               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-710

                                 Filed: 17 April 2018

Mecklenburg County, No. 15 CVS 19217

CARLOS PACHAS, by his attorney in fact, JULISSA PACHAS, Petitioner,

              v.

NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.


        Appeal by petitioner from order entered 21 April 2017 by Judge W. Robert Bell

in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 January

2018.


        Legal Services of Southern Piedmont, by Madison Hardee and Douglas Stuart
        Sea, for petitioner-appellant.

        Attorney General Joshua H. Stein, by Assistant Attorney General Lee J. Miller,
        for respondent-appellee.


        DIETZ, Judge.


        Carlos Pachas was a Medicaid recipient. In 2016, he challenged the deductible

applied to his Medicaid coverage. After losing throughout the administrative process,

Pachas ultimately prevailed on judicial review in the trial court. The court held that

the applicable Medicaid statute required the State to use the federal poverty level for

a family, not an individual, to calculate Pachas’s income limit.
                   PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                                   Opinion of the Court



      Later, Pachas qualified for an alternative Medicaid program subject to at least

some different rules than traditional Medicaid. After the State again imposed a

deductible based on the federal poverty level for individuals, Pachas skipped the

administrative review process and returned directly to the trial court with a motion

to enforce the court’s previous order and petition for writ of mandamus. The trial

court dismissed the motion for lack of jurisdiction.

      As explained below, we affirm. Although a trial court, sitting as an appellate

court to review an agency decision, has jurisdiction to enforce an existing order, it

lacks jurisdiction to apply a previous order to new facts and legal arguments not at

issue in the previous ruling. Here, the new Medicaid program in which Pachas

enrolled permits the State to request, and the federal government to grant, waivers

from various Medicaid provisions. The State contends that the federal government

waived the income limit rules for this alternative Medicaid program. This argument

involves questions of law and fact not addressed in the first judicial review

proceeding, which concerned standard Medicaid coverage.

      Our holding today does not mean we agree with the State on the underlying

Medicaid issue. We hold only that Pachas cannot bypass the agency review process

and take this new issue directly to the trial court. Accordingly, we affirm the trial

court’s dismissal of Pachas’s motion and petition for lack of jurisdiction.




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                                  Opinion of the Court



                          Facts and Procedural History

      In 2014, Petitioner Carlos Pachas began receiving Medicaid coverage after a

stroke and a brain tumor left him confined to a wheelchair and in need of nursing

care. Pachas was the primary provider for his wife, his two minor children, and his

wife’s elderly parents.

      In early 2015, Pachas began receiving Social Security disability benefits. The

Mecklenburg County Department of Social Services determined that, based on his

Social Security disability payment of $1,369 per month, Pachas’s income was above

the federal poverty level and thus required him to pay a deductible on his Medicaid

benefits. DSS informed Pachas that it would not provide further Medicaid coverage

until Pachas paid a 6-month deductible of $6,642.

      DSS calculated this deductible based on the federal poverty level for an

individual, rather than the poverty level for a family. Had DSS applied the federal

poverty level for a family, Pachas would have been eligible for Medicaid benefits

without having to pay a deductible.

      Pachas appealed DSS’s decision through the administrative process but did not

prevail. He then petitioned for judicial review in superior court. Pachas argued that

the applicable federal statute, 42 U.S.C. § 1396a(m), required the agency to determine

his Medicaid eligibility based on the federal poverty level for a “family of the size

involved.” Because Pachas was the primary provider for his wife, children, and elderly



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                                   Opinion of the Court



in-laws, he contended that the agency should have used the federal poverty level for

a family of either four or six people.

      Pachas prevailed in superior court. The court reversed the agency decision and

ordered the agency to reinstate Pachas’s Medicaid benefits. The court held that the

agency improperly applied the income limit because “[t]he plain language of the

controlling federal statutory provision, 42 U.S.C. § 1396a(m), states that the

applicable Medicaid income limit . . . must be based on a ‘family of the size involved.’”

      In February 2017, Pachas left the nursing facility that had been caring for him

and returned home under a special Medicaid program known as the Community

Alternative Program for Disabled Adults, or CAP/DA. The CAP/DA program offers

the State the option of providing Medicaid coverage to adults who wish to receive

support services at their own homes, rather than in a nursing home.

      The State has discretion to define the scope of its CAP/DA program by

requesting a waiver of various Medicaid provisions from the federal government. See

42 U.S.C. § 1396n(c). The State contends that it requested, and received, a waiver

from the requirement that it calculate CAP/DA income limits using a “family of the

size involved” under 42 U.S.C. § 1396a(m).

      Based on this purported waiver, when Pachas enrolled in the CAP/DA program

and began receiving in-home support services, the State calculated his income limit

for CAP/DA coverage using the individual federal poverty level, not the family



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                                  Opinion of the Court



poverty level. As a result, the State required him to pay a deductible before receiving

CAP/DA coverage.

       The trial court, in its initial order on judicial review, did not address the

CAP/DA program or the factual and legal issues concerning the State’s request for a

waiver of various Medicaid provisions through CAP/DA. Indeed, the CAP/DA

program was not even at issue in the initial administrative challenge because, at the

time, Pachas was receiving only standard Medicaid coverage. As a result, the

administrative record from the initial proceeding does not include any documents

addressing either CAP/DA coverage generally or whether the federal government

approved the State’s purported request to waive the requirements of 42 U.S.C. §

1396a(m).

       After learning that the State would require a deductible for CAP/DA coverage,

Pachas bypassed the administrative review process and filed in superior court a

motion to enforce the court’s previous order and a petition for a writ of mandamus.

Following a hearing, the trial court dismissed the motion and petition for lack of

jurisdiction.

       The trial court ruled that its initial order “does not apply to Petitioner’s

Medicaid eligibility under the CAP/DA waiver” because the CAP/DA program is

“governed by [a] separate federal statute, 42 U.S.C. § 1396n(c)” which permits the

federal government “to waive the State Plan requirements for income and resource



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                                   Opinion of the Court



rules . . . that the Court considered in the March 17, 2016 Order.” The trial court

therefore held that “Petitioner must resort to the administrative process governed by

N.C.G.S. § 108A-79 to appeal” the State’s decision to require a deductible for CAP/DA

coverage. Pachas appealed the trial court’s ruling to this Court.

      Sadly, Pachas passed away during this litigation. His wife, Julissa Pachas, was

substituted as petitioner in her capacity as administrator of Pachas’s estate.

                                       Analysis

      Pachas challenges the trial court’s dismissal of his motion to enforce the court’s

previous order, and the corresponding petition for a writ of mandamus. We begin our

analysis by discussing the trial court’s authority to consider these filings.

      Ordinarily, trial courts lack jurisdiction to directly review a decision by a

county department of social services with respect to Medicaid coverage. The General

Assembly created an administrative review process for these claims, and courts have

jurisdiction to hear these disputes only when they arrive through a petition for

judicial review after exhaustion of this administrative review. See N.C. Gen. Stat.

§§ 108A-79, 150B-43.

      But as in other legal proceedings, trial courts reviewing administrative

decisions have jurisdiction to enforce their own orders. See N.C. R. Civ. P. 70; Bryan

v. BellSouth Commc’ns, Inc., 492 F.3d 231, 236 (4th Cir. 2007). Thus, when a trial

court on judicial review orders an agency to take action, the court retains jurisdiction



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                                    Opinion of the Court



to ensure its order is carried out. Consequently, when a trial court interprets a statute

and orders the agency to apply that interpretation—as happened here—the agency

must do so. If the agency ignores the trial court’s instructions, the court retains the

power to take further action to ensure compliance.

      There are limits to this supervisory authority, however. The trial court’s

authority to supervise the agency’s actions extends only to issues “actually presented

and necessarily involved in determining the case.” Tennessee-Carolina Transp., Inc.

v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974). In other words, the

trial court’s continuing jurisdiction applies to issues involving “the same facts and

the same questions, which were determined in the previous appeal.” Id.

      Here, the trial court properly concluded that the agency’s determination of

Pachas’s CAP/DA program eligibility involved different facts and legal issues than

the traditional Medicaid benefits at issue in its first order. As the trial court observed,

its first order instructed the State “to reinstate Petitioner’s Medicaid eligibility

through the North Carolina Medicaid State Plan pursuant to the controlling federal

statutory provision, 42 U.S.C. § 1396a(m).”

      The court then observed that Pachas later “voluntarily applied for Medicaid

eligibility through the Community Alternative Program for Disabled Adults . . . which

is governed by [a] separate federal statute, 42 U.S.C. § 1396n(c).” Unlike the

traditional Medicaid program at issue in the court’s first order, the CAP/DA program



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                                   Opinion of the Court



permits the State to seek waivers from various provisions of the Medicaid statutes.

42 U.S.C. § 1396n(c). The State contends that it requested, and received, a waiver

from the requirement that it calculate CAP/DA income limits based on a “family of

the size involved” under 42 U.S.C. § 1396a(m).

      The scope of this waiver provision, and whether the State in fact applied for

and received a waiver of the income limits provision, involve facts and legal questions

that were not “actually presented and necessarily involved” in the trial court’s order

addressing traditional Medicaid coverage. Tennessee-Carolina Transp., Inc., 286 N.C.

at 239, 210 S.E.2d at 183. Indeed, these issues could not have been addressed in the

court’s first order because, as the parties concede, with respect to traditional Medicaid

coverage, the statutory income limit requirements cannot be waived.

      As a result, the trial court correctly held that “the Order signed on March 17,

2016 does not apply to Petitioner’s Medicaid eligibility under the CAP/DA waiver”

and that “Petitioner must resort to the administrative process governed by N.C.G.S.

§ 108A-79 to appeal the February 14, 2017 decision issued by the Mecklenburg

County DSS.” The trial court lacks jurisdiction to review the legal and factual issues

raised in this appeal until they reach the court through exhaustion of the

administrative review process and a petition for judicial review.

      We recognize that this is a frustrating result for the Pachas family, who

already fought one lengthy administrative battle with the agency and must now do



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                                   Opinion of the Court



so again. And we agree with our dissenting colleague that requiring a “dying indigent”

to slog through this pointless bureaucracy before presenting his legal arguments to a

court of law feels “unjust and wrong.” But it is what the law requires. Although the

agency seems convinced of its legal position, that does not make the administrative

review process “futile” or “inadequate” as those terms are defined by law. See Huang

v. North Carolina State Univ., 107 N.C. App. 710, 715, 421 S.E.2d 812, 815–16 (1992).

Once Pachas has an opportunity to be heard on these issues in the administrative

review process, the agency might well agree and rule in his favor.

      Simply put, the law requires Pachas to exhaust administrative remedies before

presenting these new legal and factual arguments to the trial court. If requiring

claimants like Pachas to exhaust administrative remedies in these circumstances is

unfair or unjust, it is up to those who enacted these administrative laws and

regulations to fix it. We reject our dissenting colleague’s view that judges can ignore

the law if the outcome seems to them unjust or wrong. Even if all judges were angels,

this would be dangerous. And we are not angels.

      Although we reject Pachas’s arguments on appeal, we make two observations

about this case in the interest of justice. First, much of the parties’ briefing concerned

the portion of the trial court’s order stating that “[a]ccording to 42 U.S.C.

§ 1396n(c)(3), DHHS is allowed to waive the State Plan requirements for income and

resource rules under 42 U.S.C. § 1396a(m).” Because, as explained above, the trial



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                                   Opinion of the Court



court lacked jurisdiction to adjudicate the CAP/DA coverage issue, the court had no

authority to decide this question. The State asserts that it has this waiver authority,

but that legal question—and the factual question of whether the State actually

applied for and received such a waiver—are issues that must be decided through the

agency review process.

       Second, a Medicaid recipient ordinarily must appeal a decision of a county

department of social services within 60 days from the date of the agency’s action. N.C.

Gen. Stat. § 108A-79(c). The statutes governing the administrative review process

state that failure to timely appeal constitutes a waiver but “for good cause shown, the

county department of social services may permit an appeal notwithstanding the

waiver.” Id. Pachas sought review directly in the trial court, rather than through the

administrative process, in good faith. His arguments on appeal were not frivolous. If

there was ever a case in which good cause exists to permit an untimely administrative

appeal, this is it.

                                     Conclusion

       For the reasons discussed above, we affirm the trial court’s order dismissing

Pachas’s motion and petition for lack of jurisdiction.

       AFFIRMED.

       Judge ELMORE concurs.

       Judge HUNTER, JR. dissents with separate opinion.



                                          - 10 -
 No. COA17-710 Pachas v. North Carolina Department of Health & Human Services


HUNTER, JR., Robert N., Judge, dissenting in separate opinion.

      I respectfully dissent from the majority’s holding that the trial court lacked

jurisdiction to review the legal and factual issues raised in this appeal until Carlos

Pachas1 reaches the court through exhaustion of the administrative review process

and a petition for judicial review. As Pachas’s exhaustion of the administrative

review process is imperative to the issues raised in this appeal, a chronological

timeline of events is necessary.

      At the relevant time, Pachas, age 47, financially supported his immediate and

extended family. His wife, Julissa, their two minor daughters, and his elderly in-

laws, ages 76 and 73, all lived with Pachas in Mecklenburg County, North Carolina.

Pachas’s mother-in-law suffered from osteoporosis. Due to his in-laws’ inability to

pay rent, Pachas and his wife provided them with food and clothing. Both minor

daughters received $336 per month in Social Security income.

      In   December       2013,    Pachas’s      “problems      really   started . . . [as] . . . his

vision . . . was starting to decline[.]” In 2014, Pachas suffered a stroke and brain

tumor, which resulted in required 24-hour care. Consequently, Pachas’s doctor2

“disabled him because . . . according to the MRI result he couldn’t work anymore.” 3

Although disabled in 2014, Medicare eligibility began in 2016. In January 2015,



      1 On appeal, Pachas’s estate is represented by the administrator of the estate, Julissa Pachas.
      2 The record does not disclose which doctor labeled Pachas as disabled.
      3 The record does not disclose in what field Pachas worked prior to the decline of his health.
                      PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                              HUNTER, JR., Robert N., J., dissenting



Pachas started receiving $1,369 per month as Social Security Disability Benefits and

sometime later applied for Medicaid/Special Assistance re-enrollment.4 However, on

20 April 2015, Mecklenburg Department of Social Services (“DSS”) requested Pachas

provide proof of income for himself and Julissa, and all bank numbers and statements

in his and Julissa’s names. The request for information set a deadline of 2 May 2015.

        During this time, Julissa, an employee of Bissell Companies, left her job to care

for Pachas. She explained, “I ha[d] to stop working because he, started getting very

sick.       . . . He had numerous, several different problems, and I had to stop

working. He need[ed] a lot of therapies.” On 9 March 2015, Pachas executed a power

of attorney, authorizing Julissa to act on his behalf.                On 1 May 2015, Bissell

Companies notified Julissa, as of 3 May 2015, her coverage under Bissell’s group

medical, dental, and vision insurance would cease due to separation from

employment.

        On 5 May 2015, DSS sent notice to Pachas, informing him his Medicaid

benefits would terminate, unless he met a $6,642 six-month deductible. Pachas

requested an administrative hearing to appeal the termination of his benefits and

contended “[h]ad DSS applied the applicable income limit for a household of either

four or six persons, [Pachas] would have remained eligible for MAD benefits without



        4The record does not indicate on which date Pachas submitted an application for re-enrollment
for the Medicaid/Special Assistance Program.
                                                -2-
                   PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                          HUNTER, JR., Robert N., J., dissenting



having to meet a deductible[.]” The applicable income limit for a household of four

persons, in 2015, was $2,021. The applicable income limit for a household of six

persons, in 2015, was $2,715. Pachas asserted the North Carolina Department of

Health and Human Services (“DHHS”) violated 42 U.S.C. 1396a(m) by concluding the

Medicaid income limit applicable to him was the limit for a single individual.

According to Pachas’s petition, the applicable individual income limit is 100% of the

federal poverty line for a “family of the size involved.” Pachas contended the family

of the size involved in the present case is four to six individuals. The family of the

size involved would be four, if only counting Pachas, Julissa, and their two daughters.

However, the family of the size involved would be six, if counting his in-laws as

members of Pachas’s family.

      As the first step in the administrative review process, in May 2015, DSS held

a local hearing to discuss Pachas’s contentions. At the local hearing, DSS specialist,

Melinda Bass, heard statements regarding the disputed deductible.              Pachas

requested the applicable income limit be four to six individuals. On 13 May 2015,

Pecolia Price, a Local Hearing Officer, affirmed the agency’s decision. In support of

her decision, she cited Medicaid Manual (“MA”) section 2360, which states,

“[m]edically needy recipients whose net income exceeds the Medically Needy Income

Limit must meet a deductible before they may be authorized for Full Medicaid. The

deductible is met by incurring medical expenses equal to the amount of the

                                          -3-
                   PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                         HUNTER, JR., Robert N., J., dissenting



deductible.” Price concluded “the county action on this case was correct and that all

of the appropriate policies and procedures were followed.”

      Pachas next requested an appeal at the DSS state level. On 16 June 2015,

DSS held a state hearing. Again, DSS cited MA 2360 to support its actions regarding

Pachas’s Medicaid coverage. During the hearing, Pachas’s attorney asked Julissa to

speak to Pachas’s medical situation:

             [Q]: . . . And, does [Pachas] still have a need for medical
             treatment?

             ...

             [A]: He needs a lot of therapies. He also needs that thing
             that is for cancer. Chemotherapy or something like that,
             but he doesn’t have cancer. He has vasculitis, in the brain.
             He’s taking steroids for a year and a half. The doctor needs
             to remove the, take away him from steroids. He cannot take
             it anymore, that’s why he needs chemotherapy. The
             chemotherapies are extremely expensive.

             [Q]: Without Medicaid is he able to afford, afford the
             chemotherapy and physical therapy that the doctor has
             recommended?

             ...

             [A]: No. . . . I cannot even cover his medicines, monthly
             medicines because they are extremely expensive.

             [Q]: And without the treatment and medicines that have
             been recommended will [Pachas] ever be able to recover?

             …


                                         -4-
                      PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                              HUNTER, JR., Robert N., J., dissenting



                [A]: Impossible.

      In support of his contentions, Pachas cited Martin v. North Carolina

Department of Health and Human Services.5 Pachas insisted a “family size” included

those who lived with and relied upon him, therefore making an individual income

level inapplicable to his current situation.

      On 10 August 2015, Gwendolyn Vinson, a State Hearing Officer, affirmed

Pachas’s six-month Medicaid deductible requirement. Pachas appealed the decision

on 13 August 2015. On 27 August 2015, Pachas filed an argument, in support of their

appeal with DHHS, appealing the DSS state hearing decision, and contending DHHS

must compare Pachas’s income against 100% of the official federal poverty level for

his family size. Further, Pachas argued the hearing officer plainly erred in her

interpretation of the applicable federal statute.

      On 1 October 2015, DHHS Assistant Chief Hearing Officer, Nancy

Pappenhagen, affirmed the 10 August 2015 decision.                       Within her decision,

Pappenhagen concluded, as a final decision, Pachas’s Medicaid services required a

$6,642 deductible. On 16 October 2015 Pachas filed a petition for judicial review,

pursuant to N.C. Gen. Stat. § 108A-79(k) and the Administrative Procedure Act, N.C.

Gen. Stat. § 150B-43, et seq. Pachas sought reversal of the 1 October 2015 final




      5   Martin v. N.C. Dep’t of Health & Human Servs., 194 N.C. App. 716, 670 S.E.2d 629 (2009).
                                                -5-
                     PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                             HUNTER, JR., Robert N., J., dissenting



agency decision, which terminated his Medicaid Benefits.                Additionally, Pachas

requested reinstatement of his Medicaid Benefits, effective 1 June 2015, and for

continuation of his benefits without having to meet the deductible. Pachas again

contended DHHS erred by concluding “the Medicaid income limit applicable to [him]

was the limit for a single individual in violation of 42 U.S.C. 1396a(m), under which

the applicable income limit is 100% of the federal poverty line for a ‘family of the size

involved.’ ”

       On 17 November 2015, DHHS filed a response to Pachas’s petition for judicial

review. DHHS contended “the Final Agency Decision of [DHHS] contains adequate

findings of fact and conclusions of law which are in conformity with the applicable

federal and State statutes, rules, regulations, cases, and policies, and are supported

by substantial competent evidence of record.”

       On 6 January 2016, the Mecklenburg County Superior Court heard arguments

from Pachas and DHHS regarding Pachas’s Medicaid benefits and large deductible

requirement. In its 17 March 20166 order, the trial court reversed the final agency

decision. The trial court ordered DHHS “promptly reinstate Medicaid benefits to

[Pachas] effective June 1, 2015 and to continue providing Medicaid to [Pachas] until

determined ineligible under the rules as modified according to this decision.” The



       6  Although entered on 18 March 2016, the parties refer to this order as the 17 March 2016
order. I follow suit.
                                              -6-
                    PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                           HUNTER, JR., Robert N., J., dissenting



trial court found the final agency decision “erroneous as a matter of law[.]”

Specifically, the trial court found:

             2. The North Carolina General Assembly has elected the
             option under the federal Medicaid statute, 42 U.S.C. §
             1396a(m), to provide Medicaid to aged, blind and disabled
             persons with incomes under 100% of the federal poverty
             level.   . . . This category of Medicaid is known as
             categorically needy coverage for the aged, blind and
             disabled (MABD-CN).

             3. The income limit for MABD-CN varies by the number of
             persons considered by the agency to be in the household
             unit because the federal poverty line varies by household
             size.

             ...

             8. The plain language of the controlling federal statutory
             provision, 42 U.S.C. §1396a(m), states that the applicable
             Medicaid income limit for the MADB-CN category must be
             based on a “family of the size involved.” Because the official
             poverty line published annually by the federal government
             varies by family size, the determination of family size
             determines the applicable income limit under the language
             of this statute.

             9. The Federal Medicare and Medicaid agency has
             interpreted the language “a family of the size involved” to
             include “the applicant, the spouse who is living in the same
             household, if any, and the number of individuals who are
             related to the applicant or applicants, who are living in the
             same household and who are dependent on the applicant
             or the applicant’s spouse for at least one-half of their
             financial support.” 42 C.F.R. § 423.772 (2005).




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                       PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                              HUNTER, JR., Robert N., J., dissenting



      DHHS did not appeal this order. Instead, pursuant to the 17 March 2016

order, DHHS reinstated Pachas’s Medicaid benefits, retroactive to 1 June 2015.

      During the above summarized proceedings, Pachas’s medical condition

worsened. A physician diagnosed Pachas with encephalitis and sepsis, rendering 7

Pachas “completely blind, wheelchair bound, and fully dependent on others for all his

daily needs.” Additionally, the physician noted Pachas was confused and restless.

      On 6 May 2016, University Place admitted Pachas as a patient, where he

received 24-hour care. Pachas remained in the facility until his discharge in February

2017. During this time, Pachas’s Medicaid benefits covered his care, with no need to

meet a deductible.

      Following his time at University Place, Pachas received home care through the

Community Alternative Program for Disabled Adults (“CAP/DA”). As described by

Petitioner, CAP/DA is a program which “provides Medicaid services in the home for

persons who would otherwise require care in a nursing home.” Pachas’s CAP/DA

services cost $33,714.89 annually, while his Medicaid reimbursement rate of his

nursing home facility cost $160.23 per day.

      On 14 February 2017, DSS sent Pachas a notice, stating his monthly CAP/DA

deductible would be $1,113, effective 28 February 2017. DSS, again, assessed his




      7   The record does not indicate the physician’s name and medical history with Pachas.
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                         HUNTER, JR., Robert N., J., dissenting



individual income when determining CAP/DA eligibility. On 15 February 2017,

Pachas filed a motion in the cause to enforce the 17 March 2016 order and filed a

petition for a writ of mandamus. In support of the motion and petition, Pachas

contended he “[wa]s . . . imminently threatened with irreparable harm and ha[d] no

adequate remedy at law.” He further asserted:

             12. Because they need to support a family of six, [Pachas]
             and his wife cannot afford to pay for medical care up to the
             amount of [his] monthly deductible . . . . If that occurs,
             [Pachas] will be unable to obtain his medications, his CAP-
             DA in-home care services, and other critically needed
             medical care.

             13. If [Pachas] loses access to CAP-DA services, he will
             likely be forced to leave his family again and enter a
             nursing home, at great expense to the taxpayer, causing
             severe emotional harm to [Pachas] and his family.

             14. . . . [Pachas] has no available administrative remedy to
             enforce th[e] Court’s order.           Exhaustion of the
             administrative remedy that has been offered to him would
             be futile.

Pachas requested, inter alia, the court direct DHHS “to immediately reinstate [his]

Medicaid benefits, including [his] CAP-DA services, effective February 14, 2017 and

continuing without having to first meet a deductible.”

      On 6 March 2017, DHHS filed a motion to dismiss and response to Pachas’s

motion to cause to enforce the trial court’s order and petition for writ of mandamus.

DHHS contended:


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                  PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                        HUNTER, JR., Robert N., J., dissenting



            4. The administrative procedures by which a public
            assistance applicant or recipient may appeal the actions
            and decisions of a county department of social
            services . . . are provided in N.C. Gen. Stat. § 108A-79 and
            Article 4 of the North Carolina Administrative Procedure
            Act.

            5. Under N.C. Gen. Stat. § 108A-79, “A public assistance
            applicant or recipient shall have a right to appeal the
            decision of the county board of social services, county
            department of social services, or the board of county
            commissioners . . . .  These statutory administrative
            appeal procedures include local appeal hearings with the
            county DSS, state level administrative appeal hearings
            with the DHHS Office of Hearings and Appeals, and appeal
            to the Superior Court for judicial review of DHHS final
            agency decisions.

            ...

            7. In this case, the legislature has provided adequate
            administrative remedies for the actions and decision that
            [Pachas] complains of in his Motion in the Cause to Enforce
            Court’s Order and Petition for Writ of Mandamus, and
            [Pachas] has not exhausted the statutory administrative
            remedies that are available to him.

In support of its argument, DHHS stated:

            9. In this case, there can be no question that the actions
            and decisions of the Mecklenburg County DSS in
            evaluating [Pachas]’s CAP/DA Waiver application for
            services involve discretionary rather than ministerial
            duties. The criteria used for evaluating an application for
            CAP/DA Waiver eligibility is not governed by the March 17,
            2016 Order but instead by state and federal statutes,
            regulations, and policies, including 42 U.S.C. § 1396n, the
            North Carolina CAP/DA Waiver, and relevant sections of
            the North Carolina Adult Medicaid Manual.

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                       PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                               HUNTER, JR., Robert N., J., dissenting




                ...

                13. Such an overly expansive application of the March 17,
                2016 Order, as requested by [Pachas], would have the effect
                of entitling [Pachas] to unlimited access to any and all
                Medicaid eligibility and services regardless of the relevant
                state and federal statutes, regulations, and policies . . . .

      On 27 March 2017, the trial court heard arguments from Pachas and DHHS

on Petitioner’s motion to enforce the court’s order and petition for writ of mandamus.

On 17 April 2017, Pachas passed away.8 Four days later, on 21 April 2017, the trial

court dismissed the motion in the cause to enforce court’s order and petition for writ

of mandamus. The trial court concluded:

                2. The [17 March 2016] Order found that the language
                “family of the size involved” contained in 42 U.S.C. §
                1396a(m) must be considered when determining [Pachas]’s
                Medicaid eligibility under the State Plan.

                ...

                6. According to 42 U.S.C. §1396n(c)(3), DHHS is allowed to
                waive the State Plan requirements for income and resource
                rules under 42 U.S.C. § 1396a(m) that the Court considered
                in the March 17, 2016 Order.

                7. DHHS does not consider the “size of the family involved”
                when determining an individual’s deductible under the
                CAP/DA waiver.

                8. Therefore, the Order signed on March 17, 2016 does not
                apply to [Pachas]’s Medicaid eligibility under the CAP/DA


      8   The court substituted Julissa as a party in the action.
                                                 - 11 -
                    PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                           HUNTER, JR., Robert N., J., dissenting



             waiver.

      On appeal, DHHS asserts the federal government authorized DHHS to waive

the income requirements, which includes the “family of the size involved”

requirement, found in 42 U.S.C. 1396a(m) when determining financial eligibility for

CAP/DA coverage. The majority holds the wavier provision relied upon by the State

“involve[s] facts and legal questions that were not ‘actually presented and necessarily

involved’ in the trial court’s order.” Therefore, the majority holds, these issues “could

not have been addressed in the court’s first order . . . .” Thus, as a result, the majority

agrees with the trial court’s order “Petitioner must resort to the administrative

process . . . to appeal the February 14, 2017 decision issued by the Mecklenburg

County DSS.”

      As stated in the majority, “the General Assembly created an administrative

review process for these claims, and courts have jurisdiction to hear these disputes

only when they arrive through a petition for judicial review after exhaustion of this

administrative review.” See N.C. Gen. Stat. §§ 108A-79, 150B-43 (2017). However,

Pachas is correct that it is well settled the “exhaustion requirement may be excused

if the administrative remedy would be futile or inadequate.” Justice for Animals, Inc.

v. Robeson Cty., 164 N.C. App. 366, 372, 595 S.E.2d 773, 777 (2004) (citing Huang v.

N.C. State Univ., 107 N.C. App. 710, 715, 421 S.E.2d 812, 815 (1992)). In holding



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                     PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                            HUNTER, JR., Robert N., J., dissenting



Pachas must resort to the administrative process, the majority does not address the

futility or inadequacy of the administrative remedies in the instant case.

       Given the tragic history of Pachas, I cannot vote to place him, or others

similarly situated, back in the hands of the Medicaid bureaucracy, which has already

denied benefits on the identical question of family size and its relation to required

deductibles for Medicaid coverage. In my view, it is particularly telling that in the

first case, the law of his case was based upon the conclusion that the State had made

an error of law in denying him benefits. To tell a dying indigent that he or his family

must endure another round of “administrative remedies”, when the Medicaid

authorities moved him from one program to another for their own cost benefits, and

when the issue is a matter of law, which had been previously adjudicated, is simply

unjust and wrong. Under the specific facts of this case, I would hold requiring the

dying indigent to exhaust his administrative remedies would be futile.

      N.C. Gen. Stat. § 108A-79 (2017) provides the remedy for individuals who wish

to challenge the termination of their Medicaid coverage. The statute, in pertinent

part, reads:

               A public assistance applicant or recipient shall have a right
               to appeal the decision of the county board of social services,
               county department of social services, or the board of county
               commissioners granting, denying, terminating, or
               modifying assistance, or the failure of the county board of
               social services or county department of social services to act
               within a reasonable time under the rules and regulations

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                   PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                          HUNTER, JR., Robert N., J., dissenting



             of the Social Services Commission or the Department.
             Each applicant or recipient shall be notified in writing of
             his right to appeal upon denial of his application for
             assistance and at the time of any subsequent action on his
             case.

Id. However, in the present appeal, Pachas is not simply challenging the Medicaid

coverage termination, but, rather, the violation of the trial court’s 17 March 2016

order requiring DHHS to apply his family size to income considerations. Specifically,

this is an appeal for enforcement.

       A trial court’s authority encompasses the power to enforce its own judgments.

See Sturgill v. Sturgill, 49 N.C. App. 580, 587, 272 S.E.2d 423, 428-29 (1980); Parker

v. Parker, 13 N.C. App. 616, 618, 186 S.E.2d 607, 608 (1972). Here, Petitioner has

once, already, fully exhausted the administrative review process, thereby complying

with the requirement to do so. The administrative review process produced an order

which supported Pachas’s challenge of initial Medicaid coverage. Now, he seeks

judicial review for the enforcement of such order after it was violated by DHHS and

DSS.

       In concluding the trial court lacks jurisdiction to enforce its 17 March 2016

order, the majority seemingly strips Pachas, and those similarly situated, of an

adequate remedy. Mindful of the necessity of the administrative review process, but

aware of the administrative review process’s inability to provide Pachas with an

adequate remedy, I conclude the trial court does have jurisdiction to decide this issue.

                                          - 14 -
                    PACHAS V. NC DEP’T OF HEALTH & HUM. SERVS.

                          HUNTER, JR., Robert N., J., dissenting



I would, therefore, reverse the trial court’s 21 April 2017 decision and remand with

instructions to re-determine Pachas’s Medicaid eligibility, in compliance with the 17

March 2016 order.




                                          - 15 -
