Opinion
No. 2270 C.D. 2011
06-20-2012
Anna Belle Motzer, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Anna Belle Motzer (Applicant) appeals from the Department of Public Welfare's (DPW) November 16, 2011 Final Order affirming the Administrative Law Judge's (ALJ) decision denying Applicant's appeal. The sole issue presented for this Court's review is whether the assets of an irrevocable trust established before July 30, 1994 may be deemed a resource of an applicant for Medical Assistance pursuant to Sections 178.4 or 178.7 of DPW's Regulations, 55 Pa. Code §§ 178.4, 178.7, where an amendment to that trust after July 30, 1994 forecloses the possibility of any further distribution of income or principal to such applicant. We affirm.
On October 12, 2010, Applicant was admitted to Golden Living Center, a nursing facility. On January 31, 2011, the Crawford County Assistance Office (CAO) received an application for Applicant's Medical Assistance Long Term Care (MA/LTC). On May 4, 2011, the CAO issued a Notice to Applicant finding her ineligible for MA/LTC benefits because her resources exceeded DPW's limit. Specifically, Applicant was the grantor of an irrevocable trust, established on March 24, 1989. The trust contained language which made the principal and income of the trust available to the Applicant to maintain her lifestyle. CAO determined that Applicant's total resources, including the trust, were $76,562.08.
The trust accounted for $71,046.00 of the total amount.
On June 13, 2011, the CAO received Applicant's appeal. On June 14, 2011, the trust was amended, removing the language which made the principal and income of the trust available to the Applicant to maintain her lifestyle. A hearing was held before the ALJ on October 13, 2011, following which the ALJ denied Applicant's appeal. On November 16, 2011, the DPW issued a Final Order affirming the ALJ's decision. Applicant appealed to this Court.
"In reviewing a DPW decision to deny reimbursement under the MA program, this Court's scope of review is limited to determining whether any constitutional rights were violated, whether there was an error of law, or whether essential findings of fact are supported by substantial evidence." Mazzitti & Sullivan Counseling Servs., Inc. v. Dep't of Pub. Welfare, 7 A.3d 875, 882 n.5 (Pa. Cmwlth. 2010).
Applicant argues that she filed a stipulation with the DPW's Bureau of Hearings and Appeals that was not considered by the ALJ. Specifically, Applicant contends that Applicant and DPW entered into a stipulation which establishes that the amendment to the trust is retroactive, thus, had the stipulation been considered she would have prevailed in her appeal.
This fact is contested by DPW. --------
Initially, we recognize that at the October 13, 2011 hearing, while addressing all of the documents submitted, the ALJ specifically stated: "And then the stipulation that was proposed, which I'm not going to take." Reproduced Record (R.R.) at 35a (emphasis added). Applicant made no argument at that time nor did she object. Notwithstanding the above, Applicant included the stipulation in her reproduced record, however, it is not part of the certified record. This Court has held:
An appellate court is limited to considering only those facts that have been duly certified in the record on appeal. For purposes of appellate review, that which is not part of the certified record does not exist. Documents attached to a brief as an appendix or reproduced record may not be considered by an appellate court when they are not part of the certified record.B.K. v. Dep't of Pub. Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) (citations omitted). Because the stipulation is not part of the certified record in this case, it cannot be considered by this Court.
The certified record did include, among other items, Applicant's irrevocable trust established March 24, 1989, and the June 14, 2011 amendment thereto. The amendment was not executed until after the Applicant's application was denied. Because her trust was established prior to July 30, 1994, Section 178.4(c) of DPW's Regulations applies. Section 178.4(c) of DPW's Regulations states:
Resources held in a trust established prior to July 30, 1994, are considered resources to the applicant/recipient to the extent that the trust permits use of those resources for the applicant's/recipient's food, clothing, shelter or medical care, regardless of whether the trust is in fact used for food, clothing, shelter or medical care. Trusts established on or after July 30, 1994, are subject to § 178.7 (relating to treatment of trust amounts for all categories of MA for trusts established on or after July 30, 1994), except for trusts established by will which continue to be subject to this section.It is undisputed that the trust, as originally established, permitted Applicant use of the resources "necessary to maintain [Applicant] in the style of life to which she is now accustomed." R.R. at 5a. As such, the trust was properly considered by the CAO in its determination of Applicant's resources. Accordingly, the CAO did not err in denying Applicant's application.
For all of the above reasons, DPW's Final Order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 20th day of June, 2012, the Department of Public Welfare's November 16, 2011 Final Order is affirmed.
/s/_________
ANNE E. COVEY, Judge