Jaco v. Dept. of Health, Bureau of Medicaid ( 1999 )


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  • JOH N JA CO,                        )
    )
    )
    Plaintiff-A ppellant,         )
    )                     FILED
    ) Appeal No. 01A01-9806-CH-00324
    vs.                                 )                       March 31, 1999
    ) Davidson C hancery
    )                     Cecil Crowson, Jr.
    DEPARTMENT OF HEALTH,               )                    Appellate Court Clerk
    BUREAU OF TENNCARE                  )
    )
    )
    Defendant-Appellee.           )
    )
    IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    APPEALED FROM THE CHANCERY COURT FOR DAVIDSON COUNTY AT
    NASHVILLE, TENNESSEE.
    THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
    THOMA S F. BLOOM, for Plaintiff-Appellant
    PAUL G. SUMMERS, ATTORNEY GENERAL & REPORTER, and MICHELLE
    HOHNK E JOSS, ASSISTANT A TTORNEY GENERA L, for Defendant-Appellee.
    AFFIRMED AND REMANDED
    DON T. McMURRAY, JUDGE
    CON CUR :
    GODD ARD, P.J.
    FRANK S, J.
    This is an appeal from a chancery court order affirming a final order
    from an a dministrative hearing. A ppellant Joh n Jaco ap peals the ord er denying his
    application for Medicaid reimbursement for inpatient nursing home care after the
    Davidson County Chancery Court concluded that the record contained substantial and
    material evid ence to sup port the D epartmen t of Health 's ("Departm ent") decisio n to
    deny M edicaid reimbu rsemen t.
    The procedural history of this case is quite lengthy because it includes
    both administrative hearings and judicial review of those hearings during a five-year
    period. Appellant was admitted to Parkview Convalescent Unit ("Parkview"), an
    intermediate care facility (ICF), in Dyersburg, Tennessee on March 9, 1992. He
    received a pproval fo r short-term M edicaid reim burseme nt from A pril 14, 1992 to
    February 13, 1993 for nursing home care of a fractured hip. On February 8, 1993,
    appellant file d another p re-admissio n evaluatio n (PAE ), a requirem ent for M edicaid
    payment of nursing home care, for continued Medicaid reimbursement, but the
    Department denied this PAE on March 30, 1993. On April 29, 1993, the Department
    was notified of an appeal by the appellant's brother, Harold Jaco, Jr., on behalf of the
    appella nt.
    On June 15, 1993, Administrative Law Judge (ALJ) Robert T.
    McGowan conducted a hearing and on July 12, 1993 entered an initial order affirming
    the Department's denial of appellant's PAE. Pursuant to Tennessee Code Annotated §
    4-5-317(a), appellant requested reconsideration of the initial order, but the petition for
    reconsideration was denied by the ALJ pursuant to Tennessee Code Annotated § 4-5-
    317(c). The appellant then appealed the initial order. Dr. Kerry Gateley, sitting as
    Designee of the Commissioner of Health ("Designee"), entered a final administrative
    order on N ovembe r 16, 1993 affirming the ALJ 's decision de nying appella nt Med icaid
    reimbursement for inpatient nursing home care.
    2
    Appellant then filed a petition for reconsideration. Harold Jaco, Jr., the
    appellant's brother and his representative at the administrative hearing, stated that he
    was not competent to represent the appellant at that earlier hearing and that he had
    evidence not introduced at the hearing which could have a bearing on the final
    outcome of his brother's case. The Designee stayed his November 16th order and
    remanded the case to the ALJ to consider this new evidence. The appellant retained
    counsel to represent him in the proceeding on remand.
    On remand, the parties agreed to submit the evidence in the form of
    affidavits. On July 22, 1994, the ALJ then entered a second initial order denying
    appellant's request for Medicaid reimbursement of nursing home care. The appellant
    filed a petition for reconsideration, and the petition was denied. The appellant then
    appealed the second initial order. On November 21, 1994, the Designee filed a final
    order affirm ing the den ial of Me dicaid reimb ursemen t.
    On January 18, 1995, appellant filed a petition for judicial review
    pursuant to Tennessee Code Annotated § 4-5-322.1 The trial court entered an order
    affirming the final order of the Department on June 4, 1998.
    Although the appellant presents three issues in his brief for our
    consideratio n, he conso lidates these in to one issue for his argu ment:
    The decision of the administrative law judge, as affirmed by the
    chancellor is arbitrary and capricious and not supported by
    substantial and material evidence, and the chancellor further
    erred by failing to consider the expert evidence submitted by
    petit ione r and in de ferring to ina ppro priate "credibility"
    assessme nts dealing w ith proof by af fidavit.
    We af firm the chanc ery court's o rder in its entirety.
    At the time of the 1993 administrative hearing, the appellant was 48
    1
    Litigation of a p rocedur al issue caused the delay from 1995 to 1998. See Jaco v. Department of
    Health, B ureau o f Medica id, 
    950 S.W.2d 350
     (Tenn. 1997).
    3
    years old a nd had resided at Park view in Dyersbu rg, Ten nessee since M arch 9, 1 992.
    Before h is admittanc e to Parkv iew, he ha d resided at M aplewoo d Health C are in
    Jackson, Tennessee since 1988. According to the record, the appellant was approved
    for Medicaid reimbursement at Parkview from April 14, 1992 to February 13, 1993
    because o f his fracture d hip. He w as granted a pproval fo r short-term M edicaid
    reimburse ment of h is nursing ho me care so that he cou ld learn to self -transfer fro m his
    wheelchair to his bed and from his wheelchair to the toilet without putting weight on
    his right leg. The appellant submitted another PAE for Medicaid reimbursement on
    February 8, 1993, but the Department denied the PAE because the appellant was
    capable of self-transferring. The Department's denial of the February 8th PAE is the
    subject of this action.
    The appellant's medical diagnosis while at Parkview was a fractured
    right hip and seizure disorder. The appellant, who has had this seizure disorder as a
    result of a closed head injury from playing football since the age of nine, experiences
    between two and ten small seizures per week and has approximately nine to twelve
    severe seizures per year. He takes several medications daily in an attempt to control
    his seizu res.
    According to the record, the appellant, who has a twelfth-grade
    education, worked in his father's grocery store and a vocational training center from
    1967-1980. He apparently lived at his parents' home until 1988. He resided at
    Rosew ood Ga rden Bo arding H ome for th ree month s in 1988 b efore bein g admitted to
    Map lewoo d Hea lth Care in Jack son, Te nnesse e and th en to Pa rkview in Ma rch 199 2.
    The appellant argues that he qualifies for Medicaid reimbursement of
    daily inpatient nursing home care because of his seizure disorder. He asserts that
    Joanna Damons, a registered nurse with the Medicaid Medical Review Unit at the
    Bureau of TennCare who reviews PAEs for Medicaid approval of nursing home care,
    4
    testified that she considers (1) the patient's orientation or mental condition, (2) the
    patient's ability to move around on his own, and (3) his ability to perform activities of
    daily living (ADLs) when deciding whether the patient needs inpatient nursing home
    care.
    With respect to his mental condition, the appellant argues that the ALJ
    relied heavily upon the affidavit of Dr. John Gore, the Medical Director of the
    TennCare/Medicaid Program. He asserts that Dr. Gore, who is a pediatrician, was
    "not qualifie d to dispute th e conclusio ns of Do ctor Berryma n, a clinical psych ologist,
    and Doctor Hubbert, a psychiatrist, regarding [his] mental state." The appellant
    maintains th at Dr. Go re is not qua lified to assess his mental c ondition, an d thus, his
    testimony on this subject "is of negligible value." Appellant provided affidavits from
    Dr. Harry Berryman and Dr. Charles Hubbert stating that he needed inpatient nursing
    home care because of his seizures. Furthermore, he contends that the Davidson
    County Chancery Court should have considered Dr. Gore's affidavit and his experts'
    affidavits "de novo, without any deference to how the ALJ (or the Chancellor) may
    [have ] assesse d the the [sic] 'cred ibility' of the docum entary ev idence ."
    Furthermore, the appellant asserts that he requires supervision and
    assistance with his ADLs. Dr. Gore stated that the appellant receives minimal
    assistan ce with his AD Ls, add ing that t he app ellant ba thes, dre sses, an d feed s himse lf.
    Appellant argues, ho wever, that he "wo uld be in real danger of drowning if he w ere
    left unsupervised in the bath," noting that he had experienced a seizure while in the
    whirlpoo l bath. In add ition, he conte nds that he n eeds supe rvision wh en taking h is
    medic ations, e speciall y follow ing a se izure w hen he tends to becom e conf used.
    The appellan t's bro ther, Harold Jaco , Jr., h as pa id fo r his b rother's
    nursing home care, w hich co sts appr oxima tely $21,0 00 per ye ar, since 1988.
    Therefore, the appellant states that he seeks to "shift the financial burden of [his]
    5
    nursing home care from the back of [his] brother to the rightful obligor, the Bureau of
    Med icaid."
    The De partment a rgues that the appellant d oes not req uire daily
    inpatient nursing home care, and therefore, Medicaid reimbursement for his nursing
    home care was properly denied. First, the Department asserts that Dr. Gore is the most
    qualified person to evaluate the appellant's needs. As a board-certified physician and
    the Medical D irector of TennC are/Medicaid Pro gram, Dr. Gore is "an expert on whe re
    medical needs can best be met and what opportunities for care are available." It notes
    that Dr. Gore observ ed the appellant at Parkview , whereas Dr. Be rryman and Dr.
    Hubbert saw the appellant only at their offices for evaluation and testing. Therefore,
    the Departmen t contends that the informa tion used by Drs. Berryman a nd Hubbe rt
    may not be the most reliable because they did not see the appellant in his home
    environment as Dr. Gore did. Furthermore, the Department argues that Drs. Berryman
    and Hubbert did not interview the nurses who care for the appellant, but instead talked
    only with the a ppellant an d his brothe r, Harold Ja co, Jr., who h as an interest in
    maintaining the appellant in the nursing home. The Department also notes that neither
    Dr. Berryman nor Dr. Hubbert reviewed the appellant's medical records.
    In addition, Jo anna D amons tes tified that durin g her on-site visit with
    the appellant, he could communicate his needs and knew what he was do ing. She also
    testified that based on her interviews with four nurses who care for the appellant, the
    appellant "is alert and oriented most of the time." Ms. Damons further testified that
    although the appellant was unable to walk, he can use a wheelchair without assistance,
    and during her on-site visit, appellant self-evacuated from the facility in only 40
    seconds. With respect to appellant's ADLs, she testified that appellant feeds himself,
    uses the bathro om ind epend ently, and require s only set u p for b ath and mouth care.
    Furthermore, he can take his medications with only minor assistance, but does need
    6
    limited supervision in taking his medications following a seizure.
    As to the appellant's seizure disorder, Ms. Damons testified that the
    general method for handling someone who is having a seizure is to turn the person on
    his or her side so that they do not aspirate. Sh e further testified that this procedure
    could be performed by a layperson, and in fact, the appellant's mother had performed
    this function for him when she cared for him at home. Ms. Damons testified that the
    nursing staff at Parkview does nothing for the appellant's seizure disorder which
    would require daily inpatient nursing care. She stated that the facility calls the doctor
    is the appellant has a major seizure and that a layperson could call the doctor. Ms.
    Dammons further testified that boarding homes in Nashville and Jackson care for
    patients who have seizures and that inpatient nursing home care would not prevent the
    appellant's seizures or prevent him from being injured during a seizure.
    While the Department concedes that the appellant needs some
    supervision and monitoring, it maintains that his needs can be met at a lower level of
    care, such as at a residential home for the aged or in a home setting with a home
    health n urse, ins tead of as an in patient a t a nursin g hom e.
    Therefore, the Department requests that the chancery court's order
    upholding the Department's final order be affirmed because there is substantial and
    material evid ence in the r ecord to su pport the D epartmen t's denial of M edicaid
    reimbu rsemen t for the appella nt's nursin g hom e care.
    The Department is the state agency responsible for administering the
    Medicaid program in Tennessee. See Tenn. Code Ann. § 71-5-104. Tennessee Code
    Annotated § 4-5-322(a)(1) states that any person who is aggrieved by a final decision
    in a contested case has the right of judicial review. Judicial review is without a jury
    and is not a de novo review but is limited to the record. Tenn. Code Ann. § 4-5-
    322(g); Humana of Tennessee v. Tennessee Health Facilities Commission, 551
    
    7 S.W.2d 664
    , 667 (Tenn. 1977). However, proof may be heard in the trial court for
    "alleged irregularities in procedure before the agency, not shown in the record." Tenn.
    Code Ann. § 4-5-322(g). The factual issues must be reviewed by the Chancellor upon
    a stand ard of s ubstan tial and m aterial ev idence . Humana of Tennessee, 551 S.W.2d at
    667.
    Nursing home care at an ICF is one service available to individuals who
    meet the requirements for such care under Medicaid. Tenn. Code Ann. § 71-5-
    107(a)(15). To reimburse through Medicaid for ICF services, the Department must
    approve a PAE on behalf of an individual. Tenn. Comp. R. & Regs. ch. 1200-13-1-
    .10(2).
    The requirements for Medicaid reimbursement for care at an ICF after
    admission follow:
    In order to continue receiving Medicaid reimbursement for ICF
    care after admission, an individual must, at all times, meet all of
    the following criteria:
    (a) Either physical or mental condition; and,
    (b) Social disability; and,
    (c) Medical necessity; and
    (d) Need inpatient nursing care daily; and,
    (e) Need care under the direction of a physician.
    Tenn . Com p. R. & Regs. c h. 1200 -13-1-.1 0(4).
    "Inpatient nursing care needed" is defined as "[n]ursing [s]ervices must
    be such th at as a practica l matter they can only be rende red on an inpatient bas is or it
    is the general medical practice that they be rendered only on an inpatient basis." Tenn.
    Comp. R. & Regs. ch. 1200-13 -1-.10(1)(b).
    First, we disa gree with th e appellant's as sertion that de novo review was
    required by the chancery co urt. As we have alrea dy noted, the ch ancery court is
    limited to the record made at the administrative hearing, with the exception of proof of
    8
    procedural irregularities. Therefore, the appellant's assertion regarding de novo
    review is w ithout merit.
    With respect to the appellant's application for Medicaid reimbursement
    of his nursing home care, we note that the record indicates the appellant began filing
    PAEs for Medicaid reimbursement of nursing home services from the time he was
    first admitted to Maplewood Health Care in 1988. From that time until 1992 when he
    fractured his hip, he had filed numerous PAEs requesting Medicaid reimbursement for
    his nurs ing hom e care, a nd all req uests fo r reimb ursem ent had been d enied.
    Howeve r, once appellant fractured h is hip, he received approv al for short-term
    Medica id reimburs ement so th at the nursing home staf f could w ork with h im to
    develop skills necessary for coping with his fractured hip. However, once at Parkview
    for his hip fracture, appellant argued that he was entitled to Medicaid reimbursement
    for his nursing home care because of his seizure disorder. Absolutely nothing in the
    record indicates that the appellant w as admitted to Parkview because of his seizure
    disorder alone or that he w as approved for short-term Medicaid reimbursement
    becau se of h is seizur e disord er.
    Based u pon the rec ord, the app ellant is fully cogn izant of his
    surroundings, can care for his daily personal needs with only minor assistance, and
    can move about in his wheelchair without assistance. Evidence indicates that the
    appellant can take his medications with minimal assistance and that the nurses at
    Parkview do not per form any fu nction for th e appellant d uring a seizu re that a
    layperson cou ld not perfo rm or has n ot perform ed. The ap pellant wa s cared for by his
    mother at home and lived at a boarding home before being admitted to Maplewood
    Health Care in 1988. Furthermore, the record indicates that individuals who
    experience seizures are often cared for in residential facilities other than nursing
    homes.
    9
    We conclud e that there is substantial and material evide nce in the record
    to support th e Departm ent's determin ation that app ellant does n ot qualify for M edicaid
    reimbu rsemen t of inpa tient nur sing ho me car e.
    Therefore, we a ffirm the order of the D avidson Coun ty Chancery Court
    in its entirety. Costs o f this appea l are taxed to th e appellant, a nd this case is
    remanded to the chancery court for the enforcement of its order and collection of
    costs.
    PER CURIUM ORDER
    The fore going op inion, prepa red by Judge Don T . McM urray, late
    member of the Court and now deceased, is now approved and adopted as the opinion
    of the Co urt.
    ______________________________
    Houston M. Goddard, Presiding Judge
    ______________________________
    Herschel P. Franks, Judge
    10
    

Document Info

Docket Number: 01A01-9806-CH-00324

Filed Date: 3/31/1999

Precedential Status: Precedential

Modified Date: 10/30/2014