Radebaugh v. State, Dept. of Health & Social Services, Division of Senior & Disabilities Services , 397 P.3d 285 ( 2017 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
SUNNY RADEBAUGH, )
) Supreme Court No. S-15814
Appellant, )
) Superior Court No. 3AN-13-07629 CI
v. )
) OPINION
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) No. 7178 – June 9, 2017
SOCIAL SERVICES, DIVISION OF )
SENIOR & DISABILITIES )
SERVICES, )
)
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Kevin M. Saxby, Judge.
Appearances: Goriune Dudukgian and Carlos Bailey, Alaska
Legal Services Corporation, Anchorage, for Appellant.
Kathryn Vogel, Assistant Attorney General, Anchorage, and
Craig W. Richards, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices. [Fabe, Justice, not participating.]
STOWERS, Chief Justice.
I. INTRODUCTION
Sunny Radebaugh, a Medicaid in-home nursing care benefits recipient, had
those benefits terminated by the Department of Health and Social Services following an
annual assessment. The assessment concluded that Radebaugh’s physical condition had
materially improved to the point where she no longer required the benefits. She
challenged the termination of her benefits at an administrative hearing, and the nurse
who performed the assessment did not testify. Following the hearing, the administrative
law judge determined that the Department erroneously terminated her benefits. The
Department, as final decision maker, reversed the administrative law judge’s
determination and reinstated the decision to terminate Radebaugh’s benefits. Radebaugh
appealed to the superior court, which first determined that the Department had violated
her due process rights but then reversed itself and upheld the Department’s decision.
Radebaugh contests both her inability to cross-examine the nurse who
performed the annual assessment and the Department’s reversal of the administrative law
judge’s determination. We conclude that Radebaugh waived the right to challenge her
inability to cross-examine the nurse who performed the assessment, and we hold that the
agency sufficiently supported its final decision. We therefore affirm the superior court’s
affirmance of the Department’s final decision.
II. FACTS AND PROCEEDINGS
A. Facts
The Department of Health and Social Services, Division of Senior and
Disabilities Services, which operates the Alaska Medicaid program,1 offers Home and
Community-Based Waiver services that provide disabled Alaskans with in-home care
services as an alternative to institutionalization.2 Waiver services are available to adults
1
See AS 47.07.040.
2
7 Alaska Administrative Code (AAC) 130.205 (2010).
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with physical disabilities who require a nursing facility level of care.3 In order to require
a nursing facility level of care, an individual must have either skilled or intermediate
nursing care needs.4
The Department uses a diagnostic tool known as the Consumer Assessment
Tool (CAT) to annually assess individuals’ eligibility for waiver services.5 The CAT is
a federally approved, standardized questionnaire that records an individual’s medical
3
7 AAC 130.205(d) (“For the department to determine whether an applicant
is eligible to receive home and community-based waiver services under this section, the
applicant must be found eligible for one of the following recipient
categories: . . . (4) older adults or adults with physical disabilities; to qualify for this
recipient category the applicant must require, as determined under 7 AAC 130.215, a
level of care provided in a nursing facility and must be . . . 65 years of age or older.”).
4
7 AAC 130.215 (“The department will determine an applicant’s level of
care as follows[:] . . . (4) for the recipient category of older adults or adults with physical
disabilities, the department will determine . . . whether . . . the applicant requires a level
of care provided in a skilled nursing facility; or . . . requires a level of care provided in
an intermediate care facility.”). Radebaugh does not claim to require skilled nursing
services but claims that she requires intermediate nursing services, which are defined
under 7 AAC 140.510(b):
[T]he observation, assessment, and treatment of a recipient
with long-term illness or disability whose condition is
relatively stable and where the emphasis is on maintenance
rather than rehabilitation, or care for a recipient nearing
recovery and discharge whose condition is relatively stable
but who continues to require professional medical or nursing
supervision.
According to 7 AAC 140.510(a), “The department will pay an intermediate
care facility for providing the services described in (b) . . . of this section if those services
are . . . needed to treat a stable condition [and] ordered by and under the direction of a
physician . . . .”
5
7 AAC 130.213(d); 7 AAC 160.900(d)(6) (incorporating the CAT by
reference); AS 47.07.045(b)(1) (requiring annual assessment).
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conditions, functional abilities, cognitive abilities, behavioral problems, nursing needs,
therapies, and treatments.6 The CAT is typically administered by a licensed nurse
employed by the Department. The Department determines, based on the results of the
CAT assessment, whether an individual is approved for or disqualified from receiving
waiver services.7 Once approved, an individual is disqualified from the program if his
or her “condition has materially improved since the previous assessment,”8 meaning that
the individual “no longer has a functional limitation or cognitive impairment that would
result in the need for nursing home placement, and is able to demonstrate the ability to
function in a home setting without the need for waiver services.”9
One way to qualify for a nursing facility level of care is to require extensive
assistance with activities of daily living. The CAT lists five activities of daily living that
are relevant to the level of care determination: eating, bed mobility, toileting, transfers,10
6
7 AAC 160.900(d)(6); 42 U.S.C. § 1396r(b)(3)(A) (2012) (stating
requirements for assessments of nursing facility residents); 42 C.F.R. § 441.353(c)(6)
(2016) (requiring states to create an instrument for “evaluation and reevaluation of
waiver beneficiaries” that is “the same or more stringent” as that used to evaluate nursing
facility residents).
7
7 AAC 130.215(4) ( providing that an applicant’s required level of care is
determined “based on the results of the department’s [CAT assessment] . . . whether . . .
the applicant requires a level of care provided in a skilled nursing facility . . . or . . . a
level of care provided in an intermediate care facility”).
8
AS 47.07.045(b)(3). See 7 AAC 130.219(e) (“The department will
disenroll a recipient [if] . . . the recipient is no longer eligible for services because the
recipient’s reassessment . . . indicates the condition that made the recipient eligible for
services has materially improved since the previous assessment.”)
9
AS 47.07.045(b)(3)(C).
10
According to the CAT transfers occur when a person moves between
(continued...)
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and locomotion. Each activity is scored from 0-4, with 0 representing that the individual
is entirely independent, 1 indicating that the individual requires caregiver supervision
only, 2 indicating that the individual requires limited assistance with the activity,11
3 indicating that the individual requires extensive assistance with the activity,12 and
4 indicating total dependence on the caregiver when completing the activity.13 To
qualify as needing nursing facility level of care based on activities of daily living alone,
an individual would need to score a 3 or 4 on at least three out of the five daily activities.
Another way to qualify for waiver services is to require qualifying therapy three or four
days per week in addition to limited one-person physical assistance for two of the five
activities of daily living.
Sunny Radebaugh was a 70-year-old woman with a number of disabilities
that made it impossible for her to live independently. She had difficulty performing
routine daily tasks such as standing, walking, sitting, and transferring to and from the
sitting or lying position. In January 2005 the Department assessed Radebaugh with the
CAT and found that she qualified for waiver services. Karen Mattson, the nurse who
performed the CAT assessment, determined that Radebaugh was eligible for waiver
services based on Radebaugh’s functional limitations. The 2005 CAT assessment
10
(...continued)
surfaces, including moving to and from bed, chairs, wheelchairs, and a standing position;
moving to and from the toilet is not included as a transfer but rather as toileting.
11
“Limited assistance” is defined by the CAT as receiving physical help or
other nonweight-bearing assistance more than three times, or physical help plus
weight-bearing assistance one to two times over the past seven days.
12
“Extensive assistance” is defined by the CAT as requiring weight-bearing
support or full caregiver performance three or more times over the past seven days.
13
“Total dependence” requires full caregiver performance of the activity for
the past seven days.
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indicated that Radebaugh was totally dependent for her transfers and required extensive
assistance for her bed mobility, locomotion, and toilet use.
The annual reassessments conducted in 2007 through 2012 all found that
Radebaugh’s condition had materially improved and, therefore, she did not qualify for
waiver services. In the 2012 CAT assessment, Mattson indicated that Radebaugh
required no assistance for her bed mobility and only setup assistance for her eating.
Mattson next reported that Radebaugh required limited assistance for her transfers:
Radebaugh stated that she used her walker, and Mattson noted that Radebaugh’s personal
care assistant put “weight on [the] walker while [Radebaugh] independently got herself
out of bed and with cues from [her personal care assistant] unlocked and locked [the]
brakes.” Next, Mattson indicated that Radebaugh required limited assistance with her
locomotion: Radebaugh reported that she used her walker indoors, and Mattson
observed, “[O]nce [Radebaugh] was steady, she took deliberate slow steps to ambulate
to the table . . . with [her personal care assistant] cueing her along the way [i.e.] ‘pick up
your feet[,]’ ‘remember to use the brakes.’ ” The CAT assessment also indicated that
Radebaugh required limited assistance with her toileting, notably assistance balancing
as she transferred to and from the toilet. Finally, the CAT assessment indicated that
Radebaugh did not attend physical therapy with a qualified therapist. The 2012 CAT
assessment indicated that Mattson reviewed her findings with Radebaugh and Ella
Savage, Radebaugh’s personal care assistant.
Based on her observations, Mattson concluded that Radebaugh required
neither skilled nursing care nor intermediate nursing care; Radebaugh required only
“custodial care,” which Mattson defined as “assistance with ‘activities of daily living’
such as bathing, dressing, eating, going to the bathroom, using eye drops, moving around
and getting into and out of bed.”
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Following a CAT assessment, the Department conducts a review of the
assessment. Sam Cornell, RN, reviewed Radebaugh’s CAT assessment and agreed with
Mattson’s conclusions. After the Department concluded that Radebaugh was no longer
eligible for waiver services, that determination was sent for independent review by
Qualis Health, the State’s third-party reviewer. The Qualis Health review sought to
ensure that the narrative information and the clinical diagnoses matched the scoring on
the CAT; the review did not consist of an independent physical evaluation. The CAT
assessment was reviewed by two nurses at Qualis Health; both agreed that Radebaugh
no longer qualified for waiver services.
The Department then notified Radebaugh that her waiver services would
be terminated unless she requested a fair hearing, which she did.
B. Proceedings
An administrative law judge (ALJ) conducted a fair hearing in April 2013.
Radebaugh offered two witnesses: her treating physician, Dr. Wade Erickson, and her
personal care assistant, Ella Savage. Dr. Erickson testified that Radebaugh’s
degenerative disc disease had regressed over time, which negatively impacted her ability
to function, and that she had been in a “slow, steady decline.” He testified that while he
had seen Radebaugh get up out of chairs with assistive devices, having someone to help
her would “facilitate that much easier.” And while Dr. Erickson testified that Radebaugh
“may have difficulty with getting her legs moving early in the morning,” he also testified
that she “moves better once she gets going” and “gets limbered up.” Dr. Erickson
testified that Radebaugh required physical therapy, but he could not say whether that
physical therapy required an actual physical therapist.
On direct examination, Dr. Erickson stated that Radebaugh qualified for
intermediate nursing services. He explained that “she requires supervision for
maintaining her current level of function. I don’t believe anywhere in that statute does
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it say what type of nursing or what type of monitoring there is, and so I think that she
would qualify.” But on cross-examination Dr. Erickson testified that he did not “believe
that [Radebaugh] needs an RN or that type of a license to supervise her per se, but she
does need somebody to assist her with her activities.” He agreed that a personal care
assistant would satisfy his recommendations for Radebaugh.
Ella Savage, Radebaugh’s personal care assistant and certified nursing aide,
testified that she had been working with Radebaugh for about ten years.14 Savage
testified that she helped Radebaugh motivate, did her laundry, vacuumed, helped with
transfers, helped her get to the toilet, helped her do her physical therapy, and either
supported her weight while she walked around the house or reminded her to pick up her
feet as she used her walker. Savage testified that helping Radebaugh with transfers
required her to bear Radebaugh’s weight, although Radebaugh did have “good days
where [Savage] [did not] have to lift her up as much.” But she made clear that she
“certainly [did] have to use weight-bearing to pick [Radebaugh] up. . . . [F]or the most
part [Savage] [did] the lifting.”
Regarding locomotion, Savage testified that she “either walk[s] with
[Radebaugh] [while] supporting her weight, or here lately [they’ve] been using her
walker. [Savage] get[s] her to the walker and [Savage] walk[s] behind her and remind[s]
her to pick up her leg, because she drags her right leg.” Savage estimated that she had
to physically pick up Radebaugh’s leg at least six to ten times per week. Savage stated
that she physically helped Radebaugh with her toileting by both physically bearing her
weight as she got onto the toilet and by assisting her while she used the toilet. Savage
also testified that Radebaugh went to physical therapy in Wasilla three days per week.
14
This appeal concerns only in-home nursing care services through the waiver
program. After these services were terminated, Savage continued to provide personal
care services to Radebaugh through the personal care program.
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The Department offered two witnesses. Sam Cornell, a nurse from the
Department who reviewed the CAT assessment, testified. He stated that he uses the CAT
assessment to determine whether an individual qualifies for waiver services, but he also
testified that he had never met Radebaugh or spoken to her doctor. He noted that by
2012 Radebaugh “had acquired her lift chair[,] and she was using a walker and stand-by
assist for [walking].” He concluded that there was nothing in Radebaugh’s records that
would support the claim that she required intermediate nursing facility care.
Grace Ingrim, a nurse from Qualis Health, did not participate in
Radebaugh’s initial review but wrote an addendum to that review based on additional
documents submitted later, including records of office visits with Dr. Erickson and other
physicians. Ingrim found in the addendum that the records should not affect Qualis’s
determination that Radebaugh did not qualify for waiver services. Ingrim testified that
she typically evaluates all of the information provided to determine whether an
individual requires intermediate nursing level of care. Ingrim testified regarding
Radebaugh’s CAT assessment: “Services that are being rendered have changed, which
have resulted in improved functionality in some of her scoring.” She could not point to
anything specific in Radebaugh’s medical records to support that statement.
Mattson did not testify because she was no longer employed by the
Department and had left Alaska. Radebaugh also did not testify. Numerous medical
records and each of Radebaugh’s CAT assessments since 2005 were part of the
administrative record.
The ALJ reversed the Department’s initial termination decision. He
credited Radebaugh’s witnesses and found that the Department’s evidence was relatively
weak because Mattson did not testify and was not available for cross-examination. The
ALJ also discounted the Department’s reliance on the fact that Mattson’s previous CAT
assessments had declared Radebaugh ineligible for waiver services, noting that
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Radebaugh had no opportunity to challenge those assessments in a fair hearing.
The Department15 rejected the ALJ’s determination and affirmed the
Department’s initial decision to terminate Radebaugh’s waiver services.16 The
Department’s final decision declared that the ALJ “fail[ed] to give proper weight to the
CAT assessment and third-party independent review while giving excessive weight to
the testimony of Ms. Radebaugh’s witnesses.” The Department concluded: (1) the ALJ
failed to account for the eyewitness observations and impressions of the nurse who
completed the CAT assessment; (2) the independent reviews of the Department’s
termination decision considered “more than just the scores from the CAT assessment”;
and (3) Radebaugh did not challenge the CAT’s methodology and the CAT assessment
was therefore entitled to “consideration and weight.”
Radebaugh appealed the final agency determination to the superior court.
The court initially determined that the Department violated Radebaugh’s “fundamental
[due process] right to cross-examine the author of her 2012 CAT [assessment], upon
which [the Department] relied as a basis for its termination decision.” But after the
Department’s motion for rehearing, the superior court reversed its order and held that
Radebaugh’s due process rights were not violated. It noted that neither party was able
15
The Department’s Modification and Adoption of Proposed Decision was
issued by the Executive Director of the Office of Rate Review, pursuant to a delegation
from the Commissioner of Health and Social Services.
16
See AS 44.64.060(e) (“The agency with authority to make a final decision
in the case retains agency discretion in the final disposition of the case and shall . . . do
one or more of the following: . . . (4) in writing, reject, modify, or amend a factual
finding in the proposed decision by specifying the affected finding and identifying the
testimony and other evidence relied on by the agency for the rejection, modification, or
amendment of the finding, and issue a final agency decision.”).
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to compel Mattson to testify at the fair hearing and that the Department was statutorily
authorized to summarily reverse the ALJ. Radebaugh appeals.
III. STANDARD OF REVIEW
“When the superior court is acting as an intermediate court of appeal in an
administrative matter, we independently review the merits of the agency or
administrative board’s decision.”17 “We review an administrative board’s factual
findings ‘to determine whether they are supported by substantial evidence,’ which is
defined as ‘such relevant evidence as a reasonable mind might accept as adequate to
support the Board’s conclusion.’ ”18 “We determine only whether such evidence exists
and do not choose between competing inferences or evaluate the strength of the
evidence. In determining whether evidence is substantial, however, we must take into
account whatever in the record fairly detracts from its weight.”19
IV. DISCUSSION
Radebaugh argues that the Department violated her due process rights in
two ways: (1) by failing to present Mattson for cross-examination at the administrative
hearing and (2) by reversing the ALJ’s credibility determinations without sufficient
explanation. We conclude that Radebaugh waived her right to challenge her inability to
cross-examine Mattson and that the Department adequately supported its final agency
decision to terminate Radebaugh’s waiver services.20
17
Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 630
(Alaska 2011).
18
Id. (quoting Lopez v. Adm’r, Pub. Emps.’ Ret. Sys., 20 P.3d 568, 570
(Alaska 2001)).
19
Id. (quoting Lopez, 20 P.3d at 570.)
20
The Department additionally argues that Radebaugh’s case is moot, but we
(continued...)
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A. Radebaugh Waived Her Right To Challenge Her Inability To Cross-
Examine Mattson At The Administrative Hearing.
Radebaugh argues that her inability to cross-examine Mattson, the nurse
who performed the CAT assessment, violated her right to due process. The Department
responds that Radebaugh waived her right to challenge that process, and we agree.
“[F]ailure to make the appropriate objection during the hearing waives the right to appeal
procedural errors.”21
Radebaugh did not object to the admission of the CAT assessment at the
agency hearing, and she did not object to Mattson’s absence. Rather than raise due
process claims based on her inability to cross-examine Mattson, Radebaugh instead
argued that Mattson’s absence detracted from the relative weight of the Department’s
evidence. In post-hearing briefing, for instance, she claimed that “[n]o nurse who
performed any of Ms. Radebaugh’s assessments testified or was subject to cross-
examination. As a result, the testimony presented by Ms. Radebaugh’s witnesses is more
probative than the CAT[] [assessments].” Only in superior court did Radebaugh argue
that “there was no possible way that [she] could demonstrate that the scores she received
on the CAT were erroneous” because Mattson was not subject to cross-examination and
that this violated due process. Thus, Radebaugh failed to preserve her due process
challenge to her inability to cross-examine Mattson.
But an argument not explicitly raised by an appellant below may
nevertheless be considered on appeal “if the issue is (1) not dependent on any new or
20
(...continued)
do not reach that issue and affirm the Department’s final agency decision on the merits.
21
Will. v. Abood, 53 P.3d 134, 148 (Alaska 2002) (rejecting due process
argument that was not properly preserved during Workers’ Compensation Board
hearing); see also Calvert v. State, Dep’t of Labor & Workforce Dev., Emp’t Sec. Div.,
251 P.3d 990, 1006 (Alaska 2011).
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controverted facts; (2) closely related to the appellant’s trial court arguments; and (3)
could have been gleaned from the pleadings.”22
The first prong is clearly satisfied: the issue is not dependent on new or
controverted facts because both parties agree that Mattson was not available for cross-
examination at the administrative hearing. But Radebaugh does not satisfy the second
prong. She argues that her due process claim is closely related to her hearing argument
that her inability to cross-examine Mattson at the administrative hearing should
negatively impact the weight assigned to the CAT assessment. Those two arguments,
however, are not closely related. Rather than arguing that she had been disadvantaged
by her inability to cross-examine Mattson, Radebaugh sought to capitalize on Mattson’s
absence by arguing that her witnesses’ testimony should be given more weight because
Mattson did not testify. Thus Radebaugh seeks to have it both ways: she sought to use
Mattson’s absence to her advantage at the administrative hearing but now claims that
Mattson’s failure to testify violated her due process rights. Those two arguments are
opposed, rather than related, to one another, and Radebaugh fails to satisfy the second
prong of the test.
Radebaugh also fails to satisfy the third prong. It is unclear how
Radebaugh’s argument could be gleaned from the pleadings after she failed to raise it in
any previous proceedings. Radebaugh therefore fails to satisfy the conditions that would
allow us to consider her argument despite failing to raise it below.
An argument not sufficiently raised may also be considered “if failure to
address the issue would propagate plain error.”23 “Plain error exists if it appears that an
22
Erkins v. Alaska Tr., LLC, 265 P.3d 292, 298 n.15 (Alaska 2011) (quoting
Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 115 (Alaska 1990)).
23
Id. (quoting Sea Lion Corp., 787 P.2d at 115).
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obvious mistake ‘has been made which creates a high likelihood that injustice has
resulted.’ ”24 But we conclude that the failure to address Radebaugh’s argument was not
plain error. Radebaugh had every opportunity to challenge her inability to cross-examine
Mattson, but she chose instead to raise the issue as an argument going to the weight of
the evidence. We decline to conclude that failing to address the argument amounts to an
obvious mistake resulting in a high likelihood of injustice. We hold that Radebaugh
waived her right to challenge her inability to cross-examine Mattson.
B. Substantial Evidence Supported The Department’s Final Agency
Decision.
Radebaugh contends that the Department’s final agency decision violated
her due process right to a fair hearing because it reversed the ALJ’s factual findings.25
Her argument can be separated into two parts: (1) the Department’s reversal of the
ALJ’s factual determinations is subject to heightened scrutiny and (2) the Department
failed to provide adequate support for its decision to reject the ALJ’s determination.
As a preliminary matter, we observe that the Department, as final decision
maker, has the authority to overrule the ALJ’s factual findings.26
24
Sea Lion Corp., 787 P.2d at 115 (quoting Miller v. Sears, 636 P.2d 1183,
1189 (Alaska 1981)).
25
Radebaugh frames her argument in terms of due process, but the connection
she draws between due process and the substantial evidence test is not clear. She appears
to argue that the Department’s alleged failure to satisfy the substantial evidence test
amounts to a due process violation.
26
AS 44.64.060(e) authorizes the Department to reject the ALJ’s factual
findings:
The agency with authority to make a final decision in the case
retains agency discretion in the final disposition of the case
and shall . . . do one or more of the following:
(continued...)
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1. The substantial evidence test and heightened scrutiny
When reviewing final agency decisions, we review questions of fact under
the substantial evidence test.27 “Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’ ”28 “On appeal we
do not re-weigh the evidence or choose between competing inferences, but we do
analyze the record in its entirety to ensure that the ALJ’s factual findings are supported
by substantial evidence.”29 In Shea v. State we explained that the substantial evidence
test is highly deferential:
the test “precludes affirmance of an agency finding in the
extreme case where the evidence that detracts from the
finding is dramatically disproportionate to the evidence that
supports the finding, e.g., a finding based on the testimony of
one obviously biased witness that is contradicted by the
26
(...continued)
. . . .
(4) in writing, reject, modify, or amend a factual
finding in the proposed decision by specifying the affected
finding and identifying the testimony and other evidence
relied on by the agency for the rejection, modification, or
amendment of the finding, and issue a final agency
decision . . . .
27
May v. State, Commercial Fisheries Entry Comm’n, 175 P.3d 1211, 1216
(Alaska 2007).
28
Handley v. State, Dep’t of Revenue, 838 P.2d 1231, 1233 (Alaska 1992)
(citing Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)).
29
Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 634
(Alaska 2011).
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testimony of multiple unbiased witnesses or powerful
documentary or circumstantial evidence.”[30]
The United States Supreme Court has explained that while a court reviewing a record for
substantial evidence may not “displace the Board’s choice between two fairly conflicting
views,” “a reviewing court is not barred from setting aside a Board decision when it
cannot conscientiously find that the evidence supporting that decision is substantial,
when viewed in the light that the record in its entirety furnishes, including the body of
evidence opposed to the Board’s view.”31 We agree with this principle. Thus, we review
the entire record “to ensure that the evidence detracting from the agency’s decision is not
dramatically disproportionate to the evidence supporting it such that we cannot
‘conscientiously’ find the evidence supporting the decision to be ‘substantial.’ ”32
As an additional layer to the substantial evidence test, Radebaugh contends
that when an administrative agency reverses the factual findings of an ALJ, we must
apply a heightened level of scrutiny to the agency’s final decision. She points to
Universal Camera v. National Labor Relations Board, when the Supreme Court held that
a reviewing court should consider an examiner’s factual findings, even where that
examiner’s decision was ultimately reversed by the agency.33 The Court determined that
although the agency retained the authority to render a final agency decision, the
30
Id. at 634 n.40 (quoting RICHARD PIERCE, ADMINISTRATIVE LAW TREATISE
979–80 (Wolters Kluwer Law & Bus., 5th ed. 2010)).
31
Id. (quoting Universal Camera Corp. v. Nat’l Labor Relations Bd., 340
U.S. 474, 488 (1951)).
32
Id. (emphasis in original).
33
340 U.S. at 497.
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determinations of examiners who made factual determinations had increased
importance.34
The Court in Universal Camera was clear that it was not setting out a new
standard of review: the substantial evidence standard normally applied in administrative
agency appeals “is not modified in any way when the Board and its examiner disagree.”35
But as a result of Universal Camera, “[e]ven though technically the [substantial
evidence] standard of review remains in place, the agency can expect much more
scrutiny of its factfinding when it disagrees with the administrative judge’s credibility
determination.”36 As such, “[i]f the administrative review authority disagrees with the
administrative judge’s credibility finding, the administrative judge’s credibility judgment
will likely be given special weight. . . . An administrative review authority which
disagrees with such findings will face a heightened scrutiny.”37 “When the agency
disagrees with the administrative judge, the weight given the administrative judge’s
decision will depend on the importance of credibility.”38
Not only must substantial evidence support an agency decision, but the
agency should also justify its results. According to Professor Koch, “[a] court does not
sustain an agency decision if it finds the decision is correct but not adequately justified;
rather the court remands so that the agency may either correct the reasoning or change
34
Id. at 494-95.
35
Id. at 496.
36
2 CHARLES H. KOCH, JR., ADMINISTRATIVE LAW AND PRACTICE § 5:64, at
256 (3d ed. 2010).
37
Id. at 255.
38
Id.
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the results.”39 A reviewing court “cannot provide the explanation itself,” and “will not
accept post-hoc rationalization in lieu of adequate explanation at the time the decision
was made.”40 But at the same time, a reviewing court should not upset an agency
decision “if the agency’s path may reasonably be discerned.”41 When the agency’s
justification is adequate, and its path is at least reasonably clear, then the reviewing court
will sustain the agency’s decision.42
In Radebaugh’s case, we conclude that the well-established substantial
evidence test is the correct test. The court reviewing an agency finding of fact will
review the entire record to ascertain whether there is substantial evidence to support the
agency’s findings. Where an agency’s final decision rejects or reverses an underlying
factual finding which was based on the fact-finder’s credibility determination, the
reviewing court should apply heightened scrutiny to the agency’s final factfinding. But
the reviewing court does not re-weigh the evidence — its role under the substantial
evidence test is merely to ascertain whether there is substantial evidence to support the
agency’s decision.
2. Substantial evidence supported the Department’s final agency
decision.
Having reviewed the entire record we conclude that there was substantial
evidence to support the Department’s final decision. First, the 2012 CAT assessment
concluded that Radebaugh’s condition had improved since the initial CAT assessment
39
3 id. § 10:40, at 487.
40
Id. at 488-89.
41
Id. at 488 (quoting Bowman Transp., Inc. v. Arkansas Best Freight Sys.,
Inc., 419 U.S. 218, 286 (1974)).
42
Id.
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from 2005. Mattson determined that Radebaugh needed only “limited assistance” with
transfers, locomotion, and toileting, and no assistance with bed mobility. Mattson
substantiated her conclusions both with her personal observations and Radebaugh’s own
statements. For example, when asked about her transfers, Radebaugh stated “I use my
walker.” And Mattson observed Savage put weight on Radebaugh’s walker while
Radebaugh “independently got herself out of bed.” There is no evidence that Radebaugh
or Savage disputed Mattson’s observations at the time Mattson recorded them, and the
CAT assessment indicates Mattson reviewed her findings with Radebaugh and Savage.
Moreover, Radebaugh did not refute any of the statements she made to Mattson during
the course of performing the CAT assessment. Based on Radebaugh’s statements and
Mattson’s observations, Mattson concluded that Radebaugh did not meet nursing facility
level of care and instead required non-skilled custodial care.
Second, a review of the CAT assessment by Department nurse Sam Cornell
reached the same conclusion: Radebaugh did not qualify for waiver services. Cornell
noted that Radebaugh “receives custodial care for the completion of Activities of Daily
[L]iving.” He continued,“Transfer assistance provided is noted to be the assistant
stabilizing the wheeled walker used by client for support during the transfer, and
ambulates with the walker and supervision and cueing by the assistant.” Based on those
observations Cornell concluded, “In the 2012 assessment [Radebaugh] demonstrates
improved self performance of the Activities of Daily Living which affect [w]aiver
eligibility; she receives only limited levels of assistance. This level of assistance does
not rise to the level required to demonstrate need for nursing home placement . . . .”
Cornell testified consistent with his report at the administrative hearing.
Third, an independent review of the CAT assessment by Qualis Health
confirmed that the scoring was consistent with the narrative information and the clinical
diagnoses. At Radebaugh’s administrative hearing Grace Ingrim from Qualis Health
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testified that she reviewed a letter Dr. Erickson sent after Radebaugh requested a fair
hearing and that another Qualis Health reviewer conducted a review of Radebaugh’s
case. Ingrim concluded that while Radebaugh’s clinical status had not changed, her
treatment plan had changed and was consistent with the CAT assessment results.
Fourth, the CAT assessments from 2007 through 2011 documented that
Radebaugh was functioning better than in 2005. For example, in 2007 the CAT
assessment indicated that Radebaugh needed limited assistance with transfers and
locomotion but needed no assistance in bed mobility and toileting. In 2008 the CAT
assessment reported that Radebaugh was independent in bed and required only limited
support in toileting. From 2009-2011 the CAT assessments indicated that Radebaugh
needed only limited assistance with activities of daily living.
Radebaugh’s witnesses did present evidence that detracts somewhat from
the CAT assessment’s conclusion. Savage testified that she routinely provided weight-
bearing assistance to Radebaugh during transfers, even on her good days when
Radebaugh did not require as much support. As to toileting, Savage testified that she
provided even greater weight bearing assistance, helping Radebaugh get on and off the
toilet several times each day. Regarding locomotion, Savage testified that she sometimes
supported Radebaugh’s weight but at other times only provided cues to Radebaugh as
she used her walker. But Savage did not testify that Radebaugh required extensive
assistance with her eating or bed mobility, two of the five categories of activities of daily
living. And importantly, Savage did not testify that the observations Mattson recorded
in the CAT assessment were false or misleading. Based on Savage’s testimony, it was
reasonable to find that Radebaugh required no assistance for two of the five activities of
daily living (bed mobility and eating), required extensive assistance for two of the five
activities (transfers and toileting), and required only limited assistance for one of the
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activities (locomotion). Those results would not be sufficient to qualify Radebaugh for
waiver services.
Savage also testified that Radebaugh went to physical therapy three days
a week which, if true, would likely make Radebaugh eligible for intermediate nursing
services even if combined with the results of the CAT assessment.43 But the CAT
assessment indicated that Radebaugh did not attend physical therapy, and Dr. Erickson,
Radebaugh’s treating physician, testified that while Radebaugh did need physical
therapy, he could not say whether Radebaugh needed a physical therapist.
Dr. Erickson was also fairly equivocal when discussing Radebaugh’s
mobility. He testified that Radebaugh could get up on her own with the use of assistive
devices and that, while Radebaugh “may have difficulty with getting her legs moving
early in the morning,” she “moves better once she gets going” and “gets limbered up and
whatnot.” This was true despite the fact that Radebaugh’s degenerative disc disease had
regressed over time, which negatively impacted her ability to function and put her on “a
slow, steady decline.” He later stated that Radebaugh did not need more care than what
a personal care assistant could provide.
The ALJ determined that Radebaugh’s witnesses were credible, so we give
their testimony special weight on review. And we do not ignore the fact that the ALJ
found that Radebaugh required “extensive assistance” in the daily activities of transfers,
locomotion, and toileting. But when evaluating the totality of the evidence, we conclude
that there was substantial evidence in the record to support the Department’s final
43
Under the CAT, an individual “appears to be medically eligible for [nursing
facility] level of care” if he or she attends therapy three to four days per week and has
some combination of limited or extensive assistance and a one-person physical assist for
at least two activities of daily living. Radebaugh’s 2012 CAT assessment indicated that
she required limited assistance with a one-person physical assist for transfers,
locomotion, and toileting.
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decision. This is not a case where “the evidence that detracts from the finding is
dramatically disproportionate to the evidence that supports the finding.”44 We hold that
the totality of the evidence in the record provides a sufficient basis to support the
Department’s final decision.
3. The Department adequately supported its final decision.
Radebaugh finally argues that the Department failed to adequately explain
its decision, and the Department therefore failed to satisfy the heightened scrutiny
applied to its decision. Radebaugh contends that the Department inadequately explained
“why [it] was rejecting the eyewitness testimony of Ms. Radebaugh’s treating physician
and primary caregiver.”
The Department’s final agency determination stated that the ALJ’s
proposed decision “is revised to reflect the opposite result. More specifically, the
evidence in this case demonstrates that Ms. Radebaugh’s condition has materially
improved and as a result, the [Department’s] decision terminating her [w]aiver services
is AFFIRMED.” The decision concluded that the ALJ failed to give proper weight to the
CAT assessment while giving excessive weight to Radebaugh’s witnesses. After
reviewing the evidence, the decision found that the Department had properly terminated
Radebaugh’s waiver services.
The decision pointed to several key pieces of evidence that favored the
Department. First, multiple nurses reviewed the CAT assessment, and all of those
reviews supported the decision to terminate Radebaugh’s waiver services. Second, the
decision directly responded to the ALJ’s opinion by noting that the third-party review
considered not just the CAT but also other documents and so deserved evidentiary
44
Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 634
n.40 (Alaska 2011) (quoting RICHARD PIERCE, ADMINISTRATIVE LAW TREATISE 979–80
(Wolters Kluwer Law & Bus., 5th ed. 2010)).
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weight. Third, the decision noted that the ALJ failed to account for Matton’s eyewitness
observations of Radebaugh, as expressed in her notes in the CAT. Those explanations
are sufficient to satisfy the requirement as described by Professor Koch that “the
agency’s path [must] reasonably be discerned.”45 We conclude that the Department
addressed the material and contested pieces of evidence including the CAT assessment,
the witnesses supporting the CAT assessment, Radebaugh’s witnesses, and the weight
applied to each piece of evidence. Because the Department provided a sufficient
explanation of its thought process in reversing the ALJ’s credibility determinations, and
because the Department’s decision was supported by substantial evidence, we uphold its
decision.
V. CONCLUSION
We hold that Radebaugh waived her right to challenge her inability to
cross-examine Mattson and that the Department did not violate Radebaugh’s due process
rights when it issued its final decision. We also hold that the Department’s decision is
supported by substantial evidence. We therefore AFFIRM the superior court’s
affirmance of the Department’s final agency decision.
45
3 KOCH, supra note 36, § 10:40, at 488.
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