text:
    IN RE APPLICATION OF DANIEL V. PRESNICK
    (AC 18114)
    Foti, Landau and Shea, Js.
    Argued February 24
    officially released May 4, 1999

      Daniel V. Presnick, pro se, the appellant (plaintiff).

      Anthony M. Fitzgerald, with whom was Thomas J. Sansone, for the appellee (defendant).
   Opinion

PER CURIAM.

This is an appeal by Daniel V. Presnick, a disbarred attorney acting pro se, from the judgment rendered by the Superior Court denying his application for reinstatement to the bar of this state. Presnick claims that the trial court improperly denied his application because it applied an inappropriate standard in approving and accepting the report of the standing committee on recommendations for admission to the Connecticut Bar for New Haven County (committee). We affirm the judgment of the trial court.

The trial court, which consisted of a three judge panel, held a hearing on October 9, 1997, and filed its memorandum of decision on January 6, 1998. In so doing, the trial court approved and accepted the committee’s report and recommendation and denied Pre-snick’s application for reinstatement. The trial court concluded that its “review of the entire record before the committee [convinced it] that the committee acted fairly and reasonably and, after providing Presnick a full and fair opportunity to satisfy it that he presently possessed the requisite character for readmission, did not abuse its discretion in recommending that his application for reinstatement be denied.”

Generally, the trial court must determine whether the committee, in recommending a denial of an application, “ ‘acted arbitrarily or unreasonably or in abuse of its discretion or without a fair investigation of the facts.’ ” Scott v. State Bar Examining Committee, 220 Conn. 812, 818, 601 A.2d 1021 (1992). The readmission process of a disbarred attorney must focus on the issue of present fitness to practice law. In re Application of Pagano, 207 Conn. 336, 345, 541 A.2d 104 (1988). The burden of proving fitness is on the applicant. See In re Application of Warren, 149 Conn. 266, 274, 178 A.2d 528 (1962).

Presnick claims that the trial court improperly applied the standard that requires an applicant to prove that he is presently fit to practice law. See In re Application of Pagano, supra, 207 Conn. 345. Presnick acknowledges that the function of the trial court is simply to determine whether the committee acted fairly and reasonably in considering the application. Presnick alleges, however, that the only objective standard that the committee and the trial court could properly apply was a standard that would allow him the chance to prove that he was currently fit to practice law by granting him the right to engage in the limited practice of law. We do not agree.

The standard of review in cases involving readmission to the bar was announced in O’Brien’s Petition, 79 Conn. 46, 55-56, 63 A. 777 (1906). The court merely inquires whether readmission was denied after a fair investigation of the facts. “Because the trial court exercises no discretion, but rather is confined to a review of the record before the [committee], we are not limited to the deferential standard of ‘manifest abuse’ or ‘injustice’ when reviewing its legal conclusions about the adequacy of the evidence before the [committee].” Scott v. State Bar Examining Committee, supra, 220 Conn. 823.

The record indicates that the only evidence presented in favor of reinstatement was Presnick’s own argument. His position was that the conduct that led to his disbarment was the result of a blood sugar condition that was subsequently diagnosed, treated and brought under control. Presnick, however, presented no substantiation of this claim. In addition, he did not act on the committee’s offer to hold the hearing open to review such evidence from his physician.

No other evidence of any nature was presented in support of Presnick’s current fitness to practice law. Two letters were submitted to the committee, one from attorney Lawrence Berliner and a second from attorney Mary M. Galvin; neither letter favored Presnick’s application.

The record is clear that Presnick failed to establish his current fitness to practice before the committee. The judgment of the trial court denying his application was proper.

The judgment is affirmed.

       The undated application for reinstatement, filed on or before July 2, 1996, was referred by the trial court, Licari, J., to the standing committee on recommendation for admission to the Connecticut Bar for New Haven County pursuant to Practice Book § 2-53 (a), which provides in relevant part that “[a]ny application for reinstatement or readmission to the bar shall be referred, by the court to which it is brought, to the standing committee on recommendations for admission to the bar that has jurisdiction over the judicial district court location in which the applicant was suspended or disbarred or resigned .... The standing committee on recommendations shall investigate the application, hold hearings pertaining thereto and render a report with its recommendations to the court.” The committee held a hearing on October 3, 1996. On June 24,1997, the committee issued a report unanimously recommending that Presnick not be reinstated to the bar.

       Pursuant to Practice Book § 2-53 (a), once the trial court, receives the committee’s report and recommendation, it shall “thereupon inform the chief justice of the supreme court of the pending application and report, and the chief justice shall designate two other judges of the superior court to sit with the judge presiding at the session. Such three judges, or a majority of them, shall determine whether the application should be granted.”

       Presnick was disbarred on the grounds that he was unfit to practice law. Statewide Grievance Committee v. Presnick, Superior Court, judicial district of New Haven, Docket No. 286877 (Oct. 31, 1989), rev’d, 216 Conn. 135, 577 A.2d 1058 (1990). On remand, the sanction of disbarment was again imposed. A prior application for readmission was denied in January, 1993.

        Prior to his disbarment, Presnick had also been suspended for one year. Statewide Grievance Committee’s/.Presnick, Superior Court, judicial district of New Haven, Docket No. 279311 (March 7, 1989), aff'd, 215 Conn. 162, 575 A.2d 210 (1990). The order stated that Presnick “may be re-admitted to practice at the conclusion of the . . . suspension only if he can demonstrate that he has passed a thorough examination concerning his knowledge of its ethical obligations of lawyers to their clients.” This suspension continued through the date of the committee’s hearing. Additionally, Presnick was suspended for two years in an unrelated matter. Statewide Grievance Committee v. Presnick, Superior Court, judicial district of New Haven, Docket No. 261462 (Sept. 1, 1989), aff'd, 216 Conn. 127, 577 A.2d 1054 (1990).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GATEWAY BANK v. LOUIS M. PUNZIRUDU ET AL.
    (AC 17855)
    Landau, Schaller and Hennessy, Js.
    Argued March 4
    officially released May 4, 1999

      James A. Curran, for the appellant (named defendant).

      David F. Borrino, for the appellee (substitute plaintiff).
   Opinion

PER CURIAM.

The named defendant appeals from the judgment of foreclosure by sale rendered by the trial court. The sole claim on appeal is that the trial court abused its discretion by accepting the committee report and approving the sale to a third party bidder.

We have fully reviewed the records and briefs and considered the oral arguments of the parties with respect to the claim of abuse of discretion. “It is well established that the authority to exercise judicial discretion regarding matters within the province of the trial court is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court in its exercise. . . . Nothing short of a conviction that the action of the trial court is one which discloses [a] clear- abuse of discretion can warrant our interference. Simons v. Simons, 172 Conn. 341, 349, 374 A.2d 1040 (1977), quoting Morrill v. Morrill, 83 Conn. 479, 491, 77 A. 1 (1910); see also Practice Book § 4061 [now § 60-5].” (Internal quotation marks omitted.) National Elevator Industry Pension, Welfare & Educational Funds v. Scrivani, 229 Conn. 817, 823, 644 A.2d 327 (1994).

Having applied the appropriate standard of review; Northeast Savings, F.A. v. Hopkins, 22 Conn. App. 396, 400-402, 578 A.2d 136 (1990); we conclude that the named defendant has failed to establish that the trial court abused its discretion. See Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 120, 629 A.2d 410 (1993); Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 773, 657 A.2d 668 (1995), appeal dismissed, 236 Conn. 744, 674 A.2d 1324 (1996). The decision of the trial court conforms to the applicable law.

The judgment is affirmed.


author: LANDAU, J.

text:
    BEN GYADU v. D’ADDARIO INDUSTRIES, INC., ET AL.
    (AC 17751)
    Landau, Spear and Healey, Js.

      Argued December 15, 1998
    officially released May 11, 1999

      Ben Gyadu, pro se, the appellant (plaintiff).

      Richard T. Stabnick, for the appellees (defendants).
   Opinion

LANDAU, J.

The plaintiff, Ben Gyadu, appeals from the decision of the workers’ compensation review board (review board) dismissing his appeal from the award of the workers’ compensation commissioner (commissioner). Because the review board did not make the factual finding necessary to determine the timeliness of the plaintiffs appeal, we reverse the decision and remand the case for further proceedings.

The plaintiff suffered a work-related, compensable injury to his right arm in 1986 and received compensation benefits pursuant to a voluntary agreement from 1986 through 1996. At the time of his injury, the plaintiff was working as a mason and, as a result of his injury, he can no longer perform that type of work. The plaintiff requested additional compensation benefits pursuant to General Statutes § 31-308a. The commissioner held hearings on the request in May, 1996, September, 1996, and April, 1997. The commissioner entered his findings and award on April 8, 1997. On April 24, 1997, the plaintiff appealed to the review board from the commissioner’s decision. The defendants, D’Addario Industries, Inc., and its workers’ compensation insurance carrier, filed a motion to dismiss the appeal as untimely. The review board granted the defendants’ motion to dismiss, and the plaintiff appealed to this court.

“Our scope of review of [the] actions of the [review board] is . . . limited. . . . The decision of the [review board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Knapp v. New London, 44 Conn. App. 465, 468, 691 A.2d 11 (1997).

The claim on appeal is that the review board improperly determined that the plaintiffs appeal was jurisdic-tionally defective because it was not timely filed pursuant to § 31-301 (a). “At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition . . . .” General Statutes § 31-301 (a).

“This court [has] . . . held that the ten day appeal period set forth in § 31-301 (a) ‘begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision.’ Conaci v. Hartford Hospital, 36 Conn. App. 298, 303, 650 A.2d 613 (1994).” Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720, 667 A.2d 76 (1995). “[N]otice that comports with the constitutional requirements of due process has been deemed to be the date on which notice of the appealable decision is given to the party who might want to appeal.” Conaci v. Hartford Hospital, supra, 302. “Once the [review] board determines that an appeal is untimely it no longer has jurisdiction to address any remaining substantive claim.” Freeman v. Hull Dye & Print, Inc., supra, 720.

We remanded both Conaci and Freeman to the review board because it improperly dismissed the plaintiffs’ appeals without making factual determinations as to when notices of the commissioners’ findings and awards were given to the plaintiffs. We have carefully examined the review board’s dismissal order and find here, as well, that the review board did not make the required finding of fact. We, therefore, remand the matter to the review board to make the necessary finding of fact as to when the commissioner gave the plaintiff notice of his finding and award.

The decision of the workers’ compensation review board is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Pursuant to § 31-308a, the commissioner awarded the plaintiff benefits for the period between the date of the last payment made by the defendants and May 29, 1996, and determined no further benefits were to be paid.

       The review board’s dismissal order states in relevant part: “The [plaintiff] has filed an appeal from the April 8,1997 Finding and Award of the Commissioner acting for the Fifth District. The [plaintiffs] appeal was filed on April 24, 1997. The [plaintiffs] petition for review was not filed within the time limit prescribed by § 31-301 (a) . . . .”


author: SCHALLER, J.

text:
    WILLIAM H. WILSON v. PLANNING AND ZONING COMMISSION OF THE TOWN OF EAST GRANBY ET AL.
    (AC 17796)
    Landau, Schaller and Dupont, Js.

      Argued November 5, 1998
    officially released May 11, 1999

      Donald R. Holtman, for the appellants (defendants).

      Fatima T. Lobo, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendants, the planning and zoning commission of the town of East Granby (commission) and the East Granby town clerk, appeal from the judgment of the trial court rendering a change of zone null and void. The sole issue on appeal is whether General Statutes § 8-3 (d) requires the zone change to be voided because the commission failed to publish proper notice of its decision prior to the effective date fixed by the commission. We reverse the judgment of the trial court and remand the case for the purpose of fixing a new effective date in accordance with § 8-3 (d).

The following facts and procedural history are relevant to this appeal and are not in dispute. On April 2, 1996, the commission voted to approve its own application to change the zone of several contiguous parcels of land from agricultural to industrial. The commission designated April 11, 1996, as the effective date for the change. At the commission’s direction, publication of the notice of zone change appeared in a newspaper on April 11, 1996, the effective date fixed by the commission.

The plaintiff, an owner of one parcel affected by the zone change, appealed to the Superior Court, claiming, inter alia, that the commission’s failure to publish notice of its decision to change the zone prior to the effective date rendered the decision void. The trial court sustained the appeal on the basis of the commission’s failure to publish notice prior to the effective date and remanded the case to the commission with direction to vacate the zone change. Thereafter, the commission brought this certified appeal.

Section § 8-3 (d) provides in relevant part: “Zoning regulations or boundaries or changes therein shall become effective at such time as is fixed by the zoning commission, provided a copy of such . . . change shall be filed in the office of the town, city or borough clerk, as the case may be . . . and notice of the decision of such commission shall have been published in a newspaper having a substantial circulation in the municipality before such effective date. In any case in which such notice is not published within the fifteen-day period after a decision has been rendered, any applicant or petitioner may provide for the publication of such notice within ten days thereafter.”

“A zoning ordinance is a local legislative enactment . . . .” (Internal quotation marks omitted.) Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808 (1984). “The fundamental rule relating to municipal legislation is that an ordinance must be enacted in the manner provided by law. . . . The rule applicable to . . . municipal bodies is that when the mode in which their power is to be exercised is prescribed . . . that mode must be followed.” (Internal quotation marks omitted.) Jack v. Torrant, 136 Conn. 414, 419, 71 A.2d 705 (1950). This means that compliance with the provisions of § 8-3 (d) is a prerequisite to any valid zone change. Since § 8-3 (d) requires the commission to publish notice before the effective date fixed by the commission, a zone change cannot be validly enacted into law until the commission complies with the statutoiy mandate. Because the commission failed to cariy out the statutoiy mandate to publish notice before the effective date fixed by the commission, the enactment is not effective. This, however, does not conclude our inquiiy. We must next consider whether the commission’s failure to publish notice before the effective date renders its decision to change the zone null and void.

In concluding that the commission’s action was null and void, the trial court determined that the requirement that notice be published prior to the effective date fixed by the commission was mandatory. The trial court based its decision on the language of § 8-3 (d) and our Supreme Court’s decision in Farr v. Eisen, 171 Conn. 512, 370 A.2d 1024 (1976). The trial court reasoned that publication prior to the effective date was mandatory because “[t]he order of the publication followed by [the] effective date is the essence of the purpose to be accomplished by § 8-3 (d).” The trial court recognized that the presence of the word “shall” in a statute is significant, but not dispositive. The trial court noted that in Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 690, 674 A.2d 1300 (1996), our Supreme Court stated that “the use of the word ‘shall,’ though significant, does not invariably establish a mandatory duty.” (Emphasis in original.) The trial court recited the test used in Angelsea Productions, Inc., as follows: “The test we have adopted for determining whether such a statutory requirement is mandatory or directory is whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates to matter material or immaterial—to matters of convenience or of substance. ... If it is a matter of convenience, the statutory provision is directory; if it is a matter of substance, the statutory provision is mandatory. . . . Oller v. Oller-Chiang, 230 Conn. 828, 838-39, 646 A.2d 822 (1994). Stated another way, language is deemed to be mandatory if the mode of action is of the essence of the purpose to be accomplished by the statute; LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990); but will be considered directory if the failure to comply with the requirement does not compromise the purpose of the statute.” (Internal quotation marks omitted.) Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, supra, 690.

The commission argues that the purpose of the notice publication requirement is to provide constructive notice to the public, particularly to persons who may be aggrieved by the decision and want to pursue an appeal. The commission contends that those purposes have been fully served because publication has been accomplished. Thus, the statute should be interpreted to mean simply that the effective date cannot occur until after publication.

The commission further argues that it has the discretion under the statutory scheme to fix the effective date whenever it chooses and, therefore, one date is essentially as good as another. The commission maintains that, while the requirement of publication is mandatory to establish notice of appeal rights, the time for publication is directory except that it must take place before a valid effective date can be established. The key date is the date of publication, which provides notice to the public and establishes the appeal time period. Neither the date of decision nor the effective date of the commission decision has such significance.

The commission also argues that, in order to give meaning to the final sentence of § 8-3 (d), its argument must prevail. The commission contends that the final sentence contemplates the situation where the commission fails to publish notice at all and therefore fails to carry out its statutory mandate. In that event, any applicant or petitioner may provide for publication and, presumably, facilitate the valid enactment of a zone change. Consistent with this reasoning, the commission contends that we should either determine that the effective date is a date immediately following the actual publication date in this case or that we should remand the case to the commission with instructions to fix a new effective date. Under this reasoning, there would be no basis to void the commission’s entire decision to change the zone.

The plaintiff relies on the decisions of our Supreme Court in Akin v. Norwalk, 163 Conn. 68, 301 A.2d 258 (1972), Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 311 A.2d 77 (1972), and Farr v. Eisen, supra, 171 Conn. 512, for its argument that the failure to comply strictly with the publication requirement automatically voids the action. The plaintiff correctly recites the holdings of these cases; they are, however, distinguishable from the present case.

Akin involved the late publication of the notice of an approval of a subdivision that was provided for by General Statutes § 8-28. According to those statutes, a subdivision approval becomes effective immediately upon the action of the commission. In that instance, publication is required to provide notice for persons claiming to be aggrieved and who want to appeal. The failure to publish in a timely fashion in that case affected the appeal rights of those who might want to challenge an already effective action. Our Supreme Court concluded that the subdivision approval had become effective on the date of the commission’s decision and held that the requirement of publication within ten days was mandatory and the failure to publish timely notice invalidated the commission’s action. In Hyatt, the Supreme Court relied on its decision in Akin to indicate, as an alternate ground for affirmance, that similar language requiring publication within ten days following a zoning board of appeals decision was mandatory. In Farr, the Supreme Court again relied on its analysis in Akin to hold that a commission’s decision denying approval of a subdivision plan was invalid for failure to publish notice of its decision within the statutory time period. Once again, the commission’s action had been effective upon the decision and the publication was necessary to provide notice to the public and to define the appeal period.

In Akin, Hyatt and Farr, unlike in the present case, the publication of notice was unmistakably “the essence of the thing to be accomplished.” (Internal quotation marks omitted.) Akin v. Norwalk, supra, 163 Conn. 72. The purpose of notice in those cases was twofold: (1) to notify the public of a decision that had already become effective, and (2) to commence the start of the appeal period for persons who wanted to challenge the action. Id., 73. In those cases, the defective action of the zoning authorities was a matter of substance rather than mere convenience. In the present case, we agree with the trial court and the plaintiff that publication of notice was mandatory. We disagree, however, that the publication of notice prior to the effective date was mandatory.

Publication of notice prior to the effective date fixed by the commission is not of the essence of the purpose to be accomplished by § 8-3 (d). Our Supreme Court stated in Akin that “[i]n the determination ... as to whether or not a provision ... is of the essence of the thing to be accomplished . . . significance is to be attached to the nature of the act . . . the language and form in which the provision is couched.” (Internal quotation marks omitted.) Id., 72-73. In this regard, we note that to give meaning to the final sentence of § 8-3 (d), we must find the statutory mandate to be directory. Again, we note that the last sentence of § 8-3 (d) contemplates a situation in which the commission fails to publish any notice and therefore fails to carry out its statutory mandate. In that event, the statute permits any applicant or petitioner to provide for publication and, presumably, to facilitate the valid enactment of a zone change. If we were to hold otherwise, the last sentence of § 8-3 (d) would be rendered meaningless. Specifically, if we were to hold that publication of notice prior to the effective date was mandatory, an applicant would be precluded from publishing notice and thus facilitating the valid enactment of a zone change because the underlying action would be null and void. We cannot say that the legislature intended such a result.

Furthermore, we note that § 8-3 (d) allows the commission to fix the effective date without restriction; in other words, that determination is within the commission’s discretion. Because the fixing of a specific effective date is discretionary, the date of notice is therefore also discretionary. There is no provision within the statute whereby the action of the commission fails unless a specific date is fixed or unless notice occurs within a certain time period following the action. The statutory language prescribing those actions, therefore, is directory rather than mandatory, and we cannot say that the legislature intended that the commission’s action should be voided upon the nonoccurrence of either event at any particular time.

In view of the language of § 8-3 (d), it seems clear that, while publication is unmistakably required, the language providing for publication prior to the effective date fixed within the commission’s discretion is directory. Therefore, the defect in publishing notice prior to the effective date does not void the commission’s decision and can readily be corrected. See Nielson v. Zoning Commission, 149 Conn. 410, 411-12, 180 A.2d 754 (1962); Woodford v. Zoning Commission, 147 Conn. 30, 31-32, 156 A.2d 470 (1959).

We note that in Akin, our Supreme Court held that the “pro forma reapproval” of the subdivision plan by the commission in that case was not valid. Akin v. Norwalk, supra, 163 Conn. 75. In Akin, because the original approval became effective and notice was not published within the following ten day period, correction of the publication was possible without reapproval. In the present case, although the commission’s decision to change the zone did not become effective, it could become effective when the notice is properly published. Therefore, no reapproval is necessary because the time for publishing notice has not expired. The commission originally could have fixed the effective date at any time following its decision to change the zone and, accordingly, may now fix a new effective date. For the commission’s decision to change the zone to be validly enacted into law, however, it must comply with the statutory mandate and publish notice before the fixed effective date. The substance of the commission’s action is not affected.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment remanding the case to the commission for the purpose of fixing a new effective date pursuant to § 8-3 (d) and to publish another notice prior to the new fixed effective date.

       The appeal was taken pursuant to General Statutes § 8-8 (b), which requires the taking of an appeal within fifteen days afterpublication of notice.

       The judgment remanding the case to the commission is a final judgment because the judgment did not require the commission to make further evidentiary determinations. Because the commission on remand has no discretion as to whether to vacate the zone change, further proceedings would not affect the rights of the parties. Kaufman v. Zoning Commission, 232 Conn. 122, 129-30, 653 A.2d 798 (1995).

       The commission notes that a leading treatise on land use law in Connecticut, T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 490, comments: “Akin’s refusal to allow the commission to correct its oversight is unnecessarily harsh and formalistic, and really penalizes the applicant for the commission’s error. The legislature has since provided that if the commission fails to publish the notice of the decision, the applicant has ten days after the commission’s fifteen day period within which to publish the notice.”

       We note additionally the ease with which the defect can be corrected. We see no reason to void the commission’s entire decision to change the zone. To do so would be unnecessarily technical and formalistic.


author: LAVERY, J.

text:
    ANN O’CALLAGHAN v. COMMISSIONER OF SOCIAL SERVICES
    (AC 16870)
    O’Connell, C. X, and Lavery and Landau, Js.

      Argued December 3, 1998
    officially released May 11, 1999

      Maite Barainca, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellant (defendant).

      George B. Bickford, with whom was Neil W. Kraner, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendant commissioner of social services appeals from the judgment of the trial court rendered in favor of the plaintiff, Ann O’Callaghan. As a threshold matter, we conclude that the plaintiffs death during the pendency of this administrative appeal did not render the appeal moot because there is practical relief that we can grant to the parties. The dispositive issue on appeal is whether, pursuant to 42 U.S.C. § 1396r-5 (e) (2) (C), the defendant should have allocated to the plaintiffs community spouse resource allowance (resource allowance) certain spousal resources that generated only capital gains at the time that the plaintiffs husband was institutionalized. Such allocation would allow the plaintiff to generate her minimum monthly maintenance needs allowance (minimum needs allowance).The defendant claims that the trial court improperly determined that the resources in question were income producing within the meaning of § 1396r-5 (e) (2) (C). We conclude that the trial court improperly determined that those resources generated income. As an alternative ground for affirming the decision of the trial court, the plaintiff claims that the defendant should have authorized the conversion of the resources into income producing resources and allocated to her resource allowance an amount of the converted resources sufficient to enable her to generate her minimum needs allowance. We agree with the plaintiff and conclude that, pursuant to § 1396r-5 (e) (2) (C), the defendant should have authorized a conversion of the resources and allocated to the resource allowance an amount of the converted resources sufficient to enable the plaintiff to generate her minimum needs allowance.

Prior to a recitation of the facts and procedural history of this appeal, it is necessary to provide a brief overview of the relevant federal medicaid laws and corresponding state regulations. Our Supreme Court has referred to this statutory scheme as a “ ‘Serbonian bog.’ ” Ross v. Giardi, 237 Conn. 550, 554, 680 A.2d 113 (1996); see Friedman v. Berger, 409 F. Sup. 1225, 1226 (S.D.N.Y.) (describing statutory scheme as “aggravated assault on the English language, resistant to attempts to understand it”), aff'd, 547 F.2d 724 (2d Cir. 1976), cert. denied, 430 U.S. 984, 97 S. Ct. 1681, 52 L. Ed. 2d 378 (1977). “The medicaid program, established in 1965 as Title XIX of the Social Security Act, and codified at 42 U.S.C. § 1396 et seq., is a joint federal-state venture providing financial assistance to persons whose income and resources are inadequate to meet the costs of necessary medical care. . . . States participate voluntarily in the medicaid program, but participating states must develop a plan, approved by the secretary of health and human services, containing reasonable standards . . . for determining eligibility for and the extent of medical assistance .... Connecticut has elected to participate in the medicaid program and has assigned to the department [of social services] the task of administering the program. General Statutes [§ 17b-260]. . . . The department, as part of its uniform policy manual, has promulgated regulations governing the administration of Connecticut’s medicaid system. See General Statutes § 17b-260.” (Citations omitted; internal quotation marks omitted.) Burinskas v. Dept. of Social Services, 240 Conn. 141, 148, 691 A.2d 586 (1997).

In 1988, Congress enacted the Medicare Catastrophic Coverage Act of 1988 (MCCA). Pub. L. No. 100-360,102 Stat. 683 (1988), codified at 42 U.S.C. § 1396r-5. “The objective of the MCCA was to protect married couples when one spouse is institutionalized in a nursing home, so that the spouse who continues to reside in the community is not impoverished and has sufficient income and resources to live independently. See H.R. Rep. No. 100-105 (II), 100th Cong., 2d Sess. at 65 (1988), reprinted in 1988 U.S.C.C.A.N. 857, 888. Prior to 1988, Medicaid eligibility rules required couples to deplete their combined resources before the institutionalized spouse was eligible for benefits, often leaving the community spouse financially vulnerable. The MCCA attempted to strike a balance between preventing impoverishment of the community spouse by excluding minimum amounts of resources and income for that spouse from eligibility considerations, and preventing a financially solvent institutionalized spouse from receiving Medicaid benefits by ensuring that income was not completely transferred to the community spouse.” Chambers v. Dept. of Human Services, 145 F.3d 793, 798 (6th Cir.), cert. denied, 525 U.S. 964, 119 S. Ct. 408, 142 L. Ed 2d 331 (1998); see Burinskas v. Dept. of Social Services, supra, 240 Conn. 148-49.

For purposes of determining if a married applicant is eligible to receive medicaid benefits, the defendant will calculate the total value of the couple’s resources as of the date of the applicant’s institutionalization and allocate a share of the resources to each spouse. 42 U.S.C. § 1396r-5 (c) (1); Department of Income Maintenance, Uniform Policy Manual (1989) § 1507.05 (Uniform Policy Manual); Thomas v. Commissioner of the Division of Medical Assistance, 425 Mass. 738, 740, 682 N.E.2d 874 (1997). “For purposes of determining eligibility, the amount [of resources] allocated to the community spouse is called the community spouse resources allowance . . . , 42 U.S.C. § 1396r-5 (c) (2) (B).” Thomas v. Commissioner of the Division ofMedical Assistance, supra, 740. The resource allowance is the greatest of (1) $12,000 (adjusted annually), (2) the lesser of one half of total joint resources or $60,000 (adjusted annually), (3) an amount established pursuant to a lair hearing under § 1396r-5 (e) (2), or (4) an amount transferred under court order. 42 U.S.C. § 1396r-5 (f) (2) (A); Thomas v. Commissioner of the Division of Medical Assistance, supra, 740-41. “The resource allowance is protected from the institutionalized applicant’s health care obligations and does not count against the applicant’s financial eligibility. In addition, under the [MCCA], a community spouse is entitled to a ‘minimum monthly maintenance needs allowance’ ... . 42 U.S.C. § 1396r-5 (d) (3); Uniform Policy Manual (1992) § 5035.30 (B) (2).” Burinskas v. Dept. of Social Services, supra, 240 Conn. 149. The minimum needs allowance “is an amount that ensures that the community spouse has income significantly above the poverty level.” Chambers v. Dept. of Human Services, supra, 145 F.3d 798. Effective July 1,1992, the minimum needs allowance is equal to 150 percent of the official poverty line, plus an additional shelter allowance. 42 U.S.C. § 1396r-5 (d) (3) (B); Burinskas v. Dept. of Social Services, supra, 240 Conn. 149 n.9.

If either spouse is dissatisfied with the defendant’s determination of the resource allowance, that spouse is entitled to a fair hearing. 42 U.S.C. § 1396r-5 (e) (2) (A) (v). “The statutory provision for revising the community spouse resource allowance is set out in 42 U.S.C. § 1396r-5 (e) (2) (C).” Chambers v. Dept. of Human Services, supra, 145 F.3d 798; see also Uniform Policy Manual (1989) § P-1570.30 (outlining procedure for hearing officer to adjust resource allowance).

The following facts and procedural history are relevant to a resolution of this appeal. On November 17, 1994, the plaintiffs husband began a period of continuous institutionalization at Hill Haven Nursing Home in Windsor. The plaintiff remained in the couple’s home. On December 30,1994, the plaintiff filed an application on behalf of her husband for medicaid benefits. The defendant determined that, as of November 17, 1994, the date of institutionalization, the couple’s resources totaled $188,032.11. The defendant allocated $74,820 in resources to the plaintiffs resource allowance and transferred the remainder to the plaintiffs husband. The defendant denied the plaintiffs husband’s medicaid application because his resources exceeded the eligibility limit of $1600. See Uniform Policy Manual (1993) § 4005.10 (A) (2) (a).

The plaintiff timely requested an administrative hearing because she was dissatisfied with the defendant’s assessment of the spousal resources and the denial of her husband’s application. After an administrative hearing, the hearing officer determined that the plaintiffs minimum needs allowance was $1809.75 and that the plaintiff received gross monthly income of $418.25. The hearing officer found that the plaintiffs monthly income of $418.25 was insufficient to provide her minimum needs allowance of $1809.75. In an effort to help the plaintiff reach her minimum needs allowance, the hearing officer transferred to the plaintiffs resource allowance $28,363.26 in income producing resources from her husband’s resources of $113,212.11. As a result, the plaintiffs adjusted resource allowance totaled $103,183.26 and her husband retained resources of $84,848.85.

Relying on Department of Health and Human Services, Health Care Financing Administration, State Medicaid Agency Regional Bulletin No. 93-21, dated March 17,1993 (Medicaid Bulletin No. 93-21), the hearing officer concluded that she could not allocate any portion of the $84,848.85 in resources to the plaintiffs resource allowance because those resources did not generate income at the time the plaintiffs husband was institutionalized. “The statutory provision for revising the community spouse resource allowance is set out in 42 U.S.C. § 1396r-5 (e) (2) (C)”; Chambers v. Dept. of Human Services, supra, 145 F.3d 798; and Medicaid Bulletin No. 93-21 clarified the scope of a hearing officer’s authority to adjust the resource allowance pursuant to § 1396r-5 (e) (2) (C). The record demonstrates, and neither party disputes, that the $84,848.85 in resources, which are the focus of this appeal, generated only capital gains at the time the plaintiffs husband was institutionalized. The hearing officer also affirmed the defendant’s denial of the plaintiffs husband’s application because his resources exceeded the medicaid eligibility limit.

Pursuant to General Statutes § 4-183, the plaintiff timely filed an administrative appeal with the trial court. The plaintiff claimed that because the resources in question generated income, the hearing officer should have allocated them to her resource allowance. Relying on definitions of income in the Internal Revenue Code, 26 U.S.C. § 1 et seq., and dictionaries, the court concluded that “such capital gains are considered income to the owner in every other context and by every other governmental agency. They are moneys currently generated by the assets in question and available to the owners of those assets.”

The court remanded the case for a new hearing and ordered that the defendant must consider the resources in question to be resources that potentially could be allocated to the plaintiffs resource allowance. The defendant filed this appeal from a final judgment of the trial court.

I

As a threshold matter, we must determine whether the death of the plaintiff during the pendency of this appeal has rendered the appeal moot. After examining the record and the briefs of both parties, it appeared to us that the issue of whether the appeal was moot was fairly suggested. Although neither the defendant nor the plaintiff briefed this issue, we afforded both parties an opportunity at oral argument to address the issue. Although both the plaintiff and the defendant claim that the appeal is not moot, because the question of mootness implicates our subject matter jurisdiction; Stamford Hospital v. Vega, 236 Conn. 646, 652-53, 674 A.2d 821 (1996); we must consider the issue. We conclude that this appeal is not moot because we can grant practical relief to the parties.

“Mootness deprives this court of subject matter jurisdiction. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . [I]t is not the province of the appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... If no practical relief can be afforded to the parties, the appeal must be dismissed.” (Citations omitted; internal quotation marks omitted.) ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn. App. 78, 80-81, 713 A.2d 886 (1998).

Additional facts are necessary for a proper discussion of this issue. At oral argument, the defendant claimed that this appeal is not moot because there is practical relief that this court can grant it. “The test for determining mootness of an appeal is whether there is an any practical relief this court can grant the appellant.” (Internal quotation marks omitted.) Id., 81. Specifically, the defendant claims that this appeal is not moot because our resolution of the issue raised on appeal will also necessarily determine whether the medicaid system, pursuant to 42 U.S.C. § 1396a (a) (34), or the plaintiffs estate is responsible for certain medical expenses incurred by the plaintiffs husband.

In its appeal to this court, the defendant challenges the propriety of the trial court’s conclusion that the $84,848.85 in resources generated income and, therefore, could potentially be allocated to the plaintiffs resource allowance. The defendant’s calculation of the plaintiffs resource allowance directly influenced its determination of her husband’s eligibility for medicaid benefits. “The resource allowance is protected from the institutionalized applicant’s health care obligations and does not count against the applicant’s financial eligibility.” Burinskas v. Dept. of Social Services, supra, 240 Conn. 149. “Because this increase in the resource allowance results from a transfer of resources from the institutionalized spouse to the community spouse, the value of the institutionalized spouse’s resources is brought closer to the [medicaid] eligibility level.” Id., 149-50. Accordingly, in resolving the issue on appeal, we will also necessarily determine whether the hearing officer improperly affirmed the defendant’s denial of the plaintiffs husband’s medicaid application.

In her appeals to the hearing officer and to the trial court, the plaintiff not only challenged the calculation of her resource allowance, but also the denial of her husband’s medicaid application. The hearing officer refused to allocate any portion of the $84,848.85 in resources to the plaintiffs resource allowance because it did not generate income and, therefore, she attributed those resources to the plaintiffs husband. As a result, the hearing officer affirmed the defendant’s denial of the plaintiffs husband’s application because his resources exceeded the eligibility limit of $1600.

The trial court reversed the decision of the hearing officer and remanded the case for a new hearing, concluding that the resources in question generated income. On remand, if the hearing officer determines that at least $83,248.86 of the $84,848.85 in resources should have been transferred to the plaintiffs resource allowance, then the defendant’s denial of the plaintiffs husband’s application was improper because, as a result of that transfer, his resources would have fallen below the eligibility limit of $1600. As a result, medicaid could assume liability for certain medical expenses incurred by the plaintiffs husband. See 42 U.S.C. § 1396a (a) (34); 42 C.F.R. § 435.914 (a). If we conclude, however, that the hearing officer properly refused to allocate the resources to the plaintiffs resource allowance, then we will necessarily conclude that the hearing officer properly affirmed the defendant’s denial of the plaintiffs husband’s application because his resources exceeded the eligibility limit.

Because our resolution of the issue raised on appeal will necessarily determine whether the medicaid system or the plaintiffs estate is responsible for certain medical expenses incurred by the plaintiffs husband, we conclude that this appeal is not moot because there is practical relief that we can grant to the parties.

II

The defendant claims that the trial court improperly determined that $84,848.85 in spousal resources constituted income producing resources within the meaning of 42 U.S.C. § 1396r-5 (e) (2) (C) and asks us to affirm the decision of the hearing officer. Specifically, the defendant contends that, pursuant to the definition of income under the Supplemental Security Income Act, 42 U.S.C. § 1381 et seq., and accompanying federal regulations, resources that generate only capital gains are not income producing. See 42 U.S.C. § 1382a; 20 C.F.R. §§ 416.1102 and 416.1103. The plaintiff claims that, pursuant to the definition of income in dictionaries and the internal revenue code, the resources in question generated income. Although we agree with the defendant, we find it unnecessary to look beyond the text of § 1396r-5 (e) (2) (C) and its purpose to reach our conclusion.

“Judicial review of an agency decision is limited. . . . [ W] e must decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. . . . Even as to questions 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. . . . Conclusions 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.” (Citations omitted; internal quotation marks omitted.) Burinskas v. Dept. of Social Services, supra, 240 Conn. 146-47.

Although the words “income producing” do not appear in the text of § 1396r-5 (e) (2) (C), neither party challenges the conclusion of the Department of Health and Human Services that if a hearing officer determines, pursuant to § 1396r-5 (e) (2) (C), that it is necessary to allocate additional resources to the resource allowance, such resources must produce income. See Medicaid Bulletin No. 93-21. Therefore, we assume, without deciding, that when a resource allowance must be adjusted to provide the community spouse with a minimum needs allowance in accordance with § 1396r-5 (e) (2) (C), federal law requires that the resources that will be transferred must generate income. Instead, the plaintiff and defendant offer different interpretations of “income producing.” The defendant claims that the hearing officer’s interpretation was proper, whereas the plaintiff contends that the trial court’s interpretation was correct. Because the words “income producing” do not appear in the text of § 1396r-5 (e) (2) (C), we look for interpretive guidance to the language of the statute and its purpose. See Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 309-310, 592 A.2d 953 (1991). We conclude that the trial court improperly determined that the resources in question generated income. Our conclusion is predicated on the language of § 1396r-5 (e) (2) (C) and the legislative purpose underlying this statute.

Section 1396r-5 (e) (2) (C) provides that if either spouse “establishes that the community spouse resource allowance ... is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance, there shall be substituted, for the community spouse resource allowance under subsection (f) (2) of this section, an amount adequate to provide such a minimum monthly maintenance needs allowance.” (Emphasis added.) 42 U.S.C. § 1396r-5 (e) (2) (C). The minimum needs allowance represents the minimum amount of income a community spouse needs to meet her basic needs. See 42 U.S.C. § 1396r-5 (d) (3); Cleary v. Waldman, 959 F. Sup. 222, 231 (D. N.J. 1997) (minimum needs allowance is “an amount designed to ensure that the community spouse has an income . . . above the official poverty line”). We conclude that since the purpose of the transfer of resources is to provide sufficient income to meet the monthly maintenance needs of the community spouse, the resources that are transferrable must be resources that will provide a regular stream of income to the community spouse. Resources that would generate moneys for the community spouse only upon their sale do not serve the purpose of the statute and do not qualify as income producing resources that would be transferrable to the community spouse under § 1396r-5 (e) (2) (C). Transferring to the plaintiffs resource allowance resources that generate only capital gains would not provide her with any additional monthly income that she could use to meet her minimum monthly maintenance needs. Accordingly, resources that generate only capital gains cannot be considered income producing under § 1396r-5 (e) (2) (C).

Because we conclude that the text of § 1396r-5 (e) (2) (C) and its purpose collectively establish that the resources in question did not generate income in the sense that the term is used in the statute, we find it unnecessary to look for interpretive guidance to the Supplemental Security Income Act and the internal revenue code.

Ill

The plaintiff claims, in what constitutes an alternative ground for affirming the trial court’s order, that even if the resources in question did not generate income, she should have been afforded an opportunity to convert these resources into income producing resources. The plaintiff asks us to determine whether, pursuant to § 1396r~5 (e) (2) (C), the defendant should have authorized a conversion of these resources into income producing resources and allocated to the resource allowance an amount of the converted resources sufficient to enable her to generate her minimum needs allowance. We agree with the plaintiff and conclude that, pursuant § 1396-5 (e) (2) (C), the defendant should have authorized a conversion of the resources and allocated to the resource allowance an amount of the converted resources sufficient to enable the plaintiff to generate her minimum needs allowance.

Additional facts are necessary to a resolution of this issue. The hearing officer’s decision attached significance to the form in which these resources existed on the date the plaintiffs husband was institutionalized. The hearing officer denied the plaintiffs request to allocate these resources to her resource allowance because “they were not income producing at the time of the spousal assessment, i.e., as of the date of the [plaintiffs] husband’s institutionalization (November 17, 1994).” (Emphasis added.) The hearing officer determined that spousal resources that generated only capital gains on the date of institutionalization could not later be converted into income producing resources and, if warranted under § 1396r-5 (e) (2) (C), allocated to the resource allowance.

In her appeal to the trial court, the plaintiff claimed that the hearing officer’s decision was improper because, on May 11, 1995, she notified the hearing officer that she had converted the resources in question into resources that generated income. In its memorandum of law in opposition to the administrative appeal, the defendant responded: “The plaintiff also contends that the fair hearing officer erred in basing her decision on the state of the O’Callaghans’ finances as they existed on November 17,1994, the date on which [the plaintiffs husband] became institutionalized, and by not considering the reconfiguration of the O’Callaghans’ assets from growth-producing to interest-bearing investments, which was carried out after the hearing. Those assertions do not have merit. Both federal and state law explicitly require that the financial assessment for medicaid eligibility be done as of the date of the applicant’s institutionalization. Uniform Policy Manual § 1507.05; see also 42 U.S.C. § 1396r-5 (c) (1).”

On the basis of its conclusion that the resources in question generated income, the trial court remanded the case to the defendant with the order that the defendant must consider the resources in question to be resources that potentially could be allocated to the plaintiffs resource allowance. The trial court did not reach the plaintiffs conversion claim. The plaintiffs conversion claim constitutes an alternative ground for affirming the trial court’s order that the defendant must consider the resources in question to be resources that potentially could be allocated to the plaintiffs resource allowance. Although the plaintiff did not file a preliminary statement of issues alleging that this claim constitutes an alternative ground for affirmance; see Practice Book § 63-4 (a) (1); we will consider it.

Neither Medicaid Bulletin No. 93-21 nor § P-1570.30 of the Uniform Policy Manual specifically addresses the propriety of a conversion of spousal resources under the present circumstances. “Although courts ordinarily defer to an agency’s interpretation of statutory text, where, as in this case, the construction of a statute . . . has not previously been subjected to ... a governmental agency’s time-tested interpretation . . . that construction constitutes a question of law for which deference is not warranted.” (Citation omitted; internal quotation marks omitted.) Burinskas v. Dept. of Social Services, supra, 240 Conn. 147.

We conclude that after the hearing officer transferred all available income producing spousal resources to the plaintiffs resource allowance and determined that the income generated by the adjusted resource allowance was insufficient to generate the plaintiffs minimum needs allowance and that additional spousal resources that did not produce income were available, § 1396r-5 (e) (2) (C) required the hearing officer to authorize a conversion of the additional resources into income producing resources and to allocate to the resource allowance an amount of the converted resources sufficient to enable the plaintiff to generate her minimum needs allowance. Our decision is predicated on a careful consideration of the text of § 1396r-5 (e) (2) (C), its purpose, the legislative history of the MCCA and the relationship between § 1396r-5 (e) (2) (C) and § 1396r-5 (c) (1).

We begin with the words of the statute. Section 1396r~ 5 (e) (2) (C) provides in relevant part that “[i]f either such spouse establishes that the community spouse resource allowance ... is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance, there shall be substituted, for the community spouse resource allowance ... an amount adequate to provide such a minimum monthly maintenance needs allowance.” 42 U.S.C. § 1396r-5 (e) (2) (C). “The legislature is quite aware of how to use language when it wants to express its intent to qualify or limit the operation of a statute”; State v. Ingram, 43 Conn. App. 801, 825, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997); and there is nothing in the text of this statute that indicates that the legislature prohibited the defendant from authorizing a conversion of the resources in question and allocating an appropriate amount to the resource allowance.

Second, our inteipretation effectuates the legislature’s stated puipose. The plain text of § 1396r-5 (e) (2) (C) provides that, if the resource allowance does not generate sufficient income to provide the community spouse her full minimum needs allowance, the hearing officer “shall” adjust the resource allowance to enable the community spouse to generate her minimum needs allowance. 42 U.S.C. § 1396r-5 (e) (2) (C). Converting the resources in question into income producing resources and transferring an appropriate amount to the plaintiffs resource allowance would have provided her with additional income that she could have used to meet her minimum monthly maintenance needs, whereas the hearing officer’s inteipretation frustrates the purpose of § 1396r-5 (e) (2) (C) because it prohibits the conversion of those resources despite the determination that the resource allowance does not generate sufficient income to enable the community spouse to meet her minimum needs. “A statute . . . should not be interpreted to thwart its purpose.” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 508, 636 A.2d 1342 (1994).

Third, our interpretation does not, as the defendant claims, undermine an important objective of the MCCA. Section 1396r-5 (e) (2) (C) was enacted as part of the MCCA. The legislative history of the MCCA establishes that Congress sought to end the pauperization of community spouses “by assuring that the community spouse has a sufficient—but, not excessive—amount of income and resources available to her while her spouse is in a nursing home.” H.R. Rep. No. 100-105 (II), 100th Cong., 2d Sess. at 65 (1988), reprinted in 1988 U.S.C.C.A.N. 857, 888. The defendant claims that our conclusion will provide the plaintiff with an excessive amount of resources. The defendant’s argument fails because it ignores that § 1396r-5 (e) (2) (C) places a ceiling on the amount of resources a hearing officer can transfer to the resource allowance. Section 1396r-5 (e) (2) (C) limits the transfer of resources to “an amount adequate to provide such a minimum monthly maintenance needs allowance.”

Fourth, the text of § 1396r~5 (c) (1) (A) does not, as the defendant claims, preclude the conversion of the resources in question. Nor does it prohibit a hearing officer from allocating an appropriate amount of the converted resources to the resource allowance for the purpose of enabling a community spouse to generate her minimum needs allowance. Instead, § 1396r-5 (c) (1) (A) mandates only that the defendant must calculate the total value of a couple’s resources as of the date of the medicaid applicant’s institutionalization and compute an appropriate spousal share. This method of calculating a couple’s resources is commonly referred to as the “snap shot.” L. Torch, “Spousal Impoverishment or Enrichment? An Assessment of Asset and Income Transfers by Medicaid Applicants,” 4 Elder L. J. 459, 471 n.68 (1996).

Fifth, our interpretation of § 1396r-5 (e) (2) (C) does not frustrate the purpose of § 1396r-5 (c) (1) (A). A congressional report suggests that Congress selected the date of a medicaid applicant’s institutionalization as the date of assessment to promote fairness and consistency by ensuring that a couple will receive the same financial assessment regardless of whether they apply for medicaid immediately after one spouse becomes institutionalized, or whether they wait until they have redistributed or spent down a portion of their assets before they apply for medicaid. See H.R. Rep. No. 100-105 (II), 100th Cong., 2d Sess. at 65 (1988), reprinted in 1988 U.S.C.C.A.N. 857, 901. Converting the resources in question and transferring an appropriate amount to the resource allowance will not affect the date on which the defendant assesses the value of the couple’s resources.

Finally, we reject the hearing officer’s interpretation because it produces an unreasonable result. “The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of [a statute] is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable.” Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984). If we adopted the hearing officer’s interpretation, the determination of whether spousal resources could be transferred to the resource allowance would turn on the form in which these resources existed on the date of institutionalization. Under the hearing officer’s approach, the plaintiff would have been entitled to an appropriate amount of the resources in question if, at the date of her husband’s institutionalization, they had generated income or dividends; however, because these resources generated capital gains, the hearing officer concluded that they could not be allocated to the resource allowance. Our interpretation avoids this unreasonable result.

We therefore, on the alternate ground presented, affirm the judgment of the trial court remanding the case to the commissioner for anew hearing. On remand, the hearing officer must determine what amount of the resources in question, which the record establishes have already been converted into income producing resources, should have been transferred to the plaintiffs resource allowance for the purpose of enabling her to generate her minimum needs allowance, and whether, as a result of that transfer, the defendant improperly denied the medicaid application of the plaintiffs husband. If the hearing officer determines that the defendant improperly denied the application, the hearing officer must determine to what extent the defendant may be responsible for the husband’s medical expenses.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the plaintiff, Ann O’Callaghan, is deceased, we refer to her as the plaintiff in this opinion. By an order dated October 15, 1997, we granted the motion of Sheila O’Callaghan Lamo, executrix of the plaintiffs estate, to be substituted as party plaintiff.

       Section 1396r-5 (e) (2) (C) of title 42 of the United States Code provides: “Revision of community spouse resource allowance
      “If either such spouse establishes that the community spouse resource allowance (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance, there shall be substituted, for the community spouse resource allowance under subsection (f) (2) of this section, an amount adequate to provide such a minimum monthly maintenance needs allowance.”

       In the present case, we are called on to determine only whether the defendant, in adjusting the plaintiffs resource allowance pursuant to § 1396r-5 (e) (2) (C), properly determined that the spousal resources in question could not be allocated to the resource allowance. In adjusting the plaintiffs resource allowance, the defendant looked to the resources of the plaintiffs husband. The issue of whether the defendant, in adjusting the resource allowance, should have looked first to the income or to the resources of the plaintiff s husband is not properly before us. Therefore, we express no opinion concerning whether the defendant should have utilized a “resource first,” “income first,” or hybrid methodology. See Cleary v. Waldman, 959 F. Sup. 222, 229-30 (D.N.J. 1997) (discussing three methodologies of revising resource allowance); Kimnach v. Dept. of Human Services, 96 Ohio App. 3d 640, 644, 645 N.E.2d 825 (1994), appeal denied sub nom. In re Kimnach, 71 Ohio St. 3d 1447, 644 N.E.2d 409 (1995) (resource first approach); Golf v. Dept. of Social Services, 91 N.Y.2d 656, 662-63, 674 N.Y.S.2d 600, 697 N.E.2d 555 (1998) (income first approach).

       “See John Milton, Paradise Lost, blc. 2,1. 592 (‘A gulf profound, as that Serbonian bog Betwixt Damiata and Mount Casius old, Where armies whole have sunk. Matarazzo v. Rowe, 225 Conn. 314, 318 n.3, 623 A.2d 470 (1993).

       “The term ‘institutionalized spouse’ means an individual who—
      “(A) is in a medical institution or nursing facility or who (at the option of the State) is described in section 1396a (a) (10) (A) (ii) (VI) [42 USCS § 1396a (a) (10) (A) (ii) (VI)], and
      “(B) is married to a spouse who is not in a medical institution or nursing facility;
      “but does not include any such individual who is not likely to meet the requirements of subparagraph (A) for at least 30 consecutive days.” 42 U.S.C. § 1396r-5 (h) (1); see Department of Income Maintenance, Uniform Policy Manual (1989) § 4000.01. In this case, the plaintiffs husband, Peter O’Callaghan, is the institutionalized spouse.

       “The term ‘community spouse’ means the spouse of an institutionalized spouse.” 42 U.S.C. § 1396r-5 (h) (2); see Department of Income Maintenance, Uniform Policy Manual (1989) § 4000.01. In the present case, the plaintiff is the community spouse.

       Section 1396r-5 (c) (5) of title 42 of the United States Code excludes certain assets from the definition of “resources.” “In particular, ‘resources’ does not include the marital home, household goods, personal belongings, the value of a burial space, and a limited amount of the value of an automobile and funds for burial expenses. See 42 U.S.C. § 1382b (a) and (d).” Thomas v. Commissioner of the Division of Medical Assistance, 425 Mass. 738, 740 n.4, 682 N.E.2d 874 (1997).

       In the Uniform Policy Manual, the resource allowance is called the “community spouse protected amount.”

       In the Uniform Policy Manual, the minimum needs allowance is called the “minimum monthly needs allowance.”

       General Statutes § 4-183 Q) characterizes any remand order in an administrative appeal as a final judgment. Connecticut Resources Recovery Author

        ity v. Commissioner of Environmental Protection, 233 Conn. 486, 496, 659 A.2d 714 (1995).

       Section 1396a (a) (34) of title 42 of the United States Code provides that a state medicaid plan must “provide that in the case of any individual who has been determined to be eligible for medical assistance under the plan, such assistance will be made available to him for care and services included under the plan and furnished in or after the third month before the month in which he made application (or application was made on his behalf in the case of a deceased individual) for such assistance if such individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished . . . .”

       At oral argument, the plaintiff claimed that this appeal is also reviewable under the “capable of repetition, yet evading review” exception to the mootness doctrine. See Loisel v. Rowe, 233 Conn. 370, 382, 660 A.2d 323 (1995). Because we conclude that this appeal is not moot, it is unnecessary for us to reach that claim.

       The Boston regional office of the Department of Health and Human Services issued Medicaid Bulletin No. 93-21 to regional state medicaid agencies to clarify the scope of a hearing officer’s authority, pursuant to § 1396r-5 (e) (2) (C), to increase the resource allowance so that a community spouse can meet her minimum needs allowance. This bulletin provides in relevant part: “Several states have inquired whether a State hearing officer can increase the protected resource amount (PRA), a component of the community spouse resource allowance, under the authority of [42 U.S.C. § 1396r-5] (e) (2) (C). The purpose would be to bring the community spouse’s income closer to the amount of the community spouse monthly income allowance in the post-eligibility period. . . . Section [42 U.S.C. § 1396r-5] (e) (2) (C) provides that, if either spouse establishes that the community spouse resource allowance is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance, an amount adequate to provide such a minimum monthly maintenance needs allowance shall be substituted. However, you must consider the community spouse’s other income in determining how much more income would need to be generated from income-producing resources to bring his/her income up to the monthly maintenance needs allowance. Inherent in this concept is that resources used to fulfill an increased PRA under this provision must be income-producing. Otherwise, the transfer would not serve to increase the income of the community spouse.” (Emphasis added.)
      Additionally, that portion of the Uniform Policy Manual that outlines the procedure for ac[justing the resource allowance requires that spousal resources transferred to the resource allowance must be income producing. Uniform Policy Manual (1989) § P-1570.30 (7).

       Our conclusion derives additional support from dicta in Ford v. Dept. of Human Services, 500 N.W.2d 26 (Iowa 1993). In Ford, the plaintiff, a community spouse, requested an administrative hearing pursuant to § 1396r-5 (e) (2) (C) to increase her resource allowance so that she could meet her minimum needs allowance. Id., 28. After a hearing, the “administrative law judge increased the [resource allowance] to an amount sufficient, if invested in bank accounts and certificates of deposit, to generate enough additional monthly income to reach [her minimum needs allowance of] $1,500.” Id. Because the plaintiff already received $1165.92 in monthly income, she was “entitled to sufficient resources to generate an additional $334.08 per month.” Id. On administrative review, the state department of human services determined that “instead of looking at the investment of resources necessary to generate sufficient interest income [to help the plaintiff generate her minimum needs allowance], the agency should look at the resources necessary to purchase a single-premium life annuity that would furnish monthly payments to the community spouse in an amount sufficient to bring the spouse’s income up to the [minimum needs allowance of] $1,500.” Id., 29. Although the department did not require the plaintiff to purchase an annuity, it based its calculation of her resource allowance on what amount of spousal resources must be liquidated in order to purchase an annuity that would generate sufficient monthly income to enable her to meet her minimum needs allowance. Id. The Iowa Supreme Court affirmed the department’s use of an “annuity-method” for adjusting the resource allowance. Id., 31-32. Although the court in Ford did not decide the question presently before us, its decision demonstrates that, in this context, income-producing resources constitute those resources that generate income that a community spouse can use to meet her minimum monthly maintenance needs.

       The hearing officer rendered her decision on June 9, 1995.

       “Although an appellee should comply with Practice Book § [63-4 (a) (1)] when seeking judgment on alternative grounds, this court is authorized to rely upon alternative grounds supported by the record to sustain a judgment.” (Internal quotation marks omitted.) Scalzo v. Danbury, 224 Conn. 124, 125 n.2, 617 A.2d 440 (1992); Pepe v. New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987). Because this claim presents a question of law and the record before us on appeal includes the record that was before the trial court, we conclude that the record is adequate to permit our review. The defendant was not prejudiced by the plaintiffs failure to comply with § 63-4 (a) (1) because it had the opportunity to address this alternative ground for affirmance in its reply brief. Chase v. State, 45 Conn. App. 499, 501 n.3, 696 A.2d 1299 (1997); In re Jennifer G., 29 Conn. App. 689, 692, 617 A.2d 921 (1992).

       The record discloses that the resources in question have already been converted into income producing resources. In future instances, we reserve for the determination of the commissioner the specific procedure by which it will effectuate a conversion of resources.

       Section 1396r-5 (c) (1) of title 42 of the United States Code provides: “Computation of spousal share at time of institutionalization
      “(A) Total joint resources
      “There shall be computed (as of the beginning of the first continuous period of institutionalization ... of the institutionalized spouse)
      “(i) the total value of the resources to the extent either the institutionalized spouse or the community spouse has an ownership interest, and
      “(ii) a spousal share which is equal to 1/2 of such total value.”