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stts. nf efcDEPARTMENTOF HUMAN SERVICE PHILIPD. GovernorSARAH ADELMANPO Box 712SHEILAY. OLIVERCommissionerTRENTON, NJ 08625-0712Lf. GovernorJENNIFER LANGER JACOBSAssistant CommissionerSTATE OF NEWJERSEYSEPA,RTENTOF.HUMAN SERVICESD!yl sloNOFMEDICAL ASSISTANCE'AND HEALTH SERVICESN.B.,PETITIONER,V.MONMOUTH COUNTY DIVISIONADMINISTRATIVE ACTIONFINAL AGENCY DECISIONOAL DKT. NO. HMA 00702-21OF SOCIAL SERVICES.RESPONDENTS.AsAssistant Co ssioner forthe DivisionofMedicalAssistance andHealthServices,I havereviewedtherecord n, t.s .atter,cons,s., n,ofthe ,n.a,Dec,s,on,thedocu.en.s ,n evidenceandtheentirecontentsoftheOfficeofAd.,nis ra.iveLaw(OAL)caseflle.Ne, Pa.y .e.exceptionsto .e ln,t, a,Dec.on.P.cedu. l,, .e AgencyHeadtorendera F,na,AgencyDecision s, June2,2022 n, acco ancewit.anOrderofExtension. TheInitialDecisionwasreceivedonMarch1,2022. .' n , o ,,,,,,,, ,. . r, ,, ,
Thismatterarisesfrom the Monmouth CountyDivisionofSocialServices'(MCDSS)December8, 2020imposition ofa 556-daypenaltyforthe transferof 198,959duringthelook-back period. On December 24, 2020, Petitioner passed away. On that same day,Goldie Ribiat of Application Pros, acting as Petitioner's Designated AuthorizedRepresentative (DAR), submitteda requestforfairhearing. Ribiatwasgrantedthatauthorityby S. C., Petitioner's nephew and Power-of-Attorney. On December 30, 2020, this officereceived Ribiat'sfairhearingrequest. y. On January 8, 2021 , the matter was transmitted to the OALfor hearing.The critical issue ofstanding overrides anydiscussion ofthe Medicaid denial forfailureto provide information necessary to determine eligibility. S. C. executed the DAR on or aboutFebruary3, 2020. 1 Thatauthorization ceasedwhen Petitionerpassesawayon December24, 2020. L.M. v. Division of Med. Assistance & HealttLSerys,, Dkt. No. A-6014-17T1. 2020N. J. Super. Unpub. LEXIS 791 (App. Div. April 30, 2020) and M. F. v. Div. of Med. Assistance& Health Servs., No. A-2254-17T2, 2019 N.J. Super. Unpub. LEXIS733(Super. Ct. App.Div.Apr. 1,2019). Seealso E.D.v. DMAHS.HMA05284-18, FinalDecision, (September4,2018)andG. C.v. DMAHS, HMA03582-19, Orderon Remand, (October24, 2019). Thereis no authority to permit a DAR to continue after death. The appointment of a DAR is meantto be voluntary and revocable. 42 C. F. R. § 435.923; E.B. v. Division of Med. Assistance &Health Servs, 431 N.J. Super. 183(App. Div. 2013). Upon thedeath ofthe applicant, a keyboundary placed upon such an appointment vanishes - the legal authority underlying theappointment changes, and the individual can no longer revoke the appointment. 42 C. F. R.§ 435. 923. Additionally, the designation form that Petitioner signed provides that it isrevocable at any time, similar to the revocability of a power of attorney. See N. J. S.A. 46:2B-8. 10. This federally mandated revocability provision is rendered meaningless if theAlthough iat ofApplication Pros.Page 2 of 5
designation survives the applicant's death.TheDARdesignation isanalogous to a limited PowerofAttorneyforthe purposes ofpursuing a Medicaid application orappeal. Theattorney-in-fact isnolongerpermitted toacton theprincipal's behalfoncehe receives notification oftheprincipal's death. See N.J.S.A.46:28-8. 5. Whilethe DARmay nothave been awareofPetitioner's deathwhen she shouldhaveknownbythetimethematterwastransmitted to the OAL. Nevertheless, Ribiatdid not notify the court that Petitioner earingonJuly1, 2021,atwhichpointthe hearing was adjourned to give the DAR time to obtain letters of administration. Aftermultiple adjournments, the hearing was held on January27, 2022. 2 I note that the recorddoesnotcontainanyevidencethatS.C.wasgranted letters ofadministration orthathehiredcounsel to appear on behalf of Petitioner's estate.3I FINDtheDARdesignationendedupon andingto requesta fairhearing. Whilemyfindingisdispositiveofthisissue.Iwill address the transfer penalty for the sake ofcompleteness.Withregardtothe 556-daypenaltyforthetransferof 198,959duringthelook-backperiod,I ativeLawJudge(ALJ)intheirentirety,andI incorporatethesamehereinbyreference. Ina thorough,well-reasoneddecision, the ALJ affirmed the 556-day transfer penalty.Medicaid lawcontains a presumption thatanytransferforless thanfairmarket valueduring the look-back period wasmadeforthepurpose ofestablishing Medicaid eligibility.See E.S. v. Div. of Med. Assist. & Health Servs , 412 N.J SyfieL 340 (App. Div. 2010);NJ'A'C- 10:71 . 10(0. The applicant, "may rebut the presumption that assets sentingconvincingevidencethattheassets rer.Sn""'11 Febro la 202Z-a'pe'itioner'sreques''' sub notl,r.he-&pteml'erj0', 2021letterfromG testhat S.C.hadnot.O T dm Mwlmdthat lweresim would be no reimbursement to the estate. " . - .Page 3 of 5-- . - . --. e . -. - . -. - j. c. i.
weretransferred exclusively (that is, solely) for some other purpose. " N.J.A. C. 10:71-4. 100).It is Petitioner's burden to overcome the presumption that the transfer was done - even inpart - to establish Medicaid eligibility. The presumption that the transfer of assets was doneto qualify for Medicaid benefits may be rebutted "by presenting convincing evidence that theassets were transferred exclusively (that is, solely) for some other purpose. " N.J.A. C. 10:714. 10(j). Here, Petitioner was unable to rebut the presumption that the transfers for less thanfair market value were made to establish Medicaid eligibility.At issue are several checks made out to either cash or Petitioner's nephew, S. C. Thechecks did not show that these transfers were payments for Petitioner's benefit. S. C. testifiedthat he hired an individual, M. S., to take care of the Petitioner at a rate of 1200 per week forapproximately five years. In addition to his testimony, S. C., submitted letters from friendsand neighbors stating that M. S. was Petitioner's caretaker. These are hearsay, out-of-courtstatements submitted as proof of the matters asserted. As such, these statements aresubject to the residuum rule, which requires "some legally competent evidence" to exist "toan extent sufficient to provide assurances of reliability and to avoid the fact or appearance ofarbitrariness. "N. J.A. C. 1:1-15. 5(b).I agree with the ALJ and I FIND that the recordcontained no legally competent evidence to support these documents.Furthermore, there is no evidence in the record that the transactions were used topay for a caretaker's salary or Petitioner's living expenses. The records contains nothingwhich establishes the type of care or services provided, the type and terms of compensation,or the fair market value of the compensation. There is no written agreement between thePetitioner and her caregiver to this effect. There is nothing to establish when M. S'semployment began or when it ended. Additionally, there is no evidence of a pattern ofpayment to M. S. For someone who paid an employee approximately 62, 000 per year forfive years, Petitioner presented only twenty copies of checks that covered the period fromNovember 8, 2019 through March 4, 2020. Of those twenty checks, only six referenced orwere endorsed by M. S. Petitioner was unable to rebut the presumption that the transfersPage4 of 5
for less than fair market value were to qualify for Medicaid. N.J.A.C. 10:71-4.10.Accordingly, theMCBSS properly imposed the 198, 959transfer penaltyfora period of556days.THEREFORE, it is on this 9thdayof MAY2022,ORDERED:That the Initial Decision is ADOPTED.Ja- - Jennifer LangerJacobs, Assistant CommissionerDivision of Medical Assistanceand Health ServicesPage 5 of 5
revocable at any time, similar to the revocability of a power of attorney. See N.J.S.A. 46:2B-8. 10. This federally mandated revocability provision is rendered meaningless if the Although ifficult to decipher, it appears that S.C. signed the DAR on February 3, 2020, two days before the document was Judah Ribiat of Application Pros. Page 2 of 5
