Anderson v. State ex rel. Dep't of Health

430 P.3d 1162

Lucile ANDERSON, Appellant (Petitioner),

v.STATE of Wyoming EX REL. DEPARTMENT OF HEALTH, Appellee (Respondent).

S-18-0050

Supreme Court of Wyoming.

December 4, 2018

Representing Appellant: Dennis C. Cook, Craig C. Cook, and Jeffrey C. Dietzel of Cook and Associates, P.C., Laramie, Wyoming. Argument by Mr. Dennis C. Cook.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Misha E. Westby, Deputy Attorney General; Jackson M. Engels, Senior Assistant Attorney General; Rashell Read, Assistant Attorney General. Argument by Ms. Westby.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

DAVIS, Chief Justice.

[¶1] Lucile Anderson applied to the Department of Health for Medicaid nursing home benefits. The Department found Ms. Anderson eligible for the benefits but suspended her eligibility as a penalty for her transfer of assets at below fair market value. Ms. Anderson appealed the length of the penalty period and lost that challenge. Her sons thereafter paid the attorney fees and costs she incurred in her appeal, and she applied to have that payment treated as a return of assets, which would shorten the penalty period. The Department denied the application and, following an evidentiary hearing, its denial was upheld by the Department’s director and the district court. We reverse.

ISSUE

[¶2] Ms. Anderson presents two issues on appeal, which we restate as the following single issue:

Did the Department act in accordance with law when it denied Ms. Anderson’s application to have her sons’ payment of her attorney fees treated as a return of assets?

FACTS

[¶3] Lucile Anderson is in her late eighties and suffers from dementia and numerous other medical conditions that make her unable to care for herself independently. On March 12, 2015, Ms. Anderson was admitted to the Laramie Care Center, and on April 10, 2015, she transferred to Spring Wind, an assisted living facility in Laramie. On October 22, 2015, she applied for Medicaid benefits.

[¶4] In her Medicaid application, which she submitted through her attorney, Ms. Anderson acknowledged that she had transferred assets in the sixty-month period preceding her application.¹ She identified cash and real property that she had transferred to her sons and their wives between the dates of May 28, 2015 and October 19, 2015, including a modular home in Laramie and a 472-acre ranch in Colorado, which she reported were both sold to her son Philip and his wife for fair market value. Of the assets transferred during the look-back period, Ms. Anderson reported $83,476 as uncompensated transfers.

[¶5] On January 27, 2016, the Department notified Ms. Anderson that because she had transferred resources at less than fair market value in the sixty-month period preceding her application, she was not eligible to receive Medicaid benefits until January 12, 2020. In making that determination, the Department rejected Ms. Anderson’s reported value of her uncompensated transfers and instead found she had transferred $441,382.60 in assets without fair compensation.

[¶6] Ms. Anderson appealed the Department’s calculation, with the primary dispute being over the fair market value of the Colorado ranch. An evidentiary hearing was held before the Office of Administrative Hearings (OAH), and the OAH issued proposed findings and conclusions of law recommending that the Department’s director uphold the Department’s determination.² The Department’s director accepted the proposed decision and entered a final order, which Ms. Anderson appealed and the district court upheld. Ms. Anderson did not appeal the district court’s ruling.

[¶7] On March 27, 2017, Ms. Anderson, through her attorney, informed the Department that her sons had paid her attorneys $23,818.63, which was the amount of fees and costs she incurred in her appeal of the Department’s penalty period determination. Ms. Anderson requested that the Department treat the payment of those fees as a partial return of the cash and assets she gave her sons during the look-back period and reduce the penalty period to account for the return of assets.³

[¶8] On April 6, 2017, the Department denied Ms. Anderson’s request. By letter, the Department stated:

The Department of Health has reviewed your request to reduce the transfer penalty period for payment of attorney’s fees and costs your client incurred as a result of her (or her Power of Attorney’s) decision to appeal the Division’s calculation of the transfer penalty.

Department of Health Medicaid Rules for Administrative Hearings, Chapter 4, Section 20 states attorney fees are the responsibility of the contestant. Regardless of the source of funds used to pay your attorney’s fees and costs, the contestant is responsible for such payment, and therefore it may not be considered a gift back to reduce the transfer penalty.

[¶9] On May 4, 2017, Ms. Anderson appealed the denial of her request, and the matter was referred to the OAH for a contested case hearing. Following an evidentiary hearing, the OAH issued proposed findings and conclusions of law recommending that the Department’s director reverse the Department’s denial. The Department filed exceptions to the OAH-proposed decision and proposed its own findings and conclusions of law. On July 28, 2017, the Department issued an Order Entering Final Decision, which upheld the Department’s denial of Ms. Anderson’s requested penalty period reduction.

[¶10] On August 25, 2017, Ms. Anderson filed a petition for review of the Department’s decision, and on January 24, 2018, the district court issued an order affirming it. Ms. Anderson then filed a timely notice of appeal to this Court.

STANDARD OF REVIEW

[¶11] "We review an appeal from a district court’s review of an administrative agency’s decision as if the case came directly from the agency and give no deference to the district court." State ex rel. Wyo. Dep’t of Workforce Servs., Workers’ Comp. Div. v. Lysne , 2018 WY 107, ¶ 11, 426 P.3d 290, 294 (Wyo. 2018) (citing Morris v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div. , 2017 WY 119, ¶ 23, 403 P.3d 980, 986 (Wyo. 2017) ). The dispositive issue in this appeal is a question of law so our review of the Department’s decision is de novo. Lysne , ¶ 12, 426 P.3d at 295 (citing 403 P.3d at 987 ) ("We review an agency’s conclusions of law de novo and will affirm only if the agency’s conclusions are in accordance with the law.").

DISCUSSION

[¶12] Ms. Anderson contends the Department has changed positions throughout her appeal, and she urges this Court to reject the Department’s new arguments on appeal. The Department does not dispute that it has revised its arguments but contends this is proper because the Court may affirm the administrative decision on any basis supported by the record. We agree with Ms. Anderson that the Department’s new argument on appeal is not properly before this Court. We will first address our reasons for that conclusion, and then we will turn to the question of whether the Department’s attorney fees rule precluded the payment of Ms. Anderson’s attorney fees from qualifying as a return of assets.

A. New Arguments on Appeal

[¶13] The Department’s evolving position in this case centers on its proffered interpretations of the statute governing Medicaid transfer-of-asset penalties and the bases for reducing or waiving those penalties. We therefore set forth the relevant portions of that statute to provide context for our discussion. Wyo. Stat. Ann. § 42-2-402 provides:

(a) If an institutionalized individual or the individual’s spouse has disposed of, for less than fair market value, any asset or interest therein within sixty (60) months before or any time after the first date the individual has both applied for medical assistance and been institutionalized, the individual is ineligible for medical assistance for long-term care services for the period of time determined under subsection (b) of this section.

(b) For a transfer within the provisions of subsection (a) of this section, the number of months of ineligibility for long-term care services shall be the total, cumulative uncompensated value of all assets transferred within the sixty (60) month period, divided by the average monthly cost to a private patient for nursing facility services on the date of application. ...

* * * *

(e) An institutionalized individual is not rendered ineligible for long-term care services due to a transfer within the provisions of subsection (a) of this section if the department determines :

(i) The individual intended to dispose of the asset at fair market value or for other valuable consideration;

(ii) The asset was transferred exclusively for a purpose other than to qualify for medical assistance;

(iii) That to the extent assets were transferred for less than fair market value, that the assets or their fair market equivalent have been returned to the individual; or

(iv) To grant a waiver of the excess resources created by the uncompensated transfer because denial of eligibility would cause undue hardship for the individual, based on criteria established by the secretary of health and human services.

Wyo. Stat. Ann. § 42-2-402 (LexisNexis 2017) (emphasis added).

[¶14] The Department’s original denial of Ms. Anderson’s application for a reduction of her penalty period was based solely on its rule requiring a Medicaid contestant to pay her own attorney fees and costs and its view that "[r]egardless of the source of funds used to pay your attorney’s fees and costs, the contestant is responsible for such payment, and therefore it may not be considered a gift back to reduce the transfer penalty." During the contested proceeding, however, the Department offered two additional statutory arguments: 1) the Department is not required to apply one of the section Wyo. Stat. Ann. § 42-2-402(e) grounds for waiving or reducing a penalty period and instead has sole discretion whether to do so; and 2) the Department may deny a reduction in the penalty...