Appeal
from the Superior Court No. 3AN-13-07629 CI of the State of
Alaska, Third Judicial District, Anchorage, Kevin M. Saxby,
Judge.
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.]
OPINION
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
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 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] 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 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."
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 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.
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
Radebaugh had no opportunity to challenge those assessments
in a fair hearing.
The
Department[15] 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 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]
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 ...