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V.P v. Department of Human Services

September 2, 2011

V.P., PETITIONER-APPELLANT,
v.
DEPARTMENT OF HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND BURLINGTON COUNTY BOARD OF SOCIAL SERVICES, RESPONDENTS-RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 29, 2011

Before Judges Payne and Hayden.

V.P. appeals the final decision of Division of Medical Assistance and Health Services (DMAHS) imposing a period of ineligibility for Medicaid services as a result of the transfer of ownership of her home to her son, R.P. V.P. contends that the home should not have been considered a countable asset because the transfer fell within the child caregiver exemption. For reasons that follow, we agree and reverse.

I

In October 2008, V.P., then 88 years old, was admitted to a nursing home after having suffered a stroke and a heart attack. Until the time of her stroke, she had lived in her home with R.P. On March 19, 2009, shortly after transferring ownership of her home to R.P, she applied for Medicaid benefits. The Burlington County Board of Social Services ("the Board") concluded that V.P. was ineligible at that time for Medicaid for nursing home payments. The Board decided that, due to what it determined was an impermissible transfer of her home, she was subject to a twenty-three-month and seventeen-day disqualification before she would be eligible.

V.P. appealed that determination, and the matter was transmitted to the Office of Administrative Law (OAL). The Administrative Law Judge (ALJ) found that the transfer met the child caregiver exception and recommended a reversal of the disqualification. The Director of the DMAHS rejected the recommendation of the ALJ and upheld the disqualification. This appeal followed.

At the OAL hearing on July 21, 2009, V.P.'s witnesses included her son, R.P., her daughter, V.M., her grandson, A.L., her lifelong friend, L.M., as well as her treating physician, Dr. Deborah Malone. Three more potential witnesses were present but did not testify as the ALJ thought their testimony would be cumulative. The witnesses testified as follows.

R.P. helped V.P. move around the home, assisted her walking up and down the stairs, cleaned the house, drove her to doctors' appointments, ran errands, supervised her medicine intake and helped her bathe and with the toilet. For instance, V.P. was not able to get into the bathtub and could not sit in a tub full of water due to the increased risk for urinary tract infections.

V.P. had to sit in a chair in the bathroom where R.P. washed and dried her.

He also cooked all her meals, making sure that they fit within her dietary requirements for diabetes and high blood pressure. He usually cut up her food because she could not do it herself. R.P. often brought meals to V.P. in bed because she could not come down the stairs.

R.P. only left V.P. alone when he went to work. When he left for work as a crossing guard, if V.P. was downstairs, R.P. set up a portable commode on the first floor. This was necessary because V.P. was unable to climb the stairs on her own. R.P. also worked the six to eleven p.m. shift at Super Fresh. Before leaving for work, he prepared his mother for bed. He made sure that she had reading materials and the television remote control and also set up the commode in her room. Whenever R.P. left the house, he kept his cell phone on, called regularly from work, and left work early or stayed home when his mother was sick or needed him.

V.M., V.P.'s daughter, visited her mother at least three times a week. She had seen her brother preparing meals, doing laundry, cleaning, and administering their mother's medication. Her mother suffered from excruciating back pain, which resulted in a compromised equilibrium and difficulty walking. V.P. also needed help from R.P. going up and down the stairs.

L.M., a friend of V.P., who visited approximately twice a month, had seen R.P. administer ...


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