                                NOT FOR PUBLICATION WITHOUT THE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-5177-16T4

M.P.,

           Petitioner-Appellant,

v.

DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES and OCEAN COUNTY
BOARD OF SOCIAL SERVICES 1,

     Respondents-Respondents.
___________________________

                    Argued October 30, 2018 – Decided November 28, 2018

                    Before Judges Hoffman and Geiger.

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

                    Laurie M. Higgins argued the cause for appellant (Sb2
                    Inc., attorneys; John Pendergast, on the brief).

                    Caroline Gargione, Deputy Attorney General, argued
                    the cause for respondent Division of Medical

1
     Respondent Ocean County Board of Social Services has not filed a brief.
            Assistance and Health Services (Gurbir S. Grewal,
            Attorney General, attorney; Melissa H. Raksa,
            Assistant Attorney General, of counsel; Caroline
            Gargione, on the brief).

PER CURIAM

      Petitioner M.P. appeals from the final agency decision of respondent

Division of Medical Assistance and Health Services (Division) denying his

application for Medicaid benefits. We affirm.

      Petitioner was admitted to Monmouth Medical Center (Monmouth

Medical) on July 31, 2015. On August 11, 2015, Monmouth Medical submitted

an Enhanced At-Risk Criteria Screening Tool (EARC-PAS) to the Division of

Aging Services, Office of Community Choice Options (OCCO) authorizing

petitioner's transfer from the hospital to a Medicaid certified nursing facility.2

The EARC-PAS is a screening tool for a ninety-day authorization for acute care

hospital patients being discharged to a Medicaid certified nursing facility.

Following review of the EARC-PAS, petitioner was authorized by OCCO for an

initial ninety days pending determination of Medicaid clinical and financial

eligibility. Thus, although petitioner's transfer to a nursing facility for up to

ninety days was authorized, he was not yet determined to be Medicaid eligible.


2
   OCCO is responsible for establishing clinical eligibility for individuals
seeking Medicare services through a waiver program.
                                                                          A-5177-16T4
                                        2
      Petitioner was discharged to Liberty Royal Rehabilitation and Health Care

Center (Liberty Royal), a Medicaid certified nursing home, on August 12, 2015.

Less than one week later he was transferred to Crystal Lake Nursing and

Rehabilitation Center (Crystal Lake), another Medicaid certified nursing home,

on August 17, 2015. Petitioner remained at Crystal Lake until his discharge

home on November 6, 2015.

      Nursing facilities are required to submit a request for Medicaid eligibility

within forty-eight hours of a patient's admission. N.J.A.C. 8:85-1.8(c). The

request is made by submission of a Notification from Long-Term Care Facility

of the Admission or Termination of a Medicaid Patient (LTC-2) form. Ibid.

Submission of an LTC-2 form triggers Pre-Admission Screening (PAS) by

OCCO to determine the patient's eligibility for Medicaid payment of nursing

facility services. N.J.A.C. 8:85-1.8(d). Neither Liberty Royal nor Crystal Lake

submitted an LTC-2 form on petitioner's behalf within forty-eight hours of his

admission to their facilities.

      Crystal Lake submitted an LTC-2 form on petitioner's behalf on

November 19, 2015, some thirteen days after his discharge home on November

6, 2015.   At the time petitioner applied for Medicaid, petitioner's monthly

income was $1080.96, which exceeded the federal poverty level guidelines. At


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                                        3
the time of his admission, petitioner had to earn $1010 or less per month, to be

eligible for Medicaid payment of nursing facility services. See N.J.A.C. 10:71-

3.14(e)(2), -5.3(a)(18). Given his income level, petitioner could only be eligible

for Medicaid through the Managed Long Term Care Service and Support

(MLTSS) waiver program approved by the Centers for Medicare and Medicaid

Services pursuant to 42 U.S.C. § 1315. The special terms and conditions of the

MLTSS waiver program include both clinical and financial eligibility

components. Clinical eligibility for institutional waiver services require an

applicant to meet nursing facility level of care. See 42 C.F.R. § 435.236; 42

C.F.R. § 435.1005; N.J. Comprehensive Waiver Demonstration, Special Terms

and Conditions, 11-w-00279/2 (Title XIX), at 18-19 (August 14, 2014).

      Upon receiving the LTC-2 form, the Ocean County Board of Social

Services submitted a referral to OCCO for a clinical eligibility determination.

Notwithstanding the untimeliness of the LTC-2 form, OCCO attempted to

schedule the PAS required to establish Medicaid clinical eligibility. Upon being

contacted by OCCO staff, petitioner refused to meet with OCCO staff, stating

he was not in need of any services. As a result, a PAS was not completed,

leading to the denial of petitioner's Medicaid application pursuant to N.J.A.C.

10:71-3.14.


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                                        4
      Petitioner timely appealed the denial of his Medicaid application. The

appeal was transferred to the Office of Administrative Law (OAL) as a contested

case, and a fair hearing was conducted by an Administrative Law Judge (ALJ).

Petitioner did not attend the fair hearing. The ALJ issued an initial decision

affirming the denial of petitioner's Medicaid application and dismissing his

appeal. No exceptions were filed. The Division's final agency decision adopted

the ALJ's initial decision.

      The Division's Director explained that the process for determining clinical

eligibility places responsibility on the nursing home to seek a PAS by submitting

the required form within 48 hours of admission to the facility. Here, the nursing

home submitted the required form on November 19, 2015; nearly three months

after having been admitted and a week and a half after being discharged. When

OCCO attempted to reach petitioner to complete a PAS, petitioner refused to

cooperate or meet with OCCO staff.

      The Director further explained:

                  Petitioner's only path to eligibility for Medicaid
            benefits is under the Long-Term Care Services and
            Supports (LTSS) program that permits use of a higher
            income level – 300 percent of the SSI benefit amount.
            In order for eligibility to be granted at this higher
            income level, nursing level of care must be necessary.
            See 42 CFR § 435.236 and 42 CFR § 435.1005. In
            order to determine medically necessary services in a

                                                                         A-5177-16T4
                                        5
            nursing home, a pre-admission screening (PAS) is
            completed by "professional staff designated by the
            Department, based on a comprehensive needs
            assessment which demonstrates that the recipient
            requires, 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). See also, N.J.S.A. 30:4D-17.10, et seq.

      This appeal followed. Petitioner argues that because he completed both

of the evaluations required by the Division, the denial of his Medicaid

application was arbitrary, capricious, and unreasonable.

      Appellate review of the Division's final agency action is limited. K.K. v.

Div. of Med. Assistance & Health Servs., 453 N.J. Super. 157, 160 (App. Div.

2018). We "defer to the specialized or technical expertise of the agency charged

with administration of a regulatory system." In re Virtua-West Jersey Hosp.

Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). "[An] appellate

court ordinarily should not disturb an administrative agency's determinations or

findings unless there is a clear showing that (1) the agency did not follow the

law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the

decision was not supported by substantial evidence." Ibid.

      A presumption of validity attaches to the agency's decision. Brady v. Bd.

of Review, 152 N.J. 197, 210 (1997). The party challenging the validity of an

agency's decision has the burden of showing that it was arbitrary, capricious, or


                                                                         A-5177-16T4
                                       6
unreasonable. Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App.

Div. 1986), aff'd, 107 N.J. 355 (1987). "Deference to an agency decision is

particularly appropriate where interpretation of the Agency's own regulation is

in issue." 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, "an appellate court

is 'in no way bound by an agency's interpretation of a statute or its determination

of a strictly legal issue.'" R.S. v. Div. of Med. Assistance & Health Servs., 434

N.J. Super. 250, 261 (App. Div. 2014) (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 MTLSS waiver

program, petitioner was required to meet both financial and clinical eligib ility

requirements. Clinical eligibility is assessed through a PAS completed by

professional staff designated by the Division, "based on a comprehensive needs

assessment that demonstrates that the beneficiary requires, 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).

      Petitioner argues the EARC-PAS completed while he was a patient at

Monmouth Medical provided clinical authorization for the eighty-seven days he


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                                        7
was a patient at the two nursing homes. The EARC-PAS provides preliminary

authorization for an initial ninety-day stay at a nursing facility, subject to later

determination of Medicaid clinical and financial eligibility. The EARC-PAS

does not determine Medicaid eligibility. Similarly, completion of a Level 1 Pre-

Admission Screening and Resident Review (PASRR), a screening tool to

determine whether an individual has a mental illness or intellectual disability,

42 C.F.R. §§ 483.100 to -483.138, was not a determination of Medicaid clinical

eligibility.   Clinical eligibility is determined through the PAS procedure.

N.J.A.C. 8:85-1.8.

       The nursing home is responsible for notifying OCCO of petitioner's

admission to the facility and that a PAS must be completed. An LTC-2 was not

submitted within forty-eight hours of petitioner's admission. Instead, it was

submitted thirteen days after his discharge home. Thereafter, petitioner refused

to cooperate in completion of a PAS. Accordingly, petitioner never established

clinical eligibility for the MLTSS waiver program.         Therefore, petitioner's

Medicaid application was properly denied.

       Applying the governing standards of review and legal principles, we

conclude the Director's findings are supported by sufficient credible evidence in

the record, and that the final agency decision was not arbitrary, capricious, or


                                                                            A-5177-16T4
                                         8
unreasonable. On the contrary, the final agency decision sustaining the denial

of petitioner's Medicaid application was appropriate.

      Affirmed.




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