### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00621- CV

Mary F . Henson an d Dena Gae tens, Appellants

v. Texas Health and Human Servic es Com m ission and Ch ris Traylor , M.D., 1 Com m ission er of the Texas Health and Hu m an Services Com m ission , Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0007 7, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Mary F. Henson, by and throug h her g uardia n, Dena Gae tens, appea ls the 2 judgme nt o f t h e d i s t rict court aff irming a final order of the Texas Hea lth and Human Service s Commi ssion. The Commi ssion’s order conclude d that Henson beca me elig ible for nursing -fa cility Medica id benef

its on April 1, 2009. On appea l, Henson co n t en d s that the district court err ed in aff irming the order beca

use, acc ording to Henson, the C o m m i ssion failed to proper ly acc ount for

cer tain g uardia

nship order s when i t conclude d that Henson failed to meet the financ ial-elig ibilit y require ments for Mar ch 2009. We will affir m the judgme nt of the district court.

This suit was orig inally broug ht ag ainst Ky le J anek, M.D., the former Commi ssioner of the 1 Texas Hea lth and Human Service s Commi ssion. We auto m at i ca l l y substitut e the name of the succe ssor to this office, Chris Tra y lor. See Tex. R. App. P . 7.2. Although the administrative proce eding s underly ing this appea l wer e initiated by Gae tens 2 on Henson’s be half, Ga etens, individually , is not a party to these proc eeding s.BACK GR OUND The Texas Hea lth and Human Service s Commi ssion is the ag ency desig nated to administer the Texas Medica id prog ram. See Tex. Hu m . Res. Code § 32.021; Tex. Gov’t Code § 531.021(a)

. Chapter 358 of the Texas Administrative Code establishes the Medica id elig ibilit y require ments for Medic aid funde d prog rams. See 1 Tex. Admin. Code § 358.105 (Tex. H ealth & 3
Hum an Servs. Comm’n, Desc ription of Eligible Clients). To be elig ible for Medica id bene fi t s a
person must d em o n s t ra te, among other things, that they meet cer tain financ ial-elig ibilit y require ments. See id . §§ 358.105, .610(d) ( Medica id Coverag e).

On April 17, 2009, Hens o n , throug h her g uardia n, applied for nursing -fa cility
M e d ic a id b e n e f

it s . S e e id

. § § 3 5 8

. 6 0 0

- . 6 2 3 ( A

p p li c a ti o n f o r M e d ic a id )

. A t th e ti me o f f il in g , H e n s o n

was alre ady a resident in a nursing fac ility

and wa s pay ing f

or her car e privately , althoug h she had exhausted almost all of her available asset s . Up o n revie wing the application, the Commi ssion notified Henson that she was elig ible to rec eive Medica id benef its eff ective April 1, 2009. Henson d i s ag ree d with the effec tive date for benefits as determined by the C ommissi on, complaining that th e Co mm is s io n e r

r e d in d e te r

mi n in g th a

t s h e h a d f a il e d to me e t th e f

in a n c ia l- e li g ib il it

y r e q u ir e me n ts for the month of Marc h 2009. Consequently , Henson soug ht an administrative hear ing, also known
as a “ Fa ir Hea

ring ,” to contest the de cision. See id . § 358.720 (Client Right to Appea l).

Chapter 358 of the Texas Administrative Code was amende d Sep t em ber 2009. See 3 34 Tex. Reg. 5497 ( 2009) (Tex

. Hea lth & H uman Servs. Comm’n). The Commission applied the version of Chapter 358 that was in eff ect when Henson applied for benef its. Un l es s otherwise indicated, all ref

ere nces to Chapter 358 in this opinion are to rules promulg ated by the Commi ssion as they exis ted at that time. 2The hear ing office r assig ned to Henson’s case conducte d an evidentiar y hear ing and is s u e d a n o r d e r s u s ta in in g th e Co mm is s io n ’ s d e te r mi n a ti o n o f th e A

p r il 1 e f f e c ti v e d a te

. H e n s o n th e n
soug ht an administrative revie w of the hear ing office r’s decision. See Tex. Gov’t Code § 531.019(c) (re quiring administrative review as prer equisite to judicial revie w of decision related to benef its). Upon revie wing the administrative rec ord, the revie wing attorney d etermined that “the hear ing office r developed t he reco rd appropriately , and the rec ord reflec ts that all policies and procedure s

wer e proper ly applied.” Acc ording ly , the Commi ssion, throug h the revie wing attorney , aff irmed the hear ing of

fice r’s de cision as the Commissi on’s final orde r. See id . § 531.019(e)

. Henson filed suit in Travis County district court. After admitting the administrative

rec ord, the court conclude d that “the Fa ir Hea ring Dec ision in Case No. 0423309, sty led In t h e Matter of Mary Franc es He nson , should be aff irmed, in all respe cts.” This appe al followed.

STANDARD OF REVIEW
Dec isions by the Commi ssion rela ted to Medica id benef its are subject to jud i ci al revie w under section 2001

. 174. Id

. § 531.019(g ). Under this standard, a revie wing court must

reve rse or rema

nd an ag ency order if substantial rig hts of the appellant have been prejudice d beca use the administrative finding s, infere nces, c onclusions, or dec isions are
(A) in violation of a constitutional or statutory provision; (B ) in excess of the ag ency ’s statutory authority ; (C) made throug h unlawful proc edure ; (D) aff

ecte d by other e rror

of law;

3(E) not rea sonably supported by substantial evidenc e considering the reliable and probative e vidence in the rec ord as a whole; or (F ) arbitra

ry or capr icious or char acte rized by abuse of discretion or clea rly unwar rante d exercise of

discretion.

I d

. § 2 0 0 1

. 1 7 4 ( 2 )

. H o w e v e r , a s a r e v ie w in g c o u r t, w e ma y n o t s u b s ti tu te o u r ju d g me n t f

o r th a t o f th e
ag ency on the weig ht of the evidenc e on matters committed to ag ency discretion. Id

. § 2001.174(1).
An ag ency order is presumed to be valid, and it is supported by substantial evidenc e if the evidenc e in its entirety is sufficie nt to allow rea sonable minds to have rea ched the conclusions that the ag ency
must have rea ch ed t o j u s t i fy the di sputed action. Texas St ate Bd. of Dental Exam’rs v. Siz emore , 759 S.W .2d 114, 116 (Tex. 1988).

To the ex tent our review turns on the i nterpre tation of t he C ommissi on’s rules, we revie w these questions de novo. CenterPoint Energy Houston Elec., LLC v. Public Util. Comm’ n , 408 S.W .3d 910, 916 (Tex. App.—Austin 2013, pet. denied)

. I n inte rp reting an administrative rule, our primary objective i s t o ascertain and g ive eff ect to the ag ency ’s intent. Id

. I f the rule is ambig uous or leave s room for policy deter minations, we defe r to the ag ency ’s interpre tation unless the administrativ e i n t er p retation is plainly err oneous or inconsistent with the reg ulation or its underly ing statutes. Rodriguez v. Servic e Lloyds Ins. Co ., 997 S.W

. 2 d 248, 254-55 (Tex. 1999);
CenterPoint , 408 S.W .3d at 916-17.

4ANALYSIS
I n what is, in eff

ect, one issue on appea l, Henson complains that the Commi ssion

err ed in deter

mining that she failed to establish her financ ial elig ibilit y for Medica id nursing -fa cility benef its for the month of Marc h 2009. 4
The Commi ssion deter

mines an applicant’ s financ ial elig ibilit y for Medica id benef its by assessing the person’ s income and resour ces and apply ing fede ral income and resour ces elig ibilit y criter ia. 1 Tex. Admin. Code § 358.405 (Categ ories of Resource L imits ). An individual

m eets resour ces- elig ibilit y criter ia if the value of all countable resour ces does not exceed $2,0 0 0

. See 20 C.F.R. 416.1205 (limitation on resour ces)

. A person’ s value of countabl e re s o urce s is deter mined as of 12:01 a.m. on the first day of the month for which the person seeks benef its, althoug h elig ibilit y may be re- established no sooner than the first day of the next month. 1 Tex. Admin. Code § 358.400(a) , (b) ( Gene ral Resourc es).

At the time the Commi ssion revie wed Henson’s application, the term “re source s”

was define d in Chapter 358 as “ca sh, other liquid assets, or any rea l or persona l proper ty or other nonliquid asse ts ow ned by a client, his spouse , or pare nt, tha t c ould be conver ted to cash.” See id

. § 358.100(103) (De finitions). I n addition, resour ces wer e considere d available to a perso n ev en when they wer e being manag ed by the per son’s leg al g uardia n, so long a s the g uardia

nship papers did not show that the g uardia n was prohibited from acc essing the resour ces. Id

. § 358.415(e) , (f)
Although Henson also appea rs to separ ately arg ue that her constituti o n al rig hts to due 4 pro ce s s and equal protec tion have been violated, she fails to explain how her rig hts have been violated or to provide citations to the rec ord in support of this claim. Acc ording ly , we conclude that this arg ument is waived as inadequa tely briefe d. See Tex. R. App. P. 38.1(i) (appe llant’s brief must contain cle ar and concise arg ument for contentions made, with appropr iate citations to authorities and to re cord)

. 5(Owne rship and Acc essibility ). A client’s bank ac co u n t , as of 12:01 a.m. on the first day of the

month for which elig ibilit y is being tested, was considere d a countable resour ce. Id

. § 358.435(b)( 1) (L iquid Resources) . Under Rule 358.435, an applicant’ s countable r esourc es we re r educe d by the
amount of funds encumbe red befor e 12:01 a .m. on the first day of the month. Id

. § 358.435(b)( 2). The Commi ssion r educe d a bank acc ount ba lance as of 12:01 a .m. on the first day of the month by the amount of any chec ks written bef ore tha t time that had not y et bee n proce ssed by the financ ial instit ution. Id

. The Commi ssion found that Henson’s banking rec ords established that on Marc h 1, 2009, at 12:01 a.m., the balanc e available to Henson was $2,239.77. Be cause this balanc e exceede d the $2,000 elig ibilit y threshold and beca use there was no evidenc e of any unproce ssed chec ks at that time, the Commi ssion c oncluded that Henson failed to de monstrate her financ ial elig ibilit y for the month of Marc h 2009. The Commi ssion, howeve r, did find that Henson beca me elig ible for benef

its eff ective A pril 1, 2009. On appe al, Henson acknow ledg es t hat $2,000 is the applicable financ ial-elig ibilit y limit

. I n addition, Henson does not dispute that her bank balanc e was $2,239.77 on Marc h 1 at 12:01 a.m., that there wer e no outstanding chec ks that had not y et bee n proce ssed, and that he r g uardia n

was entitled to use the funds in her bank acc ount for her support and maintenanc e. I nstead, Henson
arg ues that the Commi ssion err ed in failing to deduct cer tain g uardia

nship order s as “enc umbranc es” from this bank balanc e which, acc ording to Henson, would demonstrate that her countable resour ces

wer e, in fa ct, below the $2,000 e ligibility threshold.
I n support of her arg ument, Henson asser ts that court order s requiring a g uardia nship
to pay a claim are eff

ective the day they are signe d and that, under a prior policy decision issued by
6the Commi ssion, these ty pes of g uardia

nship order s are considere d leg al encumbr ance s ag ainst the applicant’ s estate. Henson contends that, in this case , her g uardia n was re q u i re d by the Texas 5
Probate Code to file an application with the probate court reque sting a monthly allowanc e and that the probate court g rante d that reque st by issuing its “orde r setting monthly allowanc e” in the amount of $2,074.60 per month. See Tex. Prob. Code §§ 767-782. Henson also points out that the probate
court separ ately order ed that Henson’s g uardia n pay up to $1,100 for cer tain expenses, including a

w h e e lc h a ir

. H e n s o n r e a s o n s th a t th e p r o b a

te c o u r t o r d e r s s e tt in g th e mo n th ly a ll o w a n c e f o r H e n s o n ’ s needs and authorizing the pay ment of cer

tain expenses wer e eff

ective the day they wer e signe d and, thus, opera ted as encumbr ance s on her bank acc ount on that same day , reg ardle ss of when the money

was a ctually

spent.
I n response , the Commi ssion emphasizes that Rule 358.345 expressly defin es an encumbr ance on a bank acc ount to be “the amount of any chec ks written befor e that time that have
not y et been proce ssed by t h e fi n an cial instit ution.” Fur ther, the Commi ssion arg ues that, to the
extent court order s may , under cer tain circ umstances, opera te as encumbr ance s with respe ct to calc ulating a

n applicant’ s countable r esourc es, those cir cumstance s are not present in this case

. The Commi ssion made s ev er al finding s rele vant to the g uardia nship order s that form the ba sis of Henson’s c omplaint. Specifically , the Commiss ion found:
(7.) Prior to the Medica id Application, it was nece ssary for part o f [Henson’s] monthly ex p enses to be met using [Henson’s] asset rese rves. [Henson’s]

Henson cites to a document entitled Ex cer pt of Memorandum issued by the Commi ssion 5 and dated May 29, 1996. I n the document, the C ommissi on staff concluded, in anot h er ca se, t hat a court order to pay a debt was considere d a “leg al encumbr ance at the point in time the court makes the orde r.” 7in c o me w a s $ 2 , 0 5 2

. 9 1 p e r mo n th

. A c o u r t o r d e r a ll o tt in g a mo n th ly a ll o w a n c e for expenditures in the am o u n t of $2,074.40 per month from [Henson’s] assets wa s established on Nove mber 19, 2008. (8.) [Henson’s] g uardia n was limit ed by the order to spending [Henson’s] assets as court appointed g uardia n to the amount of $2,074.40 monthly

. The order require d that funds spen t be for the car e, custody , and maintenanc e of [Henson]

. (9.) The order al l o t ment was based on approximate monthly expenses of maintaining [Henson] that wer e prese nted in a reque st to the court on behalf of the Guar dian. These wer e anticipated expenses and based on Guar dian’s own estimates for [Henson’s] n ee ds as prese nted to the court for: nursing home, persona l needs, medicar e premium, diaper s, medical doctors, presc ription. (10.) The court order does not place sp ecif ic limit s/prohibitions on Guar dian for spending allotted funds, nor doe s it specify spending limit s by item. Whi le the monthly al l o tment was clea rly direc ted based on Guar dian’s own submissi on of anticipated need, the only specific restric tions to Guar dian’s acc ess to [Henson’s] assets is that the monthly use may not exceed $2,074.40. (11.) The court order allows for ex p en d i ture “up to and including the amount of $2,074. 4 0 p er m o nth.” The court order does not prohibit acc umulation of monies in [Henson’s] acc ount when the full $2,074

. 4 0 i s not used in any g iven month. (12.) The court order is for an allowanc e of expenditure to meet g ener al needs and is not a specific encumbr ance to pay specifie d amounts to limit ed parties for exact service s.

. . . (16.) The specia l one-time court o rder for J anuar y 12, 2009 of $1,100 for a rec liner, dresse r, whee lchair, and night stand for [Henson] are b as ed o n a petition to meet some of [Henson’s] special nee ds made by the Guar dian. (17.) The specia l one-time order of J anuar y 12, 2009 notes the date of J anuar y 2009 on the request and allows t h e p u rc h as es to be made, howeve r, i t does not specific ally limit the purcha se of the item s t o that month, require the exact amounts noted to be spent, or make an absol u t e require ment that the items be purcha sed.

8The Commi ssion arg ues that these finding s support the Commi ssion’s conclusions that the

November 19 order and J anuar y 12 order “did not prohibit the g uardia n acc ess to any fu n ds” and that neither order opera

ted as an “enc umbranc e ag ainst th e funds in [Henson’s] bank acc ount.” We ag ree . Ru l e 3 5 8

. 345, reg arding encumbr ance s on bank acc ounts, by its plain lang uag e, permits a reduc tion of an applicant’ s acc ount balanc e with respect to the “amount of any chec ks written befor e that time that have not y et been proce ssed by the financ ial instit ution.” 1 Tex. Admin. Code § 358.435(b)( 2). Her e, Henson does not contend, nor do the Commi ssion’s finding s sug g est, that Henson’s g uardia

n had acte d on the prob at e order s by writing chec ks that had not y et been
proce ssed as of Marc h 1, 2009. I n addition, to the extent we may rea sonably construe Rule 358.435

as requiring the Commi ssion to trea t a court order as an “enc umbranc e” ag ainst a bank account when the order require s the pay ment of leg al debt—as Henson contends we should—th er e i s no evidenc e that would support the conclusion that the p ro bate order s in this case opera ted as such encumbr ance s. That is, the Commi ssion’s finding s of fac t, descr ibing and char acte rizing the order s
at issue, are supported by substantial evidenc e i n t h e administrative rec ord—name ly , the express lang uag e of the order s themselves. These finding s establish that the November 19 and J anuar y 12 probate order s do not opera te to restric t Henson’s g uardia n’s ability to acc ess any funds and that they

are not order s requiring the pay ment of any specific leg al debt. There fore , as suming without 6

To the extent Henson sug g ests that the funds in her bank acc ount are not “re source s” at all 6 beca use the funds are not g ener ally available to her gu ar d i an absent permission from the probate court, we dis agr ee. Pursuant to Rule 358.415(e) , an applicant’ s resour ces in g uardia nship are g ener ally considere d available despite the fac t that the g uardia n may need to routinely “petition the court for permission to dispose of a client’s resour ces .” 1 Tex. Admin. Code § 358.410. This is 9deciding that Henson’s interpre tation of the applicable Medica id rules reg arding encumbr ance s on

bank acc ounts is rea sonable and corr ect, we cannot conclude that the November 19 and J anuar y 12 probate order s opera te as deductible encumbr ance s under t h e C o m m i s s i on’s rules. As a result,
Henson has fail ed to demonstrate any err or in the Commi ssion’s order

. Henson’s sole issue on
appea l is overruled.

CONCLUSION

Having considere d Henson’s arg uments on appea l, we aff i rm t h e judgme nt of the district court.

__________________________________________ Scott K. Field, Just ice
Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: Nove mber 5, 2015

co n s i s t en t with g uidance provided in the Social Security Administration’s Prog ram Oper ations Manual Sy stem (POMS). Frerks v. Shalala , 848 F. Supp. 340, 350 (E.D.N.Y

. 1994) (noting that POMS is considere d persua sive authority , even though it is not published in the Fe dera l Reg ister and does not have “the f

orce of law” ). POMS provides that if, under State law , conser vatorship funds are available for the car e and maintenanc e of an individual, the funds are considere d that individual’s re s o u rce s “despite the fac t that the individual or his/her ag ent is require d to petition the cour t t o withdraw funds for the individual’s car e.” See id

. (citing POMS at SI 01120.010). Thus, under this authority , the funds in Henson’s b an k ac count are countable resour ces, despite the fac t that her g uardia n must petition the court to g ain acc ess to the funds. Moreove r, there can be no dispute that pursuant to the court’s order of November 19, 2008, He nson’s g uardia n had acc ess to at least $2,074.40 per month from Henson’s acc ount for the care, cu s t o d y , and maintenanc e of Henson. This amount, standing a lone, exceeds the $2,000 financ ial-elig ibilit y threshold. 10