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Radebaugh v. State, Department of Health and Social Services

Supreme Court of Alaska

June 9, 2017


         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.]


          STOWERS, Chief Justice.


         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.


         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.


         "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]


         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 ...

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