          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Samuel Toney,                           :
                        Petitioner      :
                                        :
                  v.                    :   No. 2343 C.D. 2014
                                        :   SUBMITTED: June 19, 2015
Department of Human Services,           :
                      Respondent        :



BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                            FILED: August 25, 2015


            Samuel Toney (Toney) petitions for review, pro se, of an order of the
Chief Administrative Law Judge of the Bureau of Hearings and Appeals (Bureau)
of the Department of Human Services (DHS) that affirmed the decision of the
Administrative Law Judge (ALJ) to dismiss his appeal from a denial of his
application for medical assistance/long-term care (MA/LTC) benefits due to excess
resources. We affirm.
            In May 2014, Samuel Toney, then ninety-three years old and a
widower, moved into Christ the King Manor in DuBois, Pennsylvania. December
4, 2014 Adjudication, Findings of Fact (F.F.) Nos. 1 and 4. In June 2014, the
Clearfield County Assistance Office (CAO) received his financial eligibility
application for MA/LTC benefits, with a requested effective date of May 28, 2014.
Id., F.F. Nos. 5 and 6. In August 2014, the CAO denied Toney’s application due to
total countable resources in excess of the $2400 resource limit against which non-
excluded resources were considered for a single person in Toney’s classification.
55 Pa. Code § 178.12, Appendix A. Toney’s countable resources included First
Commonwealth Bank accounts jointly owned by Toney and his son, with a savings
account balance of $41,510.18 as of June 5, 2014. Id., F.F. No. 15. Determining
that the father could access the accounts without his son’s consent, the ALJ
affirmed the CAO’s determination that one-half of that amount belonged to the
father. Id., F.F. No. 17. The ALJ concluded, therefore, that Toney’s resources
exceeded the $2400 limit and affirmed the application’s denial. In August 2014,
Toney’s son, acting as his father’s representative, appealed.                   Following a
November 2014 telephonic hearing, the ALJ denied the appeal. The Chief ALJ
affirmed the ALJ’s decision and Toney’s petition for review followed.1
              The Medicaid program provides federal financial assistance to states
choosing to reimburse needy individuals for certain medical expenses. Godown v.
Dep’t of Pub. Welfare, 813 A.2d 954, 956 (Pa. Cmwlth. 2002).                              The
Commonwealth participates in the program and offers MA to pay for the LTC of
eligible individuals.     Assistance may be provided, however, only to persons
deemed to be “medically needy,” such that they do not have the income and
resources to meet necessary medical costs. In this regard, DHS is the payer of last
resort under the Commonwealth’s statutory scheme. 55 Pa. Code § 178.6(a). In



    1
      Although Toney signed the petition for review, his son acted as his representative before
this Court. His son also did so before the CAO and the ALJ.



                                              2
order for an individual to be eligible for MA/LTC benefits, therefore, his or her
resources cannot exceed the applicable resource limit.
             In seeking benefits, the applicant for MA bears the burden to verify
that his or her resources are not in excess of the applicable limit. See 55 Pa. Code
§§ 178.1(a) and 178.3. Until an applicant’s resources are reduced to an amount at
or below that limit, the applicant is ineligible for MA/LTC.       55 Pa. Code §
178.1(c). In pertinent part, a “resource” is defined as “[r]eal or personal property
which a person has or can make available for partial or total support, including
equitable interests and partial interests.” 55 Pa. Code § 178.2. Where ownership
of a resource is shared by an applicant and a non-applicant and the applicant has a
separate legal interest that can be disposed of without consent of the other owner,
the applicant’s share of the resource is presumed available.       55 Pa. Code §
178.4(e)(3). In accordance with a federal regulation, DHS’s policy is that, if it
cannot be determined how much each owner contributed to a particular account,
then each owner owns an equal share. See 20 C.F.R. § 416.1208(c) and Chapter
440.2 of DHS’s LTC Handbook.
             On appeal, Toney asserts that the initial information provided when he
became a resident of Christ the King Manor indicates that the resources in question
belonged to his son. In that regard, Toney maintains that the burden rested with
the agency to make additional inquiries regarding the original ownership of the
resources or to provide information disputing any initial information submitted.
As previously noted, however, the burden to verify the ownership of assets rests
with the applicant. Pursuant to 55 Pa. Code § 178.3: “Verification of ownership,
the value of resources and the disposition of resources is required of an
applicant/recipient or the person acting on his behalf . . . .”



                                            3
            Regarding ownership, the ALJ properly rejected the argument below
that DHS did not have a right to presume that the joint accounts were available to
Toney. Regarding the rebuttable presumption at issue, DHS’s regulation provides:
                  (e) The following rebuttable presumptions apply in
            determining the availability of both real and personal
            property resources:
                  ....
                         (3) If ownership is shared by persons who
            are applicants/recipients and a person who is not an
            applicant/recipient and if the applicants/recipients have a
            separate legal interest which can be disposed of without
            the    consent      of     the    other     owners,     the
            applicants’/recipients’ share of the resource is presumed
            available.
55 Pa. Code § 178.4(e)(3) (emphasis added). Regarding rebuttable presumptions
in general, the applicable regulation provides: “If the applicant/recipient presents
no evidence at the prehearing conference or a Departmental fair hearing to
disprove the presumption, the presumption remains unrebutted and stands.” 55 Pa.
Code § 178.2.
            In the present case, the ALJ rejected the son’s attempt to establish that
he contributed all of the money into the accounts at issue. In that regard, the son
maintained that, after he sold his house in 2005 in order to move to Connecticut, he
purchased a $100,000 CD to enable his father to live comfortably. The son alleged
that his father used the bulk of that money to maintain himself, with the
understanding that any money remaining from that CD after his father’s death
would revert to him. The ALJ, however, rejected the son’s testimony as self-
serving and not credible, concluding: “No credible evidence was presented to
explain why the sale of the house and the purchase of the CD occurred more than
one (1) year apart.” December 4, 2014 Adjudication at 9. Further, the ALJ found


                                         4
that the son presented no documentary evidence “that the proceeds from the sale of
his house were used to purchase the CD and the money from the CD was then used
to establish the [bank accounts at issue].” Id. In addition, noting that the son
presented no documentary evidence that he contributed any money to those
accounts during the period of May 6, 2013 to June 5, 2014, the ALJ found that
only Toney made contributions during that time period. As the statements from
that time period reflect: “[T]he only income deposited into the checking account,
other than [Toney’s] monthly income from SSA [social security] and VA
[veterans’] benefits, was $100 on January 16, 2014 and $200 on January 21, 2014,
both transfers from the savings account.”2 Id., F.F. No. 10.
              Accordingly, in light of the fact that no credible evidence was
presented to rebut the presumption that Toney’s share is presumed available to him
for purposes of determining the availability of resources for his partial or total
support, we conclude that the ALJ did not err in affirming the CAO’s decision
denying the application. Accordingly, we affirm.3




                                            _____________________________________
                                            BONNIE BRIGANCE LEADBETTER,
                                            Judge


    2
       Toney’s countable gross monthly income from SSA and VA benefits was $2,365.90.
December 4, 2014 Adjudication, F.F. No. 7.
     3
       As for Toney’s purported declaration, prepared for the above-captioned appeal and
attached as an addendum to the brief, we cannot consider items that are dehors the record. Rossi
v. Unemployment Comp. Bd. of Review, 675 A.2d 390, 392 (Pa Cmwlth. 1996). As DHS
observed on page nine of its brief: “[T]he hearing decision will be based solely on the
information presented at the hearing . . . .” See 55 Pa. Code § 275.4(g)(6). It is not for this
Court, on appeal, to act as the finder of fact.



                                               5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Samuel Toney,                         :
                      Petitioner      :
                                      :
                v.                    :     No. 2343 C.D. 2014
                                      :
Department of Human Services,         :
                      Respondent      :


                                   ORDER


           AND NOW, this 25th day of August, 2015, the order of the
Department of Human Services is hereby AFFIRMED.




                                    _____________________________________
                                    BONNIE BRIGANCE LEADBETTER,
                                    Judge
