GENE TALARICO v. DEPARTMENT OF HUMAN SERVICES DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES

 

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2011-07T12011-07T1

GENE TALARICO,

Appellant,

v.

DEPARTMENT OF HUMAN SERVICES,

DIVISION OF MEDICAL ASSISTANCE AND

HEALTH SERVICES,

Respondent.

___________________________________________

 

Submitted October 27, 2008 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Department of Human Services, Division of Medical Assistance and Health Services.

Gene Talarico, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Zoe J. McLaughlin, Deputy Attorney General, on the brief).

PER CURIAM

Appellant pro se, Gene Talarico, appeals from the final agency determination of the Division of Medical Assistance and Health Services (DMAHS) denying his request for a fair hearing after Monmouth County Division of Social Services (MCDSS) determined that his mother had transferred funds to him for less than fair market value. This transfer led to a period of ineligibility for Medicaid assistance, which appellant initially accepted. When he later decided to appeal, the DMAHS advised him that his appeal was untimely. We affirm.

Appellant is the son of Lorraine Talarico (Talarico). Appellant is also Talarico's power of attorney in connection with her Medicaid application. Talarico resided at Brighton Gardens of Middletown, an elder care facility, from November 2002 until February 2007. Her assets were used to pay for this admission. Once Talarico's $300,000 in personal funds was exhausted, she sought assistance from Medicaid.

The State of New Jersey participates in the Medicaid program pursuant to the New Jersey Medical Assistance and Health Services Act (the Act), N.J.S.A. 30:4D-1 to -42. DMAHS is the agency within the Department of Human Services, pursuant to 42 U.S.C.A. 1396(a)(5), that administers the Medicaid Program in New Jersey, N.J.S.A. 30:4D-5 and -7, and has adopted regulations to implement the program. N.J.A.C. 10:74-1.1 to -14.1. County agencies, such as the MCDSS, process applications for Medicaid benefits in New Jersey.

In February 2008, appellant made a $5,000 transfer from Talarico's account to his bank account. The transfer was presumed to be for the sole purpose of qualifying Talarico for Medicaid assistance. See N.J.A.C. 10:71-4.7(c)(6) (creating a presumption that all transfers for less than fair market value are for the purpose of qualifying for Medicaid coverage for institutionalized care). Consequently, Talarico was subject to a one-month period of ineligibility for Medicaid assistance. N.J.A.C. 10:71-4.7(b)(4) (imposing a mandatory period of ineligibility when an individual transfers resources for less than fair market value). A letter dated July 18, 2007 notified appellant that he could challenge the ineligibility with sufficient evidence. In a written response to this notice, appellant advised that he accepted the period of ineligibility. A follow-up letter dated July 27 advised appellant that he had twenty days from the date of the letter to appeal.

In a letter dated November 2, 2007, appellant requested that MCDSS reevaluate the "penalty period given to [Talarico] by your office due to additional information that was not given at the time of decision." That letter was apparently forwarded to DMAHS, and in correspondence dated November 15, appellant was advised that his "hearing request is denied because it was not timely filed." The present appeal followed.

On appeal, appellant contends that his initial acceptance of the period of ineligibility "was due to duress inflicted upon [him] by Yudi Steinfeld [(Steinfeld)], Director of Imperial Care Center, ECF." He urges that because of that duress, his acceptance of the period of ineligibility "should be deemed invalid." Additionally, although not specifically raised as a point heading in his brief, appellant contends that he did not receive the July 27 letter until "after [he] called the County's caseworker, Ann Hermida[,] in 11/07 and it was sent to [him] at that time." Upon receiving the letter, he immediately sought a fair hearing.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the agency decision is well-supported by the record and the issues presented by appellant are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D) and (E). We add only the following comments.

The standard of review of decisions from administrative agencies is narrow. We "will reverse the decision of an administrative agency only if 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) (quoting Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963)).

We first address appellant's contention that he did not receive timely notification of his appeal rights. Pursuant to N.J.A.C. 10:49-10.3(b)(3), when there is an ineligibility determination, an applicant has twenty days to request a hearing. Additionally, the agency is required to promptly notify the appellant affected by any adverse action of the right to request a fair hearing. N.J.A.C. 10:70-7.1 and N.J.A.C. 10:70-7.2.

Appellant claims that he never received the July 27 letter from MCDSS notifying him of his appeal rights until he called Caseworker Hermida, who in turn sent a copy of the letter to him. A review of the record, however, reveals no evidence demonstrating that appellant, at any time, advised the agency that he never received notice of his appeal rights.

The July 27 letter was addressed to appellant at 21 Fieldstone Lane, Wayside, New Jersey, 07712, the same address where the initial notice of the period of ineligibility was sent. There is nothing to suggest that the letter was returned to MCDSS as undeliverable. Further, there is no evidence in the record, for example, that appellant had experienced problems receiving mail at the Wayside address. Also absent from the record was an explanation from appellant explaining the delay in contacting Caseworker Hermida until November. In Hermida's July 18 letter, which appellant received, she advised him to contact MCDSS by July 30, 2007, if he wished to provide "evidence that [Talarico] transferred [her] $5,000 solely for some other reason than to become eligible for Medicaid benefits[.]" Of even greater significance is the fact that appellant's November 2 letter to MCDSS made no mention of any delay in receiving the July 27 letter advising him of his appeal rights.

Likewise, the November 2 letter made no reference to any issue of duress surrounding appellant's acceptance of the ineligibility period. The letter does state that appellant accepted the ineligibility period "only to quicken the process, to get Imperial Care Center off my back, [and] to stop the harassing phone calls from them[,]" which he explained consisted of constant calls from "[Steinfeld] . . . requesting money and asking/demanding to know when Medicaid was coming through for [Talarico]." The letter did not state, as appellant now argues on appeal, that his acceptance of the ineligibility period had been under duress due to actions by Steinfeld. While his harassing phone calls, presumably from Steinfeld on behalf of Imperial, demanding money and information regarding the status of the Medicaid application, may have been perceived by him as harassing and annoying, there is nothing in the record to suggest that his will was somehow overborne to the extent that he felt compelled to accept the penalty period on behalf of Talarico. 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 461 (App. Div. 2004). Moreover, there is no evidence that MCDSS, to whom the necessary information surrounding the transfer of the $5,000 should have been provided, in any way exerted pressure upon him to accept the ineligibility period.

In summary, we discern no basis to disturb the agency's determination. We are persuaded the agency's decision denying appellant's request for a fair hearing is supported by substantial, credible evidence in the record and was neither arbitrary, capricious nor unreasonable.

Affirmed.

 

Talarico left Brighton Gardens and was admitted to Imperial Care Center. She was later moved to Wayside Retirement Home.

(continued)

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A-2011-07T1

January 15, 2009