v. RECEIVED ORDER ON SOC APPEAL
MARY MAYHEW, Commissioner, DHHS, Respondent
Pursuant to Maine Rule of Civil Procedure SOC, Petitioner Alathea Bushnell and
her mother seek review of a March 15,2012 decision ofthe Depmiment of Health and
Human Services, which denied Alathea ce1iain MaineCare nursing benefits.
BACKGROUND
Alathea Buslmell is a fourteen-year-old female who has been receiving in home
nursing services tlu·ough MaineCare. Prior to the decision in question, she had been
receiving private duty nursing (PDN), Level IV benefits, including 2S hours per week of
LPN (licensed practical nurse) coverage. She has a number of diagnoses, including
genetic disease, gastrostomy tube site hernia, autistic disorder, and medically intractable
seizure disorder.
On September 26, 2011, Maxim Health Care, an authorized agent for the
Department of Health and Human Services (the Department), completed a Medical
Eligibility Determination- Kids PDN Assessment for Alathea. The Assessment found
that Alathea requires extensive assistance in activities of daily living (ADLs), including
1 dressing. eating. and toilet use, and has total dependence in personal hygiene and bathing.
It indicated that Alathea has '·uncontrolled seizure disorder," and requires the services of
a registered professional nurse in the home to administer food and medication through
her g-tube and to observe, assess, and manage her seizure disorder.
Based on the Assessment and on Alathea's behalf, Maxim requested prior
authorization 1 for 16 RN (registered nurse) hours and 20 LPN (licensed practical nurse)
hours per week for the period of October 5, 2011, through AprilS, 2012. On October 13,
2011, the Depru1ment issued a "Partial Approval" ofthe services requested. The
Department denied all RN services. It approved 5 LPN hours per week, and approved
22.5 CNA 2 (certified nursing assistant) hours per week. The Department denied the
remaining services based on its finding that Alathea did not have an "unstable medical
condition" as defined by the MaineCare rules. 3
Alathea filed a timely administrative appeal of the Department's decision to deny
the full LPN hours requested. The appeal did not challenge the Department's denial of
RN hours. An administrative hearing took place on December 19, 2011, in front of
hearing officer Tamra Longanecker. The hearing officer found the following facts, in
addition to those contained in the Assessment. On a daily basis, Alathea can have
1 According to the MaineCare Benefits Manual (MCBM), or MaineCare Rules, a person must obtain "prior authorization" or "prior approval" from an assessing agency before obtaining coverage for private duty nursing services. 10-144 C.M.R. ch. 101, ch. II,§ 96.03.
z A certified nursing assistant is primarily concerned with providing "personal care services," which include Activities ofDaily Living (ADLs) and some medication administration. 10-144 C.M.R. ch. 101, ch. II,§ 96.01-4.
3 An "unstable medical condition" exists when a member's condition is "fluctuating in an
irregular way and/or is deteriorating and affects the Member's ability to function independently." 10-144 C.M.R. ch. 101, ch. II,§ 96.01-21.
2 anywhere from 0-150 seizures. and there is a wide variance in the frequency and type of
seizure activity. Alathea has experienced seizures since she was five. The most serious
seizures she has experienced were "grand mal" seizures, which she was having on a daily
basis at the time of the hearing. During grand mal seizures, Alathea has injured herself,
her face has turned blue, and she has foamed at the mouth. She cannot communicate
during the seizures. Alathea must wear a helmet at all times.
Alathea has a vagal nerve stimulator implanted in her chest. During a seizure,
someone can swipe a magnet over her chest, which causes the device to stimulate the
vagus nerve at various strengths and frequencies in order to inten-upt the seizure. Alathea
has also been prescribed six different anti-seizure medications. One of these is Diastat,
which is a strong drug to be administered rectally during seizures lasting longer than five
minutes or involving respiratory compromise. At the time of hearing, Alathea had
required the use of Diastat on tlu·ee occasions.
The hearing officer also considered two doctors' opinions. First, Dr. Takeoka of
the Epilepsy Program at Children's Hospital noted in an October 24, 2011 letter that
Alathea continues to have "daily generalized convulsive seizures," despite extensive
treatment. Dr. Takeoka noted Alathea's dependence on the vagal nerve stimulator and
Diastat for severe seizures, and stated: "I strongly recommend Alathea to be taken care at
home by personnel who are able to administer such emergent interventions." Second, in
notes from October 18,2011, Dr. Dalzell wrote: "I agree given that Alathea's seizure
condition continues to be unstable it is critical for all caregivers and in home suppmi to
have the training required to administer Diastat if needed."
3 The findings indicate that to the extent Alathea is at public school, the school's
registered full-time nurse is located only a few doors down from her classroom and is
consulted on a daily basis regarding Alathea's health care.
The parties agreed at the hearing that a CNA is not trained to administer
medications or assess Alathea's medical condition. The Department suggested that if a
CNA noticed that Alathea was in distress, then that person could immediately call 911.
The Department maintained that Alathea' s condition was "chronic" but did not constitute
an "unstable medical condition" under Maine Care rules of eligibility.
On February 9, 2012, the hearing officer issued a Recommended Decision. Based
on her findings, the hearing officer recommended that the Commissioner find that the
Department erred when it denied all but 5 hours of LPN services in Alathea's home. In
doing so, she cited substantial deference to Alathea's medical providers, and rejected the
Depmiment' s plan of relying on emergency medical treatment when Alathea experienced 0 0
senous seizures.
On March 15,2012, Commissioner Mary Mayhew issued the Department's Final
Decision. The Commissioner adopted the recommended findings of fact, but rejected the
recommended decision. Instead, the Commissioner concluded that the facts did not
support a finding that Alathea had an "unstable medical condition," because:
An unstable medical condition is evidenced by frequent changes in treatment or medication. There is no evidence in this case of frequent communications with Alathea's treating physician, a change in her medical treatment or change in her medication. There was evidence that Alathea's seizure disorder is such that she requires supervision by someone who is knowledgeable of her plan of care. But, given the infrequent use of Diastat (or other medical intervention) when she is having a seizure, there was insufficient evidence that this supervision currently needs to be by a medical professional.
4 Thus, the Commissioner concluded that the Department was correct when it denied
Alathea's request for all bt~t 5 LPN hours per week. This appeal followed.
ELIGIBILITY CRITERIA
The Department of Health and Human Services is empowered to administer
Maine's Medicaid program, MaineCare, and promulgate rules and regulations
establishing conditions of eligibility. 22 M.R.S.A. § 3173. Pursuant to that authority, the
Department has issued the MaineCare Benefits Manual (MCBM), which contains agency
regulations for the administration of Maine Care.
Chapter II, section 67 of the MCBM contains standards for eligibility for on-site
"nursing facility services." 10-144 C.M.R. ch. 101, ch. II,§ 67. Alternatively, section 96
contains standards for receiving "private duty nursing" (PDN) services, which are
services provided by a registered nurse (RN) or licensed practical nurse (LPN) in the
member's residence. !d.§ 96.01-3. Section 96 also provides for "personal care
services," which include residential assistance with Activities of Daily Living (ADLs) by
a ce1iified nursing assistant (CNA), or other similar pers01mel. !d.§ 96.01-4.
A MaineCare member who is eligible for nursing facility services under section
67.02-3 and who is under 21-yeai"s-old, is also eligible for private duty nursing (PDN)
services, Level IV, 4 under section 96. !d. § 96.02-4(D). Under section 67.02-3- and,
thus, also applicable to section 96 -a person is eligible if he or she requires one of the
following services every day:
4 Level IV seems to refer to the level of the applicable cost cap, not the type or extent of services. Level IV members are entitled to $3,133 per month in services, but "can exceed the caps when it is medically necessary .... " !d. § 96, appendix #2.
5 2. nasogastric tube. gastrostomy. or jejunostomy feeding, for a new/recent (within past thirty (30) days) or unstable condition;
6. professional nursing assessment, observation and management of an unstable medical condition (observation must, however, be needed at least once per shift throughout the twenty-four (24) hours); [or]
11. direct assistance from others is required for the safe management of an uncontrolled seizure disorder, (i.e.: grandma!) at least weekly ...
!d. § 67.02-3(A) (emphasis added). In this case, the parties do not dispute that the
petitioner is entitled to receive PDN services based on the requirements above.
Once the threshold inquiry has been made - eligible for PDN or not- section 96
provides little guidance concerning how to determine the type and extent of services;
specifically, whether a qualified member is entitled to receive RN or LPN services, and
the appropriate number of hours for those services. Section 96 instructs that services
ultimately provided must be "reasonable and necessary for meeting the medical needs of
the individual, based upon the medical record, and upon the outcome scores on the MED
form, and as authorized in the plan of care." !d. § 96.04. Eligible members may receive
"as many covered services as are medically necessary," within certain limitations not
applicable here. !d. § 96.03.
Also applicable here, an "unstable medical condition" exists when a member's
condition is "fluctuating in an irregular way and/or is deteriorating and affects the
Member's ability to function independently." !d.§ 96.01-21. Section 96 instructs that a
member with an "unstable medical condition" should receive "medical treatment and
professional nursing observation, assessment and management at least once every 8 hours
.... " !d.
DISCUSSION
6 In its appellate capacity, the Superior Court reviews agency decisions for "abuse
of discretion, error oflaw, or findings not supported by the evidence." Rangeley
Crossroads Coal. v. Land U~e Reg. Comm 'n, 2008 ME 115, ,-r 10, 955 A.2d 223.
In this case, no one disputes that Alathea is eligible for PDN services; the issue is
the extent to which she is qualified. Petitioner argues that the Depmiment committed an
error oflaw when it denied the full28 LPN hours based solely on the analysis of whether
Alathea had an "unstable medical condition" under the MaineCare Rules, and that it
should have considered her "uncontrolled seizure disorder" as well. Additionally, she
argues that even if the court upheld the Department's legal analysis, the conclusion that
Alathea did not have an "unstable medical condition" was unsupported by substantial
evidence in the record.
As to Petitioner's first line of argument, the term "unstable medical condition"
appears only in the definitions section of section 96 of the MCBM. The "definition" is
puzzling because it seems to be part definition, part rule. It is a definition when it states
that an "unstable medical condition" exists when a condition is "fluctuating in an
irregular way and/or is deteriorating and affects the Member's ability to function
independently." 10-144 C.M.R. ch. 101, ch. II,§ 96.01-21. However, it seems to be a
rule when the second sentence states: "The fluctuations are to such a degree that medical
treatment and professional nursing observation, assessment and management at least once
every 8 hours is required." It seems that the Department read this latter part as a rule and
concluded that Alathea was not entitled to more frequent PDN services due to its
conclusion that she did not have an "unstable medical condition."
7 However the Department interpreted the term, there is no indication that
establishing an "unstable medical condition" is the only way within the rules to obtain the
type of care Alathea seeks. That term does not appear anywhere outside the definitions
section to substantively limit eligibility. Rather, the Department should have applied the
more general standard within section 96: "Services provided must be reasonable and
necessary for meeting the medical needs of the individual," id. § 96.04, and eligible
members may receive "as many covered services as are medically necessary," id. §
96.03.
Thus, it was error for the Depmiment to limit its inquiry to whether Alathea had
an "unstable medical condition," and it should have considered more generally what was
reasonable and necessary to manage her condition. That inquiry would almost certainly
involve serious consideration of Alathea's uncontrolled seizure disorder 5 and special
attention to the medical opinions of her doctors.
Alternatively, if the Court were to uphold the Commissioner's legal analysis,
Petitioner argues that Alathea does have an "unstable medical condition." However,
Respondent points to conflicting evidence that the Commissioner could have relied upon
in reaching her conclusion that was apparently in the record but not in the actual
5 Counsel for Petitioner argues that Alathea qualifies for more extensive services because she has an "uncontrolled seizure disorder" as defined in section 67.02-3. However, under that section, a person with "uncontrolled seizure disorder" is eligible for nursing facility services- and, thus, PDN Level IV services pursuant to section 96.02-4(D)- as an initial inquiry. Here, neither party disputes that Alathea is entitled to some degree ofPDN Level IV services. Thus, while Ala thea's uncontrolled seizure disorder would inform what care is reasonable and necessary, it does not in itself ensure any level of services.
8 6 findings. The court may not substitute its judgment for that of the agency simply
because "the evidence could give rise to more than one result." Gulick v. Bd. of Envtl.
Prot.. 452 A.2d 1202, 1209 (Me. 1982). Rather, the court will defer to the Department's
conclusion if it is based on evidence that "a reasonable mind might accept as adequate to
support a conclusion." !d. If it reached that point, the Court would be bound to accept
the Commissioner's legal and factual conclusion that Alathea did not have an "unstable
medical condition." However, this point is unavailing due to the Court's conclusion that
the Commissioner erred as a matter of law.
The entry will be:
The Court VACATES the Commissioner's March 15,
j)~ ?-IJ f zo 11.-- DATE
6 Respondent points to at least two places in the record that suggest Alathea's seizures are decreasing in severity or frequency, and that Diastat has been administered only infrequently. The Department also noted that there was no indication that physician involvement had increased or that medication or treatment had changed significantly. 7 The Court recognizes that the issue is moot as to the eligibility period in question. However, the Law Court has stressed the importance of deciding moot issues when there are sufficient "collateral consequences" or "the issues are capable of repetition but evade review because of their fleeting or determinate nature." Anthem Health Plans ofMaine, Inc. v. Superintendent of Ins., 2011 ME 48, ~ 8, 18 A. 3d 824. The Court invites the parties to file any further requests for relief to the Comi within 30 days.
9 Date Filed __4_-_1_9_-_1_2_ __ CUMBERLAND Docket No. AP- 1 Z-Z6 County
Action 80C APPEAL
ALTHEA BUSHNELL MARY MAYHEW, COMMISSIONER DRS
vs. Plaintiff's Attorney Defendant's Attorney CHAD HANSEN ESQ JANINE RAQUET AAG MAINE EMPLOYEE RIGHTS GROUP 92 EXCHANGE ST 2ND FLOOR PORTLAND ME 04101
ADRIENNE HANSEN ESQ
Date of Entry