On appeal from a Final Agency Decision of the Division of Medical Assistance and Health Services, Docket No. 6626-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Fasciale.
C.H., a seventy-two year old recipient of Medicaid who is presently receiving nursing home care, appeals from a final determination of the Director of the Division of Medical Assistance and Health Services (DMAHS) denying his petition for an increase in the minimum monthly maintenance needs allowance (MMMNA) paid out of C.H.'s income to C.H.'s spouse, L.H., who remains in the community, finding that C.H. had failed to meet his burden of demonstrating the "exceptional circumstances resulting in financial duress" that would have warranted such an increase.
The facts of this matter are largely uncontested. C.H. suffers from a form of hereditary motor and sensory neuropathy known as Charcot-Marie-Tooth disease. In October 2007, he was placed by L.H. in an assisted living facility, where he remained until April 2008. To pay for the cost of that facility, L.H. utilized C.H.'s $78,000 individual retirement account, incurring a tax liability as a result.
At some point, the couple obtained a negative amortization mortgage on their home to reduce mortgage payments. In accordance with that mortgage, they pay principal but not interest, and as a result, the loan amount increases rather than decreases. It was calculated that an additional payment of $254.35 would be required just to stay even. Although a claim was made that, at some point, the loan would be greater than the value of the house, it was not established when that circumstance would occur. In any event, L.H.'s equity in the house is eroding.
In April 2008, L.H. applied for Medicaid benefits for the care of C.H. In that month, C.H. was moved from the assisted living facility into a nursing home to facilitate the receipt of benefits. In June 2008, C.H. was approved for benefits, but not before L.H. had incurred an additional $15,000 in nursing home charges that she has been unable to pay. She has also borrowed $3,500 from a daughter that remains unpaid. Legal bills are also outstanding.
In connection with the Medicaid approval, the Camden County Board of Social Services (CCBSS) calculated the available amount of C.H.'s income and L.H.'s MMMNA, determining the latter to be $1644.23.*fn1 In addition to this amount, L.H. received approximately $1,153.40 as her own income. L.H. appealed the MMMNA calculation, and the matter was transmitted by the DMAHS to the Office of Administrative Law for a hearing before an administrative law judge (ALJ).
At the hearing, testimony was provided by John Kohler, a Human Services specialist IV employed by the CCBSS, by L.H. and by L.H.'s brother, a certified public accountant. At the conclusion of the hearing, counsel for L.H. submitted a summation in which he noted that, as the result of her receipt of an MMMNA of $1,645.12*fn2 and monthly income of $1,153.40, L.H. had total monthly available income of $2,798.52. He argued that her recurring monthly expenses in 2008 equaled $5,557.12. Analyzing further, counsel determined which of those expenses were "absolutely necessary to maintain a minimum standard of living," setting them forth on a monthly basis in a schedule*fn3 as follows:
Medical and Pharmaceutical449.95
Clothing and grooming expense98.08
Credit card obligation338.96
legal fees $536.46
daughter's loan 291.67
2008 tax 61.08
Income of L.H. per Medicaid1,253.40
Required from C.H.3,610.86
Tacitly agreeing in part with the arguments of L.H.'s counsel, the ALJ recommended a $1,125 increase in L.H.'s MMMNA. She held on the basis of the testimony introduced at the hearing that:
L.H. and her brother were credible in their detailing of L.H.'s expenses and financial situation and the CCBSS did not dispute any of the facts they set forth. Where it was appropriate, W.G. saw fit to increase C.H.'s income, such as when he removed the deduction for Medicare since he is now on Medicaid. I FIND from the evidence presented that the gross income available to the couple is $5,418 per month, which after allowable deductions for medical insurance and federal withholding, comes to $4,687. I further FIND that the total of the couple's monthly expenses is $5,557 per month. Therefore, in 2008, L.H.'s expenses were approximately $870 more than her income. Contributing to L.H.'s financial duress is the fact that the amount that she pays toward her mortgage, which the CCBSS used in its calculations, is insufficient to cover the interest on her loan, so that with each payment her mortgage debt actually grows, creating a ...