2007 Ct. Sup. 17783
No. CV 07 4012994 SConnecticut Superior Court Judicial District of New Britain at New Britain
October 23, 2007
MEMORANDUM OF DECISION
SIMON S. COHEN, JUDGE TRIAL REFEREE.
The plaintiff, Cherrylyn Brierton, appeals from a December 20, 2006 final decision of the Department of Social Services (DSS) finding that DSS correctly determined that the plaintiff’s ward and spouse, Francis Brierton (FB) became eligible for Medicaid only as of June 1, 2006.
The relevant findings of fact of the hearing officer are as follows:
1. [FB] has been institutionalized since September 13, 2004.
2. [The plaintiff, FB’s spouse and conservatrix] resides in the community.
3. When determining Medicaid eligibility . . . an assessment of spousal assets is completed using the assets that existed as of the date of the beginning of the initial continuous period of institutionalization . . .
* * * *
5. On February 28, 2005 an application for Medicaid was submitted to the Department on behalf of [FB] . . .
6. In August 2005, [the plaintiff] hired an attorney to help her complete the Medicaid application process.
7. The attorney assumed the Department had already completed the spousal assessment when [the plaintiff] hired him.
CT Page 17784
8-12. Between March 28, 2005 and July 24, 2006, the Department sent numerous requests for documentation to [FB] and [when retained, the attorney] . . . [Until June 2006], the spousal assessment could not be completed because the Department did not have sufficient verification to complete the assessment.
13. On June 27, 2006, the Department had sufficient verification to complete the assessment of spousal assets and sent the results to [FB and the plaintiff]. The Department determined that in order for [FB] to be eligible for Medicaid, the couple’s assets would need to be reduced to $38,468.
14. On August 24, 2006 the Department approved Medicaid for [FB] effective June 1, 2006. The Department denied Medicaid coverage for the time period February 2005 through May 2006 because [FB’s] assets exceeded the allowable limit.
15. [FB] reduced his assets within the allowable limits in June 2006.
* * * *
18. [FB] exceeded the Medicaid asset limit for the months of February 2005 through May 31, 2006.
The hearing officer concluded:
The record reflects that although the application for Medicaid did take a long time, I find that the verification that the Department was requesting was reasonable. In order to correctly determine the total assets held by [FB] and his spouse . . ., the Department must evaluate all evidence presented. The Department is not at fault for not specifically directing the reduction of assets until June 2006, when the assessment of spousal assets was completed. The Department met its obligation to inform [FB] of what had to be done to establish eligibility, CT Page 17785 once it received the requested asset verification.
Although [FB] retained counsel six months into the application process, the attorney’s and [FB’s] lack of knowledge that a spousal assessment had not been completed does not preclude the counting of those assets toward the asset limit. The record reflects that the attorney did not inquire to the Department regarding the results of the spousal assessment. In addition the record reflects that [the spouse and the attorney] were advised beginning in February 2006 that an assessment had not yet been completed due to insufficient evidence.
There are no provisions in policy to allow the granting of benefits, as a remedy, when eligibility does not exist. Eligibility in this case only existed after the assets were reduced . . . Therefore . . . [FB] was not eligible for Medicaid [for the months of January 2005 to June 2006].
(Return of Record, ROR, pp. 1-3, 8.)
The plaintiff timely appealed from this final decision on February 5, 2007.[1] At the fair hearing, and to this court, the plaintiff contended as follows: “Mr. Brierton applied for assistance in 2005 to help with the cost of his care at the nursing home. When he was finally granted assistance, it was only retroactive to June 2006. If the Department had more promptly reviewed the spousal diversion, Mrs. Brierton’s assets would have been reduced to the required limit much sooner.” (ROR, p. 61). See also the Hearing Request Form: “We were not granted until June 2006. It took too long to do the spousal assessment. I could have been eligible much earlier if this had been done in a timely manner.” (ROR, p. 62.)
The plaintiff relies on § 1507.05.A. 1(b) of the Uniform Policy Manual (UPM): “Assessment Process. The Department provides an assessment of assets . . . at the time of application for Medicaid whether or not a request is made.” The request for a spousal assessment was filed in April 2005. (ROR, p. 22.)
The plaintiff seeks to have this court reverse the decision of the CT Page 17786 fair hearing officer so that FB’s period of eligibility commences some time before June 2006, and award costs to the plaintiff pursuant to General Statutes § 4-184(a).
The standard of review of the plaintiff’s claim has been set forth as follows: “Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act . . . and the scope of that review is very restricted . . . With regard to questions of fact, it is neither the function of the trial court . . . to retry the case or to substitute its judgment for that of the administrative agency . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential . . . The burden is on the [plaintiff] to demonstrate that the [agency’s] factual conclusions were not supported by the weight of substantial evidence . . . Even as to questions of law, [t]he 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 and internal quotation marks omitted.) MacDermid, Inc. v. Department of Environmental Protection, 257 Conn. 128, 136-37 (2001). See also Hackett v. Connecticut Department of Social Services, Superior Court, judicial district of New Britain, Dkt. No. CV 05 400 8045S (November 1, 2006, Owens, J.) (scope of judicial review of eligibility for Medicaid benefits is very restricted).
MacDermid also emphasizes that “an agency’s interpretation of its own regulations is entitled to deference.” Id. at 138. This rule applies where the regulation is time-tested and reasonable, even if the agency interpretation has not been judicially reviewed. Langley v. State Employees Retirement Commission, 284 Conn. 149, 166 (2007).
In looking at UPM § 1507.05 on the time to issue the spousal assessment, DSS issued in 1989 an interpretive procedure for its employees that provides in part: “If you did not get information or verification of assets, do not complete an assessment.” § 1507.05.6. Further § 1507.10.4 provides: “Complete the evaluation of the assessment within 45 days of the receipt of all the required documentation.”[2]
Therefore the question becomes when the DSS worker had received the requested information and was able to verify it. The plaintiff claimed at the hearing that the verification went on too long and that the CT Page 17787 assets were the same in early stages of application as they were when the assessment was issued in June 2006. The record does not support this argument, however. The DSS worker testified that there were additional bank accounts to run down, and there was an issue of when FB entered into continuous care. (ROR, pp. 12, 118-19.) The plaintiff’s attorney mentioned that there was a probate proceeding needed to develop “what was what.” (ROR, p. 117.)
In addition the record supports the conclusion of the hearing officer that the attorney for the plaintiff assumed that the spousal assessment had been completed before he became involved in the case. (ROR, pp. 105, 108.) If the attorney had contacted the worker after being told that the spousal assessment was not completed, he would have been able to gather preliminary figures to assist in paying down assets.[3] The record supports the legal and factual conclusions of DSS regarding the timing of the spousal assessment.
Therefore, the appeal is dismissed.
CT Page 17788