D.W. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

D.W.,

Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE

AND HEALTH SERVICES and

DIVISION OF DISABILITY SERVICES,

Respondents.

___________________________________________________

December 15, 2014

Submitted December 2, 2014 Decided

Before Judges Fisher and Accurso.

On appeal from the Department of Human Services, Division of Medical Assistance and Health Services, OAL Docket No. HMA 2324-12.

Disability Rights New Jersey, attorneys for appellant (Susan W. Saidel, Senior Staff Attorney, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Division of Disa-bility Services (Melissa Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).

PER CURIAM

D.W., a forty-eight-year-old woman with Down's Syndrome and the mental capacity of a four-year-old, is a participant in the Personal Preference Program administered by the Division of Medical Assistance and Health Services (DMAHS). She appeals a final agency decision which reduced the forty hours per week in Personal Care Assistant (PCA) services previously permitted to twenty-five hours per week. We vacate the decision under review and remand.

In the earlier administrative proceedings that led to this appeal, an administrative law judge (ALJ) made the following observations from the undisputed facts presented

D.W. has been diagnosed with Down's Syndrome, Type I ("brittle") diabetes, osteoporosis, depressive episodes, Lupus, HTN,[1] and pericarditis, among other medical conditions. She was hospitalized for three weeks in the Intensive Care Unit (ICU), commencing on April 5, 2012, following which her medical condition began to deteriorate. D.W. must be examined by an endocrinologist regularly and sees both a [r]heumatologist and [c]ardiologist every three months. She requires care twenty-four hours per day, seven days per week in order to monitor her blood sugar and symptoms resulting from fluid around her heart and lupus. This level of monitoring has brought about a high level of emotional and financial stress to the family members who care for D.W.

D.W., who resides with her sister, was approved in 2009 for a monthly cash grant of $2,416.14 to cover forty hours per week of PCA services an allocation based on an hourly rate of $15.50. D.W. took advantage of the option in the Self-Directed Alternative program of hiring a more highly-skilled caregiver at a higher rate with a concomitant reduction in hours. That is, because the hourly wage of the personal care assistant chosen was set at a higher hourly rate ($16.20) than that upon which the 2009 allocation was based ($15.50), D.W. "actually received thirty hours per week of personal care assistant services."

D.W.'s participation in this program was reassessed in September 2012 at the request of D.W.'s HMO, Horizon NJ Health (Horizon). The assessment nurse assigned points based upon the level of support received, D.W.'s cognitive/mental status, her ability to ambulate, feed herself, bathe, use the toilet, groom and dress, and other aspects of daily living. After awarding a score of twenty-four points, the nurse provided the following comments

[D.W.] is a 47 year old female with the mental capacity of a 4 year old. She lives with her sister[, who] works. [D.W.] has a history of uncontrolled diabetes, CHF,[2] and unsteady gait. She also experiences psy-chosis which is being treated. [D.W.] tends to wander. She requires assistance with care and must be watched and supervised.

Based on this information, a fifty percent reduction in home care services (from forty to twenty hours) was recommended.

A notice of reduction was issued, and D.W. responded by requesting a hearing in order to challenge the reduction. She was independently assessed by the Division of Disability Services (the Division) in early 2013; the Division's assessment nurse differed with Horizon's nurse and awarded eighteen points ostensibly meaning D.W. was entitled to eighteen PCA hours per week in her application of the PCA Beneficiary Assessment Tool, N.J.A.C. 10:60-3.9(b)(1). The report prepared at the time stated that D.W.'s sister agreed to accept twenty-five hours of PCA but this purported settlement was later rescinded due to a misunderstanding about its terms.

The ALJ filed an opinion in which he outlined and analyzed the undisputed facts and concluded that D.W.'s deteriorating conditions militated against a reduction in benefits. The Division took exception to the ALJ's recommendation and appealed to the Director of DMAHS, who ultimately concluded that twenty-five hours per week of PCA was medically necessary.

D.W. appeals that final agency decision, arguing

I. [DMAHS'S] DECISION IS ARBITRARY AND CAPRICIOUS AND IS NOT SUPPORTED BY THE RECORD.

A. Petitioner has Established that Forty Hours of Personal Care Assistant Services are Medically Necessary.

B. Respondent has not Met its Burden of Proof to Substantiate a Reduction of Services.

C. Respondent Incorrectly Relies Upon the Utilization of Hours Awarded to Prove that Services are not Needed.

II. [DMAHS] USED A FAULTY ASSESSMENT TOOL IN DETERMINING THE NUMBER OF PERSONAL CARE ASSISTANT HOURS REQUIRED BY D.W.[3]

The factual record reveals no dispute that D.W. was approved in 2009 in what we assume was the last assessment prior to September 2013 for forty hours per week in PCA. And there is no dispute that D.W.'s condition has since deteriorated. Consequently, we conclude that without an explanation of how a smaller amount of PCA is warranted despite D.W.'s increased difficulties the agency decision cannot logically be sustained. That is, in a vacuum, there may be nothing arbitrary or capricious in the agency head's acceptance of the results derived from the most recent application of the regulation's assessment tool. But the agency head did not account for the fact that the 2009 plan called for forty hours per week in PCA or for the fact that D.W.'s condition has deteriorated. Although our standard of review calls for deference to an agency's findings and expertise, see Thurber v. City of Burlington, 191 N.J. 487, 501-02 (2007), our intervention is compelled by the agency head's unexplained departure from what was previously paid in PCA in the face of countervailing circumstances. We remand for the agency head's reconsideration in light of the 2009 baseline and for an explanation if the agency head retains the belief that a downward modification is required. In remanding for the agency's reconsideration, we do not foreclose a further remand to the ALJ for additional findings and development of the record as to the circumstances that supported the 2009 forty-hour PCA assessment.

The final agency decision is vacated and the matter remanded for further consideration in conformity with this opinion. The stay we imposed by order entered on November 8, 2013, and revisited by order entered on November 27, 2013, shall remain in full force and effect pending further order of this court.

Vacated and remanded. We do not retain jurisdiction.

1In light of other material in the record, we assume HTN refers to hypertension.

2The ALJ logically assumed CHF referred to congestive heart failure.

3Because we remand on other grounds, we need not now consider Point II.