Opinion
DOCKET NO. A-5911-10T3
02-22-2013
S.D., Petitioner-Appellant, v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND BERGEN COUNTY BOARD OF SOCIAL SERVICES, Respondents-Respondents.
The Kay Law Firm, L.L.C., attorneys for appellant (Stephanie M. Kay, of counsel; Eva V. Signore, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent Division of Medical Assistance and Health Services (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer Heger, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Maven.
On appeal from the Department of Human Services, Division of Medical Assistance and Health Services.
The Kay Law Firm, L.L.C., attorneys for appellant (Stephanie M. Kay, of counsel; Eva V. Signore, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Division of Medical Assistance and Health Services (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer Heger, Deputy Attorney General, on the brief). PER CURIAM
S.D. appeals the June 24, 2011 final agency decision of the Director of the Division of Medical Assistance and Health Services (DMAHS) denying Medicaid benefits for a five-month period during which she failed to provide the necessary verification information, and establishing a Medicaid eligibility date of January 1, 2011. We affirm.
On October 5, 2009, S.D., who is incapacitated, was admitted to the Woodcrest Health Care Center, a nursing facility operated by Care One (Woodcrest). Shortly thereafter, on October 27, 2009, S.D. appointed Martin Levenson as her durable power of attorney. Levenson, in turn, authorized Woodcrest and its counsel, the law firm Schutjer Bogar, to take those actions necessary to secure Medicaid benefits on S.D.'s behalf.
A total of four applications for Medicaid benefits were filed by the law firm: in June, August and October 2010, and January 2011. The Bergen County Board of Social Services (BCBSS) denied S.D.'s first three applications for failure to provide the necessary verification information before approving her fourth application, and therefore S.D. was determined to not be financially eligible for benefits prior to January 1, 2011.
Specifically, S.D.'s first application was filed by Woodcrest's attorney on June 15, 2010. The BCBSS requested additional verification information from S.D., with a deadline of July 21, 2011. The requested verification information included S.D.'s birth certificate; social security card; proof of residence; real property deeds or proof of sale; life insurance policies; pension documents; tax returns; and bank account statements and information regarding specific transactions.
Evidently, Levenson, who was neither a relative nor close family friend of S.D., did not have all of the information necessary to establish her Medicaid eligibility, and according to Woodcrest, was not cooperative in helping to obtain it. On July 15, 2010, Woodcrest's attorney sent a letter to S.D.'s Medicaid caseworker, stating that "Mr. Levenson simply does not have the personal knowledge necessary to obtain some of the required verification information." The letter went on to state that "a petition for the appointment of a guardian for [S.D.] will be filed . . . in order to ensure that [S.D.] has a qualified legal representative to act on her behalf. While this petition is pending, Woodcrest requests that [S.D.'s] Medicaid application remain open so as to not further prejudice [S.D.]."
On July 26, 2010, Levenson consented to the appointment of a guardian for S.D., and agreed that his power of attorney would be voided upon the appointment of a guardian. In a July 15, 2010 letter to S.D.'s caseworker, Woodcrest requested that S.D.'s Medicaid application remain open while she awaited the appointment of a guardian. As a result, the verification deadline for S.D.'s application was extended to August 4, 2010. The requested information was not provided, and, as a consequence, the application was denied.
On August 30, 2010, Woodcrest's attorney submitted another application for Medicaid benefits on S.D.'s behalf. In the interim, on August 20, 2010, Schutjer Bogar filed a complaint in the Law Division, seeking a guardian for S.D. due to her inability to govern herself or manage her own affairs. The complaint recommended that the court appoint Stephen Mielach, a licensed clinical social worker and National Master Guardian, as her guardian. The BCBSS, which had requested additional information necessary to process S.D.'s second application by letter of September 16, 2010, was made aware of the pendency of this complaint, as well as S.D.'s continued inability in the meantime to supply the requisite verification information. Although Woodcrest's attorney managed to provide some of the requested material via letters of September 21 and October 15, 2010, the BCBSS denied S.D.'s second application on October 18, 2010, for failure to produce the remaining information. Woodcrest appealed this denial on October 26, 2010 and requested a fair hearing.
While the fair hearing request was pending, Woodcrest filed a third application for Medicaid benefits on S.D.'s behalf on October 29, 2010. Although some verification information was submitted, the BCBSS requested additional material to be submitted by December 15, 2010. In a December 13, 2010 letter to the BCBSS, Woodcrest's attorney explained that although S.D.'s brother, Steven Murphy, had been appointed as her guardian on November 19, 2010, he soon thereafter renounced his appointment, and therefore S.D. was once "again without a qualified legal representative to act on her behalf." As a result, S.D. sought an extension of the December 15, 2010 deadline to provide the remaining verification information until a successor guardian was appointed.
There is no proof submitted confirming the claim of an interim appointment made in the attorney's December 13, 2010 correspondence.
The BCBSS granted S.D.'s request to extend the deadline for providing verification information for her third application to January 3, 2011. On January 6, 2011, the BCBSS denied the third application for failure to provide that information.
By then, on December 8, 2010, the Law Division had found that S.D. was an incapacitated person unable to govern herself and manage her own affairs, and appointed Stephen Mielach as her guardian. Letters of guardianship for Mielach were issued on December 17, 2010, executed on December 21, 2010, and received by Mielach on January 3, 2011. Until then, Levenson had been continuing to act on S.D.'s behalf pursuant to the durable power of attorney, writing checks to, among others, Schutjer Bogar, up to December 7, 2010, and spending down S.D.'s assets.
On January 21, 2011, Mielach requested a fair hearing regarding BCBSS's third denial and on January 31, 2011, Mielach submitted a fourth application for Medicaid benefits on S.D.'s behalf. The BCBSS approved this application, and S.D. was deemed eligible for Medicaid benefits retroactive to January 1, 2011.
Thereafter, on February 17, 2011, a fair hearing was held in the Office of Administrative Law (OAL) on S.D.'s appeal of her second (August 30, 2010) application for Medicaid benefits. On March 25, 2011, the Administrative Law Judge (ALJ) found in favor of S.D., concluding that it was arbitrary, capricious, and unreasonable for the BCBSS to refuse to keep S.D.'s Medicaid application in pending status until a guardian was appointed and capable of responding to the requests for verification information. The ALJ ordered the BCBSS to award S.D. Medicaid benefits from the date of her August application.
On administrative appeal to the DMAHS, the Director reversed the ALJ's initial decision and reinstated S.D.'s eligibility date of January 1, 2011, finding no evidence in the record to support the finding that Levenson had abandoned S.D., that he was uncooperative, or that S.D. was financially eligible for Medicaid prior to January 1, 2011.
This appeal follows, in which S.D. raises the following issues:
I. THE DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES COMMITTED REVERSIBLE ERROR BY DENYING S.D., A DISABLED APPLICANT, VITAL PUBLIC BENEFITS INSTEAD OF PROVIDING HER A REASONABLE ACCOMMODATION IN LIGHT OF HER DISABILITY.
II. THE DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES VIOLATED NEW JERSEY MEDICAID REGULATIONS BY REFUSING TO ACCOMMODATE S.D., A DISABLED APPLICANT, BY KEEPING THE AUGUST 2010 APPLICATION IN PENDING STATUS UNTIL A GUARDIAN WAS APPOINTED.
III. THE DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES' FINAL DECISION ESTABLISHING AN EFFECTIVE DATE OF JANUARY 1, 2011, FOR MEDICAID BENEFITS ELIGIBILITY IS IN ERROR, AS THE OCTOBER 2010 DENIAL FAILED TO EXCLUDE FROM S.D.'S AVAILABLE RESOURCES THOSE WHICH COULD NOT BE ACCESSED DUE TO HER DISABILITY AND THE LACK OF A GUARDIAN UNTIL JANUARY 3, 2011.
I
As a threshold matter, an appellate court will not reverse the decision of an administrative agency unless it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). In cases where an agency head reviews the factfindings of an ALJ, a reviewing court must uphold the agency head's findings even if they are contrary to those of the ALJ, provided the agency head sets forth reasons for his or her findings and they are supported by sufficient or substantial credible evidence in the record. In re Suspension of License of Silberman, 169 N.J. Super. 243, 255-56 (App. Div. 1970), aff'd, 84 N.J. 303 (1980); S.D. v. Div. of Med. Assistance and Health Servs., 349 N.J. Super. 480, 483-84 (App. Div. 2002).
Please note that S.D. in this case is different than the present appellant.
Here, the ALJ's decision holding the BCBSS's denial of S.D.'s August 30, 2010 Medicaid application to be arbitrary and unreasonable was based on his factfinding that S.D. had been "abandoned" by her attorney-in-fact, Levenson, and her so-called first guardian, Steven Murphy, and therefore her failure to complete the verification process was "through no fault of her own." In reversing the ALJ, the Director rejected both of these findings. As to the former, she found
no supporting evidence that [S.D.] was ever abandoned by her [Power of Attorney] (POA) or that she was financially eligible prior to January 1, 2011. Despite the findings that she was abandoned, her POA wrote checks on her account as late as December 7, 2010.As noted, the Director also rejected S.D.'s claim of appointment of an interim guardian. Noting that S.D.'s August 20, 2010 verified complaint sought to have Stephen Mielach appointed as S.D.'s guardian, the Director stated
Those actions alone show there was no legal impediment to spending down [S.D.]'s assets to achieve Medicaid eligibility. I find no competent evidence that [S.D.]'s POA was uncooperative or abandoned [S.D.].
[t]here is no mention in the legal pleadings of her brother ever being proposed as guardian, receiving letters of guardianship or renouncing the guardianship. There is mention of this in [Woodcrest's attorney]'s letter of December 13, 2010 without any cross reference to an exhibit or court document. Had the brother been appointed in November 2010, that order would have extinguished the POA's authority and yet he was writing checks to [Woodcrest's attorney] and her firm in December 2010.The Director concluded by stating that there is
nothing in the record to indicate [S.D.]'s POA refused to cooperate and resigned his position. Rather in a certification dated July 26, 2010 and prepared by [Woodcrest's attorney], the POA stated that he consented to the appointment of a guardian and requested to be removed as her POA. The verified complaint subsequently filed by [Woodcrest's attorney] does not allege any malfeasance or refusal to cooperate by the POA. The POA was writing checks on [S.D.]'s account to Schutjer Bogar and to the attorney as late as December 7, 2010, the day before the [Law Division judge] entered an order extinguishing the POA's authority. [Levenson's] actions show he was spending
down [S.D.]'s assets and had the authority to do so.
Thus, I find no evidence that [S.D.] or her representatives were legally blocked in their attempt to achieve Medicaid eligibility prior to January 1, 2011. It is disingenuous to argue otherwise especially as [S.D.]'s POA wrote two checks to Schutjer Bogar and counsel as late as December 2010. It was those checks that brought [S.D.] below $2,000 as of January 1, 2011.
We defer to the Director's factfindings as supported by sufficient credible evidence in the record. Having thus determined there was no basis for the claim of abandonment, and therefore no reason to extend the BCBSS's deadlines beyond those already granted, the Director properly denied S.D.'s second and third applications for Medicaid benefits as incomplete.
On this score, the federal Medicaid Act, Title XIX of the Social Security Act, 42 U.S.C.A. §§ 1396 to 1396w-5, provides for a joint federal-state program to grant medical assistance to individuals whose income and resources are insufficient to meet the cost of necessary medical services. Once a state has been accepted into the program, it must comply with the Medicaid statute and federal regulations. Harris v. McRae, 448 U.S. 297, 300, 100 S. Ct. 2671, 2679, 65 L. Ed. 2d 784, 794 (1980).
The New Jersey Medical Assistance and Health Services Act, N.J.S.A. 30:4D-1 to 30:4D-19.5 (Act), authorizes participation by New Jersey in the Medicaid program. The purposes of the Act are:
to provide medical assistance, insofar as practicable, on behalf of persons whose resources are determined to be inadequate to enable them to secure quality medical care at their own expense, and to enable the State, within the limits of funds available for any fiscal year for such purposes, to obtain all benefits for medical assistance provided by the Federal Social Security Act . . . .
[N.J.S.A. 30:4D-2.]
Eligibility for medical assistance is governed by regulations adopted in accordance with the authority granted the Commissioner of the New Jersey Department of Human Services. N.J.S.A. 30:4D-7. DMAHS is the agency within the department that operates the Medicaid program. Applications for benefits are submitted to the local county board of social services and are reviewed for compliance with the regulatory requirements, and the board either grants or denies the application. N.J.A.C. 10:71-3.15.
For the Medicaid Only program, to which S.D. applied, an individual's countable resources cannot exceed $2,000 to be eligible for benefits. N.J.A.C. 10:71-4.5(c).
At the time that S.D. applied for Medicaid benefits, New Jersey Medicaid regulations provided that applications should normally be processed, and eligibility determinations be made, within sixty days for individuals applying based on disability. N.J.A.C. 10:71-2.3(a). However, the regulations also recognize "that there will be exceptional cases where the proper processing of an application cannot be completed within the [prescribed time] period." N.J.A.C. 10:71-2.3(c). Thus, an application may remain pending when "substantially reliable evidence of eligibility is still lacking at the end of the designated period." Ibid. The delay, however, must be the result of one of the following:
The regulations were amended on February 6, 2012 to allow ninety days for the processing of applications for the disabled.
i. Circumstances wholly within the control of the applicant;
ii. A determination by the county welfare agency, when evidence of eligibility or entitlement is incomplete or inconclusive, to afford the applicant additional time to provide evidence of eligibility before final action on the application;
iii. An administrative or other emergency that could not reasonably have been avoided;
iv. Circumstances wholly beyond the control of both the applicant and the county welfare agency.
[Ibid.; N.J.A.C. 10:72-2.1(d)(2).]
Federal regulations similarly provide that the agency must determine eligibility within the designated period "except in unusual circumstances." 42 C.F.R. § 435.911(c). The agency cannot use the time standards as a reason for denying eligibility. 42 C.F.R. § 435.911(e)(2).
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Obviously, a Medicaid applicant should not be made to wait beyond the prescribed time for an agency decision nor be prejudiced by unnecessary delay in the processing of his or her application where the delay is not the fault of the applicant. However, this is not to say, as appellant argues, that the regulation requires that the agency must grant an extension beyond the designated time period when the delay is due to circumstances outside the control of both the applicant and the county welfare agency. At best, such an extension is permissible. N.J.A.C. 10:71-2.3(a), -2.3(c)(4); N.J.A.C. 10:72-2.1(d)(2)(iv).
But even accepting S.D.'s interpretation, it cannot be said, based on the evidence of record, that S.D. was not at fault for the delay in submitting the requisite verification information. As noted, there is substantial credible evidence that as of the August 30, 2010 application, Levenson was still acting as S.D.'s agent, and that she was further being assisted by Woodcrest and Schutjer Bogar. Levenson, S.D.'s duly appointed attorney-in-fact, had "full and unqualified authority" to act on her behalf. He had not resigned, despite S.D.'s claims to the contrary, and therefore he retained the authority to provide the requested verification information and to spend down S.D.'s assets. And he did continue to spend down S.D.'s assets through checks written in August, September, and December 2010, ultimately putting her below the resource eligibility limit.
Levenson also was cooperative in providing a certification regarding S.D.'s finances, an affidavit consenting to the appointment of a guardian for S.D., and an authorization allowing Woodcrest and Schutjer Bogar to secure S.D.'s Medicaid benefits. To be sure, neither Woodcrest nor its counsel Schutjer Bogar obtained the verification information requested by BCBSS in a timely manner; however, there is no evidence that they were unable to obtain the verification information because they were not S.D.'s attorneys-in-fact, and they did provide some of the requested verification themselves, without Levenson's assistance.
Under the circumstances, the Director's decision establishing S.D.'s eligibility date of January 1, 2011 was neither arbitrary nor unreasonable.
II
Of course, prior to January 1, 2011, S.D. was rendered ineligible not only by the lack of verification information, but also by her resources in excess of eligibility limits. See N.J.A.C. 10:71-4.1(c)(1). As to the latter, however, S.D. argues that because of her incapacitation, she did not have access to her assets through no fault of her own, rendering them "inaccessible" and therefore not "countable" in establishing Medicaid eligibility limits. We disagree for the same reasons as previously mentioned.
Resources, for the purpose of determining financial eligibility, include any real or personal property owned by the applicant that can be converted into cash. N.J.A.C. 10:71-4.1(b). However, only "available" resources are countable, or considered in the eligibility determination. N.J.A.C. 10:71-4.1(c). Relevant here, a resource is considered available when "[t]he person has the right, authority or power to liquidate real or personal property or his or her share of it." N.J.A.C. 10:71-4.1(c)(1). Excluded from the eligibility determination are any resources "which are not accessible to an individual through no fault of his or her own." N.J.A.C. 10:71-4.4(b)(6).
Despite her claim to the contrary, S.D. did in fact have the capacity, through her representatives, to access her resources. As noted, the record clearly indicates that Levenson continued to act as S.D.'s power of attorney until she was appointed a new guardian in December 2010. Regardless of how helpful Levenson may have been during S.D.'s application process, it is undisputed that he had both the legal authority and physical and mental ability to access S.D.'s bank account. The funds were available to Levenson and he did in fact access them. He wrote checks on S.D.'s behalf in August, September, and December 2010, ultimately spending down her assets below the eligibility limit. Therefore, contrary to the ALJ's finding, S.D. had not been "abandoned."
III
Lastly, S.D. argues that the BCBSS violated the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213, by not properly taking into account her mental incompetence in the application process. She argues that the BCBSS was required to provide her a reasonable accommodation under the ADA by keeping her application pending until she was appointed a new guardian.
The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C.A. § 12132.
Several sections of the ADA require certain entities to provide "reasonable accommodations" to people with known physical or mental disabilities. For instance, 42 U.S.C.A. § 12112(b)(5)(A) prohibits employers from "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee." Also, places of public accommodation are required to "to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities." 42 U.S.C.A. § 12182(b)(2)(A)(ii).
Aside from the lack of any indication in the record that S.D. or anyone acting on her behalf ever requested an ADA accommodation, appellant offers no authority for the extension of the "reasonable accommodation" requirement to effect a fundamental change in application and eligibility protocols of the State's Medicaid program. Certainly, S.D. cannot be denied public benefits or excluded from a public program on the basis of her disability, but that is not what happened here. S.D. was able to apply for benefits. There is no indication that S.D. was treated any differently than any other applicant. Rather, the BCBSS denied S.D.'s applications because S.D. had not provided all of the necessary verification information. Moreover, the BCBSS did to some degree accommodate S.D. by extending the deadline for providing verification information for two of her applications. Furthermore, S.D. was acting through her legal agents when she applied, and so her disability was not really an issue. Levenson acted as S.D.'s power of attorney right up until Mielach was appointed as her guardian. And, as noted, Levenson used his power of attorney to authorize Woodcrest and Schutjer Bogar to take those actions necessary to secure Medicaid benefits on S.D.'s behalf. Consequently, we discern no violation of the ADA arising from the denial of S.D.'s applications.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION