STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BLANCA LOPEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1756

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on February 1, 1983, in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Mrs. Edith Unsworth

4212 North "B" Street Tampa, Florida 33609

For Respondent: Janice Sortor, Esquire

Department of Health and Rehabilitative Services

4000 West Buffalo Avenue Tampa, Florida 33614

BACKGROUND

These proceedings began on June 7, 1982 when Mrs. Edith Unsworth on behalf of her mother, Mrs. Blanca Lopez, filed a Request dated May 27, 1982 with the Department of Health and Rehabilitative Services (HRS) for a hearing on the proposed denial of eligibility for benefits in the Home Care for the Elderly (HCE) program. By correspondence dated June 29, 1982 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

Mrs. Lopez was unable to attend the final hearing due to being temporarily hospitalized for medical treatment. Her daughter who has represented her mother throughout the course of these proceedings did appear on her mother's behalf.

At the final hearing Petitioner offered Exhibit No. 1 which was received into evidence. Respondent offered Exhibits A, B and C which were received into evidence. At the conclusion of the final hearing the parties were informed of their right to file proposed Findings of Fact and proposed Recommended Orders. They both waived that opportunity. Subsequent to the hearing the Hearing Officer on February 11, 1983, filed an Invitation to Submit Memoranda on the

applicability of 42 USC 1382b(c) to these proceedings. A memorandum was filed by Respondent on February 25, 1983.

FINDINGS OF FACT

1. Mrs. Lopez is 79 years old. She is no longer able to care for herself and requires extensive nursing care. She is incontinent of her evacuative functions and is sometimes delusional. Because of her need for care Mrs. Lopez sold her residence in Tampa, Florida, in March 1981, and moved in with her daughter, Mrs. Unsworth, and Mrs. Unsworth's family.

   
   

2. When Mrs. Lopez sold her house she took back a purchase money mortgage loan from the buyers, Mr. Idalberto Hernandez and his wife. The mortgage provided for payments in the amount of $150 per month. The principal due on the loan at the time of the final hearing was $11,346.62.

   
   

3. Mrs. Lopez is extremely afraid of being placed in a nursing home. In order to prevent that from happening due to her need for nursing care she and her daughter entered into an agreement which provides in its pertinent provisions that:

   
   

   1. That the party of the first part [Mrs. Lopez] shall execute and deliver to the party of the second part [Mrs. Unsworth] an assignment of mortgage, assigning all right, title and interest to that certain mortgage executed by Idalberto Hernandez and Caridad Hernandez, his wife, to Blanca R. Lopez, dated May 15, 1981....

   2. That in consideration of the assign ment of mortgage, the party of the second part hereby covenants and agrees to provide for the care, support and maintenance of the party of the first part for the balance of her natural life. It is further under

      stood and agreed that the party of the first part shall not be placed in a nursing home or other care facility, other than any neces sary hospitalization or other institutional zation which may be required as a result of illness or injury, and which shall be deemed

      medically reasonable and necessary for health, welfare and safety of the party of the first part. Further, the party of the first part shall reside with the party of the second

      part and her family at 4212 North B Street, Tampa, Florida 33609 for the balance of her natural life, except as otherwise provided herein.

   3. That in the event the party of the second part either fails or refuses to comply with the terms and provisions of this agree ment with respect to the care, support and maintenance of the party of the first part, then, and in that event, the assignment of mortgage shall revert to and become the sole property of the party of the first part.

   4. Since the execution of the agreement on April 8, 1982, both parties have preformed according to its terms.

      
      

   5. The value of the services rendered to Mrs. Lopez by Mrs. Unsworth has never been evaluated by HRS. Such an evaluation by the Hearing Officer is not possible here without more evidence than appears in the present record.

      
      

   6. There is a dispute between Mrs. Unsworth and HRS about whether the existence of the agreement was disclosed to HRS at the time Mrs. Lopez submitted her application for HCE to the Department. It appears that Mrs. Unsworth did not strongly urge the existence of a written agreement to care for her mother as proof that the mortgage was not assigned for less than fair market value. At the final hearing Mrs. Unsworth did not even mention the document until an accidentally serendipitous question from the Hearing Officer uncovered its existence.

      
      

   7. Once it appeared to HRS that Mrs. Lopez was not financially qualified for HCE the Department ceased processing her application. The other criteria for Mrs. Lopez's eligibility have therefore not been reviewed by the agency. On June 4, 1982 Mrs. Lopez's application was denied for financial ineligibility.

      
      

   8. The evidence convincingly proves that the sole reason for Mrs. Lopez's conveyance of the mortgage loan to her daughter was for the purpose of avoiding placement in a nursing home. The evidence shows that Mrs. Lopez's application for services from the HCE program was dated April 8, 1982. That is the same day on which she conveyed the mortgage to her daughter. This coincidence of dates creates an inference that the conveyance was related to eligibility for HCE. That inference is however outweighed by the clear terms of the April 8, 1982 agreement and by Mrs. Unsworth's testimony at the final hearing about her mother's fear of being placed in a nursing home.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

      
      

   10. Respondent has denied Petitioner's application for services from the HCE program on the basis of her financial status. In order to be eligible for HCE Mrs. Lopez must be able to meet the financial eligibility requirements of Section 410.036, Florida Statutes (1981), which incorporates by reference the criteria of Section 409.266, Florida Statutes (1981). See also Section 10A- 9.04(3), Florida Administrative Code. Section 409.266, Florida Statutes has been implemented by the Department in Chapter 10C-8, Florida Administrative Code, which provides in Section 10C-8.14, Florida Administrative Code as follows:

       
       

       The Department includes the required coverage groups in the State Plan. The following are the general groups of in dividuals designated as categorically eligible under the State Plan, and who as a result are Medicaid eligiblle:

       (5) Aged, blind or disabled persons who receive an approved State Supplementary payment and who except for the level of

       their income, would be eligible for bene fits under Title XVI of the Act....

       
       

       Title XVI of the Social Security Act provides at 42 USC 1382b(c) that:

       
       

       1. In determining the resources of an individual (and his eligible spouse,

          if any) there shall be included (but sub ject to the exclusions under subsection

          1. of this section) any resource (or in terest therein) owned by such individual or eligible spouse within the preceding

             24 months if such individual or eligible spouse gave away or sold such resource or interest at less than fair market value of such resource or interest for the pur pose of establishing eligibility for bene fits or assistance under this chapter.

       2. Any transaction described in para graph (1) shall be presumed to have been for the purpose of establishing eligibility for benefits or assistance under this chapter unless such individual or eligible spouse furnishes convincing evidence to establish that the transaction was exclu sively for some other purpose.

       
       

   11. As to assets an applicant held within the preceding 24 months which were given away or sold for less than fair market value the foregoing section creates a rebuttable presumption that the resource was transferred for the purpose of establishing eligibility for benefits. An applicant can exclude the assets from their includable resources by either proving that the transfer was for fair market value or by establishing sufficient evidence to convincingly rebut the presumption.

       
       

   12. Mrs. Lopez did not prove that her daughter's services under the April 8, 1982 agreement equal the fair market value of the mortgage loan which she transferred. She did however provide convincing evidence that the transfer was solely for the purpose of giving her nursing care in her daughter's home and was not for establishing eligibility for services from the Home Care for the Elderly program. I therefore conclude that the value of the mortgage transferred to her daughter should not be included among her resources in determining her eligibility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a Final Order finding Mrs. Blanca Lopez financially eligible to receive services from the Home Care for the Elderly program.

DONE and RECOMMENDED this 1st day of March, 1983, in Tallahassee, Florida.

COPIES FURNISHED:

Janice Sortor, Esquire Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614

Mrs. Blanca Lopez 4212 North "B" Street Tampa, Florida 33609

Mrs. Edith Unsworth 4212 North "B" Street Tampa, Florida 33609

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Alicia Jacobs, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1983.

Docket for Case No: 82-001756

Orders for Case No: 82-001756