The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3546-16T3
B.M.,
Petitioner-Appellant,
v.
DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES,
Respondent-Respondent.
______________________________
Argued August 14, 2018 – Decided August 29, 2018
Before Judges Sumners and Gilson.
On appeal from the New Jersey Department of
Human Services, Division of Medical Assistance
and Health Services.
Laurie M. Higgins argued the cause for
appellant (SB2 Inc., attorneys; John
Pendergast, on the briefs).
Jacqueline R. D'Alessandro, Deputy Attorney
General, argued the cause for respondent
(Gurbir S. Grewal, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Jacqueline R. D'Alessandro, on the
brief).
PER CURIAM
Esther Schulgasser, the authorized representative for
petitioner B.M., appeals from the inaction of the Division of
Medical Assistance and Health Services (Division). She contends
that the Division failed to submit two of its decisions regarding
B.M.'s Medicaid eligibility to the Office of Administrative Law
(OAL), despite B.M.'s requests for fair hearings.
The record presented to us is confusing and incomplete. What
is clear is that Schulgasser filed a series of Medicaid
applications on behalf of B.M. The Passaic County Board of Social
Services (County Board), denied three of those applications and
partially granted another. Schulgasser contends that she
requested fair hearings on all four County Board actions. That
is not clear from the record. The record reflects that the
Division transmitted two of the denials to the OAL, which were
docketed for fair hearings. Both of those fair hearing requests
were later withdrawn. The hearing requests on another denial and
a partial grant were never acknowledged by the Division and,
apparently, never transmitted to the OAL for hearings.
Due to the procedural deficiencies in this record, and
Schulgasser's failure to preserve B.M.'s right to fair hearings,
we dismiss the appeal.
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I.
What we can glean from the incomplete record before us is
that Schulgasser was designated B.M.'s authorized representative
in January 2016. Thereafter, Schulgasser made a series of Medicaid
applications on behalf of B.M. between January 2016 and August
2016. B.M.'s first Medicaid application was denied by the County
Board on February 22, 2016, for failure to provide required
information. Schulgasser requested a fair hearing on that denial
and, on April 18, 2016, the Division acknowledged receipt of the
hearing request. On April 19, 2016, the fair hearing request was
filed in the OAL under docket number 06057-16.
The County Board denied another of B.M.'s Medicaid
applications on April 18, 2016. Again, the County Board advised
that B.M. failed to provide required information. Schulgasser
contends that she submitted another fair hearing request on May
2, 2016. It is not clear that the Division ever received that
request. While the record contains a fax cover sheet dated May
2, 2016, no confirmation page was included in the appendix to show
that the request was successfully delivered. In addition, the
Division never acknowledged receipt of that hearing request.1
1
In its brief, the Division contends that the fair hearing request
regarding the April 18, 2016 denial was transmitted to the OAL.
The documents submitted in the appendices do not support that
contention.
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The parties appeared in the OAL for a fair hearing on June
27, 2016. Prior to the hearing, counsel for B.M. and the Division
conferenced the case and realized they were not clear about which
denial was scheduled. Counsel for B.M. agreed to withdraw the
hearing request for the February 22, 2016 denial, but maintained
that "[a]ll other appeal/fair hearing requests remain in effect."
On July 25, 2016, counsel for B.M. wrote a letter to the
administrative law judge (ALJ) to "clarify some confusion." He
explained that he only intended to withdraw the hearing request
for the February 22, 2016 denial, and requested that the hearing
for the April 18, 2016 denial be relisted for a new date. The ALJ
responded on August 15, 2016, stating that the OAL did not have
any documents pertaining to the April 18, 2016 denial. Thus, the
ALJ advised that if counsel intended to pursue a fair hearing on
the April 18, 2016 denial, he would need to re-submit that request.
Over four months later, on December 22, 2016, Schulgasser
attempted to re-submit the fair hearing request for the April 18,
2016 denial. Critically, however, she re-submitted the February
22, 2016 hearing request instead. Schulgasser submitted the
incorrect hearing request for a second time on January 24, 2017.
Thus, the Division was never provided with a fair hearing request
for the April 18, 2016 denial of benefits. Unfortunately, while
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Schulgasser was attempting to re-submit that hearing request, B.M.
passed away on December 31, 2016.
In the meantime, the County Board had denied another of B.M.'s
Medicaid applications on July 1, 2016. Schulgasser requested
another fair hearing on that denial of benefits. The County Board
acknowledged that hearing request on July 21, 2016. On August 10,
2016, the fair hearing request was filed in the OAL under docket
number 11971-16.
On August 11, 2016, the County Board partially approved one
of B.M.'s applications and granted her Medicaid benefits
retroactively from May 1, 2016 to August 1, 2016. Schulgasser
claims to have submitted yet another fair hearing request on August
22, 2016, regarding the partial grant of Medicaid benefits. That
hearing request was neither acknowledged by the Division, nor
docketed in the OAL.
On January 4, 2017, counsel for B.M. withdrew the fair hearing
request for the July 1, 2016 denial. Counsel submitted a letter
to the ALJ stating: "The Medicaid application denied by [the County
Board] upon which the fair hearing is based has since been
approved. I therefore ask that the fair hearing currently
scheduled for tomorrow be cancelled." From what we can discern
from the sparse record before us, the partial grant of Medicaid
benefits on August 11, 2016, covered the benefits previously denied
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by the County Board on July 1, 2016. Counsel's letter to the ALJ
made no reference to a hearing request for the August 11, 2016
partial grant of benefits. To the contrary, the letter stated the
Medicaid application was approved and it did not state that there
was any remaining issue.
Two months later, on March 7, 2017, counsel sent a letter to
the Division stating that two of B.M.'s fair hearing requests had
not been transmitted to the OAL. Specifically, counsel identified
the hearing requests for the April 18, 2016 denial and the August
11, 2016 partial grant. He also attached copies of those hearing
requests as exhibits to the letter. The Division did not reply
to counsel's letter. This appeal followed.
II.
Schulgasser contends that the denial and partial grant of
B.M.'s Medicaid applications should either be reversed, or
remanded to the OAL for fair hearings. Based upon the procedural
deficiencies presented on this record, and Schulgasser's failure
to preserve B.M.'s right to fair hearings, we decline to reverse
or compel any hearings on the April 18, 2016 denial and August 11,
2016 partial grant of B.M.'s applications.
The New Jersey Medical Assistance and Health Services Act,
N.J.S.A. 30:4D-1 to -19.5, authorizes New Jersey's participation
in the federal Medicaid program. The Division is the agency within
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the Department of Human Services that administers the Medicaid
program. N.J.S.A. 30:4D-7. In that regard, the Division has
broad authority to administer the State Medicaid programs, and
issue "all necessary rules and regulations" to implement those
programs. Ibid.
Under the regulations, if an application for Medicaid is
denied, "[i]t is the right of every applicant . . . to be afforded
the opportunity for a fair hearing in the manner established by
the policies and procedures set forth in N.J.A.C. 10:49-10 and
10:69-6." N.J.A.C. 10:71-8.4(a). In that regard, applicants have
the right to fair hearings when "their claims . . . are denied or
are not acted upon with reasonable promptness[.]" N.J.A.C.
10:49-10.3(b). Requests for fair hearings must be submitted to
the Division in writing within twenty days of the denial,
reduction, or partial denial of Medicaid benefits. N.J.A.C.
10:49-10.3(b)(1) and (3).
Here, Schulgasser failed to re-submit the hearing request for
the April 18, 2016 denial of benefits as the ALJ directed.
Instead, she re-submitted the hearing request for the February 22,
2016 denial of benefits on two separate occasions. That fair
hearing request was never perfected and, therefore, we decline to
remand that matter for a hearing.
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As to the hearing request for the August 11, 2016 partial
grant of benefits, the record is not clear as to what documents
were actually sent to the Division in August 2016.2 The incomplete
record before us does not allow for a meaningful review of this
argument. See R. 2:6-1(a)(1) (stating an appellant's appendix
must contain parts of the record "essential to the proper
consideration of the issues."). Accordingly, on this record, we
decline to compel a hearing on the August 11, 2016 partial grant
of benefits.
Having determined that B.M.'s right to fair hearings was not
properly preserved, we need not decide the separate issue of
whether Schulgasser's authority to pursue this appeal as B.M.'s
authorized representative was extinguished when B.M. passed away
in December 2016.
Dismissed.
2
The record contains a fax cover page dated August 22, 2016. The
heading of that cover page, however, indicates that it was sent
as a single page without attachments. The next two pages are
devoid of any fax headings to establish that they were attached
to the cover page, and the confirmation page is dated August 23,
2016.
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