Merie B. on behalf of Brayden O. v. State

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	919
Cite as 290 Neb. 919
M erie B. on Behalf of Brayden o., appellant, v.
State of neBraSka departMent of health and
huMan ServiceS and vivianne M. chauMont,
director of diviSion of M edicaid and long
terM care, departMent of health
and huMan ServiceS, appelleeS.
863 N.W.2d 171
Filed May 22, 2015. 	No. S-14-007.
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. Administrative Law: Statutes. Properly adopted and filed agency regulations
have the effect of statutory law.
4. Judgments: Statutes: Appeal and Error. When an appeal calls for statutory
interpretation or presents questions of law, an appellate court must reach an
independent, correct conclusion irrespective of the determination made by the
court below.
5. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
6. ____: ____. An appellate court will try to avoid, if possible, a statutory construc-
tion that would lead to an absurd result.
7. Administrative Law: Judicial Notice. Every court of this state may take judicial
notice of any rule or regulation that is signed by the Governor and filed with the
Secretary of State.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
Stephanie 	f. 	Stacy, 	Judge. 	Reversed 	and 	remanded 	with
directions.
Terrance A. Poppe and Benjamin D. Kramer, of Morrow,
Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Michael J. Rumbaugh
for appellees.
Wright, connolly, Stephan, MccorMack, M iller-lerMan,
and caSSel, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:32 AM CST

920 	290 NEBRASKA REPORTS
Wright, J.
I. NATURE OF CASE
Merie B. filed this action on behalf of her daughter,
Brayden 	O., 	who 	suffers 	from 	Coffin-Lowry 	Syndrome.
Brayden is a minor child, and she had been receiving home
and community-based waiver services for approximately 12
years at the time this case began. On November 1, 2012,
the Nebraska Department of Health and Human Services
(DHHS) reassessed her condition. DHHS determined that she
no longer qualified for waiver services and subsequently ter-
minated the services.
Following an appeal hearing, DHHS upheld the discontinu-
ance of services to Brayden. On appeal from DHHS’ decision,
the Lancaster County District Court affirmed. This case comes
to us as an appeal from the judgment entered by the dis-
trict court.
For the reasons discussed below, we reverse the judgment of
the district court and remand the cause with directions.
II. SCOPE OF REVIEW
[1,2] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
court for errors appearing on the record.1 When review-
ing an order of a district court under the Administrative
Procedure Act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.2
III. FACTS
Brayden suffers from Coffin-Lowry Syndrome, which is
generally characterized by craniofacial abnormalities, skeletal
abnormalities, short stature, and hypotonia (a condition causing
low muscle tone and reduced strength). She has also developed
1 Nebraska Account. & Disclosure Comm. v. Skinner, 288 Neb. 804, 853
N.W.2d 1 (2014).
2 Id.

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	921
Cite as 290 Neb. 919
moderate kyphosis (a curving of the spine) and problems with
her feet. She lacks pain awareness and suffers from a seizure
disorder. Brayden’s mother, Merie, is a registered nurse at a
neurological and spinal surgery clinic. She described Coffin-
Lowry Syndrome as follows:
It’s extremely rare. It is an X-linked dominant chro-
mosomal abnormality. [Brayden] was born with [a]gen-
esis [failure to develop during embryonic growth] of her
brain. She has less than 10 percent of her corpus callo-
sum, which in essence is the wiring between the two
hemispheres [of the brain] that makes the connection.
As a registered nurse, Merie is able to provide service in her
home in a way that non-health-care professionals would be
unable. Merie has difficulty both working and personally pro-
viding care for Brayden without waiver services. At the time of
trial, Merie’s husband had been stationed in Afghanistan for 1
year and was unable to assist Merie in caring for Brayden.
Brayden’s disability affects her in many ways. She has
a history of seizures and requires 24-hour supervision. She
was taking Phenobarbital and Dystat to control the seizures.
Merie stated that if she were not trained as a nurse, Brayden
would constantly be in the doctor’s office for treatment. Merie
ensures that Brayden takes her medication.
Brayden has a high palate, which necessitates that she be
monitored for choking when she eats. She requires assistance
at all times in bathing, dressing, and grooming. She is depen-
dent on others and needs constant supervision in all parts
of toileting. There is evidence that she has lost bowel and
bladder control. She has extremely limited cognitive ability.
She requires a hearing aid and has difficulty seeing a level
of print.
At school and on the bus to and from school, Brayden
requires constant supervision and has a one-on-one paraprofes-
sional to assist her at all times. Brayden has no sense of dan-
ger or safety. She needs assistance on the playground, uneven
surfaces, stairs, and curbs. She is almost completely dependent
on others in her ability to communicate. She “communicates
inappropriate intent” and is not able to effectively use commu-
nication boards or other adaptive devices.

922 	290 NEBRASKA REPORTS
As to her behavior, Brayden needs and receives regular
intervention in the form of redirection because she has epi-
sodes of disorientation. She does not have any sense of herself
in relation to space and requires supervision with respect to
orientation. As to judgment, she lacks the ability to solve prob-
lems and make appropriate decisions. She can find the letter
“G” on a keyboard but has difficulty finding other letters. She
can identify the numbers 1 through 5 with 80-percent accuracy
but cannot identify numbers 6 through 10, nor is she accurate
in counting certain sets of items (e.g., two newspapers, three
markers, et cetera).
As a result of her disabilities, Brayden has received home
and community-based waiver services since 2001. Home and
community-based waiver services offer eligible persons who
meet the “Nursing Facility” (NF) level of care the choice
between entering a nursing home facility or receiving sup-
portive services in their homes.3 The benefits under the waiver
program are intended for children that are at a nursing home
level of care. The parents’ income is waived, and services are
then provided at a capped amount, regardless of the parents’
income. Each child receiving services is assigned a services
coordinator who gathers necessary information to submit to
DHHS’ pediatric nurse consultant for the waiver program in
order to make a level of care eligibility determination.
On or about November 1, 2012, DHHS reassessed Brayden’s
continuing eligibility for services. It notified her that home
and community-based waiver services would be discontinued,
effective November 11, because she failed to meet the specific
eligibility criteria. It was determined that Brayden did not have
a medical treatment need, nor was she eligible based on her
“Activities of Daily Living and other Considerations. Manual
Reference 480 NAC 5-002 C1(1f)[sic].”4 (The regulation cited
by DHHS in its notification of termination of waiver services
3 480 Neb. Admin. Code, ch. 5, § 001.A (1998).
4 See 480 Neb. Admin. Code, ch. 5, § 003.C1 (1998) (“[e]ligibility for
services under the waiver may be denied or terminated for any of the
following reasons: . . . f. The client fails to meet the specified eligibility
criteria”).

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	923
Cite as 290 Neb. 919
does not exist; we believe DHHS intended to cite to 480 Neb.
Admin. Code, ch. 5, § 003.C1f, because of later references to
that section.)
Notwithstanding DHHS’ discontinuance of her waiver serv-
ices, the only change in Brayden’s condition was that her
seizures were determined to be controlled with medication.
Brayden was found to be independent in the areas of mobility,
transferring, hearing, and vision. She remained dependent in all
other criteria in the categories considered by DHHS.
Merie appealed DHHS’ evaluation and termination of waiver
services. Following a hearing, DHHS affirmed the termina-
tion of services for Brayden. Merie then appealed to the dis-
trict court, contending that DHHS used the wrong criteria to
evaluate Brayden’s eligibility and that DHHS erred in find-
ing that she did not meet the NF level of care criteria for
waiver services.
Merie claimed that DHHS incorrectly relied upon title 480,
chapter 5, § 3B (1998) (480 NAC 5-003.B), of the Nebraska
Administrative Code and that title 471, chapter 12 (1999) (471
NAC 12-000), contained the appropriate criteria for NF level
of care eligibility. She asserted that DHHS’ assessment instru-
ment—Form 	MILTC-13AD, 	Home 	and 	Community-Based
Waiver Child/Client’s Level of Care Document (exhibit 4)—
did not integrate all the relevant criteria. It is not disputed that
exhibit 4 was the document DHHS used in its assessment of
eligibility for children.
The district court found that the only contested issue was
whether Brayden met the NF level of care criteria. The court
accepted DHHS’ use of title 480, chapter 5, § 3B3b (480 NAC
5-003.B3b) to create exhibit 4 and found this was the regula-
tion that provided the correct criteria. It concluded that the
regulations provided for two distinct waiver services—children
with disabilities and adults with disabilities—and that 480
NAC 5-003.B3b served as the basis for exhibit 4.
The court noted that while the NF level of care criteria in
471 NAC 12-000 were incorporated by reference into title
480,5 they were incorporated as only one part of the criteria
5 See 480 Neb. Admin. Code, ch. 5, § 002 (1998).

924 	290 NEBRASKA REPORTS
for waiver services. It therefore rejected Merie’s claim that
471 NAC 12-000 provided the appropriate regulations for
determining the NF level of care to waiver services eligibil-
ity. It accepted DHHS’ creation and use of exhibit 4 as the
appropriate method of evaluating a child’s NF level of care for
waiver services. Based upon exhibit 4, the court concluded that
Brayden did not satisfy the NF level of care requirement for
waiver services and affirmed the termination of those services.
Merie timely appealed.
IV. ASSIGNMENTS OF ERROR
Merie assigns that the district court erred in finding that she
did not meet the NF level of care criteria for waiver services
and that the district court erred in not using the NF level of
care criteria in chapter 12 of title 471.
V. ANALYSIS
1. relevant regulationS
(a) Issue
We are presented with a question of law, which we decide
independent of the lower court’s determination. The issue is
whether DHHS used the correct NF level of care criteria for
waiver services to evaluate Brayden. To resolve this issue,
we must examine the regulations that describe the criteria for
waiver services. Merie claims that DHHS and the district court
should have considered the NF level of care criteria found in
471 NAC 12-000. DHHS claims that 480 NAC 5-003.B3b is
the regulation that provides the appropriate criteria. We there-
fore look to these provisions of the Nebraska Administrative
Code for resolution.
[3-6] Properly adopted and filed agency regulations have
the effect of statutory law.6 When an appeal calls for statutory
interpretation or presents questions of law, an appellate court
must reach an independent, correct conclusion irrespective of
the determination made by the court below.7 Statutory language
6 See Middle Niobrara NRD v. Department of Nat. Resources, 281 Neb.
634, 799 N.W.2d 305 (2011).
7 Hooper v. Freedom Fin. Group, 280 Neb. 111, 784 N.W.2d 437 (2010).

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	925
Cite as 290 Neb. 919
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.8 An appellate
court will try to avoid, if possible, a statutory construction that
would lead to an absurd result.9
[7] We take judicial notice, as did the district court, of
471 NAC 12-000 and title 480, chapter 5 (1998) (480 NAC
5-000), of the Nebraska Administrative Code. Every court of
this state may take judicial notice of any rule or regulation
that is signed by the Governor and filed with the Secretary
of State.10
(b) Home and Community-Based Waiver
Services for Aged Persons, Adults,
or Children (480 NAC 5-000)
The criteria for waiver services eligibility are described
in 480 NAC 5-000. To be eligible for support through the
“Aged and Disabled Waiver” program, a potential client must
meet three general requirements: “1. Have care needs equal
to those of Medicaid-funded residents in Nursing Facilities;
2. Be eligible for Medicaid; and 3. Work with the services
coordinator to develop an outcome-based, cost effective serv-
ice plan.”11
Certain definitions are relevant to our analysis. An adult—
for purposes of Medicaid and this waiver—is an individual
age 18 or older.12 An aged person is an individual age 65 or
older.13 A child is an individual age 17 or younger.14 Age is the
only distinction among the three descriptions of clients under
this section. “Plan of Services and Supports” is a process for
providing services and supports that takes into consideration
8 Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
9 See In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
10 Neb. Rev. Stat. § 84-906.05 (Reissue 2014).
11 480 Neb. Admin. Code, ch. 5, § 001.A.
12 See id., § 001.E.
13 Id.
14 Id.

926 	290 NEBRASKA REPORTS
each client’s strengths, needs, priorities, and resources resulting
in an individualized, written plan for each client.15 “Waiver” is
defined as “Nebraska’s Home and Community-Based Waiver
for Aged Persons or Adults and Children with Disabilities.”16
The regulations describe the specific “Client Eligibility
Criteria” for home and community-based waiver services.
Clients must meet five specific requirements to be eligible for
waiver services:
Clients eligible for waiver services must -
1. Be eligible for the Nebraska Medicaid 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.17
These regulations are not ambiguous, and they do not dis-
tinguish among clients who are aged persons, adults, or chil-
dren, and therefore, all clients must presumably meet the
requirements. In its waiver services assessment and termination
notice, DHHS repeatedly referred to Brayden as a “client.”
Section 5-002 requires clients to meet the NF level of care
criteria in 471 NAC 12-000 to be eligible for waiver serv-
ices.18 “Home and Community-Based Waiver Services” refer
to “Aged Persons or Adults or Children with Disabilities.”19 As
a result, the third requirement—meeting the NF level of care
in 471 NAC 12-000—describes the NF level of care criteria
under which all clients must be assessed. We therefore turn to
471 NAC 12-000.
15 Id.
16 Id.
17 Id., § 002 (emphasis supplied).
18 Id.
19 471 Neb. Admin. Code, ch. 12, § 001.04.

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	927
Cite as 290 Neb. 919
(c) NF Level of Care for “Persons”
or “Clients” (471 NAC 12-000)
The regulations governing NF services are contained in
471 NAC 12-000. To be eligible for waiver services, a client
must meet the NF level of care criteria in 471 NAC 12-000,
which are specifically set forth therein. No differentiation
except age exists among children, adults, and aged persons
in 471 NAC 12-000.20 Within the definition of terms in 471
NAC 12-000, “Home and Community-Based Waiver Services
for Aged Persons or Adults or Children with Disabilities”
is defined as an array of community-based services avail-
able to individuals who are eligible for NF services under
Medicaid but choose to receive services at home.21 Children
are specifically referenced under this definition of “Home and
Community-Based Waiver Services.”22 The purpose of the
waiver services is to offer options to Medicaid clients who
would otherwise require NF services.23
Each client is to be evaluated based upon the NF level of
care criteria in title 471, chapter 12, § 003.02, of the Nebraska
Administrative 	Code 	(471 	NAC 	12-003.02). 	That 	section
requires DHHS to apply the criteria therein to determine the
appropriateness of services on admission and at each subse-
quent review.24 Services coordinators (DHHS staff or contrac-
tors) are required to collect information from four assessment
categories: (1) activities of daily living (ADL), (2) risk factors,
(3) medical treatment or observation, and (4) cognition.25 A
description of those categories is warranted.
The first client assessment category in title 471 is the
ADL category, which includes seven ADL’s: (a) bathing, (b)
continence, (c) dressing/grooming, (d) eating, (e) mobility,
20 See id., § 003.02(1) through (4) (referring only to “client” classification
for NF level of care).
21 Id., § 001.04.
22 See id.
23 Id.
24 Id., § 003.02.
25 See id.

928 	290 NEBRASKA REPORTS
(f) toileting, and (g) transferring (i.e., ability to move from one
place to another, including bed to chair and back, and into and
out of a vehicle).26
The second category, “Risk Factors,” includes three areas:
a. Behavior: The ability to act on one’s own behalf,
including the interest or motivation to eat, take medi-
cations, care for one’s self, safeguard personal safety,
participate in social situations, and relate to others in a
socially-appropriate manner.
b. Frailty: The ability to function independently with-
out the presence of a support person, including good
judgment about abilities and combinations of health fac-
tors to safeguard well-being and avoid inappropriate
safety risk.
c. Safety: The availability of adequate housing, includ-
ing the need for home modification or adaptive equipment
to assure safety and accessibility; the existence of a for-
mal and/or informal support system; and/or freedom from
abuse or neglect.27
The third assessment category is “Medical Treatment or
Observation.” A client can satisfy this category in three ways:
a. A medical condition is present which requires obser-
vation and assessment to assure evaluation of the indi-
vidual’s need for treatment modification or additional
medical procedures to prevent destabilization and the
person has demonstrated an inability to self-observe and/
or evaluate the need to contact skilled medical profes-
sionals; or
b. Due to the complexity created by multiple, interre-
lated medical conditions, the potential for the individual’s
medical instability is high or exists; or
c. The individual requires at least one ongoing medical/
nursing service.28
26 Id.
27 See id.
28 Id.

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	929
Cite as 290 Neb. 919
This category provides a noninclusive list of 23 such medical/
nursing services which may, but do not necessarily, indicate a
need for medical or nursing supervision or care.
The fourth category, “Cognition,” includes four areas: (a)
memory, (b) orientation, (c) communication, and (d) judgment.29
Once the assessment of the criteria in the four described cat-
egories has been completed, DHHS can proceed to determine
the NF level of care for waiver services based upon the infor-
mation collected. Each client is to be evaluated based upon the
prescribed number of limitations in each category. Title 471
describes the number of limitations required in each category
for the NF level of care eligibility.30 Services coordinators col-
lect the information on the four criteria categories on “each
individual” seeking NF or waiver services to determine the
functional abilities and care needs of that individual.31
Persons who require assistance, supervision, or care in at
least one of the following four categories meet the level of care
criteria for waiver services:
1. Limitations in three or more [ADL’s] AND Medical
treatment or observation.
2. Limitations in three or more ADLs AND one or
more Risk factors.
3. Limitations in three or more ADLs AND one or
more Cognition factors.
4. Limitations in one or more ADLs AND one or more
Cognition AND one or more Risk factors.32
Thus, 471 NAC 12-000 clearly describes the number of
limitations in each category that a client must have in order
to be eligible for waiver services. Using these four assess-
ment categories, the client’s limitations in each category are
evaluated to determine whether the client has met the required
number of limitations for waiver service eligibility.
29 Id.
30 Id., § 003.02A.
31 Id.
32 Id.

930 	290 NEBRASKA REPORTS
(d) Children With Disabilities
(480 NAC 5-003.B)
The district court concluded that 480 NAC 5-003.B, rather
than 471 NAC 12-000, provided the basis for DHHS’ evalua-
tion of children seeking waiver services. It found that DHHS
adopted a specific regulation—480 NAC 5-003.B3b—to assess
Brayden’s level of care and used this regulation to create
exhibit 4.
But 480 NAC 5-003.B pertains to disabled children seeking
waiver services and describes how children and their families
access home and community-based services through DHHS.
The purpose of 480 NAC 5-003.B mirrors the purpose of
title 480, chapter 5, § 003.A, of the Nebraska Administrative
Code which pertains to disabled adults. That purpose is “[t]o
allow easy entry into the health and human services system for
children with disabilities and their families who are in need
of services.”33
Each child is evaluated by a services coordinator, and based
upon intake/screening, the services coordinator determines
the child’s priority ranking.34 If the potential waiver eligible
child does not meet priority criteria, the services coordinator
informs the referral source and provides notice to the child’s
guardian, if such contact has been made.35 If the child is eli-
gible to be assessed for waiver services, an assessment visit
is scheduled.36
The purpose of the information gathered by the services
coordinator at the assessment is “[t]o identify the potential
waiver eligible child’s and family’s strengths, needs, priori-
ties, and resources so an appropriate plan of services and sup-
ports can be developed.”37 The services coordinator meets in
person with the child and his or her guardian to complete an
33 480 Neb. Admin. Code, ch. 5, § 003.B1. See 480 Neb. Admin. Code, ch.
5, § 003.A1.
34 Id.
35 480 Neb. Admin. Code, ch. 5, § 003.B2c.
36 Id., § 003.B2d.
37 Id., § 003.B3.

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	931
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assessment of the child’s and family’s strengths, needs, priori-
ties, and resources.38
The services coordinator is required to gather functional
information to determine a child’s NF level of care eligibility
that reflects the child’s developmental level and includes infor-
mation in the following six NF domains: (1) ADL, (2) cogni-
tion, (3) environment, (4) medical/health status, (5) support
network, and (6) transition.39
DHHS used only two domains—ADL and medical/health
status—to create its assessment document, exhibit 4. We sum-
marize the six domains as follows:
(1) ADL, which includes:
(a) behavior—ability to exhibit actions that are develop-
mentally and socially appropriate in the areas of independence,
maturation, learning, and social responsibility;
(b) general hygiene—bathing, dressing, and grooming;
(c) feeding/eating;
(d) movement—(1) mobility: ability to move from place to
place indoors or outside, and (2) transferring: ability to move
from one place to another, including a bed to a chair and back,
and into and out of a vehicle;
(e) sight;
(f) hearing;
(g) communication; and
(h) toileting.
(2) Cognition: The ability to remember, reason, understand,
and use judgment.
(3) Environment: The ability to function in his or her living
situation, including health, housing, and accessibility.
(4) Medical/health status: Any medical or health condition
that impacts the child’s ability to function independently.
(5) Support network: The ability and capacity of extended
family, friends, and community resources to provide informal
and formal supports.
38 Id., § 003.B3a.
39 Id., § 003.B3b.

932 	290 NEBRASKA REPORTS
(6) Transition: The availability of a coordinated set of activ-
ities designed to promote independence and movement through
services and developmental stages.40
The services coordinators were to route this functional
information gathered during the in-person assessment and
other documentation to DHHS’ central office for an NF level
of care determination.41 Following an evaluation, if the child
did not meet the NF level of care, the services coordina-
tor was to provide written notice of this decision to the
child’s guardian.42
But unlike title 471, chapter 12, § 003.02A, of the Nebraska
Administrative Code (471 NAC 12-003.02A), neither 480 NAC
5-003.B3b nor any other portion of section B provides a spe-
cific description of which assessment categories or the number
of limitations required in each category that are required to
meet the NF level of care for eligibility. However, section B
provides that the services coordinator shall: “Together with the
child and family, further develop the plan of services and sup-
ports. This is accomplished by identifying desired client out-
comes. Outcomes should occur in one or more of the following
NF domains: [ADL]; cognition; environment; medical/nursing
status; support network; and transition.”43
A child is reassessed when he or she reaches the age of 18,
using the criteria provided in 471 NAC 12-003.02, and if the
child remains at the NF level of care, a new plan of services
and supports must be completed.44
(e) Findings Regarding NF Level
of Care Criteria for Children
With Disabilities
We conclude that 480 NAC 5-003.B does not alter the cri-
teria for the NF level of care described in 471 NAC 12-000,
40 See id.
41 Id., § 003.B3c.
42 Id.
43 Id., § 003.B4a.
44 Id., § 003.B7f.

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	933
Cite as 290 Neb. 919
which is required of all clients to be eligible for waiver serv-
ices.45 Moreover, 480 NAC 5-000.B does not alter the NF level
of care criteria and requirements provided in 471 NAC 12-000
as they relate to disabled children. We reach this conclusion for
several reasons.
First, title 480 of the Nebraska Administrative Code requires
that all clients—aged persons, adults, and children—eligible
for waiver services must meet the NF level of care criteria in
471 NAC 12-000.46 We find no ambiguity or limitation as to
the plain meaning of this requirement. Statutory language is to
be given its plain and ordinary meaning.47
Second, we note that the purposes stated in the relevant sec-
tions of 471 NAC 12-000 and 480 NAC 5-003.B have impor-
tant differences. The purpose of the criteria and assessment
categories described in 471 NAC 12-000 is to determine the
appropriateness of services on admission and at each subse-
quent review.48 Services coordinators collect the information
in the listed criteria for each individual—children, adults, and
aged persons—seeking NF or waiver services to determine
the functional abilities and care needs of that individual.49
Each of the assessment categories are evaluated according to
the limitations required in each category as provided in 471
NAC 12-003.02. “Persons who require assistance, supervi-
sion, or care in at least one of the [four assessment] categories
meet the level of care criteria for [NF] or Aged and Disabled
Home and Community-based Waiver services.”50 As previously
noted, the number of limitations in each category is expressly
described in the regulations. The plain language of the purpose
of 471 NAC 12-000 indicates that it was intended to provide
the NF level of care criteria for waiver services for all per-
sons. Moreover, 471 NAC 12-000 identifies its application to
45 See id., § 002.
46 See id.
47 Watkins v. Watkins, supra note 8.
48 471 Neb. Admin. Code, ch. 12, § 003.02.
49 Id., § 003.02A.
50 Id. (emphasis supplied).

934 	290 NEBRASKA REPORTS
children in its definition of home and community-based waiver
services for aged persons, adults, and children.51
In contrast, the purpose of 480 NAC 5-003.B3b is “[t]o iden-
tify the potential waiver eligible child’s and family’s strengths,
needs, priorities, and resources so an appropriate plan of serv-
ices and supports can be developed.”52 This purpose is separate
and distinct from the determination whether the person met the
NF level of care. Thus, if a child qualified for waiver services
under 471 NAC 12-000, the services coordinator was to further
develop the plan of services and supports.53 This was accom-
plished by identifying desired client outcomes.54
The services coordinator then “[routes] functional infor-
mation gathered during the in-person assessment and other
documentation to [DHHS] Central Office for a NF level of
care determination.”55 The functional information—along with
“other documentation”—is then used in making a level of care
assessment. However, 480 NAC 5-003.B does not change the
NF level of care criteria described in 471 NAC 12-000.
Third, 471 NAC 12-000 methodically describes four cat-
egories of criteria and the number of limitations within each
category that are required to meet the NF level of care.56 In
contrast, 480 NAC 5-003.B provides no such assessment cat-
egories or required number of limitations. It does not state
what categories are to be used or the number of limitations
required for such category. Therefore, 480 NAC 5-003.B pro-
vides no basis for an eligibility assessment, as it would permit
an arbitrary creation of eligibility requirements. The lack of
such guidance in 480 NAC 5-003.B leads us to conclude that it
does not alter or supersede the assessment scheme in 471 NAC
12-000 for disabled children. We discuss this point in greater
detail later in our analysis.
51 Id., § 001.04.
52 480 Neb. Admin. Code, ch. 5, § 003.B3 (emphasis supplied).
53 Id., §§ 003.B3b and 003.B4a.
54 Id., § 003.B4a.
55 Id., § 003.B3c.
56 See 471 Neb. Admin. Code, ch. 12, §§ 003.02 and 003.02A.

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	935
Cite as 290 Neb. 919
We conclude that the correct NF level of care criteria to be
applied to all persons—aged persons, adults, and children—are
set forth in 471 NAC 12-000, which title 480 incorporates by
express reference in chapter 5, § 002.
2. exhiBit 4
Because exhibit 4 was the assessment document used to
evaluate children with disabilities, we discuss its use by DHHS.
Instead of using the assessment categories and limitations
provided in 471 NAC 12-000, DHHS created exhibit 4 as its
document to assess the NF level of care for disabled children.
The requirements in exhibit 4 differ significantly from those
expressly provided in 471 NAC 12-000. Exhibit 4’s assessment
categories were created from two of the domains described
above—medical treatment needs and selected ADL’s. But the
categories created in exhibit 4 were much more restrictive
as applied to children. We discuss those categories and the
requirements for each category.
Exhibit 4 contained three assessment categories. A disabled
child had to satisfy the requirements of one of the three catego-
ries to be eligible. This is contrasted with the four categories
described in 471 NAC 12-003.02A. The three categories in
exhibit 4 used only two of the six domains described in 480
NAC 5-003.B3b: medical treatments/therapies and ADL. We
find no explanation why DHHS used only these two domains
as its assessment categories. DHHS did not explain why it
failed to use or consider the remaining domains of cognition,
environment, support network, and transition.
Under exhibit 4, disabled children were required to qualify
in at least one of the three assessment categories. The three
categories are set forth in detail:
(1) Medical treatments/therapies: This category had a list of
nine possible medical treatments or therapies needed by a child
so as to meet the NF level of care. The child had to require at
least one of the nine treatments.
(2) ADL: This category incorporated seven ADL’s described
in 480 NAC 5-003.B3b(1)—dressing, grooming, bathing, eat-
ing, transfers, mobility, and toileting. The child was required
to be dependent in six of seven areas in order to meet the

936 	290 NEBRASKA REPORTS
NF level of care under this category. There is no regula-
tion that set forth the number of limitations required for
this category.
(3) Other considerations: This category incorporated the
remaining four ADL’s in 480 NAC 5-003.B3b—behavior,
communication, vision, and hearing. In order to qualify, the
child was required to be dependent in three of four areas
and also be dependent in four of the seven ADL areas in the
second category. Similar to the second category, there is no
regulation that set forth the number of limitations required for
this category.
(a) First Category: Medical
Treatments/Therapies
We do not expound on exhibit 4’s first category, “Medical
Treatments/Therapies,” because the factual questions pertain-
ing to Brayden’s medical treatments were resolved against her.
Exhibit 4 prescribes nine areas of medical treatment or needs.
Number eight, “Unstable medical condition,” is the only area
applicable to Brayden. She was found not to have an unstable
condition, because her seizures had become more controlled
with medication.
(b) Second Category: ADL
When we compare the requirements of the second category,
ADL, to the requirements described in 471 NAC 12-003.02, we
find that the requirements in exhibit 4 are much more restric-
tive for children. Persons assessed under 471 NAC 12-003.02
were required to be dependent in one or three ADL’s, depend-
ing on the client’s limitations in other categories. See 471 NAC
12-003.02A. But exhibit 4 required disabled children to be
dependent in six of seven.
The ADL’s of dressing, grooming, bathing, eating, transfers,
mobility, and toileting are described as criteria for all clients
under 471 NAC 12-003.02. But exhibit 4 required a child to be
dependent in six of seven of those ADL’s and made eligibility
impossible under the second category if the child was mobile
(i.e., she could walk) and could transfer (i.e., get in and out of
a chair, bed, or car). Therefore, despite having other profound

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	937
Cite as 290 Neb. 919
disabilities, Brayden—or any child who could walk and trans-
fer—could not qualify under the second category.
(c) Third Category: Other
Considerations
Alternatively, children could meet the requirements in the
third category only if they were dependent in three of four
evaluative areas of behavior, communication, hearing, and
vision. And to qualify under the third category, children were
required to be dependent in at least four ADL’s from the second
category and three of four in this third category.
Thus, the third category excluded children who could see
and hear. Therefore, it was impossible for a child who was
able to see and hear to meet the requirements under the third
category of exhibit 4.
The standards provided in 471 NAC 12-003.02 did not
require persons to have the high number of limitations that
exhibit 4 imposed upon children.
3. SuMMary of findingS
regarding exhiBit 4
(a) Exhibit 4 Did Not Use Proper Criteria
or Number of Limitations
Merie claims DHHS should not have used exhibit 4 as
its assessment instrument. We agree. Title 480 requires all
“Clients”—aged persons, adults, and children—to meet the NF
level of care criteria in 471 NAC 12-000.57 Age was not an
assessment criteria for waiver service eligibility.
Instead, DHHS used 480 NAC 5-003.B3 as a basis for its
assessment criteria and the person’s status as a child. But
the purpose of 480 NAC 5-003.B3 was “[t]o identify the
potential waiver eligible child’s and family’s strengths, needs,
priorities, and resources so an appropriate plan of services
and supports can be developed.”58 Clearly, the unambigu-
ous purpose of 480 NAC 5-003.B3b was not to prescribe the
57 480 Neb. Admin. Code, ch. 5, § 002.
58 Id., § 003.B3 (emphasis supplied).

938 	290 NEBRASKA REPORTS
child’s NF level of care criteria for eligibility. In contrast,
the criteria in 471 NAC 12-000 were used “to determine the
appropriateness of services on admission and at each subse-
quent review.”59
DHHS’ reliance on the domains in 480 NAC 5-003.B3b
to create exhibit 4 was misplaced. Exhibit 4 did not incor-
porate the proper criteria or use the number of limitations
required in each category as provided in 471 NAC 12-000.
For example, exhibit 4 excluded two of the four assessment
categories provided in 471 NAC 12-003.02—“Risk Factors”
and “Cognition.”
Equally important, exhibit 4 did not properly assess the
number of limitations required for each category as set forth
in 471 NAC 12-003.02A, which provided a clear and specific
number of limitations required for eligibility.
Therefore, we conclude that exhibit 4 did not comply with
title 480, chapter 5, § 002, of the Nebraska Administrative
Code which required that clients eligible for waiver services
must meet the NF level of care criteria in 471 NAC 12-000.
(b) Exhibit 4 Was Created Arbitrarily
Even assuming arguendo that 480 NAC 5-003B3b was the
proper regulation to assess NF level of care for disabled chil-
dren, we find that exhibit 4 was created arbitrarily. DHHS has
not shown, and we find no basis, why DHHS placed seven
ADL’s in the second category and four ADL’s in the third cat-
egory or required six limitations in the second category and
three limitations in the third category.
DHHS arbitrarily excluded four of six domains provided
under 480 NAC 5-003.B3b. DHHS has not explained why
it excluded the domains of cognition, environment, support
network, and transition. It did not use or consider whether
Brayden had the ability to remember, reason, understand, and
use judgment (cognition); it did not consider her ability to
function in her living situation (environment); it did not con-
sider her ability and the capacity of extended family, friends,
and community resources to provide informal and formal
59 471 Neb. Admin. Code, ch. 12, § 003.02 (emphasis supplied).

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	939
Cite as 290 Neb. 919
supports (support network); it did not consider the availability
of a coordinated set of activities designed to promote inde-
pendence and movement through services and developmental
stages (transition).60 Instead, DHHS created two of the three
categories using the ADL domain and then arbitrarily decided
which ADL’s would be placed in each category and how many
limitations in these categories were required.
Even if 480 NAC 5-003.B3b was the basis for exhibit 4,
nothing therein permitted DHHS to arbitrarily select which
domains to either use or disregard for child evaluation. None
of these domains were shown to be of greater importance than
another. DHHS provided no explanation for why it created two
of the three categories in exhibit 4 from the ADL domain and
excluded the remaining four domains.
The exclusion of the domain of cognition from exhibit 4
is particularly egregious because it is listed in both 471 NAC
12-000 and 480 NAC 5-003.B. Under 471 NAC 12-000,
cognition includes the areas of memory, orientation, com-
munication, and judgment.61 Under 480 NAC 5-003.B3b, it
is defined as “[t]he ability to remember, reason, understand,
and use judgment.” Brayden was evaluated only for commu-
nication and was found to be dependent. But DHHS did not
consider whether she could remember, reason, understand, or
use judgment. The record indicates that she was also likely
dependent in the other areas of cognition, but her cognition
was not considered.
Even if these domains had been used, there is no regulation
that prescribes how they were to be evaluated to determine
eligibility. DHHS can point to no part of title 480, chapter 5,
that states these are the categories and number of limitations
to be considered. In the absence of such a regulation, we con-
clude that DHHS arbitrarily created the categories and greatly
increased the number of limitations that disabled children must
satisfy to qualify for waiver services.
In contrast, 471 NAC 12-003.02 sets forth what categories
are to be used and the number of limitations in each category
60 See 480 Neb. Admin. Code, ch. 5, § 003.B3b.
61 471 Neb. Admin. Code, ch. 12, § 003.02.

940 	290 NEBRASKA REPORTS
that are required by a client for eligibility. DHHS disregarded
this framework, and as a result, exhibit 4 arbitrarily placed
a far greater burden on disabled children than similarly situ-
ated disabled aged persons and adults. We find no basis for
this discrimination.
(c) By Placing Far Greater Burden
on Disabled Children, Exhibit 4
Produced Unreasonable Result
DHHS’ creation of exhibit 4 made it more difficult for dis-
abled children than disabled adults to meet eligibility require-
ments for waiver services. The obvious result was to severely
restrict the number of children who qualified for waiver
services. Children who had profound disabilities requiring
constant supervision were not eligible for waiver services if
they had no immediate medical treatment necessity and could
walk, transfer, see, and hear. The exclusion of such profoundly
disabled children was unreasonable. Because the district court
based its decision on exhibit 4, this unreasonable result is
imputed to the district court’s order which affirmed DHHS’
termination of Brayden’s waiver services.
In its analysis, the district court rejected Merie’s argument
that title 471 was the proper regulation for assessment of eligi-
bility, because it found such interpretation would be contrary to
DHHS’ purpose in enacting title 480. We disagree. The stated
purpose of title 480 as applied to both children and adults
was “to allow easy entry into the health and human services
system.”62 But that purpose was greatly undermined by the use
of exhibit 4.
The manner in which DHHS created the three categories in
exhibit 4 would exclude many of the disabled children who
applied for waiver services. By selectively placing mobility
and transferring ADL’s in the second category and requiring
a child to be dependent in six of seven ADL’s, any child who
could walk and get into and out of a bed or car was excluded
under the second category. By selectively placing vision and
62 480 Neb. Admin. Code, ch. 5, § 003.B1. See 480 Neb. Admin. Code, ch.
5, § 003.A1.

MERIE B. ON BEHALF OF BRAYDEN O. v. STATE 	941
Cite as 290 Neb. 919
hearing in the third category, any child who could see and hear
was excluded under the third category. Sight and hearing were
not listed as criteria in 471 NAC 12-003.02 and, therefore, not
used for evaluation of adults and aged persons.
DHHS and the district court concluded that Brayden failed
to meet the NF level of care for waiver services. But it was
not disputed that she had received waiver services for nearly
12 years prior to the revocation. There had been no substantial
change in her physical condition except her seizures were pres-
ently better controlled by medication. She remained dependent
in toileting, bathing, dressing, grooming, eating, behavior, and
communication. Although DHHS did not assess cognition,
communication is one of the four cognition “factors” listed
in 471 NAC 12-003.02.63 There is substantial evidence that
Brayden is also dependent or has severe limitations in the three
other cognition factors of memory, orientation, and judgment.
The record established that she did not have the ability to
function independently without the constant presence of a sup-
port person. She lacked judgment to safeguard her well-being.
However, despite being profoundly disabled, Brayden was
denied waiver services.
Adults 	were 	treated 	much 	differently. 	An 	adult 	with
Brayden’s disabilities and limitations would likely have met
the NF level of care under three of the four areas of the evalu-
ation criteria and framework provided in 471 NAC 12-003.02.
Given the purpose to allow easy access into the system, it is
unreasonable to place a much higher burden on disabled chil-
dren seeking waiver services than disabled aged persons and
adults. The use of exhibit 4 was unreasonable.
4. Brayden M et nf level of care
under 471 nac 12-000
To be eligible for waiver services, title 480 requires all cli-
ents—aged persons, adults, and children—to meet the NF level
of care criteria in “471 NAC 12-000.”64 This includes both the
criteria in the four categories and the number of limitations
63 See 480 Neb. Admin. Code, ch. 5, § 003.B3b(2).
64 Id., § 002.

942 	290 NEBRASKA REPORTS
provided in 471 NAC 12-003.02A. One such category provides
that a person meets the NF level of care for waiver services if
he or she has “[l]imitations in three or more ADLs AND one or
more Cognition factors.”65
Although neither DHHS nor the district court considered
cognition in their evaluations of Brayden, she was found to
be dependent in behavior, bathing, dressing, grooming, eat-
ing, toileting, and communication. Bathing, dressing/grooming,
eating, and toileting are ADL’s under 471 NAC 12-003.02.
Communication is one of the four “factors” of cognition.66
She was therefore dependent in at least three ADL’s and one
cognition factor. Consequently, DHHS should have found that
Brayden met the NF level of care for waiver services.
VI. CONCLUSION
For the reasons set forth herein, we conclude the decision
of the district court, which affirmed the revocation of waiver
services by DHHS, did not conform to the law. DHHS’ creation
and use of exhibit 4 to evaluate Brayden was arbitrary and pro-
duced an unreasonable result. We reverse the judgment of the
district court, which affirmed DHHS’ revocation of Brayden’s
waiver service benefits, and remand the cause with direc-
tions that the district court order DHHS to reinstate Brayden’s
waiver services effective November 11, 2012.
reverSed and reManded With directionS.
heavican, C.J., participating on briefs.
65 471 Neb. Admin. Code, ch. 12, § 003.02A.
66 See id., § 003.02.