                                NOT FOR PUBLICATION WITHOUT THE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-2996-17T1

H.R.,

          Petitioner-Appellant,

v.

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

     Respondents-Respondents.
____________________________

                    Submitted December 9, 2019 – Decided January 2, 2020

                    Before Judges Sumners and Natali.

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

                    Cowart Dizzia, LLP, attorneys for appellant (Jenimae
                    Almquist, on the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Nicholas Logothetis, Deputy
            Attorney General, on the brief).

PER CURIAM

      H.R. appeals the January 24, 2018 final agency decision of the Director

of the Division of Medical Assistance and Health Services (DMAHS) that

denied him Medicaid benefits. 1 We affirm.

                                       I.

      In approximately July 2016, H.R. was hospitalized after his mobile home

was destroyed in a fire. On July 19, 2016, he was transferred to the Hammonton

Center for Rehabilitation and Healthcare (Hammonton Center) where he became

a full-time resident.   Due to H.R.'s significant cognitive impairment and

functional deficits, the Hammonton Center filed a complaint on September 23,

2016, seeking the appointment of a guardian of H.R.'s person and his estate. A

hearing was set for December 7, 2016, but was adjourned to January 11, 2017.

During this period the court did not appoint a temporary guardian.

      On January 11, 2017, the court entered a judgment of legal incapacity and

appointed a guardian. The judgment required the guardian to "enter into a surety



1
  As detailed, infra, H.R. died during the pendency of these proceedings, and
his estate has prosecuted the action since his death. We nevertheless refer to
petitioner as H.R. for ease of reference.
                                                                        A-2996-17T1
                                       2
bond unto the Superior Court of New Jersey in the amount of $50,000," before

receiving letters of guardianship. In a February 23, 2017 order, however, the

court waived the bond requirement and ordered the Surrogate to issue letters of

guardianship, which the guardian received that day. Additionally, the court

ordered H.R.'s bank account with Fulton Bank ending in *9008 to be "paid over

to the Hammonton Center." The court further required all future Social Security

and Veteran's Administration benefits to be directed to the Hammonton Center.

      On December 23, 2016, while H.R.'s guardianship was still pending, the

Hammonton Center filed a Medicaid application with the Atlantic County Board

of Social Services (ACBSS) on H.R.'s behalf. On February 6, 2017, the Atlantic

County Medicaid Long Term Care Unit (LTC Unit) denied H.R.'s application,

as H.R. "failed to provide documents needed to make [a] determination." The

guardian testified before the Administrative Law Judge (ALJ) that she asked a

caseworker "whether she needed to request a [f]air [h]earing or if [ACBSS]

w[as] building off of the [December 2016] Medicaid application." She further

testified that the caseworker "told her to keep getting her the information

requested." Neither the guardian nor the Hammonton Center requested a fair

hearing with respect to the denial of H.R.'s December 2016 Medicaid

application.


                                                                       A-2996-17T1
                                      3
       On March 8, 2017, the guardian filed a new Medicaid application for the

wrong program on H.R.'s behalf, and ACBSS, accordingly, did not accept the

application. Notably, in a letter accompanying the application, the guardian

represented that the combined value of H.R.'s real property was $2500.

       The guardian filed another Medicaid application on March 13, 2017, this

time for the correct program. In this application, the guardian represented that

the fair market value of H.R.'s real property was $5000. Additionally, she

identified three bank accounts that H.R. owned: 1) a Fulton Bank account

ending in *9008 with a balance of $6460.94; 2) a Fulton Bank account ending

in *2538 with a nominal balance of $13; and 3) a Univest Bank account ending

in *7463 with a $7677.95 account value. A Univest Bank account ending in

*2581 with an account value of $63.08 was later identified.

       According to the guardian's testimony before the ALJ, she learned of the

Univest account on March 12, 2017, in the course of a discussion with H.R.'s

friend at the hospital. She maintains that she contacted Univest by telephone

and received confirmation that Univest would prepare the relevant paperwork

so she could appropriately disburse those funds, but that she was unable to travel

to Univest to execute the necessary documents as she was at the hospital with

H.R.


                                                                          A-2996-17T1
                                        4
      On March 17, 2017, H.R. passed away. Approximately one week later,

on March 23, 2017, the court entered a consent order which required that H.R.'s

Fulton Bank "account ending in *9008 shall be paid over to the Hammonton

Center, except [that]: 1) $1406 shall be paid to Sara Winstock, Esq[.;] [and] 2)

$1205.45 shall be paid to Egg Harbor Township" to satisfy existing and future

tax debt on two lots of land that H.R. owned. At the end of March 2017 or April

2017, the account ending in *9008 was spent down consistent with the March

23, 2017 consent order and the account was closed.

      On April 27, 2017, H.R.'s March 13, 2017 Medicaid application was

denied by the LTC Unit as H.R. was deceased and "over-resourced," as his estate

was "over the $2000 resource limit." ACBSS never received information or

documentation that H.R.'s *9008 account was spent down, but Barbara Paugh,

an Administrative Supervisor with ACBSS, testified that "even if the [*9008]

account was not counted towards the resource limit, H.R.'s estate would still

have been over the $2000 resource limit."

      On May 9, 2017, the guardian filed a request for a fair hearing with respect

to the denial of H.R.'s March 13, 2017 Medicaid application. The DMAHS

transmitted the matter to the Office of Administrative Law (OAL), and the OAL

held a hearing on August 3, 2017. The ALJ heard testimony from the guardian,


                                                                          A-2996-17T1
                                        5
Paugh, and Jannell Thomas, the Medicaid Coordinator at the Hammonton

Center.

      At the August 3, 2017 hearing, the guardian testified that after she

presented her letters of guardianship, it took almost two weeks to obtain H.R.'s

account information from Fulton Bank, due to the bank's legal processes. The

guardian further stated that she went to the Social Security Administration office

twice in order to "determine where [H.R.'s] social security was being deposited."

Before receiving the information, however, she left due to the wait time.

      With respect to H.R.'s Univest Bank account, the guardian confirmed that

she learned of the account on March 12, 2017 from H.R.'s friend at the hospital,

and contended that it was ACBSS' responsibility to inform her of the existence

of the Univest Bank account. As to H.R.'s real property, the guardian testified

that she did not obtain an appraisal, but that the property was "not worth

anything."

      The ALJ issued her initial decision on October 30, 2017. With respect to

the December 2016 Medicaid application, the ALJ found that "[n]o [f]air

[h]earing request was filed on the denial of the . . . [Hammonton Center's]

application."




                                                                          A-2996-17T1
                                        6
      In considering the March 13, 2017 Medicaid application, the ALJ noted

that because H.R. was a full-time resident of the Hammonton Center, his "real

property became an eligible resource that [ACBSS] was required to consider in

determining H.R.'s Medicaid eligibility at the time of filing." She added that

H.R. offered no credible evidence to dispute the $19,300 tax assessed value of

H.R.'s real property. Further, the ALJ found that while H.R.'s Fulton Bank

account was not a countable resource because it was subject to the court's March

23, 2017 spend down order, the Univest Bank account was not included in the

order and was therefore an includable resource in determining H.R.'s Medicaid

eligibility. Accordingly, the ALJ concluded that H.R. was "over the resource

limit of $2000 thereby making him ineligible for Medicaid . . . ."

      On January 24, 2018, the Director of DMAHS issued a final agency

decision adopting the ALJ's initial decision "as to the finding that [p]etitioner is

not eligible for benefits" with respect to the March 13, 2017 Medicaid

application. The Director noted that H.R. "had a guardian who had authority to

access [his] assets." In this regard, the Director concluded that H.R.'s assets,

"including the bank accounts that exceeded $7000 and real estate, were correctly

applied to the Medicaid standard and [ACBSS] correctly found him ineligible

for benefits." However, because it was unclear whether H.R.'s application "was


                                                                            A-2996-17T1
                                         7
reviewed for retroactive benefits as he did not acknowledge unpaid medical bills

on the March 2017 application," the Director returned the matter to ACBSS to

determine H.R.'s eligibility for retroactive benefits under N.J.A.C. 10:49 -2.9(b)

and 42 U.S.C. § 1396a(a)(34). 2 This appeal followed.

      On appeal, H.R. makes three primary arguments. First, he maintains that

DMAHS' denial was arbitrary and capricious because the decision "improperly

deemed H.R.'s unknown and inaccessible bank accounts and property as

'resources' under Medicaid regulations in direct conflict with applicable law. "

Specifically, H.R. claims that his cognitive impairment, his death, the state of

his land, the delay in issuing letters of guardianship, and the guardian's difficulty

receiving information from the financial institutions, rendered H.R.'s resources

unavailable. In addition, H.R. asserts that "the ALJ erroneously held a high

value against [him] in relation to the land where his trailer had stood before a

fire led to his institutionalization." H.R. further claims that "the value of a

resource that is inaccessible through no fault of the applicant is expressly

excluded by N.J.A.C. 10:71-4.4(b)(6)."




2
  As noted in DMAHS' merits brief, H.R. was deemed eligible for and granted
retroactive Medicaid benefits only for the months of December 2016 and
January 2017.
                                                                             A-2996-17T1
                                         8
      Second, H.R. contends that the DMAHS ignored the fact that the guardian

"had no authority to request a fair hearing at the time that the [December 23,

2016] application was denied in February of 2017," and therefore "H.R. was

deprived of reasonable backdating of his eligibility date." Additionally, he

asserts that ACBSS interfered with his ability to request a fair hearing by: 1)

failing to send the guardian the February 2017 denial letter, and 2) continuing

to solicit and accept information after the denial, "indicating the application was

still being processed" and therefore should be estopped from denying the

calculation of benefits from the date of the first application.

      Finally, H.R. claims DMAHS' decision is punitive and capricious as it

discriminated on the basis of disability and that denying Medicaid benefits to an

incapacitated individual awaiting a guardian like H.R. "undermines the

availability of long-term care to debilitated and elderly New Jersey citizens."

                                        II.

      Our role in reviewing an agency decision is limited. R.S. v. Div. of Med.

Assistance and Health Servs., 434 N.J. Super. 250, 260-61 (App. Div. 2014)

(citing Karins v. Atl. City, 152 N.J. 532, 540 (1998)).           We "defer to the

specialized or technical expertise of the agency charged with administration o f

a regulatory system." In re Virtua-W. Jersey Hosp. Voorhees for Certificate of


                                                                           A-2996-17T1
                                         9
Need, 194 N.J. 413, 422 (2008) (citing In re Freshwater Wetlands Prot. Act

Rules, 180 N.J. 478, 488-89 (2004)). "[A]n appellate court ordinarily should

not disturb an administrative agency's determinations or findings unless there is

a clear showing that (1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was not supported by

substantial evidence." Ibid. (citing In re Herrmann, 192 N.J. 19, 28 (2007)).

      Further, a presumption of validity attaches to the agency's decision. Brady

v. Bd. of Review, 152 N.J. 197, 210 (1997); In re Tax Credit Application of

Pennrose Props., Inc., 346 N.J. Super. 479, 486 (App. Div. 2002). The party

challenging the validity of the agency's decision has the burden of showing that

it was arbitrary, capricious, or unreasonable. J.B. v. N.J. State Parole Bd., 444

N.J. Super. 115, 149 (App. Div. 2016) (quoting In re Arenas, 385 N.J. Super.

440, 443-44 (App. Div. 2006)). "Deference to an agency decision is particularly

appropriate where interpretation of the [a]gency's own regulation is in issue."

I.L. v. N.J. Dep't. of Human Servs., Div. of Med. Assistance and Health Servs.,

389 N.J. Super. 354, 364 (App. Div. 2006) (citing H.K. v. Div. of Med.

Assistance and Health Servs., 379 N.J. Super. 321, 327 (App. Div. 2005)).

Nevertheless, "an appellate court is 'in no way bound by the agency's

interpretation of a statute or its determination of a strictly legal issue.'" R.S. v.


                                                                             A-2996-17T1
                                        10
Div. of Med. Assistance and Health Servs., 434 N.J. Super. 250, 261 (App. Div.

2014) (quoting Mayflower Sec. Co. v. Bureau of Sec. in Div. of Consumer

Affairs of Dep't. of Law & Pub. Safety, 64 N.J. 85, 93 (1973)).

      "The Medicaid program, established by Title XIX of the Social Security

Act, is a joint federal-state program designed to provide medical care for

indigent, disabled[,] and elderly persons." United Hosps. Med. Ctr. v. State, 349

N.J. Super. 1, 4 (App. Div. 2002) (citing 42 U.S.C. § 1396). Once a state

"chooses to participate[,] [it] must operate its program in compliance with the

federal statute and regulations." Ibid. (citing Harris v. McRae, 448 U.S. 297,

301 (1980)). "The state must adopt 'reasonable standards . . . for determining

eligibility for . . . medical assistance [that are] consistent with the objectives of

the Medicaid program[,]' and 'provide for taking into account only such income

and resources as are . . . available to the applicant.'" In re Estate of Brown, 448

N.J. Super. 252, 256 (App. Div. 2017) (citations omitted) (first quoting Mistrick

v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 166 (1998); then

quoting N.M. v. Div. of Med. Assistance & Health Servs., 405 N.J. Super. 353,

359 (App. Div. 2009)).

      The New Jersey Medical Assistance and Health Services Act (Act),

N.J.S.A. 30:4D-1 to -19.5, "establishes the statutory framework for the


                                                                             A-2996-17T1
                                        11
implementation of New Jersey's Medicaid program." In re A.N., 430 N.J. Super.

235, 243 (App. Div. 2013). "DMAHS is the 'single State agency' responsible

for administering New Jersey's Medicaid program."        Ibid. (citing N.J.S.A.

30:4D-4 and -5; N.J.A.C. 10:49-1.1).       "Such administration includes the

promulgation and adoption of regulations governing qualification for Medicaid

benefits, as well as serving as gatekeeper to prevent individuals from using

Medicaid to avoid payment of their fair share for long-term care." W.T. v. Div.

of Med. Assistance & Health Servs., 391 N.J. Super. 25, 36-37 (App. Div. 2007).

County welfare agencies are responsible for determining Medicaid eligibility.

N.J.S.A. 30:4D-7a.

      Under the Medicaid eligibility standards, "participation in the program

shall be denied or terminated if the total value of an individual's resources

exceeds [$2000]." N.J.A.C. 10:71-4.5(c). Pursuant to N.J.A.C. 10:71-4.1(b), "a

resource shall be defined as any real or personal property which is owned by the

applicant . . . and which could be converted to cash to be used for his or her

support and maintenance."      Further, "[i]n order to be considered in the

determination of eligibility, a resource must be 'available.'" N.J.A.C. 10:71-

4.1(c). A resource is "available" when "[t]he person has the right, authority[,]




                                                                        A-2996-17T1
                                      12
or power to liquidate real or personal property or his or her share of it . . . ."

N.J.A.C. 10:71-4.1(c)(1).

                                       III.

      We reject petitioner's first argument that all of his assets were

"unavailable" or not "accessible" for purposes of evaluating the amount of his

available resources under the applicable regulations. In support of his argument,

petitioner primarily relies on I.L., 389 N.J. Super. at 354. That case, however,

is factually inapposite.

      In I.L., the court was confronted with the issue of "whether an individual

is eligible for . . . Medicaid . . . when she was the legal owner of life insurance

whose value ordinarily would have disqualified her . . . , but because she

suffered from dementia . . . , and because no guardian had power over her assets,

the cash value of the policies was not accessible to her." Id. at 356. The

petitioner's Medicaid application was denied because she owned three life

insurance policies with a total cash value of $5913, thereby exceeding the

resource limit of $2000. Id. at 357. The court appointed a guardian, who

"quickly spent down the value of [the] petitioner's life insurance policies." Id.

at 361.




                                                                           A-2996-17T1
                                       13
      The I.L. court concluded that because of I.L.'s mental condition, her life

insurance policies were not accessible to her until her guardian's appointment,

and, therefore was, at the time of her application, Medicaid eligible. Id. at 365-

66. In making its determination, the court stated that "if the policies' cash values

had been 'accessible' to I.L. (either directly or through an appointed guardian)

her $3913 excess of resources over the $2000 limit, would have been spent down

on her behalf within a very short time." Id. at 365.

      Here, however, H.R.'s guardian had authority to act on his behalf as of

February 2017 when she received the letters of guardianship. Even excepting

the Fulton accounts, it was not disputed that the value of the Univest account

exceeded the $2000 resource limit.       See N.J.A.C. 10:71-4.5(c). While we

acknowledge the guardian experienced some difficulty obtaining information

regarding petitioner's assets, she was aware of the Univest account, albeit shortly

before petitioner's death, and possessed authority to access that resource prior

to filing the March 13, 2017 Medicaid application.

      Even were we to ignore the Univest account as an available resource as a

result of difficulties in the guardian's ability to discover those assets sooner,

there was substantial credible evidence in the record to support the DMAHS'

decision based on the value of H.R.'s real property.


                                                                            A-2996-17T1
                                        14
      N.J.A.C. 10:71-4.4 lists excludable resources which "shall not be

considered either in the deeming of resources or in the determination of

eligibility for participation in the Medicaid Only Program."          Pursuant to

N.J.A.C. 10:71-4.4(b)(1), "[a] house occupied by the individual as his or her

place of principal residence, and the land appertaining thereto, shall be excluded

. . . ." "An absence of more than six months," however, "is assumed to indicate

that the home no longer serves as a principal residence." N.J.A.C. 10:71-

4.4(b)(1)(i).   Additionally, under N.J.A.C. 10:71-4.4(b)(6), "[t]he value of

resources which are not accessible to an individual through no fault of his or her

own" are also excludable.

      As noted, as of July 19, 2016, H.R. was transferred to the Hammonton

Center and became a full-time resident. Additionally, at the time the guardian

filed the March 13, 2017 Medicaid application, H.R. had been absent from his

land for over six months. Accordingly, the principal residence exclusion under

N.J.A.C. 10:71-4.4(b)(1) does not apply.

      Further, by February 2017, the guardian had received the letters of

guardianship. She therefore had access to H.R.'s real property and, in fact, listed

the land for sale on March 21, 2017. As such, H.R., through the guardian, had

access to the land and it was not excludable under N.J.A.C. 10:71-4.4(b)(6).


                                                                           A-2996-17T1
                                       15
      With respect to the land's value, N.J.A.C. 10:71-4.1(d) provides that "[t]he

value of a resource shall be defined as the price that the resource can reasonably

be expected to sell for on the open market in the particular geographic area

minus any encumbrances (that is, its equity value)."             N.J.A.C. 10:71-

4.1(d)(1)(iv) further provides that "[t]he equity value of real property is the tax

assessed value of the property multiplied by the reciprocal of the assessment

ratio as recorded in the most recently issued State Table of Equalized

Valuations, less encumbrance, if any."

      Here, the ALJ and DMAHS properly relied upon the tax assessed value of

H.R.'s two parcels of land, which totaled $19,300.             In the guardian's

corresponding letter accompanying the March 8, 2017 application, she

represented that the "combined value" of H.R.'s "two parcels of real estate" was

$2500. Five days later, in her second application, the guardian stated the fair

market value of H.R.'s real property was $5000. Then, on March 21, the

guardian listed the land for sale at $40,000. At the hearing before the ALJ,

H.R.'s guardian provided no support, expert or otherwise, for her contention,

that the land had minimal value. Accordingly, the DMAHS did not commit error

when it concluded the value of H.R.'s eligible land exceeded the $2000 income




                                                                           A-2996-17T1
                                       16
amount, as that finding was supported by substantial, credible evidence in the

record.

                                       IV.

      Further, we reject petitioner's claim that the DMAHS deprived H.R. "of

reasonable backdating of his eligibility date" by: 1) ignoring his guardian's lack

of authority to request a fair hearing when the December 2016 application was

denied, 2) failing to send the guardian the February 2017 denial letter, and 3)

continuing to accept and solicit supplemental information following the denial.

      Pursuant to N.J.A.C. 10:49-10.3(b)(3), "[c]laimants shall have [twenty]

days from the date of notice of . . . [agency] action in which to request a hearing

. . . ." On February 6, 2017, ACBSS sent the denial letter to the Hammonton

Center, who had filed the December 2016 application. While a copy of the

denial notice was not sent to H.R.'s guardian, she was nevertheless aware that

the application had been denied before receiving her letters of guardianship on

February 23, 2017, less than twenty days from the date of the denial letter.

Accordingly, H.R.'s guardian could have filed a request for a fair hearing once

she became H.R.'s guardian.

      We also reject petitioner's claim that DMAHS should be equitably

estopped. To invoke that equitable doctrine, a "defendant [must be] engaged in


                                                                           A-2996-17T1
                                       17
conduct, either intentionally or under circumstances that induced reliance , and

that plaintiffs acted or changed their position to their detriment." Knorr v.

Smeal, 178 N.J. 169, 178 (2003).       However, "[e]quitable estoppel may be

invoked against a governmental entity only 'to prevent manifest injustice.'"

Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ. of Bridgewater-Raritan Sch.

Dist., 221 N.J. 349, 364 (2015) (quoting O'Malley v. Dep't of Energy, 109 N.J.

309, 316 (1987)).

      Here, petitioner's assertion that the guardian detrimentally relied on

ACBSS's solicitation and acceptance of information after it already denied the

December 2016 Medicaid application is without merit.           H.R.'s guardian's

supposed reliance and belief that the application was still pending is refuted by

the fact that she filed new Medicaid applications on March 8 and March 13,

2017, shortly after receiving the letters of guardianship.     Accordingly, the

DMAHS' decision to deny H.R. backdated coverage is supported by the record

and is neither arbitrary, capricious, nor unreasonable.

                                       V.

      Finally, we reject H.R.'s claim that the DMAHS' decision discriminated

on the basis of his disability and violated the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12101 to 12213, by not properly taking into account his


                                                                         A-2996-17T1
                                      18
mental incompetence in the application process. The ADA provides that "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 be subjected to discrimination by

any such entity." 42 U.S.C. § 12132.

      Certainly, H.R. could not be denied public benefits or excluded from a

public program on the basis of his disability, but that is not what happened here.

H.R., through the Hammonton Center and then his guardian, was able to apply

for benefits and there is no indication that he was treated any differently than

any other applicant. Rather, H.R.'s application was ultimately denied because

his available and accessible assets exceeded the $2000 resource limit at the time

of the March 13, 2017 Medicaid application.

      To the extent we have not specifically addressed any of H.R.'s arguments

it is because we have concluded that they are without sufficient merit and do not

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                       19
