An application for Medicaid benefits was filed for S.H. by his authorized representative, G.G. On December 20, 2013, G.G. was advised that S.H. was found eligible for Medicaid as of January 12, 2014, but was subject to a penalty period as a result of a transfer for less than fair market value. G.G. was advised of the right to provide evidence to rebut the presumption that the transfer was for less than fair market value, and of the right to appeal the decision by requesting a fair hearing within 20 days. G.G. was also advised of the right to request a waiver of the Medicaid penalty based on hardship, within 20 days.

Eleven months later, in November 2014, counsel for the nursing home where S.H. resided requested a hardship waiver on S.H.’s behalf. In February 2015, after hearing no response from Medicaid, counsel for the nursing home wrote to Medicaid complaining that it had received no response to its hardship waiver request. Medicaid responded that the hardship request was well out of time, and also questioned whether the nursing home was authorized to act as S.H.’s representative.

Counsel for the nursing home replied on June 29, 2015, attaching an authorized representative form that S.H. had signed on June 6, 215. The nursing home requested a fair hearing as to the hardship waiver. That request was denied as untimely.

Upon further appeal to the Superior Court, Appellate Division, the nursing home’s position was rejected. Counsel for the nursing home argued that federal law permits nursing homes to submit hardship waiver requests on behalf of residents, and that Medicaid’s failure to respond to its November 2014 waiver request violated federal law. The Appellate Division rejected this argument as “without sufficient merit to warrant discussion in a written opinion.” It found that, although a nursing home may file a hardship waiver request with the consent of the resident, this does not relieve the nursing home of its obligation to comply with the time limits for doing so. It concluded that counsel for the nursing home “failed entirely” to address the failure to file a timely hardship waiver request or a fair hearing request. Medicaid’s determination was affirmed.

A copy of S.H. v. DMAHS can be found here – S.H. v. Division of Medical Assistance and Health Services

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