NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2013
On appeal from the Department of Human Services, Division of Medical Assistance & Health Services and Division of Disability Services.
Slovak, Baron and Empey, attorneys for appellant (Valerie A. Powers Smith, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Molly Moynihan, Deputy Attorney General, on the brief).
Before Judges Sabatino and Maven.
M.F. appeals the November 3, 2011 final agency decision of the Director of the New Jersey Division of Medical Assistance and Health Services (DMAHS) limiting the amount of Private Duty Nursing (PDN) services to sixteen hours, inclusive of the services provided by and during school hours. We affirm.
M.F. is a boy who has been diagnosed with anoxic encelopathy, spastic quadriplegia, cerebral palsy (quadriparetic), refractory partial complex seizures, dysphasia, reactive airway disease, gastroesophageal reflux disease (GERD), epilepsy, cortical blindness, and visual impairments. He is non-verbal. He is not ambulatory and uses a wheelchair. He has a gastrostomy tube (G-tube) through which he receives all his feedings. He is completely dependent upon others for all aspects of his daily care. Due to the complexity and life-threatening nature of his medical conditions, he must be supervised twenty-four hours per day.
Since six months of age, M.F. has received services administered through the Division of Disability Services (DDS), namely, the Community Resources for People with Disabilities (CRPD) Waiver program, for which he has a $16, 000 monthly nursing budget for his sixteen hours of daily PDN services. M.F. is also on the premium plus program, which provides Medicaid State funding for his private insurance premiums.
In April 2010, M.F.'s nursing agency informed his mother that Medicaid considers PDN service hours "provided by schools, medical day care or private insurance" in determining the balance of PDN hours to be funded by Medicaid. M.F., through his mother, sought a Medicaid fair hearing to address the concerns about a possible reduction in PDN hours for M.F.
On May 4, 2011, the Medicaid fair hearing was held before administrative law judge Ronald W. Reba (ALJ). The sole issue before the ALJ was the interpretation of the CRPD waiver and its governing regulations regarding what "other sources" DDS may consider in accounting for the sixteen hours per day of PDN services received by M.F. DDS maintained that the regulations cover PDN services provided by the school district, while M.F. argues that DDS may only consider service hours provided by private insurance. The ALJ issued a thorough and comprehensive Initial Decision, which included a comparative analysis of the relevant regulations and their legislative histories. The ALJ concluded that the PDN services provided by the school district should be included in the sixteen-hour limitation, and reasoned that "other sources" should include all sources, not just insurance.
On administrative appeal to the DMAHS, the Director reviewed the record, including the ALJ Initial Decision and the exceptions to the Initial Decision, and adopted the findings, conclusions ...