NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 3, 2013
On appeal from the New Jersey Department of Human Services, Division of Medical Assistance and Health Services.
Disability Rights New Jersey, attorney for appellant (Curtis D. Edmonds, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Molly Moynihan, Deputy Attorney General, on the brief).
Before Judges Alvarez and Maven.
Petitioner C.M. appeals from the April 17, 2012 final decision by the Director of the Department of Human Services, Division of Medical Assistance and Health Services (DHS), denying her the Medicaid funding necessary for the purchase of a Dyna Vox Maestro (Dyna Vox) speech generating communication device. We remand the matter, concluding that her expert's report and treating physician's prescription, although admitted into evidence, were not included in the final decision issued by the Director.
When funding was denied, petitioner appealed, and the matter was transferred to the Office of Administrative Law (OAL) for hearing. The Administrative Law Judge's (ALJ) decision issued on March 16, 2012. The final agency decision, adopting the ALJ's findings of fact and recommendations of law, issued the following month.
We briefly summarize the facts and quote the relevant portions of the ALJ's "summary of testimony." It is undisputed that petitioner, who is now sixty-five years old, was diagnosed at birth with cerebral palsy and dysarthria, a communication disorder. In 2010, she sustained a significant injury to her back and broke a vertebra in her neck. She now requires the use of a cervical collar which limits her head and neck movements.
At the hearing in front of the ALJ, John Sawicki, M.D., appeared on behalf of DHS. He did not actually testify but instead acted as an advocate for the agency. Nonetheless, the ALJ's decision included his statements in her "Summary of Testimony":
(Dr. John Sawicki, M.D.)
Dr. John Sawicki, M.D., appeared on behalf of respondent. He said all documentation appellant submitted to respondent was reviewed thoroughly prior to denying the application for the Dyna Vox Maestro machine and that the denial is based on the requirements of the New Jersey Administrative Code. He reviewed N.J.A.C. 10:59-1.4 and determined that the Dyna Vox is considered durable medical equipment routinely used in nursing or health care facilities and that routine equipment is already included in the cost of the per diem payment made by respondent for the resident or patient. The doctor said,
A denial was necessary because the Center is responsible for paying for a Dyna Vox Maestro. No unique circumstances or the existence of a special need were presented for consideration prior to the denial letter being issued. The test for medical necessity has not been satisfied in this case. The nursing staff is able to hear ...