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STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ROBESON 06 DHR 2364

Egusta Ford
Petitioner
vs.
DMA
Third Party Recovery
Respondent / )
))
)
)))) / DECISION

The above-captioned case came on for hearing before Beecher R. Gray, Administrative Law Judge, on April 27, 2007 in Lumberton, North Carolina. Petitioner Egusta Ford appeared pro se. Respondent was represented by Susannah P. Holloway, Assistant Attorney General. Having heard all the evidence in the case, considered the exhibits and arguments, the undersigned finds the following:

APPLICABLE LAW

The instant case is governed by the following applicable law:

1. 42 U.S.C. § 1396p

2. N.C. Gen. Stat. § 108A-70.5

3. 10A N.C.A.C. 21D .0502

4. N.C. Gen. Stat. Chapter 150B, Administrative Procedure Act.

ISSUE PRESENTED

1. The issue presented for this Court’s review is whether the agency erred in denying Petitioner’s claim of undue hardship.

Based on the evidence presented, this Court makes the following:

FINDINGS OF FACT

1. That Petitioner’s father, Marvin Ford, received Medicaid services prior to his death which subjected his estate to a claim of estate recovery.

2. That Petitioner is the heir of his father Marvin Ford.

3. That Marvin Ford died owning the property located at 282 Progressive Farm Rd., Fairmont, N.C.

4. That Petitioner resided in the home located at 282 Progressive Farm Rd., Fairmont, N.C. for the 12 months prior to and including the date of Marvin Ford’s death.

5. That Petitioner’s grandson resides with him in the home and has resided with him for over one year.

6. That 100% of the Federal Poverty Guideline for year 2006 for a household of one is: $9,800.0 per year. That 75% of that figure is $7,350.00 per year.

7. That 100% of the Federal Poverty Guideline for year 2006 for a household of two is $13,200 per year. That 75% of that figure is $9,900.00 per year.

8. That Petitioner’s household net income is $8,604.00 per year.

9. That DMA made its initial agency decision denying Petitioner’s claim for hardship under 10A N.C.A.C. 21D.0502 analyzing Petitioner’s net income against the Federal Poverty Guidelines based on a household of one person and concluding that as a member of a household containing one individual, Petitioner’s net income was not below 75% of the Federal Poverty Guidelines.

10. That this Court finds as fact based on the evidence presented that Petitioner has two persons in his household: himself and his grandson.

11. That this Court finds as fact that under the Federal Poverty Guidelines for year 2006, for a household of two persons, Petitioner’s net income falls below 75% of the Federal Poverty Guidelines.

Based on these Findings of Fact, the Court makes the following

CONCLUSIONS OF LAW:

1. That the North Carolina Office of Administrative Hearings has jurisdiction over the parties and subject matter of this contested case.

2. That DMA erred in concluding that Petitioner did not meet the criteria set forth in 10A N.C.A.C. 21D.0502 defining hardship for purposes of waiving estate recovery.

3. That Petitioner does meet the criteria defining hardship under the North Carolina Administrative Code.

4. That the initial agency decision should be overruled.

DECISION

The initial determination of the Division of Medical Assistance, denying a hardship waiver to Petitioner, is overturned and estate recovery by the Division of Medical Assistance shall be waived on the basis of undue hardship.

NOTICE

The agency making the final decision in this contested case shall adopt the Decision of the Administrative Law Judge unless the agency demonstrates that the Decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. The agency is required to give each party an opportunity to file exceptions to this Decision issued by the Undersigned, and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

The agency that will make the final decision in this case is the North Carolina Department of Health and Human Services. This 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.

This the 14th day of May, 2007.

______

Beecher R. Gray

Administrative Law Judge