Opinion
DOCKET NO. A-1777-11T2
03-20-2013
M.T., Petitioner-Appellant, v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, Respondent-Respondent, and CAMDEN COUNTY BOARD OF SOCIAL SERVICES, Respondent.
William H. Buckman Law Firm, attorneys for appellant (Lilia Londar, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer R. Heger, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sabatino.
On appeal from the Department of Human Services, Division of Medical Assistance and Health Services.
William H. Buckman Law Firm, attorneys for appellant (Lilia Londar, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer R. Heger, Deputy Attorney General, on the brief). PER CURIAM
The narrow issue presented in this appeal concerns the delay of respondents, the Division of Medical Assistance and Health Services ("DMAHS" or "the Division") and the Camden County Board of Social Services ("CCBSS"), in processing appellant M.T.'s application for benefits under what is known as the Global Options Assisted Living Waiver Program ("Global Options"). For the reasons that follow, we remand this matter to the Division for further consideration.
On December 3, 2010, appellant filed with co-respondent CCBSS an application for benefits under the Global Options program. As described in the appellate briefs, Global Options is a Medicaid-supported program in New Jersey that offers home care and assisted living care to persons otherwise clinically-qualified for nursing home care. The New Jersey Department of Human Services ("DHS") is the state agency that receives federal funds under Title XIX (Medicaid) and Title XXI (the State Children's Health Insurance Program) of the federal Social Security Act. 42 U.S.C. §§ 1396-1396w5, 1397aa-1397mm; N.J.A.C. 10:49-1.2(a). DMAHS, a division of DHS, administers Medicaid-funded programs through its central office and through Medical Assistance Customer Centers like CCBSS, located throughout the State of New Jersey. N.J.A.C. 10:49-1.2(a).
It appears that CCBSS is considered a Medical Assistance Customer Center under N.J.A.C. 10:49-1.2(a), and also a county welfare agency under N.J.A.C. 10:71-1.5 and N.J.A.C. 10:71-2.3(c), discussed infra.
According to the briefs, the Global Options program is available to eligible persons who have income or assets slightly higher than traditional Medicaid eligibility limits, but who nonetheless demonstrate that they meet the distinct needs-based criteria of Global Options. Apparently, there are two aspects of a determination of eligibility for Global Options benefits: (1) a financial assessment, and (2) a clinical assessment of the applicant's medical condition and needs. Various county welfare agencies, such as CCBSS, typically conduct the financial eligibility assessments, see N.J.A.C. 10:71-1.5, and professional staff designated by the Division typically perform the clinical assessment. See N.J.A.C. 8:85-2.1(a).
Because appellant's initial application lacked sufficient information concerning her financial eligibility, CCBSS requested additional information from her. Appellant supplied that information to CCBSS on or about March 1, 2011. About two-and-one-half months later, on May 9, 2011, CCBSS concluded that appellant met the financial eligibility requirements for Global Options benefits, and transmitted appellant's application to DMAHS for a clinical determination. Upon finding that appellant was clinically eligible for benefits, DMAHS approved her application, effective May 25, 2011, and notified appellant of its determination on June 6, 2011. In sum, approximately eighty-five days elapsed between the time that appellant's supplemented application was filed on March 1, 2011 and the May 25, 2011 effective date of eligibility.
Because she allegedly did not have the resources to pay for the costs of her care during the intervening period before her application was ultimately approved, appellant requested a fair hearing before an Administrative Law Judge ("ALJ"). Appellant contended that respondents had not processed her application with "reasonable promptness" in accordance with a Medicaid regulation, N.J.A.C. 10:49-9.14(c). In particular, she sought a retroactive declaration of eligibility to take into account the unexplained delay in approving her eligibility following the submission of her documents on March 1, 2011. Respondents opposed her request, arguing that another regulation, N.J.A.C. 10:49-22.1(b), prohibits retroactive eligibility for Medicaid waiver program beneficiaries. See also 42 U.S.C. § 1396a(a)(34) (allowing retroactive benefits for up to a three-month period prior to the date of eligibility for traditional, non-waiver Medicaid programs).
Upon considering the matter, the ALJ rejected appellant's claim for retroactive benefits in light of the Division's reliance upon the prohibition in N.J.A.C. 10:49-22.1(b). However, the ALJ expressed misgivings about the "unfairness of this result," where the delay in processing appellant's application after March 1, 2011 occurred through no fault of her own. The ALJ further noted that "[r]ecognizing limitations of personnel and assets at [the Division], it would still seem appropriate to place a reasonable time limitation on the amount of time that [the Division] may take to evaluate the information supplied by the applicant." The Division thereafter issued a final agency decision upholding the ALJ's denial of retroactive benefits.
In her present appeal, appellant repeats the theme of unfair delay expressed in dicta by the ALJ. She maintains that respondents acted unreasonably in not processing her application more expeditiously after it was made complete.
As part of the briefing on appeal, respondents called our attention to a specific regulation addressing these timing considerations, N.J.A.C. 10:71-2.3. That provision reads, in pertinent part, as follows:
(a) The maximum period of time normally essential to process an application for the aged is 45 days; for the disabled or blind, 90 days.It appears that M.T. is aged, but not disabled or blind, so that her application would be governed by the forty-five day, rather than the ninety-day, presumptive deadline prescribed by N.J.A.C. 10:71-2.3(a). However, respondents assert in their brief that the exceptions in subsection (c)(2) and (c)(3) of N.J.A.C. 10:71-2.3 justified an extension of the forty-five-day period in this case because CCBSS needed additional time to review the supplemental financial information presented by appellant and also because of an unspecified "administrative or other emergency that could not have reasonably been avoided."
. . . .
(c) It is recognized that there will be exceptional cases where the proper processing of an application cannot be completed within the 45/90-day period. Where substantially reliable evidence of eligibility is still lacking at the end of the designated period, the application may be continued in pending status. In each such case, the CWA [county welfare agency] shall be prepared to demonstrate that the delay resulted from one of the following:
1. Circumstances wholly within the applicant's control;
2. A determination to afford the applicant, whose proof of eligibility has been inconclusive, a further opportunity to develop additional evidence of eligibility before final action on his or her application;
3. An administrative or other emergency that could not reasonably have been avoided; or
4. Circumstances wholly outside the control of both the applicant and CWA.
[N.J.A.C. 10:71-2.3(a), (c) (emphasis added).]
The present record is inadequate for us to evaluate respondents' attempt to rationalize the processing delay in this case beyond the presumptive forty-five-day period. There was no testimony before the ALJ specifically addressing these asserted grounds for delay. The ALJ's decision does state that "because of limited personnel and assets[, the Division] was unable to process [appellant's] info[rmation] prior to [May 25, 2011]." However, the ALJ cites to no evidence in the record substantiating these limitations of personnel and assets. Nor is it clear from this record that the agency's alleged generic staff and financial constraints rise to the level of "[a]n administrative or other emergency that could not reasonably have been avoided." N.J.A.C. 10:71-2.3(c) (emphasis added); see, e.g., Cnty. of Gloucester v. State, 132 N.J. 141, 152 (1993) (analogously noting limitations upon what comprises an "emergency" that can excuse governmental agency compliance with certain legal requirements).
We appreciate the difficulties being encountered by all levels of government in performing their important functions during times of fiscal stringency. Even so, we do not find the present record sufficiently developed to establish whether an exception in N.J.A.C. 10:71-2.3(c) has been satisfied. Although we also recognize respondents' reliance on the federal and state regulations that seemingly do not authorize retroactive eligibility in Medicaid waiver programs, the briefs on appeal are unclear about what, if any, adverse consequences can flow from an agency's failure to adhere to the "prompt disposition" timing requirements of N.J.A.C. 10:71-2.3. See State v. Malik, 365 N.J. Super. 267, 278 (App. Div. 2003) (noting the impropriety of construing a codified provision "to reach a result which would render a provision completely meaningless"), certif. denied, 180 N.J. 354 (2004); see also D'Ambrosio v. Dep't of Health & Senior Servs., 403 N.J. Super. 321, 341 (App. Div. 2008) (applying this same principle of construction). We presume that there must be some consequence to non-compliance, and that the regulation is not merely aspirational, but we leave that question to further explanation by the agency and, if warranted, the ALJ.
Given the shortcomings of the record and the ALJ's findings, as well as the murky interplay of the pertinent regulations, we remand this matter to the Division for further consideration, without prejudice to appellant filing a new appeal upon completion of the remand if the outcome is unfavorable to her.
On remand, the Division shall also address appellant's contention, raised by appellant for the first time on appeal through her appellate counsel, that respondents violated N.J.A.C. 10:49-9.14(c) by failing to process her application with "reasonable promptness." In directing such consideration, we are mindful that appellant was not represented by counsel before the ALJ and that considerations of public interest warrant an explanation of the issue. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973)
--------
Remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION