NOT FOR PUBLICATION WITHOUT THE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-4168-16T2
M.K.,
Petitioner-Appellant,
v.
DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES,
Respondent-Respondent.
Submitted November 15, 2018 – Decided December 7, 2018
Before Judges Simonelli and O'Connor.
On appeal from the New Jersey Department of Human
Services, Division of Medical Assistance and Health
Services.
SB2, Inc., attorneys for appellant (John P. Pendergast
and Laurie M. Higgins, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Jacqueline R. D'Alessandro,
Deputy Attorney General, on the brief).
PER CURIAM
This appeal concerns a request made to the Division of Medical Assistance
and Health Services (DMAHS) to transmit an application for an undue hardship
waiver to the Office of Administrative Law (OAL) for a fair hearing. For the
reasons that follow, we dismiss this appeal.
The following facts inform our review. On June 16, 2015, M.K. executed
a Designation of Authorized Representative (DAR) appointing Joe Mandelbaum
of Senior Planning Services as M.K.'s authorized representative to submit an
application for Medicaid benefits and take any action necessary to establish
M.K.'s eligibility (the Mandelbaum DAR). M.K. initialed the line that stated:
"I understand that I may revoke this authorization at any time by notifying the
[a]uthorized [r]epresentative and the CWA/ISS in writing."
In August 2015, Mandeldaum submitted an application to the Atlantic
County Medicaid Long Term Care Unit (CWA) for long-term care Medicaid
benefits for M.K. On November 18, 2015, the CWA notified Mandelbaum that
M.K. was financially and medically eligible for long-term care Medicaid
benefits subject to a 423-day penalty due to a transfer of assets for less than fair
market value, in violation of N.J.A.C. 10:71-4.10, and benefits would commence
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on July 29, 2016. Mandelbaum did not request a fair hearing or an undue
hardship waiver of the penalty.
On December 8, 2015, SB2, a law firm representing the nursing home
facility where M.K. was residing, advised the CWA that Stacey DiFilippo, an
employee of the nursing home facility, had retained SB2 with regard to M.K.'s
Medicaid application. SB2 submitted a DAR purportedly signed by M.K. on
December 7, 2015, appointing DiFilippo as his authorized representative (the
DiFilippo DAR). SB2 also requested an undue hardship waiver for M.K.
M.K. died on September 9, 2016. On March 9, 2017, SB2 advised
DMAHS that it "ha[d] been retained to represent [M.K.] by his authorized
representative[,]" and attached the DeFilippo DAR. SB2 alleged the CWA had
verbally advised an attorney from SB2 that M.K.'s undue hardship waiver
application was denied, but the CWA did not send a denial notice. SB2
requested that DMAHS transmit the matter to the OAL for a fair hearing.
In a March 10, 2017 email to DMAHS and an attorney from SB2, the
CWA stated it did not advise the attorney that the request for a fair hearing was
denied. The CWA also stated it advised the attorney that the DiFilippo DAR
was incomplete and not valid because it lacked the dates that DiFilippo and the
witness to her signature signed the form. The CWA further stated it had a valid
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3
DAR appointing Mandelbaum as M.K.'s authorized representative, it never
received notice that the Mandelbaum DAR was revoked, and Mandelbaum was
advised of the 423-day penalty and did not request a fair hearing. The CWA
averred that SB2 had no authority to act on M.K.'s behalf and no standing to
request the undue hardship waiver. Lastly, the CWA stated that even if the
DiFilippo DAR was valid, it expired on M.K.'s death.
In a March 17, 2017 letter to SB2, DMAHS confirmed the statements in
the CWA's March 10, 2017 email, and concluded there was no actionable waiver
application before the CWA and no evidence that M.K.'s estate had retained SB2
to represent the estate's interests. This appeal followed.
42 C.F.R. § 435.923(c) provides as follows:
The power to act as an authorized representative is valid
until the applicant or beneficiary modifies the
authorization or notifies the agency that the
representative is no longer authorized to act on his or
her behalf, or the authorized representative informs the
agency that he or she no longer is acting in such
capacity, or there is a change in the legal authority upon
which the individual or organization's authority was
based. Such notice must be in accordance with [42
C.F.R. § 435.923(f)] of this section and should include
the applicant or authorized representative's signature as
appropriate.
[(Emphasis added).]
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A DAR is analogous to a limited power of attorney. See N.J.S.A. 46:2B-
8.2 ("A power of attorney is a written instrument by which an individual known
as the principal authorizes another individual . . . known as attorney-in-fact to
perform specified acts on behalf of the principal as the principal's agent"). "A
power of attorney must be in writing, duly signed and acknowledged in the
manner set forth in [N.J.S.A.] 46:14-2.1." N.J.S.A. 46:2B-8.9. The
acknowledgement must include "the date on which the acknowledgement was
taken." N.J.S.A. 46:14-2.1(c)(5).
"The death of a principal who executed a written power of attorney,
durable or otherwise, does not revoke or terminate the agency as to the attorney-
in-fact or other person who, without actual knowledge of the death of the
principal, acts in good faith under the power." N.J.S.A. 46:2:-8.5(a) (emphasis
added). Further,
[a] power of attorney is revoked when the principal has
caused all executed originals of the power of attorney
to be physically destroyed; or when the principal has
signed and caused to be acknowledged in the manner
set forth in [N.J.S.A. 46:14-2.1] a written instrument of
revocation; or when the principal has delivered to the
attorney-in-fact a written revocation. Unless expressly
so provided, the subsequent execution of another power
of attorney does not revoke a power of attorney.
[N.J.S.A. 46:2B-8.10.]
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The DiFilippo DAR did not include the date on which DiFilippo and the
witness to her signature signed the form. See N.J.S.A. 46:14-2.1(c)(5). In
addition, the Mandelbaum DAR was not revoked in accordance with the
revocation terms of Mandelbaum DAR, see 42 C.F.R. § 435.923(c), and N.J.S.A.
46:2B-8.10, as there was no evidence that M.K. notified Mandelbaum and the
CWA in writing that he had revoked the Mandelbaum DAR. Accordingly, the
DiFilippo DAR was not valid and DiFilippo had no authority to act on M.K.'s
behalf.
Even assuming the DiFilippo DAR was valid, it terminated upon M.K.'s
death on September 9, 2016. 1 There can be no question that DiFilippo knew
M.K. had died, as she worked at the nursing facility where he resided. See
N.J.S.A. 46:2:-8.5(a). Moreover, M.K. was deceased for six months before SB2,
at Difilippo's behest, requested that DMAHS transmit the matter to the OAL for
a fair hearing. Thus, DiFilippo had no authority to act on M.K.'s behalf after his
death, including pursuing this appeal.
Appeal dismissed.
1
Appellant did not address this issue.
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