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In re Landry

Supreme Court of Vermont

January 9, 2015

In re Bernice Landry

On Appeal from Secretary, Agency of Human Services Douglas A. Racine, Secretary

William R. Dysart, Vermont Legal Aid, Inc., Burlington, for Appellant.

William H. Sorrell, Attorney General, Montpelier, and Kristin L. Clouser and Benjamin D. Battles, Assistant Attorneys General, Waterbury, for Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Durkin, Supr. J., Specially Assigned


¶ 1.Petitioner Bernice Landry appeals from a decision of the Secretary of the Agency of Human Services reversing a Human Services Board order awarding her long-term care Medicaid benefits. The Secretary determined that the Board erred in applying the doctrine of equitable estoppel to allow for the award of benefits retroactive to thirteen months preceding petitioner’s fifth and final application; the Board had reasoned that each notice of decision denying petitioner’s four prior applications were misleading because the notices informed petitioner of her rights to appeal or reapply “at any time, ” but failed to explain that if she chose only to reapply, her benefits would be retroactive only from the date of the new application. As explained below, we affirm the Secretary’s reversal of the Board’s ruling, albeit on a different basis.

¶ 2. Following an evidentiary hearing in this matter, a hearing officer issued findings which the Board adopted in their entirety, together with rendering the Board’s own legal conclusions in a written decision issued in October 2013. The findings and record evidence may be summarized as follows. Petitioner was admitted to a nursing home in September 2010. She was eighty-seven years old at the time, and had a diagnosis of dementia and Alzheimer’s disease. Petitioner’s adult daughter, who had the authority to act on petitioner’s behalf by virtue of a power of attorney, submitted an application for long-term care Medicaid benefits in January 2011. The application sought coverage for petitioner, retroactive to October 1, 2010, pursuant to a Medicaid rule authorizing benefits for up to three months preceding the month of application.

¶ 3. A long-term care benefits specialist with the Department for Children and Families testified that, in response to the application, she sent two separate verification requests to petitioner’s daughter and an administrator at petitioner’s nursing home. Each request sought information necessary to confirm petitioner’s financial eligibility, including bank, income, and tax records. The benefits specialist also attempted to schedule a telephone interview with the petitioner or her daughter, all in an effort to obtain the requested information in support of petitioner’s application.

¶ 4. The Department received no response to these requests. Accordingly, in March 2011, the Department issued a Notice of Decision (“Notice”) denying the application. The Notice cited petitioner’s failure to provide the Department with “all the information we need” to determine her eligibility, and explained more specifically that “[t]here was no response to Department requests for verification and the required telephone interview.”

¶ 5. Apart from denying the application, the Notice informed petitioner that she had the right to appeal the Department decision or “may reapply at any time.” Under a caption labeled “IMPORTANT, ” the Notice stated that information concerning petitioner’s “right to appeal this action” could be found on the back of the Notice. The information explained that petitioner had the right to appeal the Department’s decision by requesting a fair hearing within ninety days from the date the Notice was mailed. No appeal of this initial denial was filed by petitioner or a person acting on her behalf within the ninety-day limit.

¶ 6. Petitioner’s daughter submitted a second application for long-term care Medicaid benefits in June 2011, three months after the Department’s denial of the initial application. Again, the benefits specialist sent verification requests to petitioner’s daughter and nursing home administrator seeking the same information that was missing from the original application. Again, the Department received no response. Accordingly, in August 2011, the Department issued a second Notice denying the application for the same reasons as stated in response to the first application. This second Notice again informed petitioner of her right to “reapply at any time” or to appeal within ninety days. No appeal or request for a fair hearing was filed from this second denial.

¶ 7. In September 2011, petitioner’s daughter contacted the benefits specialist by email, expressing her frustration with the Department’s decisions and seeking further assistance. In response, the benefits specialist recalled the Department’s letters and telephone messages, which had gone unanswered, outlined the forms and documents required for verification of petitioner’s eligibility, and offered to meet petitioner’s daughter in person to discuss the case. Petitioner’s daughter explained that the telephone messages may have been “lost, ” and acknowledged: “I dropped the ball. I should have been more vigilant in being on top of this.”

¶ 8. In mid-September 2011, the benefits specialist and petitioner’s daughter met in person to discuss the case. The benefits specialist could not recall exactly what she said at the meeting regarding retroactive benefits, but testified that she routinely tells applicants that they may be able to receive benefits for the three months prior to the date of the “current application.” Also on the day of the meeting, petitioner’s daughter submitted a third application for benefits, and in response she received a letter from the Department outlining the additional documentation required for verification of petitioner’s financial eligibility. The Department did not receive any further documentation from petitioner after the meeting or the letter. Accordingly, in October 2011, the application was denied for “failure to provide all the information we need.” As before, the Notice informed applicant of her right to “reapply at any time” or appeal. No appeal was filed from this third Notice.

¶ 9. With her daughter’s assistance, petitioner submitted a fourth application in December 2011. Two verification requests from the Department for additional information went unanswered, and the application was denied in January 2012. Once again, the Notice stated that petitioner could “reapply at any ...

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