R.E. v. Horizon Nj Health

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0988-22

R.E.,

Petitioner-Appellant,

v.

HORIZON NJ HEALTH,

Respondent-Respondent.

__________________________

Submitted February 25, 2025 – Decided May 7, 2025

Before Judges Sumners and Bergman.

On appeal from the New Jersey Department of Human

Services, Division of Medical Assistance and Health

Services.

Cohen Fineman, LLC, attorneys for appellant (Samuel

B. Fineman, on the brief).

Matthew J. Platkin, Attorney General, attorney for

respondent (Sookie Bae-Park, Assistant Attorney

General, of counsel; Mark D. McNally, Deputy

Attorney General, on the brief).

PER CURIAM

Appellant R.E.1 appeals from a final agency decision of the Division of

Medical Assistance and Health Services (DMAHS) declaring appellant

ineligible for Adult Day Health Services (ADHS) through a reversal of an

Administrative Law Judge's (ALJ) determination. We affirm.

I.

We summarize the pertinent facts and procedural history from the record.

R.E. is diagnosed with "drug-resistant focal epilepsy seizure disorder." He lives

at home with his mother, E.E., who is his primary caregiver. R.E. is a Medicaid

recipient, and respondent Horizon NJ Health is the managed care organization

managing his Medicaid benefits including ADHS services.

Respondent's nurse Laurel Kelly, RN, conducted an assessment of R.E. on

August 30, 2021. Based on the results of her assessment and her review of R.E.'s

medical history, Nurse Kelly determined that R.E. was not eligible for ADHS.

Specifically, Nurse Kelly found that there was no indication that R.E. required

skilled nursing services, rehabilitation services, or assistance with his activities

1

We use initials to protect the private medical information of appellant. R.

1:38-3(a).

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of daily living (ADL).2 Nurse Kelly noted that R.E. has some short-term

memory deficits but that he can follow directions with assistance from his

mother. Nurse Kelly also ascertained that R.E. could ambulate on his own and

does not require any assistance with toileting or personal hygiene. However,

Nurse Kelly acknowledged that R.E. was provided with an Assisted Daily Health

Services Program (ADHSP) in the past through his previous health care

provider, under the same regulatory scheme. By letter of September 20, 2021,

Horizon denied R.E. ADHS benefits. R.E. filed a timely notice of appeal.

The DMAHS transmitted the matter to the Office of Administrative Law.

On March 22, 2022, while the hearing was pending, Horizon nurses Charmaine

Ellington, RN, and Francine Grady, RN, conducted a second assessment on R.E.

Both concluded that R.E. was not eligible for ADHS due to his lack of need for

skilled nursing services or assistance with ADLs.

At the hearing, Nurse Grady testified and admitted that during seizure

periods, R.E. would not be able to perform ADLs. E.E. testified she observes

him daily and provided specific testimony as to how the seizures impacted his

2

ADL "means an activity of daily living, from among the following list of six

separate activities of daily living: (1) Bathing/dressing; (2) Toilet use; (3)

Transfer; (4) Locomotion; (5) Bed mobility; and (6) Eating." N.J.A.C. 10:164-

1.2.

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ability to function and to care for himself. Her testimony provided examples of

his limitations with daily decision-making and how those decisions can be

harmful to him.

Dr. Michael Gelfand, R.E.'s treating neurologist since 2015, testified

concerning how seizures and postictal state 3 symptoms negatively impacted the

petitioner and his ability to perform activities of daily living. Dr. Gelfand

opined that adult day care is medically appropriate for R.E. based upon the

unpredictability of R.E.'s seizures coupled with the need for safety care during

and after a seizure occurs. He stated during the postictal state, R.E. suffers

symptoms that include but are not limited to, drowsiness, confusion, nausea,

hypertension, headaches or migraines and other disorienting symptoms and

emergence from this period is often accompanied by amnesia or other memory

defects. However, Dr. Gelfand testified that he did not "know how long [the

postictal state] lasts for [R.E.]" or "the extent of [R.E.]'s physical limitations

during [the] postictal state." Dr. Gelfand also testified that when R.E. is not in

a postictal state, he does not have any ambulation or physical deficits.

3

The postictal state is a temporary group of symptoms one feel's immediately

after a seizure and before feeling well again. Postictal State, Cleveland Clinic,

https://my.clevelandclinic.org/health/diseases/postictal-state (last visited Apr.

29, 2025).

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The ALJ issued a decision reversing Horizon's denial of ADHS to R.E.

Although the ALJ determined the burden of proof is on R.E. to demonstrate

eligibility for ADHS, he found "Horizon failed to address how the epileptic

seizures impacted [R.E.] and his ability to perform ADL[]s." The ALJ

concluded, that "petitioner has difficulty in daily decision making and requires

cueing/assistance in ADL[]s during a seizure and while in the postictal state"

and that ADHS "are medically necessary and appropriate for [R.E.] based upon

his diagnosis." Horizon filed exceptions.

The Assistant Commissioner issued a Final Agency Decision reversing

the ALJ's "recommended decision." The Assistant Commissioner disagreed

with the ALJ's findings and determined that "there is insufficient evidence to

establish that [R.E.] satisfies the clinical eligibility criteria necessary to qualify

for [ADHS] pursuant to N.J.A.C. 10:164-1.5." She noted that

[i]n order to qualify, the regulations state that the

individual must require limited assistance with a

minimum of two [ADLs] provided by the facility, have

at least one skilled service provided by the facility, a

rehabilitation need, or require supervision and cueing

in at least three ADLs and have problems with

cognitive functioning.

According to the Assistant Commissioner, the assessments conducted by

Horizon "found no indication that [R.E.] required skilled nursing services,

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rehabilitation services or any assistance with his ADLs" and concluded that

R.E.'s "memory deficits and issues with decision making . . . were easily

remedied with written reminders." Moreover, the Assistant Commissioner

observed "[t]here is no indication that [R.E.]'s epilepsy requires continuous

physician or nursing intervention" and there was no evidence presented that R.E.

"actually receives or requires assistance with any of the defined categories of

ADLs (ambulating, eating, bathing, dressing, or performing personal hygiene)

during these periods" under N.J.A.C. 10:164-1.2.

In reaching her conclusion, the Assistant Commissioner observed that

"[t]here is nothing in the record that speaks to how long [R.E.'s postictal]

episodes last or which ADLs are affected, if any." The Assistant Commissioner

also found "the testimony that [R.E.]'s seizures occur at most once per week,

results in a level of frequency that would not reach the threshold of 'limited

assistance' or 'supervision/cueing' support," as those terms are defined at

N.J.A.C. 10:164-1.2, such that he would satisfy the skilled nursing service

requirement necessary to qualify for ADHS. The Assistant Commissioner

therefore reversed the ALJ's initial decision and denied R.E.'s eligibility for

ADHS.

This appeal follows.

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II.

On appeal, R.E. argues that the Assistant Commissioner's determination

reversing the ALJ's decision was arbitrary, capricious, and unreasonable.

Initially, R.E. notes the Assistant Commissioner's decision improperly gave

significant weight to the testimony of two nurse assessors who never conducted

an in-person evaluation of him. Additionally, R.E. contends the Assistant

Commissioner disregarded Nurse Grady’s admission that R.E. would be unable

to perform ADLs during seizure periods. Further, he contends the Assistant

Commissioner's finding that his epilepsy does not require continuous physician

or nursing intervention contradicts the testimony of Dr. Gelfand. Accordingly,

the Commissioner's conclusion that R.E.'s seizures, occurring at most once per

week, fail to meet the threshold for "limited assistance" or "supervision/cueing"

under N.J.A.C. 10:164-1.2 is both unsupported and undefined within the

regulation’s framework. R.E. further contends the Assistant Commissioner also

ignored the ALJ's critical findings, which emphasized that R.E.'s unpredictable

seizures necessitate adult day care for medical appropriateness. He further

asserts, the ALJ noted that R.E. experiences postictal symptoms—including

confusion, nausea, hypertension, and cognitive deficits—requiring supervision

or cueing for ADLs. Given the weight of credible evidence, R.E. contends the

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Assistant Commissioner's reversal of the ALJ's well-reasoned decision was

clearly arbitrary and capricious.

Lastly, R.E. contends under the principle of equitable estoppel, respondent

is barred from redetermining his eligibility for ASDHSP services, given his prior

approval and long-term receipt of these services through a different carrier. R.E.

notes equitable estoppel may be invoked against a governmental entity to

prevent manifest injustice when there is a knowing and intentional

misrepresentation that induces detrimental reliance, citing an unpublished

decision.4 Although conceding that estoppel rarely applies against government

agencies, R.E. argues it is warranted when justice, morality, and fairness demand

it, citing Welsh v. Bd. of Trs., 443 N.J. Super. 367 (App. Div. 2016). R.E.

contends he had already been deemed eligible and had attended the same adult

daycare facility for years before the respondent's reversal. Therefore, R.E.

argues his case warrants the application of equitable estoppel to prevent

arbitrary agency action.

4

We decline to consider RE's argument that rests on an unpublished decision

because "[n]o unpublished opinion shall constitute precedent or be binding upon

any court." R. 1:36-3.

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Respondent counters by asserting that the Assistant Commissioner's

decision was neither arbitrary nor unreasonable, as R.E. failed to prove the

eligibility criteria for ADHSP.

III.

We begin our analysis by acknowledging that the scope of our review of

administrative agency decisions is limited. R.S. v. Div. of Med. Assistance &

Health Servs., 434 N.J. Super. 250, 260–61 (App. Div. 2014) (citing Karins v.

City of Atlantic City, 152 N.J. 532, 540 (1998)). "[A]n appellate court reviews

agency decisions under an arbitrary and capricious standard." Zimmerman v.

Sussex Cnty. Educ. Servs. Comm'n, 237 N.J. 465, 475 (2019); see also Melnyk

v. Bd. of Educ. of the Delsea Reg'l High Sch. Dist., 241 N.J. 31, 40 (2020). "An

agency's determination on the merits 'will be sustained unless there is a clear

showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record.'" Saccone v. Bd. of Trs., Police & Firemen's Ret. Sys.,

219 N.J. 369, 380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret.

Sys., 206 N.J. 14, 27 (2011)). We owe "substantial deference to the agency's

expertise and superior knowledge of a particular field." In re Herrmann, 192

N.J. 19, 28 (2007); see also I.L. v. N.J. Dep't Hum. Res., Div. of Med. Assistance

& Health Servs., 389 N.J. Super. 354, 364 (App. Div. 2006) ("Deference to an

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agency decision is particularly appropriate where interpretation of the [a]gency's

own regulation is in issue."). The party challenging the administrative action

bears the burden of making that showing. Lavezzi v. State, 219 N.J. 163, 171

(2014).

However, an appellate court is "'in no way bound by the agency's

interpretation of a statute or its determination of a strictly legal issue.'" R.S.,

434 N.J. Super. at 261 (quoting Mayflower Sec. Co. v. Bureau of Sec. in Div. of

Consumer Affs. of Dep't of L. & Pub. Safety, 64 N.J. 85, 93 (1973)). "[I]f our

review of the record shows that the agency's finding is clearly mistaken, the

decision is not entitled to judicial deference." A.M. v. Monmouth Cnty. Bd. of

Soc. Servs., 466 N.J. Super. 557, 565 (App. Div. 2021) (citing H.K. v. N.J. Dep't

of Hum. Servs., 184 N.J 367, 386 (2005)). The same is true "where an agency

rejects an ALJ's findings of fact." Ibid. (citing H.K., 184 N.J. at 384).

The doctrine of equitable estoppel is "rarely invoked against a

governmental entity." Welsh v. Bd. of Trs., Police & Firemen's Ret. Sys., 443

N.J. Super. 367, 376 (App. Div. 2016) (quoting Middletown Twp. Policemen's

Benevolent Ass'n Local No. 124 v. Township of Middletown, 162 N.J. 361, 367

(2000)). "Equitable estoppel may be invoked against a governmental entity only

'to prevent manifest injustice.'" Berg v. Christie, 225 N.J. 245, 280 (2016)

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(quoting O'Malley v. Dep't of Energy, 109 N.J. 309, 316 (1987)). The doctrine

of equitable estoppel is limitedly applied to "conduct, either intentionally or

under circumstances that induced reliance." Id. at 279 (quoting Knorr v. Smeal,

178 N.J. 169, 178 (2003)). Such conduct "involves 'a knowing and intentional

misrepresentation.'" Ibid. (quoting O'Malley, 109 N.J. at 317).

In order to be approved for ADHS through Medicaid, an individual must

be in need of:

1. At least limited assistance in a minimum of two

[activities of daily living (ADLs)] and the facility will

provide all of the assistance for the claimed ADL onsite

in the facility;

2. At least one skilled service provided daily on-site in

the facility;

3. Rehabilitation services to attain a particular

treatment goal(s) for a specified time-limited period as

ordered by the individual’s attending physician,

physician assistant, or advanced practice nurse; or

4. Supervision/cueing in at least three ADLs and the

facility will provide all of the supervision/cueing for

the claimed ADLs on-site in the facility; and, as

identified by the assessment instrument prescribed by

the Department, the individual:

i. Exhibits problems with short-term memory

following multitask sequences, and in daily decision

making in new situations.

[N.J.A.C. 10:164-1.5(f).]

Eligibility is determined through an interview conducted by a registered

nurse, typically an employee of a managed care organization such as respondent.

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N.J.A.C. 10:164-1.5(a). The burden is on the applicant to demonstrate

eligibility. N.J.A.C. 10:164-1.5(e)(4).

The record exhibits that R.E. underwent two assessments—on August 30,

2021 and March 22, 2022—neither of which indicated that he required skilled

nursing services or assistance with ADLs. Nurse Kelly acknowledged R.E.'s

memory deficits and decision-making issues but found that they were

manageable with written instructions and did not necessitate constant

supervision or verbal cues. Additionally, Nurse Kelly's testimony and the

August 30, 2021 assessment revealed that R.E.'s need for reminders pertained

more to chores and errands rather than ADLs as defined in N.J.A.C. 10:164-1.2.

Although Dr. Gelfand and E.E. testified that R.E. experiences seizures

approximately once per week, we agree with the Assistant Commissioner's

finding that there was no evidence these seizures necessitated emergency

intervention or continuous physician or nursing care. Dr. Gelfand testified that

R.E. could experience a postictal state following seizures, struggling with

obtaining food, water, and using the bathroom, which would affect ADLs.

However, Dr. Gelfand admitted that he did not know the duration of R.E.'s

postictal state and the extent of his physical limitations impacted ADLs. Indeed,

neither Dr. Gelfand nor E.E. provided testimony regarding the duration of R.E.'s

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postictal episodes, which ADLs were affected, or how ADHS would support

R.E. in performing those ADLs.

We concur with the Assistant Commissioner that R.E. did not satisfy his

burden of proof showing he qualified for ADHS because he failed to present

evidence concerning the duration of his postictal episodes and the specific ADLs

necessary to meet the statutory eligibility requirements for ADHS.

Although no dispute exists that R.E. suffers from epilepsy seizure disorder

and has temporary physical limitations in performing general ADLs, we

conclude the Assistant Commissioner's analysis of his ADHSP eligibility was

based on a plain meaning reading of the statute. We give deference to the

Assistant Commissioner's decision because she engaged in a proper

"interpretation of the [a]gency's own regulation" at issue here. See N.J. Dep't

Hum. Res., Div. of Med. Assistance & Health Servs., 389 N.J. Super. at 364.

The Commissioner did not reject the ALJ's findings but determined his findings

did not satisfy the criteria in order to qualify for ADHSP under N.J.A.C 10:164 -

1.5. See Monmouth Cnty. Bd. of Soc. Servs., at 565 ("if our review of the record

shows that the agency's finding is clearly mistaken, the decision is not entitled

to judicial deference" and the same is true "where an agency rejects an ALJ's

findings of fact"). We conclude the Assistant Commissioner's determinations

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were supported by sufficient evidence in the record and were not arbitrary,

capricious or unreasonable.

In addition, we are unpersuaded by R.E.'s equitable estoppel argument,

because we conclude it is inapplicable in this situation as eligibility

determinations are not permanent and are subject to re-assessments. N.J.A.C.

10:164-1.5(b)(1). R.E.'s failure to cite any authority to support his estoppel

argument is telling considering the plain language of the administrative code

permits a re-assessment. We conclude the Assistant Commissioner's

determination did not result in a manifest injustice and estoppel is not warranted.

To the extent we have not specifically addressed any of R.E.'s remaining

legal arguments we conclude they are of insufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.

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