New Jersey appellate court ruled that the state can reduce a Medicaid recipient’s allocated hours of private duty nursing [PDN] because the care he received from his school district and his mother limited the state’s duty to provide services. M.F v. Division of Medical Assistance and Health Services, (N.J.Sup.Ct.App.Div., No. A-1790-11T2, Aug. 21, 2013).

M.F. has serious disabilities that render him non-verbal, non-ambulatory, and require him to be fed through a gastrostomy tube. M.F. received 16 hours per day of private duty nursing services through a Medicaid waiver program (state regulations provide that in order to qualify for the waiver program, the recipient must live with a caregiver who can provide at least 8 hours of hands-on care). In 2010 M.F.’s nursing agency informed him that it would be cutting his services in half because he was receiving services from his school.

M.F. sought a hearing to prevent the reduction in nursing hours. After a trial, an administrative law judge [ALJ] ruled that the state was allowed to reduce M.F.’s care because state regulations stated that “[W]hen payment for [PDN] services is being provided or paid for by another source (that is, insurance), DDS or DMAHS shall supplement payment up to a maximum of [16] hours per day, including services provided or paid for by the other sources” and “[PDN] services shall be limited to a maximum of [16] hours, including services provided or paid for by other sources, in a 24-hour period. . . ” (emphasis added by court). On appeal, M.F. argued that the regulations only allowed the state to reduce his benefits to accommodate services provided by insurance, not by his school, and he further argued that the state’s requirement that his mother provide 8 hours of care did not comply with federal law.

The New Jersey Superior Court, Appellate Division, upheld the ALJ’s decision. The court acknowledged that there is “ambiguity in the regulations as to what other sources are included in the sixteen-hour limitation” but finds that “[t]o conclude that ‘insurance’ is the only definition of ‘source’ throughout the relevant regulations would contravene the intent of the agency evidenced by reading the regulations in pari materia and the rule proposal summary… that explains that all sources are included in the calculation, including PDN services provided by the school district.” The court also found that since M.F.’s mother admitted that she was capable of providing 8 hours of care as required by the regulations, M.F.’s claim that she should not have to provide those services was baseless.

For the full text of this decision, go to: M.F v. Division of Medical Assistance and Health Services

(Case summary provided courtesy of the Academy of Special Needs Planners [ASNP]. Mr. Vanarelli is a founding members of the ASNP.)