                                NOT FOR PUBLICATION WITHOUT THE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-4264-16T1

D.T.,

          Petitioner-Appellant,

v.

DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES,

     Respondent-Respondent.
____________________________

                    Submitted November 4, 2019 – Decided December 13, 2019

                    Before Judges Sabatino and Natali.

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

                    SB2, Inc., attorneys for appellant (Laurie M. Higgins,
                    on the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Arundhati Mohankumar, Deputy
                    Attorney General, on the brief).
PER CURIAM

      Petitioner, D.T., by his designated authorized representative (DAR), Sam

Stern of Future Care Consultants (FCC), appeals from the failure of respondent,

Division of Medical Assistance and Health Services (DMAHS), to respond

appropriately to his request for a hearing before the Office of Administrative

Law (OAL) to challenge a decision of the Union County Board of Social

Services (BSS) regarding his eligibility for Medicaid benefits. After conducting

a thorough review of the record in light of the arguments raised on appeal, we

remand for DMAHS to transfer the matter to the OAL.

      On March 1, 2017, BSS issued D.T. a statement of available income with

respect to his request for a redetermination of his Medicaid benefits. On March

10, 2017, counsel for FCC sent a letter to DMAHS appealing BSS's available

income determination, "request[ing] that [the] matter be set down for a fair

hearing as soon as is practicable," and enclosing a copy of D.T.'s DAR form.

On March 22, 2017, DMAHS responded to D.T.'s request for a fair hearing by

sending a letter to counsel for FCC requesting a "complete copy of the [DAR]

[f]orm" within thirty days. On appeal, FCC maintains that its counsel sent a

second copy of a completed DAR form to DMAHS a week later, on March 29,




                                                                        A-4264-16T1
                                       2
2017. DMAHS never responded to counsel's request for a fair hearing. A month

later, in April 2017, D.T. passed away.

        On October 12, 2018, after this appeal was filed, counsel for DMAHS

requested, because of D.T.'s death, "a [DAR] form or other documentation

indicating that D.T's estate has authorized [FCC's counsel] to represent [it] in

this appeal." Counsel further advised that upon receipt, DMAHS "has agreed to

consider transmitting the matter to the [OAL] for a fair hearing." Counsel for

FCC responded that to FCC's knowledge, an estate had not been established and

that "estates are frequently not opened for individuals with little income and

limited or no assets." Counsel also disagreed that Medicaid regulations required

that D.T.'s estate execute a new DAR form.

        On appeal, D.T. claims that due to DMAHS's failure to grant or deny his

request for a fair hearing, we should order it to "follow D.T.'s position in relation

to the [s]tatement of [a]vailable [i]ncome calculated by [BSS]," or direct that his

appeal regarding BSS's income eligibility determination be transmitted to the

OAL. DMAHS, for the first time on appeal, argues that in accordance with 42

C.F.R. § 435.923(c) 1 and state law, it reasonably declined to transmit D.T.'s


1
    42 C.F.R. § 435.923(c) provides in relevant part that the:

                                                                        (continued)
                                                                             A-4264-16T1
                                          3
request for a fair hearing because "when D.T. passed away in early 2017, FCC's

authority to act as his DAR terminated" and FCC is not the personal

representative of D.T.'s estate.

       D.T. responds by asserting that under a separate Medicaid regulation, 42

C.F.R. § 400.2032 and related Medicare regulations, D.T. remains a Medicaid

"applicant" and, accordingly, the OAL is required to schedule a fair hearing.

D.T. further maintains that in accordance with the doctrine of in pari materia we



             power to act as an authorized representative is valid
             until the applicant or beneficiary modifies the
             authorization or notifies the agency that the
             representative is no longer authorized to act on his or
             her behalf, or the authorized representative informs the
             agency that he or she no longer is acting in such
             capacity, or there is a change in the legal authority upon
             which the individual or organization's authority was
             based.

[(emphasis added).]
2
    42 C.F.R. § 400.203 defines a Medicaid applicant as:

             an individual whose written application for Medicaid
             has been submitted to the agency determining Medicaid
             eligibility, but has not received final action. This
             includes an individual (who need not be alive at the
             time of application) whose application is submitted
             through a representative or a person acting responsibly
             for the individual.

[(emphasis added).]
                                                                          A-4264-16T1
                                         4
should read "42 C.F.R. § 400.203 and 42 C.F.R. § 435.923 as a unified and

harmonious whole" so as to permit FCC to prosecute D.T.'s application before

the OAL without requiring FCC to petition the probate court to become a

representative of D.T.'s estate.

      The New Jersey Medical Assistance and Health Services Act, N.J.S.A.

30:4D-1 to -19.5, provides the authority for New Jersey's participation in the

federal Medicaid program. The DMAHS is the administrative agency within the

Department of Human Services that is charged with administering the Medicaid

program. N.J.S.A. 30:4D-7. In this regard, the DMAHS has the authority to

oversee all State Medicaid programs and issue "all necessary rules and

regulations." Ibid.

      Under applicable state and federal regulations, if an "applicant" is denied

Medicaid benefits, the "applicant . . . [is] to be afforded the opportunity for a

fair hearing in the manner established by the policies and procedures set forth

in N.J.A.C. 10:49-10 and 10:69-6." N.J.A.C. 10:71-8.4(a); 42 C.F.R. § 431.220.

Applicants have the right to fair hearings when "their claims . . . are denied or

are not acted upon with reasonable promptness . . . ." N.J.A.C. 10:49-10.3(b);

42 C.F.R. § 431.220(a)(1). Requests for fair hearings must be submitted to

DMAHS in writing within twenty days of the denial, reduction, or partial denial


                                                                         A-4264-16T1
                                       5
of Medicaid benefits.      N.J.A.C. 10:49-10.3(b)(1) and (3); 42 C.F.R. §

431.221(d).   According to D.T., a fair hearing can only be denied if "the

applicant withdraws the request in writing, or if the applicant fails to appear at

a scheduled hearing without good cause." See 41 C.F.R. § 431.223.

      DMAHS argues that "[o]nly the personal representative of D.T.'s estate

may pursue any claims that D.T. may have had prior to his death," and that FCC

did not have standing to pursue a claim that DMAHS improperly denied D.T. a

Medicaid hearing, as FCC was not "identified to DMAHS as the administrator

or executor of D.T.'s estate." We conclude that DMAHS shall transfer the matter

to the OAL for it to address that standing claim, and if FCC is successful, the

merits of the dispute related to the BSS's March 1, 2017 income eligibility

calculations at a fair hearing conducted consistent with fundamental notions of

due process. A remand will permit DMAHS to exercise its "special competence"

and address in the first instance whether FCC is an applicant with standing, after

considering 42 C.F.R. § 400.203, 42 C.F.R. § 435.923(c), and the related

Medicare regulations cited by D.T. See Muise v. GPU, Inc., 332 N.J. Super.

140, 158, (App. Div. 2000) (quoting Daaleman v. Elizabethtown Gas Co., 77

N.J. 267, 269 n.1 (1978)). At that hearing, the OAL should also address the

effect of FCC's initial request for a fair hearing on March 10, 2017, which was


                                                                          A-4264-16T1
                                        6
made prior to D.T.'s death and at a time when he unequivocally authorized FCC

to act on his behalf.

      If the OAL determines FCC has standing, it should address D.T.'s claims

on the merits. In the event FCC is deemed not to have standing, the OAL should

also determine whether D.T.'s estate should be permitted, under the

circumstances, to identify a new DAR for the purposes of prosecuting D.T.'s

claim at a fair hearing. The OAL's ruling may be reviewed or challenged before

the agency, and ultimately by this court if further review is sought.

      Accordingly, we remand for DMAHS to transfer the matter to the OAL

for proceedings consistent with this opinion. We do not retain jurisdiction.




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