Romanelli v. Dept. of Social Services

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Romanelli v. Dept. of Social Services

ANTOINETTA ROMANELLI, EXECUTOR (ESTATE
OF ANTONIO ROMANELLI) v. DEPARTMENT
OF SOCIAL SERVICES
(AC 45560)
Moll, Cradle and Bear, Js.

Syllabus

The plaintiff, the executor of the estate of R, appealed to this court from
the judgment of the trial court dismissing the plaintiff’s appeal from the
decision of the defendant, the Department of Social Services, denying
R’s application for long-term Medicaid benefits. R and the plaintiff estab-
lished a trust for which they were both the grantors and the beneficiaries.
Pursuant to the terms of the trust, R and the plaintiff retained the right
to withdraw the trust property, which included certain real property
in Old Lyme, and to revoke the agreement so long as they were not
incapacitated. R was later admitted to a long-term care facility and
applied for long-term care Medicaid benefits. The defendant sent a
written request to R’s authorized representative, indicating that the
defendant had determined that the Old Lyme property was owned by
the trust and asking for verification of ownership in the event that its
determination was incorrect. R’s representative did not provide any
information in response to the request, either disputing the ownership
of the Old Lyme property or arguing that it should not be included in
the determination of R’s Medicaid eligibility. R died, and, a few months
later, the defendant denied R’s application for Medicaid benefits because
the value of his assets exceeded the program’s eligibility limit. M, the
plaintiff’s attorney, filed an administrative appeal from the denial of the
application, claiming that the defendant improperly had included the
trust assets in its calculation of R’s eligibility because R was incapable
of revoking the trust to access its assets. At the administrative hearing,
M testified and submitted an affidavit, the substance of which was that
R was not competent to revoke the trust. The defendant’s hearing officer
concluded that M’s affidavit was not sufficient evidence to make a
determination regarding R’s mental capacity and, accordingly, that the
defendant properly denied R’s application because, in light of the value of
the Old Lyme property alone, R’s assets exceeded the limit for Medicaid
eligibility. The plaintiff filed an administrative appeal in the Superior
Court, which dismissed the appeal. Held:
1. The trial court appropriately determined that the defendant’s hearing
officer did not act unreasonably, arbitrarily, illegally, or in abuse of her
discretion in determining that the Old Lyme property was an available
asset for purposes of calculating R’s Medicaid eligibility and that decision
was supported by substantial evidence: the plaintiff’s argument that the
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Romanelli v. Dept. of Social Services
Old Lyme property was not ‘‘actually available’’ pursuant to the applica-
ble statute (§ 17b-261 (c)) for purposes of calculating Medicaid eligibility
because R was not legally capable of revoking the trust was not persua-
sive, as the hearing officer determined that M’s affidavit and testimony
were not sufficient to establish incapacity, the plaintiff did not provide
any other evidence to support R’s alleged mental incapacity, such as
medical evidence or third-party testimony or statements, and this court
could not retry the case or substitute its own judgment for that of the
hearing officer with respect to the weight of the evidence.
2. The defendant did not violate due process by failing to provide, in its
written request for verification of ownership of the Old Lyme property,
notice that the revocability of the trust was at issue in determining R’s
eligibility for Medicaid benefits: contrary to the plaintiff’s assertion, the
defendant’s request for information did not qualify under the applicable
federal regulation (42 C.F.R. § 435.917 (a)) as a decision affecting R’s
Medicaid eligibility because, according to the clear language of the
request, the application remained pending and the defendant was
requesting additional information in order to make a decision regarding
R’s eligibility; moreover, any argument that the defendant was required
to request information from the plaintiff regarding R’s mental capacity
failed because the burden of establishing eligibility was on R; further-
more, the defendant provided notice of its decision to deny Medicaid
benefits once that decision had been made; additionally, at M’s request,
the plaintiff received a full hearing on the issue of R’s incompetency
following the denial of the application even though that issue had not
been asserted previously.

Argued November 7, 2023—officially released June 11, 2024

Procedural History

Appeal from the decision of the defendant denying
an application for long-term care Medicaid benefits filed
by the plaintiff’s decedent, brought to the Superior
Court in the judicial district of New Britain and tried to
the court, Cordani, J.; judgment dismissing the appeal,
from which the plaintiff appealed to this court.
Affirmed.

Santa Mendoza, for the appellant (plaintiff).
Tanya Feliciano DeMattia, assistant attorney gen-
eral, with whom, on the brief, was William Tong, attor-
ney general, for the appellee (defendant).
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Romanelli v. Dept. of Social Services

Opinion

BEAR, J. The plaintiff, Antoinetta Romanelli, execu-
tor of the estate of her husband, Antonio Romanelli
(applicant), appeals from the judgment of the Superior
Court dismissing her appeal from the decision of the
defendant, the Department of Social Services, denying
long-term care Medicaid benefits to the applicant. The
plaintiff claims that (1) certain real property, which was
contained in a trust and which the defendant used in
its calculations to determine that the applicant was over
the asset limit for Medicaid eligibility, was not actually
available to the applicant due to his alleged incapacity
to revoke the trust and therefore should not have been
used to calculate his Medicaid eligibility and (2) the
defendant violated due process by failing to provide
notice to the applicant and/or his personal representa-
tive that the revocability of the trust was at issue in
calculating the applicant’s Medicaid eligibility. We dis-
agree and, accordingly, affirm the judgment of the Supe-
rior Court.
The following facts, as set forth by the Superior Court,
and procedural history are relevant to our resolution
of this appeal. On October 15, 2001, the applicant and
the plaintiff (collectively, Romanellis) established a
Declaration of Trust (trust) of which they were both
the grantors and the beneficiaries. At issue in the pres-
ent case is the real property in Old Lyme that was
contained in the trust.1 In September, 2019, the appli-
cant was admitted to a long-term care facility and, in
December, 2019, the applicant and his representative
filed an application for long-term care Medicaid benefits
(application). The applicant died in August, 2020. On
October 14, 2020, the defendant denied the applicant’s
1
The trust also contained real property located in Newington, which was
used as the Romanellis’ home, and which the hearing officer noted was
exempt from the defendant’s calculation of the applicant’s Medicaid eligibil-
ity.
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application for Medicaid benefits for the period from
December, 2019, through September, 2020.
Santa Mendoza, the plaintiff’s attorney, filed the
administrative appeal on behalf of the applicant’s son,
Nick Romanelli, from the defendant’s denial of the
application for Medicaid benefits and Mendoza was the
contact person with respect to that proceeding. The
basis for the appeal was that the defendant improperly
included the trust assets in the calculation of the appli-
cant’s eligibility although the applicant was incapable
of revoking the trust to access the assets. At the Febru-
ary 10, 2021 administrative hearing, Mendoza testified
and submitted an affidavit, the substance of which was
that the applicant was not competent to revoke the
trust because he lacked the mental capacity to transact
business beginning in 2013 and continuing thereafter.
The hearing officer stated that ‘‘[t]he appellant and
counsel did not provide any medical evidence of a
dementia diagnosis or any third-party testimony or
statements that support these claims. Further, these
reports were not provided to the [defendant] during the
application process although an extension was granted
by the [defendant] to dispute the classification of the
trust’s accessibility. The [defendant] made the correct
determination of the trust’s accessibility based on the
information that was provided to [it].’’ The hearing offi-
cer concluded that she ‘‘did not find [Mendoza’s] affida-
vit sufficient verification to make a determination of
[the applicant’s] mental capacity . . . .’’ The hearing
officer instead found that, because the value of the Old
Lyme property alone put the Romanellis over the asset
limit, the defendant properly denied the applicant Med-
icaid benefits.
The plaintiff filed an administrative appeal, pursuant
to General Statutes § 4-183, in the Superior Court from
the defendant’s denial of Medicaid benefits. The court
determined that the hearing officer did not err in finding
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that Mendoza’s testimony and affidavit failed to prove
that the applicant lacked the mental capacity to revoke
the trust and access the Old Lyme property. The court
dismissed the appeal. This appeal followed.
I
The plaintiff first claims that, according to General
Statutes § 17b-261 (c), the Old Lyme property was not
‘‘actually available’’ for purposes of calculating Medi-
caid eligibility because the applicant was not legally
capable of revoking the trust. We are not persuaded.
‘‘[R]eview of an administrative agency decision requires
a court to determine whether there is substantial evi-
dence in the administrative record to support the
agency’s findings of basic fact and whether the conclu-
sions drawn from those facts are reasonable. . . . Nei-
ther [the appellate] 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 deter-
mine, in view of all the evidence, whether the agency,
in issuing its order, acted unreasonably, arbitrarily, ille-
gally or in abuse of its discretion.’’ (Internal quotation
marks omitted.) Miller v. Dept. of Agriculture, 168
Conn. App. 255, 265–66, 145 A.3d 393, cert. denied,
323 Conn. 936, 151 A.3d 386 (2016); see also General
Statutes § 4-183 (j).
‘‘The [Medicaid] program, which was established in
1965 as Title XIX of the Social Security Act and is
codified at 42 U.S.C. § 1396 et seq. ([M]edicaid act), is
a joint federal-state venture providing financial assis-
tance to persons whose income and resources are inad-
equate to meet the costs of, among other things, medi-
cally necessary nursing facility care. . . . The federal
government shares the costs of [M]edicaid with those
states that elect to participate in the program, and, in
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return, the states are required to comply with require-
ments imposed by the [M]edicaid act and by the [S]ecre-
tary of the Department of Health and Human Services.
. . . Specifically, participating states are required to
develop a plan . . . containing reasonable standards
. . . for determining eligibility for and the extent of
medical assistance to be provided. . . . Connecticut
has elected to participate in the [M]edicaid program
and has assigned to the [defendant] the task of adminis-
tering the program. . . . Pursuant to General Statutes
§§ 17b-262 and 17b-10, the [defendant] has developed
Connecticut’s state [M]edicaid plan and has promul-
gated regulations that govern its administration. . . .
The [M]edicaid act, furthermore, requires participating
states to set reasonable standards for assessing an indi-
vidual’s income and resources in determining eligibility
for, and the extent of, medical assistance under the
program.’’ (Citations omitted; internal quotation marks
omitted.) Pikula v. Dept. of Social Services, 321 Conn.
259, 264–66, 138 A.3d 212 (2016).
Section 17b-261 (c) provides in relevant part that,
‘‘[f]or the purposes of determining eligibility for the
Medicaid program, an available asset is one that is actu-
ally available to the applicant or one that the applicant
has the legal right, authority or power to obtain or
to have applied for the applicant’s general or medical
support. . . .’’ Section 17b-198-8 (l) (2) of the Regula-
tions of Connecticut State Agencies provides in relevant
part that ‘‘[t]he corpus of a trust shall be treated as a
counted asset of a person . . . if the terms of the trust
permit such person to revoke the trust and receive the
corpus of the trust upon revocation.’’
Section 11 of the trust provides that the Romanellis
retained during their lifetime ‘‘[t]he right to withdraw
all or any part of the trust property and to revoke this
agreement entirely and the trust hereby created’’ and
further provides that this right to withdraw could be
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Romanelli v. Dept. of Social Services

exercised ‘‘[i]f both grantors are alive and competent,
severally, only with respect to each grantor’s separate
share.’’ Section 11 further provides that, ‘‘[i]n the event
of the incapacity of one or both of the grantors, this
trust may not be revoked by any legal or personal repre-
sentative of an incapable grantor.’’ Accordingly, the
trust would be irrevocable, and the Old Lyme property
would not be available as an asset for determining Med-
icaid eligibility if the applicant were incapacitated at
the time of the filing of the application.
At the administrative hearing, Mendoza testified that
she was the Romanellis’ attorney, that she visited the
Romanellis once or twice each year to handle issues
such as taxes, and that, by 2013, when the applicant
was approximately ninety-two years old, he ‘‘was not
capable of any financial dealings,’’ including revoking
the trust. She further stated that the applicant was in
a long-term care facility ‘‘because he is completely inca-
pable . . . .’’ In her affidavit, Mendoza stated that the
applicant had dementia after 2012 and that, by 2013, he
was not competent to revoke the trust. The hearing
officer concluded that the defendant correctly had
denied the applicant’s application because the value of
the Old Lyme property had placed him over the asset
limit allowable for Medicaid coverage for long-term
care. The hearing officer reasoned that no medical evi-
dence of a dementia diagnosis, third-party testimony,
or statements in support of the applicant’s incapacity
was presented at the hearing and that Mendoza’s affida-
vit did not provide ‘‘sufficient verification to make a
determination of his mental capacity . . . .’’ The hear-
ing officer further noted that the defendant was not
made aware of any questions regarding the applicant’s
mental capacity during the application process and that
the defendant made the correct determination of the
trust’s accessibility on the basis of the information that
had been provided.
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The court noted that the hearing officer, who was in
the best position to evaluate and weigh the evidence,
found the evidence offered at the administrative hearing
concerning the applicant’s incapacity to be insufficient.2
The court stated: ‘‘The affidavit was from the applicant’s
personal attorney, who was representing the plaintiff
at the hearing and who was obviously advocating the
position most favorable to the applicant, as any attorney
would. While it was not absolutely required that medical
evidence be submitted concerning the applicant’s men-
tal capacity, such medical evidence would have been
more compelling. Further, while the attorney affidavit
and testimony was some evidence, the evidence was
not impartial and one could, but was not required to,
reasonably question whether an attorney had the neces-
sary skill and qualification to make such an assessment
on her own. Accordingly, although the hearing officer
could have credited the affidavit, it was not error for
the hearing officer to find that the affidavit and corres-
ponding testimony alone were insufficient evidence to
conclude that the applicant was mentally incapacitated.
. . . In this regard, it must be noted that, throughout
the process, the plaintiff bore the burden of proof to
prove eligibility for the Medicaid benefits and any
alleged incapacity.’’ (Footnote omitted.) The court addi-
tionally determined that ‘‘not only was the attorney
2
The court explained that ‘‘[t]he plaintiff has taken the position that the
applicant did not have the mental capacity to terminate the trust and remove
his share of the assets. If the applicant had the mental capacity to terminate
the trust and remove the trust assets, then the trust assets were available
resources. Further, the applicant had the burden to prove his eligibility for
Medicaid benefits, the inaccessibility of any asset, and any alleged incapacity.
The sole evidence concerning the applicant’s mental capacity was an affida-
vit and testimony from his personal lawyer expressing her personal opinion
that the applicant was mentally incapacitated. In the administrative hearing
. . . the hearing officer accepted the affidavit as evidence, considered it
and determined that it was insufficient evidence for her to conclude that
the applicant was mentally incapacitated.’’ (Footnote omitted.) In other
words, the hearing officer concluded that the plaintiff failed to prove at the
hearing the applicant’s lack of mental capacity to revoke the trust.
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the applicant’s longtime attorney, she was now actively
representing the applicant’s wife and the estate and
was expressing an opinion that would have an impact
on the effectiveness of a trust that this attorney put in
place for the applicant and the applicant’s spouse.’’
On appeal, the plaintiff contends that the defendant
improperly included the Old Lyme property in the calcu-
lation of available assets for purposes of determining
the applicant’s Medicaid eligibility because the evidence
presented at the administrative hearing, specifically,
Mendoza’s affidavit and testimony, established that the
applicant lacked the capacity to revoke the trust.
In particular, the plaintiff argues that the hearing officer
erroneously determined that medical testimony is an
absolute requirement to prove mental incapacity. In
support of her argument, the plaintiff highlights the final
sentence in the following quotation from the decision
of the hearing officer, which was made in the context
of distinguishing Bassford v. Bassford, Superior Court,
judicial district of Middlesex, Docket No. CV-15-
6012903-S (March 24, 2016) (reprinted at 180 Conn. App.
335, 183 A.3d 686 (2018)), aff’d, 180 Conn. App. 331,
183 A.3d 680 (2018): ‘‘In Bassford, the decedent had
been involuntarily conserved. The [P]robate [C]ourt
determined his capacity. Also, the court used the dece-
dent’s medical records and testimony of his personal
attorney and spouse in their determination of his capac-
ity. In this case, these were not provided for the record
and the burden of that proof falls to the applicant. A
determination of capacity cannot be made without
this documentation.’’ (Emphasis added.) It is clear,
however, from the entire decision in the present case,
that the hearing officer considered Mendoza’s testi-
mony and affidavit and concluded that they did not
provide sufficient evidence to prove that the applicant
was incompetent. In so concluding, the hearing officer
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stated that Mendoza’s opinion as to the applicant’s men-
tal incapacity alone was not sufficient and that the
plaintiff did not provide any additional supporting evi-
dence, such as medical evidence ‘‘or any third-party
testimony or statements that support’’ the applicant’s
alleged mental incapacity.
The hearing officer determined that Mendoza’s affida-
vit and testimony were not sufficient to establish inca-
pacity, and we cannot retry the case or substitute our
own judgment for that of the hearing officer with
respect to the weight of the evidence. See, e.g., North-
west Hills Chrysler Jeep, LLC v. Dept. of Motor Vehicles,
201 Conn. App. 128, 147–48, 241 A.3d 733 (2020); see
also General Statutes § 4-183 (j). Rather, it is within the
province of the hearing officer to weigh evidence and
reach factual conclusions. See, e.g., Lawrence v. Koz-
lowski, 171 Conn. 705, 708, 372 A.2d 110 (1976), cert.
denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066
(1977).
For the foregoing reasons, we conclude that the court
appropriately determined that the hearing officer, in
reaching the decision that the Old Lyme property was
an available asset for purposes of calculating the appli-
cant’s Medicaid eligibility, did not act unreasonably,
arbitrarily, illegally, or in abuse of her discretion and
that the decision is supported by substantial evidence.
II
The plaintiff next claims that the defendant violated
due process by failing to provide, in its written request
for verification of ownership of the Old Lyme property,
notice of the separate issue that the revocability of
the trust was at issue in determining the applicant’s
eligibility for Medicaid benefits. We are not persuaded.
The following facts, as found by the hearing officer,
are relevant. On September 23, 2020, the defendant sent
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Romanelli v. Dept. of Social Services

a notice, indicating that it had determined that the total
3

available assets owned by the applicant and the plaintiff
were $440,419.80, and that Medicaid benefits could not
begin until that amount was reduced to $128,020, which
number reflected the community spouse protected
amount of $126,420 plus the protected amount of $1600
for the applicant. On September 29, 2020, Karen Thorpe,
a social worker and the applicant’s authorized represen-
tative who signed the application for Medicaid benefits
along with the applicant, informed Nick Romanelli via
email that the defendant was considering the Old Lyme
property as an available asset to be used in calculating
the applicant’s eligibility for Medicaid benefits.4 On Sep-
tember 30, 2020, the defendant sent Thorpe a written
request, entitled ‘‘We Need Verification from You’’
(request), which stated in part ‘‘RE: Non Home property
in Old Lyme CT-the [defendant] has determined that
this property is owned by [the trust]. If you do not agree
with this, please provide verification of ownership.’’5
3
The notice, which is in the return of record, indicates that it was sent
to the plaintiff, with a copy to Karen Thorpe, the applicant’s authorized
representative for purposes of the Medicaid application. The hearing officer
identifies the applicant’s son, Nick Romanelli, his father having died, as
the appellant.
4
In an email, which is contained in the record, Thorpe informed Nick
Romanelli that the defendant’s legal department had determined that,
because the Old Lyme property is in a revocable trust, it is treated as being
owned by the Romanellis and, thus, will be counted as an available asset
in determining the applicant’s Medicaid eligibility, which will result in the
defendant denying the applicant’s application.
5
The ‘‘hearing summary’’ of the proceedings before the hearing officer,
which is dated February 8, 2021, contains the following relevant facts. The
authorized representative for the applicant with respect to his Medicaid
application was Thorpe. Neither Mendoza nor Nick Romanelli was an author-
ized representative and, therefore, no information was able to be shared
with them directly during the application process, but information could be
obtained from them. Thorpe was the sole provider of information to the
defendant during the application process. The defendant sent the spousal
assets determination to Thorpe and discussed that determination with her.
No additional information was provided to the defendant by the due date.
Thorpe worked with Nick Romanelli. Mendoza was not involved and did
not provide any information to the defendant during the application process.
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Romanelli v. Dept. of Social Services

The request further stated that the due date for the
applicant’s response was October 11, 2020. Neither
Thorpe nor Nick Romanelli raised any issue or provided
any information in response to the request that either
disputed the ownership of the Old Lyme property or
argued that the applicant’s lack of mental competency
was a defense to the inclusion of the Old Lyme property
in the defendant’s determination of the applicant’s Med-
icaid eligibility. On October 14, 2020, the defendant
denied the applicant’s Medicaid application for exceeding
the asset limit.
The plaintiff argues that the ‘‘confusing verbiage’’ of
the request did not indicate that the trust property was
to be included as an available asset for determining
Medicaid eligibility because the defendant concluded
that the trust was revocable. She further contends that,
‘‘[w]hen an agency omits essential information in any
notice, this directly implicates the fundamental tenets
of due process.’’
‘‘A fundamental principle of due process is that each
party has the right to receive notice of a hearing, and
the opportunity to be heard at a meaningful time and
in a meaningful manner.’’ (Internal quotation marks
omitted.) Mikucka v. St. Lucian’s Residence, Inc., 183
Conn. App. 147, 163, 191 A.3d 1083 (2018). Regarding
notice of an agency’s determination as to Medicaid eligi-
bility, the Code of Federal Regulations provides in rele-
vant part that ‘‘the agency must provide all applicants
and beneficiaries with timely and adequate written
notice of any decision affecting their eligibility, includ-
ing an approval, denial, termination or suspension of
eligibility, or a denial or change in benefits and services.
. . .’’ 42 C.F.R. § 435.917 (a) (2019). The notice of the
No claim of the applicant’s alleged incompetency as a basis for his lack
of right to access either of the properties was made during the application
process, but that omission did not deprive the plaintiff of the right to raise
that issue in a hearing.
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Romanelli v. Dept. of Social Services

defendant’s decision to deny the applicant benefits was
sent to the plaintiff via letter dated October 14, 2020.
The September 30, 2020 written request to Thorpe
explained that the defendant ‘‘must have proof of cer-
tain information so that we can make a decision about
your application,’’ provided a deadline for providing
that information to the defendant, and further stated
that, if no information was received by the due date,
then ‘‘the case will be processed based on the informa-
tion received.’’ Therefore, according to the clear lan-
guage of the request, the application was still pending
and the defendant had requested additional information
in order to make a decision regarding the applicant’s
Medicaid eligibility after seeking information from the
applicant’s authorized representative concerning the
trust’s ownership of the Old Lyme property.6 Not only
does the request for information about property owner-
ship not qualify under 42 C.F.R. § 435.917 (a) as a deci-
sion affecting an applicant’s eligibility, but any argu-
ment that the defendant was required to request
information from the plaintiff regarding the applicant’s
mental capacity fails because, ‘‘[a]t all times, the burden
of establishing eligibility is on the applicant.’’ Harrison
v. Commissioner of Income Maintenance, 204 Conn.
6
The plaintiff also argues that there was a lack of legal notice ‘‘of the
legal counsel’s decision of September 1, 2020.’’ The record contains an email
chain dated September 1, 2020, between the eligibility services worker and
legal counsel for the defendant regarding the ownership of the Old Lyme
property. This internal email contained preliminary discussions of eligibility
and did not constitute a decision affecting eligibility for which the due
process requirement of notice attaches. See 42 C.F.R. § 435.917 (a) (2019).
Additionally, the defendant provided notice in October, 2020, of its decision
to deny the applicant Medicaid benefits.
The plaintiff further argues that ‘‘there was no opportunity to know that
the [defendant] would only accept medical evidence to support a claim of
incapacity and irrevocability because this position also was never communi-
cated by the [defendant’s] case worker or legal counsel.’’ As we detail in
part I of this opinion, the hearing officer did not determine that only medical
evidence could prove incapacity, and, thus, we reject this argument.
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Romanelli v. Dept. of Social Services

672, 679, 529 A.2d 188 (1987). Moreover, when the defen-
dant made the decision to deny Medicaid benefits,
notice of that decision was provided on October 14,
2020.
Additionally, on December 8, 2020, Mendoza, as
attorney for the applicant’s estate, wrote to the defen-
dant and requested a hearing on the denial of the appli-
cation ‘‘to present our argument that these assets
[including the Old Lyme property] should have been
excluded from the determination.’’ That hearing was
held, and, although the defense of incompetency had
not been previously asserted,7 the plaintiff received a
full hearing on that issue. Accordingly, we conclude
that there was no due process violation.
The judgment is affirmed.
In this opinion the other judges concurred.

7
The court noted that no challenge to the applicant’s mental capacity
was made during the application process and that ‘‘[i]t was only later, after
[the defendant] had already denied the benefits and during the administrative
hearing, that the applicant first attempted to challenge his capacity. During
the application process, [the defendant] clearly provided the applicant with
an opportunity to present all necessary evidence, ultimately advising the
applicant that [the defendant] intended to deny his application based upon
excess assets unless the applicant provided documentation to dispute [the
defendant’s] position. The applicant failed to timely dispute the [defendant’s]
position by attempting to challenge capacity during the application process.’’