STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BEAUFORT 06 DHR 0300

JACK WILLIAMSON, )

Petitioner, )

)

v. ) DECISION

)

DIVISION OF MEDICAL ASSISTANCE )

THIRD PARTY RECOVERY, )

Respondent. )

______

THE ABOVE-CAPTIONED case coming on to be heard and being heard before the Honorable Sammie Chess, Jr. sitting in Craven County, New Bern, North Carolina for the June 21, 2006 session of the Office of Administrative Hearings, and the Court, after hearing the testimony of witnesses, reviewing Respondent’s Exhibits numbers one through six admitted into evidence, and after hearing arguments by Petitioner Jack Williamson, appearing pro se and on behalf of his nephew Russell Wayne Williamson, and by Susannah P. Holloway, attorney for Respondent North Carolina Department of Health and Human Services, Division of Medical Assistance, this Court recites the following:

ISSUES PRESENTED

Whether Petitioner has established the elements necessary to support a waiver of estate recovery under the provisions governing a waiver of estate recovery for undue hardship as found in the North Carolina Administrative Code. Specifically, has the Petitioner established that his nephew Russell Wayne Williamson resided in the home owned by Bessie Williamson at her death for twelve months prior to, and on the date of, her death and is the home owned by Bessie Williamson the residence of Russell Wayne Williamson?

APPLICABLE LAW

N.C. Gen. Stat. § 108A-25(b), 108A-54, 108A-70.5, and 150B-22.

42 U.S.C. § 1396p

10A N.C.A.C. 21D.0500, et seq.

Based on the evidence presented, this Court makes the following:

FINDINGS OF FACT

1. That Bessie Williamson received Medicaid services which, at her death, subjected her estate to a claim by the North Carolina Department of Health and Human Services, Division of Medical Assistance.

2. That Bessie Williamson died owning property located in Pitt County, North Carolina known as 3153 Lloyd Corey Rd., Robersonville.

3. That the Petitioner is the Executor of Bessie Williamson’s estate.

4. That the Division of Medical Assistance made the initial agency decision denying Petitioner’s request for a waiver of estate recovery pursuant to the regulations set forth in the North Carolina Administrative Code.

5. That the Petitioner instituted the above-captioned contested case on behalf of his nephew Russell Wayne Williamson, Bessie Williamson’s heir.

6. That the provisions of the North Carolina Administrative Code Title 10A, Chapter 21, Subchapter 21D, “Estate Recovery,” Section .0500, et seq., “Waiver of Recovery,” govern the instant proceeding.

7. That Russell Wayne Williamson was incarcerated with the North Carolina Department of Corrections during the twelve months prior to, and on the date of, Bessie Williamson’s death.

8. That Russell Wayne Williamson is currently incarcerated with the North Carolina Department of Corrections.

Based on the foregoing Findings of Fact, this Court makes the following:

CONCLUSIONS OF LAW

1. That the North Carolina Office of Administrative Hearings has jurisdiction over the parties and subject matter of this contested case.

2. That the property in the estate of Bessie Williamson located at 3153 Lloyd Corey Rd., Robersonville, Pitt County, North Carolina is not the residence of Russell Wayne Williamson.

3. That Russell Wayne Williamson did not live at 3153 Lloyd Corey Rd., Robersonville, North Carolina for at least twelve months immediately prior to, and on the date of, Bessie Williamson’s death.

4. Therefore, the Petitioner has failed to establish the elements necessary to support a waiver of estate recovery under the provisions of the North Carolina Administrative Code Title 10A, Chapter 21, Subchapter 21D, Section .0500, et seq..

NOW, THEREFORE, based on the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:

DECISION

1. That the initial determination of the Division of Medical Assistance, denying a hardship waiver to Petitioner, is affirmed and estate recovery by the Division of Medical Assistance shall not be waived on the basis of undue hardship.

NOTICE

The parties have the right to file exceptions and to present written arguments to the agency making the final decision. G.S. § 150B-36(a). The agency making the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Medical Assistance. The agency is required to serve a copy of the final decision upon each party and to furnish a copy to each party’s attorney of record and the Office of Administrative Hearings. G.S. § 150B-36(b3).

IT IS SO ORDERED.

This the 4th day of August, 2006.

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Sammie Chess, Jr.

Administrative Law Judge