                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4770-17T1

D.A.,

          Petitioner-Appellant,

v.

DIVISION OF MEDICAL
ASSISTANCE AND
HEALTH SERVICES,

     Respondent-Respondent.
____________________________

                    Submitted December 3, 2019 – Decided January 2, 2020

                    Before Judges Hoffman and Firko.

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

                    SB2 Inc., attorneys for appellant (Laurie M. Higgins,
                    on the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Jacqueline R. D'Alessandro,
                    Deputy Attorney General, on the brief).
PER CURIAM

      In this companion appeal, D.A., through his designated authorized

representative (DAR), appeals the May 7, 2018 final agency decision of the

Director of the Division of Medical Assistance and Health Services (DMAHS),

establishing D.A.'s clinical eligibility date of June 1, 2017 and denying his

request to backdate his clinical eligibility date to April 1, 2017. We affirm.

      The facts are set forth in Docket No. A-2570-17. The court scheduled the

matters back-to-back before the same panel. D.A. claims he was transferred

from a long-term nursing facility in Camden County to a nursing facility in

Burlington County, The Palace, in April 2017. Camden County terminated

D.A.'s Medicaid benefits on March 31, 2017. On May 8, 2017, The Palace

requested Pre-Admission Screening (PAS), and D.A. was evaluated on June 8,

2017, by the Office of Community Choice Options (OCCO). He was found

clinically eligible as of June 1, 2017.

      Thereafter, the DAR submitted an application for Medicaid benefits on

June 27, 2017. Burlington County Board of Social Services, County Welfare

Agency (CWA), found D.A. was Medicaid eligible effective June 1, 2017. On

August 15, 2017, the DAR requested a fair hearing in the Office of




                                                                          A-4770-17T1
                                          2
Administrative Law (OAL), which was granted. The hearing was conducted on

February 26, 2018.

      On behalf of the CWA, Catherine Kadar testified at the hearing that the

nursing facility's "delay in requesting the PAS . . . is what caused the delay in

Medicaid eligibility for D.A." In response, D.A.'s counsel stated he "did not

possess specific information regarding D.A.'s prior Medicaid eligibility," and

that the assisted living facility delayed requesting a PAS on behalf of D.A.

      On April 12, 2018, the Administrative Law Judge (ALJ) issued an initial

decision and determined that D.A. was eligible for benefits as of June 1, 2017.

The ALJ blamed the assisted living facility for failing to request the PAS for

D.A. when he was initially admitted there. On May 7, 2018, the DMAHS

Director issued a final agency decision adopting the initial decision of the ALJ,

concluding that D.A.'s application could not be evaluated until all of the

requisite information was provided.

      The Director further noted that D.A. was residing in an assisted living

facility in Camden County since 2014. On March 31, 2017, D.A.'s Medicaid

benefits in Camden County were terminated. In April 2017, he was transferred

to an assisted living facility in Burlington County. The PAS was requested on




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                                       3
May 8, 2017, and on June 27, 2017, the DAR filed a new Medicaid application

with the Burlington County Board of Social Services.

      The Director concluded that N.J.A.C. 10:71-3.15 requires eligibility to be

established "in relation to each legal requirement of the program."

Consequently, the Director concluded the OCCO was unable to conduct its

assessment until June 2017, providing a reasoned basis for D.A.'s eligibility date

of June 1, 2017.

      While this appeal was pending, we granted DMAHS's motion to

supplement the record.      Additional documents from the Atlantic County

Medicaid Long Term Care Unit showed that D.A. was receiving Medicaid

benefits in Atlantic County prior to his moving to Burlington County. The

Atlantic County CWA attempted to send D.A. redetermination paperwork, but

it was returned as undeliverable. Therefore, D.A.'s benefits were terminated

because the redetermination paperwork was not submitted.

      This appeal follows, in which D.A. raises the following issues:

            I.     The Clinical Eligibility Date For D.A. Should Be
                   Backdated To April 1, 2017 (Which Has Been
                   Appealed Under Docket No. A-2570-17T1),
                   Which In Turn Would Change The Effective Date
                   Of Medicaid Eligibility.

            II.    It Was A Violation Of State Law For Respondent
                   To Fail To Transfer D.A.'s Medicaid Case From

                                                                          A-4770-17T1
                                        4
                  Camden County To Burlington County With No
                  Break in Medicaid Coverage (N.J.A.C. 10:71-
                  3.6).

      D.A. further contends DMAHS's decision to affirm June 1, 2018 as the

effective date of his Medicaid eligibility was arbitrary, capricious, and

unreasonable, in light of the pending companion appeal.

      As a threshold matter, an appellate court will not reverse the decision of

an administrative agency unless 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) (citing Campbell v.

Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). In cases where an agency head

reviews the factfindings of an ALJ, a reviewing court must uphold the agency

head's findings even if they are contrary to those of the ALJ, provided the agency

head sets forth reasons for his or her findings and they are supported by

sufficient or substantial credible evidence in the record. In re Suspension of

License of Silberman, 169 N.J. Super. 243, 255-56 (App. Div. 1970); S.D. v.

Div. of Med. Assistance and Health Servs., 349 N.J. Super. 480, 483-84 (App.

Div. 2002).




                                                                          A-4770-17T1
                                        5
      We already addressed the issue raised in D.A.'s first point in the

companion appeal. Therefore, we now address the argument raised in D.A.s

second point.

      N.J.A.C. 10:71-3.6 addresses change of county of residence. Subsection

(b)(2) provides: "Whenever it is determined that a beneficiary whose application

has been validated is planning to change his or her residence from one county

to another, it shall be the responsibility of the CWA directors of the two counties

concerned to effect the transfer without interruption of medical assistance."

      D.A. has not established the applicability of N.J.A.C. 10:71-3.6 to his

situation.   The clear intent of the regulation is to provide for Medicaid

beneficiaries who relocate from one county to another in this State before the

eligibility determination is completed and for current beneficiaries who move

from one county to another. When D.A. relocated to a Burlington County

facility in April 2017, he was neither an applicant nor a beneficiary. His benefits

in Camden County were terminated effective March 31, 2017. The DAR did not

submit a new application for Medicaid benefits with the Burlington County

Board of Social Services until June 27, 2017.

      D.A. has not demonstrated that the final determination in this case

contravened these well-settled principles. As the Director correctly noted, only


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                                        6
after this information was submitted was the new assessment able to proceed.

There are no exceptions to the regulation cited by D.A.

      Given our limited scope of review and the controlling law supporting the

Director's legal analysis and application of the agency's regulations, we affirm

the final decision dated May 7, 2018.

      Affirmed.




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