B.S. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES (NJ DEPARTMENT OF HUMAN SERVICES) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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.
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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
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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
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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.
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