P.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NOT FOR PUBLICATION WITHOUT THE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-1974-17T1

P.H.,

          Petitioner-Appellant,

v.

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

     Respondents-Respondents.
_________________________________

                    Submitted January 8, 2019 – Decided January 24, 2019

                    Before Judges Hoffman and Suter.

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

                    SB2, Inc., attorneys for appellant (Laurie M. Higgins,
                    on the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Division of Medical Assistance and Health
                    Services (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Jacqueline R. D'Alessandro,
            Deputy Attorney General, on the brief).

PER CURIAM

      This appeal concerns a request made to the Division of Medical Assistance

and Health Services (the Division) for Medicaid benefits. For the reasons that

follow, we dismiss the appeal.

      The following facts inform our review. In April 2000, the Surrogate's

Court issued Letters of Guardianship to E.H., appointing him as guardian of the

person and property of his brother, P.H., who the Chancery Division adjudged

incapacitated in 1999. On his brother's behalf, E.H. applied to the Atlantic

County Medicaid Long Term Care Unit (the LTCU) for Medicaid benefits. On

June 14, 2017, the LTCU sent a letter to E.H. denying the request. On July 14,

2017, the LTCU sent a letter to Carneys Point Health Care Center (Carneys

Point), where P.H. resides, confirming the denial of benefits.

      On July 17, 2017, Future Care Consultants, the fiscal agent for Carneys

Point, had P.H. sign a Designated Authorized Representative (DAR) form,

naming Shana Akerman his DAR. As P.H.'s DAR, Akerman requested a hearing

to challenge the denial of P.H.'s application for Medicaid benefits. The Division

forwarded the request to the Office of Administrative Law (OAL) but later

withdrew it, after appreciating that P.H. lacked capacity to sign the DAR and

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that the request was also untimely. The Division sent a letter to Akerman

explaining why it withdrew the hearing request. This appeal followed.

      Appellant's brief argues the Division wrongly refused to transmit the

request for a hearing to the OAL. However, this argument assumes Akerman

possessed the requisite authority to request a hearing on P.H.'s behalf.

      The Surrogate's Court appointed P.H.'s brother as his guardian in 2000,

after P.H. was adjudicated incapacitated in 1999. The parties do not dispute this

finding, nor do they argue that P.H. ever regained capacity to act on his own

behalf. Therefore, P.H. could not legally designate Akerman as his DAR.

Accordingly, Akerman lacked the proper authority to request the hearing on

P.H.'s behalf. This responsibility lies with E.H. as guardian, who did not request

one. See  N.J.S.A. 3B:12-48 (granting the guardian power to file litigation on

behalf of the ward). Thus, Akerman had no authority to act on P.H.'s behalf,

including pursuing this appeal. 1

      For the same reason, we decline to address the remaining arguments raised

in the petitioner's brief.

      Appeal dismissed.



1
  The Notice of Appeal identifies "Shana Akerman on behalf of P.H." as the
person pursuing the appeal.
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