 42 U.S.C. § 1396a(a)(10)(C). Participatingstates, such as Connecticut, are required to

[191 Conn. 397]

     extend Medicaid coverage to the "categorically" needy,but not to the "medically" needy. Beat v. Doe, supra,440 n. 1. Under the provisions of 42 C.F.R. § 440.210,a state plan must specify that, as a minimum, "categorically"needy recipients are provided the servicesspecified in, inter alia, 440.40. Section 440.40(b)defines EPSDT to mean: "(1) Screening and diagnosticservices to determine physical or mental defects inrecipients under age 21; and (2) Health care, treatment,and other measures to correct or ameliorate any defectsand chronic conditions discovered. (See Subpart B ofPart 441 of this subchapter.)"

Subpart B of part 441 relates entirely to EPSDT ofindividuals under the age of twenty-one. Section 441.50thereof, entitled "Basis and purpose," states: "Thissubpart implements - (a) Section 1905(a)(4)(B) of theSocial Security Act, by prescribing State plan requirementsfor providing early and periodic screening anddiagnosis of eligible Medicaid recipients under age 21to ascertain physical and mental defects, and providingtreatment to correct or ameliorate defects and chronicconditions found. . . ." Section 441.55 provides that"[a] State plan must provide that the Medicaid agencymeets the requirements of 441.56-441.62, withrespect to EPSDT services, as defined in 440.40(b)of this subchapter." The required services listed in441.56(b) are the following: "Treatment. In additionto any treatment services included in the plan, theagency must provide the following services, even if theyare not included in the plan. . . . (2) Dental careneeded for relief of pain and infections, restoration ofteeth and maintenance of dental health."

Relevant to these provisions for EPSDT of individualsunder age twenty-one is also42 C.F.R. § 440.100(a): "`Dental services' means diagnostic,preventive, or corrective procedures provided by or

[191 Conn. 398]

     under the supervision of a dentist in the practice of hisprofession, including treatment of - (1) The teeth andassociated structures of the oral cavity; and (2) Disease,injury, or impairment that may affect the oral or generalhealth of the recipient." Finally, under42 C.F.R. § 440.230, further requirements and limitations arespecified as follows: "(a) The plan must specify theamount, duration, and scope of each service that it providesfor - (1) The categorically needy . . . (2) . . .(b) Each service must be sufficient in amount, duration,and scope to reasonably achieve its purpose. (c) TheMedicaid agency may not arbitrarily deny or reducethe amount, duration, or scope of a required service[for the categorically needy under 440.210] . . . toan otherwise eligible recipient solely because of thediagnosis, type of illness, or condition. (d) The agencymay place appropriate limits on a service based on suchcriteria as medical necessity or on utilization controlprocedures."

The policy of the defendant expressed in the Departmentof Income Maintenance Manual, Volume 3, ChapterIII, index No. 215 and index No. 215.2, as does thepolicy statement of October 1, 1973, fails to meet theminimum federal standard under these regulations forEPSDT of Donald Persico. The state's policy expressedin index No. 215 and index No. 215.2 is, therefore,invalid and void and cannot support the denial of medicallynecessary orthodontia.

The fair hearing officer based his conclusion thatDonald Persico's request for orthodontic work wasproperly denied "on the testimony and evidencepresented and in accordance with agency policy[1. Instructions to Participating Dentists dated 10/1/73from the Commissioner of the Department of SocialServices. 2. Manual Volume 3, Chapter III, Index #215and Index #215.2]." Since these two policy statements

[191 Conn. 399]

     are invalid and void as contrary to federal law and regulations,the fair hearing officer's reliance upon themcannot stand and his decision was properly overruledby the trial court.

II

The lower court ruled that even if federal standardswere not violated by the exclusion of orthodontia, adecision based by the fair hearing officer on the policydirective of October 1, 1973, must be reversed becausethe policy falls within the definition of a "regulation"under the Uniform Administrative Procedure Act(hereinafter UAPA). General Statutes 4-166 through4-189. Since it was not adopted pursuant to the statutoryrequirements, it is, therefore, void and invalid.

The defendant claims that the "Directive" of October1, 1973, effected no substantive change as to thestate's regulation, policy and plan in existence priorto January 1, 1972.4 It is his contention that insofaras orthodontia under the Medicaid program is concerned,"the Directive dated October 1, 1973 is nothingmore than a clarification of an existing Statewelfare regulation and State Plan which initially cameinto effect prior to January 1, 1972." Therefore, hestates, "[i]f the administrative rule in question does nothave a substantial impact on the rights and obligationsof parties in future hearings, it is not a substantive orlegislative rule." A second claim is that, in any event,the time for contesting the "Directive" has expiredbecause 4-168(c) stipulates that "[a] proceeding tocontest any regulation on the ground of noncompliancewith the procedural requirements of this section shall becommenced within two years from the effective date ofthe regulation." A third claim is that the "Directive" of

[191 Conn. 400]

     October 1, 1973, and the original regulation pertainingto orthodontia are merely interpretive of the federalMedicaid statutes and regulations and need not complywith the review, notice and hearing requirementsof the UAPA, even if considered substantive provisions,because the various participating states act as agentsfor the federal government in carrying out the provisionsof the federal Medicaid program. Since thedefendant did not act as an agent of the state but asan agent for the federal government, the defendantclaims that "UAPA has no application to the Directivedated October 1, 1973 and to the original regulationpertaining to orthodontia in existence prior to January1, 1972."

The department of income maintenance, like itspredecessor department of social services,5 is subjectto the provisions of the UAPA. The UAPA specifiesthe procedure for the adoption, amendment, or repealof administrative regulations. See General Statutes4-168, 4-169, 4-170 and 4-172. The defendant deniesthe applicability of these requirements to what hedenominates a "Directive."

"`Regulation' means each agency statement ofgeneral applicability, without regard to its designation,that implements, interprets, or prescribes law or policy,or describes the organization, procedure, or practicerequirements of any agency. The term includes theamendment or repeal of a prior regulation, but doesnot include (A) statements concerning only the internalmanagement of any agency and not affecting privaterights or procedures available to the public . . . or(C) intraagency or interagency memoranda." General

[191 Conn. 401]

     Statutes 4-166(7). A "regulation" is a regulation bywhatever designation it is called. "`The criteria thatdetermine whether administrative action is a "regulation"are neither linguistic nor formalistic. It is not conclusivethat an agency has, or has not, denominatedits action a "regulation" or that it has, or has not, promulgatedit procedurally in the fashion that would berequired of a "regulation." Salmon Brook ConvalescentHome, Inc. v. Commission on Hospitals & Health Care,177 Conn. 356, 362, 417 A.2d 358 (1979); Lewis-Motav. Secretary of Labor, 469 F.2d 478, 481-82 (2d Cir.1972). See also Greenwich v. Connecticut TransportationAuthority, 166 Conn. 337, 345, 348 A.2d 596(1974). The test is, rather, whether "a rule has asubstantial impact on the rights and obligations of partieswho may appear before the agency in the future."Salmon Brook Convalescent Home, Inc., supra, 362.'(Footnote omitted.) Maloney v. Pac, 183 Conn. 313,325-26, 439 A.2d 349 (1981)." Walker v. Commissioner,187 Conn. 458, 462-63, 446 A.2d 822 (1982). "Implicitin this formulation is the recognition that a regulationmust be a rule of sufficient generality to impingesubstantially on others who will deal with the agencyat a future time." Maloney v. Pac, supra, 326.

Measured by these criteria, the state's policy ofOctober 1, 1973, is clearly a regulation. It is a publicstatement to dentists in general, covering, by itsdeclaration of purpose, "policies and proceduresgoverning the billing and payment for dental serviceto welfare recipients who are eligible for medicalassistance under Title XIX." Its provisions havegeneral applicability, implementing, interpreting andprescribing Medicaid policy for dental services to eligiblewelfare recipients. To the dentists it describes theeligibility requirements of the agency and the practiceand procedure for obtaining state payment for covered

[191 Conn. 402]

     dental work. The policy constitutes a rule of sufficientgenerality to impinge substantially on dentists and theirwelfare patients who will deal with the agency at afuture time. By its precise terms it is clearly not aninterdepartmental statement or memorandum"concerning only the internal management of" thedepartment which does not affect "private rights orprocedures available to the public." The policy promulgatedby the defendant's predecessor agency onOctober 1, 1973, is unmistakably a regulation under theUAPA. See General Statutes 4-166(7).

The subordinate claim that "the Directive datedOctober 1, 1973 is nothing more than a clarification ofan existing State welfare regulation and State Planwhich initially came into effect prior to January 1,1972" is self-defeating. A "clarifying" revision of aregulation, even if that were the case here, which itis not, would constitute an amendment of the regulationand come within the express terms of the definingstatute, 4-166(7), which extends the meaning of"regulation" to include "the amendment . . . of aprior regulation."

The conclusion of the court that the policy of October1, 1973, is an administrative regulation is confirmedby the agency's use and reliance upon it to affect the"private rights" of the plaintiff and her son. The fairhearing officer in his decision relied upon these instructionsto participating dentists as the basic agency policy"in accordance with [which] . . . the appellant'srequest for orthodontic work was properly denied."Similarly, the dental review team in its report to thefair hearing officer concluded that the "directive datedOctober 1, 1973 excludes orthodontic treatment fromreimbursable dental services."

[191 Conn. 403]

The defendant's further claim, however, that evenif the policy of October 1, 1973, falls within the definitionof "regulation" within the UAPA, any challengeto its validity in this action is barred by the restrictionof 4-168(c) limiting any proceeding to contest aregulation on the ground of noncompliance with theprocedural requirements of the UAPA to "two yearsfrom the effective date of the regulation." This provisionhas never before been construed by our courts>.

Since, however, this question was not raised in thecourt below, it cannot be raised for the first time onappeal. "The supreme court shall not be bound to considera claim unless it was distinctly raised at the trialor arose subsequent to the trial." Practice Book 3063."Claims of law, to receive consideration in this court,must have been raised in the court below. They maynot for the first time be raised here." Bigionti v.Argraves, 152 Conn. 700, 701, 204 A.2d 408 (1964). Thisrule alerts the trial court to possible errors while thereis still opportunity to correct them. State v. Simms,170 Conn. 206, 212, 365 A.2d 821, cert. denied, 425 U.S. 954,96 S.Ct. 1732, 48 L.Ed.2d 199 (1976).

"While we are not `bound to consider' such claimsof error, and do not ordinarily do so, we have uponoccasion considered a question which was not so raised,not by reason of the appellant's right to have it determinedbut because in our opinion in the interest ofpublic welfare or of justice between individuals it oughtto be done." Leary v. Citizens & ManufacturersNational Bank, 128 Conn. 475, 478-79, 23 A.2d 863(1942). "We have held that, although an assignmentwas defective, important rulings might be consideredwhere counsel make them definite in their briefs."Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397,401, 279 A.2d 567 (1971). It appearing that thelimiting statute was overlooked in the court below and

[191 Conn. 404]

     that public welfare would be best served by resolvingthis issue, we will consider this claim of the defendant.

General Statutes 4-168(c) in its entirety reads asfollows: "No regulation adopted after January 1, 1972,is valid unless adopted in substantial compliance withthis section. A proceeding to contest any regulation onthe ground of noncompliance with the proceduralrequirements of this section shall be commenced withintwo years from the effective date of the regulation."Thus, there are two separate parts to this statute. Thefirst part of 4-168(c) is designed to protect the publicfrom regulations adopted under any name or classificationwithout observing the procedural safeguards in theUAPA for the information, input and review of thepublic. The second part of the law, the statute of limitations,applies specifically to "[a] proceeding to contestany regulation on the ground of [procedural] noncompliance"in its adoption. Such a proceeding can beinitiated by a party plaintiff only after a regulation hasbeen admitted or identified to be such prior to the courtproceeding. Otherwise, administrative agencies couldambush the public by adopting regulations under"pseudonyms" to which the statutory steps for adoptingregulations would appear not to apply until too late.Such would be the case here where the defendant wouldhave us apply the statutory restriction after a long-delayedreclassification of what was properly, but notknown to be, a regulation at its origin. The limitationof action in 4-168(c) is inapplicable to this administrativeappeal.

The last claim of the defendant relevant to theadministrative classification of the policy of October1, 1973, contends that this "Directive" is simplyinterpretive of the federal Medicaid statutes and regulationsand is not subject to the "regulation" requirementsof the UAPA, even if considered substantive provisions.

[191 Conn. 405]

This is so, according to the defendant, becausethe department of income maintenance, as was itspredecessor, is not a state agency in this regard, butan agent of the federal government in administeringthe national Medicaid program locally.

The answer to this unusual claim is found in thefederal and state statutes. 42 U.S.C. § 1396 authorizesannual federal Medicaid appropriations to "Stateswhich have submitted, and had approved . . . plansfor medical assistance." Reciprocally, in enactingGeneral Statutes 17-134a our legislature has authorizedthe defendant to accept the federal Medicaidgrants and administer them in accordance with thefederal requirements. To implement the state program,the defendant, under 17-134d, must "make suchregulations as are necessary to administer the medicalassistance program." To these regulations, such as thepolicy of October 1, 1973, the provisions of the UAPAprescribing a statutory method for the adoption,amendment or repeal of any regulation, 4-168, 4-169,4-170 and 4-172, apply.

As a regulation subject to the UAPA, the defendant'spolicy of October 1, 1973, was required to be promulgatedwith certain formalities. Since this policy was notadopted in accordance with the procedural requirementsof 4-168, 4-169, 4-170 and 4-172, it may notbe enforced to deny the plaintiff's application forMedicaid funds to pay for Donald Persico's medicallynecessary orthodontic treatment.

III

After determining that more than ninety days hadelapsed between the date of the plaintiff's request fora fair hearing and the date of the officer's decision, the

[191 Conn. 406]

     court held that the violation of the ninety day rulerequired the defendant to grant the relief requested.The defendant claims error in this ruling.

On January 28, 1977, the plaintiff requested a fairhearing to determine whether title XIX covered thecost of her son's orthodontic work. The fair hearingwas held on February 24, 1977. The officer's decisionwas rendered on June 13, 1977, 136 days after therequest for such hearing. The defendant concedes thatstate law and federal regulations require him to takedefinitive administrative action within ninety days afterthe fair hearing request, but blames the plaintiff'scounsel for delaying the decision by requesting aresumption of the fair hearing. For this purpose thedefendant unsuccessfully sought to amend the administrativerecord in the lower court by submitting asexhibits correspondence between the plaintiff's counseland the fair hearing officer.6 He also claims errorin this ruling.

42 U.S.C. § 1396a(a) requires that "[a] State planfor medical assistance must . . . (3) provide for grantingan opportunity for a fair hearing before the Stateagency to any individual whose claim for medical assistanceunder the plan is denied or is not acted uponwith reasonable promptness." 42 C.F.R. § 431.244(f)promulgated under title XIX requires that "[t]heagency must take final administrative action within 90days from the date of the request for a hearing." GeneralStatutes 17-2b tracks the federal regulationand provides that "final definitive administrative action

[191 Conn. 407]

     shall be taken by the commissioner or his designeewithin ninety days after the request of such [fair] hearingpursuant to section 17-2a."

The lower court based its ruling on Labbe v. Norton,U.S. District Court, D. Conn., Docket No. H-136,November 4, 1974. In Labbe the court considered a similarninety day rule; 45 C.F.R. § 205.10(16); to titlesI, IV-A, X, XIV and XVI, the Social Security Act, andordered, except where a petitioner for a fair hearinghas requested a delay, or has failed to appear for ascheduled hearing, that the defendant's predecessor"grant whatever relief is requested in fair hearingrequests filed by applicants for and recipients of categoricalassistance benefits . . . in whose cases finaladministrative action is not taken within ninety (90)days of the date they originally filed their request fora fair hearing. . . ." Since Labbe was a proper classaction, its ruling was held to apply to all applicants forfair hearing.

We find that the Labbe rule applies to the same provisionfor ninety day administrative adjudication of Medicaidclaims found in 45 C.F.R. § 431.244 and in GeneralStatutes 17-2b, and now before the court. Section4-180(b) of the UAPA which provides that if an administrativeagency fails to render a final decision in a contestedcase following the close of evidence and filingof briefs as required by subsection (a), a party or interestedperson may seek a Superior Court order requiringthe agency to render a decision forthwith, afterhearing, is inapplicable to the case before the court.The relevant federal regulation applicable here takesprecedence in judicial consideration of the question.

In Labbe, the court made a single exception to theninety day requirement for a fair hearing decision "inthose cases in which the petitioner for a fair hearing

[191 Conn. 408]

     has requested a delay, or has failed to appear for ascheduled hearing." In the present case the defendantclaims that the plaintiff's counsel delayed the officer'sdecision by requesting a resumption of the fair hearing.To establish such delay the defendant sought toamend the administrative record in the lower court bysubmitting as exhibits correspondence between theplaintiff's counsel and the fair hearing officer. The courtrejected this offer of evidence as being beyond theadministrative record in the appeal before it. In thisthe court erred. Under Labbe, the defendant shouldhave been allowed to prove that the delay in the fairhearing officer's decision resulted from the plaintiff'srequest.

IV

Since there was, in the judgment of the lower court,as a matter of law, but a single conclusion which thefair hearing officer could have reasonably reached, thecourt, after sustaining the appeal, pursuant to 4-183(g)modified the decision appealed from because it was"`clearly erroneous in view of the reliable, probativeand substantial evidence on the whole record'" andremanded the matter to the defendant with directionto grant the requested relief. The defendant claims thiswas an erroneous substitution of the court's judgmentfor that of the defendant. We agree.

Section 4-183(g) of the UAPA provides that "[t]hecourt may affirm the decision of the agency or remandthe case for further proceedings. The court may reverseor modify the decision if substantial rights of theappellant have been prejudiced because the administrativefindings, inferences, conclusions, or decisionsare . . . (5) clearly erroneous in view of the reliable,probative, and substantial evidence on the wholerecord. . . ." On appeal from the final order of an

[191 Conn. 409]

     administrative agency, such as the defendant, the trialcourt does not try the case de novo. It is not the functionof the court to adjudicate the facts. The court cando no more, on the factual questions presented, thanto examine the record to determine whether theultimate findings were supported, as the statuterequires, by substantial evidence. Norwich v. NorwichFire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977)."This so-called substantial evidence rule is similar tothe `sufficiency of the evidence' standard applied injudicial review of jury verdicts, and evidence issufficient to sustain an agency finding if it affords `asubstantial basis of fact from which the fact in issuecan be reasonably inferred. . . . [I]t must be enoughto justify, if the trial were to a jury, a refusal to directa verdict when the conclusion sought to be drawn fromit is one of fact for the jury.'" Lawrence v. Kozlowski,171 Conn. 705, 713, 372 A.2d 110 (1976), cert. denied,431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977).

Our review of the record discloses that the courterred in holding that as a matter of law there wassubstantial evidence to support the plaintiff's applicationbefore the fair hearing officer. Other than thedental description of Donald Persico's malocclusion inthe appraisal of Edelstein submitted to the fair hearingofficer, there was no medical or dental testimonypresented at the hearing in support of the medicalnecessity for the requested orthodontic treatment. Thetestimony of Stone, a protective services worker of thedepartment of children and youth services, and Spurr,a registered nurse and child care worker at the CurtisHome, described the misalignment of the boy's teeth,including one instance of bleeding from soreness of thegums, and the psychological behavior appearing toresult from his dental problems. The totality of theevidence before the fair hearing officer cannot be said

[191 Conn. 410]

     to constitute "substantial evidence," as a matter of law,supporting the court's finding that only one conclusionsupporting the plaintiff's application could be reached,thereby compelling a modification of the administrativedecision and directed order to the defendant. Thetrial court failed to make the finding required underthe EPSDT program for the requested Medicaid paymentthat the orthodontic treatment of Donald Persicowas "needed for relief of pain and infections, restorationof teeth and maintenance of dental health."42 C.F.R. § 441.56(b)(2). The court's conclusion that thedecision of the fair hearing officer was "clearly erroneousin view of the reliable, probative, and substantialevidence on the whole record" is, therefore, unsupported.General Statutes 4-183(g)(5).

We conclude that the lower court exceeded its scopeof review beyond the statutory circumscription bysubstituting its judgment for that properly reserved tothe administrative agency. The court should have goneno further than to have sustained the appeal. "It is wellestablished that where a trial court has found that anadministrative agency has made invalid or insufficientfindings, such court must remand the matter to theagency for further proceedings. Bogus v. Zoning Boardof Appeals, 165 Conn. 749, 345 A.2d 9 [1974]; Watsonv. Howard, 138 Conn. 464, 86 A.2d 67 [1952]."Hartford v. Hartford Electric Light Co., 172 Conn. 71,73, 372 A.2d 131 (1976).

V

The lower court further held that the decision of thefair hearing officer required reversal because of whatit termed "unusual procedure employed by him." Afterthe hearing was closed, the officer solicited the opinionand accepted into evidence a report of a second dentalreview team without giving the plaintiff an opportunity

[191 Conn. 411]

     to confront or to cross-examine its authors. The defendantclaims that the court erred in this conclusion. Wedo not agree.

In his memorandum of decision the fair hearingofficer asserts that "[s]ubsequent to the hearing, atranscript of the Fair Hearing notes, and evidencemarked exhibits A, B, C, and D were submitted to adifferent Dental Review team." The report of thisdental review team is set forth fully in the fair hearingofficer's recital of the evidence before him. Thisteam submitted its professional conclusion as follows:"On the basis of the above and because the transcriptprovides no medical evidence that denial of orthodontictreatment would be detrimental to the health of thepatient, we concur with the decision made by the DentalConsultant to deny the request for orthodontic treatment.Also directive dated October 1, 1973 excludesorthodontic treatment from reimbursable dentalservices."

In submitting the transcript and evidence before himto the dental review team for its evaluation and conclusionas part of his determination of the minor child'sright to orthodontic treatment under Medicaid, the fairhearing officer violated the precise requirements of thefederal regulations pertinent to his duties under titleXIX. 42 C.F.R. § 431.240 governs the conduct of fairhearings and provides in subsection (b) that if the hearingofficer considers it necessary to have a medicalassessment, such medical assessment by a physicianor review team must be made a part of the hearingrecord. The procedural rights of the applicant at thehearing are recited in 42 C.F.R. § 431.242. Subsection(a)(2) specifies that the applicant must be given anopportunity to examine at a reasonable time before thedate of hearing and during the hearing all documentsand records to be used by the agency at the hearing.

[191 Conn. 412]

Subsection (e) further provides that the applicant mustbe given the opportunity to question or to refute anytestimony or evidence, including an opportunity to confrontand cross-examine adverse witnesses.

The fair hearing officer violated these federal regulationsby not making the dental review team's reporta part of the hearing record available for examinationby the plaintiff with opportunity to question or refutesuch evidence. Whether the members of the dentalreview team were adverse witnesses need not bedecided here, but their conclusions should have beenavailable to the plaintiff for refutation at the fairhearing.

There is error in part, the case is remanded to thetrial judge for the sole purpose of determining whetherthe delay in the decision of the fair hearing officer wasbrought about as a result of the plaintiff's request. Ifthe trial judge so finds then the judgment is set asideand the trial court is directed to render a judgment sustainingthe appeal. If the trial judge does not so findthen there is no error.

In this opinion the other judges concurred.

1. The correct statutory citation is General Statutes 17-134a.

2. Effective January 1, 1979, the commissioner of social servicesbecame the commissioner of income maintenance. Public Acts 1977, No. 77-614,608, 610.

3. 42 U.S.C. § 1396a(a)(10)(A).

4. The UAPA became effective on this date. Public Acts 1971, No.854, 21.

5. On January 1, 1979, by reorganization of the executive branchof the state government, the department of income maintenance became thesuccessor department to the department of social services. Public Acts1977, No. 77-614, 608 through 610. See footnote 2, supra.

6. The defendant also sought to introduce the report of the dentalreview team to the fair hearing officer dated March 22, 1977. Insofar asthis report was contained in the decision of the fair hearing officerappealed from to the court and properly in the record, this effort wasunnecessary and the defendant makes no claim of error relative to the

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