IN RE: HELEN PETERSON (2010)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Onondaga County [Anthony J. Paris, J.], entered March 29, 2010) to review a determination of respondents.   The determination found that petitioner is not entitled to Medicaid for nursing facility services.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum:  Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that she was not Medicaid-eligible for nursing facility services for a period of 13.643 months on the ground that she had made uncompensated transfers of assets during the “look-back” period (see 42 USC § 1396p [c][1][B];  Social Services Law § 366[5][a], [e][1][vi] ).   The determination of respondent Onondaga County Department of Social Services (DSS) that petitioner was not eligible for those services because she transferred assets for less than fair market value was affirmed by respondent Richard F. Daines, M.D., Commissioner, New York State Department of Health (DOH).   The DOH concluded, however, that the penalty period of 13.643 months was incorrect and directed DSS to recalculate and modify the penalty period based upon the proven value of the uncompensated transfers.

Petitioner requested a fair hearing and, following a stipulated reduction in the amount of the penalty period to 13.643 months, the Administrative Law Judge (ALJ) upheld the determination of DSS that both transfers related to the Hills Street property, the $12,830 cash transfer, and certain monies expended for snowplowing services, constituted uncompensated transfers for purposes of determining her Medicaid eligibility.   The ALJ concluded, however, that petitioner's residence was not sold for less than fair market value, and it directed DSS to recalculate the penalty period based on the value of the uncompensated transfers, using the Hills Street property sale price of $53,000.

We note at the outset that petitioner does not challenge the ALJ's determination that the funds used for snowplowing or the transfer of $12,830 in cash were uncompensated transfers, and we therefore deem abandoned any issues with respect thereto (see Ciesinski v. Town of Aurora, 202 A.D.2d 984).

When “reviewing a Medicaid eligibility determination made after a fair hearing, ‘the court must review the record, as a whole, to determine if the agency's decisions are supported by substantial evidence and are not affected by an error of law’ “ (Matter of Barbato v New York State Dept. of Health, 65 AD3d 821, 822-823, lv denied 13 NY3d 712).   Substantial evidence is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180;  see Matter of Lundy v. City of Oswego, 59 AD3d 954).  “The petitioner bears the burden of demonstrating eligibility” (Matter of Gabrynowicz v New York State Dept. of Health, 37 AD3d 464, 465), and the agency's determination should be upheld when it is “premised upon a reasonable interpretation of the relevant statutory provisions and is consistent with the underlying policy of the Medicaid statute” (Matter of Golf v New York State Dept. of Social Servs., 91 N.Y.2d 656, 658).

Patricia L. Morgan

Clerk of the Court