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J.A. v. Division of Medical Assistance and Health Services

August 2, 2007

J.A., PETITIONER-APPELLANT,
v.
DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, RESPONDENT-RESPONDENT.



On appeal from the Division of Medical Assistance and Health Services, HMA-07328-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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