                                NOT FOR PUBLICATION WITHOUT THE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-5226-17T2

B.F.,

          Petitioner-Appellant,

v.

UNITED HEALTHCARE,

          Respondent-Respondent.


                   Argued October 29, 2019 – Decided November 12, 2019

                   Before Judges Gilson and Rose.

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

                   Michael Raymond Brower argued the cause for
                   appellant (Disability Rights New Jersey, attorneys;
                   Michael Raymond Brower, on the briefs).

                   Corey S. D. Norcross argued the cause for respondent
                   United Healthcare (Stradley Ronon Stevens & Young,
                   LLP, attorneys; Corey S. D. Norcross, on the brief).

                   Jacqueline R. D'Alessandro, Deputy Attorney General,
                   argued the cause for respondent 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; Jacqueline R. D'Alessandro, on the
              brief).

PER CURIAM

        Petitioner B.F. appeals a final agency decision of the Department of

Human Services (DHS), Division of Medical Assistance and Health Services

(DMAHS), reducing her personal care assistance (PCA) from thirty-five to

twenty-one hours per week. The Director of DMAHS upheld an initial decision

by an Administrative Law Judge (ALJ), following a Medicaid fair hearing. We

affirm.

        We incorporate by reference the undisputed facts and procedural histo ry

set forth at length in the ALJ's decision. In essence, B.F. is an octogenarian,

who suffered a stroke in 2006, causing left-side paralysis.          B.F. uses a

wheelchair, and needs assistance with her activities of daily living (ADLs) and

instrumental activities of daily living (IADLs). She lives with her long-time

friend, D.B.,1 in a home they own jointly.

        When B.F. became eligible for Medicaid in 2010, she enrolled in the

State's then-existing Global Options for Long-Term Care Medicaid Waiver


1
    D.B. is sometimes referenced in the record as B.F.'s daughter.
                                                                         A-5226-17T2
                                         2
Program (GO program). A managed care organization (MCO) under the GO

program approved a State-provided PCA aide for thirty-five PCA hours per

week, five days per week. Four years later, United Healthcare (United) became

B.F.'s MCO through Medicaid's Managed Long Term Services and Supports

(MLTSS) program and her previously-allotted hours continued unchanged. 2 See

N.J.A.C. 10:60-3.10 (b) (requiring continuation of "the same level of services

previously approved . . . until the completion of a recertification by the new

provider agency").

       In December 2016, United reevaluated B.F.'s need for PCA services.

Utilizing the current PCA Nursing Assessment tool (PCA tool), a United case

manager and registered nurse (United's nurse) conducted a face-to-face

evaluation of B.F., and determined she only required nineteen PCA hours per

week, five days per week. Prior to the hearing, another registered nurse (B.F.'s

expert) conducted two independent assessments of B.F., and determined she

required forty hours of PCA services per week, seven days per week.

       United's nurse testified at the hearing on its behalf. Her assessment was

based on the PCA tool, which calculated the supervised time needed for ADLs




2
    On July 1, 2014, the MLTSS essentially replaced the GO program.
                                                                        A-5226-17T2
                                       3
and IADLs, and her interviews of B.F. and B.F.'s PCA aide. United's nurse

detailed the number of hours she assessed for each category.

      For example, the maximum hours permitted for "ambulation, transfers,

and positioning" were allotted because B.F.'s paralysis caused "difficulty with

repositioning" her body. Conversely, United's nurse did not allot any time for

eating because B.F. feeds herself, nor household shopping because those tasks

are performed by D.B. Nor did she allot any time that exceeded the PCA

Assessment tool's guidelines for B.F.'s activities.     But United's nurse has

exceeded the maximum allotment time for other beneficiaries in "extraordinary

situations."

      B.F. testified on her own behalf and presented the testimony of her expert

and D.B. B.F. detailed her physical limitations. D.B. confirmed that B.F.'s

condition had not improved since she had begun receiving PCA services. B.F.'s

PCA aide did not testify.

      B.F.'s expert discussed the two assessments she performed, conceding she

was "not an expert on PCA or Medicaid assessments, or the PCA Assessment

tool." Unlike United's nurse, B.F.'s expert did not consult with B.F.'s PCA aide;

based her forty-hour assessment on a seven-day period; and did not specify

whether any of those hours could be attributed to services performed by D.B.


                                                                         A-5226-17T2
                                       4
      Recognizing the parties did not dispute B.F.'s physical abilities and

functional needs, the ALJ framed the issue presented as whether B.F.'s PCA

hours were "appropriately reduced . . . from [thirty-five] to [nineteen] based on

her needs." Although the ALJ found "the testimony of all of the witnesses

credible[,]" she gave more weight to the testimony and opinions of United's

nurse. The ALJ elaborated:

             [United's nurse] consulted not only with B.F., but with
             B.F.'s [PCA] aide who spends [thirty-five] hours per
             week caring for B.F. and actually provided the
             assistance for which the PCA-services allocation was
             made. On the other hand, [B.F.'s expert] did not consult
             the [PCA] aide in completing her assessment and
             formulating her opinions and report. Moreover, United
             seeks to reduce [B.F's] PCA hours in accordance with
             the hours calculated using the [PCA t]ool, and as [B.F.'s
             expert] conceded that she is not an expert on Medicaid
             nor the [PCA t]ool, [so] she is not qualified to challenge
             United's use of the tool as it pertains to B.F.

      Based on the assessment performed by United's nurse, the ALJ determined

B.F.'s PCA hours were "properly reduced" in accordance with her assistance

requirements. But, the ALJ reduced B.F.'s hours to twenty-one – instead of

nineteen – pursuant to the testimony of United's nurse. In particular, after

hearing B.F.'s testimony concerning "her current bathing and dressing needs[,]"

United's nurse testified "she would have awarded [B.F.] additional time beyond

the [nineteen] hours . . . ."

                                                                          A-5226-17T2
                                         5
      B.F. took exception to the ALJ's recommendation and appealed to the

Director of DMAHS, who adopted the ALJ's initial decision. In doing so, the

Director noted:

            In this case, when [B.F.] became a client of United
            Healthcare, it conducted a reassessment of her PCA
            needs. In conducting the new assessment, United's
            nurse was aware of [B.F.]'s current medical conditions
            and needs and the tasks necessary to meet her specific
            needs. United's nurse testified at the hearing that the
            times listed for each activity on the PCA tool are
            guidelines that can be adjusted in extraordinary
            situations. However, she did not feel that [B.F.]'s
            conditions were so extraordinary as to warrant
            additional time. She also testified that in two of the
            categories on the PCA tool, bathing and dressing, she
            would have allotted additional time had [B.F.]
            communicated to her that she either wanted or needed
            assistance in these areas.

      On appeal, B.F. raises the following points for our consideration:

            I. DMAHS's decision was arbitrary and capricious
            because it improperly placed the burden on B.F. to
            prove she still needs long-standing services that
            DMAHS previously found necessary.

            II. DMAHS's decision was arbitrary and capricious
            because [DMAHS and United] failed to meet their
            burden of proof to produce evidence of improvement in
            B.F.'s medical condition or ability to care for herself to
            warrant reducing long-standing services.

            III. The [PCA A]ssessment tool cannot form the basis
            for an agency decision because, as completed, it does
            not accurately capture the actual time needed to

                                                                           A-5226-17T2
                                        6
             complete all of B.F.s ADLs and IADLs in violation of
             federal Medicaid law and the instructions on the face of
             the tool.

      We reject plaintiff's contentions, recognizing our role in reviewing agency

decisions is significantly limited. R.S. v. Div. of Med. Assist. & Health Servs.,

434 N.J. Super. 250, 260-61 (App. Div. 2014). "An 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.'" Id. 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. (citation omitted).]

      "Deference to an agency decision is particularly appropriate where the

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

omitted). We therefore defer to the agency's superior knowledge and expertise


                                                                            A-5226-17T2
                                           7
in the field. See Thurber v. City of Burlington, 191 N.J. 487, 502 (2007).

"Nevertheless, we are not bound by the agency's legal opinions." A.B. v. Div.

of Med. Assist. & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009)

(internal quotation marks and citation omitted).     "Statutory 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)).

      The DHS has promulgated regulations governing the provision of PCA

services through Medicaid, N.J.A.C. 10:60-3.1 to -10, which, in turn, is

generally implemented by the DMAHS. See N.J.S.A. 30:4D-7. Covered PCA

services include assistance with ADLs, such as: grooming, bathing, eating,

dressing, and the like, N.J.A.C. 10:60-3.3(a)(1); and IADLs, which "are essential

to the beneficiary's health and comfort," and include e.g., shopping for the

beneficiary's personal care and groceries. N.J.A.C. 10:60-3.3(b).

      PCA services are limited to a maximum of forty hours per calendar work

week and must be pre-authorized in accordance with N.J.A.C. 10:60-3.9 and

N.J.A.C. 10:60-3.8(g). Importantly, a periodic 3 nursing reassessment visit is




3
  When the present reassessments were performed, the regulation required a six-
month reassessment. As of September 17, 2018, the regulation requires a yearly
reassessment. See 50 N.J.R. 1992(b) (Sept. 17, 2018).
                                                                         A-5226-17T2
                                       8
required to evaluate an individual's need for continued PCA services. N.J.A.C.

10:60-3.5(a)(3). An individual who has received approval for eligible services

is not, therefore, entitled to rely ad infinitum on the initial approval and remains

subject to reevaluation.

      Implemented in January 2015, the current PCA tool was structured

according to the same categories of ADL and IADL tasks set forth in N.J.A.C.

10:60-3.9(b)(1), providing a specific range of minutes for each task. The PCA

tool's guidelines comport with the regulation's express directive that health

management providers calculate numerical scores based on the beneficiary's

need. N.J.A.C. 10:60-3.9(b)(2). The PCA tool expressly provides: "The times

listed for each activity are guidelines. If the member requires more or less time,

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

      Guided by these principles, we determine that this is not one of "those rare

circumstances in which an agency['s] action[s are] clearly inconsistent with its

statutory mission," George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27

(1994), or where its findings lack "fair support in the evidence." Thurber, 191

N.J. at 501. Instead, the agency's decision "is supported by sufficient credible

evidence on the record as a whole." R. 2:11-3(e)(1)(D).




                                                                            A-5226-17T2
                                         9
      We reject B.F.'s contentions that the DMHAS and United placed the

burden on her to prove she needed thirty-five hours of PCA services, and they

were required to demonstrate her medical condition improved. Neither the

DMHAS nor United dispute that they bore the burden to establish the PCA hours

they deemed necessary here. Instead they argue B.F.'s ultimate award of twenty-

one hours per week was amply supported by the evidence where, as here, B.F.'s

condition remained unchanged and she did not demonstrate it deteriorated since

her initial assessment.

      The record developed before the ALJ amply supported the findings of fact

and conclusions of law adopted by the Director in rendering her final decision,

reducing B.F.'s PCA hours under the regulations. In particular, the Director

conducted an independent review of the record, relying on the testimony and

opinions of United's nurse, which the ALJ found more credible than those of

B.F.'s expert.    Notably, the ALJ increased B.F.'s hours from United's

determination of nineteen to twenty-one based on the candid testimony of

United's nurse, who adjusted her recommendation pursuant to B.F.'s testimony

at the hearing. Also, as the ALJ recognized, unlike B.F.'s expert, United's nurse

utilized the PCA tool, in conjunction with a face-to-face clinical appraisal. We




                                                                         A-5226-17T2
                                      10
defer to the agency's superior knowledge and expertise in the field. See Thurber,

191 N.J. at 502.

      We are equally unpersuaded by B.F.'s arguments that United improperly

applied the PCA, thereby failing to accurately capture the time needed to

complete her ADLs and IADLs. In particular, B.F. claims by awarding the

maximum time in certain categories, United's nurse improperly "capped" her

time, and imposed upon D.B. to assist with her ADLs and IADLs. The record

belies B.F.'s arguments.

      For example, United's nurse testified she scored B.F. at the maximum for

certain categories, but she "didn't feel like anything was exceptional that [she]

needed to note it beyond what the tool already allows." Conversely, United's

nurse has awarded scores for other beneficiaries beyond the maximum

guidelines set forth in the PCA tool in "extraordinary situations," including

"someone who is bedbound and needs to be repositioned really frequently" or

"someone maybe that . . . has a lot of pain and in order to transfer them [sic], it

would take a really long time . . . so as not to cause them [sic] too much

discomfort." Those subjective findings dispel B.F.'s claim that the PCA tool

was improperly applied here.




                                                                           A-5226-17T2
                                       11
      Further, as specifically noted on the PCA tool, United's nurse determined

B.F. preferred that D.B. perform certain tasks, such as ambulation and bathing.

Regarding ambulation, B.F. requested five PCA days per week because "her

daughter assists on weekends."     As for bathing, United's nurse noted B.F.

"prefers to bathe with assistance of daughter."

      We conclude the DHMAS neither acted arbitrarily nor capriciously in

reducing B.F.'s hours. Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super.

52, 56 (App. Div. 2001). Nor, did the agency engage in improper "rule-making."

To the extent not specifically addressed, B.F.'s remaining claims lack sufficient

merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                      12
