Merie B. on behalf of Brayden O. v. State of Nebraska Department of Health and Human Services and Vivianne M. Chaumont, director of Division of Medicaid and Long Term Care, Department of Health and Human Services

Summary

The Nebraska Supreme Court reviewed the termination of home and community-based waiver services for Brayden O., a minor with Coffin-Lowry Syndrome. The court held that the Nebraska Department of Health and Human Services was required to apply the nursing-facility level-of-care criteria in 471 NAC 12-000, rather than relying on the child-specific assessment provisions in 480 NAC 5-003.B. The court reversed the district court’s judgment and remanded with directions.

Holdings

1. The nursing-facility level-of-care criteria in 471 Neb. Admin. Code, ch. 12, including the specified assessment categories and required number of limitations, apply to all waiver-service clients, including children. The child-specific provisions in 480 Neb. Admin. Code, ch. 5, § 003.B do not alter or supersede those criteria.
2. DHHS's creation and use of Exhibit 4 was unlawful because it failed to apply the required title 471 criteria and arbitrarily imposed more restrictive eligibility requirements on disabled children.
3. Brayden met the nursing-facility level-of-care requirement because she had limitations in at least three activities of daily living and at least one cognition factor.

Questions Presented

1. Whether DHHS used the legally correct Nebraska Administrative Code criteria to determine Brayden's nursing-facility level of care and eligibility for home and community-based waiver services.
2. Whether DHHS's assessment instrument, Exhibit 4, lawfully and rationally implemented the governing regulations.
3. Whether Brayden met the applicable nursing-facility level-of-care criteria for waiver services.

Disposition

reversed_and_remanded