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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

WEST VIRGINIA DEPARTMENT OF

HEALTH AND HUMAN RESOURCES, 

BUREAU FOR MEDICAL SERVICES,

Respondent Below, Petitioner

v.) No. 23-ICA-147 (Bd. of Rev. No. 23-BOR-1094) 

MARA FORLOINE, 

Appellant Below, Respondent

MEMORANDUM DECISION

Petitioner Bureau for Medical Services for the West Virginia Department of Health 

and Human Resources (“BMS”) appeals the March 14, 2023, decision of the West Virginia 

Department of Health and Human Resources’ Board of Review (“Board”). Respondent 

Mara Forloine (“Respondent”) filed a timely response.1 BMS filed a reply. 

The issue on appeal is whether the Board erred in reversing Aetna’s2 denial of

certain Medicaid benefits and covered services. The Board found that the Respondent’s 

requested services, specifically frontal cranioplasty, hairline advancement, and orbital rim 

recontouring, were covered procedures as they were medically necessary.3 BMS now 

appeals the Board’s decision. 

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ briefs, the record on appeal, and the applicable 

law, this Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the Board’s March 14, 2023, decision is 

appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.

1 Bureau for Medical Services is represented by Patrick Morrisey, Esq., Michael R. 

Williams, Esq., and Gary L. Michels, Esq. Mara Forloine is represented by Lydia C. 

Milnes, Esq. and Lesley M. Nash, Esq.

2 Aetna is a Managed Care Organization, designated through BMS’s authority to 

assist in the administration of Medicaid benefits. 

3 The Board affirmed Aetna’s denial of a non-covered brow lift procedure, which is 

not subject to this appeal. 

FILED

May 23, 2024

ASHLEY N. DEEM, DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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Respondent is a thirty-seven-year-old Medicaid recipient who requested payment 

for surgical procedures to address her gender dysphoria. In December of 2022, Jesse 

Goldstein, M.D., a plastic and craniofacial surgeon at the Children’s Hospital of Pittsburgh, 

faxed Aetna a prior-authorization request form for Respondent. The request sought 

authorization for four facial procedures for Respondent: frontal cranioplasty, brow lift, 

hairline advancement, and orbital rim recontouring. Aetna denied the prior-authorization 

request on the basis of Respondent’s lack of medical necessity for what it determined were

cosmetic procedures. In January of 2023, Respondent appealed this denial through Aetna’s 

internal appeal process. Respondent argued that the surgeries are to treat gender dysphoria, 

citing certain standards from the World Professional Association for Transgender Health 

(“WPATH”). In connection with that appeal, Dr. Goldstein submitted a letter stating that 

the procedures were medically necessary. Dr. Goldstein attached a letter from Catherine 

Mereb, M. Ed., Respondent’s treating psychologist in Montreal, Canada. Ms. Mereb’s 

letter also suggested the procedures were medically necessary. Aetna’s appeal committee, 

consisting of the Director of Regulatory Affairs, Senior Manager of Corporate Compliance, 

Chief Operations Officer, Managers of Clinical Health Services, and Clinical Team Leads, 

considered, and denied Respondent’s appeal. The appeal committee determined these 

surgeries to be non-covered procedures under the Medicaid policy manual. Respondent 

appealed to the Board. 

State Hearing Officer Todd Thornton conducted a hearing in late February of 2023. 

At the hearing, Respondent argued that the denial violated a federal District Court 

injunction in Fain v. Crouch, 618 F. Supp.3d 313 (S.D. W. Va. 2022), that the treatment 

was medically necessary (particularly in light of the WPATH Standards of Care), that 

BMS’ policies make an inappropriate distinction between cosmetic and non-cosmetic 

procedures, and that Aetna had previously informed Respondent that the procedures would 

be approved. In rebuttal, BMS offered no evidence regarding the medical necessity of the 

procedures, and no expert testimony of any kind. BMS failed to raise any issue regarding 

coverage conditions or the effect of the failure of the Respondent to comply with such 

conditions.4In its March 14, 2023, order, the Board concluded that the evidence on the 

record established the medical necessity for three of the surgical procedures. The Board

concluded that BMS was incorrect in denying the procedures simply because they were 

cosmetic without offering any evidence disputing the alleged medical necessity. The Board

ordered BMS to cover all the procedures except the brow lift, as it was expressly listed in 

the BMS Policy Manual as a non-covered procedure. BMS filed this timely appeal. 

4 BMS and the Department of Health and Human Resources (“DHHR”) appeared at 

the State Hearing Officer’s evidentiary hearing without counsel and only provided the 

following five exhibits: (1) Policy Chapter for Gender Affirming Surgery, (2) Initial 

Authorization Form, (3) Initial Denial From Aetna, (4) Written Statement of Appeal and 

Medical Records, and (5) Final Denial From Aetna. The record reflects that without an 

attorney present, BMS and DHHR were not permitted to cross-examine the Respondent’s 

testimony and did not provide closing arguments.
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On June 23, 2023, while this appeal was pending, Respondent filed a federal civil 

action in the Southern District of West Virginia, seeking a preliminary injunction requiring 

BMS and Aetna to implement the March 14, 2023, decision. On August 1, 2023, the 

District Court entered a Memorandum Opinion and Order, granting the preliminary 

injunction to Respondent. In considering the overriding federal issues presented, the 

District Court concluded that BMS’ federally approved hearing system designated the 

Board as the final decisionmaker for the Medicaid agency; that under federal law, the 

decision was “binding and conclusive” upon the agency; and that federal law could bar the 

state Medicaid agency from appealing its own final agency action. Forloine v. Coben, No. 

3:23-0450 (S.D. W. Va. Aug. 1, 2023). 

Our standard of review is set forth in West Virginia Code § 29A-5-4(g) (2021), in 

part, as follows:

The court may affirm the order or decision of the agency or remand the case 

for further proceedings. It shall reverse, vacate, or modify the order or 

decision of the agency if the substantial rights of the petitioner or petitioners 

have been prejudiced because the administrative findings, inferences, 

conclusions, decision, or order are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and substantial evidence 

on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly 

unwarranted exercise of discretion.

“The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential 

ones which presume an agency’s actions are valid as long as the decision is supported by 

substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 

S.E.2d 483 (1996). Although findings and decisions are entitled to considerable deference, 

reviewing courts are not required to “rubber stamp” agency determinations, “even when 

credibility assessments are at issue.” Id. at 447, 473 S.E.2d at 488. In reviewing agency 

decisions, courts must determine not just whether the decision is supported by “substantial 

evidence,” but “whether its findings and conclusions were adequately explained.” Id. at 

446, 473 S.E.2d at 487. An appeal of a decision as to the conclusions of law and application 

of law to the facts is reviewed de novo. Cahill v. Mercer Cnty. Bd. of Educ., 208 W.Va. 

177, 539 S.E.2d 437 (2000). With this standard in mind, we consider the issues raised on 

appeal.

On appeal, BMS alleges four points of error: first, that the Board should not have 

heard Respondent’s administrative appeal because it did not have authority to hear a claim 
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concerning non-covered Medicaid services; second, that the Board erred in concluding that 

Respondent established, by a preponderance of the evidence, that the surgical procedures 

were medically necessary; third, that the Board erred in tacitly concluding that Respondent 

complied with all conditions of coverage, including requirements that Respondent and 

Respondent’s providers document the need for surgery; and lastly, that Fain v. Crouch, a 

federal court decision enjoining a different coverage exclusion, does not decide this case.5

618 F. Supp.3d 313. After a review of the record, we find no error. The Board possessed 

jurisdiction to review the contested covered services and was not clearly wrong in reversing 

Aetna’s denial decision on the scant evidence present before it. As to the remaining 

assignments of error, it is apparent that such objections were not properly preserved below 

as to allow this Court an ability to review such alleged errors.

As a preliminary matter, Respondent argues that this Court lacks jurisdiction to 

review this administrative action pursuant to Medicaid regulations and discussions 

contained in Forloine v. Coben, No. 3:23-0450 (S.D. W. Va. Aug. 1, 2023). We find such 

arguments to be unpersuasive. Pursuant to federal law, one agency must both administer 

the Medicaid program and issue final administrative actions on covered and non-covered 

services. See 42 C.F.R. §§ 431.10(e)(3)(2013) and 431.244(f)(1) (2017). Neither the 

Medicaid statutory provisions nor the implementing regulations define “final 

administrative action.” However, as evidenced in dicta from Forloine v. Coben, the District 

Court cited language in West Virginia’s State Plan and implementing Medicaid Manual to 

suggest such actions taken by a Hearing Officer or Board to be “final” and “conclusive.”

See State Medicaid Manual § 2903.2(A), ECF No. 6-3; State Plan at 3, ECF No. 6-6. We 

disagree with such assessment. The fact that an administrative decision is “final” and 

“conclusive” does not foreclose judicial review of such a decision and such judicial review

is not a substitute for the single agency administration of policies and decisions. BMS 

remains the sole agency responsible for determining coverage, which satisfies the federal 

single agency requirement. However, the record made before the single agency can be 

reviewed by this Court on appeal without running afoul of federal law. Such judicial review 

of these agency decisions was plainly contemplated. Specifically, State Medicaid Manual 

§ 2903.2(D) provides: “In the notice of decision advise the claimant of the right of judicial 

review if it is prescribed by State statute specifically authorizing review of agency 

decisions on the basis of the record of administrative proceedings, or if there is other 

provision for judicial review under State law.” Moreover, West Virginia Code § 16-1-22a 

(2023) provides: 

(c) Any party adversely affected or aggrieved by a final decision or order of 

the agency may seek judicial review of that decision by filing an appeal to 

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In briefing both parties agreed that Fain v. Crouch was not dispositive nor relevant 

to the administrative appeal before this Court, as such this assignment of error shall receive 

no consideration.
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the Intermediate Court of Appeals as provided in § 29A-5-4 et seq., of this 

code.

(d) The process established by this section is the exclusive remedy for 

judicial review of final decisions of the Board of Review and the Bureau for 

Medical Services. 

This Court squarely dealt with the issue of whether DHHR can appeal its 

administrative proceedings in West Virginia Department of Health and Human Resources 

Office of Health Facility Licensure and Certification v. Heart 2 Heart Volunteers, Inc., 249

W. Va. 464, 896 S.E. 2d 102 (Ct. App. 2023). In Heart 2 Heart, we concluded that under 

the Administrative Procedures Act (“APA”), West Virginia Code § 29A-5-4(a), the West 

Virginia Legislature provided that “[a]ny party adversely affected by a final order or 

decision in a contested case is entitled to judicial review thereof under this chapter[.]” Id. 

at --, 896 S.E.2d at 106. In that case, it is undisputed that DHHR was a party before the 

Board and that DHHR was a “party adversely affected by a final” decision in a contested 

case before the Board, therefore, we concluded that DHHR possessed standing to appeal 

the Board’s decision. That decision centered around the independent nature of the Office 

of Inspector General (“OIG”) which established the Board as a separate statutorily created 

tribunal, operating under the authority of the DHHR and within the OIG. The Board is a 

quasi-independent agency designed to provide quality control for programs under the 

DHHR. See W. Va. Code § 9-2-6(13) (2023). Neither the Secretary of DHHR nor 

OHFLAC, or in this instance BMS, have control over any decisions issued by the Board. 

In accordance with this Court’s Heart 2 Heart opinion, we likewise conclude that BMS 

possesses standing to bring this appeal. Nothing in Federal Medicaid laws and regulations 

expressly preempts such judicial review. 

As for the jurisdictional question raised by the Petitioner pertaining to the Board, 

we find the Board has the authority to review whether a specific procedure falls within a 

covered category. See 42 C.F.R. §§ 431.220(a)(1) (2017). The question presented before 

the Board was a factual determination regarding medical necessity and whether the

requested procedures were excluded under the policy. The policy does not provide an 

exhaustive list which categorizes all procedures as non-covered or covered. The policy 

allows medically necessary procedures to be covered. To come to a determination on what 

is covered, a factual determination must be made concerning medical necessity. This is a 

question that the can be appealed to the Board. Therefore, we find BMS’ assignment of 

error that the Board did not have authority to hear a claim concerning non-covered 

Medicaid services to be without merit.

Upon a thorough review of the record, this appears to be a case of poorly preserved 

objections and lack of assertions on behalf of BMS below. The evidentiary proceeding, if 

one should even refer to it as such, is best described as summarily short-cited arguments 

on behalf of BMS without contrary evidence nor articulated contentions sufficient to 
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preserve appellate review. We find BMS’ assertion that the evidence of medical necessity 

failed to satisfy the preponderance of the evidence standard to be disingenuous considering 

the lack of any contrary evidence whatsoever presented by BMS at the evidentiary hearing. 

BMS submitted no information regarding current expert opinion, industry standard, or best 

practices for the Board to consider or refute any of the evidence submitted by the 

Respondent. With the lack of evidence provided, we are without an ability to consider error 

regarding evidentiary weight and its application to the law. BMS has failed to create and 

provide a record which supports any conclusion to the contrary. 

Additionally, BMS did not present evidence nor argument regarding coverage 

condition compliance before the Board. Accordingly, BMS has waived all such arguments;

therefore, the same are not properly before this Court for consideration. The Supreme Court 

of Appeals of West Virginia has clearly stated that “‘[o]ur general rule is that 

nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.’ 

Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 

(1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 

653 (2009). Given BMS’ absolute failure to contest and preserve any critical issues for 

which appellate review might afford relief, this Court cannot find the Board’s decision to 

be clearly wrong under the specific record in this case.

BMS utterly failed to meaningfully participate in the evidentiary hearing below. It 

chose to attend such hearing without counsel, and accordingly, could not even question the 

Respondent. It offered no evidence on the issue of medical necessity for these arguably 

cosmetic procedures. It completely failed to raise a potentially dispositive issue involving

coverage conditions. While BMS raises new facts and meritorious arguments on this 

appeal, they were not raised with the Hearing Officer nor preserved in the fact-finding 

proceeding. This Court cannot consider evidence not introduced and arguments not made 

below.

Accordingly, based solely on the record before us, we affirm the Board’s March 14, 

2023, decision.

Affirmed.

ISSUED: May 23, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr

Judge Charles O. Lorensen

Judge Daniel W. Greear