COUNTY OF SURRY / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
10 DHR 8094
Raymond Taylor Mabe Jr.,
Petitioner,
v.
Office of Administrative Hearings
Debbie Odette/Glana Surles
Respondent. / )
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) DECISION
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THIS MATTER CAME ON TO BE HEARD before the undersigned on March 29, 2011, in High Point, North Carolina. Petitioner, Raymond Taylor Mabe, Jr., appeared pro se and Respondent, the North Carolina Department of Health and Human Services, Division of Medical Assistance, appeared represented by Joel L. Johnson, Assistant Attorney General.
The Findings of Fact are made after careful consideration of the sworn testimony, whether visual and/or audio, of the witnesses presented at the hearing, and the entire record in this proceeding. In making the findings of fact, the undersigned has weighed all the evidence, or the lack thereof, and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness; any interests, bias, or prejudice the witness may have; the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether the testimony is consistent with all other believable evidence in the case. From the sworn testimony and the admitted evidence, or the lack thereof, the undersigned makes the following:
FINDINGS OF FACT
1. Petitioner Raymond Taylor Mabe, Jr. is an heir of Madeline E. Bingman, who was a Medicaid recipient prior to and upon her death.
2. Ms. Bingman, upon her death, owned assets including real property which, upon her death, became available for the payment of debts owed by her estate.
3. As a Medicaid recipient, Ms. Bingman received services which subjected her estate to North Carolina’s estate recovery program. The estate recovery program allows the Division of Medical Assistance, under certain circumstances, to recover expenses paid for medical assistance.
4. Ms. Bingman’s estate is one such estate which qualified for estate recovery and Respondent has made a claim against the estate.
5. The primary asset of Ms. Bingman’s estate is a piece of real property, in which Petitioner claims to reside.
6. There are times when Respondent waives estate recovery, including those times when the sale of the estate’s real property would result in undue hardship to a surviving heir.
7. Undue hardship is defined by the North Carolina Administrative Code, 10A NCAC 21D .0502, as follows:
(b) Undue or substantial hardship shall include the following:
(1) Real or personal property included in the estate is the sole source of income for a survivor and the net income derived is below 75 percent of the federal poverty level for the dependents of the survivor(s) claiming hardship; or
(2) Recovery would result in forced sale of the residence of a survivor who lived in the residence for at least 12 months immediately prior to and on the date of the decedent's death and who would be unable to obtain an alternate residence because the net income available to the survivor and his spouse is below 75 percent of the federal poverty level and assets in which the survivor or his spouse have an interest are valued below twelve thousand dollars ($12,000).
8. Although the administrative code threshold is 75 percent of the poverty level, Respondent defines hardship under the more lenient criteria of 200 percent of the poverty level based upon an update to the North Carolina Medicaid State Plan, pursuant to 42 U.S.C. § 1396a, et. seq., which is not yet reflected in the promulgated rules. Evidence of the 200 percent guideline was admitted as Respondent’s Exhibit 3, which is an excerpt of the North Carolina Medicaid State Plan.
9. In order to qualify under the definition of undue hardship, the individual claiming hardship must 1) have income less than 200 percent of the poverty level AND the real property is the sole source of income; OR 2) have lived in the residence for the 12 months immediately prior to the death of the Medicaid recipient; have income less than 200 percent of the poverty level; AND have assets valued less than $12,000.
10. Petitioner requested a waiver under the “undue hardship” exemption and submitted substantial documentation to Respondent, including information about the income of Petitioner’s household.
11. Respondent reviewed the information, and in conjunction with other public records resources, discovered that Petitioner’s household exceeded the allowable income required to qualify for a hardship waiver. See Respondent’s Exhibit 1. In addition, Petitioner is record owner of at least two parcels of real property, one of which is located in Virginia and the other in North Carolina.
12. Respondent’s witness testified that Petitioner’s income exceeded 200 percent of the federal poverty level as demonstrated by Petitioner’s documentation, which was admitted as Respondent’s Exhibit 2. Petitioner has not contested and has essentially conceded that his income is greater than 200 percent of the federal poverty level.
13. Testimony of Petitioner demonstrated that he, in fact, owns real property located in Virginia and he owns other real property in North Carolina, though he claimed not to know why his name was on the deed to the North Carolina property. This testimony demonstrated that Petitioner owns assets in the form of real property which are valued greater than $12,000. Petitioner is separated from his wife who lives in the Virginia property, but he is still a record owner.
14. By Respondent’s reasonable and verifiable calculations, Petitioner exceeds the maximum income allowable for qualifying for an undue hardship waiver. In addition, Petitioner owns assets greater than $12,000.
CONCLUSIONS OF LAW
1. The North Carolina Office of Administrative Hearings has jurisdiction over the parties and subject matter of this contested case pursuant to N.C. Gen. Stat. § 150B-23 et seq. All necessary parties have been joined. The parties received proper notice of the hearing in this matter.
2. Petitioner has the burden of proof in showing that the Respondent has acted erroneously, improperly, or somehow outside of its authority.
3. Respondent’s evidence shows that its decision to deny Petitioner’s hardship request was based on full consideration of the information available to it and that Petitioner could not qualify under the definition of undue hardship found in the North Carolina Administrative Code as updated by the North Carolina Medicaid State Plan.
4. Petitioner admitted that the information used by the agency in denying hardship was accurate information. Petitioner did not present evidence that the agency acted in a way that exceeds its authority or acted improperly given the information available to it.
5. Petitioner did not meet his burden in showing that the agency exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law or rule.
6. Petitioner does not meet the criteria for “undue hardship,” as defined in the North Carolina Administrative Code as amended by the North Carolina Medicaid State Plan, based on all of the information presented to the court; therefore, Respondent did not act improperly in denying the hardship request.
DECISION
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby UPHOLDS the agency’s denial of Petitioner’s undue hardship waiver request.
NOTICE
The Agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Medical Assistance.
The Agency is required to give each party an opportunity to file exceptions to the decision and to present written arguments to those in the Agency who will make the final decision. N.C. Gen. Stat. § 150-36(a). The Agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorneys of record and to the Office of Administrative Hearings.
In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact contained in the Administrative Law Judge's decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge's decision, the agency shall set forth separately, and in detail, the evidence in the record relied upon by the agency in making the finding of fact.
This 26th day of May, 2011.
J. Randall May
Administrative Law Judge