B.M. 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NOT FOR PUBLICATION WITHOUT THE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-3546-16T3

B.M.,

Petitioner-Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES,

Respondent-Respondent.
______________________________

Argued August 14, 2018 – Decided August 29, 2018

Before Judges Sumners and Gilson.

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

Laurie M. Higgins argued the cause for
appellant (SB2 Inc., attorneys; John
Pendergast, on the briefs).

Jacqueline R. D'Alessandro, Deputy Attorney
General, argued the cause for respondent
(Gurbir S. Grewal, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Jacqueline R. D'Alessandro, on the
brief).
PER CURIAM

Esther Schulgasser, the authorized representative for

petitioner B.M., appeals from the inaction of the Division of

Medical Assistance and Health Services (Division). She contends

that the Division failed to submit two of its decisions regarding

B.M.'s Medicaid eligibility to the Office of Administrative Law

(OAL), despite B.M.'s requests for fair hearings.

The record presented to us is confusing and incomplete. What

is clear is that Schulgasser filed a series of Medicaid

applications on behalf of B.M. The Passaic County Board of Social

Services (County Board), denied three of those applications and

partially granted another. Schulgasser contends that she

requested fair hearings on all four County Board actions. That

is not clear from the record. The record reflects that the

Division transmitted two of the denials to the OAL, which were

docketed for fair hearings. Both of those fair hearing requests

were later withdrawn. The hearing requests on another denial and

a partial grant were never acknowledged by the Division and,

apparently, never transmitted to the OAL for hearings.

Due to the procedural deficiencies in this record, and

Schulgasser's failure to preserve B.M.'s right to fair hearings,

we dismiss the appeal.

2 A-3546-16T3
 I.

What we can glean from the incomplete record before us is

that Schulgasser was designated B.M.'s authorized representative

in January 2016. Thereafter, Schulgasser made a series of Medicaid

applications on behalf of B.M. between January 2016 and August

2016. B.M.'s first Medicaid application was denied by the County

Board on February 22, 2016, for failure to provide required

information. Schulgasser requested a fair hearing on that denial

and, on April 18, 2016, the Division acknowledged receipt of the

hearing request. On April 19, 2016, the fair hearing request was

filed in the OAL under docket number 06057-16.

The County Board denied another of B.M.'s Medicaid

applications on April 18, 2016. Again, the County Board advised

that B.M. failed to provide required information. Schulgasser

contends that she submitted another fair hearing request on May

2, 2016. It is not clear that the Division ever received that

request. While the record contains a fax cover sheet dated May

2, 2016, no confirmation page was included in the appendix to show

that the request was successfully delivered. In addition, the

Division never acknowledged receipt of that hearing request.1

1
In its brief, the Division contends that the fair hearing request
regarding the April 18, 2016 denial was transmitted to the OAL.
The documents submitted in the appendices do not support that
contention.

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 The parties appeared in the OAL for a fair hearing on June

27, 2016. Prior to the hearing, counsel for B.M. and the Division

conferenced the case and realized they were not clear about which

denial was scheduled. Counsel for B.M. agreed to withdraw the

hearing request for the February 22, 2016 denial, but maintained

that "[a]ll other appeal/fair hearing requests remain in effect."

On July 25, 2016, counsel for B.M. wrote a letter to the

administrative law judge (ALJ) to "clarify some confusion." He

explained that he only intended to withdraw the hearing request

for the February 22, 2016 denial, and requested that the hearing

for the April 18, 2016 denial be relisted for a new date. The ALJ

responded on August 15, 2016, stating that the OAL did not have

any documents pertaining to the April 18, 2016 denial. Thus, the

ALJ advised that if counsel intended to pursue a fair hearing on

the April 18, 2016 denial, he would need to re-submit that request.

Over four months later, on December 22, 2016, Schulgasser

attempted to re-submit the fair hearing request for the April 18,

2016 denial. Critically, however, she re-submitted the February

22, 2016 hearing request instead. Schulgasser submitted the

incorrect hearing request for a second time on January 24, 2017.

Thus, the Division was never provided with a fair hearing request

for the April 18, 2016 denial of benefits. Unfortunately, while

4 A-3546-16T3
Schulgasser was attempting to re-submit that hearing request, B.M.

passed away on December 31, 2016.

In the meantime, the County Board had denied another of B.M.'s

Medicaid applications on July 1, 2016. Schulgasser requested

another fair hearing on that denial of benefits. The County Board

acknowledged that hearing request on July 21, 2016. On August 10,

2016, the fair hearing request was filed in the OAL under docket

number 11971-16.

On August 11, 2016, the County Board partially approved one

of B.M.'s applications and granted her Medicaid benefits

retroactively from May 1, 2016 to August 1, 2016. Schulgasser

claims to have submitted yet another fair hearing request on August

22, 2016, regarding the partial grant of Medicaid benefits. That

hearing request was neither acknowledged by the Division, nor

docketed in the OAL.

On January 4, 2017, counsel for B.M. withdrew the fair hearing

request for the July 1, 2016 denial. Counsel submitted a letter

to the ALJ stating: "The Medicaid application denied by [the County

Board] upon which the fair hearing is based has since been

approved. I therefore ask that the fair hearing currently

scheduled for tomorrow be cancelled." From what we can discern

from the sparse record before us, the partial grant of Medicaid

benefits on August 11, 2016, covered the benefits previously denied

5 A-3546-16T3
by the County Board on July 1, 2016. Counsel's letter to the ALJ

made no reference to a hearing request for the August 11, 2016

partial grant of benefits. To the contrary, the letter stated the

Medicaid application was approved and it did not state that there

was any remaining issue.

Two months later, on March 7, 2017, counsel sent a letter to

the Division stating that two of B.M.'s fair hearing requests had

not been transmitted to the OAL. Specifically, counsel identified

the hearing requests for the April 18, 2016 denial and the August

11, 2016 partial grant. He also attached copies of those hearing

requests as exhibits to the letter. The Division did not reply

to counsel's letter. This appeal followed.

II.

Schulgasser contends that the denial and partial grant of

B.M.'s Medicaid applications should either be reversed, or

remanded to the OAL for fair hearings. Based upon the procedural

deficiencies presented on this record, and Schulgasser's failure

to preserve B.M.'s right to fair hearings, we decline to reverse

or compel any hearings on the April 18, 2016 denial and August 11,

2016 partial grant of B.M.'s applications.

The New Jersey Medical Assistance and Health Services Act,

N.J.S.A. 30:4D-1 to -19.5, authorizes New Jersey's participation

in the federal Medicaid program. The Division is the agency within

6 A-3546-16T3
the Department of Human Services that administers the Medicaid

program. N.J.S.A. 30:4D-7. In that regard, the Division has

broad authority to administer the State Medicaid programs, and

issue "all necessary rules and regulations" to implement those

programs. Ibid.

Under the regulations, if an application for Medicaid is

denied, "[i]t is the right of every applicant . . . to be afforded

the opportunity for a fair hearing in the manner established by

the policies and procedures set forth in N.J.A.C. 10:49-10 and

10:69-6." N.J.A.C. 10:71-8.4(a). In that regard, applicants have

the right to fair hearings when "their claims . . . are denied or

are not acted upon with reasonable promptness[.]" N.J.A.C.

10:49-10.3(b). Requests for fair hearings must be submitted to

the Division in writing within twenty days of the denial,

reduction, or partial denial of Medicaid benefits. N.J.A.C.

10:49-10.3(b)(1) and (3).

Here, Schulgasser failed to re-submit the hearing request for

the April 18, 2016 denial of benefits as the ALJ directed.

Instead, she re-submitted the hearing request for the February 22,

2016 denial of benefits on two separate occasions. That fair

hearing request was never perfected and, therefore, we decline to

remand that matter for a hearing.

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 As to the hearing request for the August 11, 2016 partial

grant of benefits, the record is not clear as to what documents

were actually sent to the Division in August 2016.2 The incomplete

record before us does not allow for a meaningful review of this

argument. See R. 2:6-1(a)(1) (stating an appellant's appendix

must contain parts of the record "essential to the proper

consideration of the issues."). Accordingly, on this record, we

decline to compel a hearing on the August 11, 2016 partial grant

of benefits.

Having determined that B.M.'s right to fair hearings was not

properly preserved, we need not decide the separate issue of

whether Schulgasser's authority to pursue this appeal as B.M.'s

authorized representative was extinguished when B.M. passed away

in December 2016.

Dismissed.

2
The record contains a fax cover page dated August 22, 2016. The
heading of that cover page, however, indicates that it was sent
as a single page without attachments. The next two pages are
devoid of any fax headings to establish that they were attached
to the cover page, and the confirmation page is dated August 23,
2016.

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