In the Matter of Sulerzyski

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).
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

Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.

2023-03-01 11:30-05:00

Gregory Hilton, Clerk

*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.
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.
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,2 a 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.
2
Expensive Case Management program (“REM”),4 and 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.
3
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)
4
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.

5
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.
6
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.

7
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 “sub-

programs” 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

8
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

9
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

10
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.
11
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).

12
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.

13
[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).
14
(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 PDN-

level 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

15
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

16
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.

17
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.

18
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.

19
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).
20
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.
21
In Jackson, the Supreme Court of Maryland examined the federal requirements for

EPSDT programs. In that case, two EPSDT recipients requested preauthorization for life-

saving 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.

22
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

23
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

24
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

25
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.
26
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

27
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.
28