N.M. 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NOT FOR PUBLICATION WITHOUT THE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-0400-15T1


N.M.,

        Petitioner-Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES,

     Respondent-Respondent.
_______________________________

              Submitted March 5, 2018 – Decided April 4, 2018

              Before Judges Messano, Accurso and O'Connor.

              On appeal from the 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; Stephen
              Slocum, Deputy Attorney General, on the
              brief).

PER CURIAM

        Petitioner N.M. appeals from a final agency decision of the

Department of Human Services, Division of Medical Assistance and
Heanlth Services (DMAHS), denying her requests for a hardship

waiver and a fair hearing.   Because the requests were out of

time, we affirm.

    N.M. became a resident of Hampton Ridge Healthcare and

Rehabilitation in April 2013 and appointed Senior Planning

Services as her designated authorized representative for

Medicaid benefits in July 2013.       The Ocean County Board of

Social Services notified N.M.'s representative on January 14,

2014 that petitioner's transfer of $92,500 for less than full

market value during the look-back period, presumably to qualify

for Medicaid, would subject her to a 354-day transfer penalty

extending from June 1, 2013.   The notice explained petitioner's

right to rebut the presumption by providing evidence the

transfer was for some other purpose, and that she could request

a waiver of the transfer penalty based on undue hardship, as set

forth in N.J.A.C. 10:71-4.10(q), within twenty days.

    On February 24, 2014, Ocean County notified petitioner's

representative that petitioner was approved for medical

assistance for state plan services effective June 1, 2013, but

institutional services would not be covered until May 21, 2014,

because of the transfer penalty.      The notice advised of

petitioner's right to request a fair hearing within twenty days

in accordance with N.J.A.C. 10:49-10.3.

                                  2                           A-0400-15T1
     On October 28, 2014, counsel for Hampton Ridge wrote to

DMAHS advising it filed an appeal from the denial of N.M.'s

"Medical Assistance" on February 4, 2014 and an application for

an Undue Hardship Waiver on her behalf on February 13, 2014

"with the incorrect office."    Counsel attached those submittals,

addressed to the Ocean County Board of Social Services and asked

DMAHS to accept its correspondence "as our formal request to

appeal the denial of [N.M.'s] Medical Assistance, along with a

filing of Application for Undue Hardship Waiver."

     DMAHS responded by letter of November 14, 2014, denying the

request for a fair hearing because counsel offered no

explanation for its failure to file with DMAHS or to inquire

about the filings for eight months, and N.M. had never rescinded

her prior designation of Senior Planning Services as her

authorized representative.1    Counsel sent DMAHS another letter in


1
   A paralegal employed by counsel for N.M. contends in a
certification attached to its reply brief that the firm never
received the letter, which was addressed to an attorney no
longer employed by the firm. Because the November 14, 2014
letter was included in the statement of items comprising the
record on appeal filed by the agency on December 8, 2015,
pursuant to R. 2:5-4, and counsel for N.M. failed to move in the
agency to correct or supplement the record pursuant to R. 2:5-5,
see High Horizons Dev. Co. v. N.J. Dep't of Transp., 
120 N.J. 40, 44 (1990), we do not consider the certification. We note
the agency's acknowledgment of counsel's October 28, 2014 letter
had no effect on the untimeliness of N.M.'s request for a
hardship waiver and a fair hearing in any event.


                                 3                         A-0400-15T
1 February 2015, identifying its client as Kathy Granatelli,

designated as N.M.'s authorized representative by N.M. in March

2014, and accepted by Granatelli in September 2014, requesting

that DMAHS transmit the matter to the Office of Administrative

Law for a fair hearing with regard to the notice mailed by Ocean

County on January 14, 2014.   N.M. filed a notice of appeal in

September 2015.

    Counsel argues "N.M.'s appeal of the penalty should be

automatically granted," based on DMAHS's failure to have

"responded to N.M.'s requests for more than two years," and that

DMAHS's failure to transfer its request for a fair hearing to

the Office of Administrative Law violated federal law.     DMAHS

counters that it did respond to counsel by letter of November

14, 2014, denying the untimely request for a fair hearing.     It

further argues the letter counsel sent to the wrong agency

requesting a hearing in the OAL on February 4, 2014 could not

have been granted even if sent to DMAHS because it sought OAL

review of possible future agency action, namely, notice the

transfer penalty would be applied unless rebutted by evidence

the transfer was made solely for a reason other than Medicaid

eligibility, and that its February 13, 2014 request for a

hardship waiver would have been rejected as untimely even if

filed with DMAHS.

                                4                          A-0400-15T1
    Having reviewed the record, we are satisfied counsel's

arguments on behalf of N.M. are without sufficient merit to

warrant discussion in a written opinion.   R. 2:11-3(e)(1)(E).

The twenty-day time period for requesting a hardship waiver of a

transfer penalty and a fair hearing in the OAL are clear.      See

N.J.A.C. 10:71-4.10(q) and N.J.A.C. 10:49-10.3(b).    Although the

record here is not extensive, it makes plain N.M. did not timely

request either a hardship waiver or a fair hearing.   An appeal

based on agency inaction does not lie from an agency's failure

to respond to requests for action filed grossly beyond the time

allotted by regulation.   Cf. State Dep't of Envtl. Prot. v.

Mazza & Sons, Inc., 
406 N.J. Super. 13, 19-20, 23-26 (App. Div.

2009) (prohibiting the defendant from collaterally challenging

an administrative order it failed to challenge by the timely

request for an administrative hearing).

    Affirmed.




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