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A.D. v. Division of Medical Assistance and Health Services and Bergen County Board of Social Services

November 23, 2010

A.D., PETITIONER-APPELLANT,
v.
DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND BERGEN COUNTY BOARD OF SOCIAL SERVICES, RESPONDENTS-RESPONDENTS.



On appeal from the Department of Human Services, Division of Medical Assistance and Health Services, Agency Docket No. 02-10-080854-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 19, 2010

Before Judges Baxter and Koblitz.

A.D. appeals the denial of Medicaid benefits for a two and one-half year period of time during which Citibank refused to allow her representatives to withdraw money from her two Keogh accounts. Concluding that Citibank's recalcitrance caused those funds to be inaccessible to A.D., we reverse the decision of the Director of the Division of Medical Assistance and Health Services (Director).

A.D., a retired physician, began residing at the long-term nursing facility of Bergen Regional Medical Center (Bergen Regional) in October 2004 when she was eighty years old.*fn1 She began receiving Medicaid benefits in late 2004. The Bergen County Board of Social Services (Board) discovered two Keogh accounts at Citibank in A.D.'s name, advised A.D. that these were not reported on the application, and determined that she was therefore ineligible for Medicaid benefits from December 1, 2005, through May 31, 2008.*fn2 The Board's letter of July 6, 2006, stated:

[A.D.] was the owner of two Keogh*fn3 accounts at Citibank. The balances in the Profit Sharing Keogh and the Money Purchase Keogh accounts totaled over $22,000 in January 2004 and are still active accounts.

As the value of the two accounts was approximately $22,000, A.D.'s income and resources exceeded the allowable amount to maintain her benefits, which was $2000 for an individual applicant.*fn4 N.J.A.C. 10:71-4.5.

In response to its inquiry, the Board received a letter from Citibank on July 27, 2006, stating the two account numbers and detailing three distributions from the accounts on August 9, 2004, September 8, 2004, and February 7, 2005. On August 15, 2006, Citibank wrote the Board again to notify it that Citibank had transferred one account to Smith Barney. These letters were not copied to A.D. by Citibank, nor did the Board provide A.D. or her representative with neither letter, nor any specific account information contained in these letters.

A.D.'s attorney, who did not know the Keogh account numbers, tried on several occasions to withdraw all the funds in these accounts. On November 24, 2006, A.D. signed a Citibank withdrawal slip for her attorney. Counsel forwarded that slip with a notarized letter from A.D. requesting that all of her accounts be liquidated and authorizing Citibank to speak to counsel. Citibank, however, required another more specific withdrawal form. A.D.'s daughter delayed the submission of this form for three months by inadvertently bringing the signed form with her to Italy.*fn5 During this process, Citibank refused to speak to the attorney or to A.D.'s daughter, who had A.D.'s power of attorney. Counsel sent in a copy of the power-of-attorney to Citibank three times to no avail. When Citibank finally issued a check in December 2007, the check only liquidated one account. Ultimately, Citibank informed counsel that the other account had been transferred to Smith Barney, which required its own withdrawal form. The final account was liquidated in May 2008.

The administrative law judge found that the delay in distributing the funds was largely due to Citibank's failure to comply with the liquidation requests and cooperate with A.D's attorney and daughter. He said,

CitiBank failed to comply with its depositor's directions. CitiBank procrastinated, resisted, or ignored [A.D.]'s counsel, and threw unwarranted barriers in the path of [A.D.] . . . CitiBank's obstructionism became exacerbated when it transferred [A.D.]'s second Keogh account to Smith Barney but failed to retrieve the funds and distribute them to [A.D.] upon demand. This dithering caused A.D. potential financial injury each day of delay.

After finding that Citibank caused over two years of delay, the administrative law judge determined "that at all times relevant [A.D.] had access to her [Keogh] accounts which were in the custody of CitiBank, and that the delay in the funds distribution was caused by the custodian and A.D.'s attorney-in-fact."

On September 21, 2009, the Division reviewed the record and adopted the administrative law judge's decision. The Director noted that although A.D. "alleges the funds were inaccessible due to 'stonewalling' by the bank . . . . There were distributions from the accounts from August 9, 2004 through February 7, 2005." The Director found that "at all times [A.D.] had access to the funds in quest[ion]." Accordingly, the Director found ...


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