Herubin v. Ohio Dept. of Job & Family Servs.

196 N.E.3d 896

Bella HERUBIN as Executor of the Estate of Joseph T. Herubin, Plaintiff-Appellant,

v.OHIO DEPT. OF JOB AND FAMILY SERVICES, Defendant-Appellee.

No. 21 MA 0109

Court of Appeals of Ohio, Seventh District, Mahoning County.

September 14, 2022

Atty. John A. McNally, III, John A. McNally, III, Co., LPA, 100 East Federal St., Suite 600, Youngstown, Ohio 44503 for Plaintiff-Appellant.

Atty. Julie E. Brigner, Atty. Kelly Richardson, Health and Human Services Section, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215 for Defendant-Appellee.

BEFORE: Carol Ann Robb, Cheryl L. Waite, David A. D'Apolito, Judges.

OPINION AND JUDGMENT ENTRY

Robb, J. {¶1} Appellant Bella Herubin as Executor of the Estate of Joseph T. Herubin appeals the decision of the Mahoning County Common Pleas Court affirming the administrative decision made by Appellee Ohio Department of Job and Family Services (ODJFS), which upheld the denial of the applicant's Medicaid application. The estate contends the common pleas court should have ordered ODJFS to approve the Medicaid application because the pandemic made it factually impossible for the decedent's former authorized representative (his son) to comply with verification requirements, as he was unable to secure an appointment with a bank to set up a trust and open a trust account. For the following reasons, the common pleas court's judgment is affirmed.

STATEMENT OF THE CASE

{¶2} On March 20, 2020, Joseph T. Herubin filed an application for Medicaid. Specifically, he sought Long-Term Care (LTC) benefits, as he was residing at a nursing home facility. He appointed his son, Mark Herubin, as his authorized representative to assist in the process. Mahoning County Department of Job and Family Services (MCDJFS) interviewed the son on March 26, 2020 and informed him of the verification and eligibility requirements.

{¶3} The same day, a checklist was mailed to the applicant and the son, which listed the required verifications with a due date of April 6, 2020. It contained a warning that the failure to submit the requested information may result in the denial of the application. One item on the checklist was the value of life insurance. The checklist was accompanied by instructions on proper ways to spend down resources and explained there was a resource limit of $2,000. Also included was information on Medicaid estate recovery upon the death of an institutionalized recipient.

{¶4} In addition, the checklist explained a Qualified Income Trust (QIT) was required in order to become eligible if the applicant's monthly gross income exceeded $2,349. An instructional QIT packet was attached, clearly stating a person with income over that amount would not become eligible until a valid QIT was executed and a financial account for the trust was established for the deposit of income above the eligibility level. The applicant was encouraged to consult an attorney with legal questions. The applicant was provided with a hotline number for QIT questions and a list of local banks where a QIT account can be set up, with an advisement some nursing homes assist with the QIT process or "you may want to consult with your own attorney." There was also a link to a standard QIT form.

{¶5} After the son provided some verifications, the agency's July 7, 2020 letter listed the outstanding verifications with a deadline of July 22, 2020. Again, the letter: warned that the failure to submit the requested information may result in the denial of the application; advised the Medicaid resource limit was $2,000; and asked for life insurance cash values. As the applicant's monthly income was $4,160, the letter required the establishment of a QIT with a deposit of $1,811 (based on the applicant's monthly income exceeding $2,349). See Ohio Admin.Code 5160:1-6-03.1(B) (if an individual is ineligible under base Medicaid due to excess income, he may become eligible if his income is equal to or less than the special income level {SIL}, which was $2,349 effective 1/1/20).

{¶6} On this topic of the required QIT, the July 20, 2020 response letter from the applicant's son said he called several Chase Bank branches in the area and was advised "this is a matter that is handled by the courts." He said he then called the hotline in order to obtain documents for his completion and submission to Chase Bank.

{¶7} As to the agency's request for the face value, cash value, and ownership of the New York Life insurance policy that deducted money for a premium from the applicant's Chase bank account, the son said there was no life insurance policy from this company in the applicant's name. There was no explanation for the premium deducted from the account (which can be seen on the bank statement), and there was no statement about whether the policy was in the spouse's name. (The agency had also asked for the cash value of the applicant's life insurance policies through John Hancock, and the son obtained a letter from that company showing the surrender value for two policies.)

{¶8} The son's letter also said the applicant's attorney was in the process of transferring real property back to the applicant and the applicant's spouse (Bella Herubin) which had been conveyed to the son and his brother on March 6, 2020. (Later, deeds reconveying the property to Bella Herubin were signed by each of the applicant's sons on August 20 and September 3, 2020.)

{¶9} On July 22, 2020, the applicant died. On July 30, 2020, MCDJFS issued a denial of the Medicaid application. The decision said eligibility was determined based on the application and the applicant failed to provide the requested verifications. The applicant's wife, through an attorney, requested a state hearing with ODJFS.

{¶10} The state hearing proceeded on November 23, 2020. The representative from MCDJFS testified as to the history, the failed verifications, and the income of $4,160, which placed the applicant over the limit without a QIT and an accompanying account. It was disclosed that between the issuance of the two written checklists, the son was also orally advised that the applicant would need to establish a QIT to be eligible for LTC Medicaid. The applicant's attorney testified the family told him they submitted all the needed documents, noting he was only involved in the deeds. The record was therefore left open for several days so any additional evidence of documents submitted to MCDJFS could be added to the record. No further evidence on the life insurance, the QIT, or a QIT account was provided.

{¶11} On December 1, 2020, the "state hearing decision" affirmed the denial of the Medicaid application. This decision noted the son said he checked with New York Life and learned his father had no existing policy. The decision also pointed to the disclosure in the July 20, 2020 letter that the son started looking into a QIT, which confirmed that no QIT or account had been established before the applicant died on July 22, 2020. It was concluded: "Without this account established, the Applicant would have been over the SIL of $2,349 based on his monthly countable income of $4,160. Thus, even if the verification issue were set aside, MCDJFS would still have been correct to deny this application due to the Appellant being over the income limit for potential LTC Medicaid eligibility."

{¶12} A request for an administrative appeal from the state hearing decision was filed with ODJFS. On December 10, 2020, the state hearing decision was affirmed. After reviewing the facts, the ODJFS decision found: "The cash value of the New York Life policy was never provided nor was evidence of the establishment of a QIT ever received by the Agency." It was concluded the state hearing decision and the MCDJFS decision were correct because the verifications were not received or in the record (even after additional time was provided based on the attorney's statement that he was told the required documents were sent).

{¶13} From this "administrative appeal decision," a timely appeal was filed in the common pleas court on January 5, 2021. The court set a briefing schedule with a non-oral hearing date. (4/23/21 & 6/20/21 J.E.). The common pleas court granted a motion for substitution of parties upon learning the decedent's spouse had just been appointed as the executor of his estate. (2/2/21 J.E.).

{¶14} The estate's merit brief in the common pleas court alleged the administrative decision was "procedurally defective" because the son made every effort to comply with the requirements of MCDJFS but was thwarted by COVID-19 closures. The brief said the son encountered issues in dealing with documentary requests in the height of the pandemic "specifically in July-August, 2020." An affidavit from the son was filed, which stated: in the summer of 2020, the nursing home financial staff directed him to Chase Bank on a certain street to set up the trust, but it was locked due to the pandemic and his calls were unsuccessful; he then called two other Chase Bank branches upon the urging of the nursing home, but they were closed; he made an appointment for his father with the Chase Bank branch in Salem; and his father died a few days before the appointment. The affidavit was signed on July 27, 2021.

{¶15} The response brief filed by ODJFS argued the administrative decision was supported by reliable, probative, and substantial evidence and in accordance with law, as the applicant failed to demonstrate a QIT was established and funded in order to decrease his countable income, which exceeded the eligibility limits. ODJFS pointed out Appellant's argument on appeal did not apply to the failure to provide verification of the insurance policy through New York Life. The agency further pointed out the estate did not contest these facts and the sole argument on appeal asked the court to ignore the law. ODJFS cited to the waiver doctrine, arguing the claim about the pandemic affecting the establishment of a QIT was not raised in the state hearing. ODJFS also...