Gilroy v. DPW - Commonwealth Court - April 8, 2008http://www.courts.state.pa.us/OpPosting/CWealth/out/1537CD07_4-9-08.pdf
Rcipient of MA benefits transferred assets of husband/decedent's estate to decedent's daughters, because she'd ony been married to decedent for very short period of time. OIG/DPW sought repayment of benefits already paid.
Recipient's attempt to rebut the ineligibility presumption through testimony that she transferred those assets to Decedent’s daughters, not to ensure her eligibility for MA benefits, but solely because she only had been married to Decedent for a short period of time and did not think it fair to take from Decedent's estate.
DPW regs permit an applicant to ebut the presumption that such a transfer was for the purpose of making herself eligible for MA benefits. An applicant can do this at various times during the application process, including at a prehearing conference, at a hearing or through a court order. 55 Pa. Code §178.106(1). However, in finding Gilroy ineligible for benefits, the ALJ refused to consider Gilroy’s attempt to rebut the presumption, holding that there never is an exception to the ineligibility provisions of 55 Pa. Code §178.104(d). The ALJ’s holding is contrary to well established case law and to DPW’s regulations, which clearly give the applicant an opportunity to rebut the presumption and, thus, constitutes an error of law.
Unfortunately, because the ALJ did not consider the possibility that Gilroy could overcome the ineligibility presumption, he made no findings of fact or credibility determinations pertaining to that issue. Accordingly, we vacate, and we remand the matter to DPW to remand to the ALJ to decide whether Gilroy rebutted the presumption of ineligibility and to make the necessary findings of fact and credibility determinations to support that