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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 81

Leon V. and Cristy V. on behalf of Paige V., 

a minor child, appellees, v. Nebraska

Department of Health and Human

Services et al., appellants.

___ N.W.2d ___

Filed January 18, 2019. No. S-18-197.

1. Administrative Law: Judgments: Appeal and Error. A judgment or 

final order rendered by a district court in a judicial review pursuant to 

the Administrative Procedure Act may be reversed, vacated, or modified 

by an appellate court for errors appearing on the record.

2. ____: ____: ____. When reviewing an order of a district court under 

the Administrative Procedure Act for errors appearing on the record, the 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

3. Judgments: Appeal and Error. An appellate court, in reviewing a district court’s judgment for errors appearing on the record, will not substitute its factual findings for those of the district court where competent 

evidence supports those findings.

4. Administrative Law: Judgments: Statutes: Appeal and Error. To the 

extent that the meaning and interpretation of statutes and regulations are 

involved, an appellate court decides such questions of law independently 

of the decision made by the court below.

5. Administrative Law: Statutes. Properly adopted and filed agency regulations have the effect of statutory law.

6. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

Appeal from the District Court for Lancaster County: Susan

I. Strong, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/18/2019 09:08 AM CST
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 81

Douglas J. Peterson, Attorney General, and Ryan C. Gilbride 

for appellants.

Ann C. Mangiameli and Joanna Uden, Senior Certified Law 

Student, of Legal Aid of Nebraska, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg JJ.

Miller-Lerman, J.

NATURE OF CASE

Because the Nebraska Department of Health and Human 

Services (DHHS) found that Paige V.’s gastrointestinal impairments would not last for at least 12 months, it determined that 

Paige was ineligible for Medicaid funding through the Nebraska 

Medicaid Assistance Program and hence ineligible for “assistance to the aged, blind, or disabled” (AABD) Medicaid waiver 

services. See Neb. Rev. Stat. § 68-1001 et seq. (Reissue 2018). 

Leon V. and Cristy V., on behalf of their minor child Paige, 

sought review by the district court for Lancaster County under 

the Administrative Procedure Act (APA). The district court 

found that the evidence showed that Paige was disabled for 

purposes of determining Medicaid benefits. The district court 

reversed the DHHS order and remanded the matter with directions to award Paige AABD waiver services and reimburse 

Leon and Cristy for medical expenses. DHHS and two of its 

officers, in their official capacities, appeal. Although they do 

not dispute the finding that Paige was disabled for determining Medicaid eligibility, they claim that the district court erred 

in its instructions on remand when it directed DHHS to award 

Medicaid waiver services and retroactive medical expenses. 

We affirm that portion of the order of the district court which 

found that Paige is disabled, but because we find error in the 

scope of the remand, we reverse the district court’s order of 

remand, and we remand the matter with directions on further proceedings.
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 81

STATEMENT OF FACTS

Leon and Cristy, on behalf of their minor child Paige, 

applied for Medicaid on October 27, 2016. Knowing that 

Paige would be ineligible for Medicaid due to their household 

income, Leon and Cristy requested AABD on November 4. 

Paige was 12 years old at the time of the application. In 2016, 

due to a serious gastrointestinal medical condition, Paige was 

hospitalized several times and underwent surgeries.

DHHS made a disability determination in which it concluded 

that Paige would not be sick long enough to meet the 12-month 

disability durational requirement and denied the application. 

Leon and Cristy requested an administrative hearing regarding 

Paige’s disability determination. Following the hearing, DHHS 

issued a written decision on April 12, 2017, in which it found 

that Paige’s impairments would not last for at least 12 months 

and affirmed the denial.

Leon and Cristy sought review of the disability determination by the district court under the APA. In its January 30, 

2018, order, the district court found that Leon and Cristy had 

established by a preponderance of the evidence that Paige met 

the requirement for a qualifying impairment expected to last for 

at least 12 months and was therefore disabled under applicable 

regulations. The district court reversed the April 12, 2017, 

order of DHHS and remanded the cause “with directions to 

award [Leon and Cristy] AABD Medicaid [w]aiver [s]ervices 

and reimburse [Leon and Cristy] for medical expenses which 

should have been covered on and after October 1, 2016.” In its 

order, the district court denied Leon and Cristy’s request for 

attorney fees, from which denial no appeal has been taken.

DHHS and its officers appeal.

ASSIGNMENT OF ERROR

Although DHHS and its officers do not contest the district 

court’s finding of disability and medical eligibility, they claim 

that the district court erred when it remanded with directions to 

DHHS to award Paige Medicaid waiver services and retroactive medical expenses.
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 81

STANDARDS OF REVIEW

[1-3] A judgment or final order rendered by a district court 

in a judicial review pursuant to the APA may be reversed, 

vacated, or modified by an appellate court for errors appearing 

on the record. J.S. v. Grand Island Public Schools, 297 Neb. 

347, 899 N.W.2d 893 (2017). When reviewing an order of a 

district court under the APA for errors appearing on the record, 

the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. An appellate court, in reviewing 

a district court’s judgment for errors appearing on the record, 

will not substitute its factual findings for those of the district court where competent evidence supports those findings. 

Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d 

892 (2016).

[4] To the extent that the meaning and interpretation of statutes and regulations are involved, an appellate court decides 

such questions of law independently of the decision made by 

the court below. See Melanie M. v. Winterer, 290 Neb. 764, 

862 N.W.2d 76 (2015).

ANALYSIS

At the outset, DHHS and its officers note on appeal that 

there is a distinction between eligibility for Medicaid and eligibility for receipt of AABD Medicaid waiver services. They 

assert generally that this distinction was overlooked by the 

district court, leading it to exceed the proper scope of its order 

of remand. On appeal, they contend specifically that because 

additional criteria must be satisfied before Paige is eligible for 

or could receive AABD Medicaid waiver services, they cannot comply with the district court’s directions on remand as a 

matter of law. We agree.

Relevant Regulations.

AABD services are administered by DHHS and consist of 

money payments to, medical care in behalf of, or any type of 

remedial care in behalf of needy individuals. See § 68-1001. In 
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 81

a recent case, we have described Medicaid waiver services as 

intended for clients who are at a nursing-home level of care but 

choose to receive home and community-based services. Merie 

B. on behalf of Brayden O. v. State, 290 Neb. 919, 863 N.W.2d 

171 (2015).

[5,6] DHHS promulgates rules and regulations providing for 

services to AABD clients. § 68-1001.01. Properly adopted and 

filed agency regulations have the effect of statutory law. Merie 

B. on behalf of Brayden O. v. State, supra. When an appeal 

calls for statutory or regulatory interpretation or presents questions of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the 

court below. See id. Statutory language is to be given its plain 

and ordinary meaning, and we will not resort to interpretation 

to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous. Merie B. on behalf of Brayden O. v. 

State, supra.

The provisions of 480 Neb. Admin. Code, ch. 5 (1998), are 

applicable to this case. Under the regulations, Medicaid waiver 

services are provided statewide to eligible clients for whom a 

slot is available. 480 Neb. Admin. Code, ch. 5, § 002. Under 

§ 002, to be eligible for waiver services, clients must

1. Be eligible for the Nebraska Medical Assistance 

Program (NMAP);

2. Have participated in an assessment with a services 

coordinator;

3. Meet the Nursing Facility (NF) level of care criteria 

(471 NAC 12-000);

4. Have care needs which could be met through waiver 

services at a cost that does not exceed the cap; and

5. Have received an explanation of NF services and 

waiver services and elected to receive waiver services.

The regulations contained in 480 Neb. Admin. Code, ch. 5, 

§ 003.B, and other regulations anticipate that a sequence of 

various events occur prior to becoming eligible for Medicaid 

waiver services. For example, § 003.B4(c) provides that a 
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 81

“child’s waiver eligibility period may begin no earlier that the 

date of the guardian’s signature on the consent form” and the 

“waiver consent form is not valid . . . until the child’s eligibility for Medicaid has been determined.” Thus, to the extent that 

Leon and Cristy contend that the regulations require simultaneous eligibility determinations, we do not agree, and in any 

event, the parties agree that not all criteria in 480 Neb. Admin. 

Code, ch. 5, § 002 et seq., have been achieved. However, to 

the extent that Leon and Cristy assert that an ultimate award 

of waiver services may be retroactive, the appellate briefing of 

DHHS and its officers appears to agree.

DHHS Cannot Provide Medicaid Waiver 

Services Based Solely on Determination 

of Eligibility for Medicaid.

The district court conducted a limited review of the DHHS 

determination that Paige was not disabled for purposes of 

eligibility for Medicaid. Based on the evidence and the law, 

the district court found that Paige satisfied the first requirement of 480 Neb. Admin. Code, ch. 5, § 002, i.e., that she was 

eligible for Medicaid. We find no error in this district court 

finding. Due to the issue raised in the appeal, however, the 

district court’s review was limited in scope; it did not make 

a determination as to the satisfaction of the remaining criteria 

contained in § 002. The only issue on review from DHHS 

was whether Paige had a qualifying disability. Nevertheless, 

in its order, the district court remanded the matter to DHHS 

with directions to award Leon and Cristy full AABD Medicaid 

waiver services.

We agree with DHHS and its officers that under § 002, 

Medicaid “waiver” services is a term of art, defined at 480 

Neb. Admin. Code, ch. 5, § 001.E, and that eligibility for 

Medicaid does not equate to eligibility for Medicaid waiver 

services. With respect to the criteria in § 002 et seq., there 

is no evidence in the record of a services coordinator assessment, a plan of services, a signed consent form, or evidence 
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

LEON V. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 302 Neb. 81

that a waiver slot was available for Paige which would have 

enabled DHHS to provide Paige with appropriate and individualized waiver services. The district court’s instruction on 

remand appears to assume that Paige and the facts met the 

additional criteria in § 002 et seq., with neither proceedings 

nor evidence to this effect. Because the district court’s order 

on remand exceeded the record and the scope of its review, we 

reverse the portion of the order directing payment of Medicaid 

waiver services.

CONCLUSION

Because the only issue presented in the district court for its 

review under the APA was whether Paige’s disability made her 

eligible for Medicaid, the district court exceeded its scope of 

review when it determined that Paige was eligible for Medicaid 

waiver services. We affirm the decision of the district court 

with regard to its disability determination, but reverse the district court’s order of remand which awarded Medicaid waiver 

services. The district court is directed to remand the cause to 

DHHS for further proceedings whereupon Leon and Cristy 

may complete waiver forms and steps required by Nebraska 

law to receive payment for an eligibility period.

 Affirmed in part, and in part reversed

and remanded with directions.