In the Matter of Abigail Sulerzyski, No. 302, September Term 2022. Opinion by Beachley, 

J.

ADMINISTRATIVE AGENCIES—REGULATORY INTERPRETATION—

MEDICAID

Appellee Abigail Sulerzyski, a Medicaid participant with numerous complex medical 

needs who had been receiving 137 hours of private duty nursing services (“PDN”) per 

week, requested an additional 31 hours of PDN from appellant, the Maryland Department 

of Health. With the additional hours, Ms. Sulerzyski would have been receiving “24/7 

PDN.” Ms. Sulerzyski is a participant in the Rare and Expensive Case Management 

program (“REM”), which, in COMAR 10.09.69.11A(4), requires that PDN services be 

“rendered in accordance with COMAR 10.09.53,” the regulations governing nursing care 

for the Early and Periodic Screening, Diagnosis, and Treatment program (“EPSDT”).

The Department denied Ms. Sulerzyski’s request. Ms. Sulerzyski appealed this decision 

to the Office of Administrative Hearings. The Department filed a motion to dismiss for 

failure to state a claim. Ms. Sulerzyski attached supporting affidavits to her response to 

the motion to dismiss. The administrative law judge (“ALJ”) converted the motion to 

dismiss to a motion for summary decision based on his consideration of the affidavits. The 

ALJ granted summary decision based on his interpretation of 10.09.53.04A(10), which 

requires participants receiving PDN services to have a caregiver who is able to care for the 

participant when a nurse is not available, and 10.09.53.05B, which the ALJ interpreted to 

mean that PDN is unavailable when the caregiver is not asleep, at work, or at school.

Ms. Sulerzyski sought judicial review in the Circuit Court for Anne Arundel County. The 

circuit court vacated the ALJ’s decision, ruling that the ALJ improperly converted the 

motion to dismiss into a motion for summary decision. The Department appealed.

Held: Affirmed. The Appellate Court of Maryland affirmed the judgment of the 

Circuit Court for Anne Arundel County and remanded the case to the Office of 

Administrative Hearings for further proceedings.

The Court concluded that the ALJ erred in granting summary judgment in favor of the 

Department. First, the Court determined that, while COMAR 10.09.53.04A(10) requires 

participants receiving PDN care to have an available caregiver when a nurse is not 

available, the ALJ erred in accepting the Department’s argument that 10.09.53.05B 

restricts PDN care to times when the caregiver is unavailable due to his or her sleep, work, 

or school schedules. The Court concluded that the ALJ’s interpretation imposed conditions 

that were inconsistent with Maryland and federal caselaw that mandates the provision of 

services based on medical necessity. Second, the Court held that Ms. Sulerzyski’s mother’s 

affidavit produced sufficient evidence for summary decision purposes that Ms. Sulerzyski 

had a “caregiver” as contemplated by 10.09.53.04A(10).
 

*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional 

amendment changing the name of the Court of Special Appeals of Maryland to the 

Appellate Court of Maryland. The name change took effect on December 14, 2022.

Circuit Court for Anne Arundel County

Case No. C-02-CV-21-000054

REPORTED

IN THE APPELLATE COURT

OF MARYLAND*

No. 302

September Term, 2022

_____________________________________

IN THE MATTER OF 

ABIGAIL SULERZYSKI

______________________________________

Kehoe,

Beachley,

Tang,

JJ.

______________________________________

Opinion by Beachley, J.

______________________________________

Filed: March 1, 2023
This case involves appellee Abigail Sulerzyski’s request for 31 additional hours of

private duty nursing (“PDN”) services per week through the Maryland Medical Assistance 

Program.1 Because she already receives 137 hours per week of PDN services, granting 

Ms. Sulerzyski’s request for the additional hours would result in her receiving “24/7 PDN”

services. After a summary decision by an administrative law judge (“ALJ”) affirmed the 

Maryland Department of Health’s (“Department”) denial of her request for 24/7 PDN 

services, Ms. Sulerzyski sought judicial review in the Circuit Court for Anne Arundel 

County. The circuit court reversed the ALJ’s decision, ruling that the ALJ improperly 

converted the Department’s motion to dismiss into a motion for summary decision, and 

remanded the matter for further proceedings. The Department noted this timely appeal and 

presents a single question for our review:

Did the administrative law judge correctly grant summary decision in 

favor of the Department when the service requested by Ms. Sulerzyski 

was not covered by Medicaid and, therefore, [was] unavailable to her as 

a matter of law?

We conclude that the ALJ erred in granting summary decision in favor of the 

Department. We shall therefore affirm, albeit on a different ground than that relied upon 

by the circuit court.

1 Private duty nursing services are defined as “nursing services for beneficiaries who 

require more individual and continuous care than is available from a visiting nurse or 

routinely provided by the nursing staff of the hospital or skilled nursing facility.” 42 C.F.R. 

§ 440.80.
2

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts are essentially undisputed. According to an affidavit submitted

by Ms. Sulerzyski’s mother, Victoria Sulerzyski (“Mother”), Ms. Sulerzyski has been 

diagnosed with numerous medical conditions, including deafness, blindness, Intestinal 

Neuronal Dysplasia, Digestive System Dysmotility, Autism Spectrum Disorder, Profound 

Intellectual Disability, and Cerebral Palsy. Because of her medical conditions, Ms. 

Sulerzyski suffers from severe gastrointestinal deficiencies, which require, according to 

Mother’s affidavit: “16-hour continuous feeds and all of her medication except for one” 

through a jejunostomy,2a gastrostomy tube that is “open to a 24-hour drainage system,” 

and a colostomy through which she receives enemas “on a regular basis.”

Ms. Sulerzyski has received PDN services most of her life, beginning when she was 

nine months old. She attended the Maryland School for the Blind as a residential student 

from 2015 until her graduation in 2020, returning home on the weekends. During this time, 

Ms. Sulerzyski received PDN services 21 hours per day on weekdays and 16 hours per day 

on weekends, amounting to 137 hours of PDN services per week, “as an enrollee in the 

Home Care for Disabled Children under a Model Waiver.”3 When Ms. Sulerzyski reached 

21 years of age, she was transitioned from the Model Waiver program to the Rare and 

2 A jejunostomy is an opening made in the jejunum (a part of the small intestine) 

allowing a feeding tube to be placed in the small intestine. Jejunostomy, NATIONAL 

CANCER INSTITUTE: NCI DICTIONARY OF CANCER TERMS, https://www.cancer.gov/

publications/dictionaries/cancer-terms/def/jejunostomy (last visited Jan. 18, 2023).

3 Home Care for Disabled Children Under a Model Waiver is described in COMAR 

10.09.27.01, et seq.
3

Expensive Case Management program (“REM”),4and continued receiving a total of 137 

hours of PDN per week. Her parents arranged for Ms. Sulerzyski to live in a private 

residence near their home either by herself or with another disabled roommate. 

As part of the plan to enable Ms. Sulerzyski to live in her own home, she requested

the Department, through its Division of Nursing Services, to increase her approved hours 

of weekly PDN services to “24/7 PDN services,” i.e., 168 hours per week. The Division 

of Nursing Services denied Ms. Sulerzyski’s request based on a COMAR regulation that 

premises PDN services on the availability of “at least one caregiver willing and able to 

accept responsibility for the participant’s care when the nurse . . . is not available.” 

COMAR 10.09.53.04A(10). Because the Division of Nursing Services determined that

Ms. Sulerzyski did not have a person who satisfied the Department’s regulatory 

requirements for a willing and able caregiver, it concluded that it had “no choice but to 

abandon the development of the proposed assessment plan.”

Ms. Sulerzyski appealed this decision to the Office of Administrative Hearings 

(“OAH”). The Department moved to dismiss the appeal, arguing that Ms. Sulerzyski failed 

to state a claim upon which relief could be granted because the REM regulations do not 

provide for 24/7 PDN services except in the case of temporary exigent circumstances. Ms. 

Sulerzyski attached three affidavits to her opposition to the motion to dismiss, including 

the affidavit of Mother, and affidavits from two individuals involved in Ms. Sulerzyski’s 

transition to the new home. Mother’s affidavit addressed the caregiver requirement relied 

4 REM is described in COMAR 10.09.69.01, et seq.
4

on by the Division of Nursing Services in denying the request for 24/7 PDN services, 

stating, in part, that: “Abigail’s aunt, Donna Abramczyk, has agreed to be a willing and 

able caregiver when nursing services are unavailable;” “I [(Mother)] work full-time and 

have a medical condition that limits my ability to be an alert and awake caregiver;” and 

“Abigail’s father and legal guardian, David Sulerzyski, works full-time and is on call on 

weekends.” Additionally, Ms. Sulerzyski attached her Service Funding Plan, which 

describes the extensive medical services she requires.

A remote hearing was held on December 1, 2020. The arguments advanced by the 

parties at the hearing were substantially similar to their arguments in this appeal, which we 

discuss in detail below.

Because the ALJ considered the affidavits attached to Ms. Sulerzyski’s opposition, 

he treated the Department’s motion to dismiss as a motion for summary decision. 5 The 

ALJ found that there was no dispute of material fact:

5 The OAH procedural regulations provide in COMAR 28.02.01.12:

C. Motion to Dismiss. Upon motion, the ALJ may issue a proposed or final 

decision dismissing an initial pleading that fails to state a claim for which 

relief may be granted.

D. Motion for Summary Decision.

(1) A party may file a motion for summary decision on all or part of an 

action on the ground that there is no genuine dispute as to any material 

fact and the party is entitled to judgment as a matter of law.

(2) A motion for summary decision shall be supported by one or more of 

the following:

(continued)
5

The matter before me is not whether [Ms. Sulerzyski] needs 24/7 care, but 

whether [Ms. Sulerzyski] has a caregiver as required under the regulations, 

and she, by her own admission, does not. The affidavit of her mother and 

guardian, attached to the Opposition, confirms that both of her guardians are 

unable to act as caregivers and the person she identified as her caregiver is 

only available for emergencies.

The ALJ concluded that a REM participant “is required to have a caregiver who is available 

to provide services beyond emergencies,” and granted summary decision in favor of the 

Department.

(a) An affidavit;

(b) Testimony given under oath;

(c) A self-authenticating document; or

(d) A document authenticated by affidavit.

(3) A response to a motion for summary decision:

(a) Shall identify the material facts that are disputed; and

(b) May be supported by an affidavit.

(4) An affidavit supporting or opposing a motion for summary decision 

shall:

(a) Conform to Regulation .02 of this chapter;

(b) Set forth facts that would be admissible in evidence; and

(c) Show affirmatively that the affiant is competent to testify to the 

matters stated.

(5) The ALJ may issue a proposed or final decision in favor of or against 

the moving party if the motion and response show that there is no 

genuine dispute as to any material fact and that the party in whose 

favor judgment is entered is entitled to judgment as a matter of law.
6

Ms. Sulerzyski requested judicial review of the ALJ’s decision in the Circuit Court 

for Anne Arundel County. The circuit court vacated the ALJ’s decision, ruling that the 

ALJ erred in converting the motion to dismiss into a motion for summary decision.6 The 

Department noted this timely appeal.

STANDARD OF REVIEW

“In an appeal from judicial review of an agency action, we look through the decision 

of the circuit court and review the agency’s decision directly.” Concerned Citizens of 

Cloverly v. Montgomery Cnty. Plan. Bd., 254 Md. App. 575, 598 (2022) (quoting W. 

Montgomery Cnty. Citizens Ass’n v. Montgomery Cnty. Plan. Bd., 248 Md. App. 314, 332–

33 (2020)). When we review an ALJ’s granting of summary decision, “we are concerned 

with whether there was a dispute as to any material fact and, if not, whether the movant 

was entitled to judgment as a matter of law.” I.B. v. Frederick Cnty. Dep’t of Soc. Servs., 

6 Because we affirm the circuit court’s judgment vacating the ALJ’s decision on 

other grounds, we need not decide whether a motion to dismiss before an ALJ may be 

converted to a motion for summary decision based on the non-moving party’s inclusion of 

matters outside the pleading in its response. We note that the regulations governing OAH 

procedure provide that an ALJ shall “[t]ake action to avoid unnecessary delay in the 

disposition of the proceedings,” and an ALJ has the power to “[i]ssue such orders as are 

necessary to procure procedural simplicity and administrative fairness and to eliminate 

unjustifiable expense and delay.” COMAR 28.02.01.11A(2), B(12). We also note that, in 

a court proceeding, the Maryland Rules provide that “If, on a motion to dismiss for failure 

of the pleading to state a claim upon which relief can be granted, matters outside the 

pleading are presented to and not excluded by the court, the motion shall be treated as one 

for summary judgment[.]” Md. Rule 2-322(c). In such event, the parties are to be “given 

reasonable opportunity to present all material” relevant to a motion for summary judgment. 

Id. In any event, Ms. Sulerzyski has not proffered any prejudice she sustained as a result 

of the ALJ’s conversion of the motion to dismiss to a motion for summary decision.
7

239 Md. App. 556, 562 (2018) (quoting Casey v. Grossman, 123 Md. App. 751, 765 

(1998)).

When reviewing the agency’s findings of fact, we apply the “substantial evidence” 

standard, “under which the court defers to the facts found and inferences drawn by the 

agency when the record supports those findings and inferences.” Concerned Citizens of 

Cloverly, 254 Md. App. at 598 (quoting Md. Dep’t of Env’t v. Cnty. Comm’rs, 465 Md. 

169, 201 (2019)).

With respect to an agency’s legal conclusions, a reviewing court accords the 

agency less deference than with respect to fact findings or discretionary 

decisions. In particular, a court will not uphold an agency action that is based 

on an erroneous legal conclusion. However, in construing a law that the

agency has been charged to administer, the reviewing court is to give careful 

consideration to the agency’s interpretation.

Id. (citations omitted) (quoting Md. Dep’t of Env’t, 465 Md. at 202–03).

DISCUSSION

I. GENERAL OVERVIEW OF THE MEDICAID PROGRAM

Because this case concerns Medicaid regulations, we begin by providing a short 

background to the Medicaid program. The Medicaid Act was first enacted by Congress in 

1965, and was

designed to enable states, as far as practicable, to furnish medical assistance

to individuals whose income and resources are insufficient to meet the costs 

of necessary medical services. To that end, the Act established a medical 

assistance program, which is a jointly funded collaboration between the 

states and the federal government. It is a voluntary program, in which a state 

may elect, but is not compelled, to participate.

Jackson v. Millstone, 369 Md. 575, 580 (2002). The federal government will reimburse 

the state a portion of the cost of an approved Medicaid program. Id.
8

While the federal government establishes broad policy, secures state 

compliance with the statute, and dispenses federal funds to supplement state 

spending on [M]edicaid, there exists some latitude for each state to determine 

which of its citizens qualify for this form of medical insurance and which 

services its program will provide. The state agency charged with dispensing 

the state [M]edicaid program is responsible for interpreting, administering, 

and complying with federal [M]edicaid statutes and regulations. Within 

broad federal rules, each state decides eligibility groups, types and range of 

services, payment levels for services, and administrative and operating 

procedures.

Id. at 580–81. The State of Maryland “cannot set a higher bar for eligibility [for a Medicaid 

program] than is prescribed by the federal government.” Md. Dep’t of Health & Mental 

Hygiene v. Brown, 177 Md. App. 440, 465 (2007).

“Maryland has chosen to participate in the [M]edicaid program . . . through the 

Maryland Medical Assistance Program, operated by the Department of Health.” Jackson, 

369 Md. at 581. The Maryland Medical Assistance Program contains numerous “subprograms” within it, including two relevant to the present case—the Rare and Expensive 

Case Management program (“REM”), and the Early and Periodic Screening, Diagnosis, 

and Treatment program (“EPSDT”). COMAR 10.09.69; COMAR 10.09.53. Both of these 

programs are governed by federal and state Medicaid statutes and regulations.

Although REM is not specifically mentioned in the federal statutes or regulations, 

because the REM program was created as part of Maryland’s implementation of Medicaid,

it is subject to federal Medicaid requirements for each of the services it covers. As 

previously noted, this case involves Ms. Sulerzyski’s request for “private duty nursing 

services,” which are defined in federal regulations as “nursing services for beneficiaries 

who require more individual and continuous care than is available from a visiting nurse or 
9

routinely provided by the nursing staff of the hospital or skilled nursing facility.” 42 C.F.R. 

§ 440.80. PDN may only be provided by a registered nurse (“RN”) or licensed practical 

nurse (“LPN”). 42 C.F.R. § 440.80(a). “Each service” provided under Medicaid “must be 

sufficient in amount, duration, and scope to reasonably achieve its purpose,” although 

“[t]he agency may place appropriate limits on a service based on such criteria as medical 

necessity or on utilization control procedures.” 42 C.F.R. § 440.230(b), (d).

We note that the federal EPSDT requirements for services provided to children

(defined in the federal regulations as individuals under age 21) are significantly more 

detailed than requirements related to the services for adults over age 21 that Maryland 

provides through REM. Because the dispute in this case centers on the scope of REM’s 

incorporation of EPSDT regulations, our analysis requires us to examine and consider 

relevant EPSDT regulations even though Ms. Sulerzyski is no longer eligible for EPSDT 

services.

The federal requirements for EPSDT programs are substantially found in 42 U.S.C. 

§ 1396d(r), which defines “early and periodic screening, diagnostic, and treatment 

services.” The multiple subsections of 42 U.S.C. § 1396d(r) provide a list of the minimum 

required services a state must provide under its EPSDT program. These include screening, 

vision, dental, and hearing services as well as “[s]uch other necessary health care, 

diagnostic services, treatment, and other measures described in subsection (a) to correct or 

ameliorate defects and physical and mental illnesses and conditions discovered by the 

screening services, whether or not such services are covered under the State plan.” 42 

U.S.C. § 1396d(r)(1)–(5). Subsection (a) of 42 U.S.C. § 1396d defines the term “medical 
10

assistance,” and enumerates thirty-one categories of types of medical care, including PDN.

II. THE INTERPRETATION ISSUE

As mentioned above, Ms. Sulerzyski has received PDN services since infancy and,

upon reaching the age of 21, she became a participant in the REM program. A list of 

requirements for coverage of REM PDN services is provided in COMAR 10.09.69.11A, 

which provides in relevant part,

A. The Program shall cover shift nursing services provided by an RN or LPN 

when:

(1) The services are more individualized and continuous than what is 

available under the home health program;

(2) The services are delivered to the participant in the participant’s home, 

in school, or in other normal life activity setting or settings which 

occur outside the participant’s home;

(3) Services are provided to a REM participant who is 21 years old or 

older; [and]

(4) Services are rendered in accordance with COMAR 10.09.53[.]

The requirement in 10.09.69.11A(4) that REM PDN services be “rendered in accordance 

with COMAR 10.09.53,” i.e., the EPSDT regulations, is at the center of this appeal.

The parties agree that COMAR 10.09.69.11A(4) incorporates 10.09.53.04A, B, and 

C into the REM program, although the Department argues that other EPSDT sections are 

also incorporated. Sections B and C of 10.09.53.04 address specific requirements for

EPSDT services rendered by RNs and LPNs, such as documentation of services and 

periodic supervisory visits, and are not directly relevant in this appeal. Section A of 

10.09.53.04 is similar to the REM provision 10.09.69.11A, providing a list of requirements 
11

for “covered” PDN services.

7

 COMAR 10.09.53.04A sets forth ten requirements for 

participants to receive EPSDT services, some of which overlap those listed in 

10.09.69.11A governing REM services. The principal issue on appeal is the interpretation 

of the requirement in 10.09.53.04A(10):

(10) Participant has at least one caregiver willing and able to accept 

responsibility for the participant’s care when the nurse . . . is not 

available.

The parties fundamentally disagree about when a caregiver needs to be available under 

10.09.53.04A(10). The parties also disagree whether 10.09.53.05B (part of EPSDT’s 

“Limitations” provision) is applicable to Ms. Sulerzyski’s request for REM PDN care. 

COMAR 10.09.53.05B provides:

Services to substitute for care ordinarily rendered by the caregiver or 

caregivers shall be considered medically necessary:

(1) When the services meet the requirements of Regulation .04A of this 

chapter; and

(2) When the:

(a) Participant requires an awake and alert caregiver at all times;

(b) Caregiver or caregivers provide documentation, including work 

schedule, commuting times, and school attendance records . . . , 

that substitute care is necessary to allow employment or school 

attendance; or

(c) Caregiver or caregivers provide documentation of emergency 

circumstances, as determined by the Department, including but not 

limited to the inability of the primary caregiver to provide care due 

to hospitalization or an acute debilitating illness for up to a 60-day 

period.

7 COMAR 10.09.53.04A includes similar EPSDT services rendered by a CNA or 

HHA. The parties agree that PDN services may only be provided by an RN or LPN.
12

The Department contends that this EPSDT provision is incorporated into REM’s PDN

coverage requirements. In its brief, the Department concisely summarizes its argument 

why 24/7 PDN services are not authorized as a matter of law:

[I]n the absence of a willing and able caregiver who can and will render the 

participant’s care during the hours they do not work, attend school, or sleep, 

PDN services are not covered by Medicaid. PDN licensed nurses are 

therefore never available on a 24/7 basis because that arrangement would 

necessarily exclude the daily participation of the willing and able 

caregiver(s) required by COMAR 10.09.53.04A(10), 10.09.53.05A(12),[8]

and 10.09.53.05B, rendering the regulatory framework superfluous. Rather, 

the regulations make the services of a licensed nurse available only as an 

adjunct to the willing and able caregiver’s care during the three specific 

circumstances noted in 10.09.53.05B. At all other times, the responsibility 

for rendering the participant’s nursing care belongs to the gratuitous willing 

and able caregiver(s).

The ALJ accepted the Department’s argument that PDN services are available 

during the three specific circumstances provided in COMAR 10.09.53.05B, i.e., while the 

caregiver is sleeping, working, or attending school.

9

Ms. Sulerzyski responds that the Medicaid regulations focus on providing services 

that are medically necessary. As noted, she accepts COMAR 10.09.53.04A(10)’s 

requirement that she must have “at least one caregiver willing and able to accept 

responsibility” for her care when “the nurse . . . is not available,” but she contends that 

8 COMAR 10.09.53.05A(12) provides that the EPSDT program does not cover 

“[s]ervices specified in Regulation .04 of this chapter which duplicate or supplant services 

rendered by the recipient’s family caregivers or primary caregivers as well as other 

insurance, privilege, entitlement, or program services that the recipient receives or is 

eligible to receive[.]”

9 The parties do not dispute that PDN services may be provided in “emergency 

circumstances” as described in COMAR 10.09.53.05B(2)(c).
13

Mother’s affidavit sufficiently satisfies—at least for summary decision purposes—the 

regulation’s caregiver requirement. She interprets 10.09.53.05B as expanding the scope of 

medically necessary skilled nursing services by creating an additional category of 

medically necessary care for participants while their caregivers sleep, work, and attend 

school. In Ms. Sulerzyski’s view, the Department’s interpretation of the EPSDT provision

10.09.53.05B as imposing limitations on REM PDN participants “violates the medical 

necessity standard required by federal and state law.”10 She further notes that the EPSDT 

and REM regulations do not explicitly limit the number of PDN service hours a participant 

may receive.

III. ANALYSIS

Our analysis begins with the “medical necessity” standard that permeates Medicaid 

programs and their enabling regulations. 42 U.S.C. § 1396d(r)(5) requires states to provide 

as part of Medicaid EPSDT services “[s]uch other necessary health care [and] treatment 

. . . to correct or ameliorate defects and physical and mental illnesses and conditions 

discovered by screening services[.]” Maryland’s EPSDT regulations define “medically 

necessary” as:

10 We note that COMAR 10.09.53.05B(2)(a) provides that “[s]ervices to substitute 

for care ordinarily rendered by the caregiver . . . shall be considered medically necessary 

. . . [w]hen the [p]articipant requires an awake and alert caregiver at all times[.]” The 

parties did not address the significance of this provision either at the administrative level 

or on appeal. Because we conclude that 10.09.53.05B does not restrict or limit medically

necessary REM PDN care, we shall not offer any opinion as to 10.09.53.05B(2)(a)’s 

meaning or application.
14

[T]he service or benefit is:

(a) Directly related to diagnostic, preventive, curative, palliative, 

rehabilitative, or ameliorative treatment of an illness, injury, 

disability, or health condition;

(b) Consistent with currently accepted standards of good medical 

practice;

(c) The most cost efficient service that can be provided without 

sacrificing effectiveness or access to care; and

(d) Not primarily for the convenience of the consumer, family, or 

provider.

COMAR 10.09.53.01B(15); 10.09.36.01B(13).

Although there is no federal mandate that the Department provide medically 

necessary services to REM participants, Maryland has promulgated regulations specifically 

governing REM programs. See COMAR 10.09.69.01, et seq. We initially note that REM’s 

definition of “medically necessary” is nearly identical to the EPSDT definition.11 Under 

“Covered Services – General Requirements,” 10.09.69.09 provides:

For participants in the REM program, the Program covers and shall 

reimburse for services specified in Regulations .10 and .11 of this chapter 

when these services are:

A. Medically necessary;

B. Prescribed by a:

(1) Physician;

(2) Physician assistant; or

11 The only difference between the definitions is the wording of subsection (d), 

which appears in the REM definition as: “Not primarily for the convenience of the 

participant, the participant’s family, or the provider.” COMAR 10.09.69.02B(35)(d).
15

(3) Nurse practitioner;

C. Preauthorized, when required, by the Department;

D. Rendered in accordance with accepted health professional standards;

E. Rendered in accordance with the treatment plan or physician’s, 

physician assistant’s, or nurse practitioner’s order, or both; and

F. Delivered by an enrolled Medical Assistance provider.

COMAR 10.09.69.09.

Thus, one of the principal threshold requirements for both EPSDT and REM 

coverage is whether the requested services are medically necessary. On that point, there 

appears to be little or no dispute that Ms. Sulerzyski’s request for 24/7 PDN care is 

“medically necessary.” We note that the Service Funding Plan indicated that Ms. 

Sulerzyski’s “medical needs have warranted [her] being assigned a nurse through REM 24 

hours a day,” and the ALJ found it to be undisputed that she “requires 24/7 care.” At the 

administrative hearing, the Department stated: “We aren’t arguing (inaudible) necessity 

here at all. We acknowledged that (inaudible) is certainly entitled to the maximum 

(inaudible) 10.09.69 or that whole (inaudible) 10.09.53.” Though the transcript is not 

entirely clear, the Department appeared to concede that Ms. Sulerzyski requires 24/7 PDNlevel care. Indeed, in its appellate brief, the Department adopts the ALJ’s conclusion that 

the issue to be determined “was not one of ‘medical necessity.’”

Having determined that the record confirms that Ms. Sulerzyski’s request for 24/7 

PDN services meets the “medically necessary” threshold for “covered services,” we turn 

to the crux of the Department’s argument—that the regulations, properly interpreted, place 
16

limitations on the provision of PDN services so as to preclude 24/7 PDN as a matter of law. 

To resolve that issue, we look to accepted principles of statutory and regulatory 

interpretation.

“When we construe an agency’s rule or regulation, ‘the principles governing our 

interpretation of a statute apply.’” Concerned Citizens of Cloverly, 254 Md. App. at 605 

(quoting Hranicka v. Chesapeake Surgical, Ltd., 443 Md. 289, 298 (2015)). “We ‘will 

give effect to the [regulation] as it is written’ so long as ‘the words of the [regulation], 

construed according to their common and everyday meaning, are clear and unambiguous 

and express a plain meaning.’” Id. at 606 (quoting Moore v. RealPage Util. Mgmt., Inc., 

476 Md. 501, 511 (2021)). Where the language of the regulation is ambiguous, “we look 

to the agency’s interpretation of its own regulation.” Id. at 606 (quoting Bd. of Liquor 

License Comm’rs for Balt. City v. Kougl, 451 Md. 507, 517 (2017)). We will defer to the 

agency “unless the agency’s interpretation is clearly erroneous or inconsistent with the 

regulation.” Id. (quoting Para v. 1691 Ltd. P’ship, 211 Md. App. 335, 389 (2013)). 

However, this deference must be tempered with the principle that “remedial statutes are to 

be construed ‘liberally’ in favor of claimants, to suppress the evil and advance the remedy.” 

Cathey v. Bd. of Rev., Dep’t of Health and Mental Hygiene, 422 Md. 597, 605 (2011) (“The 

‘evil’ in this context is the disability that causes Cathey to be unable to live independently, 

and the ‘remedy’ is the services that are provided by the state to assist the disabled adult.”). 

Additionally, we must consider the regulations in the context of the entire regulatory and 

statutory scheme. Kougl, 451 Md. at 516 (“We conduct this plain language inquiry within 

the context of the regulatory scheme, and ‘our approach is a commonsensical one designed 
17

to effectuate the purpose, aim, or policy of the enacting body.’” (quoting Christopher v. 

Montgomery Cnty. Dep’t of Health & Human Servs., 381 Md. 188, 209 (2004))). In this 

case, the regulatory and statutory scheme includes both the state and federal Medicaid 

statutes and regulations.

As previously noted, the parties agree that COMAR 10.09.69.11A(4) at a minimum

incorporates the EPSDT provisions of 10.09.53.04A, B, and C, and that consequently the 

caregiver requirement of 10.09.53.04A(10) applies to REM PDN services.12 We likewise 

agree that 10.09.69.11A(4) incorporates only those parts of the EPSDT regulations that 

concern coverage requirements for PDN services. Indeed, the express language of the

REM regulation states that “[t]he Program shall cover shift nursing services provided by 

an RN or LPN when: . . . (4) Services are rendered [by an RN or LPN] in accordance with 

COMAR 10.09.53.” Moreover, the organization of the REM and EPSDT regulations is 

similar, each containing sections that describe their “Covered Services” as well as separate 

provisions governing, inter alia, “Limitations,”13 “Preauthorization Requirements,”14

“Recovery and Reimbursement,”15 and “Payment Procedures.”

16

 The only parts of the 

12 Because the parties agree that a caregiver is required, we shall assume, without 

deciding, that the caregiver requirement complies with federal and state law. See footnote 

22.

13 COMAR 10.09.53.05; 10.09.69.12.

14 COMAR 10.09.53.06; 10.09.69.13.

15 COMAR 10.09.53.08; 10.09.69.15.

16 COMAR 10.09.53.07; 10.09.69.14.
18

EPSDT regulations that describe coverage requirements for PDN services are 

10.09.53.04A, B, and C. We therefore agree that these three subsections of 10.09.53.04 

are incorporated into REM by virtue of 10.09.69.11A(4).

17

We do not agree, however, with the Department’s argument that EPSDT’s 

limitations provision, COMAR 10.09.53.05, is incorporated into REM’s PDN coverage 

requirements. COMAR 10.09.69.11A and 10.09.53.05 serve different purposes within 

their respective chapters. COMAR 10.09.69.11A describes coverage requirements for 

REM PDN services; its “coverage” analog in EPSDT is 10.09.53.04. COMAR 10.09.53.05 

concerns limitations on all types of EPSDT services; its “limitations” analog in REM is 

10.09.69.12. It defies common sense to interpret 10.09.69.11A(4)—a regulation 

concerning REM PDN coverage—as incorporating “Limitations” applicable to EPSDT, 

especially in light of the fact that REM also has a separate and distinct “Limitations” 

section. See COMAR 10.09.69.12. Furthermore, incorporation of 10.09.53.05 into REM 

would create irreconcilable inconsistencies. For example, 10.09.53.05A(11) provides that 

EPSDT will not cover “[s]ervices not ordered by the recipient’s primary medical provider 

as a result of a partial or complete EPSDT screen.” Because REM participants do not 

17 To the extent that the Department suggests that the entirety of the EPSDT 

regulations in 10.09.53, consisting of 10.09.53.01 through .11, are incorporated into the 

coverage requirements for REM PDN services, we reject that argument. To construe the 

regulation in this broad manner would mean that EPSDT provisions regarding licensing 

requirements for service providers, preauthorization requirements, and payment of service 

providers by the Department would all be part of the REM PDN coverage requirements. 

Because such an interpretation would result in substantial overlap and inconsistencies in 

the EPSDT and REM regulations, we summarily reject that interpretation as illogical.
19

undergo EPSDT screens, that EPSDT provision cannot logically be incorporated in REM. 

Additionally, 10.09.53.05D provides: “Nursing services may only be provided to EPSDT 

eligible individuals under 21 years old.” But REM participants must be over 21 years old. 

If this age-specific EPSDT limitation were incorporated into REM’s PDN coverage 

requirements, REM PDN services would not be available to any of the program’s 

participants. In short, that the respective “Limitations” sections in REM (10.09.69.12) and 

EPSDT (10.09.53.05) are each independently comprehensive in nature—sometimes 

overlapping and sometimes inconsistent with one another—compels the conclusion that 

the EPSDT limitations provisions were not meant to be incorporated in REM.

Even if we were to assume that COMAR 10.09.69.11A(4) incorporated 

10.09.53.05B, as the Department suggests, the Department’s interpretation is contrary to 

10.09.53.05B’s plain language. Looking at 10.09.53.05B within the context of the EPSDT 

framework, we agree with Ms. Sulerzyski that this provision describes an additional

category of “medically necessary” services.18 After delineating services not covered by 

EPSDT in section A, 10.09.53.05 proceeds in section B to define services that “shall be 

considered medically necessary.” Thus, under the regulation “[s]ervices to substitute for 

care ordinarily rendered by the caregiver” are deemed medically necessary if (1) the 

services “meet the requirements” of EPSDT coverage in 10.09.53.04A and (2) a caregiver 

is physically unavailable due to sleep, work, school, or temporary emergency. In this way, 

18 Because COMAR 10.09.53.05B is located in the general EPSDT “Limitations” 

provision, it concerns not only PDN services, but also services rendered by CNAs and 

HHAs under 10.09.53.04A and D.
20

10.09.53.05B expressly delineates care as “medically necessary” that might otherwise not 

be considered medically necessary, or would be barred by one or more of the limitations 

listed in 10.09.53.05A. This interpretation is bolstered by 10.09.53.05B’s placement in the 

“Limitations” provision immediately after the list of circumstances wherein the 

Department will not cover EPSDT services, indicating that its purpose is to act as an 

exception to or explanation of those limitations.19 

If COMAR 10.09.53.05B acted as the Department suggests—to limit the 

availability of otherwise medically necessary care to only those times when the caregiver 

is physically unavailable—certain other provisions concerning EPSDT PDN services 

would be undermined. The services described in 10.09.53.04A(6) (“supervision of family 

caregivers in the home while family caregivers practice the skills necessary to provide care 

to the recipient in accordance with the established plan of care”) would be impossible to 

provide, because, by limiting nursing services to only those times when a caregiver is 

unavailable as a result of sleep, work, or school, there would be no time during which 

family caregiver supervision could occur. Additionally, under the Department’s 

interpretation that PDN services are available only when the caregiver is asleep, at work, 

or attending school, 10.09.53.04H (“Services shall be decreased as the caregivers become 

better able to meet the participant’s needs”) would generally only come into effect when 

the caregiver’s sleep, work, or school schedules decrease.

19 For example, this provision clarifies that the prohibition of services provided 

merely “for the convenience or preference of the recipient or the primary caregiver” does 

not preclude coverage of services provided for the purpose of allowing caregivers to sleep, 

work, or attend school. See COMAR 10.09.53.05A(14).
21

We further note the Department’s own application of its regulations does not follow 

its stated interpretation that COMAR 10.09.53.05B defines the only times during which 

PDN is available. Although this issue can be further developed on remand, the 137 hours 

of PDN services that Ms. Sulerzyski currently receives apparently are not based on her 

caregivers’ work, school, and sleep schedules. Moreover, the Department’s statement

before the ALJ that “When somebody transitions back into their [home], it is not unusual 

to get additional extra hours that are for the purposes of ensuring the willing and able 

caregivers are properly trained,” is inconsistent with its stated interpretation that PDN 

services are defined and limited by the caregivers’ work, school, and sleep schedules.

Finally, the Department’s interpretation that PDN services are available only when 

the caregiver is sleeping, working, commuting, or attending school as described in 

COMAR 10.09.53.05B(2) appears to be inconsistent with applicable caselaw. The 

Supreme Court of Maryland20 has held that federal statutes require states to provide EPSDT 

participants with medically necessary care, without consideration of additional criteria. See 

Jackson, 369 Md. at 600. The federal courts are in accord. Alberto N. v. Hawkins, No. 

6:99-CV-459, 2007 WL 8429756, at *7 (E.D. Tex. June 8, 2007) (“Every Circuit 

addressing the reach of this provision has held that state Medicaid agencies do not have the 

discretion to deny medical services to beneficiaries under the age of twenty-one if those 

services are necessary to correct or ameliorate a beneficiary’s medical condition.”).

20 At the November 8, 2022 general election, the voters of Maryland ratified a 

constitutional amendment changing the name of the Court of Appeals of Maryland to the 

Supreme Court of Maryland. The name change took effect on December 14, 2022.
22

In Jackson, the Supreme Court of Maryland examined the federal requirements for 

EPSDT programs. In that case, two EPSDT recipients requested preauthorization for lifesaving liver transplant surgeries. Jackson, 369 Md. at 579. One of the recipients, Jackson, 

had received two prior liver transplants, the first of which failed and the second of which 

his body rejected. Id. at 582. After the second transplant he was placed in foster care and 

was not always given his medication, which contributed to the rejection of the liver. Id. at 

582–83. The Department denied preauthorization for a third transplant, stating that “‘a 

third transplant was not necessary or appropriate for preapproval for reimbursement’ 

because [Jackson] ‘remains at great risk for future transplant failure.’” Id. at 583. The 

second recipient, Nettles, was initially granted preauthorization for a liver transplant, but 

no matching liver became available during the 60-day preauthorization period. Id. When 

she sought recertification for the preauthorization, “the Department requested 

supplemental information regarding [Nettles’] other diagnosed medical problems and how 

they would affect her liver transplantation surgery and chances of recovery.” Id. Nettles’ 

primary health care provider submitted the requested information “and stated that the other 

diseases would not affect [Nettles’] chances of a successful liver transplantation.” Id. The 

Department nonetheless denied recertification, “stating that, because it could not predict 

how [Nettles’] other diseases would affect the liver transplantation surgery, it considered 

the ‘liver transplant in [Nettles’] situation experimental.’” Id. at 584. In both cases, the 

children’s primary care provider performed the surgeries at its own expense, believing the 

surgeries to be necessary to save the children’s lives. Id. at 583–84. Jackson’s surgery 

was successful; however, Nettles died of liver failure over a year after the surgery. Id. 
23

Jackson and the personal representative of the estate of Nettles filed a complaint seeking 

an injunction preventing the Department from using the “appropriateness” requirement 

when considering preauthorization of services for children. Id. at 584–85.

Our Supreme Court noted that 42 U.S.C. § 1396d(r)(5) requires states to provide as 

part of Medicaid EPSDT services “such other necessary . . . treatment . . . to correct or 

ameliorate . . . conditions discovered by screening services.” Id. at 596–97 (alterations in 

original). At the time Jackson was decided, a Maryland EPSDT regulation provided:

The Department will preauthorize services when the provider submits to the 

Department or its designee adequate documentation demonstrating that the 

service to be preauthorized is necessary and appropriate. “Necessary” means 

directly related to diagnostic, preventative, curative, palliative, or 

rehabilitative treatment. “Appropriate” means an effective service that can 

be provided, taking into consideration the particular circumstances of the 

recipient and the relative cost of any alternative services which could be used 

for the same purpose.

Id. at 579 n.2. The Court held that the Department may not add criteria beyond medical 

necessity for EPSDT services:

As the Court has stated, once Maryland elected to participate in the 

federal Medicaid program, it agreed to comply with all mandates provided in 

the federal Medicaid Act and other related provisions. The federal 

requirement most relevant to this appeal is that participating states are 

required to administer periodic medical screenings to persons under 21, and 

to provide medically necessary treatment for such ailments and conditions 

that are discovered during those screenings. The federal program makes no 

mention of utilizing an “appropriateness” analysis in determining whether a 

[M]edicaid-eligible child should receive medically necessary treatments 

provided through EPSDT services. Nevertheless, the Maryland [M]edicaid 

provision regarding preauthorization of services . . . requires that medically 

necessary treatment for a [M]edicaid-eligible child must also be 

“appropriate,” which is beyond the dictates of federal law. The federal 

guidelines allow states no discretion to use an “appropriateness” test in 

deciding whether a person under 21 can receive medically necessary 

treatment. Therefore, because the provision imposes additional criteria upon 
24

qualified recipients, which illegally denies services to those who would 

normally receive medically necessary treatment, we agree with the plaintiffs 

that [the preauthorization provision] is partially invalid under federal law.

Id. at 600 (emphasis added).

Several federal district courts have applied similar reasoning concerning limitations 

on EPSDT PDN services. Recently, the United States District Court for the Northern 

District of Georgia considered whether the state’s “teach and wean” policy, whereby 

caregivers are taught skilled nursing procedures and then PDN hours are reduced on the 

assumption that caregivers have mastered those skills, complied with the federal Medicaid 

Act’s EPSDT requirements. M.H. v. Berry, No. 1:15-CV-1427-TWT, 2021 WL 1192938, 

at *6 (N.D. Ga. March 29, 2021). The court concluded that Georgia’s “decision to reduce 

the skilled nursing hours [was] not based on medical necessity but arbitrarily shifted more 

of the burden of a child’s care to the caregiver without any consideration of [the]

caregiver’s capacity to provide the care.” Id. Instead, 

the determination of whether private nursing services are medically 

necessary should be based on whether a service is medically necessary to 

correct or ameliorate a beneficiary’s condition, not on whether or not the 

caregiver is able to provide those skills. The Medicaid Act requires [that]

private duty nursing services be provided by licensed nurses. It does not 

provide for the delegation of activities which require the knowledge and skill 

of a licensed nurse.

Id. at *7 (emphasis added).

Similarly, the United States District Court for the Eastern District of Texas

considered whether the Texas EPSDT program’s policy limiting PDN services based on a 

requirement that parents provide skilled nursing care to their children was in compliance 

with the federal EPSDT requirements. Alberto N. v. Hawkins, No. 6:99-CV-459, 2007 WL 
25

8429756 (E.D. Tex. June 8, 2007). That court considered both the “necessary” language

from 42 U.S.C. § 1396d(r)(5), and the federal requirement that PDN services be provided 

by an RN or LPN from 42 C.F.R. § 440.80, and concluded:

[A] determination of whether private duty nursing services are medically 

necessary should not include whether or not the caregiver, or an alternate 

caregiver, or a friend or a neighbor, is able to provide those skills. The issue 

is whether a service is medically necessary to correct or ameliorate a 

beneficiary’s condition. Nothing in the Medicaid Act or its implementing 

regulations allows states to avoid their obligation to provide medically 

necessary services to EPSDT beneficiaries based upon non-medical criteria, 

such as the ability of the primary caregiver to provide medical services 

themselves, or medical criteria that does not track the Medicaid Act’s 

“correct and ameliorate” standard.

. . .

. . . [W]hen a child has a chronic condition that requires “more individual and 

continuous care” by a licensed nurse, a parent should not be called upon to 

“fill the gap” and provide necessary medical services based on what they can 

or cannot be trained to do. A child’s medical need, and that child’s need for 

medically necessary services, does not change simply because a caregiver 

acquires some training. By employing a standard outside the “correct and 

ameliorate” standard established by the Medicaid Act, Texas Medicaid 

renders Plaintiffs’ entitlement to all medically necessary services 

meaningless.

Id. at *13 (emphasis added) (citations omitted). 

The caselaw is clear that the denial of EPSDT services may only be based on lack 

of medical necessity, and not on any additional criteria. Jackson, 369 Md. at 600. The 

federal cases hold that limitations on PDN based on the presence of caregivers able to 

provide skilled nursing care is an additional criterion beyond what is medically necessary 

for the participant. M.H., 2021 WL 1192938, at *7; Alberto N., 2007 WL 8429756, at *13. 

Similarly, we reject the Department’s attempt to incorporate COMAR 10.09.53.05B into 
26

the REM program as a limitation on covered services because that interpretation 

substantially ignores what is medically necessary for the participant’s care. To that extent, 

the Department’s interpretation invalidly adds criteria that effectively “denies services to 

those who would normally receive medically necessary treatment.” Jackson, 369 Md. at 

600. We will not adopt an interpretation of a regulation that would render it invalid. See 

Hill v. Baltimore County, 86 Md. App. 642, 651–52 (1991) (“When confronted with two 

proposed interpretations—one rendering legislation valid and the other invalid—courts 

generally attempt to read the enactment in a manner to render it valid.”). Moreover, our 

interpretation is consistent with the principle that “remedial statutes are to be construed 

‘liberally’ in favor of claimants.” Cathey, 422 Md. at 605.

As discussed above, the parties do not dispute that Ms. Sulerzyski requires 24/7 

PDN-level care. Because the Department must provide medically necessary care under 

REM (and under EPSDT for participants under age 21), subject to the requirement that the 

participant have a caregiver and certain other requirements not at issue in this appeal, the 

ALJ erred in ruling as a matter of law that PDN is only available during the times listed in

COMAR 10.09.53.05B.21

Finally, we address the ALJ’s finding that Ms. Sulerzyski does not have a caregiver

as required by COMAR 10.09.69.11A(4)’s incorporation of 10.09.53.04A(10) 

(“Participant has at least one caregiver willing and able to accept responsibility for the 

21 The Department argues that it may “specify the amount, duration, and scope” of 

PDN services pursuant to 42 C.F.R. § 440.230(a). We reject the Department’s assertion 

that 42 C.F.R. § 440.230(a) authorizes the Department to curtail medically necessary PDN 

services based on the caregiver’s work, school, or sleep schedule.
27

participant’s care when the nurse . . . is not available”). Mother’s affidavit clearly indicates 

that Ms. Sulerzyski has at least one caregiver available, stating: “Abigail’s aunt, Donna 

Abramczyk, has agreed to be a willing and able caregiver when nursing services are 

unavailable.” Furthermore, viewing the evidence in the light most favorable to Ms. 

Sulerzyski, the ALJ clearly erred in finding that Ms. Sulerzyski’s “parents/guardians are 

unavailable to act as caregivers” where the only evidence before the ALJ concerning the 

parents’ availability was Mother’s affidavit, where she stated:

17. I am Abigail’s mother and legal guardian. I work full-time and have a 

medical condition that limits my ability to be an alert and awake 

caregiver.

18. Abigail’s father and legal guardian, David Sulerzyski, works full-time 

and is on call on weekends.

The affidavit also indicated that the parents had been acting as Ms. Sulerzyski’s caregivers 

on weekends. Moreover, that Ms. Sulerzyski had been receiving 137 hours of PDN 

services per week for some period of time before her request for 24/7 PDN services leads 

us to infer that she has had a caregiver acceptable to the Department. Viewed in a light 

most favorable to Ms. Sulerzyski as the non-moving party, Ms. Sulerzyski produced 

sufficient evidence for purposes of summary decision that she has a “caregiver” as 

contemplated by 10.09.53.04A(10). The ALJ erred in concluding otherwise.

For the reasons stated, we affirm the circuit court’s vacation of the ALJ’s summary 

decision in favor of the Department, and remand to the OAH for further proceedings 
28

consistent with this opinion.

22

JUDGMENT OF THE CIRCUIT COURT

FOR ANNE ARUNDEL COUNTY

AFFIRMED. CASE REMANDED TO 

THE OFFICE OF ADMINISTRATIVE 

HEARINGS FOR FURTHER 

PROCEEDINGS CONSISTENT WITH 

THIS OPINION. COSTS TO BE PAID BY 

APPELLANT.

22 Ms. Sulerzyski also argues that requiring her to have a caregiver violates the 

Americans with Disabilities Act (“ADA”) because it would prevent her from living in the 

“most integrated setting” appropriate to her needs. See 28 C.F.R. § 35.130(d) (“A public 

entity shall administer services, programs, and activities in the most integrated setting 

appropriate to the needs of qualified individuals with disabilities.”). Ms. Sulerzyski relies 

upon Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), to support this argument. 

Olmstead concerned the placement of intellectually and mentally disabled individuals in 

institutions rather than community settings. Id. at 587. The Supreme Court held that an 

individual must be placed in a community setting when “community placement is 

appropriate, the transfer from institutional care to a less restrictive setting is not opposed 

by the affected individual, and the placement can be reasonably accommodated, taking into 

account the resources available to the State and the needs of others with mental 

disabilities.” Id. This summary decision record is clearly insufficient to permit the ALJ 

(or this Court) to make any determination as to the factors enumerated in Olmstead.