NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2564-08T22564-08T2

E.S.,

Petitioner-Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE

AND HEALTH SERVICES,

Respondent-Respondent,

and

MIDDLESEX COUNTY BOARD OF

SOCIAL SERVICES,

Respondent.

Argued November 2, 2009 - Decided

Before Judges Lisa, Baxter and Alvarez.

On appeal from the Department of Human Services, Division of Medical Assistance and Health Services, Docket No. 01122-2008N.

Linda S. Ershow-Levenberg argued the cause for appellant (Fink Rosner Ershow-Levenberg, attorneys; Ms. Ershow-Levenberg, on the brief).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Zoe J. McLaughlin, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

ALVAREZ, J.A.D.

Ninety-seven-year-old E.S. (petitioner) appeals the December 4, 2008 final agency decision of the Department of Human Services, Division of Medical Assistance and Health Services (Division), affirming a transfer penalty imposed on her application for Medicaid benefits. Petitioner sought the benefits to pay for the cost of her nursing home care. The transfer penalty was imposed based on a determination that a "life care contract" (LCC) between petitioner and her daughter, in which petitioner made a lump sum advance payment to her daughter for the future provision of personal care services, was not a transfer for fair market value.

Upon notification of the imposition of the transfer penalty, petitioner appealed and the case was transmitted to the Office of Administrative Law (OAL). The matter was decided by way of summary decision, over petitioner's objection, on stipulated facts and oral argument. The Administrative Law Judge's (ALJ) September 8, 2008 initial decision upholding the imposition of the transfer penalty was adopted and amplified on December 4, 2008 by the Division. This appeal followed. We affirm.

I.

When the Middlesex County Board of Social Services (Board) advised petitioner of the transfer penalty on February 28, 2008, it was due to, among other items, the advance payment of $56,550 on account of the LCC, to her daughter E.K. during the look-back period. The look-back period is a fixed term of months preceding an application for Medicaid benefits in which transfers of assets or income are closely scrutinized to determine if they were made for the sole purpose of Medicaid qualification. See H.K. v. State, 184 N.J. 367, 380 (2005) (citations omitted); N.J.A.C. 10:71-4.10(b)9(ii), (b)9(iv).

A transfer penalty is the delay in Medicaid eligibility triggered by the disposal of financial resources at less than fair market value during the look-back period. See H.K., supra, 184 N.J. at 380. Congress's imposition of a penalty for the disposal of assets or income for less than fair market value during the look-back period is intended to maximize the resources for Medicaid for those truly in need. See Estate of DeMartino v. Div. of Med. Assistance & Health Servs., 373 N.J. Super. 210, 219 (App. Div. 2004), certif. denied, 182 N.J. 425 (2005). New Jersey has codified the formula for calculation of the length of the transfer penalty at N.J.A.C. 10:71-4.10(c) and (m)1.

E.K., who holds a durable power of attorney for petitioner, entered into the LCC, on behalf of petitioner, on September 26, 2007. She named herself as the designated "caregiver" who was to receive a payment of $56,550 for services to be rendered to her mother, the "resident," as specified in the LCC. Although throughout this opinion we refer to petitioner as the party in interest, in reality, it is E.K. who is pursuing the appeal.

Petitioner entered a nursing home in June 2007 and initially paid the costs from her own funds. E.K. applied for Medicaid benefits on petitioner's behalf shortly thereafter. Petitioner has at least one other child still living.

The $56,550 payment was calculated by applying the following formula, described in the LCC:

$25 per hour X 15 hours per week X 52 weeks per year X 2.9 years

According to petitioner, the hourly rate is at the lowest end of the pay scale for comparable personal care services to nursing home residents and fifteen hours per week is the estimated time necessary to provide the enumerated services. Petitioner's 2.9-year life expectancy is taken from the Periodic Life Table promulgated by the Social Security Administration and a table contained in Transmittal 64, published by the Center for Medicare and Medicaid Services (CMS). See Transmittal Number 64, State Medicaid Manual, Life Expectancy Tables-Males, available at http://www.sharinglaw.net/elder/transmittal64.htm.

Although the "preliminary statement" to the LCC refers to compensation for services being at "market rate," and to the "wish to manage" the relationship between E.K., the "caregiver," and petitioner, the "resident," "in a business-like fashion," it includes the following:

SECTION 3. THE CAREGIVER IS NOT OBLIGATED TO DEVOTE FULL TIME TO THE RESIDENT'S CARE. The Resident and the Caregiver recognize and acknowledge that the Caregiver has her own professional or familial responsibilities to career and family. The Caregiver is, therefore, not obligated to devote her entire time, attention and energies to the business of the Resident. The Caregiver shall, to the best of her ability, devote as much of her time that is not devoted to career and family to fulfill her obligations under this Contract. However, the Caregiver shall be on-call at all times and available to assist the Resident within a reasonable period of time after being contacted by the Resident or by a staff person of a facility in which she resides.

. . . .

SECTION 11. COMPENSATION. The Resident shall pay and the Caregiver agrees to accept, in payment of the aforesaid services to be rendered by the Caregiver, the compensation as computed below, which compensation the parties stipulate and agree to be fair, reasonable and of fair market value, commensurate with the quality and extent of the services provided.

11.1 Hourly Rate. The parties acknowledge that home health care aides who perform the services noted above generally receive $20.00 per hour and that geriatric care managers who perform such services on a contractual basis normally receive in excess of $100.00 per hour for their professional services. It is stipulated that the Caregiver receive $25.00 per hour.

11.2 Number of Hours. The services to be performed by the Caregiver are to be furnished on an "as needed" basis over the whole of the lifetime of the Resident and, therefore, the hours that the Caregiver will in fact expend in performance of the Caregiver's duties will vary from time to time over such lifetime. At times it may be necessary for the Caregiver to perform 40 or more hours of services per week, and at times less than that. The parties stipulate that, over the lifetime of the Resident, it is expected that the average time which the Caregiver will expend will be 15 hours per week or more.

. . . .

11.5 Payment. As shown above, the total amount payable to the Caregiver hereunder is $56,550.00. The Caregiver may elect to receive payment over more than one tax year, but the full amount due is not dependent upon the precise amount of work performed in any tax year, as the Resident's obligation accrues upon signing of this Contract. The Resident agrees that the unpaid portion shall be a claim against her estate at the time of death, regardless of whether she lived longer than 6.2 [sic] years from the date this contract is signed.

. . . .

SECTION 13. CANCELLATION OF AGREEMENT. This Agreement may be canceled only as set forth in this Section.

. . . .

13.2 Death of The Resident. Except as provided hereinabove, the term of this Agreement shall commence on the date hereof and shall continue in full force and effect thereafter until the death of the Resident. Any amount still owing shall constitute a claim against the estate.

13.3 Cancellation By The Caregiver. The Caregiver shall have the right to terminate this Contract upon ninety (90) days notice.

13.4 The Caregiver's Compensation Upon Cancellation By The Resident. If the Contract is canceled under Paragraph 13.1, then the Caregiver shall receive compensation for past services rendered at the fair market rate payable to home health care aides at the time at which the services were rendered. For purposes of compensation, it shall be assumed hereunder that the Caregiver rendered 15 hours per week of care to the Resident, and the amount of compensation shall be computed thereupon.

SECTION 14. PERSONAL NATURE. The Resident may not assign, transfer, convey, hypothecate or otherwise alienate any rights or benefits, damages, costs and expenses the Resident is to obtain or could obtain under this Agreement to any third party. This Agreement is for services unique to the Resident and the Caregiver shall have no obligation to render services or otherwise be liable to any other person or entity.

[Emphasis added.]

II.

Local social service boards screen Medicaid applications pursuant to regulations adopted by the Commissioner of Medical Assistance and Health Services. N.J.S.A. 30:4D-7a; N.J.A.C. 10:71-3.11, -3.15. All includable income and resources must fall below certain limits in order for an applicant to be deemed eligible for Medicaid benefits. See 42 U.S.C.A.