Petitioner, a severely impaired young woman, resides at home with her father, her primary caregiver. She requires monitoring 24 hours a day. She cannot eat or speak, and is unable to sit, stand or change positions on her own. She is fed and hydrated through a gastrostomy tube. She experiences frequent seizures, which occur even when she sleeps, for which she requires treatment.
In 2000, petitioner commenced receiving 16 hours a day of private duty nursing (PDN) in her home. In 2016, she was receiving PDN from 3:00 p.m. to 10:00 p.m. and from 11:00 p.m. to 8:00 a.m. Petitioner attended school during the week from 8:00 a.m. to 3:00 p.m. When she was not in school or there was no nurse in her home, she was cared for by her father.
Petitioner’s nursing care is paid by Medicaid. In particular, United Healthcare Community Plan (United), a managed care organization (MCO), pays the nursing agency for the cost of providing nurses to petitioner and United is compensated by Medicaid. As an MCO, United contracted with the State to provide or to oversee providing services to Medicaid beneficiaries in exchange for a fixed, prospective payment from the State for each beneficiary.
In early 2016, United notified petitioner’s father it was reducing petitioner’s PDN services from 112 to 77 hours per week. United’s reason was that petitioner’s father, as her primary caretaker, was required to provide petitioner with at least 8 hours of care every day.
Petitioner repeatedly appealed United’s decision after losing several appeals before finally appealing to an independent utilization review organization (IURO). The IURO issued a written decision recommending that United’s decision to reduce petitioner’s PDN from 112 to 77 hours per week be overturned, because petitioner’s need for 16 hours of PDN per day was medically necessary.
After informing petitioner of IURO’s decision reversing United’s reduction of PDN hours, United sent a letter to the nursing agency that provided private nurses to petitioner advising the nursing agency that 35 of the 112 hours of PDN to which petitioner was entitled every week had to be utilized during school hours, “whether or not [petitioner] attends school.”
Petitioner did not receive written notice of United’s decision to allocate the PDN hours between home and school. Petitioner’s father learned of United’s decision from a telephone call placed to him from one of the nurses at the nursing agency. Thereafter, petitioner’s father sent a letter to Medicaid requesting a Medicaid fair hearing to challenge United’s determination that 35 of 112 hours of PDN she was to receive each week had to be used while she was at school, as well as United’s failure to provide notice to her of its determination.
After the fair hearing was scheduled, the matter was adjourned so the parties could brief the issue of whether United properly notified petitioner that it intended to allocate PDN services between petitioner’s home and school. At the conclusion of oral argument on that issue, the ALJ determined petitioner had not been properly noticed and ordered United to do so. This initial ALJ decision was filed with the Director of the State Medicaid agency for consideration.
The Director reversed the ALJ’s initial decision. In the Director’s view, when United decided that some of petitioner’s PDN services had to be rendered at school, United was not taking any independent action. Rather, United was implementing the IURO’s binding decision. Therefore, the Director reasoned, United was not required to provide petitioner with notice.
Petitioner appealed the Director’s decision to the Appellate Division of the Superior Court of New Jersey. The appeals court reversed. The appeals court found that United was obligated to provide petitioner with notice of its decision to use some of petitioner’s weekly allotment of PDN services while she was in school:
United was not implementing the IURO’s decision. The IURO did not state petitioner was not getting the kind of care she requires while at school or that the PDN hours allotted to her were to be divided between home and school. The statements the IURO made upon which respondents rely to support such argument are taken out of context. The IURO merely restored the number of PDN hours petitioner had been receiving in her home for years. Therefore, United was not advancing the IURO’s decision when United divided PDN services between home and school. United’s decision to allocate PDN services between home and school was a new and adverse benefits determination. Therefore, petitioner was entitled to proper notice before such determination was implemented.
The Director’s decision was reversed and the court remanded the matter to the ALJ to oversee that United provided appropriate notice to petitioner, and to continue the appeal to address petitioner’s substantive challenges to United’s adverse benefits determination.
The case is attached here – N.P. v. Division of Medical Assistance and Health Services
For additional information concerning Medicaid applications and appeals, visit:
For additional information concerning Medicaid and public benefits planning, visit:
Vanarelli & Li, LLC on Social Media