NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2013
On appeal from the Department of Human Services, Division of Medical Assistance and Health Services.
Law Office of Sharon Rivenson Mark, P.C., attorneys for appellant (Ms. Mark and Rahat A. Chatha, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Molly Moynihan, Deputy Attorney General, on the brief).
Before Judges Simonelli and Haas.
Petitioner R.P. appeals from the July 7, 2012 final agency decision of respondent Division of Medical Assistance and Health Services (DMAHS), which denied his request for an undue hardship waiver for the period of ineligibility for Medicaid benefits imposed due to an asset transfer. We affirm.
In August 2006, R.P., then eighty years old, was placed into a private nursing home. R.P. gave his son, James, a power of attorney. In March 2007, James sold R.P.'s home, netting approximately $150, 000. Between April 2006 and November 2008, James transferred $182, 354.06 from R.P.'s bank account to his own bank account and stopped paying for the nursing home. As a result, R.P. was evicted and placed into a public nursing home.
In June 2009, R.P. was diagnosed with Dementia, Alzheimer's type. In August 2009, the court declared him incapacitated and incapable of governing himself and managing his affairs, and appointed a guardian from the Officer of the Public Guardian for Elderly Adults (OPG). In September 2010, the OPG filed a complaint on R.P.'s behalf against James to recoup R.P.'s money.
The OPG also submitted three applications to the Bergen County Board of Social Services (Board) for Medicaid benefits for R.P. The Board denied the first application for lack of verification of financial documentation. R.P. did not appeal. The Board denied the second application pursuant to N.J.A.C. 10:71-4.7(h) based on a transfer of R.P.'s resources in the amount of $182, 354.06. R.P. did not appeal; rather, he requested an undue hardship waiver of the transfer penalty period. Following a hearing before the Office of Administrative Law (OAL), an Administrative Law Judge (ALJ) determined that R.P. had not satisfied both prongs of the undue hardship waiver test under N.J.A.C. 10:71-4.10(q). The Director of DMAHS adopted the ALJ's initial decision. R.P. did not appeal this decision.
R.P.'s third application is the subject of the present appeal. The Board determined that R.P. was eligible for Medicaid benefits as of December 1, 2010, but imposed a transfer penalty period of ineligibility pursuant to N.J.A.C. 10:71-4.7of seventeen months and five days,  based on a transfer of assets to James in the amount of $123, 183.34 between April 2006 and November 2008.
Plaintiff requested a fair hearing before the OAL on the denial of his request for an undue hardship waiver. Prior to the hearing, on July 15, 2011, a Law Division judge entered an order requiring James to provide an accounting of R.P.'s assets. Thereafter, James began making restitution payments of $750 per month directly to the nursing home. On January 27, 2012, the court entered a final judgment by default against James in the amount of $93, 120.01 after crediting him $29, 913.33 for monies he spent to care for plaintiff from 2005 to 2009.
R.P. presented no evidence at the OAL hearing to support the undue hardship waiver. Instead, relying on N.J.A.C. 10:71-4.4(b)(6), he argued that the $123, 183.34 should be considered an inaccessible resource because James stole the money and he made a good faith effort to recover it. In a March 16, 2012 initial decision, the ALJ found that $93, 120.01, not $123, 183.34, should be considered a countable resource for R.P.'s Medicaid eligibility. Without making any findings that R.P. had ...