                                NOT FOR PUBLICATION WITHOUT THE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-2885-17T1

D.N.,

          Petitioner-Appellant,

v.

DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES, and AMERIGROUP,

     Respondents-Respondents.
_____________________________

                    Submitted December 5, 2018 – Decided October 4, 2019

                    Before Judges Fuentes, Accurso and Moynihan.

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

                    Disability Rights New Jersey, attorneys for appellant
                    (August Lincoln Pozgay, 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; Marie Linette Soueid, Deputy
                    Attorney General, on the brief).
             Pringle Quinn Anzano, PC, attorney for respondent
             Amerigroup (Michael P. O'Connell, on the brief).

      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      Appellant D.N. is a thirty-eight-year-old man who was seriously injured

in an automobile accident. His physical injuries caused quadriplegia. This

means he cannot sit, stand, change positions on his own, or move his arms or

legs. Consequently, he requires an in-house personal care assistant (PCA) to

perform most of his day-to-day personal activities, such as hygienic grooming

after biological functions, bathing, dressing, eating, drinking, and taking

medications. As a medical imperative, D.N. also needs to be repositioned when

he sleeps to avoid bedsores, maintain skin integrity that is subject to

deterioration due to his incontinence and immobility, and prevent autonomic

dysreflexia.1




1
     Lisa Rozycki, a Registered Nurse who testified at the evidentiary hearing
conducted by an Administrative Law Judge, explained that "autonomic
dysreflexia is the nervous system's overreaction to internal and external stimuli
. . . racing the heart, fluctuation in the blood pressure, digestive issues, metabolic
issues, [and] temperature dysregulation."



                                                                              A-2885-17T1
                                          2
      D.N. is eligible to receive Medicaid assistance in the form of PCA

services. He sought legal assistance from Disability Rights of New Jersey

(DRNJ)2 when Amerigroup, the Managed Care Organization (MCO) that

functions as an agent of the Department of Human Services, Division of Medical

Assistance and Health (Division), reduced the number of PCA services hours

D.N. received from twenty-four hours per day, to fifteen hours per day. D.N.

first challenged this reduction in PCA services through the internal

administrative review process. After exhausting this internal administrative

review, the Division transferred the case to the Office of Administrative Law to

conduct an evidentiary hearing before an Administrative Law Judge (ALJ).

      The hearing occurred on May 16, 2017. The first witness to testify at this

hearing was Marie-Anna Bien-Aime, a Registered Nurse and Care Manager for

Amerigroup. She became the Care Manger for D.N. in 2015. Her most recent

contact with D.N. was in February 2017. Amerigroup relies on a "tool" Bien-

Aime identified as "Activities of Daily Living" (ADL) to assess the level and

type of PCA services a disabled person needs to function outside a nursing



2
  Disability Rights of New Jersey (DRNJ) "is a private, non-profit, consumer-
directed organization established [in part] to advocate for and advance the
human, civil and legal rights of citizens of New Jersey with disabilities."
https://www.drnj.org/ (Last visited on September 24, 2019).
                                                                        A-2885-17T1
                                       3
home. Bien-Aime testified these activities include "washing your face, brushing

your teeth, getting washed, dressed, getting out of bed, [and] meals . . . [.]

If . . . the person is incontinent or has no control of their bowel and bladder and

they need assistance . . . that would be part of it also."

      The first "category" under the ADL is denoted as "ambulation," which

Bien-Aime explained in D.N.'s case "would be how he gets around from room

to room or how he basically ambulates by using his [electrically powered]

wheelchair."     Although the wheelchair enables D.N. to move around

independently, based on "conversations" she had with D.N., Bien-Aime learned

"he does need . . . hands-on assistance or somebody else helping him around."

      When Amerigroup's counsel asked Bien-Aime "what score" she gave D.N.

on "ambulation," she responded: "[B]ased on the number of minutes it takes to

perform the activity over a 24 hour period . . . I give him, '30 minutes,' per day

which actually is the maximum allowed per the tool." This amounts to 210

minutes or three and one half hours per week.

      The next "category" is "transfer," which Bien-Aime explains involves

"how to get the member from one place to another." D.N. uses a "Hoyer Lift"

to transfer from the bed to the wheelchair. Bien-Aime testified that in D.N's

case, this takes approximately one hour. She "allow[ed]" him ninety minutes


                                                                           A-2885-17T1
                                          4
per day under the assumption D.N. would transfer in this fashion only twice per

day "because it's a transfer out of bed in the morning and then again it has to be

done in the evening." (emphasis added). This amounted to 630 minutes per

week.

        Bien-Aime defined the category denoted as "bathing" to encompass

"washing the member from head to toe." In D.N.'s case, he gets "bed baths,"

which "take at least an hour . . . which amount[s] to '420 minutes' per week."

Without reference to how much time the ADL allotted for this kind of personal

grooming activity, Amerigroup's counsel asked Bien-Aime: "So he explained to

you that it takes an hour and you gave the full hour[?]" (emphasis added). She

responded: "I gave him the full hour."         The category of "Feeding/Eating"

involves assisting D.N. "to actually put the food in his mouth and allow him to

eat." Bien-Aime "gave him, '45 minutes' . . . for a total of, '1,575'" per week. In

response to Amerigroup's counsel's question, Bien-Aime clarified that

"Eating/Feeding" does not include the preparation of meals, which falls under a

housekeeping category denoted "Instrumental."

        The category denoted "Positioning" refers to propping D.N. up and down

or turning him side to side, if he is in bed; and adjusting his position and shifting

his weight if he is sitting in the wheelchair.       D.N requires "somebody to


                                                                             A-2885-17T1
                                         5
physically help him." Bien-Aime actually "gave" him "50" minutes per day

"based on the calculations again that it's '5 minutes,' per episode, and there is a

limit of 6 but I did give him higher because he does need to be repositioned from

side to side if he's in bed so it amounts to '350 minutes,' a week."

      Amerigroup's counsel prefaced his question about the category

"Toileting" by saying: "I think we all have a pretty common sense understanding

of that but could you give a brief explanation and the minutes allotted?" Bien-

Aime's response revealed how complex and medically fragile this "common

sense" human experience is for both D.N. and the PCAs assigned to him on a

regular basis:

            In [D.N.'s] case he does have a Foley Catheter which
            . . . allows the urine to drain into a bag that has to be
            emptied basically on a regular basis. He is - - he does
            get a bowel program and the nurse does go in three
            times a week, however, in between he may have
            accidents and need to be changed due to a bowel
            movement, so I gave him, "50 minutes," for a total of,
            "350" [minutes] a week.

      Unfazed by his previous failure to appreciate the magnitude of the

challenges D.N. faces on a daily basis, counsel introduced the category denoted

Personal Hygiene and Grooming as follows:

            Q. . . . Again, I'm thinking it's pretty self-explanatory
            but if you could explain it to the [c]ourt and tell us what
            numbers you gave?

                                                                           A-2885-17T1
                                        6
             A. Sure. Personal Hygiene and Grooming[,] it says
             here, "Brushing the hair, shaving, brushing teeth, nail
             care," and [D.N] does need assistance for that and I
             gave - - I allowed, "60 minutes", for a total of, "420
             minutes," a week.

        Dressing and Adaptive Equipment requires the PAC to clothe D.N. "from

head to toe" and apply any equipment he may need to wear as a matter of medical

necessity, such as braces or splints. Bien-Aime allowed "60 minutes" for a total

of 420 minutes a week.        D.N. also requires, and is eligible to receive,

"Instrumental Activities for Daily Living" (IADL).     These services cover an

array of personal activities by the PCA, such as housekeeping, laundry, food

shopping, and accompanying D.N. to physician appointments. The maximum

number of minutes Amerigroup allows for these services is 120 minutes per

week.

        There is also a separate category for "Soiled Bed Linen Changes" that

covers the need to change linens more frequently due to D.N.'s medical

condition and physical limitations, which cause him to perspire profusely; there

are also "accidents while changing the Foley Catheter." Bien-Aime testified that

based on her assessment, housekeeping services change bedlinens an average of

four times per week. Amerigroup allows a total of 120 minutes per week for all

of these services.


                                                                        A-2885-17T1
                                       7
      Bien-Aime testified that based on the number and kind of services D.N.

required, her assessment indicated he was only entitled to a total of eighty-eight

hours per week. However, he received 105 hours per week. According to Bien-

Aime, D.N. was receiving 105 hours per week when she took over this case.

D.N. was sharing his apartment with a roommate who was also receiving PCA

hours. They combined their PCA services to have a Home Health Aide in the

home on a twenty-four-hour basis. Unfortunately, D.N.'s roommate became ill

and was forced to move out of the apartment.

      At D.N.'s request, Bien-Aime discussed the situation with her manager

and Amerigroup agreed to continue to provide PCA services to D.N. on a

twenty-four-hour basis pending the roommate's return. When it became clear

that the roommate would not return, Bien-Aime suggested to D.N. to find

another roommate. She also made clear that Amerigroup would only provide

him with twenty-four-hour PCA services for three more months. When D.N.

was unable to find another roommate at the end of the three-month period,

Amerigroup reduced his PCA services to 105 hours per week.

      On cross-examination, Bien-Aime conceded that the number of hours she

attributed to each of the categories of personal services she described on direct

examination were merely "guidelines." In fact, the tool she used to derive the


                                                                          A-2885-17T1
                                        8
number of hours expressly stated: "If the member requires more or less time,

place the required time in the box and write an explanation why." She also

testified she was allowed to exceed the guidelines. With respect to D.N.'s

"positioning" requirements, Bien-Aime conceded that he requires "frequent

repositioning to prevent skin breakdown." Thus, without a PCA, D.N. is in bed

completely immoveable during the entire night. Bien-Aime also clarified that

she did not allot D.N. any time under the IADL for someone to accompany him

to an appointment with a physician.

      Ann Basil had been employed by Amerigroup for three years at the time

she testified at this hearing. She managed two service teams for Amerigroup:

the Behavioral Health Social Workers and the Field Nurses. These teams are

part of the Managed Long Term Services and Supports Program (MLTSSP). Her

responsibilities included overseeing the Morris and Union Counties Field Care

Management Teams and the Teams were personally responsible for D.N.'s case.

Basil corroborated Bien-Aime's testimony concerning the history of the case and

the efforts Amerigroup made to work out a suitable arrangement with him.

      Individuals who need twenty-four-hour care and want to reside outside a

nursing home are responsible to make their own arrangement with family

members or friends. According to Basil: "It's in our contract and it's always


                                                                       A-2885-17T1
                                      9
expressed to the members [that] the expectation is that they have their own

arrangements for those hours and that the MLSTSS Program could not provide

24 hour care in the community." When Amerigroup's counsel asked her to

elaborate on this contractual arrangement, Basil explained that this type of

arrangement relates to "[t]he contract that . . . all the MCOs, all Managed Care

Organizations, have with the State of New Jersey for Medicaid recipients."

      Basil identified the contract, which was admitted into evidence as a

respondent's exhibit, and focused on the language in Article 9 which states, in

relevant part:

            During the IDT process, the member's needs are
            identified as well as the caregiver support identified to
            meet the community placement needs. Members are
            counseled on the program's inability to provide 24 hour
            care and advised that the total Private Duty Nursing
            Personal Care Assistance, and Self Direction total
            services limit is 16 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 24 hour
            responsibility for the health and welfare of the
            beneficiary and is required to provide a minimum of
            eight (8) hours of hands on care daily.

      Basil acknowledged that Amerigroup has "members that need 24 hours a

day, a lot." However, with the exception of D.N, she was not aware of any other

member who received this level of service. She explained that the twenty-four-

hour PCA service provided to D.N. when his roommate became ill was "an

                                                                        A-2885-17T1
                                      10
exception done in an emergency." This temporary measure was intended to last

only "[u]ntil his roommate came out of the hospital and they said it wo uld be

reassessed upon his return . . . if he did not return then they would reassess in

six months." Although they explored other options, such as finding another

roommate or arranging for a family member to stay with D.N., they were unable

to find a solution.

       On cross-examination, D.N.'s counsel asked Basil to read into the record

the following part of the contract Amerigroup has with the Division:

             If the member's LTSS[3] costs in a community setting
             exceed the costs of an institutional placement setting,
             but fall within the Annual Cost Threshold, the MCO
             [Amerigroup] shall be required to provide the services
             in the member's preferred placement setting. If the
             member's LTSS costs in a community setting exceed
             the costs of an institutional placement setting and
             exceed the Annual Cost Threshold, then the MCO shall
             follow the Cost Effectiveness processes outlined within
             this section including evaluation for an exception.

             [(emphasis added).]

       D.N.'s counsel asked Basil if this section of the contract required

Amerigroup "to provide services in the member's preferred setting."         Basil

provided the following response:



3
    LTSS is an initialism for "Long Term Services and Support."
                                                                         A-2885-17T1
                                      11
            Incorrect, we're required to go to an IDT
            [Interdisciplinary Team] if the hours exceed 16 hours
            as well. So we're required to go to an IDT if there is
            any discussion of that, the hours plus also the cost, so
            both are taken into consideration.

      Basil conceded that the decision reached by the IDT to deny D.N. twenty-

four-hour PCA service constituted "a reduction in services." Furthermore, Dr.

Anthony-Wilson, an Amerigroup Medical Director who was not involved in the

IDT process, made the final determination to reduce D.N.'s services. The letter

signed by Dr. Anthony-Wilson does not cite to any provision in the contract

Amerigroup has with the Division to support her decision to reduce D.N.'s PCA

services. Dr. Anthony-Wilson makes clear that Amerigroup relied only on the

"New Jersey PCA Beneficiary Assessment Tool" to reach this decision. This is

the same "tool" RN Bien-Aime discussed at length.

      The letter Amerigroup sent D.N. informing him of its decision to reduce

his PCA services was signed by Ann Gavin, whom Basil identified as the

Manager of the Quality Department, not the Medical Director who made the

decision. Although the letter was not admitted into evidence, Basil read into the

record the following passage: "The reason for upholding this action is [that] the

member[-]appeals panel met today to discuss the appeals. The member is

currently approved for 105 [hours per week] and there was no clinical


                                                                         A-2885-17T1
                                      12
information provided to indicate why the member requires 24 hours of PCA."

(emphasis added).

      Basil also testified that the IDT group that reviewed D.N.'s request for

twenty-four-hour PCA services also considered the "monetary values." The

following testimony clarifies this issue:

            Q. Ms. Basil, I'm showing you what's been marked as
            Petitioner's . . . P-4, for the record. Is it safe to say this
            is your note following an IDT call held on "August 16,
            2016," regarding [D.N.]?

            A. Correct.

            Q. In your note you mentioned . . . some monetary
            values. Is that correct?

            A. Yes, we are required to indicate in the note what the
            cost threshold is.

            Q. And the cost threshold is not 85 percent but 100
            percent. Is that correct?

            A. Correct, our State contract requires that we go to an
            IDT when anyone is over 85 percent of the contract . . .
            amount.

            Q. So during this meeting your note says that the
            current threshold . . . the current cost for [D.N.] was,
            "$135,144.88 per year." Is that correct?

            A. Correct.

            Q. And that amount is over the 85 percent limit. Is that
            correct?

                                                                             A-2885-17T1
                                        13
            A. Correct.

            Q. But it's under the 100 percent limit for the threshold.
            Is that correct?

            A. Yeah, correct.

            Q. So, it costs less than the annual threshold for [D.N.]
            to receive the services in the community. Is that
            correct?

            A. Yeah, correct. We're required to go to an IDT when
            they're over 85 percent but it's under 100 percent.

      Counsel next asked Basil to explain the concept of "capitation" or

"capitated rate" and specifically address what role it played in Amerigroup's

decision to deny D.N.'s request for twenty-four-hour PCA services. Although

Basil said she does not work in the "department," she agreed with D.N.'s counsel

that capitated rate "means that the State pays a certain amount of money to

manage an individual's care." This prompted the following exchange:

            Q. You wrote in your note that, "The dual SCNF of 85
            percent is $135,885.87." Is that correct?

            A. Correct.

            Q. And so 85 percent of the cost threshold for
            somebody who is Dual S-C-N-F is that amount of
            money. Is that correct?

            A. Correct. "SCNF" stands for a Specialty Care
            Nursing Facility level of care.


                                                                         A-2885-17T1
                                       14
            Q. And [D.N.] meets that level of care. Correct?

            A. Correct, it's been approved by OCCO which is the
            Officer of Community Choice Options.

      Against this backdrop, Basil agreed that: (1) the contract between

Amerigroup and the Division provides: "If the member's LTSS costs in a

community setting exceed the costs of an institutional placement setting [,] but

fall within the [A]nnual [C]ost [T]hreshold, the MCO shall be required to

provide the services in the member's preferred placement setting[,]" and (2) the

$135,885.87 cost of keeping D.N. in the community is less than the annual

threshold cost. (emphasis added). In light of these two material concessions,

D.N.'s counsel asked Basil:

            Q. [D.N.'s] amount that was discussed on the IDT call
            was less than the annual threshold. Correct?

            A. That's correct, but that still doesn't mean that we're
            excluded from following the rule that we had discussed
            before as far as the number of hours per day.

            Q. So it's safe to say that there are multiple sections in
            the contract that could apply to this. Correct?

            A. Correct.

      D.N. called Lisa Rozycki, a Registered Nurse with twenty-four years of

experience and a specialty in Home Care and Geriatrics. At the time she testified

before the ALJ, Rozycki was most recently employed by the Carrier Clinic as

                                                                         A-2885-17T1
                                       15
the Director of Geriatric Services in the psychiatric hospital. She has also been

admitted as an expert witness in over thirty litigated cases. The ALJ admitted

Rozycki as an expert witness in the field of Nursing Assessment and in Nursing

Care.

        Rozycki described D.N.'s physical limitations and condition. She testified

that D.N.'s physician ordered that D.N. be "wheelchair bound for no more than

six to ten hours per day . . . and then otherwise is bed bound the remainder of

the day." Rozycki corroborated Bien-Aime's testimony in her description of the

arduous, time-consuming tasks performed by a PCA on a daily basis to ensure

D.N.'s safety, to enable him to remain in the community, and to provide him a

reasonable degree of mobility.

        However, Rozycki's testimony differed from Bien-Aime's tool-based

analysis in a number of key areas. For example, Rozycki testified that nursing

standards for incontinence care requires that "an individual who is incontinent

should be . . . checked and changed . . . every two to three hours." She also

emphasized that a person with D.N.'s vulnerability to autonomic dysreflexia

requires that he be checked on and changed every two to three hours, on a

twenty-four-hour schedule.      D.N.'s counsel moved Rozycki's report on this

subject into evidence.


                                                                          A-2885-17T1
                                        16
      Rozycki also testified concerning the monitoring duties of a PCA. One of

the most important duties of a PCA involves monitoring the urine bag. She

explained that "the leg side bag doesn't have the ability to hold that much urine

and it has to be emptied quite frequently . . . approximately every two hours

. . . given the amount of fluids he's taking in." This monitoring duty and

evacuation function must continue throughout the twenty-four hours of the day

"because you don't want it to be pulling on the skin." This pulling has "the

potential to deflate or dislodge the balloon that's internally holding it in

position."

      There are also concerns related to D.N.'s catheter. Rozycki testified that

D.N. told her he had been having "an issue with the blockage." If the person

using a catheter does not get enough fluids or develops infections,

sedimentations may cause a blockage. Rozycki explained that "epithelial cells

that are floating around [the] bladder wall . . . can cause a blockage in the

opening to the catheter that sits in your bladder."     This can trigger D.N.'s

autonomic dysreflexia, which may lead to blood pressure fluctuation, causing a

change in the heart rate, profuse perspiration, and intense pain due to his

inability to urinate.




                                                                         A-2885-17T1
                                      17
      A PCA is not trained to deal with these medical issues. A visiting nurse

must respond to D.N.'s residence "to manage the issue and that means flushing

the catheter" with the goal taking care of the problem on site. If the nurse is

unable to perform this procedure safely at D.N.'s residence, he must go to the

nearest emergency room. According to Rozycki, "the week before, [D.N.] had

to go to the ER and have it taken care of by a professional . . . [.]" Rozycki

testified this event exemplifies the need for a twenty-four-hour PCA.

      D.N. was the last witness to testify before the ALJ. He described the 2001

accident that caused his current medical condition, the type of daily, lengthy list

of personal services the PCA provides him, and the needs that remain unattended

when the PCA is not with him. For example, D.N. testified he would be unable

to summon help: "[If] I have . . . a bowel movement or a catheter leakage or if

I'm just not feeling well . . . if I'm hot or overheated." His bowel movements

are not under his control. He explained: "A nurse comes three days a week and

. . . puts in a suppository and does the bowel program." From his nourishment

to his grooming, from his movement to his rest, he is completely dependent on

others to perform the most basic of human functions.

      At the time of this hearing, D.N. had more than one PCA that worked on

different shifts, including overnight shifts. The overnight PCA repositions him


                                                                           A-2885-17T1
                                       18
in the bed, drains the urine bag, fills his cup of water, takes off the blanket if he

is warm or puts one on if he is cold, and places ice packs on the top of his head.

D.N. testified: "I just don't sleep well at all, I just . . . never did." This prompted

the following questions from his attorney:

             Q. How often do you have difficulty sleeping?

             A. Pretty much nightly.

             Q. Are there times where you awake in the middle of
             the night when you need assistance?

             A. Yes.

             Q. With what do you need assistance when you're
             awake?

             A. Sometimes I'll be uncomfortable and need to be
             repositioned, I'll be getting pain whether it's my
             shoulders from laying on one side too long. Sometimes
             it's due to the catheter being blocked or sometimes even
             I get the sensation where I have to go to the - - like
             whether the catheter is blocked or my bowels are
             moving, so I'll call for them to put like a Chux pad
             underneath my backside or to check the catheter to see
             if the catheter is going and if it's not they'll elevate my
             head because I can't do that on my own.

             So they elevate my head and they'll put the ice pack on
             my head and call the nurse - - they'll call the VNA
             Nurse. They move the catheter around to see if the
             blockage can come - - can move on its own. If not, then
             they'll call the VNA Nurse and the VNA will send a
             nurse and if she can't rectify the problem, then they'll
             have to call the ambulance.

                                                                               A-2885-17T1
                                         19
      In his Initial Decision, the ALJ framed the issue before him as "whether

105 hours of PCA services [per week] is appropriate [.]" The ALJ found that

Medicaid and Amerigroup meet with individuals who satisfy Medicaid financial

requirements like D.N. Each individual is assessed by an Interdisciplinary Team

(IDT) to determine whether they are eligible for PCA services. The ALJ found

the IDT advised D.N. that "the total Private Duty Nursing, Personal Care

Assistance, and Self Direction total services limit is sixteen hours per day." The

ALJ ultimately concluded that D.N. was "fortunate to have [had] a roommate

for a period of time who shared his aide so that care was around-the-clock, and

who also was able to assist [him]."

      The Division Director adopted the ALJ's Initial Decision. Citing N.J.A.C.

10:60-3.8(c), the Director held: "If the necessary personal care and household

tasks can be accomplished within 105 hours per week, any additional hours

would only be used for supervision or companionship which is not an authorized

use of the service." The Director concluded her Final Decision by emphasizing

that providing D.N. twenty-four-hours assistance under these circumstances

"would be contrary to the purpose of the PCA program, which is intended to

provide medically necessary assistance with specific health related tasks."




                                                                          A-2885-17T1
                                       20
      This court reviews a final quasi-judicial decision of a State administrative

agency "under an arbitrary and capricious standard." Zimmerman v. Sussex Cty.

Educ. Servs. Comm'n, 237 N.J. 465, 475 (2019). Thus:

            our scope of review is guided by three major inquiries:
            (l) whether the agency's decision conforms with
            relevant law; (2) whether the decision is supported by
            substantial credible evidence in the record; and (3)
            whether, in applying the law to the facts, the
            administrative agency clearly erred in reaching its
            conclusion.

            [Twp. Pharmacy v. Div. of Med. Assistance & Health
            Servs., 432 N.J. Super. 273, 283-84 (App. Div. 2013)
            (citing In re Stallworth, 208 N.J. 182, 194 (2011)).]

      Guided    by   these   well-settled   principles   of   administrative   law

jurisprudence, and mindful of the Director's own declaration that the underlying

purpose of the PCA program "is to provide medically necessary assistance with

specific health related tasks," we conclude the Director's decision to deny D.N.

twenty-four-hour per day PCA services was arbitrary, capricious, and not

supported by the evidence in this case. The record shows D.N. established that

he needs twenty-four-hours of PCA services based exclusively on his

indisputable medical fragility and complete inability to perform the most basic

functions without assistance from a PCA.




                                                                          A-2885-17T1
                                      21
      D.N. resided in a nursing home before he moved into an apartment in the

community with a roommate who was also eligible to receive Medicaid funded

PCA services. At the time D.N. moved into the apartment, he was receiving

fifteen hours per day of PCA services provided by Horizon Blue Cross and Blue

Shield, the Managed Care Organization (MCO) predecessor to Amerigroup.

Although his roommate received up to seven hours per day of PCA services,

D.N. testified that this did not prevent the roommate from performing household

tasks such as cooking and assisting D.N. in a personal way, such as eating,

emptying his urine drainage bag, and "a lot more."

      The bureaucratic matrix relied on by Amerigroup to determine whether

D.N. needs twenty-four-hour assistance is untethered to the reality of his

physical limitations and the serious potential health hazards he faces on a daily

basis. Basic humanity and common sense dictate that a person utterly incapable

of movement and connected to medical devices to perform rudimentary

biological functions cannot be left alone in an apartment. The testimony of the

representatives of Amerigroup seem oblivious to this reality.

      Amerigroup now spends $135,144.88 per year to provide D.N. only 105

hours per week of PCA services. Amerigroup's representative conceded that

pursuant to the contract Amerigroup has with the State: "If the member's LTSS


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costs in a community setting exceed the costs of an institutional placement

setting, but fall within the Annual Cost Threshold, the MCO shall be required to

provide the services in the member's preferred placement setting." (emphasis

added). The current 105 hours per week arrangement is under the 100 percent

limit for the threshold allowed under the contract. There are sufficient funds to

provide D.N. with twenty-four-hour PCA service without exceeding the

Medicaid contractual limit.

      The Division Director held that the PCA program is intended to provide

medically necessary assistance for specific health related tasks. The denial of

twenty-four-hour PCA assistance to D.N. in this case is utterly inconsistent with

the purpose of the PCA program. But more importantly, it is irreconcilable with

any notion of basic human decency.

      Reversed.




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