J.C. 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NOT FOR PUBLICATION WITHOUT THE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-0775-15T4

J.C.,

        Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES,

     Respondent.
_______________________________

              Submitted March 5, 2018 - Decided April 11, 2018

              Before Judges Messano, Accurso and O'Connor.

              On appeal from New Jersey Department of
              Human Services, Division of Medical
              Assistance and Health Services, No.
              0410053972.

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

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Stephen J.
              Slocum, Deputy Attorney General, on the
              brief).

PER CURIAM

        Petitioner J.C. appeals from a final agency decision of the

Department of Human Services, Division of Medical Assistance and
Health Services (DMAHS), denying her request for a fair hearing.

Because J.C.'s designated authorized representative filed its

request for a fair hearing before being designated her

authorized representative, then failed to perfect its request

for a fair hearing for over four months and finally attempted to

submit a certification on appeal explaining its actions without

a motion to expand the record, we affirm.

    J.C. was admitted to a nursing facility in March 2014, and

her son, S.C., subsequently submitted an application to the

Camden County Board of Social Services for Medicaid benefits on

her behalf.   Based on information provided by S.C. in response

to requests from the agency, it wrote to him on October 29,

2014, to advise that J.C.'s transfer of $10,700 for less than

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

qualify for Medicaid, would subject her to a one month and

eleven day transfer penalty extending from August 1, 2014,

unless rebutted.   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 December 17, 2014, the Camden County Board of Social

Services sent S.C. its decision approving J.C. for Long Term

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Care Services effective September 12, 2014 based on the

application 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.

    On December 30, Avista Healthcare c/o Future Care

Consultants wrote to DMAHS requesting a fair hearing on behalf

of J.C.   The letter claimed that "[d]ocumentation was provided

to the [Medicaid case] worker to prove that the money in

question was actually used for [J.C.] herself and was not gifted

to her son," S.C.   The letter did not identify which county

welfare agency had approved J.C. for benefits subject to the

transfer penalty, did not identify the date of the decision and

did not include anything designating Avista Healthcare or Future

Care Consultants as J.C.'s authorized representative.

    DMAHS replied to Future Care Consultants on January 8,

2015, requesting a copy of the letter from "the County or State

that is the basis for the fair hearing" with regard to J.C.

Future Care responded on January 23, 2015, by faxing a copy of

the October 29, 2014 penalty advisory letter.   DMAHS responded

on January 30, 2015, again requesting a copy of the letter

forming the basis of the fair hearing request and a completed

Authorized Representative Form designating Future Care

Consultants as J.C.'s representative with regard to her

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eligibility for Medicaid.   Future Care responded on February 17,

2015, by faxing an Authorized Representative Form dated January

2, 2015, three days after its letter requesting a fair hearing

on J.C.'s behalf, and again attaching the October 29, 2014

prospective penalty notice but not the eligibility letter

forming the basis of the fair hearing request.

    DMAHS responded on March 11, 2015 with a "3rd & Final

Request" advising Future Care that the agency needed the

eligibility letter forming the basis of the Fair Hearing

request.   DMAHS's correspondence advised that "[i]f the

requested information is not received within 30 days from the

date of this letter this case will be closed."    On March 20, a

representative of DMAHS's Fair Hearing Unit followed up by

telephone, advising Future Care it needed the eligibility letter

in order to process an appeal from that letter.   Two months

later, on May 7, 2015, Future Care sent a fax to DMAHS enclosing

the December 17, 2014 eligibility notice, noting the "[o]riginal

request for a fair hearing was sent on 1/1/15 which is in the 20

day time frame."   DMAHS, having closed the case, did not

respond.

    On August 10, 2015, counsel pursuing this appeal wrote to

DMAHS as counsel to Future Care Consultants complaining of the

agency's failure to have responded to Future Care's May 7, 2015

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letter and demanding a fair hearing "due to DMAHS['s] inaction

regarding [J.C.'s] appeal of her December 2014 eligibility

notice."   DMAHS responded on September 2, 2015, recounting the

several letters it sent to Future Care in order to obtain the

documents necessary to perfect its appeal on behalf of J.C.

DMAHS noted that "N.J.A.C. 10:49-10.3(b)(3) specifically states

that Medicaid: '[c]laimants shall have 20 days from the date of

the notice . . . in which to request a hearing,'" and that while

the agency "will permit claimants an additional 30 days to

complete the request, the time periods here exceed

reasonableness."

    J.C. appeals, contending Future Care's "hearing request was

perfected as soon as was practicable due to the diligent efforts

of her authorized representative, despite J.C.'s son's lack of

cooperation and the Division of Medical Assistance and Health

Services' unlawful refusal to cooperate."   We reject the

argument as utterly without merit and based on a certification

submitted with counsel's brief without a motion requesting to

expand the record.

    N.J.A.C. 10:49-10.3(b)(3), promulgated by DMAHS in

accordance with its statutorily imposed duty to administer the

State's Medicaid program, see 
N.J.S.A. 30:4D-7; 42 U.S.C. §§

1396-1396w-5; N.J.A.C. 10:49-1.1 to -24.5, provides that

                                5                           A-0775-15T4
"[c]laimants shall have 20 days from the date of notice of

Medicaid Agent . . . action in which to request a hearing."     The

letter Future Care sent to DMAHS initially requesting a fair

hearing, besides being submitted before J.C. had designated it

as her authorized representative, did not attach the eligibility

letter forming the basis of its appeal, or even identify the

county welfare agency (the Medicaid Agent) that made the

determination or the date of its decision.   The October 29, 2014

notice it subsequently submitted was merely notification of the

penalty that would be imposed if no evidence rebutting the

presumption were submitted.   The December 30, 2014 letter from

Future Care claimed that "[d]ocumentation was provided to the

[Medicaid case] worker" to rebut that presumption, although no

proof was provided and no eligibility letter attached.

    Future Care's December 30, 2014 letter requesting a fair

hearing was obviously incomplete.   Future Care referenced only a

notice of penalty to J.C. that could be rebutted, asserted that

it had been rebutted by proofs submitted to an unknown agency,

which agency subsequently approved benefits on an unknown date

without taking into account those proofs.    We cannot fault the

agency for failing to transmit such an inchoate dispute to the

Office of Administrative Law for an administrative hearing.

DMAHS thereafter left the case open for four months to permit

                                6                          A-0775-15T4
Future Care to perfect its appeal.   Although Future Care

submitted some additional documents, including a designated

authorization form, it never submitted the eligibility letter

from which it purportedly appealed, despite being advised the

case would be closed without it.

     Future Care seeks to excuse its failure to perfect its

appeal by submitting a certification with its appellate brief

from an employee of Future Care Consultants claiming J.C.'s son

and the Medicaid case worker in Camden County failed to

cooperate in providing it documents.1   As no motion was made to

supplement the record with this certification in accord with R.

2:5-5(b), it is obviously dehors the record on appeal and we

cannot consider it.   See Rudbart v. Bd. of Review, 
339 N.J.

Super. 118, 122-23 (App. Div. 2001).




1
   Future Care claims it included the substance of this
certification in an October 13, 2015 letter to DMAHS "renewing
J.C.'s request" for a fair hearing. That letter was not
included in the statement of items comprising the record on
appeal filed by the agency on January 28, 2016, pursuant to R.
2:5-4, and is thus outside the record we may consider. See
Townsend v. Pierre, 
221 N.J. 36, 45 n.2 (2015). Although Future
Care claims the agency "appears to have purposely omitted" its
October 13, 2015 letter from the statement of items, its remedy
for any claimed omission is a motion 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), not
to simply argue the facts it contends were omitted in its
appellate brief.

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    Having reviewed the record in accord with our deferential

standard of review, see E.B. v. Div. of Med. Assistance & Health

Servs., 
431 N.J. Super. 183, 190-91 (App. Div. 2013), we cannot

find the agency decision to deem Future Care's request for a

fair hearing as out of time to be arbitrary, capricious or

unreasonable.   As to its contention that DMAHS failed to act on

its May 7, 2015 fax finally perfecting its fair hearing request

four months beyond the twenty days permitted, an appeal will 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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