Opinion
No. 12–P–48.
2012-10-24
Madeline WHEET v. DIRECTOR OF the OFFICE OF MEDICAID.
By the Court (COHEN, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
First, the plaintiff argues that the judgment must be reversed because of the failure of the hearing officer to meet the mandatory time period for deciding the administrative action. The plaintiff has failed to meet her burden to demonstrate any error in MassHealth's argument that, in addition to an agency violation of its own regulations, the plaintiff must demonstrate prejudice from the violation before she would be entitled to reversal. Since none can be shown here, this argument provides no basis for reversal of the judgment.
The hearing officer found as a matter of fact that the $8,400 worth of checks written to the plaintiff's son allegedly for financial support were not written exclusively without a purpose to qualify for MassHealth. In light of that finding of fact, which has not been shown to be clearly in error, there is no error in the aspect of the judgment refusing to treat those amounts as disqualifying transfers. We read the hearing officer's decision to have concluded that there was insufficient evidence to support a factual finding that any work was done on the plaintiff's house. Given the paucity of evidence put forth by the plaintiff, we cannot say that the hearing officer's conclusion was clearly erroneous. Therefore there was no error in including the $8,760 allegedly spent by the son in preparing the home for sale among the disqualifying expenditures.
The plaintiff put in evidence a note in her own handwriting asserting that what the parties calculate to be $47,444 of the money taken out of ATMs was used for living expenses. The hearing officer also found insufficient evidence that any of that money was so used. The hearing officer indicated that, among other things, there was no evidence in the administrative record that any similar amount of cash had been used for the necessities of life in prior years.
In the absence of any evidence of any other source of income, or of the receipt of the necessities of life from some third party, it is an inescapable conclusion that some of the money withdrawn from the plaintiff's checking account was used for the necessities of life, including food. While the hearing officer of course is not bound to find any assertion by any party credible, she should have made a determination of the amount of money, from the funds withdrawn from the ATM, that the plaintiff reasonably spent on the necessities of life without a purpose to qualify for MassHealth. That amount should not have been deemed part of the disqualifying transfer. The matter therefore will be remanded to the agency for a calculation of that amount and for whatever adjustment in the period of ineligibility that is therefore required. See Gauthier v. Director of the Office of Medicaid, 80 Mass.App.Ct. 777, 790 (2011).
We have discovered no regulation that addresses this issue by, for example, allowing some standard deduction in some circumstances from the amount of an otherwise disqualifying transfer.
The judgment is vacated, and the matter is remanded to the Superior Court with instructions that it be remanded to the agency for further proceedings consistent with this memorandum and order.