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March 19, 2026 Get Citation Alerts Download PDF Add Note

Mary D. Forest v. Division of Medical Assistance and Health Services

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-1344-24

• Precedential Status: Non-Precedential

• Opinion

• Authorities (17)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.6K)

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Combined Opinion

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1344-24

MARY D. FOREST and
TARKETIA AJAYI,

Plaintiffs-Appellants,

v.

DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES,

Defendant-Respondent.

---

Argued February 25, 2026 – Decided March 19, 2026

Before Judges Mayer and Gummer.

On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
C-000172-24.

John L. Pritchard argued the cause for appellants.

Barkha Patel, Deputy Attorney General, argued the
cause for respondent (Jennifer Davenport, Attorney
General, attorney; Sookie Bae-Park, Assistant Attorney
General, of counsel; Barkha Patel, on the brief).
PER CURIAM

Plaintiffs Mary D. Forest and Tarketia Ajayi, beneficiaries under the will

of Clerveaux Benoit, appeal a judgment denying their request to declare invalid

a lien defendant Division of Medical Assistance and Health Services (DMAHS)

placed on property that had been owned by Clerveaux and his wife Philomene

Benoit.1 Philomene was a Medicaid beneficiary who predeceased Clerveaux.

Plaintiffs also appeal an order denying their counsel-fee application. Because

the trial court correctly interpreted applicable statutory and regulatory law, we

affirm.

I.

Clerveaux and Philomene acquired title to the property at issue in 1986

and held it as tenants by the entirety. Philomene was a Medicaid beneficiary

from August 1, 2003, until her death on May 3, 2012. The New Jersey Medicaid

program expended $415,501.30 for medical care and services provided to her.

DMAHS's estate recovery information system indicates DMAHS sent notices on

June 29, 2012, August 16, 2012, and November 14, 2012, to the property .

According to DMAHS's counsel, copies of those notices no longer exist due to

1
Because Clerveaux and Philomene had the same last name, we refer to them
by their first names for ease of reading. In doing so, we mean no disrespect.
A-1344-24
2
the passage of time, but the notices would have contained references to

DMAHS's claim of a Medicaid lien and requests for information regarding the

assets of Philomene's estate and whether she had a surviving spouse. The estate

recovery information system was updated on January 11, 2013, to indicate

Philomene had a surviving spouse.

In early April 2019, DMAHS received a letter from Tamarra Henry, who

identified herself as Philomene's daughter and the executor of her estate.

Henry's letter acknowledged Philomene had received Medicaid benefits and the

family had been "told by a Medicaid representative back in 2012 that there was

a possibility a lien would be placed on [Philomene's] home to cover the

healthcare costs she incurred" and "that Medicaid would wait until the surviving

spouse, [her] father, Clerveaux . . . passed away before any action would be

taken." In the same letter, she informed DMAHS Clerveaux had died in June

2017 and inquired about the status of the lien.

In an April 11, 2019 letter, DMAHS advised Henry it was asserting a

claim against Philomene's estate in the amount of $415,501.30 and was filing a

lien pursuant to N.J.S.A. 30:4D-7.2(a). DMAHS also informed Henry that due

to the lien, "any disposal of real property cannot occur without the consent or

cooperation of [DMAHS]." On May 13, 2019, DMAHS sent Henry a copy of a

A-1344-24
3
lien claim it had docketed in the Superior Court on May 13, 2019. DMAHS's

lien specifically referenced the property, the cost of the benefits Philomene had

received, and N.J.S.A. 30:4D-7.2 to -7.6.

On August 1, 2024, plaintiffs filed a verified complaint against DMAHS

and an application for an order to show cause. Identifying themselves as

beneficiaries under Clerveaux's will, plaintiffs sought a judgment declaring the

lien legally ineffective against Clerveaux's estate, the property, or the proceeds

of the sale of the property. According to plaintiffs, the property had been sold

in 2021, and proceeds of the sale were held in escrow due to the lien. Plaintiffs

also sought a counsel-fee award. In the verified complaint, plaintiffs

acknowledged Philomene had received benefits from DMAHS but asserted

DMAHS's lien to recover the costs of those benefits was not effective against

the property because Clerveaux was the property's sole owner and "sole

surviving tenant by the entireties."

The court entered an order to show cause. DMAHS opposed plaintiffs'

application. The court heard argument, asked for supplemental briefing, and

heard argument again after receiving the parties' submissions.

On November 13, 2024, the court placed on the record a decision denying

plaintiffs' application. The court rejected plaintiffs' assertion DMAHS had not

A-1344-24
4
properly recorded or provided notice of the lien. The court also rejected

plaintiffs' argument DMAHS was precluded from using the property to recoup

Philomene's Medicaid costs because when Philomene died, ownership of the

property had passed to Clerveaux as the surviving tenant by the entirety. The

court concluded that "any other interpretation [of the applicable statutes and

regulations] would wholly upend what is a necessary service benefit that is given

to people who need it at the time they most need it." The court memorialized

its decision in a December 10, 2024 judgment.

The court permitted supplemental submissions regarding plaintiffs'

counsel-fee application. The court denied the application in a December 5, 2024

order with an attached statement of reasons. The court found plaintiffs were not

prevailing parties and were not entitled to a fee award under Rule 4:42-9(a)(2).

This appeal followed. Plaintiffs contend DMAHS cannot encumber the

property with a Medicaid lien because Philomene had a surviving spouse and

owned the property with him as tenants by the entirety. They also contend the

lien cannot be enforced because DMAHS did not timely file the lien and

enforcement of the lien would constitute an impermissible taking. Finally, they

argue the court erred in denying their counsel-fee application. Unpersuaded by

those arguments, we affirm.

A-1344-24
5
II.

Because the meaning of a statute is a question of law, we review a trial

court's statutory interpretation de novo. In re H.D., 241 N.J. 412, 418 (2020);

Manalapan Realty, L.P., v. Twp. of Comm. of Manalapan, 140 N.J. 366, 378

(1995). In performing that de novo review, we are guided by the well-

established principles of statutory construction. Those principles apply equally

to our interpretation of regulations. Medford Convalescent & Nursing Ctr. v.

Div. of Med. Assistance & Health Servs., 218 N.J. Super. 1, 5 (App. Div. 1985)

(finding "[r]egulations are subject to the same rules of construction as a

statute").

When interpreting a statute, we "determine and give effect to the

Legislature's intent." In re H.D., 241 N.J. at 418 (quoting N.J. Dep't of Child.

& Fams., Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 20 (2013)).

"[S]tatutory construction begins with an examination of the plain language of

the statute, 'ascrib[ing] to the . . . words their ordinary meaning and

significance.'" State v. Higginbotham, 257 N.J. 260, 280 (2024) (omission and

second alteration in original) (quoting DiProspero v. Penn, 183 N.J. 477, 492

(2005)). "We 'may neither rewrite a plainly-written enactment of the Legislature

nor presume that the Legislature intended something other than that expressed

A-1344-24
6
by way of the plain language.'" Ibid. (quoting O'Connell v. State, 171 N.J. 484,

488 (2002)). To determine legislative intent, we "look not only at the particular

statutory language but also to the design of the statute as a whole." Est. of

DeMartino v. Div. of Med. Assistance & Health Servs., 373 N.J. Super. 210,

219 (App. Div. 2004).

Applying those rules, we consider the statutory scheme at issue. "The

federal Medicaid Act, under Title XIX of the Social Security Act, 42 U.S.C. [§§

1396 to 1396w-8], authorizes a joint federal-state program to provide assistance

to individuals whose income and resources are insufficient to meet the costs for

necessary medical services." D.C. v. Div. of Med. Assistance & Health Servs.,

464 N.J. Super. 343, 353-54 (App. Div. 2020). "Participation in the Medicaid

program is optional for states; however, 'once a State elects to participate, it

must comply with the requirements' of the federal Medicaid Act and federal

regulations adopted by the Secretary of Health and Human Services in order to

receive federal Medicaid funds." Id. at 354 (quoting Harris v. McRae, 448 U.S.

297, 301 (1980)).

"New Jersey's participation in the federal Medicaid program was

authorized by the enactment of the New Jersey Medical Assistance and Health

Services Act (MAHSA), N.J.S.A. 30:4D-1 to -19.5." Ibid. "Under its enabling

A-1344-24
7
legislation, [the New Jersey Department of Human Services (DHS)] is

designated as 'the single State agency to administer the provisions of [the

Medicaid Act].'" Ibid. (quoting N.J.S.A. 30:4D-5). "[T]he Director of DHS has

the authority to promulgate rules, regulations, and administrative orders

necessary to administer the Medicaid program." Ibid. DMAHS is the agency

within DHS responsible for implementing the State Medicaid program. Ibid.

DMAHS "is required to manage the State's Medicaid program in a fiscally

responsible manner." Est. of Dizon by Finamore v. Dep't of Human Servs., 481

N.J. Super. 451, 459 (App. Div. 2025).

"To further expand available funding for Medicaid benefits, the 'federal

Medicaid law has required participating states to enact certain "estate" recovery

provisions as part of their medical assistance plans.'" Ibid. (quoting DeMartino,

373 N.J. Super. at 217). "In doing so, Congress intended to give states 'wide

latitude' in seeking estate recoveries." DeMartino, 373 N.J. Super. at 219

(quoting In re of Est. of Thompson, 586 N.W.2d 847, 851 (N.D. 1998)).

"Allowing states to recover from the estates of persons who previously received

assistance furthers the broad purpose of providing for the medical care of the

needy; the greater amount recovered by the state allows the state to have more

A-1344-24
8
funds to provide future services." Ibid. (quoting Belshe v. Hope, 38 Cal. Rptr.

2d 917, 925 (Cal. Ct. App. 1995)).

The Legislature "enacted statutes to comply with the federal estate

recovery requirements" and the commissioner of DMAHS "adopted regulations

to comply with" those requirements. In re Est. of Brown, 448 N.J. Super. 252,

259 (App. Div. 2017). For Medicaid recipients, who, like Philomene, "became

deceased on or after April 1, 1995 for whom a Medicaid payment was made on

or after October 1, 1993," the Legislature authorized DMAHS to file a lien

against and seek recovery "from the estate of the deceased recipient for

[Medicaid] assistance correctly paid . . . on [the deceased recipient's] behalf for

all services received when he [or she] was [fifty-five] years of age or older."

N.J.S.A. 30:4D-7.2(a)(2); see also 42 U.S.C. § 1396p(b)(1)(B); N.J.A.C. 10:49-

14.1(d). As we held in Dizon, "[t]he plain meaning of the statute permits the

Division to seek reimbursement for all Medicaid benefits paid on a deceased

recipient's behalf by filing a lien against their estate." 481 N.J. Super. at 461.

"[T]o satisfy the federal estate recovery requirements, states must define

a decedent's estate to include at least 'all real and personal property and other

assets included within the individual's estate, as defined for purposes of State

probate law[.]'" In re Est. of Brown, 448 N.J. Super. at 258 (quoting 42 U.S.C.

A-1344-24
9
§ 1396p(b)(4)(A)). Federal law also authorizes states to broadly define the term

"estate" to include "any other real and personal property and other assets in

which the individual had any legal title or interest at the time of death . . .

including such assets conveyed to a survivor . . . of the deceased individual

through joint tenancy, tenancy in common, survivorship, . . . or other

arrangement." 42 U.S.C. § 1396p(b)(4)(B).

Under N.J.S.A. 30:4D-7.2(a)(3), an "estate" includes:

all real and personal property and other assets . . . as
defined in N.J.S.[A.] 3B:1-1, as well as any other real
and personal property and other assets in which the
recipient had any legal title or interest at the time of
death, to the extent of that interest, including assets
conveyed to a survivor, heir or assign of the recipient
through joint tenancy, tenancy in common,
survivorship, life estate, living trust or other
arrangement.

See also N.J.S.A. 3B:1-1 (defining estate as "all of the property of a decedent

. . . as the property is originally constituted and as it exists from time to time

during administration"). The corresponding regulation contains the same

definition of estate as set forth in N.J.S.A. 30:4D-7.2(a)(3). See N.J.A.C. 10:49-

14.l(l)(1) to (2). Thus, consistent with federal law, under New Jersey law, "[i]t

is clear an estate asset is widely defined to include all interests a Medicaid

recipient possessed at the time of death." Dizon, 481 N.J. Super. at 461. For

A-1344-24
10
Philomene that definition included the interest in the property she held at the

time of her death.

That she held her interest in the property as a tenancy by the entirety does

not render it an uncollectible asset under the Medicaid statutes. Although the

definitions of estate do not specifically reference tenancies by the entirety, the

breadth of the definitions clearly encompass them. See Est. of Marusich v. State,

ex rel., Dep't of Health, Off. of Healthcare Fin./Equalitycare, 313 P.3d 1272,

1278 (Wyo. 2013) (holding that property held by a tenancy by the entirety may

be encumbered by a Medicaid lien under the expanded definition of "estate"

Wyoming adopted pursuant to 42 U.S.C.A. § 1396p(b)(4)(A) to (B) even though

tenancies by the entirety were not specifically referenced). And consistent with

estate recovery requirements, the DMAHS commissioner adopted N.J.A.C.

10:49-14.1(m), a regulation that expressly authorizes liens on property held as

a tenancy by the entirety: "If the deceased Medicaid beneficiary held a tenancy-

by-the-entirety or joint tenancy with a right of survivorship, then the lien shall

state that it encumbers all of the property."

That Philomene was survived by her spouse does not impact DMAHS's

ability to place a lien on the property; it impacts the timing of its efforts to

enforce and recover based on the lien. Federal Medicaid law plainly states that

A-1344-24
11
recovery "may be made only after the death of the individual's surviving

spouse." 42 U.S.C.A. § 1396p(b)(2). Thus, "[s]tates may recover Medicaid

benefits after the death of the recipient's surviving spouse . . . ." DeMartino,

373 N.J. Super. at 217 (citing 42 U.S.C.A. § 1396p(b)(2)).

New Jersey law is consistent with federal law. If a Medicaid beneficiary

dies and leaves no surviving spouse, DMAHS can recover benefit costs from the

deceased beneficiary's estate. N.J.A.C. 10:49-14.1(a)(1). However,

[e]ffective for estates pending on or created after
October 4, 1999, if a family member of a deceased
Medicaid beneficiary has, prior to the beneficiary's
death, continuously resided in a home owned by the
beneficiary at the time of the beneficiary's death, and
that home was the beneficiary's primary residence, and
was and remains the family member's primary
residence, the Division may record a lien against the
property, but will not enforce the lien until the property
is voluntarily sold, or the resident family member either
dies or vacates the property.

[N.J.A.C. 10:49-14.1(g).]

Plaintiffs focus on the language of N.J.A.C. 10:49-14.1(a)(1) but

disregard the language of N.J.A.C. 10:49-14.1(g). That we cannot do. See In

re Commitment of W.W., 245 N.J. 438, 449 (2021) ("[A] statute must 'be read

in [its] entirety; each part or section should be construed in connection with

every other part or section to provide a harmonious whole.'" (second alteration

A-1344-24
12
in original) (quoting In re D.J.B., 216 N.J. 433, 440 (2014))). Applying

plaintiffs' overly-narrow interpretation of N.J.A.C. 10:49-14.1(a)(1) would

render meaningless the language of N.J.A.C. 10:49-14.1(g) and 42 U.S.C.A. §

1396p(b)(2) and would be contrary to clear legislative intent behind the federal

and state Medicaid statutory schemes.

We are equally unconvinced by plaintiffs' argument the lien is

unenforceable because it was untimely. N.J.S.A. 30:4D-7.4 does not impose a

time limit for the filing of a lien. For estates created on or after October 4, 1999,

N.J.A.C. 10:49-14.1(d) provides: "the Division shall file any claim or lien

against an estate under this section within three years after receiving actual

written notice from the personal representative of the estate or any other

interested party of the death of the Medicaid beneficiary." The regulation sets

a timeframe for filing a claim or a lien but does not require DMAHS to file the

claim or lien in the Superior Court or docket or record the claim or lien.

Plaintiffs read that language into the regulation. We cannot do so. "To engraft

[language] to a statute . . . far exceeds the judiciary's role in such matters."

Simadiris v. Paterson Pub. Sch. Dist., 466 N.J. Super. 40, 49 (App. Div. 2021).

As the trial court found, DMAHS complied with the regulation when it

submitted its claim in 2012, as confirmed by DMAHS's estate recovery

A-1344-24
13
information system and Henry's April 2019 letter. We have no basis to disturb

the trial court's legal conclusion and factual finding on that issue.

Plaintiffs contend on appeal that the lien infringed on Clerveaux's

constitutional property rights. Clerveaux did not challenge the lien during his

lifetime, and the trial court declined to consider the constitutional argument

plaintiffs' counsel attempted to make during argument, finding plaintiffs had not

previously raised it. We generally "decline to consider questions or issues not

properly presented to the trial court . . . unless the questions so raised on appeal

go to the jurisdiction of the trial court or concern matters of great public

interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting

Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div.1959)); see

also Alloco v. Ocean Beach & Bay Club, 456 N.J. Super. 124, 145 (App. Div.

2018) (applying "well-settled" principle that appellate court will not consider an

issue that was not raised before the trial court). But even considering it, we are

unpersuaded by plaintiffs' argument the lien is an unconstitutional taking.

"The New Jersey Constitution provides protections against governmental

takings of private property without just compensation, coextensive with the

Takings Clause of the Fifth Amendment of the United States Constitution."

Klumpp v. Borough of Avalon, 202 N.J. 390, 405 (2010).

A-1344-24
14
A constitutional taking may occur in one of two ways:
1) via physical taking, in which the government takes
title to private property or "authorizes a physical
occupation [or appropriation] of property"; or 2) via
regulatory taking, through which a government
regulation deprives the property owner of all
economically viable use of their land.

[Ibid. (alteration in original) (quoting Yee v. City of
Escondido, 503 U.S. 519, 522 (1992)).]

"To accomplish a physical taking, the government may either enter the land

without authorization or exercise its power of eminent domain through a

condemnation proceeding." Id. at 405-06. DMAHS's lien is not an

unconstitutional "taking[] of private property without just compensation." Id. at

1. It is an effort to obtain reimbursement of the cost of medical benefits

undisputedly paid on Philomene's behalf through her interest in the property.

Plaintiffs contend the property should be excluded from the reach of the

statutes at issue because Clerveaux and Philomene purchased it in 1986. Th at

argument is flawed because plaintiffs' proposed grandfathering provision is

nowhere in the statutes or regulations. Again, we cannot add language to a

statute, especially language that is inconsistent with the existing statutory

language. The Legislature expressly set forth the scope of DMAHS's authority

to impose a lien in N.J.S.A. 30:4D-7.2, limiting it based on the date the Medicaid

recipient died and received benefits, not based on the date the recipient

A-1344-24
15
purchased the property to be encumbered. See N.J.S.A. 30:4D-7.2(a)(2). We

cannot "rewrite a plainly-written enactment of the Legislature." Higginbotham,

257 N.J. at 280 (quoting O'Connell, 171 N.J. at 488).

For all of those reasons, we affirm the December 10, 2024 judgment. We

affirm the December 5, 2024 order denying plaintiffs' counsel-fee application

for the reasons set forth in the trial court's attached statement of reasons .

Affirmed.

A-1344-24
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