2022-0181, Petition of M.P.

pursuant to RSA 171 - A:2, V was an unsustainable exercise of discretion; (2) argues that: (1) the AAU’s determination that he does not have a qualifying DD disability (DD) services pursuant to RSA chapter 171 - A (2022). T he petitioner Appeals Unit (AAU) decision finding him ineligible to receive developmental writ of certi orari of a Department of Health and Human Services Administrative DONOVAN, J. The petitioner, M.P., seeks review by way of a petition for

the brief and orally), as amic us curiae. Community Services Network, Inc., of Concord (Thomas G. Bunnell on

and orally), for the r espondent. John D. MacIntosh, P.C., of Concord (John D. MacIntosh on the brief

brief, and Mia A. Fry orally), for the petitioner. Disability Rights Center - NH, Inc., of Concord (Sarah J. Jancarik on the

(New Hampshire Department of Health and Human Services)

No. 2 022 - 0181 Department of Health and Human Services

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

review. Accordingly, we do not address the se issues in the body of this opinion. conclude that the AAU had jurisdiction to hear the appeal and that the case is ripe for this court’s decision, the AAU observed that the petitioner had not sought a conditional discharge. We the superior court had not made a finding with respect to the first question. I n fact, in its final The parties either agree, or do not dispute, that, when the AAU considered the petitioner’s appeal, finding described in (1), whet her the petitioner ’s eligibility for DD services is ripe for adjudication. the AAU had jurisdiction to decide petitioner’s appeal; and (3) if the superior court had not made a RSA 651:11 - a, IV ( p. 2 2016); (2) if the superior court had not made a finding described in (1), whether property of another” if “conditionally discharged under conditions the c ourt finds appropriate,” longer create a substantial risk of bodily injury to himself or another person or serious damage to whether the superior court found by clear and convincing evidence that the petitioner would “no In its briefing order, t his court asked the parties to address three questions, including: (1) 1 dete rmine whether the merits hearing could be held remotely, either Between June 2020 and May 2021, the AAU held six hearings to

p. 2 2020, the petitioner appealed this decision to the AAU. demonstrate that he ha d a qualifying DD pursuant to RSA 171 - A:2, V. In April ineligible for DD services and denied his application, reasoning that he did not services, reviewed the application and concluded that the petitioner was ASD and schizophrenia. The respondent, a local area agency that provides DD pursuant to RSA chapter 171 - A. The application identified diagnoses for both Hampshire Hospital (NHH). In 2020, the petitioner applied for DD services when he “stepped down” to a less - restrictive commitment at the New and committed to the Secure Psychiatric Unit, where he resided until 2019 autism spectrum disorder (ASD). In 2010, the p etitioner was adjudicated NGRI schizophrenia, but t he parties disagree as to whether the petitioner also has often conflicting diagnoses. Relevant to th is case, the petitioner has spans from his early childhood to the present and includes numerous and record. The petitioner has a complicated and lengthy medical history that The following facts were recited in the AAU’s order or appear in the

requirement. Accordingly, we affirm. 1 AAU’s control, thereby exemptin g the AAU from the statute’s scheduling by the petitioner, these circumstances constitute an “emergency” beyond the mitigate the spread of COVID - 19. Pursuant to the federal authority relied upon the global pandemic and the protective measures imposed in an effort to waiting for a hearing and a final decision, the delay was largely attribut able to Additionally, d espite the significant delay that the petitioner experienced co ntested testimony was immaterial and did not prejudice the petitioner. conclude that the AAU’s eligibility decision is sustainable and that the due process rights under the Federal and New Hampshire Constitutions. We timely hold a hearing and issue a decision violated the Medicaid Act and his Not Guilty by Reason of Insanity (NGRI) status; and ( p. 3 3) the AAU’s failure to the AAU erred in admitting certain testimony and considering the petitioner’s 3

observa tion of such symptoms. The AAU also accepted the respondent’s ASD and found that the petitioner’s ASD diagnoses were based on the recognized that certain symptoms of schizophrenia may replicate symptoms of evaluations that concurred with the petitioner’s autism diagnosis. The AAU The AAU also declined to credit several subsequent reports and

(Emphasis omitted.) Asperger’s diagnosis as being supported by the o ther evidence in the record.” these reasons, “in this case, [it] cannot wholeheartedly accept the doctor’s have met the diagnostic criteria for Asperger’s. T he AAU explained that for concerning internal i nconsistencies, and the petitioner probably would not the psychiatrist did not conduct any standardized testing, his report contained syndrome, a form of autism. The AAU reasoned that in reaching his opinion, who, in 2009, was the first person to diagnose the petitioner with Asperger’s and thorough.” The AAU gave “[l] ess weight” to the findings of a psychiatrist, the AAU found, “is well credentialed” and “presented as knowledgeable, candid, The AAU “gave great weight” to the testimony and opinion of Dr. Trudel who, he did not demonstrate his eligibility to receive RSA chapter 171 - A services. preponderance of the evidence that he ha d a qualifying DD, and, accordingly, determination. The AAU found that the petitioner did not establish by a The AAU issued a decision in December 2021 upholding the respondent ’ s

disabilities. services to high - risk individuals with intellectual and developmental consultant with experience assisting New Hampshire agencies that provide suffered from schizophrenia. The respondent also elicited testimony from a for the petitioner’s prior ASD diagnoses and instead opined that the petitioner a c linical neuropsychologist and licensed psychologist, who rebutted the basis diagnoses. For its part, the respondent introduced the testimony of Dr. Trudel, providers at NHH, who corroborated symptoms consistent with his prior ASD ASD. The petitioner also introduced the testimony of t wo of his treatment medical providers who, over the last seventeen years, had diagnosed him with to whether the petitioner ha d ASD. The petitioner relied upon the numerous their arguments upon conflicting reports prepared by medical professionals as hundreds of pages of exhibits. Throughout the hearing, the parties focused three days in June and August and included numerous witnesses and 2021, after COVID - 19 vaccines became available. The hearing took place over An in - person hearing on the merits wa s eventually scheduled for June

t he AAU repeatedly declined t o hold a video conference hearing. and the petitioner’s disabilities. Despite the petitioner’s numerous requests, however, that a telephonic hearing was not feasible given the nature of the case measures imposed to address the COVI D - 19 pandemic. B oth parties agreed, scheduling only telephonic hearings, rather than in - person hearings, due to telephonically or by video conference, or in person. At that time, t he AAU was p. 4 4

appropriate by the commissioner of the department of corrections or his has been prepared for him, which has been certified to th e court as regimen of medical, psychiatric, or psychological care or treatment that [U]nder conditions the court finds appropriate, including any prescribed

court may order a conditional discharge: person or serious damage to property of another.” RSA 651:11 - a, I V(a). The would no longer create a substantial risk of bodily injury to himself or another convincing evidence that the person’s release under certain conditions . . . order of committal, it may order a conditional disc harge if it “finds by clear and court shall renew the order of committal.” Id. Even if the court renews the a mental disorder and that it would be dangerous for him to go at large, the court is satisfied by clear and convincing evidence that the person suffers from renew an order of committal, a judicial hearing must be held, and “when the committal for an NGRI acquittee is valid for five years. RSA 651:11 - a, I. To RSA chapter 651 governs orders of committal. A court’s order of

171 - B. ch. 651 (2016), and one that governs the DD system, see RSA chs. 171 - A & between two statutory schemes: one that governs orders of committal, see RSA petitioner is eligible for DD services requires an analysis of the relationship system set forth in RSA chapters 171 - A and 171 - B (2022). W hether the under RSA 651:11 - a (2016) and individuals eligible for services under the DD concerning the interplay between NGRI acquittees subject to court supervision We begin by address ing the substance of the parties’ arguments

A. RSA C hapter 171 - A Eligibility

exercised its discretion or acted arbitrarily, unreasonably or capriciously. Id. respect to jurisdiction, authority or observance of the law or unsustainably for writ of certiorari entails examining whether the AAU acted illegally with result in substantial injustice. Id. Our review of an AAU decision on a petition power to grant such writs sparingly and only when to do otherwise would right to appeal, and only at the discretion of the court. Id. We exercise our certiorari is an extraordinary remedy, usually available only in the absence of a for writ of certiorari. Petition of Sawyer, 170 N.H. 197, 202 (20 17). Review on J udicial review of a n AAU decision is available only by way of a petition

denied. This petition for writ of certiorari followed. diagnosis as correct. The petitioner moved to reconsider, which the AAU Asperger’s in 2009, subsequent providers and evaluators accepted that “bootstrapping” theory that once the p sychiatrist diagnosed the petitioner with p. 5 5

regar dless of their NGRI status. See RSA 171 - A:1; see also N.H. Admin. R., He services and programs for any person with a developmental disability, policy behind the developmental services system appears to support providing 6 p. 5 51:11 - a can access the developmental services system. On the one hand, t he as to whether an NGRI acquittee subject to c ourt supervision under RSA T he parties’ dispute demonstrates that the statutory scheme is unclear

171 - A: p. 5 5; RSA 171 - B:2. expressly reserved for individuals found incompetent to stand trial. See RSA involuntary developmental service s under RSA chapter 171 - B because it is considerations.” They also argue that the petitioner has no pathway to access no legal authority to require clients to comply with treatment and/or security the developm ental services program is voluntary, “the area agency system has developmental services system under RSA 171 - A.” They reason that because Court commit [the acquittee], via conditional discharge order, to the voluntary for voluntary DD services “for the purported purpose of having the Superior discharged. In other words, they argue that a n NGRI acquittee cannot apply NGRI acquittees may not receive DD services until they are unconditionally DD services. In contrast, the respondent and the amicus curiae contend that exclude s persons adjudicated NGRI from the definition of DD or from receivi ng A. He observes that neither RSA ch apter 171 - A nor RSA 651:11 - a expressly supervision is also eligible to receive DD services pursuant to RSA ch apter 171 - The petitioner contends that an NGRI acquittee subject to court

region. RSA 171 - A:6, I; N.H. Admin. R., He - M p. 5 503.04(b). services, an individual must apply through the area agency serving his or her see also N.H. Admin. R., He - M 310.06. To receive voluntary developmental services or withdraw entirely from the service delivery system.” RSA 171 - A:7; voluntarily participating in the system may, at any time, “seek a change in deemed not competent to stand trial. RSA 171 - A:5; RSA 171 - B:2. Persons pursuant to RSA chapter 171 - B — a pathway only available for persons Participation is voluntary, unless the individual is involuntarily admitted living and programs to support individuals and families.” RSA 171 - A:1. dis abilities and their families be provided services that emphasize community 99. This system is based up on the policy that “persons with developmental disabled persons.” RSA 171 - A:1; see also Petition of Sawyer, 170 N.H. at 198 coordinate a comprehensive service delivery system for developmentally In turn, RSA chapter 171 - A is designed to “maintain, implement and

RSA 6 p. 5 51:11 - a, IV(a)(1).

the court to be appropriate . . . . of corrections in which he is committed, and which has been found by designee or by the director of another facility not within the department p. 6 6

treatment providers that he has ASD; and (3) the AAU’s decision does not rest evaluations presented to the AAU support the opinions of the petitioners’ two providers at NHH are due substantial weight; (2) numerous reports and petitioner argues that: (1) the testimony of the petitioner’s two treatment that [he] established that he had a DD.” (Emphasis omitted.) Specifically, the discretion” because “the overwhelming weight of the evidence . . . demonstrated a qualifying DD pursuant to RSA 171 - A:2, V is an “unsustainable exercise of disability”). T he petitioner argues that the AAU’s finding that he does not have R., He - M 503.03(a); see also RSA 171 - A:2, V (defining “[d]evelopmental have a qualifying DD to receive such services. See RSA 171 - A:5, I; N.H. Admin. pursuant to RSA chapter 171 - A, there is no dispute that such individuals must Even if we assume that persons with NGRI status are eligible for services

services system as part of the acquittee’s conditional discharge. court may order an NGRI acquittee’s participation in the d evelopmental consider this apparent gap in the statutory scheme and address whether a not factor into our analysis in this particular case, the legislature may wish to exclude NGRI acquittee s. See RSA 171 - B:2. Although these observation s do partici pate involuntarily in the developmental services system and opted to to stand trial — implies that the legislature already considered who can participation — but such pathway is limited to persons deemed not competent discharge. The fact that the statute includes a pathway for involuntary voluntary if the court ordered it as a condition of t he acquittee’s conditional voluntarily to receive DD services, his or her participation may not be entirely the court.” RSA p. 6 651:11 - a, IV(c). Moreover, when an NGRI acquittee applie s take action if the individual “fai l[s] to comply with the conditions imposed by the acquittee’s compliance. It is worth noting, however, that the court may individual refuses to comply with treatment, the area agency cannot enforce in the developmental services system through RSA chapter 171 - A, and the of the acquittee’s conditional discharge, see RSA 651:11 - a, IV(a), to participate the dilemma. F or example, if a court orders an NGRI acquittee, as a condition compliance. RSA 171 - A:7; see also N.H. Admin. R., He - M 310.06. The rein lies any time, and the area agency lacks e nforcement authority to mandate RSA chapter 171 - B, the participant may opt to change or terminate services at system also means that, except for those admitted involuntarily pursuant to On the other hand, the volun tary nature of the developmental services

acquittee from voluntarily seeking services. A:5, I, this requirement, on its face, does not necessarily foreclose an NGRI into the developmental services system must apply voluntarily, see RSA 1 p. 7 71 acquittees from utilizing DD services. A lthough an individual seeking access neither RSA chapter p. 6 651 n or RSA chapter 171 - A expressly exclude s NGRI has a developmental disability shall be eligible for services.”). Moreover, M 503.03(a) (“[A]ny person whose state of residence is New Hampshire and who 7

the record. Se e Appeal of Allen, 1 p. 7 70 N.H. at 762; see also In re R.M., 172 N.H. determines whether factual findings are supported by competent evidence in other experts. This court does not reweigh the evidence on appeal but, rather, great weight” to Dr. Trudel’s testimony and less weight to the opinions of the Although th e AAU considered this evidence, it nevertheless decided to “grant diagnoses w ere supported by numerous other evaluations and reports. Next, the petitioner argu es that the AAU erred because his prior ASD

lay opinion.” I d. at 41 9 (quotation omitted). diagnos es. Thus, the AAU did not base its determination “solely upon its own evidence from multiple medical experts challenging the petitioner’s ASD Here, however, the respondent provided, and the AAU considered, credible opinion as to the reliability of the evidence presented by the claimant. Id. support this conclusion. Id. at 418 - 19. I nstead, the CAB relied on its own lay providers were “largely conjectural,” but did not cite any medical evidence to CAB found that the uncontroverted medical opinions from the claimant’s claimant’s workers ’ compensation benefits. Id. at 414. We explained that the reversed the New Hampshire Compensation Appeals Board’s (CAB) denial of a omitted). Kehoe, howeve r, is inapposite to the case at hand. In Kehoe, we substantial weight.” Appeal of Kehoe, 141 N.H. 412, 41 p. 7 7 (1996) (quotation familiarity with [the claimant’s] condition, their reports must be accorded the proposition that, “[b]ecause a claimant’s treating physicians have great NHH treatment providers. For support, the petitioner cites Appeal of Kehoe for granting substantial weight to the evidence submitted by the petitioner’s two We first address t he petitioner ’s argument that the AAU erred in not

(quotation omitted). competent evidence in the record.” Appeal of Allen, 1 p. 7 70 N.H. 754, 762 (2018) evidence, but rather to determine whether its findings are supported by whether we would have credited one expert over another, or to reweigh the expert’s testimony, in whole or in part,” and “it is not our task to determine (quotation omitted). Moreover, “a trier of fact is free to accept or reject an uncontroverted evidence.” DeLucca v. DeLucca, 152 N. H. 100, 10 2 (2005) persuasiveness and cr edibility of evidence and is not compelled to believe even H e - C 203.14(a)(2). The “trier of fact is in the best position to measure the a fact or conclusion is not only possible, but also probable.” N.H. Admin R., p r eponderance of the evidence “means there is sufficient evidence to prove that [w]hich is attributable to” autism, but not schizophrenia. RSA 171 - A:2, V. A N.H. Admin R., He - C 203.14(h). A qualifying DD includes “a disability . . . of the evidence, that he ha s a qualifying DD pursuant to RSA 171 - A:2, V. See T he petitioner has the burden of proving to the AAU, by a preponderance

this opinion, that the unsustainable exercise of discretion standard applies. standard applies to our review of his challenge, we will assume, for purposes of on objective or credible evidence. Given that the petitioner argues that this p. 8 8

him, Dr. Kenney neither met n or tested the petitioner and did not testify, and petitioner takes issue with this evidence because Dr. Trudel never met or tested the area agency; and (4) a psychiatric evaluation of the petitioner. The to the area agency; (3) a functional assessment conducted by an employee of eligibility recommendation by Dr. Ke nney regarding the petitioner’s application relying on four specific pieces of evidence: (1) Dr. Trudel’s testimony; (2) an objective and credible evidence. T he petitioner contends that the AAU erred by The peti tioner next argues that the AAU’s decision does not rest on

review de novo.”). (“[T]he interpretation of a tribunal’s order presents a question of law, which we qualifying disability. See Guy v. Town of Temple, 157 N.H. 642, 649 (200 p. 8 8) detailed, n ot to credit the prior diagnoses as proof that the petitioner has a prior diagnoses, but, rather, as part of its ultimate determination, previously decision.” We do not construe the AAU’s decision as rejecting the petitioner’s denial of facts in evidence further shows the unreasonableness of the AAU’s that he has ASD — is contrary to the evidence. In his view, “[s]uch blatant factual findings — specifically diagnoses and evaluation results demonstrating T he petitioner also argues that the AAU’s denial of several requested

evidence is “not notable.” by the petitioner. In reviewing the record, we agree with the AAU that this adherence to routine was insufficient to support the factual finding s proposed petitioner engages in repetitive motor movements and has an inflexible omitted)). Additionally, the AAU found that evidence indicating that the determination of issues of fact are functions of the trier of fact.” (quotation 155 N.H. 29, 3 p. 8 8 (2007) (“The resolution of conflicts in the evidence and indicative of ASD. See Blagb rough Family Realty Trust v. A & T Forest Prods., opinions over those of other professionals who believe such symptoms are diagnoses, rather than ASD. I t was within the AAU’s discretion to credit these the petitioner’s case, such symptoms indicate schizophrenia, or other are indicative of both ASD and schizophrenia, and several concluded that, in M ultiple medical professionals recognized that the petitioner’s symptoms

petitioner’s ASD diagnoses were incorrect. which the AAU accepted as a competent basis for concluding that the also evidence in the record supporting Dr. Trudel’s “bootstrapping” t heory, conclusion that the petitioner has schizophrenia rather than ASD. There is assertions, several other m edical professionals agree with Dr. Trudel ’s rebutting the petitioner’s prior ASD diagnoses. Contrary to the petitioner’s support the AAU’s determination to accord greater weight to the evidence Here, we conclude that there is competent evidence in the record to

weight to be given to tes timony). conflicts in testimony, measure the credibility of witnesses, and determine the 6 p. 9 94, 69 p. 8 8 (2019) (explaining that on appeal, we defer to the fact finder to resolve 9

individual conditionally or unconditionally released. the court determines that the person is not dange rous and has ordered the under R SA 651:11 - a should not, and indeed cannot, receive DD services until 171 - B. He testif ied that he believe s that a person with NGRI status committed incompetent to stand trial and involuntarily committed under RSA chapter intellectual and developmental disabilities, including those deemed in New Hampshire with providing services to “high - risk” individuals with The witness is a consultant who has experience assisting area agencies

We agree with the respondent. her Final Decision or Ruling on [the petitioner’s] Motion for Reconsideration.” [the witness’s] testimony in her decision, she never even cites his testimony in consequential,” explaining that “[n]ot onl y did the hearing officer not rely on chapter 171 - A. The respondent counters that the contested testimony “was not status when determining his eligibility to receive DD services under RSA from one of the respondent’s witnesses and considering the petitioner’s NGRI Next, t he petitioner argues that the AAU erred in admitting testimony

B. Admissibility of Witness Testimony

“reliable.” According ly, we find no revers i ble error. including the eligibility recommendation and the functional assessment, to be others.” The AAU also found the evidence that the respondent presented, thorough,” and her testimony “to be credible and more plausible than that of Dr. Trudel to be “well credentialed” and “knowledgeable, candid, and apprised of the alleged deficiencies that the petitioner raises. The AAU found do just that. The AAU considered all of the evidence presented and was another,” Appeal of Allen, 170 N.H. at 76 2. Here, t he petitioner is asking us to not our task to determine whether we would have credited one expert over credibility of evidence,” DeLucca, 152 N. H. at 10 2 (quotation omitted), and “it is previously, the AAU “is in the best position to measure the persuasiveness and evidence. Id.; s ee N.H. Admin. R., He - C 201.05(c)(4). Moreover, a s stated shall, as necessary, exclude irrelevant, immaterial or unduly repetitious and consider any oral or documentary evidence, although the presiding officer administrative proceedings. RSA 541 - A:33, II. Rather, the AAU may rec eive Admin. R., He - C 201.01, 201.02(a). The rules of evidence do not apply in AAU A: 16, : 30 - a to :36 (setting forth rules for adjudicatory proceedings); N.H. (2021) and the New Hampshire Code of Admi nistrative Rules. See RSA 541 - AAU administrative proceedings are governed by RSA chapter 541 - A

worked for the respondent. We are unpersuaded. positions of other medical professionals, and a number of these individuals petitioner asserts that some of their opinions we re inconsistent with the the agency employee and psychiatric evaluator also did not testify. The p. 10 10

the 90 - day limit. Nevertheless, the outbreak of the COVID - 19 pandemic undisputed that the AAU failed to hold a hearing and issue a final order within (2) when there i s an emergency b eyond the agency’s control. Id. Here, it is exceeded in only two circumstances: (1) the appellant delays or fails to act; or an appeal. 42 C.F.R. § 431.244(f) (2021). The 90 - day requirement may be “take final administrative action” with in 90 days of an individual’s request for T he federal regulations under the Medicaid Act require an agency to

vaccines became available, the AAU scheduled an in - person hearing. associated with hearings held by way of video conference. Once COVID - 19 including concerns about security, confidentiality, and bandwid th capabilities, hearing, but the AAU never granted the request, citing several concerns, On numerous occasions, counsel for the petitioner asked for a video conf e rence was not feasible due to the nature of the case and the petitioner’s disabilities. parties, however, refused a telephonic hearing accommodation, claiming that it person hearings would not resume until a vaccine became available. Both due to the pande mic, only remote, telephonic hearings were being held, and in via video conference, or in - person. From the outset, the AAU explained that, held six hearings to assess whether to hold the merits hearing telephonically, exclusively, created the delay. Between May 2020 and June 2021, the AAU measures imposed to mitigate the spread of the disease primaril y, if not However, the onset of the COVID - 19 pandemic and the protective

2021. appealed to the AAU in April 2020 to the first day of his merits hearing in June the petitioner experienced a near fifteen - month delay from when he first rights as protected by the Federal and New Hampshire Constitutions. Here, hold a timely hearing violated the federal Medicaid Act and his due process Finally, we address the petitioner’s argument that the AAU’s failure to

C. Timeliness

address the admissibility of this testimony. plaintiff was not prejudiced by its admission.”). Accordingly, we do not need to challenged testimony, and, after reviewing the record, we are satisfied that the N.H. 447, 450 - 51 (2000) (“The trial court’s ru ling did not rest upon the decisions of an administrative agency.”); cf. Slattery v. Norwood Realty, 145 (1980) (“The doctrine that error must be prejudicial to be reversible applies to prejudice the petitioner. Se e Appeal of Nationwide Ins. Co., 120 N.H. at 94 - 95 contested testimony was immaterial to the AAU’ s determination and did not AAU’s decision that he is in eligible for DD services. W e conclude that the Accordingly, t he petitioner’s NGRI status did not constitute a basis for the committal u nder RSA chapter 651 in its final order to provide factual context. Rather, t he AAU only mention ed the petitioner’s NGRI status and involuntary NGRI status committed under RSA 651: p. 11 11 - a is eligible to receive DD services. The AAU never considered whether, as a matter of law, som eone with 11

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

the AAU did not violate the Medicaid Act. Accordingly, we affirm. experienced waiting for the AAU merits hearing, we nevertheless c onclude that Additionally, although we recognize the significant delay that the petitioner the fact that he does not have a qualifying DD pursuant t o RSA 171 - A:2, V. finding that the petitioner is ineligible for RSA chapter 171 - A services based on For the foregoing reasons, we conclude that the AAU did not err in

alleged violatio n, we decline to address the m. because the petitioner’s remaining due process arguments are premised on this conclude that in this case the AAU did not violate the Medicaid Act and, the delay. Based upon the plain language of the federal regulations, we constituted an emergency, which, for the reasons we just di scussed, caused