IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Toney

, : Petitioner :

:

v. : No. 2343 C.D. 2014

: SUBMITTED: June 19, 2015 Department of Human Services

, : Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: August 25, 2015

Samuel Toney (Toney) petitions for review, pro se , of an order of the
Chief Administrative Law Judge of the Bureau of Hearings and Appeals (Bureau)
of the Department of Human Services (DHS) that affirmed the decision of the

Administrative Law Judge (ALJ) to d ismiss his appeal from a denial of his
application for medical assistance / long

- term care (MA / LTC) benefits due to excess

resources. We affirm.

In May 2014, Samuel Toney

, then ninety

- three years old and a

widow er , moved into Christ the King Manor in DuBois, Pennsylvania. December

4, 2014 Adjudication, Finding s of Fact (F.F.) No s

. 1 and 4

. In June 2014, the

Clearfield County Assistance Office (CAO) received his financial eligibility2

application for MA / LTC benefits , with a requested effective date of May 28, 2014

. Id

., F.F. Nos. 5 and 6. In August 2014, the CAO denied Toney ’s application due to

total countable resources in excess of the $2400 resource limit against which non

excluded resources were considered for a single person in Toney’s classification.

55 Pa. Code § 178.12, Appendix A. T oney’s c ountable resources included First

Commonwealth B ank accounts jointly owned by Toney and his son , with a savings

account balance of $41,510.18 as of June 5, 2014. Id ., F.F. No. 15. Determining

that the father could access th e accounts without his son’s consent, the ALJ

affirmed the CAO’s determination that one

- half of that amount belonged to the

father. Id ., F.F. No. 17. The ALJ concluded, therefore, that Toney ’s resources

exceeded the $2400 limit and affirmed the applicati on’s denial

. In August 2014,
Toney’s son , acting as his father’s representative

, appealed. Following a
November 2014 telephonic hearing, the ALJ denied the appeal. The Chief ALJ
affirmed the ALJ’s decision and Toney’s petition for review followed. 1

The Medicaid program provides federal financial assistance to states
choosing to reimburse needy individuals for certain medical expenses. Godown v.
Dep’t of Pub. Welfare , 813 A.2d 954, 956 (Pa. Cmwlth. 2002). The
Commonwealth participates in the program and offers MA to pay for the LTC of
eligible individuals. A ssistance may be provided , however, only to persons
deemed to be “medically needy,” such that they do not have the income and
resources to meet necessary medical costs. In this regard, DHS is th e payer of last
resort under the Commonwealth’s statutory scheme. 55 Pa. Code § 178.6(a). In

1 Although Toney signed the petition for review, his son acted as his representative before this Court. His son also did so before the CAO and the ALJ.3

order for an individual to be eligible for MA/LTC benefits, therefore, his or her

resources cannot exceed the applicable r esource limit.

In seeking benefits, t h e applicant for MA bears the burden to verify
that his or her resources are not in excess of the applicable limit. See 55 Pa. Code

§ § 178.1(a) and 178.3

. Until an applicant’s resources are reduced to an amount at
or below that limit, the applicant is ine ligible for MA/LTC. 55 Pa. Code §
178.1(c). In pertinent part, a “ resource ” is defined as “[r]eal or personal property
which a person has or can make available for partial or total support, including
equitable interests and partial interests .” 55 Pa. Code § 178.2

. W here ownership
of a resource is shared by an applicant and a non

- applicant and the applicant has a
separate legal interest that can be disposed of without consent of the other owner,
the applicant’s share of the resource is presumed availab le. 55 Pa. Code §

178.4 ( e)(3). In accordance with a federal regulation, DHS’s policy is that, if it
cannot be determined how much each owner contributed to a particular account,
then each owner owns an equal share. See 20 C.F.R. § 416.1208(c) and Chapte r

440.2 of DHS’s LTC Handbook.

On appeal, Toney asserts that the initial information provided when he
became a resident of Christ the King Manor indicates that the resources in question
belonged to his son. In that regard, Toney maintains that the burden rest ed with
the agency to make additional inquiries regarding the original ownership of the

resources or to provide information disputing any initial information submitted.
As previously noted, however, the burden to verify the ownership of assets rest s with the applicant. Pursuant to 55 Pa. Code § 178.3 : “Verification of ownership,
the value of resources and the disposition of resources is required of an
applicant/recipient or the person acting on his behalf . . . .”4 Regarding ownership , the ALJ prope rly rejected the argument below
that DHS did not have a right to presume that the joint accounts were available to
Toney

. Regarding the rebuttable presumption at issue, DHS’s regulation provides:

(e) The following rebuttable presumptions apply in determi ning the availability of both real and personal property resources:

. . . . (3) If ownership is shared by persons who are applicants/recipients and a person who is not an applicant/recipient and if the applicants/recipients have a separate legal interes t which can be disposed of without the consent of the other owners, the applicants’/recipients’ share of the resource is presumed available. 55 Pa. Code § 178.4(e)(3) (emphasis added). Regarding rebuttable presumptions
in general, the applicable regulatio n provides: “If the applicant/recipient presents

no evidence at the prehearing conference or a Departmental fair hearing to
disprove the presumption, the presumption remains unrebutted and stands.” 55 Pa.

Code § 178.2.

In the present case, the ALJ rejec ted the son’s attempt to establish that
he contributed all of the money into the accounts at issue. In that regard, the son

maintained that, after he sold his house in 2005 in order to move to Connecticut, he
purchased a $100,000 CD to enable his father t o live comfortably. The son alleged
that his father used the bulk of that money to maintain himself, with the
understanding that any money remaining from that CD after his father’s death
would revert to him. The ALJ, however, rejected the son’s testimony as self

serving and not credible, concluding: “No credible evidence was presented to
explain why the sale of the house and the purchase of the CD occurred more than
one (1) year apart.” December 4, 2014 Adjudication at 9. Further, the ALJ found5

that th e son presented no documentary evidence “that the proceeds from the sale of
his house were used to purchase the CD and the money from the CD was then used
to establish the [bank accounts at issue].” Id . In addition, noting that the son
presented no documentary evidence that he contributed any money to those
accounts during the period of May 6, 2013 to June 5, 2014, the ALJ found that
only Toney made contributions during that time period. As the statem ents from
that time period reflect: “[T]he only income deposited into the checking account,

other than [ Toney’s ] monthly income from SSA [social security] and VA
[veterans’] benefits, was $100 on January 16, 2014 and $200 on January 21, 2014,

both transfe rs from the savings account.” 2 Id ., F.F. No. 10.

Accordingly, in light of the fact that no credible evidence was
presented to rebut the presumption that Toney’s share is presumed available to him
for purposes of determining the availability of resources for his partial or total

support, we conclude that the ALJ did not err in affirming the CAO’s decision
denying the application. Accordingly, we affirm. 3

_____________________________________ BONNIE BRIGANCE LEADBETTER, Judge

2 Toney’s countable gro ss monthly income from SSA and VA benefits was $2,365.90. December 4, 2014 Adjudication, F.F. No. 7.

3 As for Toney’s purported declaration

, prepared for the above

- captioned appeal and attached as an addendum to the brief, we cannot consider items that are dehors the record. Rossi v. Unemployment Comp. Bd. of Review , 675 A.2d 390, 392 (Pa Cmwlth. 1996)

. A s DHS observe d on page nine of its brief : “[T]he hearing decision will be based solely on the information presented at the heari ng . . . .” See 55 Pa. Code § 275.4(g)(6). It is not for this Court, on appeal, to act as the finder of fact.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Toney, : Petitioner :

:

v. : No. 2343 C.D. 2014

: Department of Human Services, : Respondent :

O R D E R

AND NOW, this 25th day of August, 201 5 , the order of the
Department of Human Services is hereby AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Judge