Vera C. Nosal Co–Conservator of the Estate of Frank Nosal et al. v. Roderick L. Bremby, Commissioner, Department of Social Services (2013)

MEMORANDUM OF DECISION

The plaintiffs, Vera Nosal and Patricia Birmingham, co-executors of the estate of Frank Nosal (Nosal), appeal from a September 20, 2012 final decision of a hearing officer for the defendant Department of Social Services (DSS) denying an adjustment in Nosal's Medicaid coverage.

The hearing officer in the final decision (Return of Record, ROR, pp. 1–6) made the following findings of fact:

1. On September 26, 2011, the Appellant was admitted to the Jewish Home for skilled nursing care.

2. On October 27, 2011, the Department received the Appellant's application for Medicaid for Long Term Care along with an application for determination of spousal assets.

3. On December 9, 2011, the Department sent an initial “Verification We Need” form to the Appellant's Conservator with a copy to “Options for Elders,” an agency assisting the Appellant and conservator in the application process.

4. The Department's representative sent copies of informational brochures on applying for Medicaid for Long Term care to the Appellant's conservator.

5. Neither the Appellant's conservator nor the agency representative received the informational brochures regarding applying for Medicaid.

6. On February 16, 2012, the Department sent another request for additional asset information.

7. On March 12, 2012, the Department sent another request for medical insurance information and an admission notice from the facility.

8. On March 14, 2012, the Department issued an Assessment of Spousal Assets Notification of Results which also advised that the Appellant was not eligible for Medicaid at that time.

9. The combined total of the Appellant and his spouse's non-exempt assets was $101,082.59 as of the date of institutionalization (“DOI”).

10. The Appellant's share of the assets was $50,541.30 as of the DOI (1/2 of the couple's combined non-exempt assets).

11. The Community Spouse Protected Amount (“SCPA”) was $50,541.30 as of the DOI.

12. The Appellant's assets exceeded $1,600 until 4/13/2012.

13. On April 13, 2012, the Appellant reduced the assets to below $1,600.

14. On June 22, 2012, the Department granted Medicaid for Long Term Care assistance effective April 1, 2012 and denied the months of October 2011 through March 2012.

The hearing officer found as a matter of law that Nosal's share of the spousal assets was $50,541, that UPM § 4005.10 provides that the Medicaid asset limit for a needs group of one is $1,600, that UPM § 4005.15 provides that in the Medicaid program, at the time of application, the assistance unit is ineligible until the first day of the month in which it reduces its equity in counted assets to within the asset limit, that the DSS was correct in determining that Nosal was ineligible for the months of October 2011 to March 2012 due to the excessive amount, and that DSS correctly granted Medicaid effective April 1, 2012 after Nosal reduced the assets below $1,600 in April 2012.

The hearing officer also stated:  “The issue [here] was whether the [DSS] was correct when it denied [Nosal's] application for the months of October 2011 through March of 2012 for excess assets.   There was no argument that [Nosal's] assets exceeded the allowable limit until he reduced them in April of 2012.   [Nosal's] family argued that they would have spent down the assets sooner if they had been given the results of the spousal assessment sooner.   There are no provisions in policy that permit the [DSS] to grant benefits in a month when eligibility does not exist due to excess assets.”   Nosal's appeal was therefore denied.

Nosal has appealed from this final decision.   Our Supreme Court has stated on the standard of review to be applied by this court as follows:  “Judicial review of [an administrative agency's] action is governed by the [Uniform Administrative Procedure Act, General Statutes § 4–166 et seq.  (UAPA) ․ and the scope of that review is very restricted ․ With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency ․ Judicial review of the conclusions of law reached administratively is also limited.   The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.”  (Citations omitted;  internal quotation marks omitted.)  Goldstar Medical Services v. Dept. of Social Services, 288 Conn. 790, 800, 955 A.2d 15 (2008).

There appears to be no dispute that the state regulations, correctly referenced by the hearing officer, prohibit the granting of a Medicaid application where the applicant's assets exceed $1,600.   Thus Nosal's application was properly rejected by the DSS until such time as he made himself eligible by divesting his assets.

Nosal argues, however, that the DSS delayed furnishing his representatives with the amount of the excess assets that were credited against him.   He would have taken steps to become eligible sooner if he had been informed before April 2012.

There are two reasons why the court cannot agree with Nosal's contention.   The first is that the case of Ross v. Giardi, 237 Conn. 550, 680 A.2d 113 (1996), concludes that Connecticut does not provide for a resource “spend down” under its Medicaid regulations.   The Court noted that its conclusion might “work to the detriment of relatively unsophisticated individuals or individuals who, because of their medical condition, are not able to expend their excess resources as soon as they incur medical expenses.”  Id., 575.   If there is no right to a resource spend down provision, then an applicant cannot complain about a delay in being informed as to the duty to spend down a certain amount.

Secondly, Nosal points to the record, pp. 59, 74–76, where some inquiry was made to the DSS about the status of the asset overage.   The hearing officer did not make a finding on this point, but even if the court were to accept these memoranda, they were sent during time periods that the DSS was making requests to Nosal for more information.   See findings of fact # # 6 and 7. Nosal did have a remedy if the matter was not progressing sufficiently and that was to ask for a hearing under §§ 17b–80, 17b–264.

The court therefore dismisses the administrative appeal.

Henry S. Cohn, Judge

Cohn, Henry S., J.