ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is before me pursuant to the appeal of the Estate of Ada B. Nicholson
(Appellant), from a final decision of the Respondent, South Carolina Department
of Health and Human Services (Department), denying a waiver of undue hardship
under the Medicaid program. The Administrative Law Court (ALC) has
jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-600 (2005).
ISSUES
ON APPEAL
1. Was the receipt of CLTC
services from Medicaid equivalent to institutionalization?
2. Did
the requirement that the applicant “actually” reside in the home at the time of
the waiver preclude a waiver for Max?
STANDARD
OF REVIEW
As set forth above, this case is before the Court as an
appeal of an agency action pursuant to S.C. Code Ann. § 1‑23‑600(D)
of the Administrative Procedures Act (APA) upon appeal from a Final Order of
the Department. As such, the Administrative Law Judge sits in an appellate
capacity under the APA rather than as an independent finder of fact. In South Carolina, the provisions of the APA -- specifically Section 1-23-380(A)(6) -- govern
the circumstances in which an appellate body may reverse or modify an agency
decision. That section states:
The court may reverse or modify
the decision if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions or decisions are:
(a)
in violation of constitutional or statutory provisions;
(b)
in excess of the statutory authority of the agency;
(c)
made upon unlawful procedure;
(d)
affected by other error of law;
(e) clearly erroneous in view of the
reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
S.C. Code Ann.
§ 1-23-380(A)(6) (Supp. 2005).
A
decision is supported by “substantial evidence” when the record as a whole
allows reasonable minds to reach the same conclusion reached by the agency. Bilton
v. Best Western Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App.
1984). The well-settled case law in this state has also interpreted the
“substantial evidence” rule to mean that a decision will not be set aside
simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo,
276 S.C.130, 276 S.E.2d 304 (1981). The fact that the record, when considered
as a whole, presents the possibility of drawing two inconsistent conclusions
from the evidence does not prevent the agency's finding from being supported by
substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n,
321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. S.C. Coastal Council, 319
S.C. 348, 461 S.E.2d 388 (1995).
In applying the substantial evidence rule, the factual
findings of the administrative agency are presumed to be correct. Rodney v.
Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996), citing Kearse
v. State Health and Human Services Finance Comm'n, 318 S.C. 198, 456 S.E.2d
892 (1995). Furthermore, the reviewing court is prohibited from substituting
its judgment for that of the agency as to the weight of the evidence on
questions of fact. Grant v. S.C. Coastal Council, 319 S.C. 348, 461
S.E.2d 388 (1995), citing Gibson v. Florence Country Club, 282
S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency
action has the burden of proving convincingly that the agency's decision is
unsupported by substantial evidence. Waters, supra, citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).
FACTS/BACKGROUND
Beginning in April 1996,
Ms. Ada Nicholson received services from Community Long Term Care (CLTC), a
program of services provided by the South Carolina Medicaid program to persons
who elect to receive services in their home rather than seek admission to a
nursing facility. Ms. Nicholson was later admitted to a nursing home. Her
care, while in the nursing facility, was paid for by the South Carolina
Medicaid program. Ms. Nicholson died July 25, 2004 while a resident at the Lila
Doyle NCF in Seneca, South Carolina.
After
Ms. Nicholson’s death, the Department placed a creditor’s claim against Ms.
Nicholson’s estate pursuant to S.C. Code Ann. § 43-7-460 (2005) and 42 USC
1396p(b) for the care paid for under the state Medicaid program. Afterwards, the
personal representative of Ms. Nicholson’s estate sought a hardship waiver,
asserting that Ms. Nicholson’s son, Max Nicholson (Max), had lived with Ms.
Nicholson for more than two years prior to her entering a nursing home. On May
16, 2005, the Department denied that request for the following reasons; Max’s income
exceeded 185% of the federal poverty guidelines, he was not “actually residing
in the home” when the waiver was requested, and he had not lived in the home
for over two and a half years prior to Ms. Nicholson’s institutionalization.
The Hearing Officer assigned to review this case subsequently concurred with
the Department’s determination, finding that Max’s income exceeded 185% of the
federal poverty guidelines, that he was not actually residing in the home at
the time the waiver was requested, and that he had not resided in the home for
more than two years before Ms. Nicholson began receiving CLTC Services, which
the Hearing Officer found to be the functional equivalent of nursing home care.
This appeal followed.
DISCUSSION
The
Department is charged with the administration of the Medicaid program in South Carolina. Medicaid is a joint state and federal program designed to assist with the
medical needs of persons meeting certain financial and medical criteria. Under
the Medicaid program, federal law requires a state to recover any costs
incurred in providing medical care to a decedent from that person’s estate. The
Medicaid Estate Recovery program was mandated by the federal Omnibus Budget
Reconciliation Act of 1993 (OBRA ‘93), as codified in 42 U.S.C. §1396p(b). This
legislation requires the states to set up procedures which conform to
guidelines issued by the Secretary of the Federal Department of Health and
Human Services to waive certain claims against estates of Medicaid recipients
in instances of undue hardship.
CLTC
Services
Appellant argues that the
Department can not seek recovery of the CLTC Medicaid medical assistance
provided to Ms. Nicholson because those services are not the functional
equivalent of institutional care as set forth in 42 USC 1396p(c))(1)(C)(ii). The
date of institutionalization is indeed a component of the analysis of Section
1396(p)(c). However, Section 1396(p)(c) addresses the narrow issue of
recovering the transfer of assets and the consideration of the date of institutionalization
provides the reference point to implement the “look-back date.” On the other
hand, Section 1396p(b) addresses the instances in which the State may seek recovery
for medical expenses under Medicaid. It provides that the State may recover for
the payment of medical assistance to an individual who was 55 years or older
when they received the assistance for home and community-based services.
Likewise, S.C. Code Ann. § 43-7-460 (A)(2) (2005) provides that the State must
seek recovery of medical assistance paid to an individual who was:
fifty-five years of age or older when the individual
received medical assistance, but only for medical assistance consisting of
nursing facility services, home and community-based services, and
hospital and prescription drug services provided to individuals in nursing
facilities or receiving home and community-based services.
(emphasis added).
Here, neither Section
1396p(b) nor 43-7-460 establish that an individual must be the functional
equivalent of institutionalized before the State may seek recovery for the
medical assistance it has paid. To the contrary, other sections of the Federal
statute clearly reference the need for institutionalization before the State
may seek recovery under those provisions. “It is well-settled that statutes
dealing with the same subject matter are in pari materia and must be construed
together, if possible, to produce a single, harmonious result.” Grant v.
City of Folly Beach, 346 S.C. 74, 79, 551 S.E.2d 229, 231 (2001).
Therefore, I find that a determination that the provision of the services was
the functional equivalent to institutionalization is not required to seek
recovery for payment.
Undue
Hardship
The
Department denied the hardship wavier application, in part, because Max did not
begin living with Ms. Nicholson before she was institutionalized. The
Department reasoned that since Max did not move in with his mother until after
she began receiving CLTC services, he did not live in her home the requisite
two years before she became institutionalized. Appellant argued that Max qualifies
for the waiver because the term institutionalization means confinement to a
nursing facility and not enrollment in the CLTC program.
42
USC 1396p (b)(3) requires that the State establish procedures for granting a
waiver of any claim in cases of undue hardship. In response to that
requirement, South Carolina enacted S.C. Code Ann. § 43-7-460 (2005). Section 43-7-460
allows the estate of an individual who has received medical assistance under Title
XIX State Plan for Medical Assistance to obtain a waiver of the State’s rights
to recover that assistance in three instances.
In particular, S.C. Code Ann. §43-7-460 (C) provides in pertinent part that:
Recovery under this section must
be waived by the department upon proof of undue hardship, asserted by an heir
or devisee of the property claimed pursuant to 42 U.S.C. 1396p(b)(3). Until
conflicting hardship standards and criteria are issued by the Secretary of the
United States Department of Health and Human Services, the following are
considered instances of undue hardship in which recovery must be waived:
(1) with respect to the decedent’s
home property, if the decedent could have transferred the home property on or
after the date of his or her Medicaid application without incurring a penalty
under 42 U.S.C. 1396p(c), if the property could have been transferred without a
penalty to a:
* * *
(d) surviving child of the
deceased who lived in the home for a period of at least two years immediately
before the decedent became institutionalized and who provided care which
allowed the decedent to delay institutionalization.
However, hardship under this item
only applies if the individual to whom the property could have been transferred
without penalty is actually residing in the home at the time the hardship is
claimed. . . .
* * *
(2) with respect to the decedent's home
and one acre of land surrounding the house, if an immediate family member:
(a) has resided in the home for at least
two years immediately prior to the recipient's death;
(b) is actually residing in the home at
the time the hardship is claimed;
(c) owns no other real property or
agrees to sell all other interest in real property and give the proceeds to the
department; and
(d) has annual gross family income that
does not exceed one hundred eighty-five percent of the federal poverty
guidelines.
The date of
institutionalization is relevant in determining whether a waiver should be
granted under Section 43-7-460 (C)(1)(d). Likewise, as set forth above, the
date of institutionalization is a factor in determining whether Ms. Nicholson
could have transferred her home without incurring a penalty under 42 USC
1396p(c))(1)(C)(ii). The South Carolina statutes offer no guidance as to what
services are considered to be institutionalization. However, 42 USC
1396p(h)(3) clearly defines the term “institutionalized individual” under Section
1396p (the Medicaid Estate Recovery program of the Social Security Act). An
“institutionalized individual” under that provision is defined as an inpatient
in a nursing facility, a medical institution, or who is described in section
1369(a)(10)(A)(ii)(VI) of the Social Security Act. 42 USC
1396a(a)(10)(A)(ii)(VI) sets forth that individuals eligible under the
subchapter are persons described in Section 1396d(a) “whom there has been a
determination that but for the provision of home or community-based services
described in subsection (c), (d), or (e) of section 1396n of this title they
would require the level of care provided in a hospital [or] nursing facility. .
. and who will receive home or community-based services pursuant to a waiver
granted by the Secretary under subsection (c), (d), or (e) of section 1396n of
this title.” 42 U.S.C.A. § 1396d (a) provides that “[t]he term ‘medical
assistance’ means payment of part or all of the cost of . . . (7) home health
care services . . . [or] home and community care (to the extent allowed and as
defined in section 1396t of this title) for functionally disabled elderly
individuals.”[2]
The record sets forth
that Ms. Nicholson was 65 years of age or older when she began receiving home
health care services. However, there was no evidence that, but for the
provision of those services described, she would require the level of care
provided in a nursing facility. Moreover, the evidence reflects that Max moved
into his mother’s home in June of 1996, two years before his mother, Ms. Nicholson,
entered a nursing home. Therefore, the substantial evidence does not support
the Department’s determination that Max did not reside in the home two years
prior to his mother’s institutionalization.
Nevertheless, the
Appellant must also meet the other requisites of Section 43-7-460 to be granted
a waiver. Undue hardship under Section 460 (C)(1)(d) only applies if Max was
“actually residing in the home at the time the hardship is claimed.”
Similarly, Section 460 (C)(2) also requires that the family member actually
reside in the home at the time the hardship is claimed, and furthermore adds
the requirement that the family members income not exceed “one hundred
eighty-five percent of the federal poverty guidelines.”
A common element of
both instances of undue hardship is that the family member must be “actually
residing” in the home when the hardship is claimed. Here, Max was incarcerated
with the South Carolina Department of Corrections on October 24, 2002.
Therefore, Max was not physically present on the property for two years prior
to his mother’s death or at the time the hardship waiver application was
submitted. Appellant nevertheless argues that, even though Max was
incarcerated at the time the hardship waiver was filed, he one day intends to return
to his mother’s home, therefore this Court should find that he was “residing”
in the home for purposes of the application of this statute.
The cardinal rule of
statutory construction is to ascertain and effectuate the intent of the
legislature. Charleston County Sch. Dist. v. State Budget and
Control Bd., 313 S.C. 1, 437 S.E.2d 6 (1993). The text of the statute is
the best evidence of the legislative intent of the statute. Knotts v. S.C.
Dep’t of Natural Res’s, 348 S.C. 1, 558 S.E.2d 511 (2002). The Court,
therefore, should refer to the language of the statute to determine whether the
statute’s meaning is clear on its face. Kennedy v. S.C. Ret. Sys., 345
S.C. 339, 549 S.E.2d 243 (2001). If the statute’s language is plain and
unambiguous, there is no basis for employing rules of statutory interpretation
“and the court has no right to look for or impose another meaning.” Kennedy,
345 S.C. at 346, 549 S.E.2d at 246 (quoting Paschal v. State Election
Comm’n, 317 S.C. 434, 436, 454 S.E.2d 890, 892 (1995)). Furthermore, the
court must read the language of the statute in such a way as to harmonize it
with its subject matter and in accordance with its general purpose. Id. at 472, 589 S.E.2d at 768.
The term “actually
residing” or “actually reside(s)” is only used in South Carolina Code Section
43-7-460. The plain meaning of the term “actually residing,” especially when
read in the context of the statute, appears to require Max to have been living
in his mother’s home when the application was made. Furthermore, “[w]here a
word is not defined in a statute, our appellate courts have looked to the usual
dictionary meaning to supply its meaning.” Lee v. Thermal Engineering Corp.,
352 S.C. 81, 91-92, 572 S.E.2d 298, 303 (Ct. App. 2002). Merriam-Webster Online
Dictionary defines “reside” as “to dwell permanently or continuously: occupy a
place as one's legal domicile.” Merriam-Webster Online (2005).
Furthermore, “residence” is defined as “the place where one actually lives as
distinguished from one's domicile or a place of temporary sojourn.” The above
definitions clearly indicate that the family member must be living in the home
when the application is made. Moreover, when viewed in light of the emphasis
added by the adverb “actually,” the requirement that the family member must be
living in the home when the application is made is even further stressed.
Therefore, even if Max could be viewed as residing in the home when the
application was made, Appellant has not established that the Department erred
in determining that Max was not “actually residing” in the home when the
application was made. Thus, since Appellant failed to meet the requirements of
both Section 460 (C)(1)(d) and Section 460 (C)(2), Appellant is not eligible or
entitled to a waiver for undue hardship.
Therefore,
IT IS HEREBY ORDERED that the Department’s decision should be upheld.
AND IT IS SO ORDERED.
______________________________
Ralph
King Anderson, III
Administrative
Law Judge
September 26, 2006
Columbia, South Carolina
42 U.S.C.A. § 1396t(b)(1)(A) defines a
“functionally disabled elderly individual” as an individual who 65 years of age
or older.
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