T.M. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES (DIVISION OF MEDICAL ASSISTANCE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0230-17T4
T.M.,
Petitioner-Appellant,
v.
DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES and UNITED
HEALTHCARE COMMUNITY
PLAN,
Respondents-Respondents.
______________________________
Argued January 7, 2019 – Decided February 4, 2019
Before Judges Fasciale and Gooden Brown.
On appeal from the New Jersey Department of Human
Services, Division of Medical Assistance and Health
Services.
Jane R. Marcus argued the cause for appellant
(Disability Rights New Jersey, attorneys; Jane R.
Marcus, on the briefs).
Corey S. D. Norcross argued the cause for respondent
United Healthcare Community Plan (Stradley Ronon
Stevens & Young, LLP, attorneys; Corey S. D.
Norcross, on the brief).
Arundhati Mohankumar, Deputy Attorney General
argued the cause for respondent New Jersey
Department of Human Services, Division of Medical
Assistance and Health Services (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Arundhati
Mohankumar, on the brief).
PER CURIAM
T.M. appeals from the August 16, 2017 final agency decision of the
Director of the Division of Medical Assistance and Health Services (DMAHS),
reversing the initial decision of the administrative law judge (ALJ) and
reinstating United Healthcare Community Plan's (United) termination of T.M.'s
personal care assistance (PCA) services.1 We affirm.
1
Under N.J.A.C. 10:60-3.3(a), "[h]ands-on personal care assistant services" are
described as "[a]ctivities of daily living (ADL)," encompassing assistance with
personal hygiene, grooming, toileting, changing bed linens, ambulation,
transfers, and eating. Under N.J.A.C. 10:60-3.3(b), "[i]nstrumental activities of
daily living (IADL) services are non-hands-on personal care assistant services
that are essential to the beneficiary's health and comfort" and include
housekeeping duties, laundry, shopping, and other essential errands, and meal
preparation. "Health related activities, performed by a personal care assistant"
are limited. N.J.A.C. 10:60-3.3(c).
A-0230-17T4
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We glean the following undisputed facts from the record. T.M., then
twenty-three years old, has spinal muscular atrophy, is paralyzed, and is
dependent on a ventilator to breathe. She resides with her grandmother who is
also her primary caregiver. For many years, T.M. had been receiving private
duty nursing (PDN) and PCA services through Medicaid under the Early and
Periodic Screening, Diagnostic and Treatment (EPSDT) program. Under that
program, children under the age of twenty-one were eligible to receive any
medically necessary service. Once T.M. turned twenty-one and aged out of the
EPSDT program, she began receiving Medicaid services through Managed Long
Term Services and Supports (MLTSS), administered by United.
MLTSS allowed Medicaid to deliver long-term services and supports at
home or elsewhere through Medicaid Managed Care Organizations (MCOs),
like United. Under MLTSS, T.M. continued receiving sixteen hours of daily
PDN services, totaling 112 hours per week, and four hours of PCA services six
days a week, totaling twenty-four hours per week, pursuant to a September 21,
2015 PCA Nursing Assessment Tool, which assessed T.M. as requiring a total
of 37.58 hours of PCA services per week. However, on July 29, 2016, following
a reassessment of T.M. as required under N.J.A.C. 10:60-3.5(a)(3), "to
reevaluate the beneficiary's need for continued [PCA] services[,]" United
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advised T.M. by letter that her PCA services were being "terminat[ed]" effective
August 5, 2016. The letter explained that based on the "Personal Care Attendant
Beneficiary Assessment Tool," T.M.'s "private duty nurse [was taking] care of
both [her] skilled needs and [her] personal care needs" and "[her] caregiver
[was] completely responsible" for providing "at least eight (8) hours of [her]
care every day[,]" which "[was] not currently taking place."
T.M. promptly filed a stage one appeal, which was denied. In an August
3, 2016 letter, United advised T.M. that the decision was based on N.J.A.C.
10:60-5.3, pertaining to PDN eligibility, and N.J.A.C. 10:60-5.9, pertaining to
PDN limitations. Additionally, the letter explained that twenty-four hours per
week of PCA services were "not medically needed." T.M. filed a stage two
appeal, which was also denied for the same reasons in a November 29, 2016
letter. T.M. requested a fair hearing to contest the termination, and the matter
was transmitted to the Office of Administrative Law (OAL) pursuant to N.J.S.A.
52:14B-1 to -15, and N.J.S.A. 52:14F-1 to -13. After both parties moved for
summary decision pursuant to N.J.A.C. 1:1-12.5, the ALJ granted T.M.'s
motion, denied United's cross-motion, and determined that United's "decision to
terminate [T.M.'s] PCA hours was not appropriate."
In her initial decision, the ALJ explained:
A-0230-17T4
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N.J.A.C. 10:60-5.9(c) limits PDN services to a
maximum of sixteen hours per day for 112 hours per
week. PCA services are generally limited to forty hours
per week pursuant to [N.J.A.C.] 10:60-3.8(g). PDA and
PCA are mutually exclusive services and nowhere in
the regulations does it dictate that the allowance of one
prohibits or limits eligibility as to the other. Actually,
[N.J.A.C. 10:]60-5.9(a)(2) prohibits for safety reasons
a PDN from performing non[-]medical services. There
is no regulation that prohibits PDN and PCA services
from occurring at the same time. Since a PDN is
prohibited from performing non[-]medical services,
United cannot argue that the services of the PDN
substitute for those services provided by the PCA.
Furthermore, the [PCA] Nursing Assessment
Tool dated September 21, 2015, performed by United,
found that [T.M.] was in need of 37.58 hours of PCA
services per week. These services are medically
necessary to accommodate [T.M.'s] long-term chronic
or maintenance health care. [T.M.] is totally dependent
and her caretaker grandmother requires assistance in
providing [T.M.'s] daily needs of living including
transfers, repositioning, grooming, hygiene/bathing,
cleaning/laundry, and feeding. In the absence of the
assistance of PCA services, [T.M.] would not be able to
be maintained at home and would require long[-]term
in[-]patient care in a nursing facility. The goal of PCA
services is to maintain disabled persons such as [T.M.]
in their homes to the fullest extent possible because it
is better for the patient and more cost[-]effective for the
State of New Jersey.
In rejecting United's reliance on "its contract with the State as authority
for terminating [T.M.'s] PCA services[,]" the ALJ stated "[t]he rules governing
the administration of the Medicaid program originate from State and federal law,
A-0230-17T4
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and not a contract between a state agency and an insurance company." Thus,
"[t]he contract with United cannot circumvent [T.M.'s] entitlement to PCA
services pursuant to the regulations."
United filed exceptions to the ALJ's initial decision, and, on August 16,
2017, the DMAHS Director issued a final agency decision reversing the ALJ's
decision and reinstating United's termination of T.M.'s PCA services. The
Director posited that the dispute "focuses on whether [T.M.] may also receive
[twenty-four] hours of weekly PCA services in addition to the [sixteen] hours of
[daily] PDN she receives." The Director determined that while "the ALJ [was]
correct that there [was] no explicit prohibition in the regulations disallowing the
provision of PCA services," in this case, "regulatory and contractual
requirements . . . preclude[d] T.M. from receiving more than [sixteen] hours per
day of hands-on care and require[d] the primary caregiver to perform [eight]
hours of daily hands-on care."
To support her decision, the Director relied on N.J.A.C. 10:60-5.9(c) and
N.J.A.C. 10:60-6.3(b)(2),2 as well as the MCO contract. N.J.A.C. 10:60-5.9(c)
provides:
2
N.J.A.C. 10:60-6.3(b)(2), addressing PDN for the State's prior Medicaid
waiver program, has since been repealed. N.J.A.C. 10:60-6.3(b)(2) provided:
A-0230-17T4
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Private duty nursing services shall be limited to a
maximum of [sixteen] hours, including services
provided or paid for by other sources, in a [twenty-four]
hour period, per person in MLTSS. There shall be a
live-in primary adult caregiver who accepts [twenty-
four] hour per day responsibility for the health and
welfare of the beneficiary . . . .
....
The adult primary caregiver must be trained in the care
of the individual and agree to meet the beneficiary's
skilled needs during a minimum of eight hours of care
to the individual during every [twenty-four] hour
period.
According to Article 9 of the MCO contract,
. . . Members are counseled on the program[s'] inability
to provide [twenty-four] hour care and advised that the
total [PDN], [PCA][,] and Self Direction total services
limit is [sixteen] hours per day. This is in accordance
with N.J.A.C. 10:60-6.3(b)(2)[,] which indicates that a
live-in primary adult caregiver who accepts [twenty-
four] hour responsibility for the health and welfare of
the beneficiary . . . is required to provide a minimum of
Private duty nursing shall be provided in the
community only, not in an inpatient hospital setting.
The beneficiary shall have a live-in primary caregiver
(adult relative or significant other adult) who accepts
[twenty-four] hour responsibility for the health and
welfare of the beneficiary. A maximum of [sixteen]
hours of private duty nursing, from all payment
sources, may be provided in any [twenty-four] hour
period. A minimum of eight hours of hands-on care
shall be provided by the primary caregiver.
A-0230-17T4
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eight (8) hours of hands[-]on care daily. [PDN] is not
permitted to overlap with [PCA] or Self Direction hours
as these services are included in [PDN] and thus
considered a duplication of services . . . .
The Director concluded that "[T.M.'s] receipt of additional care in the
form of PCA services [was] contrary to the regulations" and "directly
overlap[ped] with the care that [T.M.'s] caregiver [was] required to provide." In
support, the Director relied on the fact that "the regulations impose[d] a [sixteen]
hour daily limit on PDN from all sources[,]" "[eight] hours of [T.M.'s] PDN
care" had to "be provided by her caregiver grandmother[,]" and "[t]he MCO
[c]ontract also specifically preclude[d] MLTSS recipients from receiving PDN
and PCA assistance simultaneously[,]" The Director described T.M.'s argument
that the additional PCA services were permitted because they were "not
specifically precluded by the PCA regulations," as "puzzling in light of the
purpose and intent of the PCA program[,] which is to provide assistance with
specific health related tasks[,]" both skilled and unskilled, which in T.M.'s case
were "indisputably being provided by her private duty nurses and her
grandmother."
The Director pointed out that in finding "no duplication of services if T.M.
. . . receiv[ed] both PDN and PCA [services,]" the ALJ "mistakenly conclude[d]
A-0230-17T4
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that the private duty nurse [was] prohibited from performing non[-]medical
services, []such as bathing and feeding." The Director explained:
This is simply not true. The prohibition on a private
duty nurse from performing non[-]medical tasks only
applies when the nurse and the beneficiary are outside
of the home. [See N.J.A.C.] 10:60-5.9(a)(2).
Moreover, PCA is a delegated nursing task. Indeed, a
certified homemaker-home health aide "is employed by
a homecare services agency and who, under the
supervision of a registered professional nurse, follows
a delegated nursing regimen or performs other tasks
that are delegated." [N.J.A.C.] 13:37-14.2. It simply
makes no sense that [T.M.'s] private duty nurse would
delegate a task while she is in the home and fully
capable of performing those tasks. This is evident
pursuant to T.M.'s plan of care and the actual private
duty shift notes which show that the private duty nurse
is expected to, and, in fact, does address T.M.'s skilled
as well as her unskilled needs. . . . Significantly, the
shift notes show that the nurse regularly provides
assistance with the ADL and IADL tasks identified in
the plan of care. . . . Thus, T.M.'s PCA services are not
medically necessary as they are duplicative of the
services she already receives through her [sixteen]
hours of private duty nursing along with the [eight]
hours of hands-on care that her grandmother provides.
The Director also rejected T.M.'s contention "that she [was] . . . denied
due process because United . . . failed to provide adequate notice explaining the
basis for the termination of her PCA services." According to the Director,
"'taken as a whole,'" United's "notices advised [T.M.] that her PCA services were
A-0230-17T4
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being terminated along with an explanation for the termination and the
supporting regulations."
Moreover, the fundamental requirement of due
process is the opportunity to be heard at a meaningful
time and in a meaningful manner. Matthews v.
Eldridge, 424 [U.S.] 319, 333 (1976). Thus, assuming
[arguendo] that the notice was inadequate, inadequate
notice is a procedural defect that may be cured by a [de
novo] hearing. In re Appeal of Darcy, 114 [N.J. Super.]
454, 461 (App. Div. 1971). Here, [T.M.] was afforded
due process by this OAL hearing and the continuation
of PCA services pending the outcome of the appeal.
This appeal followed.
On appeal, T.M. raises the following arguments for our
consideration:
I. THE REGULATORY BASIS STATED IN THE
NOTICES FOR TERMINATING T.M.'S PCA
SERVICES IS NOT A LEGAL BASIS FOR
TERMINATING SUCH SERVICES.
II. THE CONTRACT BETWEEN THE STATE
AND UNITED CANNOT BE RELIED UPON
AS A BASIS FOR TERMINATING T.M.'S PCA
SERVICES.
III. . . . UNITED'S OWN ASSESSMENT FOUND
T.M. MEDICALLY NEEDY AND ELIGIBLE
FOR PCA SERVICES.
IV. UNITED FAILED TO PROVIDE ADEQUATE
NOTICE OF THE TERMINATION OF PCA
SERVICES.
A-0230-17T4
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Our role in reviewing agency decisions is limited. R.S. v. Div. of Med.
Assistance & Health Servs., 434 N.J. Super. 250, 260-61 (App. Div. 2014).
Because "a 'strong presumption of reasonableness attaches to [an agency
decision,]'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In
re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)),
"[a]n administrative agency's decision will be upheld 'unless there is a clear
showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record.'" R.S., 434 N.J. Super. at 261 (quoting Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)).
In determining whether agency action is arbitrary, capricious, or
unreasonable, our role is restricted to three inquiries:
(1) whether the agency action violates the enabling act's
express or implied legislative policies; (2) whether
there is substantial evidence in the record to support the
findings upon which the agency based application of
legislative policies; and (3) whether, in applying the
legislative policies to the facts, the agency clearly erred
by reaching a conclusion that could not reasonably have
been made upon a showing of the relevant factors.
[Ibid. (quoting H.K. v. Div. of Med. Assistance &
Health Servs., 379 N.J. Super. 321, 327 (App. Div.
2005)).]
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"Deference to an agency decision is particularly appropriate where the
interpretation of the [a]gency's own regulation is in issue." Ibid. (quoting I.L.
v. N.J. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 389
N.J. Super. 354, 364 (App. Div. 2006)). "Nevertheless, 'we are not bound by
the agency's legal opinions.'" A.B. v. Div. of Med. Assistance & Health Servs.,
407 N.J. Super. 330, 340 (App. Div. 2009) (quoting Levine v. State, Dep't of
Transp., Div. of Motor Vehicles, 338 N.J. Super. 28, 32 (App. Div. 2001)).
Indeed, "[s]tatutory and regulatory construction is a purely legal issue subject to
de novo review." Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.
85, 93 (1973)).
Relevant here, when the agency head rejects or modifies the ALJ's
"findings of fact, conclusions of law[,] or interpretations of agency policy in the
decision," the agency head "shall state clearly the reasons for doing so."
N.J.S.A. 52:14B-10(c). The agency head may not reject or modify any
credibility findings of the ALJ "unless it is first determined from a review of the
record that the findings are arbitrary, capricious[,] or unreasonable or are not
supported by sufficient, competent, and credible evidence in the record." Ibid.Turning to the pertinent aspects of the Medicaid program, "[t]he federal
Medicaid Act, Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 to
A-0230-17T4
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1396w-5, mandates a joint federal-state program to provide medical assistance
to individuals 'whose income and resources are insufficient to meet the costs of
necessary medical services.'" E.B. v. Div. of Med. Assistance & Health Servs.,
431 N.J. Super. 183, 191 (App. Div. 2013) (quoting 42 U.S.C. § 1396-1).
Although a state is not required to participate, "[o]nce a state joins the program,
it must comply with the Medicaid statute and federal regulations." Ibid. "The
New Jersey Medical Assistance and Health Services Act, N.J.S.A. 30:4D-1 to -
19.5, authorizes New Jersey's participation in the federal Medicaid program."
Id. at 192. DMAHS is the agency within the State Department of Human
Services that administers the Medicaid program. N.J.S.A. 30:4D-7.
Accordingly, DMAHS is responsible for protecting the interests of the New
Jersey Medicaid program and its beneficiaries. N.J.A.C. 10:49-11.1(b); see
E.B., 421 N.J. Super. at 192.
MLTSS is the Medicaid program at issue here. As a recipient of services
under MLTSS, T.M. was subject to the regulatory proscriptions of N.J.A.C.
10:60-5.9(c), which limited PDN services to a maximum of sixteen hours daily,
and required the primary caregiver to provide a minimum of eight hours of care
daily. Combined, the regulation ensures a total of twenty-four hours of daily
care. PDN services include assistance with ADL, and the primary caregiver
A-0230-17T4
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provides hands-on care. Therefore, inasmuch as the services provided by T.M.'s
PCA were already being provided by her PDN and her grandmother, and
services cannot logically exceed twenty-four hours per day, as the Director
determined, the PCA services were duplicative and medically unnecessary.
We reach this conclusion notwithstanding the fact that PCA services are
not expressly prohibited by the Medicaid regulations. As the agency responsible
for protecting the interests of the New Jersey Medicaid program and its
beneficiaries, we are satisfied that the Director's decision that Medicaid funds
should not be used to subsidize duplicative services is hardly arbitrary,
capricious, unreasonable, or lacking fair support in this record.
T.M.'s assertion that "[t]he PCAs are not in the home during the PDN['s]
shift, but only come for four hours during the eight hours T.M.'s grandmother is
home with T.M. and responsible for her care" confounds her argument. Indeed,
on the days when T.M. receives four hours of PCA services in addition to sixteen
hours of PDN care, for a combined total of twenty hours of care, T.M. is in clear
violation of N.J.A.C. 10:60-5.9(c)'s requirement that her grandmother provide a
minimum of eight hours of hands-on care.
We also reject T.M.'s contention that the Director erred in relying on the
MCO contract as a basis for terminating the PCA hours. The contract merely
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parroted and paraphrased the regulations pertaining to PDN services. Likewise,
we reject T.M.'s argument that the decision was contrary to the earlier
Assessment Tool which showed that T.M. required PCA services in excess of
what she had been receiving. On the contrary, the Director's decision ensured
that T.M. would be receiving the needed PCA services, but through her PDN
and grandmother, rather than the PCAs.
Equally unavailing is T.M.'s contention that she was denied due process
because United failed to provide timely and adequate notice explaining the basis
for the termination of her PCA services as required by N.J.A.C. 10:49-10.4(a).
We agree with the Director that any deficiency was cured by T.M. receiving a
de novo hearing with continued PCA services pending appeal. See N.J.A.C.
10:49-10.4(d)(1) (requiring DMAHS to "reinstate and continue services until a
decision is rendered after a hearing" if "[a]n action is taken to terminate, suspend
or reduce . . . covered services without affording claimants adequate advance
notice"); Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 361 (App. Div.
1994) (explaining that procedural irregularities are considered cured by a
subsequent plenary hearing at the agency level); Matthews, 424 U.S. at 333
(noting that the fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner).
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"'[E]ven though [we] might have reached a different result[,]'" In re
Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483
(2007)), we "may not substitute [our] judgment as to the wisdom of an
administrative action so long as it is statutorily authorized and not otherwise
defective." K.P. v. Albanese, 204 N.J. Super. 166, 176 (App. Div. 1985). "This
is particularly true when the issue under review is directed to the agency's
special 'expertise and superior knowledge of a particular field.'" In re
Stallworth, 208 N.J. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
Ultimately, the party challenging an agency's action bears the burden of
demonstrating that the decision is arbitrary, capricious, or unreasonable. In re
Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006); see also Barone v. Dep't
of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355(1987). T.M. has not met her burden here.
Affirmed.
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