M.S. is a 73-year old residing in at a long-term care facility. She is a hemiplegic who suffers from obesity, diabetes, arthritis, osteoporosis and COPD. Because she is completely paralyzed on her left side, she had been using a manual one-arm wheelchair. She filed an application to the Division of Medical Assistance and Health Services (“Medicaid”), seeking authorization for a power wheelchair based upon the pain and difficulty she suffered from operating the manual wheelchair. Her application was supported by her occupational therapist and doctor.

Medicaid denied her application because the “items requested are considered part of the per diem rate” paid by Medicaid to the facility. M.S. appealed that decision, requesting a fair hearing before an administrative law judge (“ALJ”).

At the hearing, a doctor testified on behalf of Medicaid. He testified that he had denied M.S.’s request after reviewing her written application; he did not examine her or conduct a field evaluation. He noted that M.S.’s doctor had opined that the power chair would benefit M.S. “primarily because she was a very active patient who liked to participate in all the activities of the facility.” However, the Medicaid doctor determined that, based on the Medicaid per diem rate paid to the facility, the facility should already be providing services to M.S. that would enable her to participate in facility activities. Therefore, the doctor determined that the power wheelchair was not “medically necessary.”

A physical therapist who is the facility administrator testified on behalf of M.S. He had treated M.S. and was familiar with her medical history. He testified that, as a result of her manual one-armed wheelchair, M.S.’s right shoulder was deteriorating and causing pain, and that this condition would worsen with continued use. He testified that the pain affected her mobility, and that the power wheelchair would enable her to participate more fully in facility activities and enhance her independence. Therefore, he opined that the power wheelchair was medically necessary.

At the conclusion of the hearing, the ALJ determined that the power wheelchair was medically necessary, and that M.S.’s application should have been granted.

However, the Medicaid Director reversed the ALJ on the following bases: (1) M.S. failed to demonstrate that the wheelchair was medically necessary; (2) the power wheelchair was not cost-effective; and (3) providing “necessary equipment” (such as a wheelchair), as well as assistance with that equipment (such as attendants to transport a resident) is the responsibility of the nursing facility, and is part of the per diem rate already paid to the facility by Medicaid.

On further appeal to the New Jersey Superior Court, Appellate Division, the Director’s decision was vacated.

The appellate court began by reviewing the regulations governing Medicaid’s duty to cover durable medical equipment (“DME”), such as wheelchairs. While DME that is “routinely used” and essential to furnish the facility’s services to residents is part of the per diem rate, and therefore not covered, exceptions include DME  that is “not routinely used in a nursing facility and which is required due to the medical need of the individual resident.” At the hearing, there had been no evidence that power wheelchairs were “routinely used” or essential to the facility’s services; therefore, the Appellate Division found that they are not part of the per diem rate. As such, the regulations provide that the power chair would be covered if “required due to the medical need” of the resident. Although “medical necessity” is not defined, state and federal regulations require long-term care facilities to include a residential activities program to meet the resident’s physical, mental and psychosocial needs. Moreover, the power chair would prevent further deterioration of M.S.’s shoulder pain and shortness of breath. Therefore, the Appellate Division concluded that the power chair was “medically necessary.”

Medicaid also argued that, because Medicaid is for paying M.S.’s 24-hour care in the facility, it is the facility’s obligation to provide assistance with the wheelchair and attendants to transport M.S. where she desires. The Appellate Division found that the applicable regulations do not explicitly require facility staff to push a resident’s wheelchair, and that such a duty was not established as a matter of fact at the hearing: the ALJ had credited M.S.’s witnesses, not Medicaid’s doctor, and had concluded that “the facility’s staff was not consistently available to wheel [M.S.] to her activity room.”

The Appellate Division concluded that, given the ALJ’s findings, the Medicaid Director’s conclusion that the facility was required to push the wheelchair to her activities was unsupported by the evidence.

However, the Appellate Division remanded the case for further proceedings, and to allow Medicaid to present further evidence regarding the facility’s staffing for pushing the wheelchair on a consistent basis.

During the course of its decision, the Appellate Division also addressed a due process issue: although the Director had stated that the wheelchair should be denied because it was not “cost-effective” pursuant to the regulations, M.S. argued that the Medicaid’s denial notice did not raise that issue, and that she therefore had received inadequate notice of “the reasons for the intended agency action [and] the specific regulations supporting that action,” pursuant to federal regulation. As to this claim, Medicaid’s doctor had testified that M.S. had not received notice of the issue of cost-effectiveness because “the Division is only allowed to put one reason on its denial form.” The Appellate Division responded that,

If such a technical limitation exists, it should be remedied. Advising those seeking DME of all reasons for the Division’s denial will ensure complete notice, and may avoid further litigation by claimants who cannot surmount the Division’s additional reasons.

Nevertheless, because the issue had been raised early in the hearing, and M.S. had not suggested that she would have presented additional evidence if she had received earlier notice, the Appellate Division found that the lack of notice was harmless. The ALJ had made no findings regarding whether the chair was a cost-effective solution to petitioner’s difficulties. The Appellate Division therefore remanded to the ALJ to allow the parties to present further evidence on the issue, and to allow the ALJ to make an appropriate finding.

A copy of M.S. v. DMAHS can be found here – M.S. v. Division of Medical Assistance and Health Services

Congratulations to my colleague Carl G. Archer, Esq. who represented the petitioner, M.S., in this case. Carl achieved a significant victory in the M.S. case which will help many disabled people in New Jersey who depend on Medicaid to pay for necessary durable medical equipment.

For additional information concerning Medicaid applications and appeals, visit: https://vanarellilaw.com/medicaid-applications-medicaid-appeals/