A.S. 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NOT FOR PUBLICATION WITHOUT THE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-0276-15T1



A.S.,

        Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES,

     Respondent.
_______________________________

              Submitted March 5, 2018 - Decided April 10, 2018

              Before Judges Messano, Accurso and O'Connor.

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

              Schutjer Bogar LLC, attorneys for appellant
              (John Pendergast, on the briefs).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Kay R.
              Ehrenkrantz, Deputy Attorney General, on the
              brief).

PER CURIAM
    A.S. died from Huntington's Disease in August 2013.        She

was fifty years old.   Her husband pre-deceased her.   Shortly

after her husband's death in November 2012, A.S. entered a

nursing home.   Their son, T.S., then eighteen or nineteen years

old, applied for Medicaid benefits on his mother's behalf,

listing his mother's sister's address on the application.        The

Salem County Board of Social Services notified him it could not

determine A.S.'s eligibility for Medicaid without certain bank

statements.    When those were not forthcoming, the Board on June

27, 2013 notified T.S. it had dismissed the application and of

his right to request a fair hearing.     No fair hearing was

requested.

    While that application was still pending, A.S.'s nursing

home, Golden Rehabilitation and Nursing Center, petitioned for

the appointment of a guardian for A.S.     A temporary guardian was

appointed for her in July 2013 and apparently began to try and

gather the necessary bank statements.     A.S. died the following

month and the guardian's ability to act on her behalf ended.

    Two months later, A.S.'s sister, as executor of A.S.'s

estate, designated herself as A.S.'s authorized representative

for purposes of determining A.S.'s eligibility for Medicaid,

listing the same address as was included in A.S.'s initial

application.    In January 2014, the executor executed a new form

                                 2                             A-0276-15T1
designating Hendy Rothberg, the business manager of Future Care

Consultants, the fiscal agent for Golden Rehabilitation, as

A.S.'s authorized representative for Medicaid.     Salem County

reopened A.S.'s case, and A.S.'s executor advised she was in the

process of obtaining short certificates in order to access the

financial information the County required.    The County

thereafter communicated with the executor about the records

required, including the current value of A.S.'s husband's 401k,

in order to determine A.S.'s eligibility for Medicaid.     When the

executor failed to provide the necessary records, the County

again closed A.S.'s case on May 31, 2014 and notified the

executor of her right to request a fair hearing.

    In July, Rothberg inquired of the County whether it had

been in contact with A.S.'s executor and if "she has been

updating you with the corrected paperwork needed in regards to

Medicaid?"   The County informed Rothberg the executor advised

"the spouse's 401k was going to be used to pay her bills" and

that the County had closed the case.   Rothberg asked the County

to "reopen the case as we would need Medicaid to pay for the

remaining room and board balance at the Nursing Home after the

funds in the 401k are depleted."    Rothberg was advised the case

would not be reopened as the 401k put A.S. over the resource

limit.

                                3                           A-0276-15T1
    Nine months later, on April 2, 2015, counsel for Rothberg

wrote to DMAHS claiming A.S.'s application for Medicaid had been

pending for more than two years without a decision, and

demanding a fair hearing based on "Salem County's inaction

regarding [A.S.'s] November 2012 Medicaid application."    DMAHS

wrote to counsel on July 31, 2015, denying the request for a

fair hearing based on Salem County having denied the reopened

application in May 2014.   On September 11, 2015, counsel wrote

again to DMAHS claiming "[t]he denial letter issued in this case

should have been sent to Ms. Rothberg of Future Care

Consultants, not [the executor]," and renewing his request for a

fair hearing.   Counsel filed a notice of appeal three days

later.

    On appeal, counsel argues "[t]he caseworker for A.S.

unlawfully refused to recognize Future Care as A.S.'s authorized

representative."   DMAHS counters that Salem County reopened

A.S.'s application to permit A.S.'s executor, the person who

designated Rothberg as A.S.'s representative, additional time to

provide financial information from the five-year look back

period necessary to determine A.S.'s eligibility for Medicaid

benefits.   It argues the County had ongoing communication with

the executor during the several months in which it held A.S.'s

application open and finally denied the application on May 31,

                                4                          A-0276-15T1
2014 by way of notice to the address listed on the application.

DMAHS notes that Rothberg was aware the executor never supplied

the County with the necessary financial information, was advised

of the denial of the reopened application in July 2014 and yet

did nothing for nine months.

    Having reviewed the record, it is clear the information the

County required to process A.S.'s application for Medicaid

benefits was information that could likely only be acquired from

A.S.'s executor and not from Rothberg, such as the value of the

401k account of A.S.'s late husband and any transfers of assets

in the five years preceding her death.   The County having

reopened A.S.'s application upon the request of her executor, we

do not find any error in its decision to communicate with the

executor and mailing the denial notice to the address provided

on the application.   Moreover, the record makes clear that

Rothberg was aware of the denial of A.S.'s application and

waited months to engage counsel to request a fair hearing on her

behalf.

    Accordingly, we find no error in DMAHS's decision to deny

Future Care's request for a fair hearing made nine months after

it learned of the denial of A.S.'s application for Medicaid.

Counsel has not demonstrated the decision was arbitrary,

capricious or unreasonable under the circumstances.   See E.B. v.

                                5                            A-0276-15T1
Div. of Med. Assistance & Health Servs., 
431 N.J. Super. 183,

191 (App. Div. 2013).

    Affirmed.




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