The opinion of the court was delivered by: Dan Pellegrini, Judge
Submitted: September 30, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION BY JUDGE PELLEGRINI
George and Ann Lehmann, Parents and Natural Guardians of C.L. (Appellants), petition for review of a final order by the Secretary of the Department of Public Welfare (Department) stating that growth hormone therapy was not medically necessary for their son, C.L. This appeal comes to us as a result of our remand in Lehmann v. Department of Public Welfare (No. 1753 C.D. 2008, filed May 1, 2009), where we ordered that new credibility decisions in the findings of fact be made because the previous credibility determinations were based on an incorrect reading of the record. Based on the new credibility determinations and findings of fact, the ALJ found that growth hormone therapy was medically necessary, but the Secretary of the Department (Secretary) reversed. Because the Secretary acted outside his scope of review in reversing the ALJ determination, we reverse the order of the Secretary and reinstate the February 8, 2010 Order of the Bureau of Hearings and Appeals affirming the February 8, 2010 decision of the Administrative Law Judge (ALJ).
While we explained the facts more fully in our previous decision, we will repeat some of those facts in this appeal for purposes of clarity. This case centers on the Department's denial of the Appellants' request for growth hormone therapy on behalf of C.L.. C.L. is a participant in Pennsylvania's Medical Assistance Program (MAP)*fn1 and as a participant in MAP, he is enrolled in the Gateway Health Plan (Gateway), which is a managed care organization contracted to provided medical services to MAP participants.
The Appellants timely appealed Gateway's denial to the Department. On January 2, 2007, an ALJ conducted a hearing via teleconference. Appellants appeared and represented themselves, while Gateway was represented by a physician and an attorney. The ALJ denied the Appellants' appeal, opining that while the growth hormone therapy was medically indicated and medically necessary for individuals with growth hormone deficiency, testing did not indicate that C.L. suffered from such a deficiency. The Department issued a final order on January 5, 2007, affirming the ALJ's order. Appellants filed a Petition for Reconsideration, which was granted on January 31, 2007. On May 18, 2007, the Secretary issued a final order upholding the January 5, 2007 order denying the Appellants' appeal. The Appellants appealed to this Court, and based on a joint stipulation of the parties, we remanded the matter to the Department for a second hearing on the merits.
On March 31, 2008, a hearing was held before ALJ Nicole J. Rademan (ALJ Rademan), during which the Appellants submitted, among other exhibits, Dr. Guttman-Bauman's Letter of Medical Necessity dated March 23, 2006, Dr. Nussbaum's Letter of Medical Necessity dated April 18, 2006, and Dr. GuttmanBauman's clinical notes from C.L.'s medical visits. Background information on Idiopathic Short Stature and case studies of hormone replacement therapy in children with Kabuki Syndrome*fn2 were also presented. In Dr. Nussbaum's letter, he indicated that C.L. was a twelve-year-old with Kabuki syndrome and suffered from postnatal growth retardation, as he was growing below the fifth percentile. Dr. Nussbaum also noted that C.L. was seen by Dr. Guttman-Bauman, who felt that he had idiopathic growth retardation. Dr. Nussbaum further noted that regardless of the results of a growth hormone deficiency test, C.L. qualified for treatment with growth hormone because of his growth pattern. He noted that he reached this determination because C.L's growth pattern dropped off as would someone with growth hormone deficiency, and also because children with Kabuki Syndrome have also been noted to have short stature. Dr. Nussbaum further pointed out that because there are such a small number of children with this syndrome, it is impossible to tell whether the growth hormone would work.
Also submitted were Dr. Guttman-Bauman's May 15, 2006 clinical notes, in which she diagnosed C.L. with Idiopathic Short Stature based on his current height and final height prediction. She also recommended growth hormone treatment and noted that C.L. had a history of Kabuki Syndrome and Idiopathic Short Stature. In her August 31, 2006 clinical notes, Dr. Guttman-Bauman again noted the history of Kabuki Syndrome and Idiopathic Short Stature and recommended continuing growth hormone treatment because of the improvement in C.L's height after taking Norditropin for several months. In her February 7, 2008 clinical notes, Dr. GuttmanBauman further noted that C.L. was a rare survivor of Kabuki Syndrome, as most children with the syndrome were generally not expected to live longer than seven years.
Gateway presented the testimony of Edwin Kairis, M.D. (Dr. Kairis), its Medical Director and a board-certified pediatrician. Dr. Kairis testified that Norditropin was a type of growth hormone used to treat growth hormone deficiency in both pediatric and adult patients, and was also used to treat Idiopathic Short Stature, which literally means short stature without an explainable cause. Dr. Kairis further testified that testing indicated that C.L. did not have a growth hormone deficiency and no other specific diagnoses for growth hormone therapy applied. Dr. Kairis discussed Kabuki Syndrome and explained that postnatal short stature is among its characteristic skeletal abnormalities.
Dr. Kairis testified that growth hormone therapy was not medically necessary for C.L. because Kabuki Syndrome is a congenital condition and C.L.'s short stature was an extension of those conditions, so growth hormones would not be expected to prevent the onset of short stature or any other condition. Additionally, Dr. Kairis said he did not believe growth hormone therapy could be reasonably expected to reduce or ameliorate the physical, mental, or developmental effects of C.L.'s condition because testing demonstrated that C.L. did not have a growth hormone deficiency and use of growth hormone in patients with short stature associated with Kabuki Syndrome was not clinically supported by available medical literature. Because there was no clinical support for this treatment, growth hormone therapy was not expected to assist C.L. in achieving or maintaining maximum functional capacity in performing daily activities.
In regard to Dr. Guttman-Bauman's diagnosis and prescribed treatment, Dr. Kairis said there was no support in the medical community for growth hormone treatment for Kabuki Syndrome. He did not agree with Dr. Guttman-Bauman's recommendation that growth hormone treatment was appropriate because C.L. qualified under his Idiopathic Short Stature diagnosis. Rather, Dr. Kairis said that C.L.'s short stature was not idiopathic or without an explainable cause, but was a known finding in children with Kabuki Syndrome. Dr. Kairis also testified that Dr. Guttman-Bauman's notes from November 14, 2005 and January 25, 2006 failed to mention Idiopathic Short Stature, but the notes from May 15, 2006 and August 31, 2006 did mention the diagnosis, after the insurer denied growth hormone therapy on February 17, 2006.*fn3
ALJ Rademan determined that Gateway was correct in denying the Appellants' request for growth hormone treatment because it was not medically necessary and denied the appeal. Specifically, ALJ Rademan found Dr. Kairis' testimony to be credible and noted that the documentary testimony provided by the Appellants' physicians was not credible. Additionally, ALJ Rademan found that it was not the standard of care within the medical community to treat Kabuki Syndrome with growth hormone therapy, but it was the standard of care to use growth hormone therapy to treat Idiopathic Short Stature. She also found that C.L. does not have Idiopathic Short Stature, but rather, his short stature is secondary to Kabuki Syndrome. Finally, she found that C.L. was not diagnosed with Idiopathic Short Stature until after the insurer denied the request for growth hormone therapy. This last fact ALJ Rademan noted "severely undercuts their credibility . particularly as they have provided no explanation for this discrepancy." (Remand Adjudication of May 5, 2008, at 7). ALJ Rademan concluded that because there was no evidence that growth hormone therapy would improve the symptoms of Kabuki Syndrome, it was not medically necessary.
The Department affirmed ALJ Rademan's Remand Adjudication on May 5, 2008. It then granted Appellants' Petition for Reconsideration, but issued a final order on August 14, 2008, upholding the May 5, 2008 decision. Appellants appealed to this Court. On May 1, 2009, we vacated and remanded the May 5, 2008 decision because ALJ Rademan's credibility determinations were based on incorrect facts; specifically, ALJ Rademan incorrectly stated that the diagnosis of Idiopathic Short Stature came only after the initial denial of growth hormone treatment by the insurer and largely based her credibility findings on this misconception.
On remand, ALJ Robert Brittain (ALJ Brittain) found that the growth hormone therapy "was medically necessary because it is reasonably expected to reduce or ameliorate the physical and development effects of [C.L.'s] Idiopathic Short Stature." (Remand Adjudication at 9). In arriving at this conclusion, he found "that the opinions in the testimony of Gateway's witnesses are outweighed by the competent ...