IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GENESIS HEALTHCARE d/b/a
SEAFORD CENTER, Authorized
Medicaid Representative of RUTH
JONES,

Appellant,

THE DELAWARE DEPARTMENT
OF HEALTH AND SOCIAL
SERVICES - DIVISION OF SOCIAL

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v. ) C.A. No.; N17A-11-001 AML
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SERVICES, )
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Appellee.

Submitted: March l, 2018
Decided: June 22, 2018

On Appellant’s Appeal from the Department of Health and Social Services
Division of Medicaid and Medical Assistance Hearing Officer: AFFIRMED
MEMORANDUM OPINION
Margaret F. England, Esquire, of GELLERT SCALI BUSENKELL & BRC)WN,

LLC, Wilmington, Delaware, Attorney for Appellant.
A. Ann Woolfolk, Esquire, of the STATE OF DELAWARE DEPARTMENT OF

JUSTICE, Wilmington, Delaware, Attorney for Appellee.

LeGROW, J.

This an appeal from the Department of Health and Social Services
(“DHSS”) Hearing Offlcer’s decision concerning Appellant’s denial of long term
care Medicaid benefits due to her statutorily-excessive income. The appeal
presents four primary questions, namely Whether: (i) this Court has jurisdiction to
hear the appeal; (ii) DHSS properly closed Appellant’s application due to
excessive income; (iii) the application denial and Fair Hearing violated Appellant’s
due process rights; and (iv) DHSS violated the Americans With Disabilities Act
(“ADA”) When it denied Appellant’s application.

The issues in this appeal turn upon the eligibility requirements under
DelaWare’s Medicaid program, specifically when income is considered “available”
to an allegedly incapacitated applicant and Whether Delaware’s requirements
comply With the requirements under Section 1396a of the federal Medicaid statute.
Because l flnd DHSS properly denied Appellant’s Medicaid application, I affirm
the Hearing Offlcer’s decision. My reasoning folloWs.

FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2016, Appellant Ruth Jones Was admitted to the Seaford

Genesis Healthcare Center (“Genesis”). Genesis diagnosed Jones With
Alzheimer’s disease, hypertension, pulmonary disease, and dementia. Based on

her diagnosis, Genesis determined Jones Was incompetent and could not make

financial decisions for herself. Although J ones first was admitted as a short-term
patient, it quickly became apparent that she would need extended 24-hour care.

On June 2, 2016, Genesis applied for Long Term Care Medicaid (the “LTC
application”) on Jones’ behalf. That same day, Jones, along with her daughter
Rosemarie Tell, attended an application interview with the Division of` Medicaid
and Medical Assistance (“Dl\/IMA”). Because DMMA had reason to believe,
based on the LTC application, that Jones’ gross income exceeded the statutory
limit for LTC eligibility, DMMA explained J ones would need to establish a Miller
Trust in order to become Medicaid eligible. During the interview and in the
application, Tell presented herself inaccurately as Jones’ legal guardian.l Although
Tell filed shortly before or after the interview a petition with the Court of` Chancery
to be appointed Jones’ legal guardian, that petition remained pending and Tell was
not appointed guardian until October l4, 2016. During the interview, DMMA
provided Genesis and Tell with the first “We Need” letter. This letter explained
that Jones, or Tell, would need to provide verification of the Miller Trust’s
establishment and proof of` legal guardianship by June 17, 2016, in order to keep

Jones’ LTC application open.

 

l B-OOOOl4. Tell or Genesis answered “Yes” in the response to the question “Has anyone been
appointed as applicant’s Legal Guardian/Power of` Attomey” and identified “Rosemarie Tell” as
that individual.

On July 5, 2016, DMMA sent a second “We Need” letter to Tell because
DMMA had not received the requested information. Tell’s guardianship
application, however, was “delayed,” preventing her from establishing a Miller
Trust on Jones’ behalf.2 There is no indication in the record that Appellant advised
DHSS of` these delays. On July 26, 2016, having received no response to its two
letters requesting documentation, DHSS denied Jones’ LTC application because
her income exceeded the statutory limit and she failed to establish a Miller Trust.

Jones reapplied for LTC benefits, and on November 29, 2016, DHSS
received confirmation that Jones established a Miller Trust during the month of`
November 2016. DHSS then notified Jones that she was approved for benefits
effective November l, 2016. Because Jones’ LTC application initially was denied,
Genesis incurred over $43,()00 in costs caring for Jones between March and
November 2016.

On March l, 2017, Jones, by and through Genesis, filed a request for a Fair
Hearing to review DHSS’s application denial from July 26, 2016. After several
extensions and delays, the Fair Hearing took place on August 9, 2017. At the Fair
Hearing, Genesis argued an incapacitated individual’s income cannot be counted
toward the statutory Medicaid eligibility limit because an incapacitated

individual’s income is not “available” to the individual under federal law. Genesis

 

2 Id.

also argued that denying an incapacitated individual’s LTC application violated the
applicant’s due process rights and constituted disability discrimination in violation
of the ADA.

In a written decision, the Hearing Officer ruled federal law did not prohibit
counting an incapacitated individual’s income, and that DMMA properly
determined Jones’ income legally was available to her. The Hearing Officer also
held the July 26, 2016, application denial did not violate Jones’ due process rights
because, under the United States Supreme Court’s decision in Goldberg v. Kelly,3
due process only applies when an individual’s public assistance benefits
erroneously are discontinued. Because Jones never received LTC benefits, the
Hearing Officer reasoned Jones’ due process rights were not infringed.

The Hearing Officer further ruled DHSS properly closed Jones’ application
because state agencies are obligated under federal law to determine an applicant’s
LTC eligibility within 90 days of receiving the LTC application. The Hearing
Officer concluded that DMMA provided J ones with all the required notifications
and requests for verification and processed her LTC application in a timely manner
under applicable law. The Hearing Officer’s decision did not address Genesis’s
ADA claim. On November ll, 2017, Genesis appealed the Hearing Officer’s

decision to this Court.

 

3 397 U.s. 254 (1970).

THE PARTIES’ CONTENTIONS

On appeal, Genesis argues the Hearing Officer erred in finding Jones’
income legally was available, contending DHSS should have held Jones’ LTC
application open until the Court of Chancery appointed a guardian, Genesis also
asserts the Hearing Officer erred in holding Jones’ due process rights were not
violated by DHSS’s denial of` her LTC application. Additionally, Genesis renews
its argument that DHSS’s denial constituted disability discrimination in violation
of the ADA.

DHSS first argues this Court lacks jurisdiction to hear the appeal because
Genesis’s request for a Fair Hearing was untimely even though Genesis’s appeal
from the Hearing Officer’s decision below was timely. Alternatively, DHSS
contends it properly counted Jones’ income as “available” in determining her LTC
eligibility. DHSS also maintains due process was satisfied during the application
denial and the Fair Hearing processes. Finally, DHSS argues Genesis’s ADA
argument is overly broad and unsupported by law.

ANALYSIS

An appellate court’s review of a Board decision is limited. The Court merely
determines whether the decision was supported by substantial evidence and free of
legal error.4 Upon review of an administrative agency’s findings, the Court “will

not substitute its judgment for that of an administrative body where there is

 

4 Wara' v. Dep ’t of Elections, 2009 WL 2244413, at *l (Del. July 22, 2009).
5

substantial evidence to support the decision and subordinate findings of the
agency.”5 “Substantial evidence is that which ‘a reasonable mind might accept as
adequate to support a conclusion.’ It is more than a scintilla, but less than a
preponderance of the evidence. lt is a low standard to affirm and a high standard
to overturn. If the record contains substantial evidence, then the Court is
prohibited from reweighing the evidence or substituting its judgment for that of the
agency.”6 When reviewing the Board’s conclusions of law, the Court’s review is

7
de novo.

A. DHSS Waived its timeliness argument.

DHSS argues Jones’ March l, 2017, request for a Fair Hearing was untimely
and therefore the appeal before this Court is time-barred. DHSS argues the 90-day
time limitation to request a Fair Hearing began to run when DHSS denied Jones’
LTC application on July 26, 2016. DHSS contends the request for a Fair Hearing
was filed approximately eight months after Jones’s LTC application was denied,
the request therefore was untimely, and this appeal by extension also is untimely.
DHSS argues the appellate authority of this Court is jurisdictional and therefore

cannot be waived by the parties.

 

5 olney v. Cooch, 425 A.zd 610, 613 (Del. 1981).

6 Hanson v. Delaware State Public Integrily Comm’n, 2012 WL 3860732, at *7 (Del. Super.
Aug. 30, 2012).

7 Ward, 2009 WL 2244413, ar *1.

Under Delaware’s Medicaid program, an LTC applicant may request a Fair
Hearing within 90 days of the application’s denial.8 Applicants seeking review of
a Hearing Officer’s decision may file an appeal to the Superior Court within 30
days of the Hearing Officer’s decision.9

Under the waiver rule, issues or arguments that are not
raised to an administrative agency cannot be considered
by a reviewing court. . . . [T]he waiver rule “furthers the
goal of permitting agencies to apply their specialized

expertise, correct their own errors, and discourage
litigants from preserving issues for appeal.”lo

Here, DHSS did not argue to the Hearing Officer that Jones’ Fair Hearing
request was untimely, ll and that issue was not addressed in the Hearing Officer’s
decision. Because the timeliness issue was not raised to the Hearing Officer,
DHSS has waived that argument on appeal. Although DHSS correctly argues that
the Court’s appellate jurisdiction cannot be waived, DHSS is not contesting the
timeliness of Genesis’s appeal to this Court. Rather, DHSS disputes the timeliness

of the request for a Fair Hearing. That argument does not implicate this Court’s

 

8 DSSM at § 5305(1)(€) (“The hearing officer does not have authority to hear an appeal that is
filed more than 90 days from the effective date of action. The hearing officer does not have
authority to extend the time period beyond 90 days of the effective date of action.”).

9 31 Del. C. § 520 (“Any applicant for or recipient of public assistance benefits under this
chapter or Chapter 6 of this title against whom an administrative hearing decision has been
decided may appeal such decision to the Superior Court if the decision would result in financial
harm to the appellant. The appeal shall be filed within 30 days of the day of the final
administrative decision. The appeal shall be on the record without a trial de novo.”).

10 Berchock v. Council on Real Estate Appraisers, 2001 WL 541026, *4 (Del. Super. April 26,
2001) (quoting Down Under, Ltd. v. Alcoholz'c Beverage Control Comm’n., 576 A.2d 675, 677
([)cl. Super. 1989)).

ll .S`ee Fair Hr’ g Tr.

appellate jurisdiction because there is no question Jones’ appeal to this Court was
timely. Accordingly, because DHSS waived the issue of timeliness during the
hearing stage, it may not raise it on an appeal before this Court.12

B. DHSS properly closed Jones’ LTC application because Jones’ income
exceeded the statutory limit and she failed to establish a Miller Trust.

Genesis argues it was improper for DHSS to close Jones’ LTC application
when DHSS knew Jones was incapacitated and had no legal guardian, Genesis
argues this denial violated federal mandates protecting incapacitated LTC
applicants. Additionally, Genesis argues DHSS erred by counting Jones’ income
toward the statutory limits because Jones’ income legally was “unavailable” to her
due to her incapacity.

1. Substantial evidence shows DHSS reasonably believed Tell served as

Jones’ legal guardian when her LTC application Was denied on July
26, 2016.

Genesis argues the record shows DHSS knew J ones had no guardian because
DHSS requested copies of Jones’ guardianship verification documents in both the
June 2, 2016, and July 5, 2016, “We Need” letters. In other words, Genesis argues
DHSS’s request for guardianship verification is an admission that DHSS knew

J ones had no legal guardian,

 

12 Berchock, 2001 WL 541026 at *4-*5 (rejecting the plaintiffs argument that the state’s two-
and-a-half-year delay in bringing the complaint before the Council of Real Estate Appraisers
substantially prejudiced her because the plaintiff did not raise the issue of the state’s delay before
the Council).

Jones’ June 2, 2016, LTC application asks the applicant “[h]as anyone been
appointed as applicant’s Legal Guardian/Power of Attorney?”13 Jones’ LTC
application contains a check-mark next to “Yes__” and lists “Rosemarie Tell” as
the name of Jones’ legal guardian, ln the same text box, the application notes
“You will need to provide copies of Guardianship and/or Power of Attorney
papers.”14

In its June 2, 2016, and July 5, 2016, “We Need” letters, DHSS directed Tell
to provide guardianship verification documents.15 At the Fair Hearing, DHSS
testified that Tell represented herself as Jones’ legal guardian and, by her
representation, assumed responsibility for completing the “We Need” letters.16
Additionally, the Hearing Officer found Tell signed Jones’ LTC application as
Jones’ legal guardian.17

Here, the record supports the Hearing Officer’s finding that DHSS believed
Jones had a guardian based on Genesis’s and Tell’s representations in the LTC

application. In view of Tell’s representation, DHSS sent Tell two “We Need”

letters requesting documents verifying her appointment as guardian. Genesis

 

13 Ex. 3 to Appellee’s Answer Br.

14 Id

15 Ex. 4 to Appellee’s Answer Br. 1-2.

16 Fair Hr’g Tr. 17:14-17 (“. . . when the woman who claimed to be a guardian signs the

paper. . . she took the responsibility to do that for her, she was claiming to us that she had
guardianship over [Jonesl.").

7 Hr’g Decision 2 (“Scotl' testified that this application was signed by Rosemarie Tell as the
Claimant’s legal guardian or power of attorney.”).

9

argues the “We Need” letters show DHSS knew Jones had no legal guardian
because the letters were asking for guardianship verification. The request for
verification, however, was made after Tell presented herself to DHSS as Jones’
legal guardian, Jones’ LTC application notes that a person presenting herself as
the applicant’s legal guardian must provide supporting documentation In other
words, checking the box and signing the application was not sufficient proof that
Tell had authority to act on Jones’ behalf. Sending requests for guardianship
verification, therefore, is consistent with DHSS’s alleged belief that Tell was
Jones’ legal guardian.

Accordingly, substantial evidence shows DHSS had reason to believe Tell
already had been appointed Jones’ legal guardian at the time she filed the LTC
application. This finding largely makes no difference, however, because even if
DHSS knew Jones was incapacitated with no legal guardian, it properly applied
federal and state regulations regarding Jones’ Medicaid eligibility.

2. Section 1396a does not prohibit a state from counting an allegedly

incapacitated individual’s income When determining her eligibility
for Medicaid.

Genesis argues DHSS erred by counting Jones’ income in determining her
LTC eligibility. Genesis argues federal law requires state Medicaid programs only
to count income that legally is available to an applicant. Genesis cites

42 U.S.C. § 1396a(a)(17), which provides, in relevant part, “A State plan for

10

medical assistance must . . . include reasonable standards . . . for determining
eligibility for and the extent of medical assistance under the plan which . . . provide
for taking into account only such income and resources as are, as determined in
accordance with standards prescribed by the Secretary, available to the applicant
or recipient . . . .”18

Genesis then argues federal law prohibits treating an incapacitated
applicant’s income as available to the applicant because the income cannot be
liquidated In support of this assertion, Genesis cites 20 C.F.R. § 416.1201(a)(1),
which provides, in relevant part, “If a property right cannot be liquidated, the

19 .
.” Genesis

property will not be considered a resource of the individual . . .
contends the cited provisions create a federal mandate that prohibits states from
taking into account an incapacitated applicant’s income when determining the
applicant’s eligibility for Medicaid.

Genesis, however, misconstrues the meaning of “available income” under
Section 1396a(a)(17). Under that section, a state’s standard for determining

99 ‘G'

eligibility only must consider “available income in accordance with standards

prescribed by the Secretary [of DHHS].”zO Genesis cites no standard promulgated

 

18 42 U.s.C. § 13963(17) (2016) (emphasis added).

19 20 C.F.R. § 416.1201(a)(1) (2017).

20 42 U.S.C. § 1396a(17) (2016). See Himes v. Shalala, 999 F.2d 684, 689-90 (2d Cir. 1993)
(“[B]ecause neither the direct language of the statute nor the legislative history supports the
plaintiffs’ interpretation, and § 1396a(a)(l7)(B) explicitly confers on the Secretary the authority

ll

by the Secretary to define “available income.” Instead, Genesis reaches to an
unrelated provision of the federal register to suggest “available income” means
liquid resources under 20 C.F.R. § 416.1202(a)(1).

Section 416.1201, however, defines resources for the purpose of determining
eligibility for supplemental security income (“SSI”) for the aged, blind, and
disabled.21 Genesis’s attempt to conflate “available income” for LTC benefits with
a liquid “resource” under the SSI program fails for two reasons. First, Medicaid
distinguishes between “income” and “resources” and has separate eligibility rules
for each. The reference to a “liquid resource” is wholly distinct from income.

Second, there is nothing in Section 1396a from which this Court may
conclude Congress intended to incorporate a definition from the regulations
defining the SSI program. Although Section 1396a does incorporate definitions
from other titles of the federal code, such incorporation is done explicitly with
references to the precise provision supplying the definition.22 This Court is not at
liberty to mix-and-match definitions from across the entire body of federal law

when the statute explicitly grants the DHHS Secretary the interpretive power.

 

to give substance to the meaning of the term “available,” Chevron dictates that we defer to the
Secretary's interpretation.”).

21 20 C.F.R. § 416.101(1) (2017) (“subpart L efthis part defines the term resources and sets forth
the statutory exclusions applicable to resources for the purpose of determining eligibility.”).

22 See, e.g., 1396a(a)(25)(l) (incorporating the definition of “group health plans” from the
Employee Retirement Income Security Act of 1974) (“. . . the State shall provide assurances
satisfactory to the Secretary that the State has in effect laws requiring health insurers, including
self-insured plans, group health plans (as defined in section 607(1) of the Employee Retirement
Income Security Act of 1974 [29 U.S.C.A. 1167(1)])”).

12

Further, no provision in Section 1396a supports the assertion that income is
not available to incapacitated individuals. Accordingly, neither Section 1396a nor
Section 416.1202 prohibit states from taking into account the income of an
incapacitated individual in determining their eligibility for LTC.

3. DHSS properly counted Jones’ income as legally “available” under
federal and state law.

Having determined that Section 1396a does not prohibit counting an
incapacitated individual’s income toward the LTC-eligibility limit, this Court must
consider whether DHSS properly closed Jones’ LTC application under the
Delaware Social Services Manual (“DSSM”).

Federal and state law provides that a state must determine an applicant’s
Medicaid eligibility within 90 days of the application’s filing.23 An LTC applicant
must be both medically and financially eligible.24 In order for a nursing facility
resident to be financially eligible, her income must be under 250% of the federal
SSI.25 At the time of Jones’ LTC application, 250% of SSI equaled $1,833.00.26

DSSM 20200.1 provides:

Available income ls [sic] the total amount of money
authorized (designated by the payor) for the recipient’s
benefit, whether received by the recipient directly or
received by a representative payee. Income includes
anything received by the individual, in cash or in kind,

 

23 42 C.F.R. § 435.912(e)(3)(i) (2017); DssM s1 § 20103(1)(1).

24 DSSM at § 20100. Jones’ medical eligibility was not in dispute, only her financial eligibility.
25 DSSM at § 20100(2)(2).

26 Ex. 6 Appellee’s Answer Br. 2.

13

that can be used to meet needs for food, clothing or
shelter.27

Income is available, therefore, when it is authorized by the payor-for example
Social Security_for the recipient’s benefit. Income is determined in the month it
is received, subject to a $20 disregard.28 If an applicant’s income is over the
statutory limit, the applicant may place income in a Miller Trust.29 Once placed in
trust, that income will not be counted as the applicant’s income for the purpose of
determining her eligibility for LTC benefits.30 An applicant whose income is over
the statutory limit, therefore, still may become eligible for LTC benefits by placing
her income in a Miller Trust.

During the initial interview with an applicant, the DHSS Medicaid worker
must explain the application’s 90-day time limitation to the applicant.31 The
worker also must explain that all documentation must be received by DHSS by the
date indicated on the “We Need” letter or the application will be denied.32 The
worker may extend the deadline another 15 days by sending a second “We Need”

letter to the applicant or representative33 A third extension may be granted with

 

37 DSSM at § 20200(1).

33 DssM et § 20240(1).

39 DSSM at § 20400(11).

30 DssM at § 20400(11)(1).
3‘ DssM a1§20103(1)(2).
32 Id.

33 DssM 31§20103(1)(3).

14

supervisor approval in the event of unusual circumstances34 In all cases, the
applicant or representative is responsible for delivering all the documentation
needed for determining the applicant’s eligibility.35 “If the information is not
received by the given deadline date, the application will be denied.”36

At the time of her LTC application, Jones received income in the form of

37 DHSS properly counted this income as available

pensions and social security.
income because it was designated by the payor for Jones’ benefit. As set forth
above, Jones’ incapacity and lack of a legal guardian, even if known to DHSS, did
not affect the calculation of her monthly income, which amounted to $2,208.91.38
At the time of her LTC application on June 2, 2016, therefore, Jones’ available
income exceeded the Medicaid eligibility limit by $375.91 and, in order to qualify
for LTC benefits, the excess income had to be placed in a Miller Trust.

Jones’ initial interview took place on June 2, 2016. During the interview,
DHSS gave Tell the first “We Need” letter, which sought verification by June 17,
2016, that a Miller Trust had been established. DHSS sent a second “We Need”

letter on July 5, 2016, after Tell failed to submit the supporting documents. At that

point, Tell had 15 days to submit the necessary verification or ask for an extension

 

34 Ia’. (“Unusual circumstances include, but are not limited to, awaiting placement in a Medicaid
nursing facility bed or difficulty obtaining an out-of-state deed.”).

33 DssM e11§20103(2).

36 DssM a1§20103(1)(3).

37 Ex. 6 Appellee’s Answer Br. 2.

38 Id'

15

due to unusual circumstances Tell failed to provide the necessary documents by
the deadline and DHSS closed Jones’ LTC application on July 26, 2016.39
Accordingly, because Jones’ income exceeded the statutory limit, and Tell failed to
seek an extension or provide documents by the deadline verifying the Miller
Trust’s establishment, DHSS properly closed Jones’ LTC application on July 26,
2016.

C. The Fair Hearing preserved Jones’ due process rights under Goldberg v.
Kelly.

Genesis next argues it is a violation of due process for a state agency to deny
an incapacitated individual’s LTC application when: (1) a legal guardian has not
been appointed to the applicant; (2) the individual has not been notified that her
“assets” exceed the statutory limit and is not given time to access and spend down
those “assets;” and (3) the state agency knows that the individual is incapacitated
and has no legal guardian,40

In support of its due process argument, Genesis cites generally to Section

1396a. Genesis’s Section 1396a argument, however, fails to cite a provision of

 

39 Genesis argues that, under Section 1396a, DHSS should have held Jones’ LTC application
open until she was able to appoint a legal guardian or spend down her assets. DHSS, however,
was required to determine Jones’ eligibility within 90 days of receiving her LTC application,
42 C.F.R. 435.912(c)(3)(i) (2017) (“Except as provided in paragraph (e) of this section, the
determination of eligibility for any applicant may not exceed[] Ninety days for applicants who
apply for Medicaid on the basis of disability . . . .”). DHSS therefore was required to close
Jones’ LTC application after 90 days at the latest. Moreover, a “spend down” of assets has
nothing to do with income-eligibility, which was the issue preventing Jones’ eligibility. A
“spend down” relates to assets counted as resources; there are separate eligibility limits for
income and resources, and an applicant must meet both limits.

40 Appellant’s Br. ll. See n. 39 & 42, infra.

16

that section that invokes an incapacitated individual’s due process rights. First,
Section 1396a is a lengthy subchapter of the Social Security chapter41 setting forth
the federal requirements for Medical Assistance Programs administered by states.
Notwithstanding Section 1396a’s length, it contains no provision prohibiting a
state from denying the application of an incapacitated individual when that
individual has no legal guardian,

Second, Genesis contends it is a violation of due process to deny an LTC
application when the incapacitated applicant has not been informed that her
“assets” exceed the statutory limit and has not been given time to spend down
those assets. DHSS denied Jones’ LTC application, however, due to excessive
income, not excessive resources.42 Third, as discussed above, DHSS had reason to
believe Tell served as Jones’ legal guardian, DHSS was not aware that Jones had
no legal guardian, Even if DHSS was aware, however, Section 1396a does not
prohibit denying an LTC application when the agency is aware that the applicant is
incapacitated and has no legal guardian. In short, Section 1396a does not support

Genesis’s due process argument,

 

‘11 See generally, 42 U.s.C. § 1396a (2016).

42 Genesis’s briefs and arguments give unwarranted attention to Jones’ access to her bank
account. Genesis appears, at times, to argue that Jones’ application was denied because her bank
account contained excessive assets. Jones’ application, however, was denied to due to her level
of income, not the amount of assets in her bank account. “Assets” are resources subject to a
separate eligibility limit.

17

ln Lawson ex rel. Lawson v. Dep’t Health & Soc. Ser'v.,43 this Court noted
the procedural requirements for satisfying due process in the context of a Medicaid
application. “The State of Delaware recognizes that Medicaid benefits are
property rights and as such, the recipient may not be deprived of these benefits
without due process of law.”44 The Lawson Court explained:

The requirements of procedural due process were set by
the United States Supreme Court in Gola’berg v. Kelly as
follows:

1) timely and adequate notice detailing the reasons for a
proposed termination

2) an effective opportunity (for the recipient) to defend
by confronting any adverse witnesses and by presenting
his own arguments and evidence orally.

3) retained counsel, if desired.

4) an “impartial” decision maker

5) a decision resting “solely on the legal rules and
evidence adduced at the hearing”

6) a statement of the reasons for the decision and the
evidence relied on.45

These requirements provide that a state agency must hold a “fair hearing” before
the state denies Medicaid benefits.46

Here, the Fair Hearing satisfied Jones’ due process rights under Gola’berg.
Genesis does not specifically argue the Fair Hearing violated any of the Gola’berg

procedural protections, but l address those requirements for the sake of a complete

 

13 2004 WL 440405 (Del. super. Feb. 25, 2004).

‘1‘1 1a at *3.

45 Ia’. at *3-*4 (citing Gola’berg v. Kelly, 397 U.S. 254, 266-67 (1970)).
46 Ia'. at *4.

18

record. First, Jones received timely notice that her LTC application was denied
and the reason for its denial, namely, that her income exceeded the statutory
limit.47 Second, the notice explained how her income was calculated as well as
how J ones could request a Fair Hearing to challenge the agency’s decision.48

Third, the August 9, 2017, Fair Hearing transcript shows Jones, through
Genesis, had effective opportunity to confront DHSS’s witnesses and present her
own arguments orally.49 Fourth, Jones, through Genesis, was represented by
counsel and no evidence suggests the Hearing Officer was partial in the case.
Finally, the Hearing Officer issued a decision that rested on the evidence presented
at the Fair Hearing and cited the provisions of the DSSM that governed the legal
issue. Because the Fair Hearing satisfied the procedural requirements set out in
Gola'berg, the agency’s denial notice and the Fair Hearing satisfied Jones’ due
process rights.

The Hearing Officer erred as a matter of law by holding that Jones’ due
process rights only could be impinged by the erroneous discontinuation of public
assistance benefits. As this Court held in Lawson, an applicant’s due process
notice and “fair hearing” rights are triggered by adverse state action, such as the

denial of benefits.50 To the extent the Hearing Officer held the denial did not

 

Ex. 6 to Appellee’s Answer Br.
4
Ia'.
49 Fair Hr’ g Tr. 12-21.
50 Lawson ex rel. Lawson, 2001 WL 440405 at *4.

47
8

19

trigger Jones’ due process rights, that conclusion was erroneous. As set forth
above, however, that legal error does not require reversal because the Fair Hearing
satisfied Jones’ due process rights.

Additionally, Genesis argues DHSS should afford J ones Medicaid eligibility
dating back to May 10, 2016, because 42 U.S.C. 1396a(a)(34) allegedly provides
that applicants should be afforded Medicaid benefits for the three months pre-
dating their application, This averment overlooks an important limitation. ln the
event an applicant is determined eligible, Medicaid benefits can extend as far back
as three months before the application was made, but only if the applicant was
eligible for benefits during those three months. Section 1396a(a)(34) provides, in
relevant part:

[I]n the case of any individual who has been determined
to be eligible for medical assistance under the plan, such
assistance will be made available to him for care and
services included under the plan and furnished in or after
the third month before the month in which he made
application (or application was made on his behalf in the
case of a deceased individual) for such assistance if such
individual was (0r upon application would have been)

eligible for such assistance at the time such care and
services were punished . . .51

Section 1396a(a)(34), therefore, requires the individual to have met the eligibility
requirements at the time the services were furnished in order to receive benefits for

those services.

 

51 42 U.S.C. § 1396a(a)(34) (2016) (emphasis added).
20

Although Genesis argues Jones’ Medicaid benefits should cover her
expenses dating back to May 10, 2016, DHSS properly paid her benefits dating
back to November 1, 2016. Jones was not eligible for LTC benefits until her
Miller Trust was established and funded on November 22, 2016. The Miller Trust
satisfied Jones’ eligibility requirements by removing the issue of her statutorily-
excessive income. On December 5, 2016, DHSS notified Genesis that Jones was
approved for LTC effective November 1, 2016. Because J ones was not eligible for
LTC before November 2016, DHSS properly denied benefits for care provided
before that date.

D. DHSS did not violate the Americans With Disabilities Act because DHSS
did not deny Jones’ LTC application due to her disability.

Genesis argues DHSS’s denial of Jones’ LTC application constitutes
disability discrimination in violation of the Americans with Disabilities Act.52 ln
support of its argument, Genesis quotes 42 U.S.C. § 12132, which provides,
“Subject to the provisions of this subchapter, no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or

be denied the benefits of the services, programs, or activities of a public entity, or

 

52 Genesis’s brief devotes only two sentences to this argument and does not explain how DHSS’s
denial specifically constituted disability discrimination The failure to develop this argument
effectively waives any more specific argument Genesis might have advanced. See Roca v. E.I.
du Poni de Nemours & Co., 842 A.2d 1238, 1243 n.12 (Del. 2004) (quoting United States v.
Zannino, 895 F.2d 1, 17 (lst Cir. 1990) (“[l]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived. . . . lt is not
enough merely to mention a possible argument in the most skeletal way, leaving the court to do
counsel's work . . . . Judges are not expected to be mindreaders. Consequently, a litigant has an
obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.”)).

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be subjected to discrimination by any such entity.”53 Genesis appears to contend
that DHSS’s denial amounted to discrimination against Jones because her
disability allegedly left her unable to comply with DHSS’s eligibility requirements
The elements of proving an ADA claim were examined in Lincoln Cercpac
v. Health & Hosp. Corp.54
To establish a violation of Title ll, plaintiff must show
that: (1) he or she is a “qualified individual with a
disability,” (2) he or she is being excluded from
participation in or being denied the benefits of some
service, program or activity by reason of his or her

disability, and (3) the entity which provides the service,
program or activity is a public entity.55

ln Lincoln Cercpac, a group of disabled children brought an ADA claim
against the public entity that managed New York City’s municipal hospitals after
the entity closed a clinic that provided disability-related services. The services
formerly provided by the clinic could, in fact, be obtained at nearby hospitals.56
The Southem District held plaintiffs were not likely to succeed on the merits of an
ADA claim because plaintiffs were not denied benefits by reason of their
disability. The Court found the plaintiffs failed to identify a service that was
available to able children that plaintiffs were denied due to their disability.57 The

Court reasoned that a relocation of services is not a denial or exclusion of

 

53 42 U.S.C. § 12132 (2016).

54 Lincoln Cercpac v. Healih & Hosp. Corp., 920 F.Supp. 488 (S.D.N.Y. 1996).
33 1a at 497.

561d

57 Id_

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services.58 Additionally, the Court held disabled individuals are not entitled to
more services than able individuals, even if the disabled individuals need those
services.59

Here, DHSS did not deny Jones’ LTC application because of her disability,
but rather because her income exceeded the eligibility limit. Further, DHSS
reasonably believed Tell served as Jones’ legal guardian and that Tell would assist
with submitting Jones’ LTC application When Tell failed to provide the necessary
verification, DHSS denied Jones’ LTC application Because DHSS reasonably
believed Tell served as Jones’ legal guardian, there is no evidence in the record
that her disability factored into DHSS’s decision to deny the LTC application
Further, Genesis has failed to point to any service that DHSS provides to able
individuals that was denied to Jones.

CONCLUSION

For the foregoing reasons, the Hearing Officer’s decision is AFFIRMED.

IT IS SO ORDERED.

 

58 Id
59 Id

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