State must provide respite care where needed and must consider caregiver fatigue.

Forty hours of skilled nursing services under the Georgia Pediatric Program (GAPP) was found insufficient in amount, duration, and scope to reasonably achieve the purpose of correcting or ameliorating Petitioner’s condition.  Judge Miller rejected both the conclusion of the Department of Community Health (DCH) that respite care is not permitted under GAPP and its proposal that Petitioner’s skilled nursing needs may be met through the use of a proxy caregiver funded by another Medicaid program, such as Community Care Services Program.  GAPP, in fact, requires respite care where necessary to correct or ameliorate a child’s condition.  In addition, the proxy caregiver law does not accommodate conditions requiring complex observations and critical decisions.  Finally, while skilled nursing services cannot be offered as a mere convenience for caregiver, skilled nursing services can and must be offered to minimize the risk to the child caused by caregiver fatigue.