STATE OF NORTH CAROLINA IN THE OFFICE

ADMINISTRATIVE HEARINGS

COUNTY OF CABARRUS 03 DHR 0262

AARON ATWATER, )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT OF )

HEALTH AND HUMAN SERVICES, )

DIVISION OF MEDICAL ASSISTANCE, )

Respondent. )

This contested case was commenced by the filing of a petition on February 26, 2003. It came on for hearing before the undersigned administrative law judge on May 7, 2003, in Charlotte, North Carolina. The Petitioner was represented by H. Holt Morrison, Jr. Grady L. Balentine, Jr., Assistant Attorney General appeared on behalf of the Respondent.

Based upon the evidence presented by the parties, including both sworn testimony and documentary evidence, the undersigned makes the following:

ISSUE

Whether the Respondent properly decided that the Petitioner does not meet the criteria to receive Medicaid reimbursement for private duty nursing services.

FINDINGS OF FACT

1. The parties received notice of the hearing more than 15 days prior to the May 7, 2003 hearing date and stipulated that notice of the hearing was in all respects proper.

2. The Petitioner is a 24 year old male with a diagnosis of Cerebral Palsy NOS, and he has undergone a gastrostomy.

3. The Respondent is the agency responsible for administering North Carolina's medical assistance (Medicaid) program.

4. The Petitioner is an eligible Medicaid recipient.

5. The Petitioner’s mother cared for him until he reached age 13, at which time he began receiving additional assistance.

6. The Petitioner and his mother moved to North Carolina in 1993, and the Petitioner was enrolled in the Respondent’s Community Alternatives Program for Children. Under this program the Petitioner received 17 hours of nursing services per week. The Petitioner aged out of the Community Alternatives Program for Children at age 19, but continued to receive private duty nursing services as a Medicaid eligible recipient.

7. Prior to January 30, 2003, the Petitioner received 8 hours of private duty nursing care per day. This care was provided on weekdays from 9 am to 5 pm. On weekends the care was generally provided during the day, but the schedule was more flexible to accommodate the mother’s schedule.

8. By letter dated November 25, 2002 the Petitioner was notified that he did not meet the criteria for Medicaid reimbursement for private duty nursing. This decision was upheld on reconsideration review held by the Respondent and reimbursement for private duty nursing services was terminated as of January 30, 2003. The Petitioner appealed this decision to the Office of Administrative Hearings.

9. The Petitioner has problems with congestion; however, he often has a productive cough in which he clears secretions without assistance. (T p. 21) When he does require suctioning it is suctioning of the mouth area and not deep suctioning. Such suctioning does not have to be performed by a licensed nurse. Petitioner’s physician does not recall any instance of deep suctioning, beyond one instance reported to the physician by Petitioner’s mother on August 21, 2002.

10. The Petitioner receives nebulizer treatments for asthma up to 4 times per day. At times he does not tolerate feedings well. He receives CPT, or chest physio-therapy, 4 times per day, and he is on seizure medications, but his physician is trying to wean him off of these medications. (T pp. 21-24) While he suffers up to 6 seizures per day these are not grand mal seizures (T p. 29), and the records reflect that generally no intervention is required. He has been stable; his last hospitalization was eight years ago. (T p. 48)

11. While the Petitioner’s mother expressed concerns about the consistency of care that could be provided by nurse assistants, she acknowledged that the nursing care the Petitioner had received prior to January 30, 2003, also lacked consistency.

12. The Respondent has recipients with conditions similar to the Petitioner’s whose needs are being met in the home by certified nurse assistants, and these services are reimbursed by the Respondent. (T p. 134)

13. In making its decision that Petitioner does not require private duty nursing services the Respondent reviewed nursing notes documenting the care Petitioner received in September through October, 2002. This documentation revealed the Petitioner was not receiving substantial and complex continuous nursing care. (Respondent’s Exhibit 1)

14. During the Reconsideration Review the Respondent considered additional medical records submitted by the Petitioner. (Respondent’s Exhibit 2)

15. While the Petitioner contends the nursing notes do not fully reflect the care he received, the Petitioner’s own physician acknowledges that Petitioner’s needs could be met by certified nurse assistants. (Roycroft Dep. pp. 15 and 23) It is theoretically possible the Petitioner could become cyanotic and apneic, but Petitioner’s physician has no information on occurrence of apnea spells or any response thereto. (Roycroft Dep. pp. 25 and 28) The physician has no information about any actions taken in response to seizures, and admits there have been no reports of recent choking spells. (Roycroft Dep. pp. 34-35) While Petitioner’s feeding tube requires monitoring for residual fluids, his physician has no recollection of the residuals exceeding specified levels and, therefore, requiring intervention. (Roycroft Dep. p. 38)

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings (OAH) and OAH has jurisdiction over the subject matter involved in this contested case.

2. Medicaid reimbursement by the Respondent for private duty nursing services is governed by 10 N.C.A.C. 26B.0122.

3. The Petitioner does not require medically necessary private duty nursing services in that he does not require substantial and complex continuous nursing care by a licensed nurse.

RECOMMENDED DECISION

The Respondent's decision that Petitioner is not eligible for Medicaid reimbursement for private duty nursing services is affirmed.

NOTICE

The Respondent is the agency making the final decision in this contested case. It is required to give each party an opportunity to file exceptions to this decision and to present written arguments to those in the agency who will make the final decision. The agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the Final Decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

This the 18 day of August, 2003.

Sammie Chess, Jr.

Administrative Law Judge