On appeal from Division of Medical Assistance and Health Services.
Fritz, Polow and Joelson. The opinion of the court was delivered by Joelson, J.A.D.
Appellant is the mother of Michael Dougherty, an asthmatic nine-year-old boy who is eligible for medical assistance as a public assistance recipient. She applied to the Division of Medical Assistance and Health Services (Division) for Medicaid payments for a "HEPA Air Cleaner" which was prescribed for Michael by his physician. After her claim was denied by the local medical assistance unit of the Division, she was given a hearing before an administrative law judge who recommended that the determination of the local medical assistance unit be reversed. However, exceptions to that determination were filed and the director of the Division reversed the decision of the administrative law judge and denied the payment. This is an appeal from that denial. We reverse.
Title XIX of the Social Security Act, 42 U.S.C.A. § 1396 et seq. , establishes a program commonly known as "Medicaid." It provides a cooperative federal-state program for payment for medical assistance to persons whose income and resources are insufficient to meet the cost of necessary medical services. 42 U.S.C.A. § 1396a(a)(13)(B) requires a state program to provide specified mandatory services to persons who qualify because they receive other types of public assistance. It also establishes optional categories which a state may elect to make available to such persons.
We are persuaded that the device or equipment for which payment is hereby sought does not fall within the mandatory features of the federal legislation. The mandatory items to be considered as "medical assistance" are contained in 42 U.S.C.A. § 1396d(a)(1) through (5). Of these items, the only one which might arguably be pertinent is so much of 42 U.S.C.A.
1396d(a)(4)(B) which provides that the term "medical assistance" includes payment of the cost of "such health care, treatments and other measures to correct or ameliorate defects and chronic conditions . . . as may be provided in regulations of the secretary." However, the Secretary's regulations pursuant thereto provide that except for screening and treatment of defects in vision, hearing and for dental care (42 C.F.R. § 441.51), any other service a state may provide is purely discretionary. 42 C.F.R. § 441.57.
This brings us to a consideration of whether appellant has a valid claim under the federal statutory provisions concerning the optional category of coverage contained in 42 U.S.C.A. 1396d(a)(6) through (16). Although the federal legislation is an almost impenetrable thicket of sections, subsections and sub-subsections, both parties agree that the dichotomy between mandatory and optional categories as set forth above is to be discerned in 42 U.S.C.A. 1396a(a)(13)(B), and that the mandatory and optional categories are as above described.
Pursuant to his authority under 42 U.S.C.A. 1396a(a)(17) to establish "reasonable standards . . . for determining eligibility for and the extent of medical assistance. . .," the director of the Division has promulgated regulations for the program in New Jersey. N.J.A.C. 10:49-1.4(10) generally authorizes payment for "Medical supplies and equipment." The definition of medical equipment is contained in N.J.A.C. 10:59-1.2, which provides as follows:
"Medical equipment" means an item, article or apparatus which has the following characteristics:
1. Is primarily and customarily used to serve a medical purpose;
2. Is generally not useful to a person in the absence of a disease, illness or injury;
3. Is capable of withstanding repeated use (durable) and is non-expendable (for example, hospital bed, oxygen equipment, wheelchair, ...