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Magid v. Board of Trustees

May 6, 2009


On appeal from the Board of Trustees, State Health Benefits Commission, TYP 05383-05.

Per curiam.


Submitted December 2, 2008

Before Judges Wefing, Parker and LeWinn.

Petitioner Emanuel Magid appeals from the October 10, 2007 final administrative decision of the State Health Benefits Commission (SHBC), denying his request for reimbursement of certain private duty nursing expenses he incurred on behalf of his now-deceased wife, Phyllis Magid. For the reasons that follow, we reverse.


Petitioner is a retired employee of the Newark Board of Education who, in addition to primary insurance coverage under Medicare, has continuing secondary coverage under the so-called Traditional Plan of the New Jersey State Health Benefits Program (SHBP) administered by Horizon Blue Cross-Blue Shield of New Jersey (Horizon). On March 12, 2002, petitioner's seventy-six-year-old wife was hospitalized at Mount Sinai Hospital in New York City, for surgery related to two hip fractures. Shortly after her admission, Mrs. Magid was found to have cancer, namely B-cell blastic non-Hodgkin's lymphoma. Following two hip surgeries on March 15 and 26, 2002, she was transferred to the oncology floor to undergo chemotherapy. Her cancer treatment lasted from April 12 to May 15, 2002.

During the two-month period immediately following her first hip surgery through her chemotherapy treatment, Mrs. Magid experienced pain and numerous physical problems related to the surgeries, as well as serious side effects from the chemotherapy. She also suffered from pre-existing coronary problems, and fluctuations in her blood pressure. Her emotional state was very fragile during this period and she came under the care of a clinical psychologist and a psychiatrist who prescribed "medications for mood and pain management" during her "entire hospitalization at M[oun]t Sinai."

In consultation with Mrs. Magid's treating physicians, Dr. Elton Strauss and Dr. Valentin Fuster, petitioner hired private duty nurses from March 15 to May 15, 2002. In addition to her post-surgical pain and trauma and the cancer diagnosis and treatment, Mrs. Magid also suffered from neuropathy, spinal stenosis, vascular insufficiency, significant depression and death anxiety during her hospitalization. As the result of her various illnesses, she died of "multi-organ failure" on August 30, 2002.

The Member Handbook for petitioner's Horizon insurance plan sets forth the following guidelines governing claims for private duty nursing care:


Private duty nursing is only available under very strict standards. Private duty nursing will only be covered under extraordinary circumstances upon evidence of a clear and convincing objective need.

Private duty nursing must be ordered by a doctor; and provided by one of the following:

--- Registered nurse (R.N.), other than you, your spouse, or a child, brother, sister, or parent of you or your spouse.

--- Licensed practical nurse (L.P.N.), other than you, your spouse, or a child, brother, sister, or parent of you or your spouse.

Private duty nursing will not be covered if the care is:

--- the type of care normally provided by or that should be provided by hospital nursing staff[.]

On June 29, 2003, petitioner filed a claim with Horizon seeking reimbursement of $25,500, which he had incurred in hiring private duty nurses for his wife. He stated in his appended letter that the nurses had been "required by [p]hysicians due to severe problems from March 12, 2002 on . . . ." He further stated that the nurses had all been "assigned by the Private Duty Nursing Office at Mount Sinai Hospital . . . ."

On September 25, 2003, Horizon denied petitioner's request for insurance coverage. Petitioner appealed. Horizon then obtained the nurses' notes from Mount Sinai Hospital and, upon review, advised the SHBC that payment would be denied because "[a]lthough the patient had multiple problems managed and treated during this hospitalization[,] they did not result in extraordinary circumstances that could not be effectively handled by the hospital's regular nursing staff."

On November 15, 2004, the SHBC tabled the matter to enable petitioner to submit medical documentation from his wife's treating physicians. Petitioner submitted the following: (a) a November 5, 2004 letter from Dr. Janet Cuttner, a hematologist who had been involved with Mrs. Magid's chemotherapy, stating that Mrs. Magid had been "in constant pain and required extraordinary nursing care. . . . At no time was she completely without pain . . . . I believe the private duty nurses were an important part of her care"; (2) a November 11, 2004 letter from Dr. Strauss, who had been Mrs. Magid's treating orthopedist for the two years preceding her death, stating that she "required constant attention [and] needed to be turned to prevent decubiti, pneumonitis and further breakdown of her musculoskeletal system. Nursing care could not be expected to be able to deliver these services[,]" and adding: "Private duty nursing was recommended as a major treatment modality. Without private duty nursing[,] Mrs. Magid would not have sustained her life to the time that she did. . . . This nursing care was a major player in [her] treatment protocol . . . ."; and (3) a December 13, 2004 letter from Dr. Fuster, Mrs. Magid's treating cardiologist, stating: "Because of her recent cardiac surgery history, staged orthopedic surgeries, and labile blood pressure problems, I supported the team's suggestion that the family hire registered professional nurses for private duty care and close monitoring[,]" and adding: "Private duty RNs monitored her labile blood pressure, febrile post-operative and rehab course to prepare her for chemotherapy through 05-15-02."

On January 19, 2005, the SHBC denied petitioner's reimbursement request. He appealed, and the matter was transferred to the Office of Administrative Law (OAL) for a hearing before an administrative law judge (ALJ).

At that hearing, petitioner described the numerous services performed by the private duty nurses, including: checking and changing Mrs. Magid's wound dressings; checking the surgical areas for drainage; controlling and administering intravenous medications for pain and treatment management; flushing out the intravenous tube ports; assisting with blood transfusions; recording her vital signs; providing "special skin care" and oral care; physically changing her position in bed to prevent bed sores and to alleviate pain; and providing emotional support to help her deal with her depression.

Petitioner testified that the private duty nurses were hired based upon the recommendation of his wife's treating doctors, and that it was not a personal decision by him or his wife. He stated that the doctors "definitely indicated clearly . . . that ...

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