M.F. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES (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NOT FOR PUBLICATION WITHOUT THE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-2254-17T2
M.F.,
Appellant,
v.
DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES, and ATLANTIC
COUNTY BOARD OF SOCIAL
SERVICES,
Respondents.
___________________________
Submitted March 18, 2019 – Decided April 1, 2019
Before Judges Sabatino and Haas.
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 brief).
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
SB2, Inc. (SB2), a Pennsylvania law firm purporting to represent M.F., a
deceased Medicaid recipient, has filed a notice of appeal challenging the
November 27, 2017 decision of the Division of Medical Assistance and Health
Services (the Division) that denied SB2's request that this matter be re-
transmitted to the Office of Administrative Law (OAL) for a hearing. We
affirm.
On February 19, 2014, M.F. executed a durable power of attorney (POA)
designating her grandson V.F. and another grandson "acting either jointly or
separately, to be [her] attorneys-in-fact and agents . . . in [her] name and for
[her] benefit[.]" Two days later, M.F. became a resident of a nursing home
facility.
On March 25, 2014, V.F. filed an application for Medicaid on M.F.'s
behalf with the County Welfare Agency (CWA). The CWA denied this
application on June 3, 2014. V.F. filed a second application, but the CWA
denied it on August 26, 2014 due to a lack of documentation.
At that point, V.F. retained an attorney to assist him in securing Medicaid
benefits for M.F. While V.F. was attempting to arrange a meeting with the CWA
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to discuss the filing of a third application, the CWA received an October 23,
2014 email from an individual named J.S., who was allegedly an employee of
the nursing facility where M.F. lived. The email was sent to B.P., a CWA
employee. J.S. wrote that she had spoken to M.F.'s "POA who said that he had
an attorney get in touch with [B.P.] regarding the denial letter he received [three]
weeks after it was issued[.]" The POA told J.S. that he had scheduled an
appointment with the CWA for November 9, 2014, and was told that M.F.'s
"application will go retro-active [sic] to March 2014 (date of original
application)." J.S. asked B.P. to "verify" that this information was "correct[.]"
That same day, B.P. sent a reply email to J.S. B.P. wrote:
There is an appointment on the 5th. (The 9th is a
Sunday). If the applicant is eligible, the farthest we can
go retroactive is [three] months. It will be impossible
to go back to March.
Also, I did see the Designation of Authorized
Representative [(DAR) form] you sent over for her. I
want to be very clear here. We will deal with one
person. If you are to be the Authorized
Rep[resentative], then you should be the one to come in
and do the application, etc. The Authorized
Rep[resentative] is our sole point of contact. It is not a
method in order to be kept in the loop on what is
happening in the case. Please decide if you want the
POA to do the work, or yourself, but it needs to be one
or the other, not both.
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3
The parties agree that B.P. was referring to a DAR form that M.F.
allegedly signed on September 24, 2014. 1 "The federal Medicaid regulations
permit individuals to designate others to assist them in applying for benefits or
otherwise communicating with the Medicaid agency." E.B. v. Div. of Med.
Assistance & Health Servs., 431 N.J. Super. 183, 193 (App. Div. 2013) (citing
42 C.F.R. § 435.907(a)). The form that is signed by the potential Medicaid
recipient seeks to protect applicants by assuring that they have voluntarily
designated a representative in connection with their Medicaid claim, and making
sure they know that their personal information may be accessed by, and shared
with, their DAR. Id. at 195.
However, the Division's regulations also make clear that the CWA will
only notify "the applicant" in writing of the agency's decision concerning an
application. N.J.A.C. 10:71-8.3. The regulations define "applicant" as "the
aged, disabled or blind individual [on whose behalf the Medicaid application is
filed] or his/her authorized agent who executes the formal written application."
N.J.A.C. 10:71-2.1 (emphasis added). Thus, in keeping with these provisions,
B.P. specifically advised J.S. that the CWA would notify her of any action on
1
Significantly, nothing in this form acted to revoke the earlier POA that M.F.
previously granted to V.F., which remained in full force and effect.
A-2254-17T2
4
M.F.'s application only if J.S. submitted the Medicaid application on M.F.'s
behalf.
That did not occur. In fact, J.S. never replied to B.P.'s email, and was
never heard from again in connection with the proceedings that followed.
Instead, on December 9, 2014, V.F., as M.F.'s POA, filed a third
application for Medicaid on her behalf. The CWA approved this application on
November 17, 2015 and, after imposing a 327-day transfer penalty in the amount
of $102,434 pursuant to N.J.A.C. 10:71-4.10, granted M.F. Medicaid benefits
retroactive to July 25, 2015. In accordance with N.J.A.C. 10:71-8.3 and
N.J.A.C. 10:71-2.1, the CWA sent written notice of the decision to V.F., as
M.F.'s POA and as the only individual who submitted the application on her
behalf.
The notice advised V.F. that he had the right to request a hearing within
twenty days to contest the CWA's determination. V.F. filed a timely request for
a hearing challenging the transfer penalty, and the matter was transmitted to the
OAL. V.F. did not appear at the hearing scheduled on February 16, 2016, and
the matter was accordingly dismissed. M.F. passed away in December 2016.
On October 25, 2017, twenty months after the OAL matter was closed,
and ten months after M.F. died, an attorney employed by SB2 sent a motion to
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the Division asking it to re-transmit the matter to the OAL for a hearing on the
transfer penalty imposed in November 2015. In an accompanying certification,
the attorney stated that SB2 "has been retained by petitioner M.F. concerning
the above-referenced appeal." 2 The attorney argued that the CWA erred by
failing to send notice to J.S. of its decision on the application V.F. submitted on
M.F.'s behalf, which she alleged deprived M.F. of her right to contest the CWA's
decision.
On November 27, 2017, the Division denied SB2's motion. In its written
decision, the Division noted that M.F. had passed away in December 2016 and,
therefore, it was questionable whether M.F. had ever actually retained the law
firm. Even if she had done so prior to her death, the Division correctly noted
that M.F.'s death "would end any representation" by SB2, especially since the
law firm did not claim that it represented M.F.'s estate. Cf. R. 4:34-1(b) (stating
that if a party to an action dies and the claim is not extinguished, decedent's
successors shall be substituted for the deceased party).
2
SB2 incorrectly states in its appellate brief that "M.F.'s DAR, [J.S.] filed" the
October 25, 2017 motion. However, SB2's attorney specifically claimed in her
certification that M.F., who had been dead for ten months, had retained the firm
to bring the motion on her behalf. The attorney did not provide any certification
from J.S. and, as stated above, J.S. did not take any action on behalf of M.F.
after her October 2014 email.
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In addition, the Division found that the CWA properly notified V.F., as
M.F.'s POA, of its decision concerning M.F.'s Medicaid application, including
his right to request a hearing on M.F.'s behalf. V.F. took advantage of this
opportunity and later, again acting as her POA, decided not to pursue the matter.
Thus, contrary to SB2's contention, M.F. had the full opportunity to challenge
the CWA's action. This appeal followed.
On appeal, SB2 again argues that the CWA incorrectly failed to provide
M.F.'s designated representative with notice of its action and, therefore, she was
unable to contest the agency's determination. We have considered the law firm's
contentions on appeal in light of the record and applicable legal principles and
conclude that they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed
by the Division in its written opinion, and add the following brief comments.
Our review of an agency decision is limited. In re Stallworth, 208 N.J.
182, 194 (2011). "In order to reverse an agency's judgment, [we] must fi nd the
agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not
supported by substantial credible evidence in the record as a whole.'" Ibid.(second alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J.
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571, 580 (1980)). In determining whether an agency's action is arbitrary,
capricious, or unreasonable, our role is restricted to three inquiries:
"(1) whether the agency action violates the enabling
act's express or implied legislative policies; (2) whether
there is substantial evidence in the record to support the
findings upon which the agency based application of
the legislative policies; and (3) whether, in applying the
legislative policies to the facts, the agency clearly erred
by reaching a conclusion that could not reasonably have
been made upon a showing of the relevant factors."
[W.T. v. Div. of Med. Assistance & Health Servs., 391
N.J. Super. 25, 35-36 (App. Div. 2007) (quoting Pub.
Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101
N.J. 95, 103 (1985)).]
Furthermore, "[i]t is settled that '[a]n administrative agency's
interpretation of statutes and regulations within its implementing and enforcing
responsibility is ordinarily entitled to our deference.'" E.S v. Div. of Med.
Assistance & Health Servs., 412 N.J. Super. 340, 355 (App. Div. 2010) (second
alteration in original) (quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J.
Super. 52, 56 (App. Div. 2001)). "Nevertheless, 'we are not bound by the
agency's legal opinions.'" A.B. v. Div. of Med. Assistance & Health Servs., 407
N.J. Super. 330, 340 (App. Div. 2009) (quoting Levine v. State Dep't of Transp.,
338 N.J. Super. 28, 32 (App. Div. 2001)).
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Applying these principles, we discern no basis for disturbing the
Division's well-reasoned determination. First, it is questionable whether the
DAR form that J.S. submitted was even valid in light of the prior POA M.F.
granted to V.F. 42 C.F.R. § 435.923(c) states:
The power to act as an authorized representative is valid
until the applicant or beneficiary modifies the
authorization or notifies the agency that the
representative is no longer authorized to act on his or
her behalf, or the authorized representative informs the
agency that he or she no longer is acting in such
capacity, or there is a change in the legal authority upon
which the individual or organization's authority was
based. Such notice must be in accordance with [42
C.F.R. § 435.923(f)] and should include the applicant
or authorized representative's signature as appropriate.
A DAR is analogous to a limited power of attorney. See N.J.S.A. 46:2B-
8.2 ("A power of attorney is a written instrument by which an individual known
as the principal authorizes another individual . . . known as attorney-in-fact to
perform specified acts on behalf of the principal as the principal's agent"). "A
power of attorney must be in writing, duly signed and acknowledged in the
manner set forth in [N.J.S.A. 46:14-21.1]." N.J.S.A. 46:2B-8.9. The
acknowledgment must include the "date on which the acknowledgment was
taken." N.J.S.A. 46:14-2.1(c)(5). "Unless expressly so provided, the subsequent
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execution of another power of attorney does not revoke a power of attorney."
N.J.S.A. 46:2B-8.10.
Here, M.F. gave a durable power of attorney to V.F. on February 19, 2014.
The POA was never revoked in accordance with its terms or with the revocation
requirements for a DAR under 42 C.F.R. § 435.923(c). Accordingly, the DAR
form that M.F. allegedly executed on September 24, 2014 could not supersede
V.F.'s POA, which continued in full force and effect. Therefore, the CWA
properly notified V.F., and only V.F., of its decision on M.F.'s Medicaid
application.
As previously discussed, the Division's regulations also make clear that
only the potential Medicaid recipient, or his or her "authorized agent who
executes the formal written application" on her behalf, is entitled to receive
written notice of any eligibility determinations made by the CWA. See N.J.A.C.
10:71-8.3; N.J.A.C. 10:71-2.1. Again, J.S. completely disappeared after the
CWA informed her on October 23, 2014 that if she wanted to receive notification
of the progress of M.F.'s application, she had to be the designated representative
who submitted the application on M.F.'s behalf. V.F., who continued to assist
his grandmother on each of her applications, filed the final application on her
behalf, received notice of the CWA's decision, requested a hearing concerning
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it, and then decided not to pursue it. Under these circumstances, M.F. received
proper written notice of the hearing, and all the process due to her.
Even assuming that J.S. had a valid DAR, however, it terminated upon
M.F.'s death in December 2016, long before SB2 got involved in the case. See
N.J.S.A. 46:2B-8.5(a) (stating that "[t]he death of a principal who executed a
written power of attorney, durable or otherwise, does not revoke or terminate
the agency as to the attorney-in-fact who, without actual knowledge of the death
of the principal, acts in good faith under the power"). If as SB2 alleges , J.S.
worked at the nursing facility where M.F. resided, she obviously would have
known if she was still working there that M.F. had died, thus terminating her
DAR.3 Therefore, the Division properly denied SB2's request to re-transmit the
matter to the OAL for a hearing regardless of whether it had been retained by
either M.F. or J.S.
Affirmed.
3
"As Vice Chancellor Bigelow said [over seventy years ago], 'An earthly court
has no jurisdiction over the dead.'" Stroman v. Brown, 194 N.J. Super. 307, 313
(1984) (quoting In re Admiral Sampson B & L Ass'n, 136 N.J. Eq. 292, 293 (Ch.
1945)).
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