Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/18/2019 09:08 AM CST




                                                          - 81 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                          LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                                            Cite as 302 Neb. 81




                              Leon V.      and   Cristy V.              Paige V.,
                                                              on behalf of
                                    a minor child, appellees, v.  Nebraska
                                        Department of Health and Human
                                           Services et al., appellants.
                                                     ___ N.W.2d ___

                                          Filed January 18, 2019.   No. S-18-197.

                1.	 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.
                2.	 ____: ____: ____. 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.
                3.	 Judgments: Appeal and Error. An appellate court, in reviewing a dis-
                    trict court’s judgment for errors appearing on the record, will not substi-
                    tute its factual findings for those of the district court where competent
                    evidence supports those findings.
                4.	 Administrative Law: Judgments: Statutes: Appeal and Error. To the
                    extent that the meaning and interpretation of statutes and regulations are
                    involved, an appellate court decides such questions of law independently
                    of the decision made by the court below.
                5.	 Administrative Law: Statutes. Properly adopted and filed agency regu-
                    lations have the effect of statutory law.
                6.	 Statutes: Appeal and Error. Statutory language is to be given its plain
                    and ordinary meaning, and an appellate court will not resort to inter-
                    pretation to ascertain the meaning of statutory words which are plain,
                    direct, and unambiguous.

                  Appeal from the District Court for Lancaster County: Susan
               I. Strong, Judge. Affirmed in part, and in part reversed and
               remanded with directions.
                              - 82 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
      LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                        Cite as 302 Neb. 81

   Douglas J. Peterson, Attorney General, and Ryan C. Gilbride
for appellants.

  Ann C. Mangiameli and Joanna Uden, Senior Certified Law
Student, of Legal Aid of Nebraska, for appellees.

  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg JJ.

  Miller-Lerman, J.
                       NATURE OF CASE
   Because the Nebraska Department of Health and Human
Services (DHHS) found that Paige V.’s gastrointestinal impair-
ments would not last for at least 12 months, it determined that
Paige was ineligible for Medicaid funding through the Nebraska
Medicaid Assistance Program and hence ineligible for “assist­
ance to the aged, blind, or disabled” (AABD) Medicaid waiver
services. See Neb. Rev. Stat. § 68-1001 et seq. (Reissue 2018).
Leon V. and Cristy V., on behalf of their minor child Paige,
sought review by the district court for Lancaster County under
the Administrative Procedure Act (APA). The district court
found that the evidence showed that Paige was disabled for
purposes of determining Medicaid benefits. The district court
reversed the DHHS order and remanded the matter with direc-
tions to award Paige AABD waiver services and reimburse
Leon and Cristy for medical expenses. DHHS and two of its
officers, in their official capacities, appeal. Although they do
not dispute the finding that Paige was disabled for determin-
ing Medicaid eligibility, they claim that the district court erred
in its instructions on remand when it directed DHHS to award
Medicaid waiver services and retroactive medical expenses.
We affirm that portion of the order of the district court which
found that Paige is disabled, but because we find error in the
scope of the remand, we reverse the district court’s order of
remand, and we remand the matter with directions on fur-
ther proceedings.
                              - 83 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
      LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                        Cite as 302 Neb. 81

                    STATEMENT OF FACTS
   Leon and Cristy, on behalf of their minor child Paige,
applied for Medicaid on October 27, 2016. Knowing that
Paige would be ineligible for Medicaid due to their household
income, Leon and Cristy requested AABD on November 4.
Paige was 12 years old at the time of the application. In 2016,
due to a serious gastrointestinal medical condition, Paige was
hospitalized several times and underwent surgeries.
   DHHS made a disability determination in which it concluded
that Paige would not be sick long enough to meet the 12-month
disability durational requirement and denied the application.
Leon and Cristy requested an administrative hearing regarding
Paige’s disability determination. Following the hearing, DHHS
issued a written decision on April 12, 2017, in which it found
that Paige’s impairments would not last for at least 12 months
and affirmed the denial.
   Leon and Cristy sought review of the disability determina-
tion by the district court under the APA. In its January 30,
2018, order, the district court found that Leon and Cristy had
established by a preponderance of the evidence that Paige met
the requirement for a qualifying impairment expected to last for
at least 12 months and was therefore disabled under applicable
regulations. The district court reversed the April 12, 2017,
order of DHHS and remanded the cause “with directions to
award [Leon and Cristy] AABD Medicaid [w]aiver [s]ervices
and reimburse [Leon and Cristy] for medical expenses which
should have been covered on and after October 1, 2016.” In its
order, the district court denied Leon and Cristy’s request for
attorney fees, from which denial no appeal has been taken.
   DHHS and its officers appeal.
                   ASSIGNMENT OF ERROR
   Although DHHS and its officers do not contest the district
court’s finding of disability and medical eligibility, they claim
that the district court erred when it remanded with directions to
DHHS to award Paige Medicaid waiver services and retroac-
tive medical expenses.
                              - 84 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
      LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                        Cite as 302 Neb. 81

                   STANDARDS OF REVIEW
   [1-3] A judgment or final order rendered by a district court
in a judicial review pursuant to the APA may be reversed,
vacated, or modified by an appellate court for errors appearing
on the record. J.S. v. Grand Island Public Schools, 297 Neb.
347, 899 N.W.2d 893 (2017). When reviewing an order of a
district court under the APA for errors appearing on the record,
the inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. Id. An appellate court, in reviewing
a district court’s judgment for errors appearing on the record,
will not substitute its factual findings for those of the dis-
trict court where competent evidence supports those findings.
Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d
892 (2016).
   [4] To the extent that the meaning and interpretation of stat-
utes and regulations are involved, an appellate court decides
such questions of law independently of the decision made by
the court below. See Melanie M. v. Winterer, 290 Neb. 764,
862 N.W.2d 76 (2015).
                            ANALYSIS
   At the outset, DHHS and its officers note on appeal that
there is a distinction between eligibility for Medicaid and eli-
gibility for receipt of AABD Medicaid waiver services. They
assert generally that this distinction was overlooked by the
district court, leading it to exceed the proper scope of its order
of remand. On appeal, they contend specifically that because
additional criteria must be satisfied before Paige is eligible for
or could receive AABD Medicaid waiver services, they can-
not comply with the district court’s directions on remand as a
matter of law. We agree.
Relevant Regulations.
  AABD services are administered by DHHS and consist of
money payments to, medical care in behalf of, or any type of
remedial care in behalf of needy individuals. See § 68-1001. In
                              - 85 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
      LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                        Cite as 302 Neb. 81

a recent case, we have described Medicaid waiver services as
intended for clients who are at a nursing-home level of care but
choose to receive home and community-based services. Merie
B. on behalf of Brayden O. v. State, 290 Neb. 919, 863 N.W.2d
171 (2015).
   [5,6] DHHS promulgates rules and regulations providing for
services to AABD clients. § 68-1001.01. Properly adopted and
filed agency regulations have the effect of statutory law. Merie
B. on behalf of Brayden O. v. State, supra. When an appeal
calls for statutory or regulatory interpretation or presents ques-
tions of law, an appellate court must reach an independent, cor-
rect conclusion irrespective of the determination made by the
court below. See id. Statutory language is to be given its plain
and ordinary meaning, and we will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. Merie B. on behalf of Brayden O. v.
State, supra.
   The provisions of 480 Neb. Admin. Code, ch. 5 (1998), are
applicable to this case. Under the regulations, Medicaid waiver
services are provided statewide to eligible clients for whom a
slot is available. 480 Neb. Admin. Code, ch. 5, § 002. Under
§ 002, to be eligible for waiver services, clients must
         1. Be eligible for the Nebraska Medical Assistance
      Program (NMAP);
         2. Have participated in an assessment with a services
      coordinator;
         3. Meet the Nursing Facility (NF) level of care criteria
      (471 NAC 12-000);
         4. Have care needs which could be met through waiver
      services at a cost that does not exceed the cap; and
         5. Have received an explanation of NF services and
      waiver services and elected to receive waiver services.
   The regulations contained in 480 Neb. Admin. Code, ch. 5,
§ 003.B, and other regulations anticipate that a sequence of
various events occur prior to becoming eligible for Medicaid
waiver services. For example, § 003.B4(c) provides that a
                               - 86 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
      LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                        Cite as 302 Neb. 81

“child’s waiver eligibility period may begin no earlier that the
date of the guardian’s signature on the consent form” and the
“waiver consent form is not valid . . . until the child’s eligibil-
ity for Medicaid has been determined.” Thus, to the extent that
Leon and Cristy contend that the regulations require simulta-
neous eligibility determinations, we do not agree, and in any
event, the parties agree that not all criteria in 480 Neb. Admin.
Code, ch. 5, § 002 et seq., have been achieved. However, to
the extent that Leon and Cristy assert that an ultimate award
of waiver services may be retroactive, the appellate briefing of
DHHS and its officers appears to agree.

DHHS Cannot Provide Medicaid Waiver
Services Based Solely on Determination
of Eligibility for Medicaid.
   The district court conducted a limited review of the DHHS
determination that Paige was not disabled for purposes of
eligibility for Medicaid. Based on the evidence and the law,
the district court found that Paige satisfied the first require-
ment of 480 Neb. Admin. Code, ch. 5, § 002, i.e., that she was
eligible for Medicaid. We find no error in this district court
finding. Due to the issue raised in the appeal, however, the
district court’s review was limited in scope; it did not make
a determination as to the satisfaction of the remaining criteria
contained in § 002. The only issue on review from DHHS
was whether Paige had a qualifying disability. Nevertheless,
in its order, the district court remanded the matter to DHHS
with directions to award Leon and Cristy full AABD Medicaid
waiver services.
   We agree with DHHS and its officers that under § 002,
Medicaid “waiver” services is a term of art, defined at 480
Neb. Admin. Code, ch. 5, § 001.E, and that eligibility for
Medicaid does not equate to eligibility for Medicaid waiver
services. With respect to the criteria in § 002 et seq., there
is no evidence in the record of a services coordinator assess-
ment, a plan of services, a signed consent form, or evidence
                              - 87 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
      LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
                        Cite as 302 Neb. 81

that a waiver slot was available for Paige which would have
enabled DHHS to provide Paige with appropriate and indi-
vidualized waiver services. The district court’s instruction on
remand appears to assume that Paige and the facts met the
additional criteria in § 002 et seq., with neither proceedings
nor evidence to this effect. Because the district court’s order
on remand exceeded the record and the scope of its review, we
reverse the portion of the order directing payment of Medicaid
waiver services.
                         CONCLUSION
   Because the only issue presented in the district court for its
review under the APA was whether Paige’s disability made her
eligible for Medicaid, the district court exceeded its scope of
review when it determined that Paige was eligible for Medicaid
waiver services. We affirm the decision of the district court
with regard to its disability determination, but reverse the dis-
trict court’s order of remand which awarded Medicaid waiver
services. The district court is directed to remand the cause to
DHHS for further proceedings whereupon Leon and Cristy
may complete waiver forms and steps required by Nebraska
law to receive payment for an eligibility period.
	A ffirmed in part, and in part reversed
	                       and remanded with directions.
