                                NOT FOR PUBLICATION WITHOUT THE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-3171-17T2

E.S.,

          Petitioner-Appellant,

v.

DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES and CAMDEN
COUNTY BOARD OF
SOCIAL SERVICES,

     Respondents-Respondents.
____________________________

                   Submitted April 8, 2019 – Decided July 22, 2019

                   Before Judges Sumners and Mitterhoff.

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

                   Cohen Fineman, LLC, attorneys for appellant (Samuel
                   B. Fineman, on the brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent Division of Medical Assistance and Health
                   Services (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Jacqueline R. D'Alessandro,
            Deputy Attorney General, on the brief).

PER CURIAM

      Petitioner E.S., through her daughter and authorized representative B.S.,

appeals from the final agency decision of the Division of Medical Assistance

and Health Services (Division) regarding the effective date of her Medicaid

eligibility for her assisted living residential care at Brookdale Assisted Living

(Brookdale). Because the required pre-admission screening (PAS) to determine

her eligibility was not completed at the time her private funds to pay for her care

were exhausted, the Division's decision was not arbitrary, capricious or

unreasonable; therefore, we affirm.

                                         I

      We derive the following facts from the record. E.S. became a private pay

resident at Brookdale in April 2015. Realizing in December 2016 that E.S.'s

financial resources could no longer pay for her care beyond April 2017, B.S.

asked Brookdale to start the Medicaid application process, which assesses her

financial and clinical eligibility, so that E.S. could receive benefits under the

Managed Long Term Services and Supports (MLTSS) program. The application

was filed with the Camden County Board of Social Services (the Board), but

was denied due to the lack of a fully executed PA-4 form, a physician

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                                        2
certification. A second application correcting that deficiency was filed on May

22.1

       Upon reviewing the application, however, the Board saw that a PAS,

which determines a patient's clinical eligibility under the MLTSS program, had

not been conducted and notified Brookdale. The facility responded that a PAS

was not done. The Division of Aging Services, Office of Community Choice

Options (OCCO), performs the PAS. N.J.A.C. 8:85-1.8(d). In response, the

Board forwarded the application to the OCCO on June 29, 2017. An OCCO

nurse received the request on July 5, and later that month performed a PAS on

E.S. The Board determined on July 24, that E.S. was clinically eligible for the

MLTSS program effective July 1.

       E.S. requested a fair hearing before an Administrative Law Judge (ALJ)

claiming she should have a March 1 effective date for her Medicaid benefits. 2

Her request for the hearing was granted. Following a hearing in which B.S. and



1
    The fully executed PA-4 was dated April 13, 2017.
2
  It appears that the March 1, 2017 effective date in E.S.'s fair hearing request
may have been a misstatement. Her appellate brief refers to both a May 1, 2017
and May 15, 2017 effective date. Nonetheless, based on the ALJ's initial
decision, which was adopted in its entirety by the Division and rejected E.S's
demand for a May 1, 2017 effective date, it would appear that May 1, 2017, is
the actual date she wanted her benefits to take effect.
                                                                         A-3171-17T2
                                       3
a Human Services Specialist with the Board testified, the ALJ issued an initial

decision affirming the Board's decision. The ALJ reasoned there was no dispute

that a PAS was not completed until July 2017, and since "[t]he OCCO does not

back date [its PAS] approvals unless their determination was not timely[,] which

was not the case in [this] matter[,]" the Medicaid benefits for E.S.'s assisted

living care should remain effective on July 1, 2017. Exceptions to the initial

decision were filed.

      After reviewing the record, the Division issued a final agency decision

adopting "the recommended decision of the [ALJ] in its entirety and

incorporate[d] the same herein by reference." This appeal followed.

                                          II

      Our review of final agency decisions is limited. R.S. v. Div. of Med.

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

must uphold an administrative agency's decision "'unless there is a clear showing

that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the

record.'" Id. at 261 (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,

206 N.J. 14, 25 (2011)). Thus, this court's task is limited to four inquiries:

             (1) whether the agency's decision offends the State or
             Federal Constitution; (2) whether the agency's action
             violates express or implied legislative policies; (3)
             whether the record contains substantial evidence to

                                                                               A-3171-17T2
                                          4
            support the findings on which the agency based its
            action; and (4) whether in applying the legislative
            policies to the facts, the agency clearly erred in
            reaching a conclusion that could not reasonably have
            been made on a showing of the relevant factors.

            [A.B. v. Div. of Med. Assistance & Health Servs., 407
            N.J. Super. 330, 339 (App. Div. 2009) (citation
            omitted).]

      "'Deference to an agency decision is particularly appropriate where

interpretation of the [a]gency's own regulation is in issue.'" R.S., 434 N.J. Super.

at 261 (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)). However, we are

not "'bound by the agency's interpretation of a statute or its determination of a

strictly legal issue.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec. in

Div. of Consumer Affairs of Dep't of Law & Pub. Safety, 64 N.J. 85, 93 (1973)).

      In order to qualify for Medicaid benefits under the MLTSS program, E.S.

was required to meet both Medicaid financial and clinical eligibility

requirements for nursing care services.       See N.J.A.C. 10:60-6.2.      Clinical

eligibility is determined through the PAS procedure. N.J.A.C. 8:85-1.8. PAS

is completed by professional staff designated by the Division, "based on a

comprehensive needs assessment that demonstrates that the beneficiary requires,




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                                         5
at a minimum, the basic [nursing facility] services described in N.J.A.C. 8:85 -

2.2." N.J.A.C. 8:85-2.1(a). In accordance with N.J.A.C. 8:85-1.8 (b)(1):

             (b) The New Jersey Medicaid program shall not pay for
             [nursing facility] services provided to a resident paying
             from private funds who has applied for Medicaid
             benefits unless professional staff designated by the
             Department 3 has determined that the resident is
             clinically eligible to receive [nursing facility] services
             through PAS.

                   1. If a [nursing facility] has admitted an
                   individual who is financially eligible for
                   Medicaid or who may become financially
                   eligible for Medicaid within 180 days of
                   admission without the professional staff
                   designated by the Department first
                   determining, through PAS, that the
                   individual is clinically eligible for [nursing
                   facility] services, the effective date of the
                   initial authorization will be the date the
                   PAS is completed.          The New Jersey
                   Medicaid program shall not reimburse
                   [nursing     facilities]    admitting     such
                   individuals without PAS for any care
                   rendered before PAS.

                   [(Emphasis added.)]

       A nursing facility is:

             an institution (or distinct part of an institution) certified
             by the New Jersey State Department of Health and
             Senior Services for participation in Title XIX Medicaid
             and primarily engaged in providing health-related care

3
    New Jersey Department of Human Services. N.J.A.C. 8:85-1.2.
                                                                             A-3171-17T2
                                          6
            and services on a 24-hour basis to Medicaid
            beneficiaries (children and adults) who, due to medical
            disorders, developmental disabilities and/or related
            cognitive impairments, exhibit the need for medical,
            nursing, rehabilitative, and psychosocial management
            above the level of room and board. However, the
            nursing facility is not primarily for care and treatment
            of mental diseases which require continuous 24-hour
            supervision by qualified mental health professionals or
            the provision of parenting needs related to growth and
            development.

            [N.J.A.C. 8:85-1.2]

      E.S. makes two arguments on appeal. One, that a PAS should not have

been required to determine if she was eligible to receive Medicaid benefits

because she was obviously clinically qualified due to her illness. Two, in the

alternative, her Medicaid eligibility should have been backdated to May 15,

2017, because under Medicaid Communication No. 16-09, the Board was

required to complete the PAS within fourteen days from the date it received the

referral for clinical eligibility. Having considered these contentions in light of

the record and the following applicable legal principles, we conclude they are

without sufficient merit to warrant extensive discussion in a written opinion,

Rule 2:11-3(e)(1)(D) and (E), and we affirm substantially for the reasons

expressed by the Division. We make the following comments.




                                                                          A-3171-17T2
                                        7
       The Division's decision that E.S. was not eligible for Medicaid benefits

until a PAS was performed was consistent with the law and was not arbitrary,

capricious, or unreasonable. Despite the fact that there was no question prior to

the PAS that she was clinically eligible under the MLTSS program, state law

clearly requires that she be determined to be clinically eligible based upon a

PAS.

       As for the effective date of E.S.'s Medicaid benefits, there is no factual or

legal basis for her claim that the effective date should be May 1, 2017. The fact

that a PAS was not done until July 2017 was not the fault of the Board nor the

Division. Brookdale was the nursing facility providing services to E.S. Under

the law, it was its responsibility – not the Board's –to request a PAS for E.S. to

enable her to receive Medicaid benefits.          We discern nothing arbitrary,

capricious, or unreasonable concerning the Division's decision to make E.S.'s

benefits effective July 1, 2017 rather than the earlier dates advocated by

appellant.

       Affirmed.




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