A New Jersey appeals court recently determined that a Medicaid applicant is not entitled to a fair hearing to appeal the state’s assessment of a one-month penalty period because her representative waited more than three months after the decision to request the hearing. Talarico v. Department of Human Services, Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-2011-07T12011-07T1, Jan. 15, 2009).

Lorraine Talarico applied for Medicaid benefits in 2007 after spending down some $300,000 while living in a nursing home. Her son, Gene Talarico, served as her attorney-in-fact for purposes of the Medicaid application. When the county Division of Social Services reviewed the application, it discovered a $5,000 transfer from Mrs. Talarico to her son in February 2007. The Division assessed a one-month period of ineligibility based on the transfer, and advised Mr. Talarico in several letters during July that he had a right to appeal on behalf of his mother before August 16th. Mr. Talarico wrote the Division accepting its determination of the penalty period.

In November 2007, Mr. Talarico requested a fair hearing to review the penalty period. The Division denied Mr. Talarico’s request, explaining that he did not promptly file a request for a fair hearing as described in the July letter. Mr. Talarico appealed the denial, claiming that he was under duress from the nursing home when he acquiesced to the penalty period. He also claimed that he never received the Division’s letter notifying him of the time limit for filing an appeal.

The Superior Court of New Jersey, Appellate Division, affirmed the Division’s denial of the fair hearing, finding that Mr. Talarico’s appeal is without merit. The court pointed out that Mr. Talarico offered no evidence that he was having problems receiving his mail during July, and further found that he had not met the standard for proving that he was under duress. The court said that “there is nothing in the record to suggest that [Mr. Talarico’s] will was somehow overborne to the extent that he felt compelled to accept the penalty period on behalf of [his mother].”