Opp v. Ward County Social Services Bd.

Decision Date12 March 2002
Docket NumberNo. 20010199.,20010199.
Citation640 N.W.2d 704,2002 ND 45
PartiesMargaret OPP, Appellant, v. WARD COUNTY SOCIAL SERVICES BOARD and the North Dakota Department of Human Services, Appellees.
CourtNorth Dakota Supreme Court

Richard R. LeMay, Legal Assistance of N.D., Minot, for appellant.

Jean R. Mullen, Assistant Attorney General, Bismarck, for appellees.

VANDE WALLE, Chief Justice.

[¶ 1] Margaret Opp appealed from a judgment affirming a Department of Human Services' decision to terminate her Medicaid benefits because her available assets exceeded the maximum allowed. We conclude the preponderance of the evidence supports the Department's finding that Opp had "actually available" assets exceeding the $3,000 limitation when the Department terminated her benefits. We therefore affirm.

I

[¶ 2] Opp lives in Minot, is disabled, and received Medicaid benefits through the Department for medical expenses associated with her disability. Opp does not live in a nursing home and had been receiving Medicaid benefits since 1991. Opp's brother, Raymond Vetter, executed a will in 1997 bequeathing $500 to the Anamoose Cemetery Association and leaving "the RESIDUE of my Estate, consisting of all real and personal, or mixed property, of every kind and description, and wheresoever situate, to my sisters, MARGARET OPP ... and ROSE MARY HILDENBRAND... IN EQUAL SHARES." The will also provided, "[i]n the event of the death of either of my sisters ... prior to the time of my death, or before there has been a distribution of property in my Estate, then the share of the deceased shall lapse, and I give, devise and bequeath the share that the deceased would have received, if living, to the sister who survives me, thereby that sister shall have 100% of my Estate." Opp and Hildenbrand were nominated personal representatives of Vetter's estate. The will was executed by Vetter as a single person without children. Vetter later married but did not make a codicil to the will to provide for his spouse.

[¶ 3] Vetter died on April 10, 2000. Vetter's will was admitted to probate and letters testamentary were issued appointing Opp and Hildenbrand personal representatives of the estate on April 18, 2000. The first publication of notice to creditors occurred on May 3, 2000.

[¶ 4] On May 19, 2000, the Ward County Social Services Board mailed to Opp a Medicaid closing notice informing her benefits would be discontinued effective May 31, 2000, because her assets exceeded the maximum of $3,000 allowed for her household. The notice listed Opp's countable assets as $58,005.66, and her eligibility worker explained:

I have used an estimate for the inheritance of $22,500 base values of the CD's [sic] and estimate of $245/a for the 160a of land (half of the estate) less funeral costs of $4000. At this time I have had no response to my letter to the state regarding your question on disregarding the inheritance until distribution.

[¶ 5] Opp requested a hearing, which was held before an Administrative Law Judge ("ALJ") on August 15, 2000. The ALJ recommended reversing the Department's termination of benefits. The ALJ noted that at the time of the hearing, the inventory of estate assets had not been completed, the assets had not been appraised, and Vetter's surviving spouse, who had "received substantial property" outside of the will, had "not responded to any notice or otherwise made any appearance in the probate proceedings, but neither has she executed any waiver of her right to the elective share of the augmented estate or her right to claim an intestate share of his estate." The ALJ also noted that, although estate creditors had until August 3, 2000, to present their claims, as of the date of the hearing, the claims of health care providers whose services were payable in part by insurance had not been finally determined so the estate could approve and pay them. The ALJ found that at the time of the eligibility notice and continuing to the date of the hearing, Vetter's estate assets were not at Opp's disposal, Opp's contingent interest in the estate was not a liquidated sum, and Opp did not have the legal ability to make the sum available to her. The ALJ concluded Opp had shown none of Vetter's estate assets was actually available to her within the meaning of N.D. Admin. Code § 75-02-02.1-25(2).

[¶ 6] In a November 2000 order, the Department rejected the ALJ's recommendation because the ALJ "failed to consider that Opp presented no evidence that she made any attempt to secure a partial distribution from her brother's estate" and "reached the unsupported conclusion that such a partial distribution is unavailable as a matter of law." The Department found that, based on the estimate of the estate's attorney, "the value of estate assets exceeded claims of creditors by at least $80,000," and ruled "Opp has not demonstrated that she lacks the lawful power, as devisee, to make, or cause to be made, any part of the assets of "Vetter's estate "actually available" to her within the meaning of N.D. Admin. Code § 75-02-02.1-25(2). The district court affirmed the Department's decision. On appeal Opp argues the Department erred in terminating her Medicaid benefits.

II

[¶ 7] When an administrative agency decision is appealed from the district court to this Court, we review the agency's decision and the record compiled before the agency, rather than the decision and findings of the district court. Eckes v. Richland County Soc. Servs., 2001 ND 16, ¶ 6, 621 N.W.2d 851. Our review of an agency decision is governed by N.D.C.C. § 28-32-46, which requires us to affirm unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact. 7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

[¶ 8] When reviewing the agency's findings of fact, we determine whether a reasoning mind could have reasonably determined the agency's factual conclusions were supported by the weight of the evidence based on the entire record. Kryzsko v. Ramsey County Soc. Servs., 2000 ND 43, ¶ 5, 607 N.W.2d 237. The agency's decisions on questions of law are fully reviewable by this Court. Wahl v. Morton County Soc. Servs., 1998 ND 48, ¶ 4, 574 N.W.2d 859.

A

[¶ 9] North Dakota participates in and has designated the Department to implement the Medicaid program, which is a cooperative federal-state program designed to provide medical care to needy persons. See Schmidt v. Ward County Soc. Servs. Bd., 2001 ND 169, ¶ 6, 634 N.W.2d 506; 42 U.S.C. § 1396 et seq.; N.D.C.C. § 50-24.1-01.1. Under the authority conferred by N.D.C.C. § 50-24.1-04, the Department has adopted rules for determining Medicaid eligibility. See N.D. Admin. Code ch. 75-02-02.1. Welfare regulations reflect a basic social policy that welfare recipients must use their own available income and resources before shifting the burden for their support to the public. Schmidt, at ¶ 15.

[¶ 10] An applicant for Medicaid benefits must prove eligibility. Kryzsko, 607 N.W.2d 237, 2000 ND 43, ¶ 7. When considering eligibility for Medicaid, the Department considers whether the applicant has sufficient assets to meet the costs of necessary medical care and services. Eckes, 621 N.W.2d 851, 2001 ND 16, ¶ 7; N.D.C.C. § 50-24.1-02. A "one-person unit" is eligible for Medicaid benefits if the total value of that person's assets does not exceed $3,000. Eckes, at ¶ 7; N.D. Admin. Code § 75-02-02.1-26(1). The Department has defined an "asset" as "any kind of property or property interest, whether real, personal, or mixed, whether liquid or illiquid, and whether or not presently vested with possessory rights." N.D. Admin. Code § 75-02-02.1-01(3). Under both federal and state law, an asset must be "actually available" to an applicant to be considered a countable asset for determining Medicaid eligibility. Post v. Cass County Soc. Servs., 556 N.W.2d 661, 664 (N.D.1996). The Department's administrative rules provide:

Only such assets as are actually available will be considered. Assets are actually available when at the disposal of an applicant, recipient, or responsible relative; when the applicant, recipient, or responsible relative has a legal interest in a liquidated sum and has the legal ability to make the sum available for support, maintenance, or medical care; or when the applicant, recipient, or responsible relative has the lawful power to make the asset available, or to cause the asset to be made available. Assets will be reasonably evaluated. A determination that an asset is deemed available is a determination that the asset is actually available....
N.D. Admin. Code § 75-02-02.1-25(2).

[¶ 11] Determining whether an asset is "actually available" for purposes of Medicaid eligibility is largely a fact-specific inquiry depending on the circumstances of each case. Post, 556 N.W.2d at 664. Interpretation of the "actually available" requirement must be reasonable, and the focus is on the applicant's actual and practical ability to make an asset available as a matter of fact, not legal fiction. Id. However, an asset to which an applicant has a legal entitlement is not unavailable simply because the applicant must initiate legal proceedings to access the asset. Id. at 665; Schmidt, 634 N.W.2d 506, 2001 ND 169, ¶ 14.

B

[¶ 12] Determining whether Opp's...

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