JOH N JA CO,                        )
                                    )
                                    )
      Plaintiff-A ppellant,         )
                                    )                     FILED
                                    ) Appeal No. 01A01-9806-CH-00324
vs.                                 )                       March 31, 1999
                                    ) Davidson C hancery
                                    )                     Cecil Crowson, Jr.
DEPARTMENT OF HEALTH,               )                    Appellate Court Clerk
BUREAU OF TENNCARE                  )
                                    )
                                    )
      Defendant-Appellee.           )
                                    )




                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE




APPEALED FROM THE CHANCERY COURT FOR DAVIDSON COUNTY AT
NASHVILLE, TENNESSEE.

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR




THOMA S F. BLOOM, for Plaintiff-Appellant

PAUL G. SUMMERS, ATTORNEY GENERAL & REPORTER, and MICHELLE
HOHNK E JOSS, ASSISTANT A TTORNEY GENERA L, for Defendant-Appellee.




                          AFFIRMED AND REMANDED


                                            DON T. McMURRAY, JUDGE


CON CUR :
GODD ARD, P.J.
FRANK S, J.
              This is an appeal from a chancery court order affirming a final order

from an a dministrative hearing. A ppellant Joh n Jaco ap peals the ord er denying his

application for Medicaid reimbursement for inpatient nursing home care after the

Davidson County Chancery Court concluded that the record contained substantial and

material evid ence to sup port the D epartmen t of Health 's ("Departm ent") decisio n to

deny M edicaid reimbu rsemen t.

              The procedural history of this case is quite lengthy because it includes

both administrative hearings and judicial review of those hearings during a five-year

period. Appellant was admitted to Parkview Convalescent Unit ("Parkview"), an

intermediate care facility (ICF), in Dyersburg, Tennessee on March 9, 1992. He

received a pproval fo r short-term M edicaid reim burseme nt from A pril 14, 1992 to

February 13, 1993 for nursing home care of a fractured hip. On February 8, 1993,

appellant file d another p re-admissio n evaluatio n (PAE ), a requirem ent for M edicaid

payment of nursing home care, for continued Medicaid reimbursement, but the

Department denied this PAE on March 30, 1993. On April 29, 1993, the Department

was notified of an appeal by the appellant's brother, Harold Jaco, Jr., on behalf of the

appella nt.

              On June 15, 1993, Administrative Law Judge (ALJ) Robert T.

McGowan conducted a hearing and on July 12, 1993 entered an initial order affirming

the Department's denial of appellant's PAE. Pursuant to Tennessee Code Annotated §

4-5-317(a), appellant requested reconsideration of the initial order, but the petition for

reconsideration was denied by the ALJ pursuant to Tennessee Code Annotated § 4-5-

317(c). The appellant then appealed the initial order. Dr. Kerry Gateley, sitting as

Designee of the Commissioner of Health ("Designee"), entered a final administrative

order on N ovembe r 16, 1993 affirming the ALJ 's decision de nying appella nt Med icaid

reimbursement for inpatient nursing home care.


                                             2
                  Appellant then filed a petition for reconsideration. Harold Jaco, Jr., the

appellant's brother and his representative at the administrative hearing, stated that he

was not competent to represent the appellant at that earlier hearing and that he had

evidence not introduced at the hearing which could have a bearing on the final

outcome of his brother's case. The Designee stayed his November 16th order and

remanded the case to the ALJ to consider this new evidence. The appellant retained

counsel to represent him in the proceeding on remand.

                  On remand, the parties agreed to submit the evidence in the form of

affidavits. On July 22, 1994, the ALJ then entered a second initial order denying

appellant's request for Medicaid reimbursement of nursing home care. The appellant

filed a petition for reconsideration, and the petition was denied. The appellant then

appealed the second initial order. On November 21, 1994, the Designee filed a final

order affirm ing the den ial of Me dicaid reimb ursemen t.

                  On January 18, 1995, appellant filed a petition for judicial review

pursuant to Tennessee Code Annotated § 4-5-322.1 The trial court entered an order

affirming the final order of the Department on June 4, 1998.

                  Although the appellant presents three issues in his brief for our

consideratio n, he conso lidates these in to one issue for his argu ment:

                  The decision of the administrative law judge, as affirmed by the
                  chancellor is arbitrary and capricious and not supported by
                  substantial and material evidence, and the chancellor further
                  erred by failing to consider the expert evidence submitted by
                  petit ione r and in de ferring to ina ppro priate "credibility"
                  assessme nts dealing w ith proof by af fidavit.


                  We af firm the chanc ery court's o rder in its entirety.

                  At the time of the 1993 administrative hearing, the appellant was 48



    1

         Litigation of a p rocedur al issue caused the delay from 1995 to 1998. See Jaco v. Department of
Health, B ureau o f Medica id, 950 S.W.2d 350 (Tenn. 1997).

                                                       3
years old a nd had resided at Park view in Dyersbu rg, Ten nessee since M arch 9, 1 992.

Before h is admittanc e to Parkv iew, he ha d resided at M aplewoo d Health C are in

Jackson, Tennessee since 1988. According to the record, the appellant was approved

for Medicaid reimbursement at Parkview from April 14, 1992 to February 13, 1993

because o f his fracture d hip. He w as granted a pproval fo r short-term M edicaid

reimburse ment of h is nursing ho me care so that he cou ld learn to self -transfer fro m his

wheelchair to his bed and from his wheelchair to the toilet without putting weight on

his right leg. The appellant submitted another PAE for Medicaid reimbursement on

February 8, 1993, but the Department denied the PAE because the appellant was

capable of self-transferring. The Department's denial of the February 8th PAE is the

subject of this action.

                 The appellant's medical diagnosis while at Parkview was a fractured

right hip and seizure disorder. The appellant, who has had this seizure disorder as a

result of a closed head injury from playing football since the age of nine, experiences

between two and ten small seizures per week and has approximately nine to twelve

severe seizures per year. He takes several medications daily in an attempt to control

his seizu res.

                 According to the record, the appellant, who has a twelfth-grade

education, worked in his father's grocery store and a vocational training center from

1967-1980. He apparently lived at his parents' home until 1988. He resided at

Rosew ood Ga rden Bo arding H ome for th ree month s in 1988 b efore bein g admitted to

Map lewoo d Hea lth Care in Jack son, Te nnesse e and th en to Pa rkview in Ma rch 199 2.

                 The appellant argues that he qualifies for Medicaid reimbursement of

daily inpatient nursing home care because of his seizure disorder. He asserts that

Joanna Damons, a registered nurse with the Medicaid Medical Review Unit at the

Bureau of TennCare who reviews PAEs for Medicaid approval of nursing home care,


                                              4
testified that she considers (1) the patient's orientation or mental condition, (2) the

patient's ability to move around on his own, and (3) his ability to perform activities of

daily living (ADLs) when deciding whether the patient needs inpatient nursing home

care.

               With respect to his mental condition, the appellant argues that the ALJ

relied heavily upon the affidavit of Dr. John Gore, the Medical Director of the

TennCare/Medicaid Program. He asserts that Dr. Gore, who is a pediatrician, was

"not qualifie d to dispute th e conclusio ns of Do ctor Berryma n, a clinical psych ologist,

and Doctor Hubbert, a psychiatrist, regarding [his] mental state." The appellant

maintains th at Dr. Go re is not qua lified to assess his mental c ondition, an d thus, his

testimony on this subject "is of negligible value." Appellant provided affidavits from

Dr. Harry Berryman and Dr. Charles Hubbert stating that he needed inpatient nursing

home care because of his seizures. Furthermore, he contends that the Davidson

County Chancery Court should have considered Dr. Gore's affidavit and his experts'

affidavits "de novo, without any deference to how the ALJ (or the Chancellor) may

[have ] assesse d the the [sic] 'cred ibility' of the docum entary ev idence ."

               Furthermore, the appellant asserts that he requires supervision and

assistance with his ADLs. Dr. Gore stated that the appellant receives minimal

assistan ce with his AD Ls, add ing that t he app ellant ba thes, dre sses, an d feed s himse lf.

Appellant argues, ho wever, that he "wo uld be in real danger of drowning if he w ere

left unsupervised in the bath," noting that he had experienced a seizure while in the

whirlpoo l bath. In add ition, he conte nds that he n eeds supe rvision wh en taking h is

medic ations, e speciall y follow ing a se izure w hen he tends to becom e conf used.

               The appellan t's bro ther, Harold Jaco , Jr., h as pa id fo r his b rother's

nursing home care, w hich co sts appr oxima tely $21,0 00 per ye ar, since 1988.

Therefore, the appellant states that he seeks to "shift the financial burden of [his]


                                                5
nursing home care from the back of [his] brother to the rightful obligor, the Bureau of

Med icaid."

               The De partment a rgues that the appellant d oes not req uire daily

inpatient nursing home care, and therefore, Medicaid reimbursement for his nursing

home care was properly denied. First, the Department asserts that Dr. Gore is the most

qualified person to evaluate the appellant's needs. As a board-certified physician and

the Medical D irector of TennC are/Medicaid Pro gram, Dr. Gore is "an expert on whe re

medical needs can best be met and what opportunities for care are available." It notes

that Dr. Gore observ ed the appellant at Parkview , whereas Dr. Be rryman and Dr.

Hubbert saw the appellant only at their offices for evaluation and testing. Therefore,

the Departmen t contends that the informa tion used by Drs. Berryman a nd Hubbe rt

may not be the most reliable because they did not see the appellant in his home

environment as Dr. Gore did. Furthermore, the Department argues that Drs. Berryman

and Hubbert did not interview the nurses who care for the appellant, but instead talked

only with the a ppellant an d his brothe r, Harold Ja co, Jr., who h as an interest in

maintaining the appellant in the nursing home. The Department also notes that neither

Dr. Berryman nor Dr. Hubbert reviewed the appellant's medical records.

               In addition, Jo anna D amons tes tified that durin g her on-site visit with

the appellant, he could communicate his needs and knew what he was do ing. She also

testified that based on her interviews with four nurses who care for the appellant, the

appellant "is alert and oriented most of the time." Ms. Damons further testified that

although the appellant was unable to walk, he can use a wheelchair without assistance,

and during her on-site visit, appellant self-evacuated from the facility in only 40

seconds. With respect to appellant's ADLs, she testified that appellant feeds himself,

uses the bathro om ind epend ently, and require s only set u p for b ath and mouth care.

Furthermore, he can take his medications with only minor assistance, but does need


                                              6
limited supervision in taking his medications following a seizure.

               As to the appellant's seizure disorder, Ms. Damons testified that the

general method for handling someone who is having a seizure is to turn the person on

his or her side so that they do not aspirate. Sh e further testified that this procedure

could be performed by a layperson, and in fact, the appellant's mother had performed

this function for him when she cared for him at home. Ms. Damons testified that the

nursing staff at Parkview does nothing for the appellant's seizure disorder which

would require daily inpatient nursing care. She stated that the facility calls the doctor

is the appellant has a major seizure and that a layperson could call the doctor. Ms.

Dammons further testified that boarding homes in Nashville and Jackson care for

patients who have seizures and that inpatient nursing home care would not prevent the

appellant's seizures or prevent him from being injured during a seizure.

               While the Department concedes that the appellant needs some

supervision and monitoring, it maintains that his needs can be met at a lower level of

care, such as at a residential home for the aged or in a home setting with a home

health n urse, ins tead of as an in patient a t a nursin g hom e.

               Therefore, the Department requests that the chancery court's order

upholding the Department's final order be affirmed because there is substantial and

material evid ence in the r ecord to su pport the D epartmen t's denial of M edicaid

reimbu rsemen t for the appella nt's nursin g hom e care.

               The Department is the state agency responsible for administering the

Medicaid program in Tennessee. See Tenn. Code Ann. § 71-5-104. Tennessee Code

Annotated § 4-5-322(a)(1) states that any person who is aggrieved by a final decision

in a contested case has the right of judicial review. Judicial review is without a jury

and is not a de novo review but is limited to the record. Tenn. Code Ann. § 4-5-

322(g); Humana of Tennessee v. Tennessee Health Facilities Commission, 551


                                                7
S.W.2d 664, 667 (Tenn. 1977). However, proof may be heard in the trial court for

"alleged irregularities in procedure before the agency, not shown in the record." Tenn.

Code Ann. § 4-5-322(g). The factual issues must be reviewed by the Chancellor upon

a stand ard of s ubstan tial and m aterial ev idence . Humana of Tennessee, 551 S.W.2d at

667.




               Nursing home care at an ICF is one service available to individuals who

meet the requirements for such care under Medicaid. Tenn. Code Ann. § 71-5-

107(a)(15). To reimburse through Medicaid for ICF services, the Department must

approve a PAE on behalf of an individual. Tenn. Comp. R. & Regs. ch. 1200-13-1-

.10(2).

               The requirements for Medicaid reimbursement for care at an ICF after

admission follow:

               In order to continue receiving Medicaid reimbursement for ICF
               care after admission, an individual must, at all times, meet all of
               the following criteria:

               (a) Either physical or mental condition; and,
               (b) Social disability; and,
               (c) Medical necessity; and
               (d) Need inpatient nursing care daily; and,
               (e) Need care under the direction of a physician.

Tenn . Com p. R. & Regs. c h. 1200 -13-1-.1 0(4).

               "Inpatient nursing care needed" is defined as "[n]ursing [s]ervices must

be such th at as a practica l matter they can only be rende red on an inpatient bas is or it

is the general medical practice that they be rendered only on an inpatient basis." Tenn.

Comp. R. & Regs. ch. 1200-13 -1-.10(1)(b).

               First, we disa gree with th e appellant's as sertion that de novo review was

required by the chancery co urt. As we have alrea dy noted, the ch ancery court is

limited to the record made at the administrative hearing, with the exception of proof of


                                              8
procedural irregularities. Therefore, the appellant's assertion regarding de novo

review is w ithout merit.

               With respect to the appellant's application for Medicaid reimbursement

of his nursing home care, we note that the record indicates the appellant began filing

PAEs for Medicaid reimbursement of nursing home services from the time he was

first admitted to Maplewood Health Care in 1988. From that time until 1992 when he

fractured his hip, he had filed numerous PAEs requesting Medicaid reimbursement for

his nurs ing hom e care, a nd all req uests fo r reimb ursem ent had been d enied.

Howeve r, once appellant fractured h is hip, he received approv al for short-term

Medica id reimburs ement so th at the nursing home staf f could w ork with h im to

develop skills necessary for coping with his fractured hip. However, once at Parkview

for his hip fracture, appellant argued that he was entitled to Medicaid reimbursement

for his nursing home care because of his seizure disorder. Absolutely nothing in the

record indicates that the appellant w as admitted to Parkview because of his seizure

disorder alone or that he w as approved for short-term Medicaid reimbursement

becau se of h is seizur e disord er.

                Based u pon the rec ord, the app ellant is fully cogn izant of his

surroundings, can care for his daily personal needs with only minor assistance, and

can move about in his wheelchair without assistance. Evidence indicates that the

appellant can take his medications with minimal assistance and that the nurses at

Parkview do not per form any fu nction for th e appellant d uring a seizu re that a

layperson cou ld not perfo rm or has n ot perform ed. The ap pellant wa s cared for by his

mother at home and lived at a boarding home before being admitted to Maplewood

Health Care in 1988. Furthermore, the record indicates that individuals who

experience seizures are often cared for in residential facilities other than nursing

homes.


                                               9
                 We conclud e that there is substantial and material evide nce in the record

to support th e Departm ent's determin ation that app ellant does n ot qualify for M edicaid

reimbu rsemen t of inpa tient nur sing ho me car e.

                 Therefore, we a ffirm the order of the D avidson Coun ty Chancery Court

in its entirety. Costs o f this appea l are taxed to th e appellant, a nd this case is

remanded to the chancery court for the enforcement of its order and collection of

costs.




                                  PER CURIUM ORDER

                 The fore going op inion, prepa red by Judge Don T . McM urray, late

member of the Court and now deceased, is now approved and adopted as the opinion

of the Co urt.




                                      ______________________________
                                      Houston M. Goddard, Presiding Judge




                                      ______________________________
                                      Herschel P. Franks, Judge




                                               10
