Judge Stephen I. Goorvitch, Case Number: 24STCP00498, Date: 2024-09-25 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP00498, Date: 2024-09-25 Tentative Ruling

Hearing: September 25, 2024 Kimberley Johnson, Director, Location: Stanley Mosk Courthouse

Petitioner Brooke Pierce (“Petitioner”) filed a petition for writ of administrative mandate directing Respondent Kimberley Johnson, Director of the California Department of Social Services (“Respondent”) to set aside a final administrative decision dismissing Petitioner’s appeal of Medi-Cal share of cost notices from 2017, 2019, and 2020. The Administrative Law Judge (the “ALJ”) found that the County of Los Angeles (the “County”) mailed Notices of Action concerning her late husband’s share of the cost of services on June 9, 2017; April 26, 2019; December 14, 2019; and January 21, 2020, and that Petitioner received these notices. Petitioner did not request a hearing to challenge the County’s determinations until October 28, 2022, well after the 180-day statute of limitations. The court finds that substantial evidence, and the weight of the evidence, supports the ALJ’s findings that that the notices were mailed to Petitioner on the dates specified and that Petitioner received them. At the administrative hearing, Petitioner confirmed that her address was correct; testified that she “more than likely” received them; and presented no evidence suggesting that she did not receive them. Therefore, the court denies the petition for writ of mandate.

“Medicaid is a cooperative federal-state program through which the federal government reimburses states for certain medical expenses incurred on behalf of needy persons.” (Keffeler v. Partnership Healthplan of California (2014) 224 Cal.App.4th 322, 326-27, citation omitted.) Medi-Cal is California’s state Medicaid program. (See Mission Community Hospital v. Kizer (1993) 13 Cal.App.4th 1683, 1688-1689.)

Each county in California has a welfare department responsible for local administration of the Medi-Cal program. (22 Cal. Code Regs. § 50004(c).) On behalf of the Department of Social Services (the “Department”), the County calculates beneficiaries “share of cost” by subtracting the appropriate maintenance need from the Medi-Cal Family Budget Unit from the net income. (See AR 12 and 22 Cal. Code Regs. § 50653.)

“In 1973 the Legislature enacted the In-Home Supportive Services (IHSS) program to enable aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 867.) “The Department and its director are responsible for administering the IHSS program in compliance with state and federal laws.” (Id. at 868.) IHSS is only available to individuals eligible for Medi-Cal. (Welf. & Inst. § 12300(i).)

Petitioner’s husband, Brad Pierce, was a recipient of Medi-Cal and IHSS benefits. (See AR 3-4, 29-39; Petition for Writ of Mandate (“Pet.”) ¶ 27.)[1] From 2017 to 2020, the County sent Petitioner four Notices of Action (“NOA”) regarding Brad Pierce’s Medi-Cal share of cost. The NOAs are dated June 9, 2017; April 26, 2019; December 14, 2019; and January 21, 2020. (AR 28-39.) The notices informed Petitioner of a change to Brad Pierce’s Medi-Cal share of cost. (Ibid.) Specifically, the Notices of Action informed Petitioner of shares of cost of $1,410 effective June 1, 2017; $1,523 effective May 1, 2019; $1,536 effective January 1, 2020; and $1,391 effective February 1, 2020. (Ibid.) The NOAs were addressed to Petitioner and included her mailing address. (Ibid.)

Petitioner first applied for IHSS benefits on behalf of Brad Pierce in 2017. (AR 15, 51-52.) The County denied the Petitioner’s request for IHSS benefits on March 7, 2017. (Ibid.) In 2022, Petitioner successfully appealed the 2017 denial of IHSS benefits. (AR 15.) The County retroactively approved IHSS benefits from March 7, 2017, to September 28, 2021, in the amount of $96,881.62. (AR 16.) However, Petitioner received a check only for $76,627.07 because the County deducted the Medi-Cal share of costs amounts indicated in the NOAs. (Ibid.)

In October 2022, Petitioner’s authorized representative requested an administrative hearing regarding the four Medi-Cal share of cost notices sent to her in 2017-2020. (AR 16.)

The County requested a bifurcated hearing on the timeliness of Petitioner’s appeal of the share of cost notices, and that request was granted. (AR 3-4, 16.) After an administrative hearing, the administrative law judge (“ALJ”) dismissed Petitioner’s state hearing request on the grounds it was untimely. (AR 3.) Respondent adopted the ALJ’s decision as its final decision. (AR 2.) This writ petition followed.

Under Code of Civil Procedure section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc. § 1094.5(b).)

Petitioner does not dispute that this case does not involve a fundamental vested right and that the “substantial evidence” test applies. (See Opening Brief (“OB”) 3:4-16.) “In an administrative writ proceeding that . . . does not involve a fundamental vested right, the trial court reviews the agency’s factual findings for substantial evidence and its legal conclusions de novo.” (Reznitskiy v. County of Marin (2022) 79 Cal.App.5th 1016, 1023.) “A ‘fundamental vested right’ denotes a right that is already possessed as opposed to a right that is merely sought.” (Kalway v. City of Berkley (2007) 151 Cal.App.4th 827, 832.) [2] On questions of law arising in mandate proceedings, including the interpretation of a statute or regulation, the court exercises independent judgment. (See Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251; State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

Petitioner argues that the NOAs were “not adequate” because “the four NOAs for the Share of Cost were created years after the ‘effective dates’ of the Shares of Cost.” (OB at 3:28-4:1.) Under the pertinent regulations:

The Notice of Action shall be mailed for: (1) Adverse actions, at least 10 calendar days prior to the first of the month in which the action becomes effective, excluding the date of mailing [and] (2) Discontinuances or increases in the share of cost which are not adverse actions, in sufficient time to reach the beneficiary by the effective date of the action. . . .

(22 Cal. Code Regs. § 50179(d).) Simply, Petitioner argues that “[c]ontrary to the regulation, the NOAs were mailed or otherwise sent to [Petitioner] two or more years after the effective dates.” (OB at 4:13-15, emphasis added.)

The ALJ found that the County issued the NOAs on June 9, 2017; April 26, 2019; December 14, 2019; and January 21, 2020. (AR 4.) The ALJ also found that Petitioner “received” the NOAs. (Ibid.) Petitioner challenges this finding, arguing: “At hearing (AR 52 -AR 83) there was no corroborating testimony that the Notices were issued on the dates that Los Angeles County (County) says they were issued. County Witness, Jose Torres, did not clearly testify the NOAs were, in fact, mailed on the alleged dates.” (Reply 1.)

As Petitioner acknowledges, the NOAs were addressed to her, include her mailing address, and specify the “notice date.” (AR 28-38.) Thus, on the face of the NOAs, there is evidence of mailing to Petitioner on the notice date of each NOA. Petitioner confirmed that her mailing address was correct. (AR 67.) Petitioner does not cite any evidence from the record, such as her own testimony, that proves that the NOAs were not mailed on the notice dates and received shortly thereafter. To the contrary, Petitioner admitted that she “more than likely” received the NOAs when they were sent in 2017, 2019, and 2020. (AR 65.)

Counsel: Ms. Pierce, do you recall getting these notices of action telling you that there was a share of cost?

Petitioner: I -- I don’t remember. I -- I think so. I mean, you know, I would just file them away, and that was pretty much what I would do. So, I’d have to go through my files to see if I received them. But more than likely I did.

(Ibid.) At the administrative hearing, Petitioner’s authorized representative confirmed that Petitioner “probably did receive the notices.” (AR 67.) Substantial evidence, and the weight of the evidence, supports the ALJ’s findings that that the NOAs were mailed to Petitioner on the dates specified and that Petitioner received them. [3]

Upon receipt of a Notice of Action, including with respect to a Medi-Cal share of cost, a beneficiary has 90 days to request a state hearing. (See Welf. & Inst. Code § 10951(a)(1).) If good cause exists, a beneficiary may file a request beyond the 90 days. (Id. § 10951 (a)(2).) However, the Department “shall not grant a request for a hearing for good cause if the request is filed more than 180 days after the order or action complained of.” (Ibid.)

As discussed, the NOAs were mailed on or about June 9, 2017; April 26, 2019; December 14, 2019; and January 21, 2020, and Petitioner received them shortly thereafter. Petitioner made her request for a state hearing on October 28, 2022, well more than 180 days after receipt of the NOAs. (AR 3.) Accordingly, the ALJ correctly determined that Petitioner’s request for a hearing was untimely and the good-cause exception pursuant to section 10951 was inapplicable. (AR 14.) Petitioner does not meet her burden to show a prejudicial abuse of discretion in that finding. (Code Civ. Proc. § 1094.5(b).)

Petitioner raises a series of new arguments in her reply brief. First, Petitioner argues as follows:

The failure of the receptionist to act in a lawful manner, i.e., to accept the intake and inform Brooke Peirce of the Spousal Impoverishment Program (and refrain from telling her that caring for her husband is her responsibility) taints the NOAs from March 7, 2017 to beyond November 30, 2022 (the death of Brad Pierce).

(Reply 3:8-12.) Petitioner further argues that the “receptionist violated Welf. & Inst. Code § 10500 by failing to provide information on the SI [spousal impoverishment] program or its prototype, Assisted Living Waiver ….” (Reply 5.) Relatedly, Petitioner asserts that the ALJ was “dismissive” of Petitioner’s testimony that she had a spousal impoverishment form in place such that the share of cost deductions were incorrect, and that failure of the ALJ to consider such testimony deprived Petitioner a fair trial. (Reply 4-5.) Petitioner also suggests that she may have “paid the SOC twice.” (Reply 6:12.)

None of these arguments was adequately raised or developed in the opening brief. Although Petitioner included a reference to the “person answering the telephone in 2017” in the opening brief, the argument was unintelligible and not presented in a manner that provided sufficient notice and opportunity to respond. (See OB 4:22-28.) Petitioner otherwise did not raise any argument in the opening brief about Welfare and Institutions Code section 10500; the ALJ being dismissive of her testimony about the spousal impoverishment form; being deprived a fair trial; a concern about paying the share of costs twice; or similar issues raised in reply. Nor were there sufficient citations to the administrative record.

“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; see also Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333.) Petitioner has not shown good cause to raise these arguments for the first time in reply, depriving Respondent an opportunity to provide a written opposition.

1. The petition for writ of mandate is denied. Because the court denies the petition, it need not address Petitioner’s issues to be considered on remand. (See OB 5.)

[1] Brad Pierce passed away after Petitioner requested an administrative hearing. (AR 3.)

[2] In the alternative, the court reaches the same result even if it exercises its independent judgment on all issues and applies the “weight of the evidence” standard to the review of administrative fact findings. (See Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.)

[3] Petitioner does not challenge any other aspect of the NOAs. Regardless, substantial evidence, and the weight of the evidence, supports the ALJ’s findings that the NOAs include the information required under Title 22, California Code of Regulations, section 50179(a) and were adequate. (See AR 28-37.)