September 24, 2013
DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, Respondent-Respondent
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 and understand the patient, medical necessity is the key, not the quality of life.
Dr. Sawicki emphasized that the denial was based on information received on or prior to the assessment review date. He explained that the Dyna Vox Maestro is an augmented communication device that can be manipulated by a patient's eyes and the use of a camera, or by pushing a button or keypad to make a request or relate something verbally. He said that pursuant to the Code such a device is to be provided by the health care facility as an aide for communication.
Deb Bassett is a speech therapist at the Center. She said the Maestro is a speech-generating device that supplements appellant's current communication techniques or tools. Bassett has not used or had experience with the Maestro.
Lauren Hegyi, the Director of Rehabilitation at Regent Care, testified,
When appellant was admitted to the Center on October 28, 2011, she was dependent on someone to care for all of her needs, including feeding and transferring. She wears a back brace and a collar. [C.M.] does not use any devices to communicate at this time. When she is excited or frustrated she gets out sounds, but she cannot say "slow-down" when being fed, or "I have a headache." She is unable to respond to doctors or therapists. She wants to be involved and do things, so if she had a device she could interact with staff and the resident community.
On cross-examination, Hegyi responded that appellant's vision is good. Ms. Hegyi did not respond to the inquiry of why flash cards could or could not be used.
(Karen La Para)
Ms. La Para is an administrator at Regent Care Center. She testified as follows,
The Medicaid per diem rate varies depending on the location of the nursing home. Typically, Regent Care Center receives $220 per day to cover the total care of the patient. The Cost Report for patient care is completed by a corporate officer of the Center. The cost for the Dyna Vox Maestro is $10, 485. The Center must provide every patient with a good quality of life as per the mandate of the Department of Health and Human Services Division of Medical Assistance.
Based on the testimony she summarized as set forth above, the ALJ made findings of fact, including that petitioner was "not prohibited from using flash cards to communicate, " that the Dyna Vox Maestro would enable her to "communicat[e] more efficiently with her doctors and nurses, " and the "unavailability of the equipment would not hinder appellant's current medical and therapeutic treatment."
Petitioner, however, also moved into evidence certain documents, portions of which we set forth below, including a speech language pathologist's report and doctor's prescription for the Dyna Vox. Neither is mentioned in the ALJ's decision. Among other things, the pathologist report states:
Currently, as a result of her cervical fracture and cervical collar, [C.M.] has newly acquired physical restrictions, which resulted in her being unable to use speech or non-speech acts such as signs to communicate and have her wants/needs met and her thoughts and feelings expressed. Secondary to her injuries and restrictions, her motor movement is severely restricted and her speech is severely affected, with intelligibility less than 5% for unfamiliar and familiar speakers. . . . . . . .
4. Language Skills
[C.M.] has a functional receptive and expressive vocabulary, which prior to her injury have enabled her to use receptive and expressive language skills via oral verbalization to communicate in a family and a recreational setting all of her wants/needs/feelings. She is currently visibly frustrated with her inability to communicate even her most basic needs, such as bathing, toileting, etc., as well as more complex linguistic tasks, such as communicating with people around her, building relationships and expressing feelings of happiness and frustration. [C.M.] is able to use picture symbols as well as numbers, colors, letters and short words to express her needs via [speech generating device (SGD)] given moderate assistance and cues necessary to master navigating an SGD format.
[C.M.]'s daily functional communication needs cannot be met using natural communication methods or low-tech/no-tech AAC techniques. Communication symbols, communication boards and PECS limit communication to the symbols provided in a book or board. Additionally, secondary to her physical restraints in upper limb use, she is unable to access or manipulate communication books or cards. Managing these symbols and having them readily available during communication opportunities presents a challenge to independent, easily accessible communication. Navigating through pages of language and/or individual symbol cut outs (usually with the assistance of others) slows down or completely stops the communication process. The focus inevitably shifts to managing the communication system at the cost of the individual independently communicating preferences, wants and medical needs. Furthermore, these systems have no voice output. Without voice output [C.M.] cannot independently call for help or direct attention to medical needs with someone who is not familiar with the system. Communication is limited to communication partners who understand the symbols, and even then the communication partner is left to determine the intent behind a particular picture symbol. For these reasons, low tech and no tech options were eliminated from consideration.
That multi-page report, reviewed and approved by C.M.'s physician, included a treatment plan for the use of the Dyna Vox speech generating device.
The ALJ also found as a fact, based in part on Sawicki's representations, that the device was not medically necessary, and fell in the category of durable medical equipment (DME) that should be funded out of the per diem payment made by DHS for the resident. Furthermore, the ALJ, like DHS, was concerned by the appliance's $10, 485 cost.
The substantial evidence rule, applicable to administrative appeals, is well-established. It requires us to affirm an agency's decision unless it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, offensive to the Federal or State Constitution, or inconsistent with the agency's legislative mandate. See Circus Liquors v. Middletown Twp., 199 N.J. 1, 9-10 (2009); Hemsey v. Bd. of Trs., PFRS, 198 N.J. 215, 223-24 (2009); Lourdes Medical v. Bd. of Review, 197 N.J. 339, 360, 367-68 (2009). This does not mean, however, that we merely rubber stamp the agency record and findings, as appellate review calls for "careful and principled consideration." In re Taylor, 158 N.J. 644, 657-58 (1999). Appellate review should result in the reversal of decisions not supported by the record, or which include findings that are contrary to the record. See Costantino v. N.J. Merit Sys. Bd., 313 N.J.Super. 212, 225 (App. Div.), certif. denied, 157 N.J. 544 (1998); Seigel v. N.J. Dep't of Envtl. Prot., 395 N.J.Super. 604, 613 (App. Div.), certif. denied, 193 N.J. 277 (2007).
The ALJ in this case did not even refer to the speech pathologist's report or the doctor's prescription in her findings, much less address the fact that they appear to contradict the representations and legal arguments Sawicki made on behalf of the agency. Hence we see no evidentiary basis for the inclusion of his statements in the ALJ's factual findings. In any event, because the findings of the ALJ do not include the speech pathologist's report, we remand the matter to DHS for reconsideration and development of a complete record. See Seigel, supra, 395 N.J.Super. at 623; Allen v. Ebon Servs. Intern., Inc., 237 N.J.Super. 132 (App. Div. 1989). If the expert report and prescription are included in the analysis, DHS may decide the device is medically necessary. If all the evidence is taken into account in the decision-making process, even if the agency ultimately rules against petitioner, at least we will then have a complete analysis and decision for appellate review. Since DHS only relied upon the findings of the ALJ, which in turn did not consider critical proofs, the matter must be remanded.
Remanded for further proceedings in accordance with this opinion.