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Merie B. ex rel. Brayden O. v. State, Department of Health and Human Services

Supreme Court of Nebraska

May 22, 2015

MERIE B. ON BEHALF OF BRAYDEN O., APPELLANT,
v.
STATE OF NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES AND VIVIANNNNE M. CHAUMONT, DIRECTOR OF DIVISION OF MEDICAID AND LONG TERM CARE, DEPARTMENT OF HEALTH AND HUMAN SERVICES, APPELLEES

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[Copyrighted Material Omitted]

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Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.

Terrance A. Poppe and Benjamin D. Kramer, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Michael J. Rumbaugh for appellees.

WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J., participating on briefs.

OPINION

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[290 Neb. 920] Wright, J.

I. NATURE OF CASE

Merie B. filed this action on behalf of her daughter, Brayden O., who suffers from Coffin-Lowry Syndrome. Brayden is a minor child, and she had been receiving home and community-based waiver services for approximately 12 years at the time this case began. On November 1, 2012, the Nebraska Department of Health and Human Services (DHHS) reassessed her condition. DHHS determined that she no longer qualified for waiver services and subsequently terminated the services.

Following an appeal hearing, DHHS upheld the discontinuance of services to Brayden. On appeal from DHHS' decision, the Lancaster County District Court affirmed. This case comes to us as an appeal from the judgment entered by the district court.

For the reasons discussed below, we reverse the judgment of the district court and remand the cause with directions.

II. SCOPE OF REVIEW

A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.[1] When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.[2]

III. FACTS

Brayden suffers from Coffin-Lowry Syndrome, which is generally characterized by craniofacial abnormalities, skeletal abnormalities, short stature, and hypotonia (a condition causing low muscle tone and reduced strength). She has also developed [290 Neb. 921] moderate kyphosis (a curving of the spine) and problems with her feet. She lacks pain awareness and suffers from a seizure disorder. Brayden's mother, Merie, is a registered nurse at a neurological and spinal surgery clinic. She described Coffin-Lowry Syndrome as follows:

It's extremely rare. It is an X-linked dominant chromosomal abnormality. [Brayden] was born with [a]genesis [failure to develop during embryonic growth] of her brain. She has less than 10 percent of her corpus callosum, which in essence is the wiring between the two hemispheres [of the brain] that makes the connection.

As a registered nurse, Merie is able to provide service in her home in a way that non-health-care professionals would be unable. Merie has difficulty both working and personally providing care for Brayden without waiver services. At the time of trial, Merie's husband had been stationed in Afghanistan for 1 year and was unable to assist Merie in caring for Brayden.

Brayden's disability affects her in many ways. She has a history of seizures and requires 24-hour supervision. She was taking Phenobarbital and Dystat to control the seizures. Merie stated that if she were not trained as a nurse, Brayden would constantly be in the doctor's office for treatment. Merie ensures that Brayden takes her medication.

Brayden has a high palate, which necessitates that she be monitored for choking

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when she eats. She requires assistance at all times in bathing, dressing, and grooming. She is dependent on others and needs constant supervision in all parts of toileting. There is evidence that she has lost bowel and bladder control. She has extremely limited cognitive ability. ...


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