                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0230-17T4

T.M.,

          Petitioner-Appellant,

v.

DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES and UNITED
HEALTHCARE COMMUNITY
PLAN,

     Respondents-Respondents.
______________________________

                    Argued January 7, 2019 – Decided February 4, 2019

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from the New Jersey Department of Human
                    Services, Division of Medical Assistance and Health
                    Services.

                    Jane R. Marcus argued the cause for appellant
                    (Disability Rights New Jersey, attorneys; Jane R.
                    Marcus, on the briefs).
            Corey S. D. Norcross argued the cause for respondent
            United Healthcare Community Plan (Stradley Ronon
            Stevens & Young, LLP, attorneys; Corey S. D.
            Norcross, on the brief).

            Arundhati Mohankumar, Deputy Attorney General
            argued the cause for respondent New Jersey
            Department of Human Services, Division of Medical
            Assistance and Health Services (Gurbir S. Grewal,
            Attorney General, attorney; Melissa H. Raksa,
            Assistant Attorney General, of counsel; Arundhati
            Mohankumar, on the brief).

PER CURIAM

      T.M. appeals from the August 16, 2017 final agency decision of the

Director of the Division of Medical Assistance and Health Services (DMAHS),

reversing the initial decision of the administrative law judge (ALJ) and

reinstating United Healthcare Community Plan's (United) termination of T.M.'s

personal care assistance (PCA) services.1 We affirm.




1
  Under N.J.A.C. 10:60-3.3(a), "[h]ands-on personal care assistant services" are
described as "[a]ctivities of daily living (ADL)," encompassing assistance with
personal hygiene, grooming, toileting, changing bed linens, ambulation,
transfers, and eating. Under N.J.A.C. 10:60-3.3(b), "[i]nstrumental activities of
daily living (IADL) services are non-hands-on personal care assistant services
that are essential to the beneficiary's health and comfort" and include
housekeeping duties, laundry, shopping, and other essential errands, and meal
preparation. "Health related activities, performed by a personal care assistant"
are limited. N.J.A.C. 10:60-3.3(c).
                                                                         A-0230-17T4
                                       2
     We glean the following undisputed facts from the record. T.M., then

twenty-three years old, has spinal muscular atrophy, is paralyzed, and is

dependent on a ventilator to breathe. She resides with her grandmother who is

also her primary caregiver. For many years, T.M. had been receiving private

duty nursing (PDN) and PCA services through Medicaid under the Early and

Periodic Screening, Diagnostic and Treatment (EPSDT) program. Under that

program, children under the age of twenty-one were eligible to receive any

medically necessary service. Once T.M. turned twenty-one and aged out of the

EPSDT program, she began receiving Medicaid services through Managed Long

Term Services and Supports (MLTSS), administered by United.

     MLTSS allowed Medicaid to deliver long-term services and supports at

home or elsewhere through Medicaid Managed Care Organizations (MCOs),

like United. Under MLTSS, T.M. continued receiving sixteen hours of daily

PDN services, totaling 112 hours per week, and four hours of PCA services six

days a week, totaling twenty-four hours per week, pursuant to a September 21,

2015 PCA Nursing Assessment Tool, which assessed T.M. as requiring a total

of 37.58 hours of PCA services per week. However, on July 29, 2016, following

a reassessment of T.M. as required under N.J.A.C. 10:60-3.5(a)(3), "to

reevaluate the beneficiary's need for continued [PCA] services[,]" United


                                                                      A-0230-17T4
                                     3
advised T.M. by letter that her PCA services were being "terminat[ed]" effective

August 5, 2016. The letter explained that based on the "Personal Care Attendant

Beneficiary Assessment Tool," T.M.'s "private duty nurse [was taking] care of

both [her] skilled needs and [her] personal care needs" and "[her] caregiver

[was] completely responsible" for providing "at least eight (8) hours of [her]

care every day[,]" which "[was] not currently taking place."

      T.M. promptly filed a stage one appeal, which was denied. In an August

3, 2016 letter, United advised T.M. that the decision was based on N.J.A.C.

10:60-5.3, pertaining to PDN eligibility, and N.J.A.C. 10:60-5.9, pertaining to

PDN limitations. Additionally, the letter explained that twenty-four hours per

week of PCA services were "not medically needed." T.M. filed a stage two

appeal, which was also denied for the same reasons in a November 29, 2016

letter. T.M. requested a fair hearing to contest the termination, and the matter

was transmitted to the Office of Administrative Law (OAL) pursuant to N.J.S.A.

52:14B-1 to -15, and N.J.S.A. 52:14F-1 to -13. After both parties moved for

summary decision pursuant to N.J.A.C. 1:1-12.5, the ALJ granted T.M.'s

motion, denied United's cross-motion, and determined that United's "decision to

terminate [T.M.'s] PCA hours was not appropriate."

      In her initial decision, the ALJ explained:


                                                                        A-0230-17T4
                                        4
                  N.J.A.C. 10:60-5.9(c) limits PDN services to a
            maximum of sixteen hours per day for 112 hours per
            week. PCA services are generally limited to forty hours
            per week pursuant to [N.J.A.C.] 10:60-3.8(g). PDA and
            PCA are mutually exclusive services and nowhere in
            the regulations does it dictate that the allowance of one
            prohibits or limits eligibility as to the other. Actually,
            [N.J.A.C. 10:]60-5.9(a)(2) prohibits for safety reasons
            a PDN from performing non[-]medical services. There
            is no regulation that prohibits PDN and PCA services
            from occurring at the same time. Since a PDN is
            prohibited from performing non[-]medical services,
            United cannot argue that the services of the PDN
            substitute for those services provided by the PCA.

                   Furthermore, the [PCA] Nursing Assessment
            Tool dated September 21, 2015, performed by United,
            found that [T.M.] was in need of 37.58 hours of PCA
            services per week. These services are medically
            necessary to accommodate [T.M.'s] long-term chronic
            or maintenance health care. [T.M.] is totally dependent
            and her caretaker grandmother requires assistance in
            providing [T.M.'s] daily needs of living including
            transfers, repositioning, grooming, hygiene/bathing,
            cleaning/laundry, and feeding. In the absence of the
            assistance of PCA services, [T.M.] would not be able to
            be maintained at home and would require long[-]term
            in[-]patient care in a nursing facility. The goal of PCA
            services is to maintain disabled persons such as [T.M.]
            in their homes to the fullest extent possible because it
            is better for the patient and more cost[-]effective for the
            State of New Jersey.

      In rejecting United's reliance on "its contract with the State as authority

for terminating [T.M.'s] PCA services[,]" the ALJ stated "[t]he rules governing

the administration of the Medicaid program originate from State and federal law,

                                                                          A-0230-17T4
                                        5
and not a contract between a state agency and an insurance company." Thus,

"[t]he contract with United cannot circumvent [T.M.'s] entitlement to PCA

services pursuant to the regulations."

       United filed exceptions to the ALJ's initial decision, and, on August 16,

2017, the DMAHS Director issued a final agency decision reversing the ALJ's

decision and reinstating United's termination of T.M.'s PCA services. The

Director posited that the dispute "focuses on whether [T.M.] may also receive

[twenty-four] hours of weekly PCA services in addition to the [sixteen] hours of

[daily] PDN she receives." The Director determined that while "the ALJ [was]

correct that there [was] no explicit prohibition in the regulations disallowing the

provision of PCA services," in this case, "regulatory and contractual

requirements . . . preclude[d] T.M. from receiving more than [sixteen] hours per

day of hands-on care and require[d] the primary caregiver to perform [eight]

hours of daily hands-on care."

      To support her decision, the Director relied on N.J.A.C. 10:60-5.9(c) and

N.J.A.C. 10:60-6.3(b)(2),2 as well as the MCO contract. N.J.A.C. 10:60-5.9(c)

provides:


2
  N.J.A.C. 10:60-6.3(b)(2), addressing PDN for the State's prior Medicaid
waiver program, has since been repealed. N.J.A.C. 10:60-6.3(b)(2) provided:


                                                                           A-0230-17T4
                                         6
     Private duty nursing services shall be limited to a
     maximum of [sixteen] hours, including services
     provided or paid for by other sources, in a [twenty-four]
     hour period, per person in MLTSS. There shall be a
     live-in primary adult caregiver who accepts [twenty-
     four] hour per day responsibility for the health and
     welfare of the beneficiary . . . .

           ....

     The adult primary caregiver must be trained in the care
     of the individual and agree to meet the beneficiary's
     skilled needs during a minimum of eight hours of care
     to the individual during every [twenty-four] hour
     period.

According to Article 9 of the MCO contract,

     . . . Members are counseled on the program[s'] inability
     to provide [twenty-four] hour care and advised that the
     total [PDN], [PCA][,] and Self Direction total services
     limit is [sixteen] hours per day. This is in accordance
     with N.J.A.C. 10:60-6.3(b)(2)[,] which indicates that a
     live-in primary adult caregiver who accepts [twenty-
     four] hour responsibility for the health and welfare of
     the beneficiary . . . is required to provide a minimum of



     Private duty nursing shall be provided in the
     community only, not in an inpatient hospital setting.
     The beneficiary shall have a live-in primary caregiver
     (adult relative or significant other adult) who accepts
     [twenty-four] hour responsibility for the health and
     welfare of the beneficiary. A maximum of [sixteen]
     hours of private duty nursing, from all payment
     sources, may be provided in any [twenty-four] hour
     period. A minimum of eight hours of hands-on care
     shall be provided by the primary caregiver.
                                                                 A-0230-17T4
                                7
            eight (8) hours of hands[-]on care daily. [PDN] is not
            permitted to overlap with [PCA] or Self Direction hours
            as these services are included in [PDN] and thus
            considered a duplication of services . . . .

      The Director concluded that "[T.M.'s] receipt of additional care in the

form of PCA services [was] contrary to the regulations" and "directly

overlap[ped] with the care that [T.M.'s] caregiver [was] required to provide." In

support, the Director relied on the fact that "the regulations impose[d] a [sixteen]

hour daily limit on PDN from all sources[,]" "[eight] hours of [T.M.'s] PDN

care" had to "be provided by her caregiver grandmother[,]" and "[t]he MCO

[c]ontract also specifically preclude[d] MLTSS recipients from receiving PDN

and PCA assistance simultaneously[,]" The Director described T.M.'s argument

that the additional PCA services were permitted because they were "not

specifically precluded by the PCA regulations," as "puzzling in light of the

purpose and intent of the PCA program[,] which is to provide assistance with

specific health related tasks[,]" both skilled and unskilled, which in T.M.'s case

were "indisputably being provided by her private duty nurses and her

grandmother."

      The Director pointed out that in finding "no duplication of services if T.M.

. . . receiv[ed] both PDN and PCA [services,]" the ALJ "mistakenly conclude[d]



                                                                            A-0230-17T4
                                         8
that the private duty nurse [was] prohibited from performing non[-]medical

services, []such as bathing and feeding." The Director explained:

            This is simply not true. The prohibition on a private
            duty nurse from performing non[-]medical tasks only
            applies when the nurse and the beneficiary are outside
            of the home.            [See N.J.A.C.] 10:60-5.9(a)(2).
            Moreover, PCA is a delegated nursing task. Indeed, a
            certified homemaker-home health aide "is employed by
            a homecare services agency and who, under the
            supervision of a registered professional nurse, follows
            a delegated nursing regimen or performs other tasks
            that are delegated." [N.J.A.C.] 13:37-14.2. It simply
            makes no sense that [T.M.'s] private duty nurse would
            delegate a task while she is in the home and fully
            capable of performing those tasks. This is evident
            pursuant to T.M.'s plan of care and the actual private
            duty shift notes which show that the private duty nurse
            is expected to, and, in fact, does address T.M.'s skilled
            as well as her unskilled needs. . . . Significantly, the
            shift notes show that the nurse regularly provides
            assistance with the ADL and IADL tasks identified in
            the plan of care. . . . Thus, T.M.'s PCA services are not
            medically necessary as they are duplicative of the
            services she already receives through her [sixteen]
            hours of private duty nursing along with the [eight]
            hours of hands-on care that her grandmother provides.

      The Director also rejected T.M.'s contention "that she [was] . . . denied

due process because United . . . failed to provide adequate notice explaining the

basis for the termination of her PCA services." According to the Director,

"'taken as a whole,'" United's "notices advised [T.M.] that her PCA services were



                                                                         A-0230-17T4
                                       9
being terminated along with an explanation for the termination and the

supporting regulations."

                  Moreover, the fundamental requirement of due
            process is the opportunity to be heard at a meaningful
            time and in a meaningful manner. Matthews v.
            Eldridge, 424 [U.S.] 319, 333 (1976). Thus, assuming
            [arguendo] that the notice was inadequate, inadequate
            notice is a procedural defect that may be cured by a [de
            novo] hearing. In re Appeal of Darcy, 114 [N.J. Super.]
            454, 461 (App. Div. 1971). Here, [T.M.] was afforded
            due process by this OAL hearing and the continuation
            of PCA services pending the outcome of the appeal.

This appeal followed.

      On appeal, T.M. raises the following arguments for our

consideration:

            I.     THE REGULATORY BASIS STATED IN THE
                   NOTICES FOR TERMINATING T.M.'S PCA
                   SERVICES IS NOT A LEGAL BASIS FOR
                   TERMINATING SUCH SERVICES.

            II.    THE CONTRACT BETWEEN THE STATE
                   AND UNITED CANNOT BE RELIED UPON
                   AS A BASIS FOR TERMINATING T.M.'S PCA
                   SERVICES.

            III.   . . . UNITED'S OWN ASSESSMENT FOUND
                   T.M. MEDICALLY NEEDY AND ELIGIBLE
                   FOR PCA SERVICES.

            IV.    UNITED FAILED TO PROVIDE ADEQUATE
                   NOTICE OF THE TERMINATION OF PCA
                   SERVICES.

                                                                       A-0230-17T4
                                      10
      Our role in reviewing agency decisions is limited. R.S. v. Div. of Med.

Assistance & Health Servs., 434 N.J. Super. 250, 260-61 (App. Div. 2014).

Because "a 'strong presumption of reasonableness attaches to [an agency

decision,]'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In

re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)),

"[a]n administrative agency's decision will be upheld 'unless there is a clear

showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record.'" R.S., 434 N.J. Super. at 261 (quoting Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)).

      In determining whether agency action is arbitrary, capricious, or

unreasonable, our role is restricted to three inquiries:

            (1) whether the agency action violates the enabling act's
            express or implied legislative policies; (2) whether
            there is substantial evidence in the record to support the
            findings upon which the agency based application of
            legislative policies; and (3) whether, in applying the
            legislative policies to the facts, the agency clearly erred
            by reaching a conclusion that could not reasonably have
            been made upon a showing of the relevant factors.

            [Ibid. (quoting H.K. v. Div. of Med. Assistance &
            Health Servs., 379 N.J. Super. 321, 327 (App. Div.
            2005)).]




                                                                          A-0230-17T4
                                        11
      "Deference to an agency decision is particularly appropriate where the

interpretation of the [a]gency's own regulation is in issue." Ibid. (quoting I.L.

v. N.J. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 389

N.J. Super. 354, 364 (App. Div. 2006)). "Nevertheless, 'we are not bound by

the agency's legal opinions.'" A.B. v. Div. of Med. Assistance & Health Servs.,

407 N.J. Super. 330, 340 (App. Div. 2009) (quoting Levine v. State, Dep't of

Transp., Div. of Motor Vehicles, 338 N.J. Super. 28, 32 (App. Div. 2001)).

Indeed, "[s]tatutory and regulatory construction is a purely legal issue subject to

de novo review." Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.

85, 93 (1973)).

      Relevant here, when the agency head rejects or modifies the ALJ's

"findings of fact, conclusions of law[,] or interpretations of agency policy in the

decision," the agency head "shall state clearly the reasons for doing so."

N.J.S.A. 52:14B-10(c).      The agency head may not reject or modify any

credibility findings of the ALJ "unless it is first determined from a review of the

record that the findings are arbitrary, capricious[,] or unreasonable or are not

supported by sufficient, competent, and credible evidence in the record." Ibid.

      Turning to the pertinent aspects of the Medicaid program, "[t]he federal

Medicaid Act, Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 to


                                                                           A-0230-17T4
                                       12
1396w-5, mandates a joint federal-state program to provide medical assistance

to individuals 'whose income and resources are insufficient to meet the costs of

necessary medical services.'" E.B. v. Div. of Med. Assistance & Health Servs.,

431 N.J. Super. 183, 191 (App. Div. 2013) (quoting 42 U.S.C. § 1396-1).

Although a state is not required to participate, "[o]nce a state joins the program,

it must comply with the Medicaid statute and federal regulations." Ibid. "The

New Jersey Medical Assistance and Health Services Act, N.J.S.A. 30:4D-1 to -

19.5, authorizes New Jersey's participation in the federal Medicaid program."

Id. at 192. DMAHS is the agency within the State Department of Human

Services that administers the Medicaid program.               N.J.S.A. 30:4D-7.

Accordingly, DMAHS is responsible for protecting the interests of the New

Jersey Medicaid program and its beneficiaries. N.J.A.C. 10:49-11.1(b); see

E.B., 421 N.J. Super. at 192.

      MLTSS is the Medicaid program at issue here. As a recipient of services

under MLTSS, T.M. was subject to the regulatory proscriptions of N.J.A.C.

10:60-5.9(c), which limited PDN services to a maximum of sixteen hours daily,

and required the primary caregiver to provide a minimum of eight hours of care

daily. Combined, the regulation ensures a total of twenty-four hours of daily

care. PDN services include assistance with ADL, and the primary caregiver


                                                                           A-0230-17T4
                                       13
provides hands-on care. Therefore, inasmuch as the services provided by T.M.'s

PCA were already being provided by her PDN and her grandmother, and

services cannot logically exceed twenty-four hours per day, as the Director

determined, the PCA services were duplicative and medically unnecessary.

      We reach this conclusion notwithstanding the fact that PCA services are

not expressly prohibited by the Medicaid regulations. As the agency responsible

for protecting the interests of the New Jersey Medicaid program and its

beneficiaries, we are satisfied that the Director's decision that Medicaid funds

should not be used to subsidize duplicative services is hardly arbitrary,

capricious, unreasonable, or lacking fair support in this record.

      T.M.'s assertion that "[t]he PCAs are not in the home during the PDN['s]

shift, but only come for four hours during the eight hours T.M.'s grandmother is

home with T.M. and responsible for her care" confounds her argument. Indeed,

on the days when T.M. receives four hours of PCA services in addition to sixteen

hours of PDN care, for a combined total of twenty hours of care, T.M. is in clear

violation of N.J.A.C. 10:60-5.9(c)'s requirement that her grandmother provide a

minimum of eight hours of hands-on care.

      We also reject T.M.'s contention that the Director erred in relying on the

MCO contract as a basis for terminating the PCA hours. The contract merely


                                                                         A-0230-17T4
                                       14
parroted and paraphrased the regulations pertaining to PDN services. Likewise,

we reject T.M.'s argument that the decision was contrary to the earlier

Assessment Tool which showed that T.M. required PCA services in excess of

what she had been receiving. On the contrary, the Director's decision ensured

that T.M. would be receiving the needed PCA services, but through her PDN

and grandmother, rather than the PCAs.

      Equally unavailing is T.M.'s contention that she was denied due process

because United failed to provide timely and adequate notice explaining the basis

for the termination of her PCA services as required by N.J.A.C. 10:49-10.4(a).

We agree with the Director that any deficiency was cured by T.M. receiving a

de novo hearing with continued PCA services pending appeal. See N.J.A.C.

10:49-10.4(d)(1) (requiring DMAHS to "reinstate and continue services until a

decision is rendered after a hearing" if "[a]n action is taken to terminate, suspend

or reduce . . . covered services without affording claimants adequate advance

notice"); Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 361 (App. Div.

1994) (explaining that procedural irregularities are considered cured by a

subsequent plenary hearing at the agency level); Matthews, 424 U.S. at 333

(noting that the fundamental requirement of due process is the opportunity to be

heard at a meaningful time and in a meaningful manner).


                                                                            A-0230-17T4
                                        15
      "'[E]ven though [we] might have reached a different result[,]'" In re

Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483

(2007)), we "may not substitute [our] judgment as to the wisdom of an

administrative action so long as it is statutorily authorized and not otherwise

defective." K.P. v. Albanese, 204 N.J. Super. 166, 176 (App. Div. 1985). "This

is particularly true when the issue under review is directed to the agency's

special 'expertise and superior knowledge of a particular field.'"        In re

Stallworth, 208 N.J. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).

Ultimately, the party challenging an agency's action bears the burden of

demonstrating that the decision is arbitrary, capricious, or unreasonable. In re

Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006); see also Barone v. Dep't

of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355

(1987). T.M. has not met her burden here.

      Affirmed.




                                                                        A-0230-17T4
                                      16
