N.S. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES (DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3562-17T2

N.S.,

Petitioner-Appellant,

v.

DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES and ATLANTIC
COUNTY BOARD OF
SOCIAL SERVICES,

Respondents-Respondents.
___________________________

Argued telephonically May 29, 2019 – Decided July 3, 2019

Before Judges Sabatino and Mitterhoff.

On appeal from the New Jersey Department of Human
Services, Division of Medical Assistance and Health
Services.

Cari-Ann R. Levine argued the cause for appellant
(Cowart Dizzia LLP, attorneys for appellant; Lycette
Nelson, on the brief).

Jacqueline R. D'Alessandro, Deputy Attorney General,
argued the cause for respondent Division of Medical
 Assistance and Health Services (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Jacqueline R.
D'Alessandro, on the brief).

PER CURIAM

Petitioner N.S.1 appeals the final agency decision of the New Jersey

Division of Medical Assistance and Health Services ("the Division") denying

his application for Medicaid benefits. The Division found that N.S. failed to

timely provide verifications and documents needed to make an eligibility

determination. The Division also determined that N.S. was not entitled to a

spousal waiver under 42 U.S.C. § 1396r-5(c)(3). For the reasons that follow,

we reverse and remand with direction that the agency process N.S.'s application

and determine his eligibility for benefits.

I.

A.

On May 24, 2016, N.S., through his authorized representative, L.P.,

submitted an application for Medicaid benefits to the Atlantic County Medicaid

Long Term Care Unit ("the CWA").2 At that time, N.S. was eighty-seven years

1
N.S.'s daughter and legal guardian, L.P., applied for benefits on behalf of N.S.
2
A county welfare agency determines Medicaid eligibility. N.J.S.A. 30:4D-7a;
N.J.A.C. 10:71-2.2(a).
A-3562-17T2
2
old residing in long-term nursing care at Hammonton Center for Rehabilitation

and Healthcare ("Hammonton Center"). Prior to his admission to Hammonton

Center in August 2015, N.S. resided with his wife, D.S. At the time of N.S.'s

application, D.S. was eighty-six years old.

On the same date the application was submitted, the CWA sent L.P. a

written notification that additional documentation was required in order to

process the application, including information concerning N.S.'s life insurance,

bank statements, and marriage certificate. The CWA also requested information

regarding D.S.'s income and resources, social security number, and date of birth.

On June 13, 2016, L.P., on behalf of N.S., appointed Jannell Thomas, the

Medicaid coordinator for Hammonton Center, as an authorized representative of

N.S. On June 14, 2016, L.P. provided the CWA with some of N.S.'s bank

statements, N.S.'s marriage license, and D.S.'s social security number and date

of birth. L.P. also informed the CWA that N.S. did not have a life insurance

policy and that N.S. paid $900 rent to lease an apartment, but the lease was not

in his name. L.P. noted in her correspondence that she "was unable to obtain

any additional information from [D.S.]."

On June 21, 2016, a CWA caseworker requested additional

documentation, including N.S.'s bank statements from February to June of 2016,

A-3562-17T2
3
and a close out statement and transaction history for N.S.'s certificate of deposit

("CD"), and N.S.'s rental lease. The caseworker also requested quarterly bank

statements for all of N.S.'s accounts for the past five years and information

regarding N.S.'s income.

On July 21, 2016. L.P. emailed the caseworker cancelled checks and bills

for transactions L.P. had made with money from N.S.'s accounts. L.P. noted she

was still trying to obtain a transaction image for a December 2014 deposit in

question, as well as the lease. The caseworker responded the next day, again

requesting information regarding D.S.'s income and resources.

On July 27, 2016, L.P. emailed the caseworker and notified her that the

bank would not provide a transaction image for the December 2014 deposit

because the account was in N.S.'s name. L.P. informed the caseworker that D.S.

could not locate a copy of the lease, but provided the landlord's contact

information. L.P. also disclosed that N.S. was self-employed for many years,

but "stopped working due to poor health a few years ago." L.P. noted that N.S.

purchased a van for his business in 2012. L.P. had paid the insurance on the van

after her father had stopped working so that it could remain parked on the street.

On July 28, 2018, the CWA caseworker responded to L.P, requesting

information regarding N.S.'s 2016 income and resources and any business

A-3562-17T2
4
accounts for N.S.'s business. On August 2, 2016, the CWA sent a letter to L.P.

requesting: (1) the date on which N.S.'s business closed, and if it closed within

the previous five years, documents regarding the business; (2) D.S.'s income and

resource documents; and (3) a transaction image for the December 2014 deposit.

The letter informed that these documents must be provided within ten days or

N.S.'s application would be dismissed.

On August 4, 2016, L.P. emailed the caseworker and informed her that

N.S. did not have a business account. On August 5, 2016, L.P. provided a copy

of N.S.'s lease. On August 8, 2016, the caseworker emailed L.P. again asking if

N.S. had any business accounts and requesting D.S.'s income and resource

information.

L.P. replied via email the same day and indicated that N.S. had been self-

employed as a paper wall-scraper, but had not worked during the previous five

years due to his age and other health issues. L.P. reiterated: "[N.S.] does not

have any bank accounts, nor does he have a business bank account. I have

presented you all of his banking information. I can provide you with a signed

statement from me if needed." L.P. also indicated that the bank had agreed to

release the transaction image for the December 2014 deposit and attached

A-3562-17T2
5
"verification."3 Finally, L.P. requested an extension to obtain any outstanding

documentation.

On August 10, 2016, Hammonton Center's attorney sent a letter to the

CWA requesting that N.S.'s application be processed without regard to D.S.'s

income and resource information. The letter stated that "42 U.S.C. § 1396r-5,

known as the 'spousal refusal provision,' prohibits the denial of Medicaid

coverage to individuals whose spouses refuse to cooperate with the state." The

letter provided that L.P. had been unable to obtain D.S.'s information through

no fault of her own, and that Jannell Thomas had sent three letters requesting

financial information to D.S. in June and July 2016, but that the letters were

returned as unclaimed. The letter also argued that "[a]ny denial of [N.S.]'s

application because of his spouse's refusal to provide information would . . .

cause an undue hardship on [N.S.]" under 42 U.S.C. § 1396r-5(c)(3).

After receiving the correspondence from Hammonton Center, the CWA

caseworker replied via email to L.P. According to the caseworker, it "d[id] not

matter how many attempt[s] [Jannell Thomas] made to get information from

3
The attachment is not contained in the appellate record. It is unclear whether
the transaction image was attached to the email. On August 29 and 31, 2016,
the caseworker emailed L.P. again requesting a transaction image for the
December 2014 deposit, as well as N.S.'s bank statements from June 22, 2016
to present.
A-3562-17T2
6
[D.S.], it does not count. I have to send her notice." The caseworker also stated

that the application could not be processed without D.S.'s income and resource

information. In addition, the caseworker requested documentation confirming

that N.S.'s business was not active.

After L.P. provided D.S.'s address, the CWA sent three notices directly to

D.S. requesting the needed information on August 15, 22, and 29, 2016. D.S.

did not respond to any of these requests. On August 31, 2016, the CWA sent

L.P. a letter advising that the application could not be processed without D.S.'s

information because N.S. and D.S. were legally married and had been living

together before N.S. was admitted to Hammonton Center. The letter provided

that the application would be closed if D.S.'s information was not provided by

September 9, 2016. The letter did not address N.S.'s previous request for a

spousal waiver based on D.S.'s failure to cooperate.

On September 9, 2016, Hammonton Center's attorney sent the CWA

another letter requesting a spousal waiver under 42 U.S.C. § 1396r-5 and that

the application be processed without regard to D.S.'s resources. On the same

date, the CWA sent written notice to L.P. that N.S.'s application had been denied

for failure to provide necessary documentation.

D.S. died on October 2, 2016. N.S. died on November 30, 2016.

A-3562-17T2
7
 B.

L.P. timely requested a fair hearing on N.S.'s behalf. A fair hearing was

held on December 5, 2017 before an administrative law judge ("ALJ") in the

Office of Administrative Law.

Barbara Paugh, the assistant administrator and supervisor of the Medicaid

unit, testified first for the CWA. Paugh testified that at the time of the denial of

N.S.'s application, information regarding the following items was outstanding:

(1) N.S.'s business accounts or business tax returns; (2) N.S.'s work van; (3) the

distribution of funds from N.S.'s CD; and (4) D.S.'s income and resources. Paugh

stated that the CWA required images of all checks for all bank accounts, and

that N.S. did not provide images for all transactions in question.

Paugh also testified that it was not necessary to forward L.P.'s request for

a spousal waiver to the Division because the spouses were living together prior

to N.S.'s admission to Hammonton Center and there was no history of spousal

abuse. Paugh noted that the CWA generally requires three failed attempts to

contact an uncooperative spouse before it transmits a spousal waiver request to

the Division.

Jannell Thomas testified for N.S. Thomas testified that she was aware

L.P. was having difficulty retrieving D.S.'s information and recommended that

A-3562-17T2
8
L.P. submit a request a spousal waiver to the CWA. Thomas, who had

previously worked for the CWA, sent three letters via certified mail to N.S.

because she believed such documentation was necessary to receive a spousal

waiver.

L.P. testified primarily via an affidavit because she has a voice disability,

but supplemented her affidavit with some live testimony and cross-examination.

L.P. testified that she is not close with D.S. because D.S. is L.P.'s step-mother.

After submitting the application. L.P. visited D.S. two times at D.S.'s home to

request her information and documentation. D.S. provided some information

initially, but became upset when pressed for more documents. D.S. told L.P. to

stop asking for the information because it was causing her stress. L.P. explained

that D.S. "wasn't well [out of microphone range] in a wheelchair. And she had

a husband who was in a nursing home and it was causing her stress." L.P.'s

husband also visited D.S. to request information, but D.S. asked them stop

pressuring her because it was making her sick.

L.P. also testified that she was appointed as N.S.'s guardian in January

2016. The ALJ requested that L.P. supplement the record with her complaint

for guardianship.

A-3562-17T2
9
 On January 19, 2018, the ALJ issued an initial decision affirming the

CWA's denial of benefits. The ALJ found that the CWA properly denied N.S.'s

application for benefits because, as testified to by Paugh, L.P. failed to provide

all the information requested by the CWA. The ALJ noted that L.P. provided

an affidavit of N.S.'s assets in support of the guardianship complaint, which

identified N.S.'s bank account, CD, and vehicle. The ALJ reasoned that as N.S.'s

guardian, L.P. could obtain the outstanding documentation requested by the

CWA. For these reasons, the ALJ found that "[e]ven if D.S.'s income and

resources were excluded, petitioner failed to produce his own information."

The ALJ also rejected N.S.'s argument that the CWA acted arbitrarily and

capaciously in failing to process the requests for a spousal waiver. The ALJ

found that there was no evidence in the record that there was a break in marital

ties or that D.S. was suffering from any illness which prevented her from

providing the requested information. Overall, the ALJ found that there were no

"exceptional circumstances" excusing the failure to submit the necessary

verifications or warranting an extension of time to provide the outstanding

documents.

On March 1, 2018, the Division adopted the ALJ's initial decision. The

Division noted that is does waive the spousal resource assessment for an undue

A-3562-17T2
10
hardship pursuant to 42 U.S.C. § 1396r-5(c)(3) "in certain circumstances where

there has been a break in the marital ties and the community spouse refuses to

cooperate with the eligibility determination." The Division found, however, that

N.S.'s request for a spousal waiver was properly denied because "[t]here is no

evidence in the record to support a finding that there was a break in marital ties

between [N.S.] and his wife. Nor is there evidence to support that either [N.S.]

or his family was not in contact with his wife."

II.

On appeal, N.S. contends that DMAHS misapplied 42 U.S.C. § 1396r-

5(c)(3)(A) by failing to accept N.S.'s assignment of support to the State in his

Medicaid application as a basis for a spousal waiver. N.S. also contends that

DMAHS misapplied 42 U.S.C. § 1396r-5(c)(3)(C). He argues that the agency’s

estrangement requirement for a spousal waiver based on an undue hardship is

overly restrictive, and that a spousal waiver should be granted when the

community spouse is uncooperative because of his or her own health and age.

Finally, N.S. argues that the Division's decision was arbitrary and capricious in

upholding the CWA's refusal to forward the requests for a spousal waiver to the

Division.

A-3562-17T2
11
 The Division responds that 42 U.S.C. § 1396r-5(c)(3)(A) is inapplicable

because N.S. was never deemed eligible for Medicaid benefits and therefore had

not yet made a valid assignment of his rights. In addition, the Division argues

that an undue hardship waiver was inappropriate under 42 U.S.C. § 1396r-

5(c)(3)(C) because no illness prevented D.S.'s cooperation, the spouses were not

estranged, and they lived together prior to N.S.'s admission to Hammonton

Center. The Division posits that accepting N.S.'s arguments "would allow any

spouse to refuse to cooperate and have their income and resource information

excluded from the institutionalized spouse's eligibility determination."

A.

We review a final agency decision to determine whether the decision was

arbitrary, capricious or unreasonable. E.S. v. Div. of Med. Assistance & Health

Servs., 412 N.J. Super. 340, 348 (App. Div. 2010). "The burden of

demonstrating the agency's action was arbitrary, capricious or unreasonable

rests upon the [party] challenging the administrative action." Id. at 349 (quoting

In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006)). We consider:

(1) whether the agency action violates the enabling act's
express or implied legislative policies; (2) whether
there is substantial evidence in the record to support the
findings upon which the agency based application of
legislative policies; and (3) whether, in applying the
legislative policies to the facts, the agency clearly erred

A-3562-17T2
12
 by reaching a conclusion that could not reasonably have
been made upon a showing of the relevant factors.

[H.K. v. Div. of Med. Assistance & Health Servs., 379
N.J. Super. 321, 327 (App. Div. 2005) (quoting Public
Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95,
103 (1985)).]

See also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 589 (1988) (noting that

the "sense of 'wrongness' [necessary to overturn an administrative decision] can

arise in numerous way—from manifest lack of inherently credible evidence to

support the finding, obvious overlooking or underevaluation of crucial evidence,

a clearly unjust result, and many others." (quoting State v. Johnson, 42 N.J. 146,

162 (1964)).

In conducting this review, we "defer to the specialized or technical

expertise of the agency charged with administration of a regulatory system."

K.K. v. Div. of Med. Assistance & Health Servs., 453 N.J. Super. 157, 160 (App.

Div. 2018) (quoting In re Virtua-W. Jersey Hosp.Voorhees for Certificate of

Need, 194 N.J. 413, 422 (2008)). In general, "[w]e give deference 'to the

interpretation of statutory language by the agency charged with the expertise

and responsibility to administer the scheme[.]'" Zimmerman v. Sussex Cty.

Educ. Servs. Comm'n, 237 N.J. 465, 475-76 (2019) (quoting Acoli v. State

Parole Bd., 224 N.J. 213, 229 (2016)). Nonetheless, we are "in no way bound

A-3562-17T2
13
by the agency's interpretation of a statute or its determination of a strictly legal

issue." Univ. Cottage Club of Princeton New Jersey Corp. v. New Jersey Dep't

of Envtl. Prot., 191 N.J. 38, 48 (2007) (quoting In re Taylor, 158 N.J. 644, 658

(1999)).

B.

"Medicaid is a federally-created, state-implemented program that

provides 'medical assistance to the poor at the expense of the public.'" In re

Estate of Brown, 448 N.J. Super. 252, 256 (App. Div. 2017) (quoting Estate of

DeMartino v. Div. of Med. Assistance & Health Servs., 373 N.J. Super. 210,

217 (App. Div. 2004)); see 42 U.S.C. § 1396-1. "Although a state is not required

to participate, once it has been accepted into the Medicaid program it must

comply with the federal Medicaid statutes and regulations." Ibid. (citing Harris

v. McRae, 448 U.S. 297, 301 (1980)).

In New Jersey, the Medicaid program is administered by the Division

pursuant to the New Jersey Medical Assistance and Health Services Act,

N.J.S.A. 30:4D-1 to -19.5. Through its regulations, the Division establishes

"policy and procedures for the application process." N.J.A.C. 10:71-2.2(b).

Local county welfare agencies evaluate Medicaid eligibility. N.J.S.A.

30:4D-7a; N.J.A.C. 10:71-1.5, 2.2(c). An applicant must establish "eligibility .

A-3562-17T2
14
. . in relation to each legal requirement to provide a valid basis for granting or

denying medical assistance." N.J.A.C. 10:71-3.1. "The CWA exercises direct

responsibility in the application process to . . . [a]ssist the applicants in exploring

their eligibility for assistance." N.J.A.C. 10:71-2.2(c)(3). Similarly, an

applicant shall "[a]ssist the CWA in securing evidence that corroborates his or

her statements." N.J.A.C. 10:71-2.2(e)(2). The CWA "review[s] . . . the

application for completeness, consistency, and reasonableness." N.J.A.C.

10:71-2.9.

"[T]o be financially eligible [for benefits], the applicant must meet both

income and resource standards." Brown, 448 N.J. Super. at 257 (citing N.J.S.A.

10:71-3.15). Specifically, "[t]he regulations governing an individual's

eligibility for Medicaid reimbursement of nursing home costs provide that in

order for an individual to participate in the Medicaid Only Program, the value

of that individual's resources may not exceed $2,000." H.K. v. State, 184 N.J.

367, 380 (2005) (footnote omitted) (citing N.J.A.C. 10:71-4.5(c)). To determine

eligibility, the agency evaluates the available assets both of the "institutionalized

spouse" and the "community spouse" during a five-year "look back" period.

N.J.A.C. 10:71-4.8; N.J.A.C. 10:71-4.10(b)(9); see also 42 U.S.C. § 1396r-

5(c)(1)(A).

A-3562-17T2
15
 C.

With this background in mind, we turn to questions presented in this

appeal. Having carefully reviewed the administrative record and the relevant

statutory provisions, we reverse the final agency decision because the Division's

denial of a spousal waiver for an undue hardship was arbitrary and capricious.4

Initially, we agree with N.S. that the Division employed an overly narrow

construction of an "undue hardship" in relying solely on the fact that N.S. and

D.S. were living together and were not estranged prior to N.S.'s admission to

Hammonton Center. 42 U.S.C. § 1396r-5(c)(3)(C) provides: "The

institutionalized spouse shall not be ineligible by reason of resources determined

. . . to be available for the cost of care where . . . the State determines that denial

of eligibility would work an undue hardship." The statute does define "undue

hardship."

Although we accord deference to the Division's interpretation of the

Medicaid Act, we find it significant that the Division cites no authority, or even

informal guidance, expressing the requirement that spouses be estranged in

order to receive a spousal waiver for an undue hardship under 42 U.S.C. § 1396r-

4
Having determined that N.S. should be entitled to a spousal waiver for an
undue hardship, we need not address N.S.'s remaining arguments for reversal.
A-3562-17T2
16
5(c)(3)(C). While "[d]eference to an agency decision is particularly appropriate

where interpretation of the [a]gency's own regulation is in issue[,]" I.L. v. N.J.

Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 389 N.J.

Super. 354, 364 (App. Div. 2006), the Division has not promulgated regulations

interpreting the spousal waiver requirements in 42 U.S.C. § 1396r-5(c)(3)(C).5

Ultimately, we are not bound by the Division's interpretation and "we will not

uphold an unreasonable interpretation[.]" Zimmerman, 237 N.J. at 476.

Under the distinctive facts of this case, we conclude that the Division's

interpretation is arbitrary, capricious, and unreasonable. In concluding that N.S.

was not entitled to a spousal waiver based on undue hardship, the Division and

the ALJ disregarded unrebutted evidence in the record that: (1) D.S. was eighty-

six years old and had asked L.P. to stop requesting information because it was

causing her stress; (2) D.S. did not respond to six letters requesting information,

both from the CWA and from Jannell Thomas; (3) the CWA's usual policy was

5
The Division also does not cite any informal written guidance it has issued
regarding the spousal waiver requirements. See E.B. v. Div. of Med. Assistance
& Health Servs., 431 N.J. Super. 183, 206 (App. Div. 2013). An agency,
however, may not offer an interpretation through informal means and must
engage in formal rulemaking when its interpretation constitutes an
"administrative rule." See Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J.
313, 331-32 (1984) (providing factors to consider in assessing whether an
agency action is an administrative rule).
A-3562-17T2
17
to forward a spousal waiver request to the Division after three unsuccessful

attempts to obtain information from the spouse; (4) L.P. was appointed as N.S.'s

guardian because N.S. could not manage his own affairs; and (5) L.P. did not

have a close relationship with her stepmother. The Division ignored all this

evidence that would support a finding of undue hardship, instead placing

inordinate weight on the fact that the spouses were not estranged prior to N.S.'s

admission to Hammonton Center. See Trantino v. New Jersey State Parole Bd.,

166 N.J. 113, 189 (2001) (reversing the Parole Board's decision based upon "the

Board's selective and arbitrary reliance on only those portions of the record that

could possibly support the Board's conclusion."). A determination of undue

hardship should be a fact-sensitive inquiry taking into account the totality of the

circumstances.

We also find no indication in the record that N.S. was intentionally

refusing to cooperate with the CWA so that her resources would be excluded

from the eligibility determination. To the contrary, L.P.'s testimony reflected

that N.S.'s refusal to cooperate stemmed from her stress that her husband was in

a nursing home and that L.P. was pressuring her to provide documents. N.S.'s

contention that D.S.'s age and health prevented her from complying with the

requests for documents is further supported by the fact that N.S. passed away

A-3562-17T2
18
only months after N.S. submitted his application for benefits. In these ways, we

find the Division's policy argument to be misplaced on the facts of this case.

For these reasons, we conclude that the Division's denial of N.S.'s request

for a spousal waiver was arbitrary and capricious. In applying 42 U.S.C. §

1396r-5(c)(3)(C) to the facts of this case, "the agency clearly erred by reaching

a conclusion that could not reasonably have been made upon a showing of the

relevant factors." H.K., 379 N.J. Super. at 327 (quoting Public Serv. Elec., 101

N.J. 95 at 103). Accordingly, we hold that N.S. is entitled to a spousal waiver

for an undue hardship pursuant to 42 U.S.C. § 1396r-5(c)(3)(C) and remand to

the agency to determine N.S.'s eligibility for Medicaid benefits without regard

to D.S's resources.

We also conclude that the ALJ's findings, adopted by the Division, that

there were outstanding items regarding N.S.'s business and assets, are not

supported by substantial evidence in the record. As detailed above, L.P.

corresponded extensively with the CWA caseworker in attempting to

accommodate the various requests for information and documents. Although

the ALJ implicitly credited Paugh's testimony regarding the information that

was outstanding, her testimony was belied by documentary evidence in the

record.

A-3562-17T2
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 Paugh testified that information regarding N.S.'s work van was needed,

but L.P. had provided information regarding the van in an email to the

caseworker on July 27, 2016. None of the CWA's subsequent correspondence

with L.P., including the notices of outstanding documents sent on August 10 and

31, 2016, requested further information about the work van. Similarly, Paugh

testified that L.P. did not provide information regarding business accounts or

business tax returns, but L.P. notified the caseworker on August 8 that N.S. did

not have a business account and had not worked during the five-year look back

period. The CWA's August 31, 2016 notice did not request further information

about N.S.'s business. Based on the documentary evidence in the record of L.P.'s

communications with the caseworker, we conclude that the ALJ's finding that

L.P. failed to provide information requested by the CWA about the N.S.'s work

van and business is clearly mistaken and not supported by substantial evidence

in the record. See Campbell v. New Jersey Racing Comm'n, 169 N.J. 579, 587-

88 (2001) (providing that an appellate court may overturn an agency's fact

finding where it "is clearly a mistaken one and so plainly unwarranted that the

interests of justice demand intervention and correction." (quoting Clowes, 109

N.J. at 588)).

A-3562-17T2
20
 We similarly conclude that the record lacks support for the ALJ's finding

that L.P. failed to provide information regarding the distribution of N.S.'s C.D.

and images of checks for bank accounts. The CWA's August 2, 2016 letter

requested a transaction image for a December 2014 deposit, but did not request

any other images for checks or transactions or any other information regarding

the distribution of funds from the CD. On August 8, 2016, L.P. notified the

caseworker that the bank had agreed to release this transaction image and

attached "verification." As noted above, the record is ultimately unclear as to

whether L.P. provided the transaction image for the 2014 deposit, but the CWA

did not request this transaction image in the final notice it provided to L.P. on

August 31, 2016 before denying N.S.'s application for benefits. Likewise, the

CWA's August 31, 2016 letter did not request any other transactions images or

information about the distribution of funds from CD. Ultimately, the record

reveals that the CWA's multiple requests for information were not consistent

and failed to conclusively specify what documentation was needed.

For these reasons, we hold that the ALJ's finding that "[e]ven if D.S.'s

income and resources were excluded, petitioner failed to produce his own

information" is not supported by substantial evidence in the record. Therefore,

A-3562-17T2
21
we direct the agency to process N.S.'s application for benefits based upon the

information and documents already submitted.

In summary, we reverse the Division's final agency decision and remand

with direction that the agency timely process N.S.'s application and determine

his eligibility for benefits without regard to D.S.'s income and resources.

Reversed and remanded. We do not retain jurisdiction.

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