VERMONT SUPREME COURT Case No. 24-AP-007

109 State Street

Montpelier VT 05609-0801

802-828-4774

www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a crossappellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

AUGUST TERM, 2024

In re Appeal of T.D.* } APPEALED FROM:

} Human Services Board

} CASE NO. R-10/23-786

In the above-entitled cause, the Clerk will enter:

Petitioner appeals pro se from a Human Services Board order affirming decisions of the 

Department of Vermont Health Access (DVHA) terminating her from Medicaid for Children and 

Adults (MCA) and determining her ineligible for Medicaid for the Aged, Blind, and Disabled

(MABD). We affirm.

The record indicates the following. In April 2023, DVHA sent petitioner a notice 

indicating that it was time to renew her MCA enrollment. Petitioner timely completed and 

returned the enclosed form, indicating that she was the only member of her household, received 

$1985 in monthly Social Security benefits, and had other health insurance coverage through 

Medicare. 

In May 2023, DVHA issued a notice of decision indicating that petitioner was no longer 

approved for MCA. It subsequently sent petitioner a letter explaining that although her MCA 

coverage may be ending, she could be eligible for a different form of Medicaid, such as MABD. 

The letter noted that if petitioner submitted the enclosed supplemental application, her MCA 

coverage would be extended while DVHA evaluated her eligibility for MABD. Petitioner 

accordingly applied to enroll in MABD. In her supplemental application, she indicated that she 

is disabled and requires medications, treatment, and periodic testing for several medical 

conditions. 

In September 2023, the Economic Services Division (ESD) of the Department for 

Children and Families issued a notice of decision indicating that it had received her application 

for MABD and determined that she was disabled, blind, and/or aged and, as a result, her 

extended MCA enrollment would end on September 30, 2023. In a simultaneous notice of 

decision, it explained that petitioner had been denied Medicaid coverage because her income was 

greater than the rules allowed, but that she may be able to “spend down” her additional income to 

qualify.1 Petitioner subsequently requested a fair hearing before the Human Services Board. See 

1

 Later the same month, DVHA erroneously sent petitioner a notice of decision 

indicating that she had been approved for Medicaid. Due to this error, petitioner’s MCA 

coverage was reinstated for the month of October 2023.
2

3 V.S.A. § 3091(a) (providing that applicant for assistance or benefits may request fair hearing 

before Board). 

Following an evidentiary hearing, a Board hearing officer recommended that the Board 

affirm DVHA’s decisions regarding petitioner’s eligibility for MCA and MABD as consistent 

with the applicable Health Benefits Eligibility and Enrollment (HBEE) Rules. At a December 

2023 meeting, the Board adopted the hearing officer’s recommendation. In that decision, the 

Board made the following factual findings. Petitioner is disabled and has multiple medical 

conditions that require ongoing care. Her undisputed monthly Social Security income is $2149. 

She is enrolled in Medicare and is concerned that if she does not continue to receive Medicaid 

coverage, she will be unable to pay for necessary medication and treatment.

Turning to the applicable analysis, the Board explained that its review of DVHA’s 

determinations was de novo and, under the Fair Hearing Rules, DVHA bore the burden of 

establishing that petitioner did not qualify for MCA, while petitioner bore the burden of proof as 

to her eligibility for MABD. See Fair Hearing Rules, § 1000.3(O)(4), Code of Vt. Rules 13 

020 002, https://humanservices.vermont.gov/sites/ahsnew/files/fair-hearing-rules-1.pdf [https://

perma.cc/7XLY-5W6Q] (providing that department bears burden of proof as to decision to 

terminate benefits, and “[o]therwise, the burden . . . shall be on the appellant”).

The Board noted that under the HBEE Rules, adults who are “entitled to or enrolled in 

Medicare under parts A or B of Title XVIII of the [Social Security] Act” are ineligible for MCA. 

See HBEE Rules, § 7.03(a)(5)(i)(C), Code of Vt. Rules 13 001 002, 

https://web.archive.org/web/20230717010711/https://humanservices.vermont.gov/sites/ahsnew/fi

les/doc_library/Combined-HBEE-Rules-for-Web-12-27-2022.pdf (Jan. 1, 2023, GCR 22-030)

[https://perma.cc/SPJ8-88JB]; id. § 6.00(a) (Jan. 15, 2017, GCR 16-095); see also 42 C.F.R. 

§ 435.119(b)(3). Because petitioner was already enrolled in Medicare, the Board concluded, she 

was not eligible for MCA. 

With respect to MABD, the Board determined that petitioner had not met her burden to 

establish eligibility. Disregarding the first $20 of her monthly unearned income under HBEE 

Rules §§ 29.11(b)(1) and 29.13(b)(4), it calculated her monthly income at $2129 and concluded 

that it exceeded the MABD income limit for her household, which it determined was $1258 

pursuant to the 2023 MABD Protected Income Level and Percentage of Federal Poverty Income 

Guidelines. See 2023 MABD PIL FPL Income Chart Effective 1/1/2023, 

https://dvha.vermont.gov/sites/dvha/files/doc_library/2023%20MABD%20PIL%20Chart%20FI

NAL.pdf [https://perma.cc/QC4F-8TEY]; see also HBEE Rules §§ 8.06(b) (Jan. 15, 2017, GCR 

16-095), 29.03(b) (Jan. 15, 2017, GCR 16-098). It also observed that DVHA appropriately 

calculated petitioner’s spenddown amount and informed her of the option to spend down her 

excess income to become eligible.

Finally, the Board concluded that because DVHA’s termination of petitioner’s MCA 

coverage and denial of eligibility for MABD were consistent with the HBEE Rules, the agency’s

decisions must be affirmed.2 Petitioner appealed to this Court. See 3 V.S.A. § 3091(f)

(providing that Board decision may be appealed to Supreme Court). 

2 We note that under 3 V.S.A. § 3091(h)(1), the Secretary of the Agency of Human 

Services “shall review all Board decisions and orders concerning . . . Medicaid.” Insofar as the 

record does not reflect that the Secretary issued a written decision in this matter, we assume that 

the Board’s decision was approved by the Secretary. See id. § 3091(h)(2) (“If the Secretary fails 
3

Petitioner’s argument on appeal is brief. She indicates that she does not agree with the 

decision to discontinue her Medicaid coverage given her medical needs, limited financial 

resources, and the importance of her health. 

We generally defer to the Board’s decisions, and we will not set aside its factual findings 

unless clearly erroneous. In re E.C., 2010 VT 50, ¶ 6, 188 Vt. 546 (mem.) “Our review is thus 

limited to determining whether the Board applied the proper legal standard, whether the evidence 

before the Board reasonably supports its findings, and whether the Board’s findings reasonably 

support its conclusions.” Id. 

We have explained that “[t]o achieve Medicaid’s goal of assisting the truly needy, 

administrators have enacted regulations governing financial eligibility for its various programs” 

that “balance the need to ensure that patients who can afford to pay their own medical bills do so 

with the need to preserve assets necessary for an applicant’s own support.” In re Clifford, 2012 

VT 95, ¶ 11, 192 Vt. 595. Petitioner does not argue that the Board erred in concluding that 

DVHA’s eligibility determinations were consistent with those regulations, and she does not 

challenge its findings, which reasonably support that determination. Moreover, because the 

Board concluded DVHA’s termination of petitioner’s MCA coverage and denial of eligibility for 

MABD were consistent with the HBEE Rules, it was bound to affirm the DVHA’s decision—

regardless of the considerations petitioner raises on appeal. See 3 V.S.A. § 3091(d) (providing 

that Board “shall not reverse or modify Agency decisions that are determined to be in 

compliance with applicable law, even though the Board may disagree with the results effected by 

those decisions”). 

Petitioner has not demonstrated that the Board erred in affirming the termination of her 

MCA coverage or denying her application for MABD.

Affirmed. 

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

to issue a written decision within 15 days [of the date of the Board decision and order] . . . the 

Board’s decision and order shall be deemed to have been approved by the Secretary.”).