E.B. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES (DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3087-15T4
E.B.,
Petitioner-Appellant,
v.
DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES and CAMDEN
COUNTY BOARD OF SOCIAL
SERVICES,
Respondents-Respondents.
______________________________
Argued December 11, 2017 – Decided July 13, 2018
Before Judges Accurso and O'Connor.
On appeal from the Department of Human
Services, Division of Medical Assistance and
Health Services.
Samuel B. Fineman argued the cause for
appellant (Cohen Fineman, LLC, attorneys;
Samuel B. Fineman, of counsel and on the
brief).
Melissa Bayly, Deputy Attorney General,
argued the cause for respondent Division of
Medical Assistance and Health Services
(Christopher S. Porrino, Attorney General,
attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel, Melissa Bayly,
on the brief).
PER CURIAM
Petitioner E.B. sought Medicaid benefits to pay for the
cost of her nursing home care. Respondent Camden County Board
of Social Services (Board) imposed a transfer penalty of
$69,211.90, because petitioner transferred resources for less
than fair market value during the "look-back period"1 preceding
her admission into a nursing home.
After an evidentiary hearing, an Administrative Law Judge
(ALJ) affirmed the Board in an initial decision. Petitioner
appealed from such decision, but the Division of Medical
Assistance and Health Services (Division) adopted the initial
decision, affirming the penalty. Petitioner now appeals from
the Division's decision. We affirm.
I
Petitioner entered a nursing home on May 29, 2013. Through
her daughter, J.W., petitioner applied for Medicaid benefits to
cover the cost of the nursing home. The application was
approved, but with a transfer of assets penalty in the amount of
1
"The look-back period is a fixed term of months preceding an
application for Medicaid benefits in which transfers of assets
or income are closely scrutinized to determine if they were made
for the sole purpose of Medicaid qualification." E.S. v. Div.
of Med. Assistance & Health Servs., 412 N.J. Super. 340, 344
(App. Div. 2010) (citing H.K. v. State, 184 N.J. 367, 380)).
2
A-3087-15T4
$99,754.80. Petitioner challenged the penalty, and the Board
determined some of the transfers were in fact for fair value and
reduced the penalty to $82,102.94. Petitioner appealed, and the
matter was transferred to the Office of Administrative Law as a
contested case. Just before the hearing, the Board agreed to
reduce the penalty to $69,211.90, finding other expenditures
made by petitioner during the look-back period were acceptable.
The salient evidence was provided by J.W. She testified
that, in 2003, her then eighty-year old mother moved into her
home. There was an area of J.W.'s home which, although
physically attached to the house, was a separate unit. That
unit comprised a living room, bedroom, and bathroom, and is
where petitioner lived. The family referred to this living area
as petitioner's "apartment." Petitioner moved into the
apartment because she was afraid of living by herself and was
unable to shop or cook for herself.
In 2009, petitioner was diagnosed with Lewy Body Dementia.2
Soon after her diagnosis, petitioner became intermittently
delusional, requiring J.W. and the members of her household to
keep "an eye on" and "an ear out" for her. By 2011, a family
2
"[A] degenerative cerebral disorder of the elderly,
characterized initially by progressive dementia or psychosis,
and subsequently by parkinsonian findings, usually with severe
rigidity. . . ." Stedman's Medical Dictionary 555 (28th ed.
2006).
3
A-3087-15T4
member had to be in the same room as petitioner at all times.
When the family went to sleep, J.W. kept a baby monitor on in
her bedroom so she could hear petitioner if she arose during the
night.
In 2009, J.W. resigned from her position as an insurance
adjuster in order to care for her mother full time. At times,
other family members or a friend helped with petitioner's care.
In addition to providing supervision, J.W. assisted her mother
with the activities of daily living, although she hired a
professional caretaker to assist with bathing petitioner.
In 2011, J.W. was finding it too difficult to make ends
meet because she was not earning income. She determined she
either had to return to work and let a third party care for her
mother during the day, or pay herself from petitioner's savings
to compensate her for providing companion services. She chose
the latter solution. At that time, J.W. held power of attorney
for petitioner. J.W. did not provide any details about her
budget and what had changed since 2009 that made it necessary
for her to return to work.
J.W. searched "Craigslist"3 to learn the average wage of
companion caretakers, and ascertained the wages ranged from
3
"A website of classified ads and community notices that serves
an urban area." PCMAG.COM,
4
A-3087-15T4
eight to twelve dollars per hour. J.W. admitted the site did
not provide the tasks a companion was expected to perform for
this particular wage range.
J.W. decided to pay herself ten dollars per hour from
petitioner's funds to provide companion services to her mother.
Specifically, J.W. paid herself $400 per week to provide forty
hours of companion services, plus $25 per week for the two-and-
a-half hours she claimed she spent each week to shop for
petitioner's food, medication, and toiletries. J.W. paid
herself $425 per week from April 2011 to May 2013, when
petitioner entered the nursing home. J.W. did not keep a ledger
of the services she provided and the days and hours she
performed them. J.W. claimed that, when lucid, her mother
understood and agreed to J.W. paying herself from petitioner's
funds to compensate J.W. for her services.
J.W. also testified she never intended to place petitioner
in a nursing home; her plan was to care for her mother for the
remainder of her mother's life. However, in 2013, petitioner
fell and was no longer able to communicate. J.W. determined she
could no longer care for her and decided petitioner had to be
placed in a nursing home. Family members and one friend also
https://www.pcmag.com/encyclopedia/term/56356/craigslist (last
visited June 25, 2018).
5
A-3087-15T4
testified about providing companion services for petitioner, but
J.W. predominantly provided the services at issue.
Following the hearing, the ALJ found the $69,211.90 removed
from petitioner's funds in order to pay for companion services
was not for fair value, and in an initial decision affirmed the
imposition of the Board's transfer penalty. First, the ALJ
found the "proof of services rendered on a daily basis to the
petitioner" deficient. Although the ALJ did not elaborate on
how the proofs were lacking, it is implicit he was referring to
the complete absence of any evidence detailing when and what
specific tasks J.W. performed for petitioner. There were no log
sheets or like records tracking the hours she worked and the
duties she performed.
Second, the ALJ found the hourly rate paid to J.W. was not
substantiated as appropriate for companion services. Third, he
noted J.W. began receiving wages when it was "foreseeable that
[petitioner's] advanced age and deteriorating condition would
require intensive care and the possibility of entering a nursing
care facility." Finally, he observed there was no pre-existing
written agreement between petitioner and J.W. to pay for the
subject services.
Petitioner appealed to the Division, but it adopted the
ALJ's initial decision, noting petitioner failed to show she
6
A-3087-15T4
received fair market value for the assets she transferred during
the look-back period.
II
On appeal, petitioner contends the Division's decision is
arbitrary, capricious, and unreasonable because she rebutted the
presumption she transferred her assets for less than fair market
value during the look-back period and, further, the Division
misapplied the applicable case law.
"Appellate courts have 'a limited role' in the review of
[administrative agency] decisions." In re Stallworth, 208 N.J.
182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J.
571, 579 (1980)). We are bound to defer to an agency decision
unless we conclude it is "arbitrary, capricious or unreasonable,
or [] not supported by substantial credible evidence in the
record as a whole." Stallworth, 208 N.J. at 194 (alteration in
original) (quoting Henry, 81 N.J. at 579-80). "Deference to an
agency decision is particularly appropriate where interpretation
of the [a]gency's own regulation is in issue." R.S. v. Div. of
Med. Assistance & Health Servs., 434 N.J. Super. 250, 261 (App.
Div. 2014) (quoting I.L. v. N.J. Dep't of Human Servs., Div. of
Med. Assistance & Health Servs., 389 N.J. Super. 354, 364 (App.
Div. 2006)).
7
A-3087-15T4
Among other eligibility requirements, an individual seeking
nursing home benefits must have limited financial eligibility.
See N.J.A.C. 10:71-1.2(a). Specifically, "[t]he regulations
governing an individual's eligibility for Medicaid reimbursement
of nursing home costs provide that in order for an individual to
[receive such benefits], the value of that individual's
resources may not exceed $2,000." H.K., 184 N.J. at 380
(footnote omitted) (citing N.J.A.C. 10:71-4.5(c)).
An applicant is ineligible for Medicaid nursing home
benefits if the individual "has disposed of assets at less than
fair market value at any time during or after the 60-month
period immediately before . . . the date the individual applies
for Medicaid as an institutionalized individual," referred to as
the "look-back" period. N.J.A.C. 10:71-4.10(a)(2); see also
N.J.A.C. 10:71-4.10(b)(9)(ii). Fair market value is defined as:
an estimate of the value of an asset, based
on generally available market information,
if sold at the prevailing price at the time
it was actually transferred. Value shall be
based on the criteria for evaluating assets
as found in N.J.A.C. 10:71-4.1(d).
[N.J.A.C. 10:71-4.10(b)6.]
If an applicant transfers assets during the look-back
period for less than fair market value, there is a rebuttable
presumption "the [asset] was transferred for the purpose of
8
A-3087-15T4
establishing Medicaid eligibility." H.K., 184 N.J. at 380
(citing N.J.A.C. 10:71-4.10(j)). The burden of rebutting the
presumption rests on the applicant, who must provide "convincing
evidence" the asset was transferred exclusively for some purpose
other than to establish eligibility. N.J.A.C. 10:71-4.10(j).
The purpose of imposing a penalty for disposing assets for less
than fair market value during the look-back period is to
maximize Medicaid resources for those truly in need. See Estate
of DeMartino v. Div. of Med. Assistance & Health Servs., 373
N.J. Super. 210, 219 (App. Div. 2004).
Here, J.W. and, on occasion, other family members, provided
care to petitioner for approximately two years without
compensation. Then, in April 2011, J.W. determined she was in
need of money and rationalized that, because she left her job to
care for petitioner, it was acceptable for her to pay herself
from petitioner's funds to perform services she had previously
provided gratuitously out of love and affection.
We understand J.W.'s reasoning, specifically, that if she
had to return to work, petitioner may as well pay her rather
than a third party to provide companion services, especially
because J.W. is a family member and would have her best
interests in mind. Nevertheless, "a transfer of assets to a
friend or relative for the alleged purpose of compensating for
9
A-3087-15T4
care or services provided free in the past shall be presumed to
have been transferred for no compensation." N.J.A.C. 10:71-
4.10(b)(6)ii.
Petitioner did not rebut this presumption. She did not
provide the requisite "convincing evidence" the asset was
transferred exclusively for some purpose other than to establish
eligibility. First, J.W. did not show why she could not have
paid a competent professional ten dollars per hour to take care
of her mother, which would have freed her up to return to work.
As a former claims adjuster, presumably J.W. was capable of
earning more than ten dollars per hour and, thus, would have
been in a better position to address her budget needs. Further,
while a third party may not have been a relative, that does not
mean a competent professional caretaker could not have been
located to meet petitioner's needs.
Second, J.W. offered few details about when and what
specific services she provided during each pay period, which is
hardly consistent with providing the requisite convincing
evidence petitioner's assets were transferred exclusively for
some purpose other than to establish eligibility. N.J.A.C.
10:71-4.10(j). Third, as the ALJ noted, J.W. began receiving
wages when it was "foreseeable that [petitioner's] advanced age
10
A-3087-15T4
and deteriorating condition would require intensive care and the
possibility of entering a nursing care facility."
In the final analysis, petitioner failed to show her assets
were transferred for fair value. Supported by substantial and
credible evidence, the Division's final decision was neither
arbitrary, capricious, nor unreasonable.
Petitioner's remaining arguments either lack sufficient
merit to warrant further discussion in our opinion, see Rule
2:11-3(e)(1)(E), or were not presented when petitioner was
before the agency. We will not consider questions or issues not
properly presented to the agency when the opportunity was
available "unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great
public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J.
Super. 542, 548 (App. Div. 1959)).
Finally, petitioner correctly points out and the Division
concedes there is a typographical error in the Division's final
decision. The decision states the penalty transfer is
$68,756.90 when in fact the penalty is $69,211.90.
Affirmed and remanded for entry of a corrected final
decision to state the transfer penalty is $69,211.90.
11
A-3087-15T4