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Georgia Administrative Law Decisions

  • Flournoy v. Department (May 20, 2010). States Decision to Reduce Skilled Nursing Hours for Medically Fragile Child Reverse as Contrary to Medical Necessity. A ventilator dependent medically fragile child was receiving 84 hours of care per week in his home. The Department determined the number of hours should be reduced to 80. After a final notification was issued, the child’s parents appealed. Medical records (and depositions) showed the child’s doctors had prescribed 84 hours of care and no evidence was presented contradicting them or showing their recommendations were not based in fact. Instead, it was the Department’s position that the ESPDT/GAPP is designed to teach parents how to care for their children, that the parents were now competent and therefore the hours provided could be reduced. The ALJ found that the parents were not trained in skilled nursing services and were not nurses or nurse practitioners who can provide skilled nursing care as established in 42 C.F.R. § 440.80. “Therefore, their care and support does not qualify as skilled nursing services and cannot be used as a basis for reducing Petitioners medically necessary treatment. The State has no discretion to deny funding for medically necessary treatment.” The decision to reduce Petitioners hours was reversed.
  • Grubbs v. Department (July 26, 2011). Penalty Reversed Where Home Sold For 2/3 Assessed Value. After Petitioner was approved for Medicaid, her attorney sent DFCS notice that she no longer intended to return home. A for-sale sign was placed in the front yard. The only interest shown was Petitioner’s family who purchased the home for 2/3 of the assessed value. Thereafter approximately one-half of the proceeds were gifted away. DFCS imposed a transfer penalty on the gift and on the below-assessment sale. The ALJ reversed the penalty on the below-assessment sale because Section 2304 of Georgia’s ABD Manual requires Petitioner to accept a reasonable offer and there is no prohibition on sales to a family member or other inside party. The assessment based on the gift was not contested.
  • Kay v. Department (June 23, 2011). Rules Changes May Not Be Imposed Retroactively. A gift was made, then partially cured. During the interim, the Department changed its rules to disallow partial cures of a transfer penalty. The ALJ held that “Respondent is not authorized to apply the provisions of its policy manual retroactively. Citing Georgia Dep’t of Cmty Health v. Fulton DeKalb Hosp. Authority, 294 GA. App. 431, 436-437 (2008); O.C.G.A. § 49-4-153(b)(1); Ga. Cont. Art. I, section I, paragraph X; Todd v. Morgan, 215 Ga. 220 (1959). Also citing Fossett v. Department.
  • Fox v. Department (June 30, 2014). Transfer Penalty Runs from Later of Month Following Transfer or Month When Otherwise Eligible. On Motion for Summary Determination, the ALJ held that the penalty began running three months prior to the date of application because Petitioner was otherwise eligible at that time. Further, the ALJ made a determination regarding the length of the penalty period and when it expired. The motion was filed because DFCS failed to act i a timely manner to determine the length of the penalty period and did not make a decision regarding the penalty start date.
  • Reed v. Department (August 21, 2012). Catching Up Delinquent Payments Under DRA Promissory Note Cured Penalty. Petitioner filed a Medicaid application in September 20211. Her Community Spouse was living at home when the application was denied for being over resourced on January 20, 2012. DFCS denied eligibility after discovering payments due the Community Spouse under a compliant promissory note were not timely made. Once it was discovered the payment had not been made, they were caught up. Citing Fife v. Anderson Realty Brokers, Inc., 155 Ga. App. 475 (1980), the Court held that notwithstanding Section 2313 of the ABD Manual, it was unlikely the Community Spouse could foreclose on the promissory note without giving notice. Since the delinquent payments were made prior to notice, the transfer was cured and no penalty could be assessed.
  • Hicks v. DHS (May 21, 2012). Remand. One page order remanding case to DFCS.
  • Sellers v. Department (May 3, 2013). Life Estate Excluded. Petitioner was denied Medicaid because she owned a life estate in non-homeplace realty. At hearing, evidence was presented that a life estate held by a 90 year old nursing home resident in poor health was unmarketable and, therefore, valueless. Further, even if it had value, it was being marketed consistent with Section 2304 of the ABD Manual. The ALJ reversed the Department’s decision that Petitioner was over resourced.
  • Pressly v. Department (July 12, 2013). Transfer Penalty Reversed Where Evidence Showed Home Was Purchased. Petitioner applied for Medicaid in June 2012 and was denied eligibility for failing to provide information. When the next application was submitted, DFCS found she was eligible, but imposed a transfer penalty because a home assessed at $110,700 was transferred to her son in 2008 which was within the look back period. At the hearing, evidence was presented showing that Petitioner’s son initially purchased the property for $35,000 in 1984. He then sold it to his parents for $45,000 in 1988. Less than one year later, he repurchased the home from his parents as part of a verbal transaction, agreeing to pay $50,000 in monthly payments of $250 until it was paid for in full. Petitioner’s son, as well as her attorney-in-fact appeared at the hearing and testified credibly that the son made most of the payments in cash and that his checks had long-since been destroyed by the bank. Based on the calculation of payments made from 1989 through 1992 and $300 monthly payments from May 1992 to December 2006, the purchase price was paid in full by September 1, 2005. Payment continued through the end of 2006 because the son did not realize he had paid off the property. The son paid all routine expenses associated with the property and paid the property taxes. The ALJ reversed imposition of the transfer penalty because the evidence showed that even though the conveyance occurred within the look back period, the home was not transferred for the purpose of qualifying for Medicaid because it had been purchased.
  • OSAH-Unknown-Walker-Russell-2013 (September 24, 2013). Denial of Eligibility Proper Where Resources Exceed Limit. After reviewing Petitioner’s income verification, DFCS found that Petitioner’s net income exceeded the eligibility limits for all Adult Medicaid categories. Therefore, denial of eligibility was proper.
  • Cagle v. Department (May 27, 2014) Unknown resource is excluded until discovery and was further excluded while Bona Fide Effort to Sell took Place. Petitioner had dementia and was unable to communicate with her son who assisted her with her Medicaid application. Her son did not learn until January that she owned 643 shares of stock in an insurance company. Despite his best efforts, he was unable to secure a medallion signature guarantee to liquidate the stock until April, 2014. The ALJ held that the stock was unknown and therefore excluded until it was discovered in January 2014. Then, due to Petitioner’s efforts to sell the stock , it was exempt until April 7, 2014 because he was making a bona fide effort to sell the stock. The ALJ held that Petitioner was eligible for Medicaid from January through April 2014 and was not over resourced. This case was decided on Motion for Summary Determination.
  • Coffey v. DHS (March 21, 2014). ALJ Will Not Second-Guess Probate Court’s Approval of Conservatorship Return. Petitioner filed an application for Medicaid in November 2012. A denial was issued, imposing a four month transfer penalty. At the hearing, DFCS argued that Petitioner’s conservator made payments that were subject to a transfer penalty. However, all of the payment made had been submitted as part of the Conservator’s annual return and were approved by the Probate Court. O.C.G.A. § 29-5-60(c) requires a Probate Court to carefully examine the annual return and the court can require a conservator to produce original documents supporting the return. If no objection is filed, the annual return is records. The recorded return is prima-facie evidence of its correctness. The ALJ held that he had no authority under the Administrative Procedures Act or the Rules of the Office of State Administrative Hearings to reverse, amend or modify the approval of the annual returns by the Gilmer County Probate Court. Therefore the Order of the Probate Court to accept the annual return must be accepted as proof that the conservators expended funds solely for the Petitioner’s use and benefit and that no transfer penalty can be assessed. The decision to impose a penalty was reversed.
  • Townsend v. DHS (August 13, 2014). IMEs Must Be Permitted Where Properly Documented. Petitioner argued she was entitled to an IME deduction totaling $1,017.03. She submitted proper documentation to secure a reduction in her cost share for $802 in IME deductions. Two IME forms were not signed by the provider. Those IMEs were not permitted until they were properly documented The case was remanded for determination of the appropriate cost-share.
  • Cabe v. DHS (October 27, 2015). IRA Is Not a Countable Resource. This one-page decision documents DFCS’s admission that an IRA should not have been counted as a resource and that if Petitioner’s application is approved then benefits could be paid back to the protected date.
  • OSAH-Jeff Davis-Miller-2015 (October 26, 2015). Medicaid must determine disability if SSI Takes More than 90 Days. An individual under 65 applied for Medicaid because of severe vision impairment. When he was told that he was financially eligible for SSI, he was required to apply. However, as of the hearing, SSI had not made a disability determination. Under 42 C.F.R. § 435.541(c)(2), “The agency must make a determination of disability in accordance with the requirements of this section if any of the following circumstances exist … The individual applies both to SSA for SSI and to the State Medicaid agency for Medicaid, the State agency has a section 1634 agreement with SSA, and SSA has not made an SSI disability determination within 90 days from the date of the individual’s application for Medicaid.” The Department was ordered to secure the necessary medical records within 10 days to make a disability determination.
  • OSAH-Bibb-Wood-2015 (August 7, 2015). Coverage for Intervening Months. Petitioner was hospitalized from August through September 2014 and applied for Medicaid in September. Her application was initially denied because her SSI application remained pending. On May 20, 2015, DFCS notified Petitioner that she was eligible for retroactive Medicaid for August 2014, but not for September 2014. DFCS cited its policy memorandum regarding intervening months stating it would no longer approve coverage for the period between submission and approval of a Medicaid application. The ALJ reversed citing to 42 USC § 1396a(a)(34) and 42 C.F.R. § 435.915(a) which requires coverage for the three month period preceding the application and the application processing period. The ALJ also cited Liegl v. Webb, 802 F.2d 623, 625 (2nd Cir. 1986) and Keup v. Wis. Dep’t Health and Family Servs., 675 N.W.2d 755, 759 n.  (2004). .
  • OSAH-Houston-Woodard-2015 (June 29, 2015). Penalty Period Cannot be Tolled Once Started. A transfer penalty was assessed for 3.43 months and applied in January, February, March and May of 2015, with no explanation for skipping April. Citing to CMS’s Section 6011 and 6016 – New Transfer of Asset Rules Under the Deficit Reduction Act of 2005, the ALJ held that once imposed a transfer penalty cannot be tolled. Accordingly, the case was remanded with instructions to impose the partial month penalty during April.
  • OSAH-Unknown-Schroer-2015 (June 29, 2015). Deviation from financial eligibility formula in Manual improper. An applicant for QMB Medicaid had income that exceeded the QMB income limit by $14 after taking into account the $20 disregard. The ALJ held she did not have authority to create a deduction or deviate from the eligibility standards set forth in federal and state law. Denial of eligibility was affirmed.
  • Fields v. DHS (December 5, 2016). Timing of Transfer Penalty. This case was decided on Motion for Summary Determination. A 69 year old male entered the nursing home in May, 2016 and applied for Medicaid on May 27, 2016. His application was initially approved for July 2016, but then DFCS recalculated his eligibility and denied eligibility for July and August, assessing a 1.94 month transfer penalty to be imposed in September with eligibility beginning in October 2016. Petitioner requested a fair hearing, arguing that if a transfer penalty was imposed, it must be imposed in July and August. The transfer took place in June and Petitioner was otherwise eligible for Medicaid in July. The ALJ reversed the Department, citing Supplement 9(b) to Attachment 2.6-A of the State Plan and CMS Letter to State Directors #06-018 (Enclosures), and Fox v. DHS, finding that penalty must be assessed beginning in July because it was the later of the month when the transfer took place or the month Petitioner was otherwise eligible.
  • Rogers v. DHS (December 5, 2016). Month When Penalty is Applied. A one.6 month penalty was applied where Petitioner gave $8,000 to her son who was dying of cancer. The ALJ held that the penalty must be applied during the month when Petitioner was otherwise eligible.
  • OSAH-Unknown-Teate-2016 (December 16, 2016). Month When Penalty is Applied. Petitioner’s Medicaid eligibility was terminated after she received a $41,000 litigation settlement. She gifted $23,724 and retained $17,276. She then loaned $16,000 pursuant to a promissory note. Monthly payments of $4,000 were made directly to the nursing home instead of Petitioner. DFCS calculated a penalty of four months with a remainder of $1,551.39. At issue was which month to begin application of the penalty period. The ALJ reversed DFCS’s decision, agreeing with Petitioner that the penalty period should begin in April, 2016. This decision cited Gragert v. Lake, 541 Fed. Appx 853, 857 (10th Cir. 2013) for the proposition that if a promissory note cannot be transferred then it is not convertible to cash and is therefore not a resource.
  • OSAH-Fulton-Malihi-2017 (January 10, 2017). No Transfer Penalty Where Transfer is for FMV. Petitioner’s attorney-in-fact used a licensed realtor to list Petitioner’s home for $104,000. One offer of $80,000 was received, which was reduced to $65,000 after an inspection identified necessary repairs. The list price was then reduced to $89,900 due to the lack of offers and condition of the property. On November 19, 2015, Petitioner received an offer of $69,200 which was rejected. On December 18, 2016, the property was sold for $74,000. From the proceeds, $65,005.49 went to pay of the mortgage, $4,510.40 went to Petitioner and the remainder was allocated toward closing costs. Petitioner used the proceeds to pay expenses at a personal care home. In July, 2016, Petitioner was admitted to a nursing home and applied for Medicaid. DFCS assessed a five month transfer penalty related to the sale of the home. Petitioner appealed, presenting a realtor’s affidavit at the hering that the sale price was FMV. The ALJ held that, although the home was assessed at $105,200, Petitioner presented exhibits and testimony to rebut DFCS’s FMV calculation. Since the property was sold for FMV, no transfer penalty was authorized.
  • OSAH-Carroll-Schroer-2017 (March 13, 2017). Valid Court Order Increases MMMNA. Petitioner’s Community Spouse resided at home and was earning $3,031 per month. Petitioner’s wife filed a Petitioner for Support in Superior Court after Petitioner suffered a massive stroke and was admitted to a nursing home. That Petition alleged that DFCS does not take debt into account when calculating the CSRA. Petitioner’s office building had a monthly mortgage payment of $1,074 and Petitioner had unsecured credit card debt of $68,777. Due to the Community Spouse’s earnings, none of Petitioner’s income would be set aside for her under the default MMMNA calculation. A medicaid application was filed on July 29, 2016, prior to the Superior Court’s ruling on August 12, 2016 that the Community Spouse was entitled to support equal to Petitioner’s Social Security income. DFCS refused to revise its calculation of the cost-share and Petitioner appealed. Citing 42 U.S.C. § 1396r-5(d)(5), the ALJ held that federal law requires that “as a valid order of support against Petitioner exists, the Respondent must first deduct the amount of that order when determining the amount Petitioner must pay each month toward the costs of care in the institution.”
  • Worley v. Department (January 10, 2018). Vehicle Exempt if used to transport Petitioner or family member. Petitioner was denied eligibility for being over resourced or, alternatively, that a transfer penalty should be imposed after purchasing a vehicle immediately prior to her Medicaid application. The vehicle was titled in both Petitioner’s name and her daughter’s name so her daughter could get insurance to drive the vehicle for Petitioner’s transportation. Evidence was introduced that the vehicle was used to transport Petitioner. Citing 20 C.F.R. § 416.1218(b)(1) the ALJ held the vehicle must be excluded if it is used to transport the individual or a member of the individual’s family. The ALJ held that the vehicle was exempt since it was used to transport Petitioner and since Petitioner’s name was on the title there was no transfer penalty.
  • Wetherington v. DFCS (April 10, 2018). DFCS failed for make a cost-share determination until 73 days after the standard of promptness ran on Petitioner’s July 11, 2017 Medicaid application. Meanwhile, Petitioner did not make any payments to the nursing home and her income accumulated. When DFCS issued a notice of decision on November 6, 2017, denying Petitioner as being over resourced, she paid the accumulated income to the nursing home, coming within program limits as of January 1, 2018. Petitioner then appealed the denial of Medicaid for prior months, alleging that if DFCS had issued a decision within the standard of promptness (by August 25, 2017), she would have been eligible as of September 1, 2017. Petitioner asked the Court to order DFCS to process her application as though her resources were within program limits as of July 11, 2017 or, alternatively, as of September 1, 2017. The ALJ held that DFCS is required to issue a determination within the 45 day standard of promptness. The case was remanded “with directions to review Petitioner’s July 11, Medicaid application and evaluate her eligibility based on the resources available to her as of January 1, 2018. If after conducting this review Respondent determines that Petitioner would have been eligible for Medicaid, Respondent shall provide Medicaid coverage effective September 1, 2017.” In support, the decision cites 42 U.S.C. 1396a(a)(8); 42 C.F.R. 431.246; 42 C.F.R. 435.930(a); French v. Dep’t of Children & Families, 920 So. 2d 671, 675 (Fla. Ct. App. 2006); Randall v. Lukhard, 709 F.2d 257, 269 (4th Cir. 1983); Salazar v. District of Columbia, 954 F. Supp. 278, 325 (D.D.C. 1996); Forman v. State Dep’t of Children & Failies, 956 So. 2d 477, 479-80 (Fla. Ct. App. 2007); Susan J. v. Riley, 254 F.R.D. 439, 452 (M.D. Ala. 2008); Doe by & Trhough Doe v. Chiles, 136 F.3d 709 (11th Cir. 1998).
  • OSAH-Bartow-Woodard-2020 (September 1, 2020). Ambiguity in ABD Manual Construed Against DFCS. Petitioner filed an application for nursing home Medicaid. On June 4, 2020, DFCS issued a decision finding that Petitioner transferred assets for less than FMV and assessed a transfer penalty for April 2020. April was the only month disputed. The parties agreed that the Covid 19 policy did not apply. The Medicaid monthly rate at the nursing home was $6,370, while the private pay monthly rate was $6,000. Petitioner paid the nursing home $6,000. The difference, $370, was in dispute. Petitioner alleged that during the penalty month, her cost share should be limited to the private pay rate. The ALJ found that the ABD Manual used various terms interchangeably, including “”average Georgia private pay rate,” “private pay rate,” “Nursing Home Private pay billing rate,” and “Medicaid rate.” Applying principles of contract interpretation, the ALJ found that Petitioner’s interpretation was reasonable and limited the penalty amount to the private pay rate.

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