Court of Appeals of Indiana | Memorandum Decision 82A05-1603-PL-688 | February 16, 2017 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Amanda M. Hall

Katherine J. Rybak

Indiana Legal Services, Inc.

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Andrea E. Rahman 

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Ashley Brown,

Appellant-Petitioner,

v.

Indiana Family and Social 

Services Administration,

Appellee-Respondent

February 16, 2017

Court of Appeals Case No.

82A05-1603-PL-688

Appeal from the Vanderburgh 

Superior Court

The Honorable Richard G. 

D’Amour, Judge

Trial Court Cause No.

82D07-1504-PL-1921

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A05-1603-PL-688 | February 16, 2017 Page 2 of 9

Case Summary

[1] Ashley Brown appeals the trial court’s denial of her petition for judicial review, 

in which the trial court sustained the determination of the administrative law 

judge (“ALJ”) that Brown’s request for prior authorization of Medicaid 

coverage for genetic testing was properly denied. The Indiana Family and 

Social Services Administration (“FSSA”) concedes that the ALJ erred in its 

application of Indiana Medicaid law, and therefore requests that we vacate the 

trial court’s decision and remand with instructions for the trial court to remand 

the case to FSSA for a rehearing. We agree with FSSA, and therefore we 

vacate and remand.

Facts and Procedural History

[2] In April 2014, Brown was twenty-nine years old and had three children. Brown

received Medicaid coverage from the State of Indiana through the Hoosier 

Healthwise Program. Brown’s insurance coverage was administered by 

MDWise, a managed care entity administering Medicaid insurance coverage as 

a state contractor. Brown had surgery to remove a tumor in her abdomen. 

The tumor was identified as a benign paraganglioma, a type of rare

neuroendocrine tumor. Appellant’s App. at 50, 52. One-third to one-half of 

paragangliomas are associated with inherited syndromes, including Hereditary 

Paraganglioma-Pheochromocytoma (“PGL/PCC”) Syndrome. Id. at 53. 

PGL/PCC Syndrome “is a familial cancer syndrome which results in 

neuroendocrine tumors.” Id. Genetic testing can identify individuals with 

PGL/PCC Syndrome, and such identification “may improve patient prognosis 
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through regular screening and treatment of early-onset malignancies.” Id. at 54.

“Early detection [of tumors] through surveillance and removal of tumors may

prevent or minimize complications.” Id. Brown’s doctors recommended that 

Brown have genetic testing to determine whether she had PGL/PCC 

Syndrome. If the genetic testing showed that she had PGL/PCC Syndrome, 

then she would receive monitoring and screenings, and her children would also 

be tested to determine if they had PGL/PCC Syndrome.

[3] In July 2014, Brown’s doctors sought from MDWise prior authorization for 

approval of the PGL/PCC Syndrome genetic test. MDWise denied 

authorization, stating that the “genetic lab tests [were] not covered under 

Indiana Medicaid.” Id. at 29. Brown pursued MDWise’s appeal procedures, 

which included an external review of the denial by an independent review 

organization for the Indiana Department of Insurance. The reviewer concluded 

that the genetic testing was “medically indicated” but that “the genetic testing 

was correctly denied as it is not a covered benefit under the member’s health 

plan.” Id. at 45-46. 

[4] In October 2014, Brown sought an administrative appeal of MDWise’s denial 

of prior authorization. In February 2015, following a hearing, the ALJ found 

that PGL/PCC Syndrome genetic testing was not excluded from Medicaid 

coverage by the Indiana Administrative Code, but the Current Procedural 

Terminology (“CPT”) codes for PGL/PCC Syndrome genetic testing were 

identified as not covered in the Indiana Health Coverage Programs (“IHCP”) 

manual. The ALJ concluded that Indiana’s Medicaid program did not cover 
Court of Appeals of Indiana | Memorandum Decision 82A05-1603-PL-688 | February 16, 2017 Page 4 of 9

genetic testing for PGL/PCC Syndrome and sustained the denial for prior 

authorization of the genetic test. Id. at 25-26. Brown requested agency review

of the ALJ’s decision, and in March 2015, the FSSA issued a final 

determination affirming the ALJ’s decision. In April 2015, Brown filed a 

petition for judicial review of FSSA’s determination. In February 2016, the trial 

court issued an order denying Brown’s petition. Id. at 6-10. This appeal 

ensued.

Discussion and Decision

[5] Brown seeks review of an agency action pursuant to the Administrative Orders 

and Procedures Act (“AOPA”). Under AOPA, 

we are bound by the same standard of review as the trial court. 

When a court reviews a decision from an administrative agency, 

the reviewing court may neither try the case de novo nor 

substitute its judgment for that of the agency. Ind. Code § 4-21.5-

5-11. Judicial review of disputed issues of fact must be confined 

to the agency record for the agency action. Id. Further, we will 

not reweigh the evidence. We give deference to the expertise of 

the administrative body, and will reverse the agency’s decision 

only if it is

(1) arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law;

(2) contrary to a constitutional right, power, privilege, or 

immunity;

(3) in excess of statutory jurisdiction, authority, or 

limitations, or short of statutory right;
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(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

Ind. Code § 4-21.5-5-14(d). A decision is arbitrary and capricious 

when it is made without any consideration of the facts and lacks 

any basis that may lead a reasonable person to make the same 

decision made by the administrative agency. The burden of 

demonstrating the invalidity of an agency action is on the party 

asserting its invalidity. Ind. Code § 4-21.5-5-14(a).

Dev. Servs. Alternatives, Inc. v. Indiana Family & Soc. Servs. Admin., 915 N.E.2d 

169, 176 (Ind. Ct. App. 2009) (citations and quotation marks omitted), trans. 

denied (2010).

[6] Specifically, Brown argues that the ALJ erred in sustaining the denial of her 

request for prior authorization of Medicaid coverage for PGL/PCC Syndrome

genetic testing. The Indiana Medicaid program is governed, in part, by Title 

405 of the Indiana Administrative Code.

1

 405 IAC 5-29-1 identifies services 

that are not covered under Medicaid:

(1) Services that are not medically necessary.

(2) Services provided outside the scope of a provider’s license, 

registration, certification, or other authority to practice under 

state or federal law.

 

1

 State Medicaid programs must also comply with 42 U.S.C. § 1396, et seq.
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(3) Experimental drugs, treatments, or procedures, and all related 

services.

(4) Any new product, service, or technology not specifically 

covered in this article. The product, service, or technology will 

remain a noncovered product, service, or technology until such 

time as the office authorizes the coverage of the product, service, 

or technology. This subdivision does not apply to legend drugs.

This section goes on to list more than thirty specific procedures, services, and 

drugs that are not covered, such as acupuncture, hair transplants, artificial 

insemination, and amphetamines when prescribed for weight control. Genetic 

testing is not specifically listed.2

[7] In sustaining the denial of Brown’s request for prior authorization for

PGL/PCC Syndrome genetic testing, the ALJ based its decision on the IAC’s 

exclusion of “[s]ervices that are not medically necessary.” 405 IAC 5-29-1(1). 

Medically necessary services are defined in 405 IAC 5-2-17:

“Medically necessary service” as used in this title means a 

covered service (as defined in section 6 of this rule[3]) that is 

required for the care or well-being of the patient and is provided 

in accordance with generally accepted standards of medical or 

professional practice. For a service to be reimbursable by the 

office, it must:

 

2

 We observe that the IAC also provides a list of services for which Medicaid reimbursement may be 

available with prior authorization. 405 IAC 5-3-13. This list includes “[g]enetic testing for detection of 

cancer of the breast or breasts or ovaries,” but does not specifically include genetic testing for PGL/PCC 

Syndrome. Id. 

3

 405 IAC 5-2-6 provides, “‘Covered service’ means a service or supply provided by a provider for a member 

for which payment is available under Medicaid subject to the limitations of this article.”
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(1) be medically necessary, as determined by the office, 

which shall, in making that determination, utilize 

generally accepted standards of medical or professional 

practice; and

(2) not be listed in this title as a noncovered service, or 

otherwise excluded from coverage.

(Emphasis added.) The ALJ concluded that because the CPT codes for 

PGL/PCC Syndrome genetic testing were identified as not covered in the 

IHCP manual, such testing fell in the category of a service “otherwise excluded 

from coverage.” Id.; Appellant’s App at 25.

[8] FSSA concedes that the “ALJ erred in her legal reasoning and application of 

State Medicaid law.” Appellee’s Br at 12. FSSA states that “the type of genetic 

testing sought by Brown was not covered under the State Medicaid plan 

because it was a new or experimental treatment at the time of the ALJ’s 

decision.” Id. (citing 405 IAC 5-29-1(3) and -(4)) (emphases added). FSSA 

urges us to vacate and remand for a new factfinding hearing, explaining as 

follows: 

the new or experimental provisions of 405 I.A.C. 5-29-1(3) and 

(4) were not the legal basis for the ALJ’s conclusion that the 

genetic testing was properly considered a noncovered service. 

And there was no factual finding regarding the genetic testing’s 

status as a new or experimental treatment, e.g., its acceptance in 

the medical community or general concerns regarding its efficacy 

or safety. The status of the genetic testing at issue in this case 

may have now changed from being a new or experimental 

service, to a medically accepted service, but in order to determine 
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the status of the genetic testing at issue in this case, there must be 

a rehearing of the relevant evidence.

Id.

4

 (citations omitted). Indiana Code Section 4-21.5-5-12(b) provides that the 

court may “remand a matter to the agency before final disposition of a petition 

for review with directions that the agency conduct further factfinding or that the 

agency prepare an adequate record, if [] the agency failed to prepare or preserve 

an adequate record.” We agree with the State that under the circumstances of 

this case remand to FSSA is appropriate.

[9] Brown contends that FSSA is attempting to raise a new issue that it did not 

properly preserve and that remand is improper, citing Indiana Code Sections 4-

21.5-5-10, -11, and -12(a). However, those sections are irrelevant to the 

propriety of remand to the agency because they address judicial review of issues 

(Section 10) and facts (Section 11) not raised before the agency and when the 

court may receive evidence in addition to that contained in the agency record 

(Section 12(a)). The cases relied on by Brown are also inapposite because they 

address issues pertaining to those sections. Brown also asserts that “even if the 

Court granted the State’s request for a remand instructing [FSSA] to make 

 

4

 The State notes that a state Medicaid plan may properly limit a new or experimental treatment or service, 

citing Miller by Miller v. Whitburn, 10 F.3d 1315 (7th Cir. 1993). In reference to new or experimental services, 

the Whitburn court observed,

In making such a decision [whether to provide payment for a particular service], a basic 

consideration is whether the service has come to be generally accepted by the professional 

medical community as an effective and proven treatment for the condition for which it is being 

used. If it is, Medicare may make payment. On the other hand, if the service is rarely used, 

novel or relatively unknown, then authoritative evidence must be obtained that it is safe and 

effective before Medicaid may make payment.

Id. at 1320 (quoting Rush v. Parham, 625 F.2d 1150, 1156 (5th Cir. 1980)).
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specific findings about the experimental nature of genetic testing, [FSSA] would 

still need to make an actual determination of medical necessity, which is the 

crux of Brown’s appeal.” Appellant’s Reply Br. at 6-7. We agree that the 

FSSA will be required to make an individualized determination as to whether 

the genetic testing is medically necessary, but that does not persuade us that 

remand is inappropriate. In fact, Brown asks for us to remand for instructions 

to the agency to issue a new decision based upon the individual evidence 

presented regarding medical necessity. Accordingly, we vacate the trial court’s 

denial of Brown’s petition for judicial review and remand with instructions for 

the trial court to remand the case to FSSA for a rehearing. 

[10] Vacated and remanded.

Riley, J., and Altice, J., concur.