E.H. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4560-15T2


E.H.,

        Petitioner-Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES,

     Respondent-Respondent.
________________________________

              Submitted October 19, 2017 – Decided November 3, 2017

              Before Judges Simonelli and Haas.

              On appeal from the Division of Medical
              Assistance and Health Services, Docket No.
              091007616501.

              SB2 Inc., attorneys for appellant (John P.
              Pendergast, of counsel and on the briefs).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Lauren S. Kirk,
              Deputy Attorney General, of counsel and on the
              brief).

PER CURIAM

        Petitioner E.H., by her designated authorized representative

(DAR), Future Care Consultants (FCC), appeals from the failure of
respondent Division of Medical Assistance and Health Services

(DMAHS) to respond to a request to transfer this matter to the

Office of Administrative Law (OAL) for a hearing.

     Prior to her death in August 2015, E.H. submitted a Medicaid

application to the Hudson County Division of Welfare (HCDW), and

designated FCC as her DAR.   On October 13, 2015, the HCDW denied

the application, not because of E.H.'s death, but because she

failed to provide her husband's bank records for the five-year

look-back period.

     On October 29, 2015, FCC submitted to DMAHS a request for a

hearing.   In a November 5, 2015 letter to FCC, DMAHS did not deny

the request; rather, it requested a copy of HCDW's denial notice.

The letter also notified FCC that the case would be closed if it

did not receive the requested information within thirty days.      On

November 19, 2015, FCC sent to DMAHS a copy of the HCDW's denial

letter.

     On January 25, 2016, FCC contacted DMAHS and was advised that

because E.H. had died, the fair hearing request would not be

granted until the executor of E.H.'s estate signed a DAR form.

DMAHS did not confirm this decision in writing.

     FCC retained counsel, who notified DMAHS on March 24, 2016

that to his knowledge, there was no federal and State law requiring

the executor of E.H.'s estate to sign an additional DAR form to

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perfect the appeal on her behalf.    Rather, counsel argued that FCC

met the federal definition of "Medicaid applicant" in 42 C.F.R. §

400.203.   Counsel requested that DMAHS transmit the matter to the

OAL for a hearing.   DMAHS did not respond.   This appeal followed.

     As a threshold issue, we first address whether FCC's request

for a fair hearing was timely.       DMAHS argues the request was

untimely because FCC did not provide a copy of HCDW's denial notice

until thirty-eight days after the denial was issued. This argument

lacks merit.

     N.J.A.C. 10:49-10.3(a) provides that a request for a hearing

"shall be made in writing within [twenty] days from the date the

notice of the agency action giving rise to said complaint or

issue." N.J.A.C. 10:49-10.3(b) provides as follows, in pertinent

part:

           An opportunity for a fair hearing shall be
           granted to all claimants requesting a hearing
           because their claims for medical assistance
           are denied or are not acted upon with
           reasonable promptness . . . :

                1.   A request for hearing shall be
                defined   as    any   clear    expression
                (submitted in writing) by claimants (or
                someone authorized to act on behalf of
                claimants) to the effect that they desire
                the opportunity to present their case to
                higher authority;

                     . . . .



                                 3                           A-4560-15T2
                    3.   Claimants shall have [twenty] days
                    from the date of notice of Medicaid Agent
                    or NJ FamilyCare program action in which
                    to request a hearing[.]

     N.J.A.C. 10:49-10.3 does not require Medicaid applicant's to

provide a copy of the agency's denial notice in a written request

for a fair hearing, and DMAHS cites no authority imposing this

requirement. Similarly, the federal Medicaid regulation mandating

states to provide a fair hearing system does not specify what must

be included in a claimant's request for a fair hearing.             
42 C.F.R.
 431.205.    Given that federal and State regulations providing for

a fair hearing do not require applicants to include a copy of the

agency's denial notice in their request within twenty days of the

contested decision, FCC's request for a fair hearing made within

sixteen days of HCDW's denial notice was timely.

     Furthermore, DMAHS notified FCC that it must provide the

denial    notice    within   thirty    days   of   November   5,   2015.        In

compliance with that deadline, FCC sent DMAHS a copy of HCDW's

denial     notice    fourteen   days    later      on   November   19,     2015.

Accordingly, we conclude that FCC's request for a fair hearing was

timely.

     While the parties dispute whether DMAHS actually rendered a

final decision in this matter, there is no dispute that FCC did

not receive a written final decision from DMAHS or notice of its


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right to judicial review, as required by N.J.A.C. 10:49-10.10.

Likewise, DMAHS did not notify FCC, in writing, of its decision

and FCC's right to request a hearing or seek judicial review, as

required by 42 C.F.R. § 431.245(a).                According to 
42 C.F.R.
 431.205,    which   outlines       hearing   system     requirements,    "[t]he

hearing system must meet the due process standards set forth in

Goldberg v. Kelly, 
397 U.S. 254[, 
90 S. Ct. 1011, 
25 L. Ed. 2d 287] (1970)." In Goldberg, the Supreme Court held that due process

in administrative proceedings requires timely and adequate notice

and a meaningful opportunity to be heard.               Id. at 267-69, 
90 S.

Ct. at 1020-21, 
25 L. Ed. 2d at 299.              The Court specified that

notice must include the agency's reasons supporting its decision,

and   an   opportunity   to   be    heard,    confront    witnesses,    present

arguments,    and   submit    evidence       tailored    to   the   applicant's

specific capabilities and circumstances.              Ibid.

      We conclude that DMAHS's January 25, 2016 oral decision, even

if deemed a final decision, violated State and federal regulations

requiring written notice and notice of a right to seek State agency

or judicial review.       Accordingly, we reverse the decision, and

remand for a hearing before the OAL, at which the issues raised

in this appeal shall be addressed.           The parties are not precluded

from raising additional issues.



                                        5                               A-4560-15T2
Reversed and remanded.   We do not retain jurisdiction.




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