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Talarico v. Dep't of Human Services

January 15, 2009

GENE TALARICO, APPELLANT,
v.
DEPARTMENT OF HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, RESPONDENT.



On appeal from the Department of Human Services, Division of Medical Assistance and Health Services.

Per curiam.

FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2008

Before Judges Lisa and Sapp-Peterson.

Appellant pro se, Gene Talarico, appeals from the final agency determination of the Division of Medical Assistance and Health Services (DMAHS) denying his request for a fair hearing after Monmouth County Division of Social Services (MCDSS) determined that his mother had transferred funds to him for less than fair market value. This transfer led to a period of ineligibility for Medicaid assistance, which appellant initially accepted. When he later decided to appeal, the DMAHS advised him that his appeal was untimely. We affirm.

Appellant is the son of Lorraine Talarico (Talarico). Appellant is also Talarico's power of attorney in connection with her Medicaid application. Talarico resided at Brighton Gardens of Middletown, an elder care facility, from November 2002 until February 2007.*fn1 Her assets were used to pay for this admission. Once Talarico's $300,000 in personal funds was exhausted, she sought assistance from Medicaid.

The State of New Jersey participates in the Medicaid program pursuant to the New Jersey Medical Assistance and Health Services Act (the Act), N.J.S.A. 30:4D-1 to-42. DMAHS is the agency within the Department of Human Services, pursuant to 42 U.S.C.A. § 1396(a)(5), that administers the Medicaid Program in New Jersey, N.J.S.A. 30:4D-5 and-7, and has adopted regulations to implement the program. N.J.A.C. 10:74-1.1 to-14.1. County agencies, such as the MCDSS, process applications for Medicaid benefits in New Jersey.

In February 2008, appellant made a $5,000 transfer from Talarico's account to his bank account. The transfer was presumed to be for the sole purpose of qualifying Talarico for Medicaid assistance. See N.J.A.C. 10:71-4.7(c)(6) (creating a presumption that all transfers for less than fair market value are for the purpose of qualifying for Medicaid coverage for institutionalized care). Consequently, Talarico was subject to a one-month period of ineligibility for Medicaid assistance. N.J.A.C. 10:71-4.7(b)(4) (imposing a mandatory period of ineligibility when an individual transfers resources for less than fair market value). A letter dated July 18, 2007 notified appellant that he could challenge the ineligibility with sufficient evidence. In a written response to this notice, appellant advised that he accepted the period of ineligibility. A follow-up letter dated July 27 advised appellant that he had twenty days from the date of the letter to appeal.

In a letter dated November 2, 2007, appellant requested that MCDSS reevaluate the "penalty period given to [Talarico] by your office due to additional information that was not given at the time of decision." That letter was apparently forwarded to DMAHS, and in correspondence dated November 15, appellant was advised that his "hearing request is denied because it was not timely filed." The present appeal followed.

On appeal, appellant contends that his initial acceptance of the period of ineligibility "was due to duress inflicted upon [him] by Yudi Steinfeld [(Steinfeld)], Director of Imperial Care Center, ECF." He urges that because of that duress, his acceptance of the period of ineligibility "should be deemed invalid." Additionally, although not specifically raised as a point heading in his brief, appellant contends that he did not receive the July 27 letter until "after [he] called the County's caseworker, Ann Hermida[,] in 11/07 and it was sent to [him] at that time." Upon receiving the letter, he immediately sought a fair hearing.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the agency decision is well-supported by the record and the issues presented by appellant are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D) and (E). We add only the following comments.

The standard of review of decisions from administrative agencies is narrow. We "will reverse the decision of an administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (quoting Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963)).

We first address appellant's contention that he did not receive timely notification of his appeal rights. Pursuant to N.J.A.C. 10:49-10.3(b)(3), when there is an ineligibility determination, an applicant has twenty days to request a hearing. Additionally, the agency is required to promptly notify the appellant affected by any adverse action of the right to request a fair hearing. N.J.A.C. 10:70-7.1 and N.J.A.C. 10:70-7.2.

Appellant claims that he never received the July 27 letter from MCDSS notifying him of his appeal rights until he called Caseworker Hermida, who in turn sent a copy of the letter to him. A review of the record, however, reveals no evidence demonstrating that appellant, at any ...


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