B.S. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2936-15T3
B.S.,

         Petitioner-Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES and
MONMOUTH COUNTY BOARD OF
SOCIAL SERVICES,

     Respondent-Respondent.
_____________________________________

                   Submitted October 11, 2018 – Decided October 19, 2018

                   Before Judges Accurso and Moynihan.

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

                   SB2 Inc., attorneys for appellant (John P. Pendergast
                   and Laurie M. Higgins, on the briefs).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Nicholas Logothetis, Deputy
                   Attorney General, on the brief).
PER CURIAM

      In this Medicaid transfer penalty case, petitioner B.S. appeals from a final

agency decision of the Department of Human Services, Division of Medical

Assistance and Health Services (DMAHS), finding she failed to rebut the

presumption that her transfer of $58,618.11 to her daughter during the five-year

"look-back" period was done for the purpose of establishing Medicaid

eligibility, see N.J.A.C. 10:71-4.10(a). Because petitioner at no point in the

proceedings offered any competent evidence to rebut the presumption, we

affirm.

      B.S. was ninety-two years old and residing in a nursing home when she

applied to the Monmouth County Division of Social Services for Medicaid

benefits through her designated authorized representative in February 2014. 1 In

response to the application, the county inquired about two 2010 bank

withdrawals from petitioner's accounts, one for $29,955.79 and the other for

$37,085.47. Petitioner's representative verified the monies were deposited into

petitioner's daughter's bank account but could not show that the entire sum was



1
    We acknowledge the serious questions the Director of DMAHS raises
regarding the appointment of petitioner's authorized representative and the
retention of counsel on petitioner's behalf. The record on this point, however,
is not sufficiently developed to permit us to address them.
                                                                         A-2936-15T3
                                        2
used for petitioner's benefit, in other words, that petitioner received fair market

value for the assets transferred. Because the burden of that showing is on

petitioner, see N.J.A.C. 10:71-4.10(j), the agency approved her application for

Medicaid benefits subject to a transfer penalty of 224 days for the $58,618.11

for which petitioner's representative could not account. See N.J.A.C. 10:71-

4.10(l), (m).

      Following petitioner's request for a fair hearing, the matter was transferred

to the Office of Administrative Law. There, however, despite three scheduled

hearing dates, petitioner failed to present any witnesses to testify regarding the

transfer of assets. When the Administrative Law Judge refused to again adjourn

the hearing, petitioner's attorney merely moved into evidence the power of

attorney petitioner executed naming her daughter her attorney-in-fact and the

designated authorized representative form the daughter signed, and asked that

the record be held open for the submission of briefs and additional documents.

Petitioner's attorney thereafter submitted certain checks and bank records

without any certification to authenticate them or explain their import.

      The ALJ refused to consider the unauthenticated documents and issued an

initial decision finding petitioner had failed to offer any evidence that the

amounts transferred were transferred for petitioner's benefit. Petitioner having


                                                                          A-2936-15T3
                                        3
thus failed to rebut the presumption that the transfers were made to allow

petitioner to qualify for Medicaid, the ALJ affirmed the county agency's transfer

penalty.

      The Director of DMAHS subsequently adopted the ALJ's decision in its

entirety. Addressing the bank records submitted after the hearing, the Director

noted they were submitted "without any witness to establish the documents'

authenticity, attest to the purpose of the documented transfers or to be cross

examined by Monmouth County." Acknowledging that hearsay is admissible in

the OAL, the Director concluded there was no competent evidence in the record

to support petitioner's claims as to the documents and thus no findings of fact

with regard to those documents would be possible under the residuum rule. See

Weston v. State,  60 N.J. 36, 51 (1972) (explaining that "[h]earsay may be

employed to corroborate competent proof, or competent proof may be supported

or given added probative force by hearsay testimony" but "for a court to sustain

an administrative decision, which affects the substantial rights of a party, there

must be a residuum of legal and competent evidence in the record to support

it"); N.J.A.C. 1:1-15.5(b).

      Petitioner appeals, contending DMAHS's refusal to review the bank

records supplied after the hearing was arbitrary, capricious and unreasonable


                                                                         A-2936-15T3
                                        4
and that "[t]he 'square corners' doctrine required Monmouth County, the ALJ,

and [DMAHS] to review the bank records submitted by [petitioner]." We reject

those arguments as without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E). The simple, unavoidable fact is that petitioner was

accorded the fair hearing she requested to challenge the transfer penalty imposed

by Monmouth County, but inexplicably failed at that hearing to offer any

witnesses or competent evidence to support her claims.

      Because DMAHS's decision that petitioner failed to rebut the presumption

that she transferred the $58,618.11 to establish Medicaid eligibility is supported

by sufficient credible evidence on the record as a whole, we affirm. R. 2:11-

3(e)(1)(D), (E).

      Affirmed.




                                                                         A-2936-15T3
                                        5