                                NOT FOR PUBLICATION WITHOUT THE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-3643-17T4

J.G.,

          Petitioner-Appellant,

v.

DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES,

     Respondent-Respondent.
_____________________________

                    Submitted April 30, 2019 – Decided May 13, 2019

                    Before Judges Hoffman and Enright.

                    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; Jacqueline R. D'Alessandro,
                    Deputy Attorney General, on the brief).
PER CURIAM

      Petitioner, J.G., by his designated authorized representative (DAR), appeals

from the failure of respondent, Division of Medical Assistance and Health Services

(the Division), to respond to his request for a hearing before the Office of

Administrative Law (OAL). J.G.'s DAR seeks an OAL hearing to challenge a

decision of the Essex County Division of Family Assistance and Benefits denying

J.G. Medicaid benefits.      The county welfare agency denied J.G.'s request for

Medicaid benefits, concluding he was ineligible as he died before eligibility could

be met. After conducting a thorough review of the record in light of the arguments

raised on appeal, we remand for the Division to transfer the matter to the OAL for a

hearing.

      J.G. passed away four months before the denial of his Medicaid application.

His DAR, Future Care Consultants (FCC), submitted a timely appeal for a fair

hearing. The Division refused to transmit the appeal until a representative was

authorized by J.G.'s estate. When that did not occur, the Division denied the fair

hearing request. The Division maintains it had no obligation to afford FCC a hearing

because FCC's DAR extinguished upon J.G.'s death and FCC is not the personal

representative of J.G.'s estate.




                                                                            A-3643-17T4
                                         2
      J.G. responds by asserting that under a separate Medicaid regulation, 42

C.F.R. § 400.203, and related Medicare regulations, J.G. remains a

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

hearing. J.G. further maintains that in accordance with the doctrine of in pari

materia, we 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 J.G.'s

application before the OAL, without requiring FCC to separately petition a court

to become a representative of J.G.'s estate. Notably, J.G. was indigent when he

passed away. Therefore, petitioner contends if J.G. does not qualify for Medicaid

benefits, his former nursing home facility will not be reimbursed for services it

provided to J.G.

      The Division 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 Division 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.


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                                       3
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 the

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

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

431.221(d). According to J.G., 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 42 C.F.R. § 431.223.

      The Division argues it failed to schedule a fair hearing because FCC

"lacked authorization from J.G.'s estate" to pursue that hearing. We interpret

this position as a claim that FCC did not have standing, and therefore, had no

right to request a hearing, as N.J.A.C. 10:71-8.4 permits fair hearings only for

an "applicant." See also 42 C.F.R. § 431.221. We conclude that the Division

shall transfer the matter to the OAL for it to address that standing claim. A

hearing will permit the Division 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 J.G. See Muise v. GPU, Inc., 332 N.J. Super. 140, 158




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                                         4
(App. Div. 2000) (quoting Daaleman v. Elizabethtown Gas Co., 77 N.J. 267,

269 n.1 (1978)).

      If the OAL determines FCC has standing, the merits of the dispute related

to the county welfare agency's denial of benefits to J.G. should be considered at

a fair hearing conducted consistent with fundamental notions of due process. In

the event FCC is deemed not to have standing, the OAL should also determine

whether J.G.'s estate should be permitted, under the circumstances, to identify a

new DAR for the purpose of prosecuting J.G.'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 the

Division to transfer the matter for a hearing before the OAL. We do not retain

jurisdiction.




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