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02/24/2017 08:08 AM CST




                                                        - 933 -
                                  Nebraska Supreme Court A dvance Sheets
                                          295 Nebraska R eports
                                   MERIE B. ON BEHALF OF BRAYDEN O. v. STATE
                                                Cite as 295 Neb. 933




                            Merie B. on behalf of Brayden O., appellee, v.
                            State of Nebraska Department of Health and
                             Human Services and Vivianne M. Chaumont,
                              director of Division of M edicaid and Long
                                Term Care, Department of Health and
                                     Human Services, appellants.
                                                    ___ N.W.2d ___

                                        Filed February 24, 2017.   No. S-16-437.

                1.	 Judgments: Appeal and Error. The construction of a mandate issued
                     by an appellate court presents a question of law reviewed independently
                     of the lower court’s conclusion.
                2.	 Administrative Law: Judgments: Appeal and Error. A judgment or
                     final order rendered by a district court in a judicial review pursuant to
                     the Administrative Procedure Act may be reversed, vacated, or modified
                     by an appellate court for errors appearing on the record.
                3.	 ____: ____: ____. When reviewing an order of a district court under
                     the Administrative Procedure Act for errors appearing on the record, the
                     inquiry is whether the decision conforms to the law, is supported by com-
                     petent evidence, and is neither arbitrary, capricious, nor unreasonable.
                4.	 Courts: Appeal and Error. After receiving a mandate, a trial court is
                     without power to affect rights and duties outside the scope of the remand
                     from an appellate court.
                 5.	 ____: ____. A party may not extend his or her request for relief beyond
                     that which was initially determined by an appellate court.

                 Appeal from the District Court for Lancaster County: Robert
               R. Otte, Judge. Reversed and remanded with directions.

                  Douglas J. Peterson, Attorney General, and Ryan S. Post
               for appellants.
                             - 934 -
           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
           MERIE B. ON BEHALF OF BRAYDEN O. v. STATE
                        Cite as 295 Neb. 933

  Terrance A. Poppe, Andrew K. Joyce, and Annie E. Brown,
Senior Certified Law Student, for appellee.

  Heavican, C.J., Wright, Miller-Lerman, Cassel, K elch,
and Funke, JJ.

  K elch, J.
                     NATURE OF CASE
   Merie B. initiated this action on behalf of her disabled
daughter, Brayden O., after the Nebraska Department of
Health and Human Services (DHHS) determined that Brayden
was no longer eligible for home and community-based waiver
services. Merie appealed to the district court for Lancaster
County, which affirmed the determination made by DHHS.
In a prior appeal to this court, we reversed the district
court’s judgment and remanded the cause with directions that
the district court order DHHS to reinstate waiver services
to Brayden, effective as of the date services were origi-
nally terminated.
   Upon remand, Merie requested reimbursement for expenses
she incurred due to the wrongful termination of Brayden’s
services, as well as attorney fees. The district court granted
Merie’s request and entered judgment against DHHS in the
amount of $76,260.48. DHHS and the director of its Medicaid
and long-term-care division now appeal from the district
court’s judgment.

                        BACKGROUND
   Merie is the mother of Brayden, who suffers from Coffin-
Lowry Syndrome. Brayden, who was 17 years old at the time
of the court’s hearing in this case, has the cognitive awareness
of a 4- or 5-year-old child and requires constant supervision.
In addition, Brayden has a seizure disorder, a heart disorder,
and a myriad of neurological deficiencies, as well as vision
and hearing deficits. Due to her disabilities, Brayden had
been receiving home and community-based waiver services
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                MERIE B. ON BEHALF OF BRAYDEN O. v. STATE
                             Cite as 295 Neb. 933

through the Medicaid division of DHHS since approximately
2001. However, on November 11, 2012, Brayden’s services
were terminated after DHHS reassessed her condition and
determined that she no longer met the necessary qualifica-
tions for such services. Merie appealed DHHS’ determi-
nation, which was affirmed following an administrative
appeal hearing.
   Merie then filed a petition for review under Nebraska’s
Administrative Procedure Act, Neb. Rev. Stat. § 84-901 et seq.
(Reissue 2008 & Cum. Supp. 2012), in the district court for
Lancaster County. The district court affirmed DHHS’ deter-
mination that Brayden no longer qualified for waiver services.
On appeal to this court, in Merie B. on behalf of Brayden O.
v. State (Merie B. I),1 we reversed the district court’s judgment
and remanded the cause with directions that the district court
order DHHS to reinstate waiver services to Brayden, effective
November 11, 2012.
   Upon remand, Merie filed a “Motion to Determine
Expenses” in the district court. She requested an award in the
amount of $65,394.28 for reasonable and necessary childcare
expenses that were incurred due to the wrongful termination
of Brayden’s services by DHHS. A hearing was held on the
motion, during which Merie testified regarding the expenses
she incurred while Brayden’s services were terminated, includ-
ing daycare expenses of $45,349.26, health insurance premi-
ums totaling $15,477.01, and out-of-pocket medical expenses
of $2,233.96. DHHS objected to the presentation of any evi-
dence regarding Merie’s request for payment of health insur-
ance premiums on the bases that it was not contested at the
agency level and was outside the scope of the initial petition
for review. The district court overruled DHHS’ objections and
allowed the testimony.

 1	
      See Merie B. on behalf of Brayden O. v. State, 290 Neb. 919, 863 N.W.2d
      171 (2015).
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          Nebraska Supreme Court A dvance Sheets
                  295 Nebraska R eports
           MERIE B. ON BEHALF OF BRAYDEN O. v. STATE
                        Cite as 295 Neb. 933

   Merie testified that Brayden’s health insurance premi-
ums had previously been paid by DHHS through the “Health
Insurance Premium Payment” (HIPP) program. After Merie
received notice from DHHS that Brayden’s waiver services
were being terminated, she received a separate notice that
Brayden was being terminated from the HIPP program as well.
Merie acknowledged that she did not appeal Brayden’s termi-
nation from the HIPP program, because her understanding was
that Brayden’s termination from waiver services rendered her
ineligible for HIPP.
   Merie further testified that she had not yet been reimbursed
for any expenses since our mandate was issued in August
2015. DHHS acknowledged that it owed Merie for childcare
expenses and out-of-pocket medical expenses, but objected
to paying for the health insurance premiums because Merie
did not appeal Brayden’s termination from the HIPP program.
As for the childcare expenses, DHHS indicated that it would
take time to arrange those payments due to the administra-
tive proc­ess required by Medicaid. It explained that federal
Medicaid regulations did not allow DHHS to issue payments
to recipients. Instead, each daycare provider must apply to be
approved through the Medicaid system and then submit billing
statements to DHHS, after which submission DHHS would
remit payment directly to the providers. At that point, Merie
would have to seek reimbursement from the providers for the
amounts she had previously paid.
   The district court agreed with DHHS that the HIPP expenses
were not part of the underlying administrative action or
the petition for review before the district court, nor was it
addressed on appeal to this court. Nonetheless, it found that
the health insurance premiums paid by Merie should be reim-
bursed by DHHS, because the denial of HIPP benefits would
not have occurred but for DHHS’ improper termination of
Brayden’s waiver services. It found that our opinion required
Brayden to be placed in the same position she would have
been had the waiver services not been improperly terminated,
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               Nebraska Supreme Court A dvance Sheets
                       295 Nebraska R eports
                MERIE B. ON BEHALF OF BRAYDEN O. v. STATE
                             Cite as 295 Neb. 933

which included eligibility for the HIPP program. Thus, the
district court ordered DHHS to reimburse Merie for health
insurance premiums in the amount of $15,477.01, in addition
to the $45,349.26 it had agreed to pay for daycare services
due under the waiver program. Finally, the district court found
that DHHS had “improperly placed barriers preventing Merie
from receiving the amounts due to her” and therefore ordered
DHHS to pay attorney fees incurred by Merie since the issu-
ance of our mandate, in the amount of $4,506. It entered judg-
ment against DHHS in the total amount of $76,260.48, which
included additional attorney fees that had previously been
awarded in our mandate. DHHS and the director appeal from
that judgment.
                 ASSIGNMENTS OF ERROR
   DHHS and the director assign that the district court erred
by (1) issuing an order outside the scope of the directions
on remand, (2) receiving additional evidence at the hearing
on Merie’s motion to determine expenses, (3) considering an
issue not presented as part of the petition for review, (4) order-
ing DHHS to pay Merie directly instead of following federal
Medicaid requirements, and (5) awarding additional attorney
fees to Merie.
                   STANDARD OF REVIEW
   [1] The construction of a mandate issued by an appellate
court presents a question of law reviewed independently of the
lower court’s conclusion.2
   [2,3] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
court for errors appearing on the record.3 When review-
ing an order of a district court under the Administrative

 2	
      See Anderson v. Houston, 277 Neb. 907, 766 N.W.2d 94 (2009).
 3	
      Merie B. I, supra note 1.
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               Nebraska Supreme Court A dvance Sheets
                       295 Nebraska R eports
               MERIE B. ON BEHALF OF BRAYDEN O. v. STATE
                            Cite as 295 Neb. 933

Procedure Act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable.4
                           ANALYSIS
   This matter initially came before this court upon an appeal
by Merie after the district court, pursuant to the Administrative
Procedure Act, affirmed DHHS’ determination that Brayden no
longer qualified for waiver services. We reversed the district
court’s judgment and remanded the cause to the district court
with directions to order DHHS to reinstate waiver services to
Brayden effective November 11, 2012.5
   After remand, the district court correctly entered an order
spreading the mandate and ordering DHHS to reinstate waiver
services to Brayden effective November 11, 2012. Rather
than seeking enforcement of that order by instituting a new
proceeding pursuant to the Administrative Procedure Act,
Merie filed a motion in district court. Said motion requested
that the district court award her an additional $65,394.28 for
reasonable and necessary childcare expenses incurred as a
result of the wrongful termination of Brayden’s services by
DHHS. Although the district court was to function not as a
trial court but as an intermediate court of appeals,6 it held a
hearing, over DHHS’ objections. After receiving evidence, on
April 18, 2016, the district court issued an order awarding
a direct reimbursement of medical expenses and premiums
to Merie.
   DHHS and the director argue that the district court erred
in ordering it to pay the insurance expenses and premiums,
because such order exceeded the scope of our mandate in

 4	
      Id.
 5	
      See id.
 6	
      See Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728
      N.W.2d 570 (2007).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                MERIE B. ON BEHALF OF BRAYDEN O. v. STATE
                             Cite as 295 Neb. 933

Merie B. I. On the other hand, Merie argues that the mandate
required DHHS to reinstate Brayden’s waiver services effec-
tive November 11, 2012, and that therefore, any adverse conse-
quences that were directly caused by the wrongful termination
should be remedied, including her termination from the HIPP
program. We agree with DHHS and the director that the district
court exceeded the scope of the mandate, and we therefore
vacate the district court’s April 18, 2016, order.
   [4,5] It is well established that after receiving a mandate, a
trial court is without power to affect rights and duties outside
the scope of the remand from an appellate court.7 We have also
said that a party may not extend his or her request for relief
beyond that which was initially determined by this court.8 For
example, in Gates v. Howell,9 we ordered the district court to
enter a judgment on remand invalidating the tax treatment of
mobile homes as motor vehicles. After the district court com-
plied with that mandate, a new tax was imposed on the mobile
homes by the assessor. Thereafter, the appellants filed an appli-
cation for relief, which the district court denied. On appeal, we
affirmed the district court’s decision, reasoning:
      “‘Where the appellate court remands a cause with direc-
      tions to enter judgment for the plaintiff in a certain
      amount, the judgment of the appellate court is a final
      judgment in the cause and the entry thereof in the lower
      court is a purely ministerial act. No modification of the
      judgment so directed can be made, nor may any provi-
      sion be engrafted on, or taken from it. That order is con-
      clusive on the parties, and no judgment or order different
      from, or in addition to, that directed by it can have any

 7	
      State ex. rel. Wagner v. Gilbane Bldg. Co., 280 Neb. 223, 786 N.W.2d 330
      (2010). See, also, Xerox Corp. v. Karnes, 221 Neb. 691, 380 N.W.2d 277
      (1986).
 8	
      VanHorn v. Nebraska State Racing Comm., 273 Neb. 737, 732 N.W.2d 651
      (2007), citing Gates v. Howell, 211 Neb. 85, 317 N.W.2d 772 (1982).
 9	
      Gates v. Howell, supra note 8.
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               Nebraska Supreme Court A dvance Sheets
                       295 Nebraska R eports
                MERIE B. ON BEHALF OF BRAYDEN O. v. STATE
                             Cite as 295 Neb. 933

      effect, even though it may be such as the appellate court
      ought to have directed.’”10
These principles of law control this appeal.
   In Merie B. I, this court reversed the district court’s judg-
ment, which was the final determination of the rights of the
parties in the action. Accordingly, our disposition of that
appeal constituted a final determination of the rights of the par-
ties in an action.11 In other words, there were no further issues
before the district court on remand to resolve.
   Although we are sympathetic to the district court’s attempt
to render a remedy due to the special needs of Brayden and
the failure to act by DHHS, the district court was without
authority to expand the mandate and hold an evidentiary hear-
ing on Merie’s “Motion to Determine Expenses.” On remand,
the district court was to perform only the purely ministerial
act of spreading the judgment on its record. Any additional
remedy sought by Merie must be pursuant to another proceed-
ing—not as an enlargement of this appeal. For the reasons set
forth above, we vacate the district court’s April 18, 2016, order,
which also awarded Merie additional fees.
                         CONCLUSION
  We determine that the district court exceeded the scope of
our mandate in Merie B. I, and therefore, the district court’s
order of April 18, 2016, is hereby reversed, and the cause is
remanded with directions to vacate the judgment.
                    R eversed and remanded with directions.
  Stacy, J., not participating.

10	
      Id. at 89, 317 N.W.2d at 775.
11	
      See Neb. Rev. Stat. § 25-1301 (Reissue 2016). See, also, Huskey v.
      Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014).
