                            NOT FOR PUBLICATION WITHOUT THE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-4534-16T3
L.B.,

        Petitioner-Appellant,

v.

DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES and ESSEX COUNTY
BOARD OF SOCIAL SERVICES,

     Respondents-Respondents.
_______________________________

                Submitted June 19, 2018 – Decided September 18, 2018

                Before Judges Nugent and Accurso.

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

                SB2 Inc., attorneys for appellant (John P. Pendergast,
                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
      L.B. appeals from a May 2, 2017 final decision of the Department of

Human Services, Division of Medical Assistance and Health Services

(DMAHS) denying his request for a fair hearing because it was filed almost

two years out of time. We affirm.

      L.B. applied for benefits with the Essex County Division of Welfare,

which denied the application on March 17, 2015, based on his failure to

provide the documentation necessary to process the application. Neither L.B.

nor Newark Extended Care Facility where he was residing made any request

for a fair hearing to challenge the denial.

      Instead, in January 2017, almost two years later, counsel for the care

facility, now known as Sinai Post-Acute Nursing and Rehabilitation Center,

wrote to DMAHS claiming neither L.B. nor his authorized representative

received the March 17, 2015 denial letter. He claimed they only received a

copy of the letter on May 4, 2016, at a fair hearing on another Medicaid

application L.B. filed, and thus that L.B.'s "time to appeal has been tolled."

      DMAHS denied the belated request for a hearing. In addition to noting

the denial letter was addressed to the facility where L.B. resided and his

authorized representative was employed, DMAHS noted that 273 days had

elapsed since May 4, 2016, the date L.B. and his representative conceded they


                                                                          A-4534-16T3
                                         2
had notice of the denial. Given the inexcusable delay in seeking a fair hearing

after notice, DMAHS denied the request.

          L.B. appeals, arguing his failure to have received the March 17, 2015

denial notice made it impossible for him to request a fair hearing within twenty

days, as required by N.J.A.C. 10:49-10.3. In response, DMAHS argues,

among other things, that even accepting that L.B. did not receive the denial

notice until May 2016, he fails to explain his admitted failure to act during the

273 days that elapsed between his receipt of notice of the denial in May 2016

and his request for a hearing in January 2017.

          L.B. replies that "[t]here is no language in N.J.A.C. 10:49-10.3 which

suggests that the time to appeal a Medicaid notice is tolled when such notice is

not received by an applicant like L.B." It was, of course, L.B.'s counsel who

urged equitable tolling in support of his January 2017 request to DMAHS for a

fair hearing, writing L.B.'s "time to appeal has been tolled" on account of his

failure to receive notice of March 2015 denial letter "until more than one year

later."

          Having reviewed the record in accord with our deferential standard of

review, see E.B. v. Div. of Med. Assistance & Health Servs., 431 N.J. Super.

183, 190-91 (App. Div. 2013), we cannot find the agency's decision to deem


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                                           3
L.B.'s request for a fair hearing as out of time to be arbitrary, capricious or

unreasonable under the circumstances. Although L.B. and the care facility

where he resides deny receipt of the notice rejecting his application for

Medicaid the county welfare agency sent in March 2015, they concede they

had notice of the denial nearly eight months before they had their counsel

write DMAHS to request a fair hearing. Obviously knowledgeable about the

process as they admit receiving notice in the course of a fair hearing on

another Medicaid application filed on behalf of L.B., they offer no explanation

or excuse for the delay. Accordingly, we find no error in DMAHS's decision

to reject the request as grossly out of time.

      Affirmed.




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