Merie B. on behalf of Brayden O. v. State
290 Neb. 919
| Neb. | 2015Background
- Brayden O., a minor with Coffin-Lowry Syndrome, had received Nebraska Home and Community‑Based Waiver services since 2001; DHHS reassessed eligibility on Nov. 1, 2012 and terminated services effective Nov. 11, 2012.
- DHHS used an internally developed assessment form (Exhibit 4, based largely on 480 NAC 5-003.B domains) to evaluate disabled children, rather than applying the NF level‑of‑care criteria set out in 471 NAC 12‑000.
- Exhibit 4 required children to meet one of three narrow categories (medical treatments; dependence in 6 of 7 ADLs; or a combined high threshold on other measures), substantially more restrictive than 471 NAC 12‑003.02A.
- Merie B. (Brayden’s mother) appealed the termination administratively and in district court, arguing DHHS used the wrong regulatory criteria and that Brayden met the NF level of care under 471 NAC 12‑000.
- The district court upheld DHHS’s termination, finding DHHS permissibly used 480 NAC 5‑003.B to create Exhibit 4; the Nebraska Supreme Court reversed and remanded, directing reinstatement of services effective Nov. 11, 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which regulation supplies the NF level‑of‑care criteria for waiver eligibility? | 471 NAC 12‑000 contains the NF criteria that must be applied to all clients (children, adults, aged). | 480 NAC 5‑003.B (children‑specific provisions) provides appropriate criteria for children and justifies Exhibit 4. | 471 NAC 12‑000 governs NF level‑of‑care determinations for all clients; 480 NAC 5‑003.B does not supplant those criteria. |
| Was Exhibit 4 a valid assessment instrument under the regulations? | Exhibit 4 is invalid because it omits required categories and imposes arbitrary, more restrictive thresholds. | DHHS used 480 NAC 5‑003.B domains to tailor a child assessment instrument. | Exhibit 4 was created arbitrarily, excluded required assessment categories (cognition, risk/environment/support/transition), and imposed unreasonable burdens on children. |
| Did Brayden meet the NF level of care under 471 NAC 12‑000? | Yes — she was dependent in at least three ADLs and at least one cognition factor (communication), satisfying 471 NAC 12‑003.02A criteria. | DHHS found her medical condition stable and, under Exhibit 4, she failed to meet any category. | Under 471 NAC 12‑000, Brayden met the NF level of care (three+ ADLs and one cognition factor). |
| Remedy / result | Reinstate waiver services. | Termination was proper under DHHS assessment. | Court reversed district court, ordered DHHS to reinstate Brayden’s waiver services effective Nov. 11, 2012. |
Key Cases Cited
- Nebraska Account. & Disclosure Comm. v. Skinner, 288 Neb. 804 (judicial notice and principles on administrative rules)
- Middle Niobrara NRD v. Department of Nat. Resources, 281 Neb. 634 (agency regulations have force of law)
- Hooper v. Freedom Fin. Group, 280 Neb. 111 (appellate review of questions of law independent of lower court)
- Watkins v. Watkins, 285 Neb. 693 (statutory language given plain meaning)
- In re Interest of Nedhal A., 289 Neb. 711 (avoid constructions leading to absurd results)