IN THE SUPREME COURT, STATE OF WYOMING

2024 WY 47

APRIL TERM, A.D. 2024

 April 29, 2024 

GRACIE and JEFF RICHARDSON, 

Guardians of Jeffery Richardson, 

Appellants 

(Petitioners), 

v. 

STATE OF WYOMING, ex rel. WYOMING 

DEPARTMENT OF HEALTH, 

Appellee 

(Respondent).

S-23-0094 

Appeal from the District Court of Fremont County 

The Honorable Jason M. Conder, Judge

Representing Appellant:

Maureen Donohoue Howell, Donohoue Law Office, Lander, Wyoming. 

Representing Appellee:

Bridget L. Hill, Wyoming Attorney General; Christina F. McCabe, Deputy Attorney 

General; Jackson M. Engels, Senior Assistant Attorney General; Melissa S. Bartley, 

Senior Assistant Attorney General. Argument by Ms. Bartley. 

Before FOX, C.J., and *KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ. 

* Justice Kautz retired from judicial office effective March 26, 2024, and, pursuant to Article 5, § 5 of 

the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (2023), he was reassigned to act on this 

matter on March 27, 2024. 
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, 

Wyoming 82002, of any typographical or other formal errors so that correction may be made before 

final publication in the permanent volume.
1

BOOMGAARDEN, Justice.

[¶1] Gracie and Jeff Richardson (the Richardsons) appeal the district court’s order 

affirming the Department of Health’s (the Department) decision to remove respite services 

from their son JMR’s individual plan of care under the Home and Community Based 

Services Waiver Program (HCBS Program).1

 We also affirm.

ISSUE

[¶2] The Richardsons raise three issues which we rephrase as one:

Whether the Department acted in accordance with law when it 

removed respite services from JMR’s individual plan of care.

FACTS

[¶3] The relevant facts are undisputed. The Richardsons are the legal guardians of their 

adult son JMR who suffers from severe developmental and intellectual disabilities. JMR

is unable to care for himself without the help of others and requires full-time care. He

receives the highest level of Medicaid benefits offered through the HCBS Program

administered by the Department.

2

[¶4] The HCBS Program offers numerous services to participants like JMR to meet their 

individually assessed needs. These services include, among others, adult day services, 

community living services, and respite services. The providers of these services are 

required to bill each service based on set rates, as listed in the Department’s Comprehensive 

and Supports Waiver Service Index (the Index). Relevant here, the Index requires providers 

of respite and adult day services to bill based on units of service, with a single unit of 

service defined as fifteen minutes. It also requires providers of community living services

to bill at a daily rate, which is defined as a twenty-four-hour period. To direct these 

services, the Department establishes an individual plan of care and budget amount for each 

participant along with a care team. Each individual plan of care is updated annually.

1 The Department defines “Respite care” as services provided: “(A) On a short-term basis pursuant to the 

individual plan of care; (B) To a participant who is unable, unassisted, to care for himself or herself; and 

(C) Because the participant’s primary caregiver is absent or in need of relief from furnishing such services.” 

Department of Health, Medicaid, Current Rules and Regulations, Chapter 1 § 3(b)(ccxviii) (2011 to 

current). 2 “Medicaid is a joint federal-state program designed to provide medical assistance to low-income families 

and individuals ‘to help such families and individuals attain or retain capability for independence or selfcare.’” Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1178 (10th Cir. 2003) (quoting 42 U.S.C. § 

1396).
2

[¶5] In 2016, JMR was admitted to the Wyoming Life Resource Center for temporary 

services after flooding made his home unsafe. Prior to his discharge from the Center, the 

Department entered into a settlement agreement (2017 Settlement Agreement) with the 

Richardsons to establish an individual plan of care for JMR that permitted him to spend his 

individual budget amount on adult day services, residential habilitation services

(community living services), and respite services.

[¶6] In 2021, the Department reviewed JMR’s individual plan of care pursuant to a 

quality improvement review. The Department discovered JMR’s providers had been 

billing for respite services at the same time JMR had been receiving community living 

services. Under the Index, providers are not authorized to bill for both the daily rate of

community living services and the fifteen-minute units of respite services. The 

Department, relying on the Index, notified the Richardsons that it was required to remove 

respite services from JMR’s individual plan of care.

[¶7] The Richardsons responded by requesting an administrative hearing. The 

Department granted the request and referred the matter to the Office of Administrative 

Hearings (OAH). OAH conducted a two-day hearing wherein both parties presented 

witness testimony and exhibits. Soon after, the hearing examiner upheld the Department’s 

decision to remove respite services from JMR’s individual plan of care based on the Index. 

The Department issued a final decision adopting the hearing examiner’s proposed findings 

of fact and conclusions of law. The Richardsons appealed to the district court raising 

several issues of law and fact. The district court affirmed. The Richardsons appealed to 

this Court raising only questions of law.

STANDARD OF REVIEW

[¶8] This Court reviews agency actions as if the case came directly from the agency and 

gives no deference to the district court. Monaghan Farms Inc. v. Bd. of Cnty. Comm’rs of 

Albany Cnty., 2023 WY 31, ¶ 7, 527 P.3d 1195, 1201 (Wyo. 2023) (citation omitted). The 

scope of our review is guided by the Wyoming Administrative Procedure Act (WAPA), 

which requires this Court to set aside an agency decision found to be “not in accordance 

with law.” Wyo. Stat. Ann. § 16-3-114(c)(ii)(A) (2023). We review de novo the 

Department’s conclusions of law and its interpretation of statutes and implementing 

regulations. Monaghan Farms Inc., 2023 WY 31, ¶ 8, 527 P.3d at 1201 (citations omitted).

DISCUSSION

[¶9] The Richardsons argue the Index and quality improvement review are not properly 

promulgated rules under WAPA and thus the Department did not act in accordance with 

law when it relied on them to remove respite services from JMR’s individual plan of care.

They also contend the Department violated the plain language of the 2017 Settlement 

Agreement by removing these services. We address each argument in turn.
3

I. The Index and the Department’s Quality Improvement Review.

[¶10] The Department’s rules and regulations, when adopted pursuant to statutory 

authority and properly promulgated, have the force and effect of law. Matter of ASA, 2018 

WY 5, ¶ 22, 408 P.3d 791, 795 (Wyo. 2018) (citation omitted); see also Fullmer v. Wyo.

Emp. Sec. Comm’n, 858 P.2d 1122, 1123–24 (Wyo. 1993). The Department “is bound to 

follow its own rules and regulations.” ASA, 2018 WY 5, ¶ 22, 408 P.3d at 795 (citation 

omitted). As we discuss below, the Department followed its own rules and regulations 

when it relied on the Index to remove respite services from JMR’s individual plan of care.

[¶11] The Index is a document the Department periodically issues listing the services, and 

corresponding billing rates, available to participants in the HCBS Program.3

 See Wyoming

Department of Health, Behavioral Health Division, Comprehensive and Supports Waiver 

Service Index at 29–30 (2019). The HCBS Program is a Medicaid program authorized

through the federal Social Security Act. 42 U.S.C. § 1396n (2018). It is statutorily

authorized in Wyoming at Wyo. Stat. Ann. § 42-4-103(a)(xvii) (authorizing “[s]ervices 

provided under a federal home and community based waiver”). Under Wyo. Stat. Ann. § 

42-4-104(a)(iv), the Department is mandated to “[a]dopt, amend and rescind rules and 

regulations” in accordance with WAPA to administer the HCBS Program.

[¶12] The Department asserts the Index is a rule with the force and effect of law because

it was incorporated by reference when the Department adopted Chapters 45 and 46 of its 

Medicaid regulations. Under WAPA:

An agency may incorporate, by reference in its rules and 

without publishing the incorporated matter in full, all or any 

part of a code, standard, rule or regulation that has been 

adopted by an agency of the United States or of this state, 

another state or by a nationally recognized organization or 

association, provided:

(i) The agency determines that incorporation of the full text in 

agency rules would be cumbersome or inefficient given the 

length or nature of the rules;

(ii) The reference in the rules of the incorporating agency fully 

identifies the incorporated matter by location, date and 

3 The Department has issued multiple versions of the Index since this matter began. Each version is identical 

with respect to the rules at issue in this case. Nonetheless, the 2019 version of the Index was in effect at 

the time the Department removed respite services from JMR’s individual plan of care. We will therefore 

refer to and cite the 2019 Index. The most recent version (2024) can be accessed through the Department’s 

website: https://health.wyo.gov/wp-content/uploads/2024/03/DD-Waiver-Service-Index-Effective2024.4.1.pdf (last accessed April 2, 2024).
4

otherwise, and states that the rule does not include any later 

amendments or editions of the incorporated matter;

(iii) The agency, organization or association originally issuing 

the incorporated matter makes copies of it readily available to 

the public;

(iv) The incorporating agency maintains and makes available 

for public inspection a copy of the incorporated matter at cost 

from the agency and the rules of the incorporating agency state 

where the incorporated matter is available on the internet as 

defined in W.S. 9-2-3219(a)(iii); and

(v) The incorporating agency otherwise complies with all 

procedural requirements under this act and the rules of the 

registrar of state agency rules governing the promulgation and 

filing of agency rules.

Wyo. Stat. Ann. § 16-3-103(h).

[¶13] In line with WAPA, the Department’s Medicaid rules and regulations expressly 

incorporated the Index by reference. See Department of Health, Medicaid, Current Rules 

and Regulations, Chapter 45, § 35; Chapter 46 § 21 (2019). Chapter 45, Section 35 states:

Section 35. Incorporation by Reference.

(a) For any code, standard, rule, or regulation incorporated by 

reference in these rules:

(i) The Department has determined that incorporation of the 

full text in these rules would be cumbersome or inefficient 

given the length or nature of the rules;

(ii) The incorporation by reference does not include any later 

amendments or editions of the incorporated matter beyond the 

applicable date identified in subsection (b) of this section; and

(iii) The incorporated code, standard, rule, or regulation is 

maintained at the Department and is available for public 

inspection and copying at cost at the same location.

(b) Each code, rule, or regulation incorporated by referenced 

in these rules is further identified as follows:

. . . .
5

(iv) Referenced in Sections 2, 5, 6, 8, and 31 of this Chapter is 

Wyoming’s Comprehensive and Supports Waiver Service 

Index, incorporated as of the effective date of this Chapter and 

can be found at 

https://health.wyo.gov/behavioralhealth/dd/servicesandrates/.

Id. (emphasis added). Chapter 46, Section 21 contains essentially the same language. See

Department of Health, Medicaid, Current Rules and Regulations, Chapter 46, § 21 (2019). 

Notably, the Richardsons did not challenge the Department’s promulgation of Chapters 45 

and 46 or any of the rules articulated within them. Because the Index is properly

incorporated by reference it constitutes a rule with the force and effect of law. See Wyo. 

Stat. Ann. § 16-3-103(h); ASA, 2018 WY 5, ¶ 22, 408 P.3d at 795 (citation omitted).

[¶14] The Index, under the section titled “Respite,” clearly states respite services are billed 

in 15-minute units, such services “shall not be provided during the same time period as 

other waiver services,” and “[r]espite shall not replace community living or day services.”

Comprehensive and Supports Waiver Service Index at 29–30. Further, it states “[t]he 15-

minute unit and daily rate shall not be billed for a participant on the same day.” Id. at 30. 

The “Community Living Services” section states such services are billed at daily rates with 

the same billing limitations as respite services. See id. at 14. As such, JMR’s providers 

were not permitted to concurrently bill both respite and community living services. The 

Department properly relied on the Index when it removed respite services from JMR’s 

individual plan of care while he continues to receive community living services.

[¶15] The Richardsons also challenge the Department’s use of its quality improvement

review, contending this review cannot be used to remove respite services from JMR’s 

individual plan of care because it is not a properly promulgated rule under WAPA. Their 

argument is belied by WAPA’s definition of a “rule” which expressly excludes agency 

“[s]tatements concerning only the internal management of an agency and not affecting 

private rights or procedures available to the public[.]” Wyo. Stat. Ann. § 16-3-

101(b)(ix)(A). The Department uses the quality improvement review as a management 

tool to randomly review individual plans of care for any errors or deficiencies in the plans. 

This review helps ensure the financial integrity of the Medicaid system. Though this 

review led to the removal of respite services from JMR’s individual plan of care, the 

Department only used it to identify the billing deemed erroneous under the Index. Thus, 

the Department’s review of JMR’s individual plan of care did not affect his private rights 

or the procedures available to the public and only concerns the internal management of the 

Department. See § 16-3-101(b)(ix)(A). Because the quality improvement review is not 

considered a “rule” under WAPA, the Department was not required to undergo the 

rulemaking process before implementing it. See Wyo. Stat. Ann. § 16-3-103 (articulating 

the general procedures for properly promulgating a valid “rule”).
6

II. The 2017 Settlement Agreement

[¶16] The Richardsons argue the plain language of the 2017 Settlement Agreement 

obligates the Department to continue providing JMR with respite services in addition to 

community living services. We apply the same legal principles to settlement agreements 

as we do to contracts. Colton v. Town of Dubois, 2022 WY 138, ¶ 15, 519 P.3d 976, 980 

(Wyo. 2022) (citations omitted); Allen v. Anderson, 2011 WY 94, ¶ 8, 253 P.3d 182, 183 

(Wyo. 2011) (citations omitted). We interpret settlement agreements de novo, consider the 

specific language used within the agreement, and enforce that language if it is 

unambiguous. Colton, 2022 WY 138, ¶¶ 15–16, 519 P.3d at 980–81; Allen, 2011 WY 94, 

¶ 8, 253 P.3d at 183.

[¶17] The 2017 Settlement Agreement in paragraph 2.1 unambiguously states the key 

terms at issue. It provides, in relevant part:

2.1 The Petitioner [JMR] will receive a presumptive set 

individualized budget amount for Waiver services not to 

exceed two-hundred fifteen thousand, one hundred and 

seventy-eight dollars and sixty-one cents [$215,178.61] for a 

new plan year to begin not later than April 1, 2017. The Parties 

agree that this individual budget amount is intended to be a 

presumptive set rate and shall be in effect for the entirety of 

Petitioner’s plan year, beginning April 1, 2017 and ending 

March 31, 2018, except as provided by Section 2.1.9. The 

Parties agree that this budget amount may be spent for the 

following units of services:

. . . .

2.1.5. 5000 units of Respite services,

2.1.6. 365 units of level 6 Residential Habilitation 

services,

2.1.7. 7280 units of Adult Day Services for high needs 

individuals.

. . . .

This language demonstrates the parties agreed JMR may receive respite services, 

community living services, and adult day services. However, no term in the agreement 

states the manner in which JMR is to receive these services or permits JMR’s providers to 

concurrently bill for such services. The Department cannot permit concurrent billing

because it cannot act contrary to its own regulations, as discussed above. ASA, 2018 WY 

5, ¶ 22, 408 P.3d at 795 (stating an agency “is bound to follow its own rules and

regulations.” (citation omitted)). Further, the agreement provides that any changes to the 

billing rates for the listed services, or caps on the number of service units, “shall” modify 
7

the agreement to implement the change.4

 Thus, the agreement requires providers to bill 

services in compliance with the current rates and limitations under the law, which are stated

within the Index. The Department’s removal of respite services from JMR’s individual 

plan of care did not violate the parties’ 2017 Settlement Agreement.

CONCLUSION

[¶18] The Department acted in accordance with law when it removed respite services from 

JMR’s individual plan of care. Accordingly, we affirm.

4 Paragraph 2.1.9 provides:

Should the rates paid by DOH for the services listed above or the caps for 

number of services units for a given service change as a result of legislative 

funding and approval from the Centers for Medicare and Medicaid 

services, then that modification shall affect this individual program plan 

and individual budget amount shall be modified solely to implement the 

approved change.