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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Radebaugh v. State, Dept. of Health & Social Services, Division of Senior & Disabilities Services (6/9/2017) sp-7178

Radebaugh v. State, Dept. of Health & Social Services, Division of Senior & Disabilities Services (6/9/2017) sp-7178

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                       

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                         

           corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                      



SUNNY  RADEBAUGH,                                               )  

                                                                )          Supreme  Court  No.  S-15814  

                                Appellant,                      )  

                                                                                                                                           

                                                                )          Superior Court No. 3AN-13-07629 CI  

           v.                                                   )  

                                                                                               

                                                                )         O P I N I O N  

                     

STATE OF ALASKA,                                                )  

                                                    

DEPARTMENT OF HEALTH &                                                                                    

                                                                )         No. 7178 - June 9, 2017  

                                                              

SOCIAL SERVICES, DIVISION OF                                    )  

                     

SENIOR & DISABILITIES                                           )  

SERVICES,                                                       )  

                                                                )  

                                Appellee.                       )  

                                                                

_______________________________ )  



                                                                                                             

                     Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                              

                     Judicial District, Anchorage, Kevin M. Saxby, Judge.  



                                                                                                           

                     Appearances: Goriune Dudukgian and Carlos Bailey, Alaska  

                                                                                                                       

                     Legal   Services  Corporation,  Anchorage,  for  Appellant.  

                                                                                                                

                     Kathryn Vogel, Assistant Attorney General, Anchorage, and  

                                                                                                                       

                     Craig W. Richards, Attorney General, Juneau, for Appellee.  



                                                                                                               

                     Before:         Stowers,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                               

                     Bolger, Justices. [Fabe, Justice, not participating.]  



                                                     

                     STOWERS, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                                     

                     Sunny Radebaugh, a Medicaid in-home nursing care benefits recipient, had  



                                                                                                                                       

those benefits terminated by the Department of Health and Social Services following an  


----------------------- Page 2-----------------------

 annual assessment. The assessment concluded that Radebaugh's physical condition had                                                                                                                                                                                                                                                                                            



 materially   improved   to   the   point   where   she   no   longer   required   the   benefits.    She  



 challenged the termination of her benefits at an administrative hearing, and the nurse                                                                                                                                                                                                                                                                               



 who performed the assessment did not testify. Following the hearing, the administrative                                                                                                                                                                                                                                         



 law judge determined that the Department erroneously terminated her benefits.                                                                                                                                                                                                                                                                                            The  



 Department,    as    final    decision    maker,    reversed    the    administrative    law    judge's  



 determination andreinstated                                                                                                  thedecision                                           to terminateRadebaugh's                                                                                          benefits. Radebaugh    



 appealed to the superior court, which first determined that the Department had violated                                                                                                                                                                                                                                                                    



 her due process rights but then reversed itself and upheld the Department's decision.                                                                                                                                                                                                                                                                                                     



                                                            Radebaugh contests both her inability to cross-examine the nurse who                                                                                                                                                                                                                                           



 performedtheannual                                                                            assessment and theDepartment's reversal oftheadministrativelaw                                                                                                                                                                                                                    



judge's determination.                                                                                 We conclude that Radebaugh waived the right to challenge her                                                                                                                                                                                                              



 inability to cross-examine the nurse who performed the assessment, and we hold that the                                                                                                                                                                                                                                                                                          



 agency sufficiently supported its final decision. We therefore affirm the superior court's                                                                                                                                                                                                                                                                      



 affirmance of the Department's final decision.                                                                                                                                                                 



 II.                           FACTS AND PROCEEDINGS                                            



                              A.                            Facts  



                                                            The Department of Health and Social Services, Division of Senior and                                                                                                                                                                                                                                              

 Disabilities Services, which operates the Alaska Medicaid program,                                                                                                                                                                                                                                            1 offers Home and  



 Community-Based Waiver services that provide disabled Alaskans with in-home care  

                                                                                                                                                                                                                                                                                                                                                                             

 services as an alternative to institutionalization.2   Waiver services are available to adults  

                                                                                                                                                                                                                                                                                                                                                                     



                               1                            See  AS  47.07.040.  



                               2                            7  Alaska  Administrative  Code  (AAC)   130.205  (2010).  



                                                                                                                                                                                           -2-                                                                                                                                                                                                7178  


----------------------- Page 3-----------------------

                                                                                                                                                                              3  

with physical disabilities who require a nursing facility level of care.                                                                                                         In order to require          



a nursing facility level of care, an individual must have either skilled or intermediate                                                                                                        

nursing care needs.                               4  



                                                                                                                                                                                                   

                                   The Department uses a diagnostictoolknown as theConsumer Assessment  

                                                                                                                                                                                             5   The CAT is  

                                                                                                                                                                                                                            

Tool (CAT) to annually assess individuals' eligibility for waiver services. 



a federally approved, standardized questionnaire that records an individual's medical  

                                                                                                                                                                                                            



                 3  

                                   7 AAC 130.205(d) ("For the department to determine whether an applicant                                                                                               

is eligible to receive home and community-based waiver services under this section, the                                                                                                                                  

applicant                      must                be           found                 eligible                  for           one             of          the            following                       recipient  

categories: . . . (4) older adults or adults with physical disabilities; to qualify for this                                                                                                                           

recipient category the applicant must require, as determined under 7 AAC 130.215, a                                                                                                                                          

level of care provided in a nursing facility and must be . . . 65 years of age or older.").                                                                                                                                        



                 4                 7 AAC 130.215 ("The department will determine an applicant's level of  

                                                                                                                                                                                                                           

care as follows[:] . . . (4) for the recipient category of older adults or adults with physical  

                                                                                                                                                                                                           

disabilities, the department will determine . . . whether . . . the applicant requires a level  

                                                                                                                                                                                                                   

of care provided in a skilled nursing facility; or . . . requires a level of care provided in  

                                                                                                                                                                                                                           

an intermediate care facility.").  Radebaugh does not claim to require skilled nursing  

                                                                                                                                                                                                            

services but claims that she requires intermediate nursing services, which are defined  

                                                                                                                                                                                                             

under 7 AAC 140.510(b):  

                                     



                                   [T]he observation, assessment, and treatment of a recipient  

                                                                                                                                                                     

                                   with  long-term  illness  or  disability  whose  condition  is  

                                                                                                                                                                                        

                                   relatively stable and where the emphasis is on maintenance  

                                                                                                                                                             

                                   rather  than  rehabilitation,  or  care  for  a  recipient  nearing  

                                                                                                                                                                         

                                   recovery and discharge whose condition is relatively stable  

                                                                                                                                                                               

                                   but who continues to require professional medical or nursing  

                                                                                                                                                                           

                                   supervision.  



                                   According to 7 AAC140.510(a), "The department will pay an intermediate  

                                                                                                                                                                                                 

care facility for providing the services described in (b) . . . of this section if those services  

                                                                                                                                                                                                            

are . . . needed to treat a stable condition [and] ordered by and under the direction of a  

                                        

physician . . . ."  

                                 



                 5                 7 AAC 130.213(d); 7  AAC 160.900(d)(6)  (incorporating the CAT by  

                                                                                                                                                                                                                         

reference); AS 47.07.045(b)(1) (requiring annual assessment).  

                                                                                                                                                                    



                                                                                                             -3-                                                                                                   7178
  


----------------------- Page 4-----------------------

conditions, functional abilities, cognitive abilities, behavioral problems, nursing needs,                                                                        



                                                     6  

therapies, and                 treatments.                                                                                                                         

                                                           The CAT is typically administered by a licensed nurse  



                                                                                                                                                                         

employed by the Department.  The Department determines, based on the results of the  



                                                                                                                                                            

CAT assessment, whether an individual is approved for or disqualified from receiving  

                                7    Once approved, an individual is disqualified from the program if his  

                                                                                                                                                                         

waiver services. 

or her "condition has materially improved since the previous assessment,"8 meaning that  

                                                                                                                                                                        



the individual "no longer has a functional limitation or cognitive impairment that would  

                                                                                                                                                                  



result in the need for nursing home placement, and is able to demonstrate the ability to  

                                                                                                                                                                           

function in a home setting without the need for waiver services."9  

                                                                                                                                      



                           One way to qualify for a nursing facility level of care is to require extensive  

                                                                                                                                                            



assistance with activities of daily living. The CAT lists five activities of daily living that  

                                                                                                                                                                        

are relevant to the level of care determination: eating, bed mobility, toileting, transfers,10  

                                                                                                                                                         



             6             7   AAC   160.900(d)(6);   42   U.S.C.      1396r(b)(3)(A)   (2012)   (stating  



requirements for assessments of nursing facility residents); 42 C.F.R.  441.353(c)(6)                                                            

(2016) (requiring states to create an instrument for "evaluation and reevaluation of                                                                                      

waiver beneficiaries" that is "the same or more stringent" as that used to evaluate nursing                                                                     

facility residents).                  



             7             7 AAC 130.215(4) ( providing that an applicant's required level of care is  

                                                                                                                                                                           

determined "based on the results of the department's [CAT assessment] . . . whether . . .  

                                                                                                                                                                             

the applicant requires a level of care provided in a skilled nursing facility . . . or . . . a  

                                                                                                                                                                    

level of care provided in an intermediate care facility").  

                                                                                             



             8             AS  47.07.045(b)(3).                           See  7  AAC  130.219(e)  ("The  department  will  

                                                                                                                                                                      

disenroll a recipient [if] . . . the recipient is no longer eligible for services because the  

                                                                                                                                                                        

recipient's reassessment . . . indicates the condition that made the recipient eligible for  

                                                                                                                                                                         

services has materially improved since the previous assessment.")  

                                                                                                          



             9             AS 47.07.045(b)(3)(C).  

                                                                             



              10           According to  the CAT transfers occur when  a person  moves between  

                                                                                                                                                             

                                                                                                                                                   (continued...)  



                                                                                    -4-                                                                             7178
  


----------------------- Page 5-----------------------

and locomotion. Each activity is scored from 0-4, with 0 representing that the individual                                                                  



is entirely independent, 1 indicating that the individual requires caregiver supervision                                                                

only, 2 indicating that the individual requires limited assistance with the activity,                                                                                       11  



                                                                                                                                                                   12  and  

                                                                                                                                                                        

                                                                                                                                                  

3 indicating that the individual requires extensive assistance with the activity, 

4 indicating total dependence on  the caregiver when completing the activity.13                                                                                          To  

                                                                                                                                                                        



qualify as needing nursing facility level of care based on activities of daily living alone,  

                                                                                                                                                                   



an individual would need to score a 3 or 4 on at least three out of the five daily activities.  

                                                                                                                                                                                 



Another way to qualify for waiver services is to require qualifying therapy three or four  

                                                                                                                                                                       



days per week in addition to limited one-person physical assistance for two of the five  

                                                                                                                                                                        



activities of daily living.  

                                     



                           Sunny Radebaugh was a 70-year-old woman with a number of disabilities  

                                                                                                                                                          



that made it impossible for her to live independently.  She had difficulty performing  

                                                                                                                                                         



routine daily tasks such as standing, walking, sitting, and transferring to and from the  

                                                                                                                                                                         



sitting or lying position.  In January 2005 the Department assessed Radebaugh with the  

                                                                                                                                                                          



CAT and found that she qualified for waiver services.  Karen Mattson, the nurse who  

                                                                                                                                                                       



performed the CAT assessment, determined that Radebaugh was eligible for waiver  

                                                                                                                                                                 



services  based  on  Radebaugh's  functional  limitations.  The  2005  CAT  assessment  

                                                                                                                                                        



              10(...continued)  



                                                                                                                                                                                 

surfaces, including moving to and frombed, chairs, wheelchairs, and a standing position;  

                                                                                                                                                 

moving to and from the toilet is not included as a transfer but rather as toileting.  



              11           "Limited assistance" is defined by the CAT as receiving physical help or  



other  nonweight-bearing  assistance  more  than  three  times,  or  physical  help  plus  

                                                                                                                                                                      

weight-bearing assistance one to two times over the past seven days.  

                                                                                                                                 



              12           "Extensive assistance" is defined by the CAT as requiring weight-bearing  

                                                                                                                                                 

support or full caregiver performance three or more times over the past seven days.  

                                                                                                                                                               



              13           "Total dependence" requires full caregiver performance of the activity for  

                                                                                                                                                                          

the past seven days.  

                              



                                                                                     -5-                                                                             7178
  


----------------------- Page 6-----------------------

                                                                                                                      

indicated that Radebaugh was totally dependent for her transfers and required extensive  



                                                                                    

assistance for her bed mobility, locomotion, and toilet use.  



                                                                                                                              

                    The annual reassessments conducted in 2007 through 2012 all found that  



                                                                                                                               

Radebaugh's condition had materially improved and, therefore, she did not qualify for  



                                                                                                                  

waiver  services.           In  the  2012  CAT  assessment,  Mattson  indicated  that  Radebaugh  



                                                                                                                         

required no assistance for her bed mobility and only setup assistance for her eating.  



                                                                                                                     

Mattson next reported that Radebaugh required limited assistance for her transfers:  



                                                                                                                       

Radebaugh statedthat sheusedher walker, and Mattsonnoted that Radebaugh'spersonal  



                                                                                                                          

care assistant put "weight on [the] walker while [Radebaugh] independently got herself  



                                                                                                                             

out of bed and with cues from [her personal care assistant] unlocked and locked [the]  



brakes."  Next, Mattson indicated that Radebaugh required limited assistance with her  



                                                                                                                      

locomotion:           Radebaugh  reported  that  she  used  her  walker  indoors,  and  Mattson  



                                                                                                                      

observed, "[O]nce [Radebaugh] was steady, she took deliberate slow steps to ambulate  



                                                                                                                                

to the table . . . with [her personal care assistant] cueing her along the way [i.e.] 'pick up  



                                                                                                                              

your feet[,]' 'remember to use the brakes.' "  The CAT assessment also indicated that  



                                            

Radebaugh required limited assistance with her toileting, notably assistance balancing  



                                                                                                                              

as she transferred to and from the toilet.  Finally, the CAT assessment indicated that  



                                                                                                                            

Radebaugh did not attend physical therapy with a qualified therapist.  The 2012 CAT  



                                                                                                                             

assessment indicated  that Mattson  reviewed  her  findings with Radebaugh  and  Ella  



                                                        

Savage, Radebaugh's personal care assistant.  



                                                                                                                       

                    Based on her observations, Mattson concluded that Radebaugh required  



                                                                                                                             

neither skilled nursing care nor intermediate nursing care; Radebaugh required only  



                           

"custodial care," which Mattson defined as "assistance with 'activities of daily living'  



                                                                                                                         

such as bathing, dressing, eating, going to the bathroom, using eye drops, moving around  



                                          

and getting into and out of bed."  



                                                               -6-                                                         7178
  


----------------------- Page 7-----------------------

                                                                                                                              

                    Following a CAT assessment, the Department conducts a review of the  



                                                                                                                            

assessment. Sam Cornell, RN, reviewed Radebaugh's CAT assessment and agreed with  



                                                                                                                         

Mattson's conclusions.  After the Department concluded that Radebaugh was no longer  



                                                                                                                              

eligible for waiver services, that determination was sent for independent review by  



                                                                                                                                

Qualis Health, the State's third-party reviewer.   The Qualis Health review sought to  



                                                                                                                               

ensure that the narrative information and the clinical diagnoses matched the scoring on  



                                                                                                                           

the CAT; the review did not consist of an independent physical evaluation.  The CAT  



                                                                                                                  

assessment was reviewed by two nurses at Qualis Health; both agreed that Radebaugh  



                                               

no longer qualified for waiver services.  



                                               

                    The Department then notified Radebaugh that her waiver services would  



                                                                                            

be terminated unless she requested a fair hearing, which she did.  



          B.        Proceedings  



                                                                                                                          

                    An administrative law judge (ALJ) conducted a fair hearing in April 2013.  



                                                                                                                              

Radebaugh offered two witnesses:  her treating physician, Dr. Wade Erickson, and her  



                                                                                                              

personal  care  assistant,  Ella  Savage.                       Dr.  Erickson  testified  that  Radebaugh's  



                                                                                                                          

degenerative disc disease had regressed over time, which negatively impacted her ability  



                                                                                                                               

to function, and that she had been in a "slow, steady decline."  He testified that while he  



                                                                                                                            

had seen Radebaugh get up out of chairs with assistive devices, having someone to help  



                                                                                                                  

her would "facilitate that much easier." And while Dr. Erickson testified that Radebaugh  



                                                                                                                       

"may have difficulty with getting her legs moving early in the morning," he also testified  



                                                                                                                     

that she "moves better once she gets going" and "gets limbered up."   Dr. Erickson  



                                                                                                                             

testified that Radebaugh required physical therapy, but he could not say whether that  



                                                                    

physical therapy required an actual physical therapist.  



                                                                                                                                    

                    On direct examination, Dr. Erickson stated that Radebaugh qualified for  



                                                                                                                             

intermediate  nursing  services.                    He  explained  that  "she  requires  supervision  for  



                                                                                                                            

maintaining her current level of function.  I don't believe anywhere in that statute does  



                                                               -7-                                                        7178
  


----------------------- Page 8-----------------------

it say what type of nursing or what type of monitoring there is, and so I think that she                                                                                                                                              



would qualify." But on cross-examination Dr. Erickson testified that he did not "believe                                                                                                                                 



that [Radebaugh] needs an RN or that type of a license to supervise her per se, but she                                                                                                                                               



does need somebody to assist her with her activities."                                                                                                  He agreed that a personal care                                             



assistant would satisfy his recommendations for Radebaugh.                                                                             



                                     EllaSavage,                        Radebaugh'spersonalcareassistantand                                                                         certifiednursing aide,                         

                                                                                                                                                                                                                  14       Savage  

testified that she had been working with Radebaugh for about ten years.                                                                                                                                                  



testified that she helped Radebaugh motivate, did her laundry, vacuumed, helped with  

                                                                                                                                                                                                               



transfers, helped her get to the toilet, helped her do her physical therapy, and either  

                                                                                                                                                                                                                               



supported her weight while she walked around the house or reminded her to pick up her  

                                                                                                                                                                                                                                      



feet as she used her walker.   Savage testified that helping Radebaugh with transfers  

                                                                                                                                                                                                                       



required her to bear Radebaugh's weight, although Radebaugh did have "good days  

                                                                                                                                                                                                                                  



where [Savage] [did not] have to lift her up as much."   But she made clear that she  

                                                                                                                                                                                                                                     



"certainly [did] have to use weight-bearing to pick [Radebaugh] up. . . .  [F]or the most  

                                                                                                                                                                                                                                  



part [Savage] [did] the lifting."  

                                                                



                                     Regarding  locomotion,  Savage  testified  that  she  "either  walk[s]  with  

                                                                                                                                                                                                                                 



 [Radebaugh] [while] supporting her weight, or here lately [they've] been using her  

                                                                                                                                                                                                                                     



walker. [Savage] get[s] her to the walker and [Savage] walk[s] behind her and remind[s]  

                                                                                                                                                                                                                     



her to pick up her leg, because she drags her right leg."  Savage estimated that she had  

                                                                                                                                                                                                                                     



to physically pick up Radebaugh's leg at least six to ten times per week.  Savage stated  

                                                                                                                                                                                                                               



that she physically helped Radebaugh with her toileting by both physically bearing her  

                                                                                                                                                                                                                                      



weight as she got onto the toilet and by assisting her while she used the toilet.  Savage  

                                                                                                                                                                                                                          



also testified that Radebaugh went to physical therapy in Wasilla three days per week.  

                                                                                                                                                                                                                              



                   14                This appealconcernsonlyin-homenursing                                                                              careservices through                                      thewaiver   



program.   After these services were terminated, Savage continued to provide personal                                                                                                                                  

care services to Radebaugh through the personal care program.                                                                                         



                                                                                                                    -8-                                                                                                          7178
  


----------------------- Page 9-----------------------

                                                                                                                                

                    The Department offered two witnesses.   Sam Cornell, a nurse from the  



                                                                                                                             

Department who reviewed the CAT assessment, testified. He stated that he uses the CAT  



                                                                                                                               

assessment to determine whether an individual qualifies for waiver services, but he also  



                                                                                                                                 

testified that he had never met Radebaugh or spoken to her doctor.  He noted that by  



                                                                                                                        

2012 Radebaugh "had acquired her lift chair[,] and she was using a walker and stand-by  



                                                                                                                               

assist for [walking]."  He concluded that there was nothing in Radebaugh's records that  



                                                                                                             

would support the claim that she required intermediate nursing facility care.  



                                                                                                                                

                    Grace  Ingrim,  a  nurse  from  Qualis  Health,  did  not  participate  in  



                                                                                                                     

Radebaugh's initial review but wrote an addendum to that review based on additional  



                                                                                                                             

documents submitted later, including records of office visits with Dr. Erickson and other  



                                                                                                              

physicians.  Ingrim found in the addendum that the records should not affect Qualis's  



                                                                                                                               

determination that Radebaugh did not qualify for waiver services.  Ingrim testified that  



                                                                                                                                

she  typically  evaluates  all  of  the  information  provided  to  determine  whether  an  



                                                                                                                     

individual  requires  intermediate  nursing  level  of  care.                              Ingrim  testified  regarding  



                                                                                                                            

Radebaugh's CAT assessment:  "Services that are being rendered have changed, which  



                                                                                                                                  

have resulted in improved functionality in some of her scoring."  She could not point to  



                                                                                                     

anything specific in Radebaugh's medical records to support that statement.  



                                                                                                                               

                    Mattson  did  not  testify  because  she  was  no  longer  employed  by  the  



                                                                                                                        

Department and had left Alaska.  Radebaugh also did not testify.  Numerous medical  



                                                                                                                               

records  and  each  of  Radebaugh's  CAT  assessments  since  2005  were  part  of  the  



                                   

administrative record.  



                                                                                                                                

                    The  ALJ  reversed  the  Department's  initial  termination  decision.                                     He  



                                                                                                                       

credited Radebaugh'switnesses and found that theDepartment'sevidencewasrelatively  



                                                                                                                               

weak because Mattson did not testify and was not available for cross-examination.  The  



                                                                                                                             

ALJ also discounted the Department's reliance on the fact that Mattson's previous CAT  



                                                                                                                              

assessments  had  declared  Radebaugh  ineligible  for  waiver  services,  noting  that  



                                                                -9-                                                         7178
  


----------------------- Page 10-----------------------

Radebaugh   had   no   opportunity   to   challenge   those   assessments   in  a   fair   hearing.  



                                                     15  

                       The   Department                                                                                                          

                                                         rejected  the  ALJ's  determination  and  affirmed  the  

                                                                                                                                        16      The  

                                                                                                                                              

                                                                                                                        

Department's  initial  decision  to  terminate  Radebaugh's  waiver  services. 



Department's final decision declared that the ALJ "fail[ed] to give proper weight to the  

                                                                                                                                                  



CAT assessment and third-party independent review while giving excessive weight to  



the testimony of Ms. Radebaugh's witnesses." The Department concluded: (1) the ALJ  

                                                                                                                                                



failed to account for the eyewitness observations and impressions of the nurse who  

                                                                                                                                               



completed  the  CAT  assessment;  (2)  the  independent  reviews  of  the  Department's  

                                                                                                                               



termination decision considered "more than just the scores from the CAT assessment";  

                                                                                                                                 



and (3) Radebaugh did not challenge the CAT's methodology and the CAT assessment  

                                                                                                                                    



was therefore entitled to "consideration and weight."  

                                                                              



                       Radebaugh appealed the final agency determination to the superior court.  

                                                                                                                                             



The court initially determined that the Department violated Radebaugh's "fundamental  

                                                                                                                                



[due process] right to cross-examine the author of her 2012 CAT [assessment], upon  

                                                                                                                                              



which [the Department] relied as a basis for its termination decision."  But after the  

                                                                                                                                                  



Department's motion for rehearing, the superior court reversed its order and held that  

                                                                                                                                                 



Radebaugh's due process rights were not violated.  It noted that neither party was able  

                                                                                                                                                



            15         The Department's Modification and Adoption of Proposed Decision was   



issued by the Executive Director of the Office of Rate Review, pursuant to a delegation                                              

from the Commissioner of Health and Social Services.                            



            16         See AS 44.64.060(e) ("The agency with authority to make a final decision  

                                                                                                                                         

in the case retains agency discretion in the final disposition of the case and shall . . . do  

                                                                                                                                                  

one or more of the following: . . . (4) in writing, reject, modify, or amend a factual  

                                                                                                                                           

finding in the proposed decision by specifying the affected finding and identifying the  

                                                                                                                                                  

testimony and other evidence relied on by the agency for the rejection, modification, or  

                                                                                                                                                    

amendment of the finding, and issue a final agency decision.").  

                                                                                                                



                                                                        -10-                                                                  7178
  


----------------------- Page 11-----------------------

to compel Mattson to testify at the fair hearing and that the Department was statutorily                                                                



authorized to summarily reverse the ALJ.                                             Radebaugh appeals.   



III.         STANDARD OF REVIEW                    



                           "When the superior court is acting as an intermediate court of appeal in an                                                                  



administrative    matter,    we    independently    review    the    merits    of    the    agency    or  



                                                                    17  

administrative   board's   decision."                                                                                                                         

                                                                            "We  review  an  administrative  board's  factual  



                                                                                                                                                                         

findings 'to determine whether they are supported by substantial evidence,' which is  



                                                                                                                                                                         

defined as 'such relevant evidence as a reasonable mind might accept as adequate to  



                                                                    18  

                                                                                                                                                                  

support the Board's conclusion.' "                                       "We determine only whether such evidence exists  



                                                                                                                                                                      

and  do  not  choose  between  competing  inferences  or  evaluate  the  strength  of  the  



                                                                                                                                                           

evidence.  In determining whether evidence is substantial, however, we must take into  



                                                                                                                             19  

                                                                                                                                    

                                                                                                             

account whatever in the record fairly detracts from its weight." 



IV.          DISCUSSION  



                           Radebaugh argues that the Department violated her due process rights in  



two ways: (1) by failing to present Mattson for cross-examination at the administrative  

                                                                                                                                                



hearing and (2) by reversing the ALJ's credibility determinations without sufficient  

                                                                                                                                                         



explanation. We conclude that Radebaugh waived her right to challenge her inability to  

                                                                                                                                                                         



cross-examine Mattson and that the Department adequately supported its final agency  

                                                                                                                                                              

decision to terminate Radebaugh's waiver services.20  

                                                                                      



             17            Shea v. State, Dep't of Admin., Div. of Ret. & Benefits                                                   , 267 P.3d 624, 630             



(Alaska 2011).   



             18           Id.  (quoting Lopez v. Adm'r, Pub. Emps.' Ret. Sys., 20 P.3d 568, 570  

                                                                                                                                                                     

(Alaska 2001)).  

                                 



             19           Id. (quoting Lopez, 20 P.3d at 570.)  

                                                                                        



             20            The Department additionally argues that Radebaugh's case is moot, but we  

                                                                                                                                                                       

                                                                                                                                                  (continued...)  



                                                                                  -11-                                                                            7178
  


----------------------- Page 12-----------------------

               A.	             Radebaugh Waived Her Right To Challenge Her Inability To Cross-                                                                                         

                               Examine Mattson At The Administrative Hearing.                                                                               



                               Radebaugh argues that her inability to cross-examine Mattson, the nurse                                                                                     



who performed the CAT assessment, violated her right to due process. The Department                                                                                         



responds that Radebaugh waived her right to challenge that process, and we agree.                                                                                                       



"[F]ailure to make the                            appropriate objection during the hearing waives the right to appeal                                                                    



                                            21  

procedural errors."                               



                                                                                                                                                                                                

                               Radebaugh did not object to the admission of the CAT assessment at the  



                                                                                                                                                                                              

agency hearing, and she did not object to Mattson's absence.  Rather than raise due  



                                                                                                                                                                                      

process claims based on her inability to cross-examine Mattson, Radebaugh instead  



                                                                                                                                                                        

argued that Mattson's absence detracted from the relative weight of the Department's  



                                                                                                                                                                                            

evidence.   In post-hearing briefing, for instance, she claimed that "[n]o nurse who  



                                                                                                                                                                                        

performed  any  of  Ms.  Radebaugh's  assessments  testified  or  was  subject  to  cross- 



                                                                                                                                                                                            

examination. As a result, the testimony presented by Ms. Radebaugh's witnesses is more  



                                                                                                                                                                                          

probative than the CAT[] [assessments]."  Only in superior court did Radebaugh argue  



                                                                                                                                                                                    

that "there was no possible way that [she] could demonstrate that the scores she received  



                                                                                                                                                                                               

on the CAT were erroneous" because Mattson was not subject to cross-examination and  



                                                                                                                                                                                     

that this violated due process.   Thus, Radebaugh failed to preserve her due process  



                                                                                                    

challenge to her inability to cross-examine Mattson.  



                                                                                                                                                                                           

                               But  an  argument  not  explicitly  raised  by  an  appellant  below  may  



                                                                                                                                                                                                  

nevertheless be considered on appeal "if the issue is (1) not dependent on any new or  



               20(...continued)  



                                                                                                                                                                                        

do not reach that issue and affirm the Department's final agency decision on the merits.  



               21              Williams v. Abood                         , 53 P.3d 134, 148 (Alaska 2002) (rejecting due process                                                      



argument   that   was   not   properly   preserved   during   Workers'   Compensation   Board  

hearing); see also Calvert v. State, Dep't of Labor & Workforce Dev., Emp't Sec. Div.,  

                                                                                                                                                                                            

251 P.3d 990, 1006 (Alaska 2011).                                 



                                                                                               -12-	                                                                                       7178
  


----------------------- Page 13-----------------------

controverted facts; (2) closely related to the appellant's trial court arguments; and (3)                                                                           

could have been gleaned from the pleadings."                                              22  



                          The first prong is clearly satisfied:  the issue is not dependent on new or  

                                                                                                                                                                      



controverted facts because both parties agree that Mattson was not available for cross- 

                                                                                                                                                              



examination at the administrative hearing.  But Radebaugh does not satisfy the second  

                                                                                                                                                            



prong.  She argues that her due process claim is closely related to her hearing argument  

                                                                                                                                                       



that  her  inability  to  cross-examine  Mattson  at  the  administrative  hearing  should  

                                                                                                                                                           



negatively impact the weight assigned to the CAT assessment.  Those two arguments,  

                                                                                                                                                    



however, are not closely related.  Rather than arguing that she had been disadvantaged  

                                                                                                                                              



by her inability to cross-examine Mattson, Radebaugh sought to capitalize on Mattson's  

                                                                                                                                                       



absence by arguing that her witnesses' testimony should be given more weight because  

                                                                                                                                                          



Mattson did not testify.  Thus Radebaugh seeks to have it both ways:  she sought to use  

                                                                                                                                                                   



Mattson's absence to her advantage at the administrative hearing but now claims that  

                                                                                                                                                                  



Mattson's failure to testify violated her due process rights.  Those two arguments are  

                                                                                                                                                                    



opposed, rather than related, to one another, and Radebaugh fails to satisfy the second  

                    



prong of the test.  

                                   



                          Radebaugh  also  fails  to  satisfy  the  third  prong.                                                   It  is  unclear  how  

                                                                                                                                                                



Radebaugh's argument could be gleaned from the pleadings after she failed to raise it in  

                                                                                                                                                                      



any previous proceedings. Radebaugh therefore fails to satisfy the conditions that would  

                                                                                                                                                              



allow us to consider her argument despite failing to raise it below.  

                                                                                                                     



                          An argument not sufficiently raised may also be considered "if failure to  

                                                                                                                                                                      

address the issue would propagate plain error."23                                               "Plain error exists if it appears that an  

                                                                                                                                                                     



             22           Erkins v. Alaska Tr., LLC                         , 265 P.3d 292, 298 n.15 (Alaska 2011) (quoting                              



Sea Lion Corp. v. Air Logistics of Alaska, Inc.                                            , 787 P.2d 109, 115 (Alaska 1990)).                                     



             23           Id. (quoting Sea Lion Corp., 787 P.2d at 115).  

                                                                                                           



                                                                                 -13-                                                                           7178
  


----------------------- Page 14-----------------------

obvious mistake 'has been                       made which creates a high                        likelihood that injustice has             



                  24  

resulted.' "                                                                                                                                

                      But we conclude that the failure to address Radebaugh's argument was not  



                                                                                                                          

plain error. Radebaughhad every opportunity tochallengeher inability tocross-examine  



                                                                                                                                              

Mattson, but she chose instead to raise the issue as an argument going to the weight of  



                                                                                                                                              

the evidence. We decline to conclude that failing to address the argument amounts to an  



                                                                                                                              

obvious mistake resulting in a high likelihood of injustice.  We hold that Radebaugh  



                                                                                                      

waived her right to challenge her inability to cross-examine Mattson.  



                                                                                                                                    

           B.	        Substantial  Evidence  Supported  The  Department's  Final Agency  

                      Decision.  



                                                                                                                                    

                      Radebaugh contends that the Department's final agency decision violated  



                                                                                                                                              25  

                                                                                                                                                   

her due process right to a fair hearing because it reversed the ALJ's factual findings. 



                                                                                                                                            

Her argument can be separated into two parts:   (1) the Department's reversal of the  



                                                                                                                              

ALJ's factual determinations is subject to heightened scrutiny and (2) the Department  



                                                                                                                     

failed to provide adequate support for its decision to reject the ALJ's determination.  



                                                                                                                                    

                      As a preliminary matter, we observe that the Department, as final decision  



                                                                                                         26  

                                                                                            

maker, has the authority to overrule the ALJ's factual findings. 



           24         Sea Lion Corp.            , 787 P.2d at 115 (quoting                  Miller v. Sears          , 636 P.2d 1183,       



 1189 (Alaska 1981)).                 



           25         Radebaughframesher argument in termsofdueprocess, but theconnection  

                                                                                                                               

she draws between due process and the substantial evidence test is not clear. She appears  

                                                                                                                                     

to argue that the Department's alleged failure to satisfy the substantial evidence test  

                                                                                                                                           

amounts to a due process violation.  

                                            



           26         AS 44.64.060(e) authorizes the Department to reject the ALJ's factual  

                                                                                                                                      

findings:  

                 



                      The agency with authority to make a final decision in the case  

                                                                                                                    

                      retains agency discretion in the final disposition of the case  

                                                                                                                    

                      and shall . . . do one or more of the following:  

                                                                                   

                                                                                                                          (continued...)  



                                                                     -14-	                                                              7178
  


----------------------- Page 15-----------------------

                          1.          The substantial evidence test and heightened scrutiny                                        



                          When reviewing final agency decisions, we review questions of fact under                                                         



                                                        27  

the substantial evidence test.                                                                                                                                      

                                                              "Substantial evidence is 'such relevant evidence as a  



                                                                                                                                    28  

                                                                                                                                        "On appeal we           

reasonable mind might accept as adequate to support a conclusion.' " 



                                                                                                                                                                

do  not  re-weigh  the evidence or  choose between competing inferences, but we  do  



                                                                                                                                                   

analyze the record in its entirety to ensure that the ALJ's factual findings are supported  



                                                29  

by substantial evidence."                                                                                                                            

                                                     In Shea v. State we explained that the substantial evidence  



                          

test is highly deferential:  



                                                                                                                                      

                         the test "precludes affirmance of an agency finding in the  

                                                                                                                                     

                          extreme  case  where  the  evidence  that  detracts  from  the  

                                                                                                                                     

                          finding is dramatically disproportionate to the evidence that  

                                                                                                                                         

                          supports the finding, e.g., a finding based on the testimony of  

                                                                                                                                      

                          one  obviously  biased  witness  that  is  contradicted  by  the  



             26(...continued)
  



                                             

                                       . . . .
  



                                                                                                                              

                                      (4)  in  writing,  reject,  modify,  or  amend  a  factual  

                                                                                                                             

                          finding in the proposed decision by specifying the affected  

                                                                                                                           

                          finding  and  identifying  the  testimony  and  other  evidence  

                                                                                                                                        

                         relied on by the agency for the rejection, modification, or  

                                                                                                                             

                          amendment   of   the   finding,   and   issue   a   final   agency  

                                                 

                          decision . . . .  



             27          May v. State, Commercial Fisheries Entry Comm'n, 175 P.3d 1211, 1216  

                                                                                                                                                            

(Alaska 2007).  

                              



             28          Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992)  

                                                                                                                                                          

(citing Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)).  

                                                                                                                                          



             29          Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 634  

                                                                                                                                                               

(Alaska 2011).  

                 



                                                                               -15-                                                                         7178
  


----------------------- Page 16-----------------------

                       testimony    of    multiple    unbiased    witnesses    or    powerful  

                       documentary or circumstantial evidence."                                 [30]  



The United States Supreme Court has explained that while a court reviewing a record for  

                                                                                                                                                  



substantial evidencemay not "displace the Board's choice between two fairly conflicting  

                                                                                                                                     



views," "a reviewing court is not barred from setting aside a Board decision when it  

                                                                                                                                                     



cannot conscientiously find that the evidence supporting that decision is substantial,  

                                                                                                                                   



when viewed in the light that the record in its entirety furnishes, including the body of  

                                                                                                                                                    

evidence opposed to the Board's view."31  We agree with this principle. Thus, we review  

                                                                                                                                            



the entire record "to ensure that the evidence detracting fromthe agency's decision is not  

                                                                                                                                                  



dramatically  disproportionate  to  the  evidence  supporting  it  such  that  we  cannot  

                                                                                                                                          



                                                                                                                                           32  

'conscientiously' find the evidence supporting the decision to be 'substantial.' " 

                                                                                                                                          



                       As an additional layer to the substantial evidence test, Radebaugh contends  

                                                                                                                                        



that when an administrative agency reverses the factual findings of an ALJ, we must  

                                                                                                                                               



apply  a  heightened  level  of  scrutiny  to  the  agency's  final  decision.                                                She  points  to  

                                                                                                                                                   



UniversalCamera v. National Labor RelationsBoard,when theSupremeCourt held that  

                                                                                                                                                 



a reviewing  court should  consider  an  examiner's factual findings, even  where that  

                                                                                                                                                

examiner's decision was ultimately reversed by the agency.33  The Court determined that  

                                                                                                                                                 



although  the  agency  retained  the  authority  to  render  a  final  agency  decision,  the  

                                                                                                                                                 



            30         Id.  at 634 n.40 (quoting R                ICHARD  PIERCE,A               DMINISTRATIVE  LAW  TREATISE  



979-80 (Wolters Kluwer Law & Bus., 5th ed. 2010)).                                



            31         Id.   (quoting   Universal Camera Corp. v. Nat'l Labor Relations Bd.                                                   , 340   



U.S.  474, 488 (1951)).     



            32         Id. (emphasis in original).  

                                                     



            33         340 U.S. at 497.  

                                                      



                                                                        -16-                                                                  7178
  


----------------------- Page 17-----------------------

determinations    of    examiners    who    made    factual    determinations    had    increased  

importance.34  



                    The Court in Universal Camera was clear that it was not setting out a new  

                                                                                                                              



standard of review: the substantial evidence standard normally applied in administrative  

                                                                                                              

agency appeals "is not modified in any way when the Board and its examiner disagree."35  

                                                                                                                                     



But  as  a  result  of  Universal  Camera,  "[e]ven  though  technically  the  [substantial  

                                                                                                                 



evidence]  standard  of  review  remains  in  place,  the  agency  can  expect  much  more  

                                                                                                                           



scrutiny of its factfinding when it disagrees with the administrative judge's credibility  

                                                  

determination."36  As such, "[i]f the administrative review authority disagrees with the  

                                                                                                                               



administrativejudge'scredibilityfinding,theadministrativejudge's credibility judgment  

                                                                                                                      



will likely be given special weight. . . .   An administrative review authority which  

                                                                                                                          

                                                                                                 37   "When the agency  

disagrees with such findings will face a heightened scrutiny."                                                           

                                                                                   



disagrees with the administrative judge, the weight given the administrative judge's  

                                                                                                                        



                                                                                   38  

decision will depend on the importance of credibility."                                 

                                                                  



                    Not only must substantial evidence support an agency decision, but the  

                                                                                                                               



agency should also justify its results.  According to Professor Koch, "[a] court does not  

                                                                                                                               



sustain an agency decision if it finds the decision is correct but not adequately justified;  

                                                                                                                      



rather the court remands so that the agency may either correct the reasoning or change  

                                                                                                                         



          34        Id.  at  494-95.  



          35        Id.  at  496.   



          36        2  CHARLES  H.  KOCH,  JR.,  ADMINISTRATIVE  LAW  AND  PRACTICE    5:64,  at  



256  (3d  ed.  2010).   



          37        Id.  at  255.   



          38        Id.  



                                                              -17-                                                         7178
  


----------------------- Page 18-----------------------

                      39  

the results."             A reviewing court "cannot provide the explanation itself," and "will not                                                    



 accept post-hoc rationalization in lieu of adequate explanation at the time the decision   

                      40    But at the same time, a reviewing court should not upset an agency  

was made."                                                                                                                                     

                                                                                                                  41    When the agency's  

 decision "if the agency's path may reasonably be discerned."                                                                               

                                                                                              



justification is adequate, and its path is at least reasonably clear, then the reviewing court  

                                                                                                                                                   

will sustain the agency's decision.42  

                                               



                        In Radebaugh's case, we conclude that the well-established substantial  

                                                                                                          



 evidence test is the correct test.   The court reviewing an agency finding of fact will  

                                                                                                                                                     



review the entire record to ascertain whether there is substantial evidence to support the  

                                                                                                                                                       



 agency's findings.  Where an agency's final decision rejects or reverses an underlying  

                                                       



 factual  finding  which  was  based  on  the  fact-finder's  credibility  determination,  the  

                                                                                                                                                      



reviewing court should apply heightened scrutiny to the agency's final factfinding.  But  

                                                                                                                                                      



the reviewing court does not re-weigh the evidence - its role under the substantial  

                                                                                                                                         



 evidence test is merely to ascertain whether there is substantial evidence to support the  

                                                                                                                                                       



 agency's decision.  

                  



                        2.	         Substantial evidence supported the Department's final agency  

                                                                                                                                               

                                    decision.  



                        Having reviewed the entire record we conclude that there was substantial  

                                                                                                                                         



 evidence to support the Department's final decision.  First, the 2012 CAT assessment  

                                                                                                                                        



 concluded that Radebaugh's condition had improved since the initial CAT assessment  

                                                                                                            



            39          3  id.     10:40,  at  487.  



            40          Id.  at  488-89.  



            41          Id.  at  488  (quoting  Bowman   Transp.,  Inc.  v.  Arkansas  Best  Freight  Sys.,  



Inc.,  419  U.S.  218,  286  (1974)).  



            42          Id.  



                                                                          -18-	                                                                    7178
  


----------------------- Page 19-----------------------

                                                                                                                             

from 2005.  Mattson determined that Radebaugh needed only "limited assistance" with  



                                                                                                                       

transfers,  locomotion,  and  toileting,  and  no  assistance with  bed  mobility.                                    Mattson  



                                                                                                                              

substantiated her conclusions both with her personal observations and Radebaugh's own  



                                                                                                                               

statements.  For example, when asked about her transfers, Radebaugh stated "I use my  



                                                                                                                           

walker."   And Mattson observed Savage put weight on Radebaugh's walker while  



                                                                                                                   

Radebaugh "independently got herself out of bed." There is no evidence that Radebaugh  



                                                                                                                               

or Savage disputed Mattson's observations at the time Mattson recorded them, and the  



                                                                                                                        

CAT assessment indicates Mattson reviewed her findings with Radebaugh and Savage.  



                                                                                                                          

Moreover, Radebaugh did not refute any of the statements she made to Mattson during  



                                                                                                             

the course of performing the CAT assessment.  Based on Radebaugh's statements and  



                                                                                                                         

Mattson's observations, Mattson concludedthatRadebaugh did not meet nursing facility  



                                                                                     

level of care and instead required non-skilled custodial care.  



                                                                                                                         

                    Second, a review of the CAT assessment by Department nurse SamCornell  



                                                                                                                       

reached the same conclusion:  Radebaugh did not qualify for waiver services.  Cornell  



                                                                                                                           

noted that Radebaugh "receives custodial care for the completion of Activities of Daily  



                                                                                                                      

[L]iving."  He  continued,"Transfer  assistance  provided  is  noted  to  be  the  assistant  



                                                                                                                              

stabilizing  the  wheeled  walker  used  by  client  for  support  during  the  transfer,  and  



                                                                                                                            

ambulates with the walker and supervision and cueing by the assistant." Based on those  



                                                                                                                

observations Cornell concluded, "In the 2012 assessment [Radebaugh] demonstrates  



                                                                                                                      

improved  self performance of the Activities of Daily  Living  which  affect [w]aiver  



                                             

eligibility; she receives only limited levels of assistance.  This level of assistance does  



                                                                                                                          

not rise to the level required to demonstrate need for nursing home placement . . . ."  



                                                                                                 

Cornell testified consistent with his report at the administrative hearing.  



                                                                                                                         

                    Third, an independent review of the CAT assessment by Qualis Health  



                                                                                                                         

confirmed that the scoring was consistent with the narrative information and the clinical  



                                                                                                                          

diagnoses.  At Radebaugh's administrative hearing Grace Ingrim from Qualis Health  



                                                              -19-                                                         7178
  


----------------------- Page 20-----------------------

                                                                                                                               

testified that she reviewed a letter Dr. Erickson sent after Radebaugh requested a fair  



                                                                                                                

hearing and that another Qualis Health reviewer conducted a review of Radebaugh's  



                                                                                                                               

case.  Ingrim concluded that while Radebaugh's clinical status had not changed, her  



                                                                                                                        

treatment  plan  had  changed  and  was  consistent  with  the  CAT  assessment  results.  



                                                                                                          

                    Fourth, the CAT assessments from 2007 through 2011 documented that  



                                                                                                                           

Radebaugh  was  functioning  better  than  in  2005.                             For  example,  in  2007  the  CAT  



                                                                                                                             

assessment  indicated  that  Radebaugh  needed  limited  assistance  with  transfers  and  



                                                                                                                            

locomotion but needed no assistance in bed mobility and toileting.  In 2008 the CAT  



                                                                                                                         

assessment reported that Radebaugh was independent in bed and required only limited  



                                                                          

support in toileting.  From 2009-2011 the CAT assessments indicated that Radebaugh  



                                                                                   

needed only limited assistance with activities of daily living.  



                                                                                                                             

                    Radebaugh's witnesses did present evidence that detracts somewhat from  



                                                                                                                        

the CAT assessment's conclusion.  Savage testified that she routinely provided weight- 



                                                                                                                           

bearing  assistance  to  Radebaugh  during  transfers,  even  on  her  good  days  when  



                                                                                                                               

Radebaugh did not require as much support.  As to toileting, Savage testified that she  



                                                                                                                               

provided even greater weight bearing assistance, helping Radebaugh get on and off the  



                                                                                                                    

toilet several times each day. Regarding locomotion, Savage testified that shesometimes  



                                                                    

supported Radebaugh's weight but at other times only provided cues to Radebaugh as  



                                                                                                                     

she used her walker.   But Savage did not testify that Radebaugh required extensive  



                                                                                                                            

assistance with her eating or bed mobility, two of the five categories of activities of daily  



                                                                                                                       

living.  And importantly, Savage did not testify that the observations Mattson recorded  



                                                                                                                              

in the CAT assessment were false or misleading.  Based on Savage's testimony, it was  



                                                                                                                                 

reasonable to find that Radebaugh required no assistance for two of the five activities of  



                                                                                                                              

daily living (bed mobility and eating), required extensive assistance for two of the five  



                                                                                                                               

activities (transfers and toileting), and required only limited assistance for one of the  



                                                              -20-                                                         7178
  


----------------------- Page 21-----------------------

activities (locomotion).                                    Those results would not be sufficient to qualify Radebaugh for                                                                                       



waiver services.                          



                                  Savage also testified that Radebaugh went to physical therapy three days                                                                



a week which, if true, would likely make Radebaugh eligible for intermediate nursing                                                                                                                 

                                                                                                                                                                             43       But the CAT  

services even if combined with the results of the CAT assessment.                                                                                                                                         



assessment indicated that Radebaugh did not attend physical therapy, and Dr. Erickson,  

                                                                                                                                                                                                



Radebaugh's  treating  physician,  testified  that  while  Radebaugh  did  need  physical  

                                                                                                                                                                                                  



therapy, he could not say whether Radebaugh needed a physical therapist.  

                                                                                                                                                                  



                                 Dr.  Erickson  was  also  fairly  equivocal  when  discussing  Radebaugh's  

                                                                                                                                                                                      



mobility.  He testified that Radebaugh could get up on her own with the use of assistive  

                                                                                                                                                                                                   



devices and that, while Radebaugh "may have difficulty with getting her legs moving  

                                                                                                                                                                                                    



early in the morning," she "moves better once she gets going" and "gets limbered up and  

                                                                                                                                                                                                               



whatnot." This was true despite the fact that Radebaugh's degenerative disc disease had  

                                                                                                                                                                                                               



regressed over time, which negatively impacted her ability to function and put her on "a  

                                                                                                                                                                                                                  



slow, steady decline."  He later stated that Radebaugh did not need more care than what  

                                                                                                                                                                                                            



a personal care assistant could provide.  

                                                                             



                                 The ALJ determined that Radebaugh's witnesses were credible, so we give  

                                                                                                                                                                                                             



their testimony special weight on review.  And we do not ignore the fact that the ALJ  

                                                                                                                                                                                                             



found that Radebaugh required "extensive assistance" in the daily activities of transfers,  

                                                                                                                                                                                                 



locomotion, and toileting. But when evaluating the totality of the evidence, we conclude  

                                                                                                                                                                                                 



that there was substantial evidence in  the record  to  support the Department's final  

                                                                                                                                                                                                           



                 43              Under theCAT, an individual "appears to bemedically eligiblefor [nursing                                                                                           



facility] level of care" if he or she attends therapy three to four days per week and has                                                          

some combination of limited or extensive assistance and a one-person physical assist for                                                                                                                         

at least two activities of daily living.                                                   Radebaugh's 2012 CAT assessment indicated that                                                                      

she   required   limited   assistance   with   a   one-person  physical   assist   for   transfers,  

locomotion, and toileting.                



                                                                                                       -21-                                                                                                7178
  


----------------------- Page 22-----------------------

decision.     This is not a case where "the evidence that detracts                                                     from the finding                 is  



                                                                                                                                44  

dramatically disproportionate to the evidence that supports the finding."                                                                             

                                                                                                                                     We hold that  



                                                                                                                                                      

the totality  of the evidence in the record  provides a sufficient basis to  support the  



                                    

Department's final decision.  



                                                                                                                                

                        3.          The Department adequately supported its final decision.  



                                                                                                                                               

                        Radebaugh finally argues that the Department failed to adequately explain  



                                                                                                                                             

its  decision,  and  the  Department  therefore  failed  to  satisfy  the  heightened  scrutiny  



                                                                                                                                           

applied to its decision. Radebaugh contends that the Department inadequately explained  



                                                                                                                                           

"why [it] was rejecting the eyewitness testimony of Ms. Radebaugh's treating physician  



                        

and primary caregiver."  



                                                                                                                                                

                        The  Department's  final  agency  determination  stated  that  the  ALJ's  



                                                                                                                                                      

proposed  decision  "is  revised to  reflect the opposite result.                                                  More specifically,  the  



                                                                                                                                         

evidence  in  this  case  demonstrates  that  Ms.  Radebaugh's  condition  has  materially  



                                                                                                                                              

improved and as a result, the [Department's] decision terminating her [w]aiver services  



                                                                                                                                                       

is AFFIRMED." The decision concluded that the ALJ failed to give proper weight to the  



                                                                                                                                                  

CAT  assessment  while  giving  excessive  weight  to  Radebaugh's  witnesses.                                                                    After  



                                                                                                                                         

reviewing the evidence, the decision found that the Department had properly terminated  



                                       

Radebaugh's waiver services.  



                                                                                                                                                      

                        The decision pointed to several key pieces of evidence that favored the  



                                                                                                                                                  

Department.   First, multiple nurses reviewed the CAT assessment, and all of those  



                                                                                                                                                       

reviews supported the decision to terminate Radebaugh's waiver services.  Second, the  



                                

decision directly responded to the ALJ's opinion by noting that the third-party review  



                                                                                                                                       

considered not just the CAT but also other documents and so deserved evidentiary  



            44          Shea v. State, Dep't of Admin., Div. of Ret. & Benefits                                          , 267 P.3d 624, 634         



n.40  (Alaska 2011) (quoting R                        ICHARD  PIERCE, A               DMINISTRATIVE  LAW  TREATISE  979-80  

(Wolters Kluwer Law & Bus., 5th ed. 2010)).                           



                                                                          -22-                                                                     7178
  


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weight. Third, the decision noted that the ALJ failed to account for Matton's eyewitness                                                     



observations of Radebaugh, as expressed in her notes in the CAT.                                                            Those explanations   



are   sufficient   to   satisfy   the   requirement   as   described   by   Professor  Koch  that   "the  

                                                                                          45    We conclude that the Department  

agency's path [must] reasonably be discerned."                                                                                             



addressed the material and contested pieces of evidence including the CAT assessment,  

                                                                                                                                            



the witnesses supporting the CAT assessment, Radebaugh's witnesses, and the weight  

                                                                                                                                      



applied  to  each  piece  of  evidence.                                 Because  the  Department  provided  a  sufficient  

                                                                                                                                               



explanation of its thought process in reversing the ALJ's credibility determinations, and  

                                                                                                                                                           



because the Department's decision was supported by substantial evidence, we uphold its  

                                                                                                                                                             



decision.  



V.           CONCLUSION  



                         We hold that Radebaugh waived her right to challenge her inability to  

                                                                                                                                                             



cross-examine Mattson and that theDepartmentdid not violateRadebaugh's due process  

                                                                                                                                                    



rights when it issued its final decision.  We also hold that the Department's decision is  

                                                                                                                                                              



supported  by  substantial  evidence.                                    We  therefore  AFFIRM  the  superior  court's  

                                                                                                                                                   



affirmance of the Department's final agency decision.  

                                                                                    



            45           3  KOCH,  supra  note  36,     10:40,  at  488.  



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