A.S.’s nephew and power of attorney designated Senior Planning Services (“SPS”) as A.S.’s authorized representative for establishing Medicaid eligibility. In SPS filed a Medicaid application, which was denied for excess resources on December 10, 2012. After SPS filed a request for a fair hearing but before the fair hearing was scheduled, A.S. died, and SPS withdrew the fair hearing request.

After A.S.’s death, SPS filed a second application for Medicaid on A.S.’s behalf. SPS was notified on December 10, 2013 that A.S.’s eligibility would be subject to a transfer penalty period that extended beyond her date of death. SPS was advised that it could appeal the decision through a fair hearing request. However, SPS failed to request a fair hearing.

More than two years later, on August 6, 2015, the law firm of Schutjer Bogar LLC wrote to DMAHS, advising that it had been retained to represent A.S. “by her authorized representative,” and wished to appeal the December 2013 Medicaid eligibility decision. Schutjer Bogar argued that no estate had been opened for A.S. after hear death, so no one had authority to appeal the decision until a Chancery Division order was entered on July 17, 2015. That order was issued after a complaint was filed to appoint a Medicaid Authorized Representative, and the order appointed Kathy Granatelli of Dynamic Healthcare as Medicaid Authorized Representative.

Medicaid advised Schutjer Bogar that the request for a fair hearing was out of time. It noted that the December 2013 eligibility notice had been addressed to SPS, which was the same entity that withdrew A.S.’s appeal after hear death.

On further appeal to the Superior Court, Appellate Division, Schutjer Bogar acknowledged that SPS filed the 2012 Medicaid application, as well as the second application following A.S.’s death. Nevertheless, counsel claimed that the authorized representative form signed by D.F. as A.S.’s power of attorney did not name A.S. as the Medicaid applicant, so A.S. lacked an authorized representative at her death. It argued that it was “arbitrary, capricious and unreasonable” for Medicaid to treat the authorization form as complete and effective.

The appeals court rejected Schutjer Bogar’s argument, labeling it “spurious.” It found that the form, which was signed by A.S.’s nephew and attorney-in-fact, noted D.F.’s name and his relationship to A.S. The court found that the form was “plainly effective” to permit the designation of SPS as the authorized representative, and that “counsel implicitly concedes as much by purporting to appeal the decision SPS obtained on A.S.’s behalf in December 2013.” The Appellate Division affirmed Medicaid’s decision rejecting the attempted appeal as “grossly out of time.”

A copy of the April 5, 2018 decision in A.S. v. DMAHS can be found here – A.S. v. Division of Medical Assistance and Health Services

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