August 2, 2007
DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, RESPONDENT-RESPONDENT.
On appeal from the Division of Medical Assistance and Health Services, HMA-07328-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 30, 2007
Before Judges Kestin, Payne and Lihotz.
Petitioner, J.A., appeals from a final decision of the Director of the Division of Medical Assistance and Health Services (DMAHS) determining that petitioner does not currently meet Medicaid requirements for skilled care in a nursing facility. In so deciding, the Director rejected an Administrative Law Judge's (ALJ) conclusion that petitioner qualified for the classification sought. On appeal, petitioner argues that the Director's decision is "arbitrary, capricious, and manifestly mistaken."
Before embarking on an analysis of the issues, we are constrained to comment on the quality of the record. Although the documentation in support of the respective parties' positions seems ample and complete, the transcripts provided of two days of hearing, on November 15, 2004 and January 10, 2005, are of little value. Each transcript bears a "transcriber's note." One such note says: Tape was poor quality. Tape skips and very difficult to hear." The other says: "Poor quality tape. Tape skips in and out. Difficult to hear." Virtually every page of each transcript contains notations such as: "tape skips," "tape failure," or "skips," with obvious gaps in the questions being asked and, more importantly, in the answers given. Many of these omissions in the verbatim record occur when seemingly critical features of the matter were being developed.
We are aware that many of the hearings ALJs conduct are held in the field, in facilities that are not wired with reliable audio-taping equipment, and require the use of portable audio-taping equipment that is unmonitored and more subject to failure than fixed systems in facilities that are wired for taping. The heightened risk that such systems will not produce accurate or complete verbatim records is offset by the longstanding and admirable efforts of the Office of Administrative Law (OAL) to hold its hearings in locations that are convenient for the participants. When a proceeding produces a record such as the one we are confronted with in the instant matter, however, a remand for a new hearing will usually be necessary so that a better record is developed for judicial review. Without a reliable, complete record, we are unable to discharge our duty to determine whether the final decision in the matter is adequately supported by the evidence. See In re Taylor, 158 N.J. 644, 657 (1999). Our "review of an agency decision is 'not simply a pro forma exercise . . . .'" Ibid.
Reasonable steps should be taken to minimize the eventuality that a new hearing will be required just because of mechanical deficiencies in the record. We note that the two hearing dates in this matter for which we have transcripts occurred nearly two months apart, but that the transcriber was faced with the same problem in respect of each proceeding. It appears that this ALJ might have been using the same faulty portable equipment on both hearing dates and, probably, for other field hearings occurring during the same fifty-six-day period, possibly even before and after that period. We respectfully suggest to OAL that arrangements be made for reasonably frequent testing of its portable record-making equipment or that other workable steps be taken so that we are not faced with incomplete records on critical issues and OAL is not faced with a too-frequent need to rehear matters because of a failure of equipment.
There is another potential deficiency in this record. The ALJ's initial decision notes hearing dates scheduled for November 15, 2004, November 29, 2004, and January 10, 2005. Yet, we have transcripts only for the first and last of these dates.
In the instant matter, however, even with the shortcomings of the audio-taping equipment and the possible absence of a third transcript, we have been able to cobble together, from the deficient verbatim record and the documents that are part of the record on appeal, a sense of the underlying facts. There is no indication in the briefs before us that any dispute of material fact exists; neither party argues that, in respect of any facts necessary to decision, the existing record is deficient. The questions, in the face of an essentially agreed-upon factual background, are entirely ones of construction and application of existing regulations, and evaluations of petitioner's situation to determine whether it fits within the standards that qualify a patient for the provision of nursing home care as distinguished from another type of placement, such as a Class C boarding home as defined in N.J.A.C. 10:60-1.2, as suggested in the Director's final decision.
It is conceded that petitioner, because of his mental condition, is incapable of caring for himself without supervision, and he lacks the personal resources to provide the care and supervision he requires. In December 2003, he was adjudicated mentally incapacitated, and the Chancery Division appointed as the guardian of his person and property the attorney who has represented his interests throughout this matter.
Petitioner, currently sixty-three years old, and suffering from chronic schizophrenia, hyperlididemia and hypothyroidism, was involuntarily committed to Greystone Park Psychiatric Hospital in September 1994. On May 1, 2000, he was approved for Track I long-term placement, i.e., in a nursing home, but he remained at Greystone until February 3, 2003, when he was transferred to the Lincoln Park Nursing Facility as a Medicaid patient. Shortly thereafter, on March 5, 2003, his condition was evaluated by Rosemary C. Dujnic, RSN, a nurse-assessor charged with that responsibility. In the assessment summary contained in her memorandum report, Dujnic stated:
Client is a 59 year old male admitted to Lincoln Park Subacute and Rehabilitation on 2/3/03, from Greystone Psychiatric Hospital.
Client alert, oriented tx 2, does not know the name of this facility. Was not able to remember what facility he came from. Remembered room number. Client very quiet, does not initiate conversation, answers appropriately to simple questions. Requires supervision in washing, dressing and bathing. Needs oversight in medications.
No behavior problems since admission. Withdrawn for the most part. Does not interact with peers, smokes a[p]proximately 5 times a day. Attends activities when invited. Meets with social worker 2x a week for reality orientation. Client is ambulatory and continent of bowel and bladder. Had been a patient at Greystone for 9 years and a patient at Meadowview previous to that. According to Greystone psychiatric assessment of 9/24/02, has not had any assaultive or aggressive behavior on the ward in last 2 years. Client has an elderly cousin in the community, but has had no contact with him in over a year. Cousin is no longer able to participate in care of client. Has 2 Attorneys who are looking after affairs. Client needs to be in a supervised setting, however, at this time client does not meet NF level of care. Recommend that client be followed by the mental health case management team (PAC team) from Greystone for appropriate placement.
Based on this assessment, DMAHS's field office, in a notice dated March 5, 2003, advised petitioner that "[he did] not meet the requirements for nursing facility care as defined by . . .
N.J.A.C. 10:63-1.2 and 10:63-2."*fn1 Medicaid payments for this purpose were discontinued in February 2004. The challenge to that determination was transmitted to OAL for a contested case hearing. The ALJ's initial decision reversing the denial of nursing facility care was dated February 10, 2005, and the Director's final decision rejecting the ALJ's initial decision and concluding that petitioner did not qualify for nursing facility care was issued under date of June 29, 2005. J.A. was moved from the Lincoln Park nursing facility to a boarding home in August 2005.
There is no apparent conflict between the ALJ's initial decision and the Director's final decision over an issue of fact. The ALJ decided, on the basis of the evidence before her, and her findings in respect of petitioner's abilities and disabilities, that he "has a constant need for supervision and hands-on care significantly in excess of 2.5 hours each day and is eligible for nursing facility services pursuant to the definition in N.J.A.C. [8:85-2.2]," and that, therefore, the law covering eligibility for nursing facility care had been incorrectly applied. "He requires services which address medical, nursing, dietary and psychosocial needs that are essential to obtaining and maintaining his highest physical, mental, emotional and functional status[,]" and that the services he needs "can only be delivered in a therapeutic health care environment."
The Director did not differ with the recitation of petitioner's capacities and his requirements for assistance in attending to his day-to-day care needs. She determined, however, that those needs did not require the type of attention available in skilled nursing home care, but rather that petitioner "needs prompting, supervision and guidance, which can be provided in a setting other than a nursing home." He requires "continuous prompting with hygiene, and reminders to eat, take his medication and attend therapy and social activities." The Director adopted the view articulated by one of the witnesses in the hearing: "Petitioner needs to be in a setting where he can be monitored and receive assistance with medications and activities of daily living such as a Class C boarding home[,]" which the Director noted is defined in N.J.A.C. 10:60-1.2 as "a boarding home which offers personal assistance as well as room and board . . . ."
Although there were no differences between the ALJ and the Director regarding the basic facts of the matter, they differed on how the facts as found were to be weighted and evaluated in the context of patient needs, i.e., the extent to which the petitioner was dependent on others, or was independent, in attending to the "activities of daily living (bathing, dressing, toilet use, transfer, locomotion, bed mobility, and eating)." N.J.A.C. 8:85-2.1(a)1. According to the regulation, each separate activity of daily living "may be classified as either independent, requiring some assistance, or totally dependent."
The Director found, based upon the same record as informed the ALJ's determination, that petitioner was independent in respect of most of the activities of daily living, i.e., he could perform them himself, albeit with prompting and supervision from trained personnel. The ALJ, on the other hand, had found that there were several elemental activities of daily living in respect of which petitioner "requires full assistance of others." These disparate evaluations were made in the context of differing assessments among the nurses and social worker who testified on either side regarding petitioner's capabilities. However, the only psychiatrist to testify, Dr. Federbush, opined that petitioner needed nursing facility care, and that the care provided in a less restrictive environment was not adequate for his needs. Dr. Federbush, testifying at the time petitioner was still a patient in a nursing facility, stated:
The setting he is in now[,] in my professional opinion[,] is the appropriate one. I don't believe a less restrictive setting would be appropriate. I believe he would in my opinion decompensate and not be able to deal with the requirements that a more independent setting would have, specifically self administering medication, taking care of his activities of daily living. Right now[,] with the supervision instructions he's getting in the nursing facility[,] he is able with encouragement, with redirection, with prompting to address his needs to stay as stable as he could be. Anything less than that[,] in my opinion would lead to deterioration.
Apparently asked what the result would be if petitioner did not take his medications because of a lower level of supervision than would be available in a nursing facility, Dr. Federbush responded:
I believe he would clinically decompensate. I mean[,] you hear him behind me mumbling to himself. This is someone who is now on medication, is getting supervised structured care. I can't clinically imagine him being in a less restrictive setting without him decompensating quickly. * * *
[H]e has a history of violent activity in the past. He has not been violent recently, but he's also been in a supervised structured setting. If he was left to his own devices without taking medication, without supervision, clinical decompensation, a potential dangerousness could happen.
No countervailing medical testimony was presented. The Director's decision, therefore, must be taken, perforce, to reject these opinions offered by Dr. Federbush without any basis in the record for doing so. Because of the deficiencies in the testimonial record we have noted above, we are unable to determine with certainty whether any opinion evidence was offered to the contrary. Without such countervailing opinion or a better basis for rejecting Dr. Federbush's opinion than appears in the Director's final decision, even according to the Director's policy-based determinations all the deference they are due, see, e.g., Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 442-43 (App. Div. 2001), we cannot view her decision as having adequate grounding in the record.
Accordingly, we are obliged to remand for a new hearing with a more fully fleshed out record than is presented in the matter as it now stands. There is another benefit to that result. Because no stay of petitioner's transfer from a nursing facility to a boarding home occurred, there will be more than two years of experience with petitioner in a less hands-on environment to aid the decision makers in determining, with greater certitude, whether that type of environment adequately serves his needs or whether the stricter environment of a nursing facility would be essential to his welfare.
Reversed and remanded.