Opinion
HHBCV166032216S
06-28-2017
Nina C. Kretschmer v. Roderick L. Bremby, Commissioner of the Department of Social Services, State of Connecticut
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff, Nina C. Kretschmer, appeals from the final decision of the defendant, the Commissioner of the Department of Social Services (commissioner and department, respectively), denying her application for state supplemental benefits for failure to submit information needed to establish her eligibility. The plaintiff claims that she presented adequate and timely information in the form of affidavits submitted by her conservator, who was her authorized representative in dealings with the department. The plaintiff claims that the commissioner arbitrarily and capriciously refused to consider those affidavits as adequate verification of the plaintiff's resources. For the reasons discussed below, the commissioner's decision is affirmed.
FACTS AND PROCEDURAL HISTORY
The record establishes the following facts. On March 8, 2012, the plaintiff's attorney was appointed as conservator of the plaintiff's estate. Record (R.), p. 44. From that time forward, the conservator paid the plaintiff's bills and controlled her assets. R., p. 59.
In 2014, the plaintiff was admitted to Connecticut Valley Hospital (CVH), where she remained for approximately a year. R., p. 164. On April 15, 2015, she was discharged from CVH to a licensed boarding home. R., pp. 6, 28, 177. On the same date, an online application was submitted to the department on behalf of " Nana Kretschmer" for cash assistance under the state supplement for the Aid to the Aged, Blind and Disabled (AABD) program. R., pp. 6, 19-26. Although the plaintiff's conservator was named in the online application as the plaintiff's authorized representative (R., p. 21), the conservator did not submit the online application. R., pp. 179-84. The conservator did not know who submitted the online application, which had incomplete and inaccurate information. R., pp. 179-80.
On April 24, 2015, the department sent the plaintiff a Form W-1348, " Verification We Need" (W-1348), listing items that the plaintiff needed to provide to prove her eligibility for state supplemental assistance. R., pp. 30-31. The W-1348 was mailed to the plaintiff at the boarding home. In the W-1348, the department required copies of account statements for the plaintiff's stock in CVS, her Webster Bank account, and her MidAmerica retirement account, all for the period from April 2013, through April 2015. R., pp. 30-31. The department also required documents showing how every amount of $500 or more withdrawn from those accounts in the preceding two years had been used, as well as proof of ownership of a Ford Focus that had been registered in the plaintiff's name. R., p. 31. The W-1348 stated that the information was needed by May 5, 2015, and that " [i]f you do not send us your proof on time, your benefits may be delayed or denied." R., p. 30. The W-1348 stated that the date of application was April 15, 2015, and that the department would take action on the application by June 1, 2015. R., p. 31.
Between April 7, 2015, and April 20, 2015, the plaintiff's conservator exchanged correspondence about the plaintiff's application with an entitlements coordinator at CVH. R., pp. 6, 49-72. On May 14, 2015, the conservator submitted verification documents to the department, totaling 120 pages. R., p. 76. She provided two affidavits concerning the plaintiff's assets and income. R., pp. 77-80. In one of the affidavits, she represented that a payment of $4, 896 had been made on March 18, 2015, to the plaintiff's sister, to pay for the purchase of a computer and to repay her for funds " advanced for various unexpected expenses of Nina 2011 to date." R., p. 78. On May 14, 2015, the conservator contacted the department to request an extension to provide additional verification. R., p. 16. The department granted an extension, setting the new due date as Monday, May 25, 2015. R., p. 16.
On May 22, 2015, the CVH coordinator faxed the conservator an unsigned and undated paper application form for the state supplement benefits the plaintiff was seeking. He directed the conservator to sign, date, and return the form to him. He said that he would fax it to the department. R., p. 81. On May 26, 2015, the conservator returned the signed application to the CVH coordinator. R., p. 104. The next day, the conservator faxed him a letter regarding the plaintiff's special needs trust and exchanged further emails with him about the plaintiff's application. R., pp. 111, 113-16. On May 28, 2015, the CVH coordinator e-mailed the conservator regarding additional verifications the department was requesting. R., pp. 117-18. On the same day, the department also mailed a W-1348 to the conservator at her correct office address. R., pp. 128-30.
The May 28, 2015 W-1348 requested CVS stock statements from April 2013, through April 2015, verification of the source of several deposits into the plaintiff's Webster Bank account, certain MidAmerica statements, verification, such as receipts, for the $4, 896 repayment to the plaintiff's sister, and other information about a Webster Bank savings account. R., p. 128. The W-1348 stated that the verifications were due on June 8, 2015, and that the department would take action on the application on June 8, 2015. R., p. 129.
On June 5, 2015, the plaintiff's conservator exchanged e-mails with the CVH coordinator, reporting that she was still collecting documents required by the department. R., pp. 131, 134. On June 8, 2015, the CVH coordinator informed the conservator that the plaintiff had not yet been approved for medical coverage. R., pp. 131-34.
On June 9, 2015, the conservator contacted the department, requesting another extension of time. R., pp. 8, 17. The department granted a new extension of ten days, to June 19, 2015. R., pp. 8, 17. The department did not receive any further verifications from the conservator by June 19, 2015. On June 24, 2015, it denied the plaintiff's application for failure to provide information necessary to establish eligibility. R., pp. 8, 36-37. Notice of the denial was mailed to the conservator's correct office address. R., pp. 8, 36. The conservator later testified, however, that she had not received the notice of the denial until the plaintiff's boarding home provided a copy to her in August. R., p. 165.
On July 6, 2015, the conservator e-mailed the CVH coordinator that she had sent the department further verifications but had forgotten the CVS stock records. R., p. 136. A cover letter subsequently sent to the department indicates that documents were submitted to the department's scanning center on July 6, 2015. R., p. 137. On July 20, 2015, the conservator submitted additional documents to the department's scanning center. R., pp. 140-46.
On August 10, 2015, the conservator called the department, which informed her that the plaintiff's application had been denied because verification was not received on time. R., p. 17. She was advised to submit a new application. R., p. 17.
Through her conservator, the plaintiff requested a fair hearing to contest the denial. R., pp. 5, 146. The conservator submitted additional documents on behalf of the plaintiff on August 30, 2015, before the fair hearing, but did not file a new application before the fair hearing. R., p. 8. The hearing was held on October 13, 2015. R., pp. 152-209. At that time, the conservator appeared on behalf of the plaintiff, who was not present. The department presented a summary of facts relating to the plaintiff's application, with attachments. R., pp. 16-46. Among the attachments was a printout of the April 15, 2015 online application. R., pp. 18-26. The plaintiff's conservator testified that she had never seen it before and did not know who had submitted it. R., p. 162. She acknowledged that she called the department on June 9, 2015, to request an extension to submit documents. R., p. 164. She testified that she was not told that she had to ask for an extension for every period of time that there was a delay. R., p. 165. She testified that she tried to call back on a later date but could not reach anyone, so she continued to send documents in July as they became available. R., pp. 164, 168-69. She testified that she did not receive the notice of the denial of benefits, although she confirmed that it was correctly addressed to her office. R., p. 170. She also testified that she did not initiate a new application after learning of the denial because she went on vacation and felt strongly that she had already provided everything the department needed. R., p. 167. She acknowledged, however, that she did not know whether the department had all the information it had required before it denied the application. R., p. 196.
The hearing officer kept the hearing record open to October 29, 2015, so that the plaintiff could submit additional documents in an effort to establish that she had provided all necessary information before the denial. R., p. 6. The hearing officer then closed the record and subsequently rendered a decision upholding the denial of benefits. R., pp. 5-13. The plaintiff moved for reconsideration, which was denied. R., pp. 1-4. This appeal followed.
JURISDICTION
Before addressing the merits of the plaintiff's claim, the court first addresses whether the appeal was properly brought in the name of the plaintiff, a conserved person. At the hearing on the merits of the appeal, the court asked the parties to submit supplemental briefs concerning whether the plaintiff, as a conserved person, had the capacity to bring the appeal, or whether it should be brought by the conservator on her behalf. The court recognized that the plaintiff is the real party in interest and sought to ensure that the appeal was brought in the proper form so that there would be no question as to the court's jurisdiction.
The parties submitted supplemental briefs on the issue of the plaintiff's ability to bring suit in her own name on February 28, 2017. On March 30, 2017, the plaintiff's attorney filed a supplemental affidavit, executed by the plaintiff herself, representing that she understood that there was a problem with her application for benefits at the time she entered the boarding home, that she wanted the problem fixed and understood that the only way to fix it was to file an appeal of the denial, and that she wants her attorney to maintain the appeal because it is important to her that the boarding home be paid for the period of time in which there was a problem with her benefits.
The law concerning the capacity of a conserved person to bring an action in his or her own name changed substantially in 2007, with the enactment of Public Acts 2007, No. 07-116 (P.A. 07-116), now codified in relevant part in General Statutes § 45a-186. Before the enactment of P.A. 07-116, it had been generally held that a conserved person was incompetent to bring an action, and that any action in his or her behalf had to be brought by a conservator, guardian, or next friend. See, e.g., Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 261-65, 398 A.2d 307 (1978); see also Lesnewski v. Redvers, 276 Conn. 526, 540-41, 886 A.2d 1207 (2005), overruled by Gross v. Rell, 304 Conn. 234, 270-71, 40 A.3d 240 (2012).
In P.A. 07-116, the legislature amended General Statutes § 45a-650 to preserve the rights of conserved persons to the greatest extent possible. Section 45a-650(f), for instance, now requires probate courts to consider whether the appointment of a conservator is the least restrictive means available to assist a respondent. Under § 45a-650(m), the probate court may assign a conservator only the duties and authority that are the least restrictive means of intervention necessary to meet the conserved person's needs. In addition, § 45a-650(n) establishes a conserved person's " right to retain an attorney to represent such person or to seek redress of any grievances in any court or administrative agency . . ." Subsequently, in Gross v. Rell, supra, 304 Conn. 269-71, the Supreme Court held that a conserved person may commence an appeal in his own name if his attorney believes and can persuade the trial court that the conserved person's preference is reasonable and informed.
In this case, the plaintiff's appeal was filed by the plaintiff's attorney, who is also her conservator. When the court raised the question of the plaintiff's capacity at oral argument, the plaintiff's attorney initially stated that she brought the action in the plaintiff's name because she thought that if she brought the appeal in her capacity as conservator, she would have to hire an attorney to represent her and the plaintiff's estate could not afford the expense of another attorney. However, she subsequently filed the plaintiff's affidavit, in which the plaintiff avers that she understands the nature of the appeal and desires that her attorney maintain the appeal on her behalf. Considering that the plaintiff's expressed preference to maintain the appeal is informed and reasonable, and considering that the plaintiff is plainly the real party in interest, the court concludes that the appeal can properly proceed in the plaintiff's name.
SCOPE OF REVIEW AND APPLICABLE LAW
Judicial review of an administrative agency's action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § § 4-166 through 4-189. Section 4-183(j) establishes the standard by which courts are to review administrative decisions. It provides in relevant part: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
" [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither [the Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
" Even for conclusions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . [Thus] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281, 77 A.3d 121 (2013). A plaintiff who challenges an agency decision has the " heavy burden of demonstrating that the department's factual conclusion lacks substantial support on the whole record." Office of Consumer Counsel v. Dept. of Public Utility Control, 246 Conn. 18, 36-37, 716 A.2d 78 (1998).
This appeal is governed by a host of intertwined federal and state laws and regulations. Before applying for the supplemental income payments at issue in this appeal, the plaintiff was receiving benefits under the Supplemental Security Income (SSI) program, which " provides a subsistence allowance, under federal standards, to the Nation's needy aged, blind, and disabled persons." Schweiker v. Wilson, 450 U.S. 221, 223, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981). The SSI program is a " federal social welfare program designed to provide a guaranteed minimum income level necessary for the subsistence of individuals who cannot work because of age, blindness or disability." (Emphasis in original.) Marrocco v. Giardino, 255 Conn. 617, 630, 767 A.2d 720 (2001). To ensure minimum support for SSI recipients whose expenses exceed their income, Congress permits states to supplement SSI recipients' income by paying such recipients the difference between their countable income from all sources and a subsistence standard established by each state. See 42 U.S.C. § 1382e; Marrocco v. Giardino, supra, 255 Conn. 631. Connecticut has opted to supplement the income of eligible SSI recipients and has tasked the department with administering the state supplement program. General Statutes § § 17b-2(8), 17b-260, 17b-600; see also Ross v. Giardi, 237 Conn. 550, 557, 680 A.2d 113 (1996). Connecticut provides supplemental income benefits under what is known as the § 209(b) option, codified at 42 U.S.C. § 1396a(f), which permits a state to apply more restrictive eligibility criteria for the state supplemental benefits than the federal government applies to applicants for SSI benefits as long as the state's eligibility requirements are not more restrictive than the criteria contained in its state Medicaid plan in effect on January 1, 1972. Ross v. Giardi, supra, 237 Conn. 557.
Under General Statutes § 17b-600, the commissioner administers the state supplemental income program in accordance with Title XVI of the Social Security Act. General Statutes § 17b-80(a) requires the commissioner to investigate the eligibility of an applicant and award aid only if it is determined that the applicant meets the eligibility requirements. Section 17b-80(a) also requires the commissioner to act on applications within certain time standards. Under General Statutes § 17b-80(c), a single applicant cannot qualify for supplemental income benefits if he has more than $1, 600 in personal assets.
In addition, a person who has disposed of property for less than fair market value within twenty-four months before applying for supplemental income benefits is presumed to have done so to establish eligibility for such benefits and is prohibited from receiving such benefits for a period of time defined by § 17b-600.
General Statutes § 17b-10(a) requires the department to adopt regulations to conform to the requirements of any federal program or joint federal and state program, including the state's optional income supplementation program, that the department administers. The department has enacted regulations that are published in its Uniform Policy Manual (UPM) to govern these programs. In accordance with General Statutes § 17b-10(a), the UPM is available online.
Under UPM § 1010.05(A)(1), an applicant for aid (described in UPM terms as an " assistance unit") must supply the department " in an accurate and timely manner as defined by the [d]epartment, all pertinent information and verification which the [d]epartment requires to determine eligibility and calculate the amount of benefits." The department is required to take prompt action to determine eligibility on each application. UPM § 1505.35(A)(1). Promptness standards vary depending upon the program under which assistance is sought; UPM § 1505.35(C); but " [p]rocessing standards are not used as a waiting period for granting assistance. Applications are processed with reasonable promptness as soon as the [d]epartment is able to make an eligibility determination." UPM § 1505.35(D)(3). The department determines eligibility standards within the standards of promptness " except when verification needed to establish eligibility is delayed and one of the following is true: (a) the client has good cause for not submitting verification by the deadline; or (b) the client has been granted a 10-day extension to submit verification which has not elapsed . . ." UPM § 1505.35(D)(2). In addition, UPM § 1505.40(B)(5) provides as follows:
a. Regardless of the standard of promptness, no eligibility determination is made when there is insufficient verification to determine eligibility when the following has occurred:
(1) the [d]epartment has requested verification; and
(2) at least one item of verification has been submitted by the assistance unit within a time period designated by the [d]epartment, but more is needed.
b. Additional 10-day extensions for submitting verification shall be granted, as long as after each subsequent request for verification at least one item of verification is submitted by the assistance unit within each extension period.
Finally, UPM § 1555.10(A) permits the department to give an assistance unit additional time to provide verification if good cause for a failure to timely report or verify information is found to be reasonable. Good cause may include, but is not limited to, illness, severe weather, a death in the immediate family, or other circumstances beyond the assistance unit's control. UPM § 1555.10(B)(2).
DISCUSSION
In this appeal, the department's hearing officer found that the department properly denied the plaintiff's application because the plaintiff failed to submit at least one item of verification during the ten-day extension period granted on June 9, 2015, and that she failed to establish good cause for such failure. In the argument section of her brief, the plaintiff argues that the decision was arbitrary and capricious because her conservator had submitted affidavits on her behalf, before the denial, that provided all the information the department had requested. She further argues that she was not told that the extension granted on June 9, 2015, was only a ten-day extension and that she was required to submit at least one item of verification during that ten-day period. In the fact section of her brief, the plaintiff also argues that the department failed to accommodate her disability. The court is not persuaded.
A
The plaintiff's principal claim on appeal is that it was unreasonable for the department to require further documentation because she had already provided adequate information on her assets in the form of affidavits by her conservator. She relies on Pikula v. Dept. of Social Services, 321 Conn. 259, 138 A.3d 212 (2016), in support of her argument that the state must set reasonable standards in determining income and resources. She further argues that the department unreasonably required actual bank and stock account records rather than relying on her conservator's affidavits. She cites UPM § P-4099.05(2), which contains a list of sources that may be used to verify assets, and argues that its language is permissive rather than mandatory. The plaintiff argues that the permissive " may be used" in UPM § 4099.05(2) implies that other sources of information can be used to verify financial information.
UPM § P-4099.05(2) provides as follows:
The legal premises underlying the plaintiff's argument are unexceptionable. The state is clearly required to set reasonable standards for determining eligibility. See Pikula v. Dept. of Social Services, supra, 321 Conn. 266. The list of acceptable forms of verification recited in UPM § P-4099.05(2) is not, on its face, an exclusive list.
The department's regulations vest discretion in the department to determine " the adequacy and appropriateness of the method" of verification selected. UPM § 1540.15(A)(1). " Documents are the primary sources of verification whenever such evidence can be acquired." UPM § 1540.15(B)(1). Nevertheless, the department will accept " any document which it feels clearly establishes the veracity of the unit's declarations without restricting the evidence to any one particular type of document." UPM § 1540.15(B)(2). " In the absence of available documentary evidence, the Department verifies information through contacts with persons who are not members of the assistance unit." UPM § 1540.15(C)(1). " Verification through collateral contacts consists of obtaining oral or written affirmations of the unit's statements from persons who are capable of providing first-hand testimony." UPM § 1540.15(C)(2). Affidavits are accepted for review " when documentary proof is required, and the assistance unit cannot provide it after good faith efforts." UPM § 1540.15(G)(1)(b). As these regulations indicate, the department reasonably prefers objective documents (bank and brokerage records, land records, and so on) created by third parties where such documents are available, but it will consider other forms of evidence if such documents cannot be provided after good faith efforts.
Although affidavits are acceptable to the department where other evidence is unavailable, the evidence in the record does not support, as a matter of fact, the plaintiff's claim that the department arbitrarily ignored her affidavits or that her affidavits provided all of the information the department required. In fact, the record indicates that the department did accept the conservator's affidavits as satisfying its requests when documentary evidence was unavailable. For instance, the W-1348 sent by the department on April 24, 2015, required the following information: " Ford Focus-please verify ownership. If sold after Apr. '13, submit proof of sale and what you did with proceeds." In response to that request, the conservator submitted an affidavit, dated May 14, 2015, in which she averred that " The 2002 Ford Focus was put into storage several years ago by Mr. [sic] Kretschmer's sister. It was eventually junked as it was not operationally [sic]. No funds were received for it. I was not provided with any paper work on its disposal which was handled by the storage company where it had been. The storage company was sold at some point after the car was junked and the paper trail for the car became unavailable. According to the Newington Tax Assessor's office the car was last on the tax rolls on October 1, 2013. It was not on the tax rolls as of October 1, 2014, and is not currently on the tax rolls." R., pp. 79-80. The department apparently accepted this affidavit as sufficient evidence of the disposition of the car, because when it issued a subsequent W-1348 on May 28, 2015, it did not seek further information about the car. R., p. 33. Thus, where documentary evidence was unavailable, the department accepted the conservator's affidavit, but where documentary evidence could be obtained, it reasonably required that she provide such evidence instead. The plaintiff does not claim that the documents required by the W-1348 sent on May 28, 2015 did not exist or could not be obtained; she merely asserts that it took additional time to get them.
The record also fails to support the plaintiff's claim that her conservator had provided sufficient information by affidavit before the application was denied. In fact, she had failed to provide at least one significant item before the application was denied. In her May 14, 2015 affidavit, the plaintiff's conservator stated that a check in the amount of $4, 896 had been issued to the plaintiff's sister on March 18, 2015--less than a month before the plaintiff applied for benefits--as payment for a computer and repayment of funds advanced for various unexpected expenses incurred by the plaintiff between 2011 and the date of the payment. R., p. 78. In the W-1348 issued on May 28, 2015, the department required proof " such as receipts" to verify the payment to the plaintiff's sister. R., p. 128. Such proof was appropriately required to ensure that the plaintiff had not transferred assets to a family member at less than fair market value in order to establish her eligibility for assistance. See General Statutes § 17b-600. There is no evidence that the proof required as to this payment was difficult to obtain, yet no proof was supplied until July 20, 2015, when the plaintiff's conservator sent an affidavit by the plaintiff's sister to the department as part of her final submission.
There is no record evidence, moreover, that the plaintiff's conservator ever disputed the department's need for additional documents before she learned of the denial. On June 5, 2015, before she sought an extension on June 9, 2015, she e-mailed the CVH coordinator that she was still collecting documents required by the department. R., p. 131. In the e-mail, she said that she had information on most of the deposits but still needed to order records from Webster Bank and was waiting on a breakdown of the plaintiff's sister's claim. R., p. 131. She did not claim that these documents were unnecessary.
Indeed, in her appeal brief, the plaintiff represents that after the fair hearing, she submitted a new application and was required to submit " very little information and documentation." Pl. Br., p. 6. Her new application was approved and she began to receive benefits around January of 2016. Pl. Br., p. 8.
For the reasons discussed above, the court is not persuaded that the department arbitrarily refused to consider the conservator's affidavits to be sufficient evidence of the plaintiff's resources. The department had a legitimate need for information that was not provided to it before the due date the conservator had requested.
B
The plaintiff's second claim is that her conservator was unaware that the application would be denied if she did not submit documents by June 19. In her brief, she claims, without a citation to the record, that (1) her conservator was never given a due date, and (2) her conservator believed that as long as she kept sending documentation to the department and explaining why she needed more time, the application would not be denied. P. Br., p. 14. The plaintiff's conservator did not make the first claim--that she was never given a due date--to the hearing officer. It is therefore not properly before the court. A plaintiff cannot raise issues on appeal that he or she failed to present to the hearing officer below. See Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 862, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005). Even if this claim were properly before the court, moreover, it would not be persuasive, because it is contradicted by evidence in the record. Throughout the fair hearing, the conservator effectively acknowledged that she was aware of the due date but believed that she could disregard it with impunity.
The plaintiff's conservator contended, throughout the fair hearing, that no one had told her that the application would be denied if she failed to submit anything before the extended due date. See, e.g., R., p. 165 (" I was never told that I had to ask for an extension for every period of time that there was a delay"); p. 169 (" I just kept sending stuff because no one told me that if I didn't have it in by the 11th day that they would deny the application"). At one point, the hearing officer said, " 6/19 was the due date that the Department sent for you to send in the information it was seeking. You said earlier that you didn't send anything in until July 7th, which is past the due date." R., p. 172. The conservator did not dispute the due date of June 19. She said instead: " I was never told that if material didn't get in by the due date the application was denied. I was under the impression as long as I continued to send the information I sought and explained to them why I had so much trouble getting the information would be acceptable." R., pp. 172-73. Her " impression" was partially correct. The application would not have been denied if she had submitted any item of verification by the due date, along with a request for an extension of time to obtain further documents. But her " impression" that she could ignore the due date altogether was unreasonable. Under her theory, the department would be required to hold the application open indefinitely even if she never communicated with it during a period when an unexpired extension was in effect, because it would never know whether she was still planning to submit further verification.
On appeal, the plaintiff's attorney, who was also her conservator, argued that she could not be expected to read the entire UPM to learn the requirements for the plaintiff's application. That argument is not persuasive. Whether acting in her capacity as the plaintiff's conservator or as the plaintiff's attorney, it was her responsibility to ensure that she complied with any applicable time limits-not to operate under a mere " impression" that the department did not have firm deadlines or had extended her an unlimited amount of time to submit verifications. See R., pp. 174-75. Indeed, her own testimony at times contradicted her claim that she was unaware of the need to seek further extensions. When the hearing officer asked why, after obtaining an extension to June 19, she did not do anything until July 7, she replied, " I called after that and I couldn't get anybody." R., p. 169. The hearing officer could reasonably have inferred from that statement that she was aware of the need to seek further extensions. The hearing officer found that the department reasonably did not grant an additional extension after June 19 because it did not receive at least one additional item of verification by that date. R., p. 10. That finding is supported by substantial evidence in the record.
The plaintiff's claim, more generally, is that the department failed to assist her conservator in completing the application. She claims that her conservator had to wait on hold for an hour or two to make telephone contact with department staff, that the department did not adequately inform her conservator of its requirements, and that the department failed to provide a contact person for the conservator to call. What the plaintiff does not do, however, is provide any legal authority about the department's obligations. She does not cite a statute, a regulation, a policy, or a judicial decision that defines or describes the department's duty to provide such assistance. Without any analysis of the source, content, nature, and scope of any duty the department may have owed, the plaintiff has failed to brief this claim adequately. " [A] trial court . . . is not required to consider a claim that is inadequately briefed." Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 85, 942 A.2d 345 (2008). " Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016).
The plaintiff's attorney further argues that good cause existed for her failure to provide the information because some of it was difficult to obtain. She represents that the plaintiff's financial records were in disarray as a result of the plaintiff's mental illness and that some of the institutions from which she needed to obtain primary documentation were resistant to providing it to her as conservator, without a power of attorney from the plaintiff. In the fact section of her brief, she also argues that the department failed to accommodate the plaintiff's disability, citing only UPM § 1005.10 in support of this claim. Pl. Br., p. 5.
UPM § 1005.10(B) provides that " [a]n individual with a disability has a right to receive a reasonable accommodation from the Department when a reasonable accommodation is necessary to allow the individual to have an equally effective and meaningful opportunity to participate in, and benefit from, programs administered by the Department . . ." The extension of deadlines for providing documentation of eligibility may be a reasonable accommodation. UPM § 1005.10(B)(13)(c). However, " [w]aiving the requirement that verification of income or assets be provided in order to qualify for programs that require such verification" would not be a reasonable accommodation because it would " constitute a fundamental alteration to the Department's program." UPM § 1005.10(B)(3)(b). Moreover, and more importantly, " [t]he existence of a disability is not sufficient to demonstrate the need for an accommodation when: . . . an authorized representative identified by the assistance unit is available, willing, and able to perform the required tasks on behalf of the individual." UPM § 1005.10(B)(12)(b).
In this case, it was undisputed that the plaintiff has a disability; that was the basis of her eligibility for SSI and for the state supplement for AABD benefits. It is also undisputed that her attorney was appointed conservator of her estate on March 8, 2012, more than three years before she applied for benefits, and her conservator was her authorized representative for purposes of her application for AABD benefits. Her conservator had a legal duty to ascertain and manage her financial affairs. See Estate of Marcus v. Dept. of Income Maintenance, 199 Conn. 524, 528, 509 A.2d 1 (1986). A conservator of the estate is required to make an inventory of the conserved person's estate within two months of appointment, " with the properties thereof appraised . . . at fair market value as of the date of the conservator's appointment." General Statutes § 45a-655(a). A conservator of the estate must " manage all the estate and apply so much of the net income thereof and, if necessary, any part of the principal of the property, which is required to support the conserved person . . ." General Statutes § 45a-655(a). A conservator of the estate thus has the duty to identify and manage the conserved person's estate for the conserved person's benefit. Gross v. Rell, supra, 304 Conn. 234, 250-54. In this case, the plaintiff had been hospitalized at CVH for a year when she began the process of applying for the state supplement. Her conservator was aware of the need to spend down her assets to establish eligibility for those benefits. As the department argues, the conservator had ample time to identify the plaintiff's assets and collect the documentation needed to establish the plaintiff's eligibility. To the extent that more time was needed, moreover, the department was willing to provide extensions. The problem here was that the conservator failed to ask for additional extensions, simply assuming that the department would accept the documents whenever she provided them.
Finally, in the fact section of the plaintiff's brief, the plaintiff remarks on the fact that the online application submitted on her behalf on April 15, 2015, was " submitted without the signature or knowledge of the AREP [authorized representative] who is the Appellant's Conservator of Estate and does not hold a power of attorney as the application represented." Pl. Br., p. 2. She further states that her conservator, who was dealing with CVH staff, had submitted a paper application through CVH but learned at the fair hearing that the paper application was not being acted on. Pl. Br., p. 3; see also R., pp. 181-207. The hearing officer kept the record open to allow her conservator to submit additional evidence, including any documents that she believed had established the plaintiff's eligibility before the denial. R., pp. 6, 206-07. In the final decision, the hearing officer observed that it was unclear why the CVH coordinator would have asked the plaintiff's conservator to sign and date a new application, because the department had already received an online application that it was processing. R., pp. 10-11. He further stated that the department had no knowledge of the paper application. R., p. 11.
Although the plaintiff's brief describes the confusion about the online application and the paper application in her statement of facts, she does not assert a specific claim about it in the argument section of her brief. If this is a claim, it is not adequately briefed. See State v. Buhl, supra, 321 Conn. 722-29. The court will nevertheless address the issue briefly in light of the Appellate Court's recent decision in Godaire v. Dept. of Social Services (slip opinion officially released June 21, 2017), 174 Conn.App. 385, 2017 WL 2688085.
In Godaire, the Appellate Court held that the department had improperly upheld a termination of AABD benefits because the fair hearing had been conducted upon " unlawful procedure." See General Statutes § 4-183(j). More specifically, at the fair hearing, a department eligibility specialist contradicted a prior department position that the plaintiff's AABD benefits would be reinstated for one month to allow the completion of dental work begun during an earlier period of eligibility. Because the plaintiff had not been given notice of this change in the department's position, he did not bring medical bills to the fair hearing to show that he had satisfied spend-down requirements and therefore was eligible for reinstatement. The eligibility worker was permitted to introduce post-hearing evidence to contradict information the department had previously provided to the plaintiff, and the plaintiff (an eighty-two-year-old self-represented party) was denied the opportunity to respond to it. The plaintiff was substantially prejudiced by the unlawful procedure because all of his upper teeth had been extracted in reliance on the department's representation that he had benefits to cover the dental work, but when the department advised the dentist that the plaintiff's benefits had been terminated, the dentist canceled the final appointment in which the plaintiff was to receive his false teeth.
In this case, as in Godaire, evidence was presented at the fair hearing that the plaintiff had not expected. The plaintiff's conservator testified that she had never seen the online application before the day of the hearing. Nor did she know, before the fair hearing, that the paper application she had sent to the CVH entitlements coordinator had not been received by the department.
The similarities to Godaire end there. In this case, the plaintiff's case was unaffected by any confusion about the applications. The hearing officer gave the plaintiff a post-hearing opportunity to submit the documents that she believed were relevant. He also concluded that the paper application, signed on May 26, 2015, was unnecessary, because the department was already processing the April 15, 2015 online application it had received, probably from the boarding home. The plaintiff was not a self-represented litigant, but had an authorized representative who was both an attorney and the conservator of her estate. The confusion about the applications did not result from any action by the department, but from the fact that some unknown individual had submitted information to the department on behalf of the plaintiff and the department had not received information submitted by the conservator to the CVH entitlements coordinator. Most importantly, the application was not denied because the initial application was deficient, but because the conservator failed to provide, within the extended time allowed by the department, the documentary verification of the plaintiff's assets, income, and pre-application expenditures that the department needed to verify the plaintiff's eligibility.
In an administrative appeal, the court must affirm the decision of the agency if the facts found are supported by substantial evidence in the record and the conclusions drawn from those facts are reasonable. In this case, the commissioner concluded that the plaintiff's application was properly denied for lack of timely verification of the plaintiff's resources. That conclusion is reasonably drawn from findings that are based on substantial evidence in the record. The decision is not arbitrary and capricious. The plaintiff's appeal is therefore dismissed.
The following sources may be used to verify the assistance unit's or deemor's equity in counted assets:
NADA " blue" book of trade-in values for automobiles; real estate conveyance records; marketing appraisals; bank records; passbooks; records of stock transactions; property appraisals performed by the Department; tax assessment records; tracers sent by the Department and answered by appropriate agency personnel (e.g., W-36 completed by bank official; W-279 completed by insurance company official).
Under UPM § 1505.40(B)(1)(d), " Verification received after the date that an incomplete application is processed:
(1) is used only with respect to future case actions; and (2) is not used to retroactively determine a corrective payment."Assuming that the plaintiff's brief accurately represents the post-hearing grant of the plaintiff's second application, it would appear that the department appropriately considered the information provided in her first application but still needed a few items of verification. This suggests that even the information supplied in July and August, after the denial of the first application, was incomplete.