Johnson ex rel. Rios v. N.M. Human Servs. Dep't

LISA JOHNSON, Mother and Next Friend of Minor,ENRIQUE RIOS, Appellant-Petitioner, v. NEW MEXICO HUMAN SERVICES DEPARTMENT, Appellee-Respondent.

No. A-1-CA-36993

COURT OF APPEALS OF THE STATE OF NEW MEXICO

January 7, 2021

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

David K. Thomson, District Judge

Disability Rights of New Mexico

Jason C. Gordon

Albuquerque, NM

for Petitioner

John R. Emery, Deputy General Counsel

Constance G. Tatham, Assistant General Counsel

Santa Fe, NM

for Respondent

MEMORANDUM OPINION

MEDINA, Judge.

{1} Petitioner Lisa Johnson appeals the New Mexico Human Services Department's (the Department) partial denial of her son's Mi Via waiver and budget request and the district court's affirmance thereof. Petitioner raises several issues on appeal. For the reasons discussed below, we affirm.

BACKGROUND

The Mi Via Program

{2} Mi Via is New Mexico's self-directed Home and Community-Based Services (HCBS) waiver program.¹ See 8.314.6.7(I) NMAC (3/1/2016);² 8.314.6.7(N) NMAC. Mi Via, which is administered through a partnership between the Department and the New Mexico Department of Health, offers a community-based alternative to institutional care for "eligible recipients who are living with developmental disabilities (DD), or medically fragile (MF) conditions," 8.314.6.9(A) NMAC, and seeks to provide eligible recipients with "greater choice, direction and control over services and supports in a self-directed environment." 8.314.6.15 NMAC.

{3} Although Mi Via provides eligible recipients with a role in selecting goods and services, the waiver excludes goods and services "that a household without a person with a disability would be expected to pay for[.]" 8.314.6.16 NMAC. Non-covered services include "any goods or services that are considered primarily recreational and diversional in nature[.]" 8.314.6.16(G) NMAC. The program will, however, cover "equipment, supplies or fees and memberships, not otherwise provided through [M]i [V]ia, the medicaid state plan, or medicare" if the related goods meet the program's budgetary requirements listed in 8.314.6.17(D) NMAC,³ and "directly relate to the member's qualifying condition or disability." 8.314.6.15(H)(4) NMAC.

{4} In order to be covered under Mi Via, services, supports, and goods must: "(1) directly address the eligible recipient's qualifying condition or disability; (2) meet the eligible recipient's clinical, functional, medical or habilitative needs; (3) be designed and delivered to advance the desired outcomes in the eligible recipient's service and support plan; and (4) support the eligible recipient to remain in the community and reduce the risk of institutionalization." 8.314.6.15(A)(1)-(4) NMAC.

{5} An eligible recipient may request disability-related services, supports, and goods by submitting a proposed service and support plan (SSP) and budget request. See 8.314.6.17 NMAC. A proposed SSP sets out the eligible recipient's request for services and goods, including "the projected amount, the frequency and the duration of the services[,]" as well as existing supports available to the recipient that will complement the services and goods requested from Mi Via. 8.314.6.7(R) NMAC. The Third-Party Assessor (TPA) or the Department's Medical Assistance Division's (MAD) designee is responsible for approving the SSP and authorizing the annual budget. 8.314.6.10(B) NMAC ("The TPA . . . is responsible for . . . approving the SSP and authorizing an eligible recipient's annual budget in accordance with 8.314.6 NMAC and the [M]i [V]ia service standards."). The Department is required to provide written notice of the specific regulations that support its action when it denies a claimant's request for benefits orservices under a Medicaid program. 42 C.F.R. 431.206 (2019); 42 C.F.R. 431.210(c) (2019).

{6} Additionally, as a condition of the HCBS waiver program, the Department—as New Mexico's Medicaid agency—must maintain a hearing system consistent with the federal requirements laid out in 42 C.F.R. § 431.205 (2019). See 42 C.F.R. § 431.200(a) (2019) (explaining that federal grants to states for medical assistance programs under the Social Security Act "requires that a [s]tate [Medicaid] plan provide an opportunity for a fair hearing to any person whose claim for assistance is denied or not acted upon promptly"); NMSA 1978, § 27-3-3 (1991) (providing for opportunity for fair hearing when assistance or services are denied, modified, or terminated under any provision of the Social Security Act); 8.352.2.11 NMAC (requiring that the Department provide the opportunity for a fair hearing as dictated by 42 C.F.R. § 431.220(a) (2019) and Section 27-3-3).

{7} Under the Mi Via program, an applicant may challenge the TPA's initial denial of a requested good or service and budget request by requesting a "fair hearing" before an administrative law judge (ALJ). See 8.314.6.20(A)(4) NMAC (identifying the denial of services as one of the circumstances in which MAD must grant an opportunity for an administrative hearing under 42 C.F.R. § 431.220(a)(1)-(2), Section 27-3-3, and 8.352.2 NMAC).

{8} The Department has its own regulations governing Mi Via administrative hearings. See generally 8.352.2 NMAC. For example, the Department must adhere to the processes described in 8.352.2 NMAC when a fair hearing is requested. See 8.314.6.20(B) NMAC. At the administrative hearing, the burden is on MAD to "prove through the preponderance of the evidence that an adverse action against a claimant is correct." 8.352.2.14(A)(1) NMAC. The ALJ's recommendation may be based only on the record of the HSD administrative hearing, see 8.352.2.17(A) NMAC, and the recommendation "shall specify the reasons for [the ALJ's] conclusions, identif[y] the supporting evidence, reference[] the pertinent federal and state statutes, regulations, and NMAC rules, and respond[] to the arguments of the parties within his or her written report." 8.352.2.17(B)(1) NMAC. The Department's final decision on a SSP and budget request is made by the MAD Director or designee upon review of the administrative hearing record and the ALJ's recommendation. See 8.352.2.17 NMAC.

Enrique's Mi Via Waiver Request and Partial Denial

{9} Petitioner's son, Enrique Rios (Enrique), suffers from Rapid Onset Dystonia Parkinsonism (RODP), a rare genetic disorder. RODP manifests for Enrique as muscle spasms—"forceful, sustained twisting movements and postures that affect his entire body." These muscle spasms can make breathing and swallowing difficult for Enrique, and can leave him "physically and psychologically drain[ed]."

{10} In September 2016 Enrique applied for disability-related services and goods under the Mi Via waiver program. Relevant to this appeal, Enrique's $21,640.88 budgetrequest included $400 to purchase annual movie passes and $850 to purchase Popejoy Hall season tickets for himself and his caregiver. In support of these two requests, Enrique asserted that he uses "the sensory experience [from movies] as a form of relaxation and stimulation" and that movies not only reduce his spasms, but also allow him to safely participate in his community. Similarly, he asserted that live shows at Popejoy Hall provide him safe access to his community, help him relax, and reduce the number of spasms he experiences.

{11} On September 29, 2016, and again on October 11, 2016, Qualis Health—the Department's TPA—asked Petitioner to clarify how movies and Popejoy Hall shows "explicitly address[] a clinical, functional, medical, or habilitative need and how [they] directly relate to [Enrique's] qualifying condition." In both requests for information, the TPA quoted 8.314.6.15(H)(4)(a)-(f) NMAC verbatim and further informed Petitioner that under 8.314.6.16(G) NMAC "[n]on-covered services, include, but are not limited to the following: [A]ny goods or services that are considered primarily recreational or diversional in nature."

{12} Petitioner responded to the TPA's request for additional information by letter in which she asserted, in part:

Popejoy shows provide wonderful, live shows that have beautiful, engaging music. Enrique is always mesmerized by their performances. As he is enjoying the shows, his spasms decrease significantly, which proves to be another excellent alternative to increasing his medications. . . . Popejoy is a great way to get Enrique out in the community. . . . He has been enjoying Popejoy shows for many years and the waiver program has been paying for it.

Petitioner similarly asserted that as Enrique enjoys movies, his spasms decrease, which in turn, increase his independence by allowing him to drive his wheelchair with his feet and to operate the joystick on his communication device.

{13} The TPA denied Enrique's request for movie passes and Popejoy Hall season tickets (collectively, show tickets) explaining that, while a letter from Petitioner had been provided, the request was denied because "[show tickets] would be considered recreational and diversional in nature[,]" and "the documentation doesn't explicitly address the activit[ies] as habilitative, functional, clinical or medical and doesn't directly relate to the member's qualifying condition." With respect to the show tickets request, the TPA's partial decision letter included the following citation:

Non-covered services include, but are not limited to the following:

G. [A]ny goods or services that are considered primarily recreational or diversional in nature. 8.314.6.16 [(G)] NMAC.

Administrative Fair Hearing{14} Petitioner requested an administrative fair hearing, which was held on January 30, 2017. During the fair hearing, the Department argued that it denied...