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NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF NEW HANOVER 03 DHR 0895 ______NEQUITA WILLIAMS ) Petitioner, ) ) v. ) DECISION ) NORTH CAROLINA DEPARTMENT OF ) HEALTH AND HUMAN SERVICES, ) DIVISION OF MEDICAL ASSISTANCE ) Respondent. ) ______On October 22, 2003, Administrative Law Judge Beryl E. Wade heard this contested case in Burgaw, North Carolina. The Petitioner appeared pro se. The Respondent was represented by Belinda A. Smith, Assistant Attorney General.

Whether the Respondent properly denied Dr. Steven Olchowski’s request for approval for gastric by-pass surgery for Petitioner.

APPLICABLE LAW AND AUTHORITY

Sections 1905(d); 1905(a)(15); 1902(i)(1) of the Social Security Act N. C. Gen. Stat. Ch. 108A, Article 2, Parts 1 and 6 10 N.C.A.C. 26C.0105 N. C. State Plan for Medical Assistance

FINDINGS OF FACT

1. On March 24, 2003, Petitioner’s physician, Dr. Steven Olchowski, requested prior approval for gastric by-pass surgery. Respondent denied the request on March 31, 2003. Respondent reconsidered its decision in an informal hearing on May 15, 2003, and concluded that Petitioner had not shown that the surgery was medically necessary.

2. Dr. Olchowski informed Respondent in a letter dated October 9, 2003, that he no longer performs bariatric surgery. Gastric by-pass surgery is also known as bariatric surgery.

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings (“OAH”), and OAH has subject matter jurisdiction in this contested case.

2. The issue of whether Respondent properly denied prior approval for gastric by-pass surgery is rendered moot by the fact that the physician requesting the approval no longer performs the surgery.

DECISION

Based upon the foregoing findings of fact and conclusions of law, the undersigned hereby determines that Respondent’s decision to deny prior approval for gastric by-pass surgery should be AFFIRMED.

NOTICE

The North Carolina Health and Human Services, Division of Medical Assistance, will make the Final Decision in this contested case. N.C.G.S. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C.G.S. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C.G.S. § 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714.

This the 21st day of November, 2003.

______Beryl E. Wade Administrative Law Judge