ADMINISTRATIVE HEARINGS
COUNTY OF LINCOLN / 09 DHR 1984
VICKIE HOVIS ABERNETHY / )
)
Petitioner, / ) / DECISION
v. / )
)
THIRD PARTY RECOVERY / )
)
Respondent. / )
On Thursday, August 6, 2009, Administrative Law Judge Selina M. Brooks heard this contested case in Newton, North Carolina.
FINDINGS OF FACT
1. Petitioner Vickie Hovis Abernethy is an heir of Mayzell Hovis, who was a Medicaid recipient prior to and upon her death.
2. Mayzell Hovis, upon her death, owned real property located at 531 Battleground Rd., Lincolnton, NC 28092. Ms. Hovis devised her real property by will to Petitioner.
3. As a Medicaid recipient, Ms. Hovis 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. Hovis’s estate is one such estate which qualified for estate recovery and the Division of Medical Assistance (DMA) has made a claim against the estate.
5. The primary asset of Ms. Hovis’s estate is the piece of real property located at 531 Battleground Rd., Lincolnton, NC 28092, which would need to be sold for DMA’s claim to be satisfied.
6. There are times when DMA waives estate recovery, including those times when the sale of the estate’s real property would result in undue hardship.
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. 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.
9. Although the administrative code threshold is 75 percent of the poverty level, DMA defines hardship under the more lenient criteria of 200 percent of the poverty level.
10. On June 6, 2007, DMA sent a letter to Petitioner, who is also the executrix of the Estate of Mayzell Hovis, giving considerable information on the process of estate recovery and explaining the process by which a survivor could claim hardship to prevent the real property from being sold and used to satisfy DMA’s claim.
11. Petitioner contacted DMA by letter dated September 24, 2008, to discuss a hardship request. In response to the phone call, DMA sent another letter to Petitioner dated October 17, 2008 which explained what information was needed in order to assess the hardship request.
12. At some time after the October 17, 2008 letter, Petitioner sent to DMA several pieces of documentation in support of her hardship request.
13. DMA reviewed the information, and in conjunction with other public records resources, discovered that Petitioner herself owned real property and had provided no documentation showing that she had lived exclusively at the property known as 531 Battleground Road for the twelve months immediately preceding the death of Mayzell Hovis.
14. During the twelve months immediately preceding the death of Mayzell Hovis, Petitioner received mail at her own property known as 198 Horseshoe Lake Road and at 531 Battleground Road and Petitioner has admitted living intermittently at both addresses.
15. On February 18, 2008, Respondent sent a letter to Petitioner explaining that the hardship request could not be granted, and, therefore, estate recovery could not be waived, because Petitioner had not provided evidence to show that she lived in the residence at 531 Battleground Road for twelve months prior to the death of Mayzell Hovis.
16. In her testimony, Petitioner admitted that she owned the real property located at 198 Horseshoe Lake Road, that she lived in and received mail at both 198 Horseshoe Lake Road and 531 Battleground Road for the twelve months immediately preceding the death of Mayzell Hovis. Additionally, Petitioner indicated that she and the decedent at times lived together in the property at 198 Horseshoe Lake Road in the twelve months preceding the death of Mayzell Hovis.
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 or has somehow acted 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.
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 her 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, based on all of the information presented to the court particularly in regard to the fact that Petitioner owned real property and maintained a residence at her property for at least some portion of the twelve months immediately preceding the death of Mayzell Hovis; 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 AFFIRMS Respondent’s denied of the claim of hardship
NOTICE AND ORDER
The Agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services. The Agency is required to give each party an opportunity to file exceptions to the recommended 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. The party aggrieved by the agency’s decision shall be entitled to immediate judicial review of the decision under Article 4 of this Chapter.
This the 24th day of August, 2009.
Selina M. Brooks
Administrative Law Judge