The 17th Annual Elder Law Retreat, presented by the New Jersey State Bar Association Elder and Disability Law Section, was held on April 21 – 23, 2015 in Philadelphia, PA. At least two significant events occurred at the Retreat this year. First, I was presented with a Lifetime Achievement Award, recognizing my “advocacy in elder and disability law, including a number of precedent-setting legal victories which advanced the rights of seniors and persons with disabilities.” I was surprised, and very grateful to be selected for this honor. Second, and most relevant for the present blog post, the annual roundup of the “Top 10” New Jersey elder law and special needs planning cases decided in 2014 was presented. This year not ten (10), but sixteen (16) top cases were presented. I’m happy to report that two of my cases, Saccone v. Police and Firemen’s Retirement System and Galletta v. Velezwere included in the top 10 list. I’ve summarized the top cases for readers of this blog below. Each hyper-linked case name takes the reader either to a copy of the opinion, or to an article on my blog about the case.


1.     In Saccone v. Police and Firemen’s Retirement System, Docket No. A-49-071841 (September 11, 2014), the New Jersey Supreme Court ruled that the disabled child of a retired fireman may have his survivors’ benefits paid into a special needs trust rather than directly to the child, thereby allowing the child to maintain eligibility for Medicaid and other public benefits based on financial need.

For six years, my law firm represented Thomas Saccone, a retired Newark, NJ firefighter with a severely disabled adult child named Anthony. Anthony lives with his parents, is unable to work, has been found to be totally disabled by the Social Security Administration, and for many years has received Supplemental Security Income (SSI) and Medicaid, public benefits based on financial need. Eligibility for these public benefits are critical in providing for Anthony’s care.

After he retired, Tom was approved for benefits from the Police and Firemen’s Retirement System (“PFRS”). In order to structure his estate plan to provide for Anthony after his death without jeopardizing Anthony’s eligibility for needs-based public benefits, Tom executed a Last Will and Testament containing a testamentary special needs trust (“SNT”).

A Special Needs Trust is a trust designed to preserve the trust beneficiary’s eligibility for government benefits based upon financial need, such as Medicaid and SSI benefits. These needs-based programs are often vital for the beneficiary of SNT, who is an individual with a disability.

Tom asked the PFRS to pay the survivor benefits to which Anthony would be entitled upon Tom’s death to the testamentary SNT established under Tom’s will in order to protect Anthony’s eligibility for public benefits. Those death benefits included the payment of pension benefits to the retired member’s widow/er and children (the “pension death benefit”).

The PFRS denied the request based on a pension statute which prohibits a retiree from designating a primary or a contingent beneficiary for the receipt of the retiree’s pension death benefits in the event of the retiree’s death.

Thereafter, we appealed the PFRS decision administratively to the Division of Pensions and Benefits, which affirmed the denial, and then to the Appellate Division of New Jersey’s Superior Court, which affirmed the Division’s decision. On Petition for Certification, the New Jersey Supreme Court “summarily reversed” the Appellate Division, and remanded the matter back to the PFRS to decide the case on the merits.

On remand, the administrative agencies again denied Tom’s request, concluding that Tom could not designate a special needs trust as a beneficiary of his pension death benefits. Tom filed a second Notice of Appeal. The Appellate Division of New Jersey’s Superior Court again affirmed the administrative denials. The appeals court concluded that the Board did not violate public policy in denying Tom’s application.

I again filed a Petition for Certification to the New Jersey Supreme Court, which was again granted. Thereafter, the Supreme Court permitted four organizations to file amicus curiae, or friend of the Court, briefs. The organizations were: the National Academy of Elder Law Attorneys, the Special Needs Alliance, the National Academy of Elder Law Attorneys – New Jersey Chapter, and the Guardianship Association of New Jersey, Inc.

Oral argument was held before the New Jersey Supreme Court on February 4, 2014. The four amicus counsel and I argued that the Supreme Court should extend a right to retired public employees with disabled children to pay a retiree’s pension death benefit to a special needs trust for the retiree’s disabled child rather than directly to the child in order to maintain the child’s eligibility for needs-based public benefits.

The Supreme Court issued its decision on September 11, 2014. As we hoped, the Court reversed the decisions by the lower courts and administrative agencies, holding that “the disabled son of a retired [PFRS] member … may have his survivors’ benefits paid into a first-party … SNT created for him under 42 U.S.C.A. §1396p(d)(4)(A).”


2.     In Galletta v. Velez, Civil No. 13-532 (D.N.J. June 3, 2014), Hon. Robert B. Kugler, United States District Judge for the District of New Jersey, reversed a denial of an application for Medicaid benefits by ruling that a pension benefit from the Department of Veterans Affairs (“DVA”) may not be counted as income for the purposes of any Medicaid program to the extent that the DVA benefit results from “unusual medical expenses.”

Plaintiff, a 93 year old resident of an assisted living facility in New Jersey, applied for Medicaid benefits under the Global Options for Long Term Care program (the “GO” program) operated by the New Jersey Department of Human Services (“DHS”). The GO program is the only Medicaid-funded program in New Jersey that covers assisted living costs. Plaintiff’s application was denied because local county welfare agency, the Monmouth County Division of Social Services (“MCDSS”) determined that her monthly income of $2,594.00 exceeded the maximum income limit at which an applicant can still be eligible for benefits under the GO program, which is $2,130.00 per month. Specifically, MCDSS included as “countable income” benefits of $696.00 per month that plaintiff received from the Veterans Administration Improved Pension program (the “VAIP”). The VAIP is administered by the DVA. If the VAIP benefits were excluded as “countable income,” plaintiff’s income would be below the income limit for the GO program, and she would have been granted the Medicaid benefits she sought.

Due to the denial of Medicaid benefits under the GO program, the monthly amount being paid to the assisted living facility by plaintiff did not cover her assisted living costs in full. As a result, the facility issued a notice to plaintiff in April 2014 indicating that she would be evicted in 30 days if the outstanding balance was not paid. At that time, the facility was owed $21,439.29.

On May 2, 2014, plaintiff filed a petition in federal district court for a preliminary injunction seeking emergency relief to prevent her eviction against Jennifer Velez, Commissioner of the New Jersey Department of Human Services (“DHS”), Valerie Harr, Director of the New Jersey Division of Medical Assistance and Health Services (“DMAHS”), DHS and MCDSS. In the petition, plaintiff indicated that she would be evicted from her assisted living facility if she was not granted eligibility under the GO program. On May 7, the Court held a hearing on the application, and converted the injunction application into a motion for summary judgment. Defendants filed a motion to dismiss.

The federal court found, based on federal and state regulations, that a VAIP pension “resulting from unusual medical expenses” may not be counted as income for the purposes of any Medicaid program. The court then analyzed the basis for the plaintiff’s VAIP award as set forth in the DVA’s award letter and determined that plaintiff was eligible for VAIP pension benefits only because of unusual medical expenses. As a result, the court held the entire VAIP benefit was not “countable income” in determining Medicaid eligibility under the GO program.

The Court recognized, and rejected, defendants’ argument that they properly excluded the portion of plaintiff’s VAIP award that the DVA characterized as attributable to “aid and attendance” from countable income, but correctly counted the remainder of the VAIP award as income.

As a result of its ruling, the court ordered the defendants to re-determine plaintiff’s eligibility for the GO program, and to exclude the entire amount of plaintiff’s VAIP benefit in the calculation of her countable income.


3.     R.M. v. DMAHS & Burlington County Board of Social Services, OAL DKT. NO HMA 7521-2014; Final Agency Decision, October 1, 2014. In 2005, Mom entered into a 10 year lease with her daughter for a condominium. As a condition of the lease, mom agreed to pay for all interior damage to the condo resulting from mom’s heavy smoking. · Within the 10 year lease term, Mom entered a nursing home. Thereafter, the daughter repaired the condo, expending $14,463.84 to remove the smoke odor from the walls, replace carpet and repair damage from water heater leaks. Daughter takes $11,000 from mom to pay herself back for the damage to the condo. Mom applied for Medicaid and Burlington County assessed a penalty of one month and nine days. Mom appealed. At the Fair Hearing, the administrative law judge (ALJ) reversed the penalty as the funds transfer was not to qualify for Medicaid but to pay for repairs as stated in the lease. The Director of the Division of Medical Assistance and Health Services (DMAHS) agreed with the ALJ, stating that the transfer of $11,000 was for a purpose other than to qualify for Medicaid.

4.     I.B. v. DMAHS & Bergen County Board of Social Services, OAL DKT. NO. HMA 4619-2014; Final Agency Decision, November 3, 2014. Petitioner entered the nursing home in April 2013 and died on August 24, 2014. While she was a nursing home resident, petitioner applied for Medicaid. At the time of application the County Board of Social Services imposed a penalty for petitioner’s transfer of $24,500 in assets. Petitioner appealed. At Fair Hearing, petitioner rebutted the presumption that the transfers were made in contemplation of applying for Medicaid. Petitioner proved that her children were suffering a variety of medical and personal problems during the applicable period and she always provided financial assistance to her children during medical and personal tragedies. The wife of petitioner’s son was diagnosed with early Alzheimer’s disease in her 50’s and he needed money to help with her care. Petitioner’s daughter needed funds to retain a lawyer to divorce her physically abusive husband. Another daughter needed money after losing her job. Petitioner also gave $2,000 to her sister after the sister was diagnosed with pancreatic cancer. The ALJ ruled in petitioner’s favor, and the Director of Medicaid agreed with the ALJ decision.


5.     J.P. v. DMAHS, 2014 N.J. Super. Unpub. Lexis 1367 (App. Div. June 11, 2014) The Director of the Division of Medical Assistance and Health Services (DMAHS) had reversed an ALJ and found that transfers were gifts, not reimbursements of nursing services and repayment of loans.

The Superior Court, Appellate Division affirmed, commending the Director for “carefully considering” the evidence. The court downplayed the deference owed to an ALJ, and emphasized the deference owed to the Medicaid Director: “We owe substantial deference to the decisions of the administrative agency, not the findings of an ALJ,” and an ALJ is given special deference “only regarding credibility determinations made based on live testimony.”


6.     J.R. v. DMAHS and Division of Disability Services, OAL DKT. NO. HMA 2179-14; Final Agency Decision, August 18, 2014. Petitioner suffered from tics and seizures which were controlled by medication. After an in-home assessment by a nurse and fact finding by the ALJ, it was determined that personal care attendant (PCA) services were not required. As a result, petitioner’s PCA services were terminated. The Director affirmed the ALJ’s decision to terminate PCA services, finding that PCA services are to be used only for specific health related tasks, not to provide supervision or monitoring in case a particular condition occurs.

7.     D.W. v. DMAHS and DIVISION OF DISABILITIES, Appellate Division Docket No. A-0384-13T4, Decided December 15, 2014 (Unpublished). Plaintiff, D.W., is a 48 year-old woman with Down’s Syndrome and the mental capacity of a 4-year-old. She requires care 24 hours per day, 7 days per week. She resides with her sister who works full-time.

D.W. participates in the Personal Preference Program (PPP) administered by DMAHS. In 2009, D.W. was approved for a monthly cash grant covering 40 hours per week of PCA services. D.W.’s participation in the PPP program was reassessed in September 2012, and then again in early 2013. As a result, the 40 hours per week in Personal Care Assistant services granted in 2009 was reduced to 25 hours per week. A notice of reduction was issued, and D.W. appealed, requesting a hearing in order to challenge the reduction.

After the hearing, the administrative law judge (ALJ) concluded that D.W.’s deteriorating medical condition militated against a reduction in benefits. DMAHS took exception to the ALJ’s decision and appealed to the Director of DMAHS, who ultimately issued a final agency decision concluding that 25 hours per week of Personal Care Assistant services was medically necessary and appropriate. D.W. appealed the final agency decision to the Superior Court of New Jersey, Appellate Division.

The Court found that the Director’s decision could not logically be sustained in the absence of an explanation of how a reduction of PCA services was warranted where it was undisputed that D.W.’s medical condition had deteriorated since 2009 when the DMAHS had determined that she needed 40-hours per week of support. Accordingly, the Director’s decision was vacated and the matter was remanded for reconsideration.


8.     R.L.W. v. DMAHS and Ocean County Board of Social Services, OAL DKT NO. HMA8511-2010; Final Agency Decision, January 22, 2015. Petitioner was eligible for Medicaid since February 2010. Under Medicaid rules designed to prevent spousal impoverishment, petitioner’s wife, who is referred to as the community spouse,  was entitled to a minimum monthly maintenance needs allowance (MMMNA) of $2,886.21, including $2,804.68 of her own income and $81.53 from petitioner’s income. However, due to family circumstances, petitioner and his wife sought an increase in the MMMNA for the wife. Not only has petitioner been afflicted with Huntington’s disease since his early forties, but his juvenile daughter also suffers from the condition as well. As a result, additional costs were incurred by the family including electrical repairs to maintain daughter’s life support, and specialized care for daughter’s condition. Under 42 USC 1396r-5(e)(2)(B), additional income is allocated to the community spouse when there is a showing of “exceptional circumstances resulting in financial distress.” To meet the “exceptional circumstances” threshold, the Director found that exceptional circumstances are not “every day expenses” but rather are exemplified by medical bills, home repair bills for significant structural problems, or credit card arrears that are related to the medical problem. As a result, the Director accepted the exceptional circumstance standard in this case, but stated that the MMMNA must be reevaluated in at the redetermination. At that time the MMNA must be calculated in accordance with the current regulations. Petitioner can appeal that determination at that time.


9.     Manahawkin Convalescent v. O’Neil, 217 N.J. 99 (2014). A nursing home resident’s adult child who signs an admission agreement as the “Responsible Party” can be sued in his/her individual capacity for services rendered to the resident, if the adult child fails to use the resident’s financial resources to pay for care provided by the facility.


10.     In re Estate of Klausner, 2014 N.J. Super. Unpub. LEXIS 1517 (App. Div. June 23, 2014) involved Gerald Klausner, who was appointed executor of his late uncle’s estate, and Gerald’s brother Ronald, who was one of the beneficiaries of the estate. Following his appointment as executor, Gerald discovered transactions that he believed demonstrated that Ronald had misappropriated certain of the uncle’s assets. Gerald confronted Ronald, and told him that it would constitute an offset against his inheritance. According to Gerald, Ronald made no protest. Ronald executed a release and refunding bond in 2005, which released Gerald from all claims as a result of Ronald receiving $75,000 (his full share of the estate). Almost five years later, Ronald filed a verified complaint seeing an accounting and his allegedly unpaid $75,000 share of the estate.

Gerald claimed the suit was barred by the doctrine of laches, which bars claims that could have been brought earlier, if the delay was not excusable and resulted in prejudice to the defending party. The court agreed that the doctrine of laches barred the claim, noting that the delay prejudiced Gerald, who had discarded estate documents on the belief that the estate was concluded, and who was now in failing health. Ronald appealed, arguing that the 6-year statute of limitations, rather than the doctrine of laches, applied to the case.

The Appellate Division affirmed the probate court dismissal, agreeing that the statute of limitations, which applies to “recovery upon a contractual claim or liability,” was inapplicable, and that the equitable doctrine of laches justified dismissal.


11.     In the Matter of the Estate of Clare M. McCrink, Deceased. Appellate Division, Docket No. A-2977-13T2, Decided January 12, 2015, (Unpublished). Decedent died in November 2011. At that time, the executrix, one of the decedent’s 6 surviving children, still resided in the decedent’s home. The decedent’s Last Will and Testament allowed the executrix to remain in the home after the decedent’s death until the home is sold, with the estate responsible for taxes and maintenance costs until sale. The Will gave any of the decedent’s children the right of first refusal to purchase the home for fair market value. If none of the children wanted to purchase the home, the home was then to be sold. The executrix failed to follow the terms of the Last Will and Testament and list the property for sale. In May 2013, two siblings filed a claim seeking to compel the sale of the property. In June 2013, the court ordered the executrix to list the property for sale within 10 days. The home was listed for $330,000. By September 2013, the price was reduced with court approval to $300,000. and then $270,000. In January 2014, with the executrix still living in the home, the court found that the executrix unreasonably delayed selling the home and was in a conflicted situation, living in the house, not paying rent while still responsible to sell it. The court mandated that the executrix pay the carrying costs on the property from January 1, 2013 forward. Upon appeal, the Appellate Division affirmed, holding that an executor “may be liable for loss if he retains [assets of the estate] beyond a reasonable time for sale.”


12.     Estate of Peter J. Finnegan, Deceased v. Michael Finnegan, Appellate Division, Docket No. A-1589-13T2, Decided January 12, 2015 (Unpublished). Father loaned his son $100,000 at 6.5% interest in July 2001. Son stopped making payments in 2009. Son still owed $74,071.86 when he stopped paying. Son claimed that Dad forgave the loan. By 2009, Dad’s health had declined. Daughter was Dad’s power of attorney (POA) for Dad. Dad kept meticulous records including the loan payments and reported the interest from the loan on his tax return. Dad’s attorney denied that Dad forgave the loan and that, instead, Son defaulted. Dad’s attorney filed a complaint against son. Son never filed an answer. Son’s attorney filed a motion to dismiss for failure to state a claim, arguing that the loan was forgiven. As evidence, Son’s attorney provided a stipulation of dismissal that Dad allegedly “signed” on February 20, 2012. No explanation was provided as to how the stipulation was procured. The witness to the document could not be ascertained by the signature and Son’s attorney rejected the demand to provide the name of the witness. In response, POA submitted a certification from Dad’s treating physician stating that he had examined Dad on February 14, 2012 (6 days before the stipulation of dismissal was signed) and that Dad’s cognitive abilities were severely compromised. Judge denied Son’s motion, finding factual disputes at issue concerning the validity of the stipulation and allowed son to depose dad and have him evaluated for competency. Dad died on June 25, 2012 and was never deposed or examined. Complaint was dismissed. Estate attorney refiled an amended verified complaint against Son and claimed that the amount owed has grown to $92,436.32. Son’s attorney filed a second motion to dismiss, again arguing the loan was forgiven. The judge again denied the motion. The case settled. Pursuant to the settlement, Son acknowledged the loan by agreeing to pay the estate $60,000 to satisfy the loan. 9 days after settling, Son’s attorney filed a motion for frivolous litigation against the estate attorney, arguing that the litigation was pursued in bad faith knowing that the loan had been forgiven. In response the estate attorney filed a cross-motion against Son’s attorney. Judge found that the litigation was not frivolous and dismissed the son’s motion, but kept in play the cross motion. He also found that the Son’s motion was frivolous and brought in bad faith because the settlement terms acknowledged the loan. and required Son to repay the loan. Judge also ordered Son’s attorney to pay attorney’s fees and costs in the amount of $2,000 to each attorney. Son appealed. The Appellate Division affirmed, saying that an attorney may be sanctioned for asserting frivolous claims on behalf of a client. Imposition of sanctions occurs when the attorney files a pleading or a motion with “an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”


13.     In the Matter of the Estate of Jeanette Vendola, Appellate Division,  Docket No. A-0304-13T2, Decided September 4, 2014 (Unpublished). Stepmother wanted stepdaughter to be the beneficiary of her estate. An attorney was contacted to prepare a will leaving everything to stepdaughter. He prepared the will and stepmother died. She never saw or read the will and a copy was never sent to her. Stepdaughter and her husband brought suit seeking to probate the unsigned will. Various defendants who would share from the stepmother’s intestate estate answered and counterclaimed. Plaintiffs brought a summary judgment motion. Trial judge would not allow the will to be admitted to probate. Plaintiffs appealed, seeking to probate the unsigned will. The Appellate Division affirmed, holding that there was insufficient basis for admission of the draft will to probate. For a writing to be admitted into probate, it must be proven by clear and convincing evidence that (1) the decedent actually reviewed the document in question and (2) thereafter gave his or her final assent to it. The court refused to admit the unsigned, unseen, un-reviewed will to probate.


14.     Matter of S.H., An Alleged Incapacitated Person was a contested guardianship litigation centering on who should be appointed guardian for S.H., a twenty-eight year old incapacitated woman. S.H. had lived with her mother, who “dutifully and selflessly cared for” S.H. her entire life. However, S.H.’s sister opposed their mother’s appointment , based upon the actions of the mother’s live-in boyfriend. The sister sought to be appointed guardian for S.H., and this application was supported by the mother’s ex-husband (father of S.H. and her sister), as well as Adult Protective Services (“APS”) and the court-appointed attorney for S.H.

The evidence demonstrated that the live-in boyfriend “frequently touched and embraced” S.H. excessively and inappropriately. Although his behavior did not rise to the level of unlawful sexual contact or assault, the trial court found the behavior to be inappropriate, and a source of anxiety to S.H.

Despite numerous opportunities, the court found that the mother failed to shield her daughter from this behavior. Therefore, the court appointed the sister as guardian. The mother appealed.

The Appellate Division acknowledged the “kinship-hierarchy preference” applicable to selecting a guardian for an incapacitated adult: “a court shall prefer the ward’s spouse, or if there is none, the next closest relative.” Nevertheless, that hierarchy preference may be overridden where such appointment would be “affirmatively contrary to the best interests” of the incapacitated person. Consequently, the appeals court affirmed the trial court’s decision to bypass the mother in favor of the sister.

Although it affirmed the trial court’s decision, the Appellate Division noted that the trial court had failed to address S.H.’s stated preferences regarding her living arrangements. S.H. wanted to be with her mother and her father, although the sister planned to place her in a group home for developmentally disabled adults. However, this failure amounted to harmless error, because “the need to protect [S.H.] from [her mother’s boyfriend’s] inappropriate contact overrode any preference [S.H] had to live with her mother.”

The Appellate Division also noted the “unfortunate” reference made by S.H.’s court-appointed attorney to looking out for S.H.’s “best interests,” noting that this is the role of a guardian ad litem.


15.     In Rizzolo v. Rizzolo, 2015 NJ Super Unpub. LEXIS 409 (App. Div., March 2, 2015), New Jersey’s Appellate Court ruled that, under the appropriate circumstances, it is equitable to require a disabled 89 year old veteran to receive end-of-life care in a VA facility against his wishes rather than at home in order to use his limited income to continue paying alimony to his ex-wives.

Victor Rizzolo married Barbara Jones in 1982. The couple separated in 1989 and divorced in 2006. Plaintiff Victor Rizzolo was 58 years old and defendant 38 years old at the time of their marriage. After a divorce trial, the court ruled that the parties had a long-term marriage, and that defendant was entitled to permanent alimony as a result.   The court awarded defendant $300 a week in alimony. The court also awarded assets to defendant in equitable distribution of the marital estate.

Many years later, when he was 89 years old and in failing health, plaintiff filed a motion to terminate defendant’s alimony. At that time, plaintiff suffered from advanced prostate cancer, acute renal failure and a bone infection arising from a combat wound to his left knee suffered in World War II.

The court held a hearing on the motion. At the hearing, plaintiff’s son, a practicing attorney, testified that plaintiff lived with him due to his poor health. Because he was employed full-time, plaintiff’s son had to hire a full-time caregiver for his father, to whom he paid $1000 a week. When he hired the caregiver, plaintiff’s son had to stop his father’s alimony payments to defendant, and to his mother, plaintiff’s first wife, in order to pay for his father’s care. Defendant presented evidence that her sole income was the alimony she received from plaintiff.

After the hearing, the court denied plaintiff’s motion. The court found that plaintiff had not done all he could to continue to meet his alimony obligations. Specifically, the court noted that, although he had insufficient income and assets to pay alimony to his two ex-wives and provide for all of his care needs, plaintiff could do so if he entered a VA nursing home.

Plaintiff appealed, arguing that he should have been permitted to present evidence justifying his decision to remain at home receiving end-of-life care instead of entering a VA facility so that he could continue to meet his alimony obligation, and he did not do so at the hearing because no law or case suggested that he should have been prepared to do so, The appellate court agreed, reversing the judgment and remanding the case back to the trial judge. However, the appellate court left open the possibility that, under appropriate circumstances, plaintiff could be ordered to enter a VA nursing home against his will so he could continue to meet his alimony obligation.


16.     In Reuter v. Division of Medical Assistance and Health Services, Docket No. A-0514-13T2 (App. Div., October 17, 2014), the Appellate Division held that an appeal of a claim for Medicaid benefits that was filed late may be considered when the applicant shows that the filing deadline should be extended due to “extraordinary and extenuating circumstances.”

Plaintiff, Greta Reuter, a nursing home resident, applied for Medicaid with the Burlington County Board of Social Services. On March 28, 2013, the Medicaid agency notified the applicant by letter that it approved Medicaid benefits retroactively for the period of June 1, 2012 through September 30, 2012 and also for the month of May 2012, but denied future benefits because of the alleged failure to provide additional information requested by the agency. The letter also notified the applicant that she had twenty days to request a Fair Hearing to challenge the decision.

The Medicaid agency had no proof that the March 28, 2013 letter was either mailed by the agency or received by the plaintiff at her nursing home. In fact, plaintiff claimed that she did not learn of the letter and its contents, including the notice advising her of appeal rights, until months later on July 25, 2013 when the letter was faxed to her counsel by the agency at his request. According to plaintiff, her attorney initiated contact with the agency because neither he nor plaintiff had heard anything from the Medicaid agency for some time.

On August 2, 2013, eight days after he received a faxed copy of the agency’s letter, plaintiff’s attorney faxed and mailed a letter to the Medicaid agency requesting a Fair Hearing. In that letter, counsel represented that his office had not been notified before July 25, 2013 of the agency’s termination of future benefits. He also represented that plaintiff’s nursing home likewise had not received notice.

Medicaid denied the plaintiff’s request for a Fair Hearing, claiming that the request was untimely, having been made 127 days after the date of the March 28 letter. The agency would not extend the appeals deadline. Plaintiff appealed, contending that the agency’s denial of her Fair Hearing request, and its refusal to extend the twenty-day deadline, was arbitrary and capricious.

The appeals court reversed, permitting plaintiff to appeal the denial of Medicaid benefits. The court held that the Medicaid agency acted arbitrarily and capriciously by summarily rejecting appellant’s contention that she did not receive the March 28, 2013 letter from the agency, despite the absence of any proof that the letter was either mailed by the agency or received by the plaintiff.

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