DEPARTMENT OF HEALTH AND HUMAN RESOURCES

Transcription

1 Joe Manchin III Governor State of West Virginia DEPARTMENT OF HEALTH AND HUMAN RESOURCES Office of Inspector General Board of Review 2699 Park Avenue, Suite 100 Huntington, WV November 13, 2009 Patsy A. Hardy, FACHE, MSN, MBA Cabinet Secretary Dear : RE: Attached is a copy of the findings of fact and conclusions of law on your client s hearing held August 18, Your hearing request was based on the Department of Health and Human Resources proposed termination of Long Term Care Medicaid benefits due to excessive assets. In arriving at a decision, the State Hearing Officer is governed by the Public Welfare Laws of West Virginia and the rules and regulations established by the Department of Health and Human Resources. These same laws and regulations are used in all cases to assure that all persons are treated alike. Some of the regulations for Long Term Care Medicaid state that only one dwelling may be established as an individual s principal place of residence, and only that principal place of residence may be excluded as an asset for purposes of determining financial eligibility (West Virginia Income Maintenance Manual, 11.4.JJ.1.b). Policy further states that, when an individual leaves for any reason, this homestead property asset exclusion is based solely on the individual s intent to return, and not their ability to return. The principal place of residence must be a home in which the individual has lived, and must be the dwelling the individual considers her home (West Virginia Income Maintenance Manual, 11.1). Information submitted at your client s hearing revealed that the Claimant considers her property in Ohio to be her home, has lived there in the past, and intends to return; for these reasons, the property should have been excluded as an asset. It is the decision of the State Hearing Officer to reverse the Department s proposed termination of Long Term Care Medicaid benefits due to excessive assets. Sincerely, Todd Thornton State Hearing Officer Member, State Board of Review cc: Erika H. Young, Chairman, Board of Review Lisa Heater, Department Representative - 1 -

2 WEST VIRGINIA DEPARTMENT OF HEALTH & HUMAN RESOURCES BOARD OF REVIEW, Claimant, v. Action Number: 09-BOR-1303 West Virginia Department of Health and Human Resources, Respondent. DECISION OF STATE HEARING OFFICER I. INTRODUCTION: This is a report of the State Hearing Officer resulting from a fair hearing concluded on November 13, 2009 for. This hearing was held in accordance with the provisions found in the Common Chapters Manual, Chapter 700 of the West Virginia Department of Health and Human Resources. This fair hearing was convened on August 18, 2009 on a timely appeal, filed May 26, II. PROGRAM PURPOSE: The program entitled Long Term Care Medicaid (nursing facility services) is a medical service which is covered by the State's Medicaid Program. Payment for care is made to nursing homes which meet Title XIX (Medicaid) standards for the care provided to eligible recipients. In order to qualify for Nursing Home Care, an individual must meet financial and medical eligibility criteria. III. PARTICIPANTS:, Claimant s Attorney, Claimant s witness, Claimant s witness Lisa Heater, Department Representative Presiding at the Hearing was Todd Thornton, State Hearing Officer and a member of the State Board of Review. All persons offering testimony were placed under oath

3 IV. QUESTION TO BE DECIDED: The question to be decided is whether or not the Department was correct in its proposed termination of the Claimant s Long Term Care Medicaid benefits based on excessive assets. V. APPLICABLE POLICY: West Virginia Income Maintenance Manual, 11.1; 11.3; 11.4 VI. LISTING OF DOCUMENTARY EVIDENCE ADMITTED: Department s Exhibits: D-1 Hearing Request dated May 22, 2009, marked as received May 26, 2009 D-2 Notice of Medicaid termination dated May 18, 2009 D-3 Property documentation D-4 West Virginia Income Maintenance Manual, 11.1; 11.3; 11.4 Claimant s Exhibits: C-1 Claimant s Federal Income Tax Return C-2 Letter from Claimant s accountant C-3 Claimant s State Income Tax Return C-4 Driver s license of Claimant s spouse C-5 Vehicle registration of Claimant s spouse C-6 Claimant s Homeowners Insurance Policy C-7 Gas bill of Claimant s spouse C-8 Electric bill of Claimant s spouse C-9 Water bill of Claimant s spouse C-10 Claimant s Property Tax bill C-11 American Legion membership card of Claimant s spouse C-12 Letter from Claimant s church VII. FINDINGS OF FACT: 1) Lisa Heater, representative for the Department, testified that the Claimant was receiving Long Term Care Medicaid benefits, and that these benefits were to be terminated due to the Department s discovery of excessive assets. The Department mailed the Claimant notification of the proposed termination of benefits (Exhibit D-2) on or about May 18, 2009, and received a hearing request (Exhibit D-1) from the Claimant on or about May 26, She testified that the Claimant s benefits were continued, pending the outcome of the hearing process. The notice to the Claimant (Exhibit D-2) stated, in pertinent part: 1. ACTION: Your Medicaid benefits will stop. You will not receive this benefit after MAY REASON: The amount of assets is more than is allowed for this benefit

4 2) The Department Representative clarified in further testimony that the asset in question is a house located in Pomeroy, Ohio. The Department obtained verification of this property (Exhibit D-3) and confirmed with, the Claimant s daughter, that the Claimant does not live in the house located in Pomeroy, Ohio. The Department Representative testified that the Claimant is over the asset limit if the house is counted as an asset and under the asset limit if it is excluded. The Department referred to West Virginia Income Maintenance Manual, 11.3, and cited a $2,000 asset limit for the Claimant (Exhibit D-4). 3), the Claimant s daughter, testified that the Claimant resided in the house located in Pomeroy, Ohio, from the time of its purchase in 1959 until her health prevented her from living there. She testified that the Claimant s health deteriorated to the extent that she encouraged the Claimant to stay in a home she owns in Parkersburg, West Virginia. She testified that the Claimant does not own the Parkersburg home, nor does she have a rent arrangement; the Claimant was simply staying there as a guest of her daughter. She testified that she was able to help with the Claimant s care while she stayed in the Parkersburg area, and while her father the Claimant s husband worked out of the area during the week. She testified that since the Claimant has become a resident of a Parkersburg area nursing home, she continues to visit the Claimant, and testified that the Claimant expressed that she would like to live in the Pomeroy, Ohio home. She testified that when she spoke with the Department worker evaluating the Claimant for Medicaid, she did not mean to suggest any family intent to give up the residence in Pomeroy, Ohio. 4), the Claimant s husband, testified that his residence is the home in Pomeroy, Ohio, and that he additionally believes it is where the Claimant considers her home. The Claimant reviewed a series of documents, including: a Federal Tax return (Exhibit C-1), a letter from the Claimant s accountant (Exhibit C-2), an Ohio State Tax return (Exhibit C-3), an Ohio driver s license (Exhibit C-4), an Ohio vehicle registration (Exhibit C-5), a Homeowners insurance policy for the residence in question (Exhibit C-6), utility bills for the residence (Exhibits C-7, C-8, C-9), a Property Tax statement for the residence (Exhibit C-10), an American Legion membership card (Exhibit C-11), and a letter from the Claimant's church (Exhibit C-12). He testified that these documents show that he and the Claimant are holding themselves out to the community as residents of the Pomeroy, Ohio home, listing it as their address, and paying taxes as a resident of Pomeroy, Ohio. He testified that he and the Claimant owned no other home since 1959, that they have not maintained a tenant-landlord relationship anywhere since 1959, and that they stayed as guests in Parkersburg, West Virginia, only to accommodate the health needs of the Claimant. He testified that he believes it is the Claimant s intent to return to the Pomeroy, Ohio, home if her health will allow it. 5) The West Virginia Income Maintenance Manual, 11.4.JJ.1.b, provides for the asset treatment of homestead property for Medicaid eligibility, and states, in pertinent part: - 4 -

5 Only one dwelling is established as the client's principal place of residence, and only the principal place of residence is excluded. See Section 11.1 for the definition of principal place of residence. When an individual leaves his principle place of residence for any reason, but intends to return to it, the home is excluded. The exclusion is based solely on the individual s intent to return, even if the home is vacant or rented. The individual need not have the ability to return to the home, but must simply have the intent. 6) The West Virginia Income Maintenance Manual, 11.1, defines principal place of residence as follows: PRINCIPAL PLACE OF RESIDENCE The dwelling the client considers his fixed, established home. The principal place of residence must be a home in which the individual has lived. VIII. CONCLUSIONS OF LAW: 1) The asset policy for financial eligibility for Long Term Care Medicaid provides an asset limit. Testimony and evidence clearly showed that the Claimant is under that asset limit if her property is excluded and over that asset limit if her property is counted. 2) The same asset policy states that the Claimant s property is excluded if it is her principal place of residence. Undisputed testimony from the Claimant s daughter and husband, in addition to considerable documentary evidence, demonstrated the Claimant s consideration of her property in Pomeroy, Ohio to be her home, and her intent to return, regardless of ability. Because the property meets the definition of principal place of residence, it cannot be considered an asset. Without the property asset, the Department s proposed action to terminate Long Term Care Medicaid benefits to the Claimant based on excessive assets is incorrect. IX. DECISION: It is the decision of the State Hearing Officer to reverse the proposed action of the Department to terminate the Claimant s Long Term Care Medicaid benefits due to excessive assets. X. RIGHT OF APPEAL: See Attachment XI. ATTACHMENT: - 5 -

6 The Claimant s Recourse to Hearing Decision ENTERED this Day of November, Todd Thornton State Hearing Officer - 6 -