                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                Assigned On Briefs April 26, 2012

  ALENE S. NEAL v. THE STATE OF TENNESSEE, DEPARTMENT OF
                       HUMAN SERVICES

                 Direct Appeal from the Chancery Court for Shelby County
                    No. CH-10-09863      Kenny Armstrong, Chancellor


                     No. W2011-01123-COA-R3-CV - Filed May 16, 2012


The Department of Human Services determined that Plaintiff’s available resources exceeded
the resource limit for purposes of Medicaid benefits in the Qualified Medicare Beneficiary
category. The trial court affirmed the Department’s determination. We affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
                                  and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Alene S. Neal, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter and Shayna Abrams, Senior Counsel,
for the appellee, The State of Tennessee, Department of Human Services.

                                   MEMORANDUM OPINION 1

      This dispute concerns the denial by the Department of Human Services (“the
Department”) of Plaintiff Alene S. Neal’s (Ms. Neal) July 29, 2009 recertification application

       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
for Medicaid benefits in the Qualified Medicare Beneficiary (“QMB”) category. The
Department denied Ms. Neal’s application upon determining that her available resources in
the amount of $4,039 exceeded the resource limit of $4,000. Ms. Neal’s QMB coverage was
terminated in August 2009. Ms. Neal appealed the determination.

       The matter was heard before a Department Hearing Officer in January 2010. In
March 2010, the Hearing Officer issued an initial administrative order upholding the
Department’s determination and Ms. Neal filed an appeal. The Assistant Commissioner
upheld the determination and issued a final administrative order in April 2010. Ms. Neal’s
application for reconsideration was denied, and Ms. Neal filed a petition for review in the
Chancery Court for Shelby County. Following a hearing in March 2011, the chancery court
found that, based on the bank statements submitted into evidence, Ms. Neal had resources
in excess of $4,000. The chancery court found that Ms. Neal’s resources therefore exceeded
the resource limit of 200 percent of Supplemental Security Income (“SSI”), or $4,000. The
chancery court determined that substantial and material evidence supported the Department’s
denial of Ms. Neal’s application and entered final judgment in the matter on April 19, 2011.
Ms. Neal filed a timely notice of appeal to this Court.

                                       Issue Presented

      The issue presented by Ms. Neal, as we perceive it, is whether the trial court erred by
determining that the Department’s determination was supported by substantial and material
evidence.

                                    Standard of Review

       We review the trial court’s findings of fact with a presumption of correctness unless
the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Accordingly, we will not
reverse the trial court’s factual findings unless they are contrary to the preponderance of the
evidence. We review the trial court’s conclusions on matters of law de novo, however, with
no presumption of correctness. Tidwell v. Memphis, 193 S.W.3d 555, 559 (Tenn. 2006). Our
review of a trial court’s application of the law to the facts is de novo, with no presumption
of correctness. State v. Ingram, 331 S.W.3d 746, 755 (Tenn. 2011).

      Review pursuant to the Uniform Administrative Procedures Act (“UAPA”) is
governed by Tennessee Code Annotated § 4–5–322(h) (2011). Pittman v. City of Memphis,
360 S.W.3d 382, 386 (Tenn. Ct. App. 2011)(citing Tidwell v. City of Memphis, 193 S.W.3d
555 (Tenn. 2006)). Pursuant to the UAPA:




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       The court may affirm the decision of the agency or remand the case for further
       proceedings. The court may reverse or modify the decision if the rights of the
       petitioner have been prejudiced because the administrative findings,
       inferences, conclusions or decisions are:
               (1) In violation of constitutional or statutory provisions;
               (2) In excess of the statutory authority of the agency;
               (3) Made upon unlawful procedure;
               (4) Arbitrary or capricious or characterized by abuse of discretion or
       clearly unwarranted exercise of discretion; or
               (5)(A) Unsupported by evidence which is both substantial and material
       in the light of the entire record.
               (B) In determining the substantiality of evidence, the court shall take
       into account whatever in the record fairly detracts from its weight, but the
       court shall not substitute its judgment for that of the agency as to the weight
       of the evidence on questions of fact.

Tennessee Code Annotated § 4–5–322(h) (2011). We are confined to the same scope of
review on appeal. Id. at 387.

                                          Discussion

       It is undisputed in this case that Ms. Neal is not eligible for Medicaid in the QMB
category if her non-exempt resources exceed $4,000. The trial court found that Ms. Neal’s
nonexempt resources exceeded this limit based on bank statements for four accounts showing
balances in the amount of $2,218.83; $57.74; 1,763.12; and $3,457.95. The trial court further
found that an additional account balance was “not available” and excluded the account from
the resource calculation. The trial court found that the Department had determined that,
based on three of the accounts, Ms. Neal’s resources totaled $4,039 and, therefore, exceeded
the $4,000 limit.

         In her brief to this Court, Ms. Neal does not dispute that the bank statements submitted
into evidence indicate resources in excess of $7,000. Rather, her argument, as we understand
it, is that the Department and the trial court erred by including federal stimulus payments
when determining the amount of resources available to her. Ms. Neal cites no law to support
her assertion, however. Ms. Neal does not indicate in her brief, moreover, the amount of
income which the Department and the trial court allegedly erroneously included in the
calculation of resources available to her. She cites to no facts in the record to support her
assertions of error.

       The Department, on the other hand, asserts that Ms. Neal applied for Medicaid

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benefits on July 29, 2009, more than one year after receiving a stimulus payment on July 5,
2008. The Department further asserts that Ms. Neal presented no proof concerning a 2009
stimulus payment other than stating that she received $250 in 2009. The Department
contends that Ms. Neal, who was represented by an attorney in the proceedings before the
Department, failed to establish that the alleged $250 payment qualified as an income tax
refund, rebate, or earned income tax credit for the purpose of calculating her available
resources for the purpose of determining her QMB eligibility. Upon review of the record,
we cannot say that the Department’s determination is unsupported by substantial and material
evidence, that it is characterized by an abuse of discretion, or that it is a clear error.

                                         Holding

       In light of the foregoing, the judgment of the trial court is affirmed. Costs of this
appeal are taxed to the Appellant, Alene S. Neal.




                                                  _________________________________
                                                  DAVID R. FARMER, JUDGE




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