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A recent unpublished Appellate Division decision is worthy of attention and praise because it righted a cruel adjudication by an administrative agency and in doing so hopefully ameliorated the approach of that agency to similar future cases. The court reversed a decision of the Division of Medical Assistance and Health Services (the Division), an agency within the Department of Human Services, which denied full-time care to a severely disabled individual who indisputably required that highest level of care. It is not often that one can read a description of a disability and know without any doubt the level of care required. This is such a case.

The decision in D.N. v. Div. of Medical Assistance & Health Services (decided on Oct. 4, 2019) by Judge Jose Fuentes describes graphically and extensively the tragic condition of D.N., who suffered serious injuries in an automobile accident at age 38. In summary, D.N. became a quadriplegic as a result of the accident. He can no longer sit, stand, change positions or move his arms or legs. Thus, he requires a personal care assistant (PCA) to perform all his day-to-day personal activities such as hygienic grooming after biological functions, bathing, dressing, eating, drinking and taking medications. He requires a catheter and regular repositioning when asleep to avoid bedsores and maintain skin integrity that otherwise would likely deteriorate due to his incontinence and immobility, and to prevent autonomic dysreflexia, described as the "nervous system's overreaction to internal and external stimuli" causing racing of his heart, fluctuation of blood pressure, and digestive issues, among others. Without a PCA, D.N. would be "completely immovable during the entire night." D.N.'s testimony poignantly made clear the risk to him if an aide were not always present because he is unable to summon help, such as for example if his catheter becomes blocked, as had occurred, and because he suffers extreme discomfort and pain at night when he must lie too long in one position.

The case was triggered when defendant Amerigroup, a managed care organization, and an agent of the Division, reduced D.N.'s PCA hours from 24 to 15 hours per day. It did so when D.N.'s roommate became ill and moved out of the apartment he shared with D.N., and then when it became clear he would not return and no other roommate could be found. Prior to that, the combined PCA hours allotted to D.N. and his roommate, along with assistance able to be rendered by the roommate himself, provided 24-hour care to D.N.

Two witnesses who testified at the hearing on behalf of defendants explained that Amerigroup had used a rote-like tabulation called a "tool" to determine the number of PCA hours for which D.N. qualified and had relied only on that "tool." As detailed in the opinion, this "tool" required numbers to be plugged in for each category of care such as, for example, for "Ambulation," 210 minutes per week, and "Personal Hygiene and Grooming," 420 minutes per week. In D.N.'s case, these numbers totaled 105 hours/week, far short of full-time PCA care, and was the number for which defendants fought through several administrative levels and at the Appellate Division, even though they admitted that: (a) these "tool" numbers are only "guidelines;" and (b) under Amerigroup's contract with the Division, Amerigroup is "required to provide the services in the member's preferred placement setting" if the long-term service and support costs fall within a certain amount, which these full-time costs did.

The administrative law judge decided that 105 hours for D.N. was "appropriate" and that D.N. was "fortunate to have [had] a roommate for a period of time who shared his aide so that care was around-the-clock, and who also was able to assist [him]." The Division director adopted the ALJ's decision, somehow concluding that any hours over 105 would be simply "for supervision or companionship."

The Appellate Division reversed, commenting on D.N.'s "indisputable medical fragility" and finding the director's decision to deny 24-hour daily PCA services "arbitrary, capricious, and not supported by the evidence." In language that we hope is taken to heart by the Division in future cases, the court said: "[T]he bureaucratic matrix relied on by Amerigroup to determine whether D.N. needs twenty-four hour assistance is untethered to the reality of his physical limitations and the serious potential health hazards he faces on a daily basis. Basic humanity and common sense dictate that a person utterly incapable of movement and connected to medical devices to perform rudimentary biological functions cannot be left alone in an apartment. The testimony of the representatives of Amerigroup seem oblivious to this reality." Further emphasizing the court's disapproval of the agency decision, the court concluded, saying that the denial of 24-hour PCA assistance to D.N. "is irreconcilable with any notion of human decency."

Rarely is an administrative agency taken to task by a reviewing court in such strongly critical language. Also, it is not always true that unpublished opinions are as detailed and carefully crafted as this one. The decision, which should be published, highlights the unfortunate bureaucratic approach of this agency, so inappropriate in a case involving human suffering and the need for compassionate state assistance. May the Office of Administrative Law and the Division take note.