On appeal from the Division of Medical Assistance and Health Services, Department of Human Services.
Matthews, Kole and Milmed.
[165 NJSuper Page 187] Appellant Lena Gilfone, a Medicaid recipient who has been a patient at the Essex County Geriatrics Center, a nursing home, since 1971, appeals from a final decision of the Division of Medical Assistance and Health Services (Division) holding the Division entitled to recover the lump sum Socal Security check for $1,886.80 which she received as her widow's benefits for the 16-month period, June 1974 through September 1975.
The essential facts are not in dispute. Relying on the opinion of the Supreme Court of the United States in Philpott v. Essex Cty. Welfare Bd. , 409 U.S. 413, 93 S. Ct. 590, 34 L. Ed. 2d 608 (1973),*fn1 representatives of the Essex County Welfare Board, apparently in accord with the request of Mrs. Gilfone's daughter, recommended that the proceeds of the Social Security check be set aside and held for Mrs. Gilfone's burial expenses. The Chief of the Bureau of Claims and Accounts in the Division was of an opposite opinion, maintaining that
Although this is not considered as unexpended personal incidental funds in excess of $100.00, it is my opinion that this money is income which must be applied towards the patient's cost of stay while under the Medicaid Program. I do not feel that this can be treated as resources available at the time of determining eligibility, which incidentally can not exceed $1,500.00*fn2 in cash, nor do I feel it can be set aside for the patient's burial expenses.
Following the fair hearing in the Division requested by Mrs. Gilfone's daughter, the hearing officer filed his report in which he stated, among other things, that he "does not consider the Philpott decision to be applicable to this case." He reasoned:
First, in Philpott , the recipient was living in the community, not in an institutional setting such as Lena Gilfone. Second, the Welfare Board was prevented from recovering the money because the filing of the Agreement to Reimburse placed them in a creditor status. Once the Welfare Board achieved creditor status, they had the same limitations placed on them as other creditors.
Since the Commissioner (of Human Services) is required to do all things necessary to secure maximum Federal participation (New Jersey Statutes Annotated, N.J.S.A. 30:4D-7), the Hearing Officer considers the Federal law and regulations to require the State to collect all income over the PIE [personal incidental expense] allowance [of $25 per month] and apply it to the cost of nursing home care. To rule otherwise would be contrary to the Hearing Officer's understanding of the law as it applies to Title XIX.
And, he affirmed "the decision of the Division of Medical Assistance and Health Services to recover Lena Gilfone's social security check." The Acting Director of the Division agreed "with the Findings of Fact and Conclusions and Recommendations contained in the Hearing Officer's Report," and adopted the report in full. This appeal followed.
We reverse. We find no sound basis for the Division's decision. Philpott is dispositive of the dominant issue raised on this appeal, viz. , whether the State is, in the circumstances, entitled to Mrs. Gilfone's lump sum Social Security check. It is clear that the broad bar imposed by 42 ...