The Elder Firm, LLC - Nathan J. Forck, Attorney

Wednesday, March 23, 2011

Estate recovery prohibited in Community Spouse's estate (Idaho 4th Dist.)

From the NAELA bulletin:
NAELA Member Peter Sisson represented the Estate of George Perry. George and Martha Perry,  were married. Martha had owned land in her own name and, in 2002, quitclaimed it to herself and her husband. After Martha became ill, in 2006, George used a power of attorney to have Martha quitclaim the remaining interest to himself. A few months later, they applied for Medicaid to help Martha. George predeceased Martha in 2009 and the State sought funds from his estate to recover the $108,364.23 it had invested in Martha's care. The magistrate denied the State's claim because Martha had conveyed her interest in the property during her lifetime and she had no interest in the property. The State then appealed. One of the grounds on appeal was that George used a power of attorney that did not include an express power specifically giving him authority to make gifts. Although the statute requires an express power to convey a community property interest, that argument was rejected because the power of attorney pre-dated Idaho's adoption of the Uniform Power of Attorney Act. The State then argued that Idaho law permits recovery of medical assistance from the recipient or the recipient's spouse. The lower court argued that 42 U.S.C. 1396p did not per the State to claw-back assets transferred prior to death. That decision was affirmed on appeal.

Medicaid at risk in Missouri?


I will be absolutely and utterly shocked if funding for Medicaid is not continued.  It would be political suicide for all parties involved.

Monday, March 21, 2011

State Cannot Recover Assets That Were Transferred Before Medicaid Recipient Died


In a case pursued by ElderLawAnswers member attorney Peter C. Sisson, an Idaho district court rules that the state cannot recover assets from the estate of a Medicaid recipient's spouse that were transferred to the spouse before the Medicaid recipient died. In Re: Estate of Perry (Idaho Dist. Ct., 4th Dist., No. CV-IE-2009-05214, March 16, 2011).
Martha and George Perry owned property together. Mrs. Perry entered a nursing home, and Mr. Perry transferred the property into his name. Mrs. Perry then began receiving Medicaid benefits. Mr. Perry died before Mrs. Perry, and the property was sold. After Mr. Perry's death, the state filed a claim against his estate seeking recovery of more than $100,000 in Medicaid benefits it had so far paid on Mrs. Perry's behalf.
The state asserted that, because Mrs. Perry previously had an interest in the property during the marriage, the state could recover an amount equal to her ownership interest. The estate's personal representative countered that the state was entitled only to recover an amount equal to Mrs. Perry's interest in the home at the time of her death. Because Mrs. Perry was still alive at the time of the transfer, the personal representative argued the state could not recover any amount. The magistrate division of Idaho's fourth judicial district ruled that the state's ability to recover costs was limited to assets that were transferred to the recipient's spouse at death, not to inter vivos transfers. The state appealed. (Mrs. Perry died while the appeal was pending.)
The Idaho District Court affirms, holding the definition of "estate" in federal Medicaid law does not permit the state to recover property interests the Medicaid recipient divested before death. The court determines that there is a conflict between state and federal law because state law would allow the state to recover from the spouse's estate so long as the property was once community property, but the court concludes that federal law preempts state law.

This needs to happen in Missouri:

As you all know, the Missouri Family Support Division (FSD) is dreadful at processing applications within the federal guidelines.  FSD compounds the situation by playing games with requests for information and rejecting applications from clients for allegedly failing to cooperate with their requests.  I have been seriously looking into bringing an action like the one cited below and I will be in contact with the attorneys on this case to seek their guidance on bringing a similar suit in Missouri.

A federal court in Ohio rules that a lawsuit by disabled Medicaid applicants against the state for failing to determine their Medicaid eligibility in a timely manner may go forward, holding that most of the recipients' complaints are not moot simply because the state eventually processed their claims. Ability Center of Greater Toledo v. Lumpkin (N.D. Ohio, No. 3:10CV446, Feb. 28, 2011).
Nine individual plaintiffs and a disability rights organization filed suit against the state of Ohio, alleging that it failed to determine their eligibility for Medicaid benefits within 90 days of their applications. Although the circumstances surrounding each application were different, each individual plaintiff waited at least a year (and sometimes more than two years) for an eligibility determination. The plaintiffs claimed that the delay violated their rights under the Medicaid Act and the 14th Amendment of the U.S. Constitution because federal regulations mandate that a "timely" decision on a Medicaid application must take place within 90 days of filing.
The state moved to dismiss the suit on multiple grounds, including mootness, standing, and other arguments relating to the relevance of the Medicaid Act to Ohio law. In support of its mootness argument, the state claimed that since it eventually processed all nine claims, the current lawsuit was irrelevant because the plaintiffs no longer suffered a harm that could be remedied by their lawsuit. The plaintiffs argued that their claims were not moot because there was a reasonable expectation that they would be subject to the same delay at a later date, especially in the cases where the state determined that the plaintiffs were not eligible for benefits. The state also claimed that the disability rights organization lacked standing because it, and its members, did not suffer a cognizable injury.
The U.S. District Court for the Northern District of Ohio grants the state's motion to dismiss the lawsuits of two of the plaintiffs who were determined to be disabled by the Social Security Administration (and thus unlikely to "ever be required to go through the eligibility process again"), but denies the state's motion when it comes to the other seven individual plaintiffs and the rights organization. The court explains that the seven remaining plaintiffs could all be expected to have to apply for benefits again in the future and they would experience similar delays, giving them a cognizable claim for relief. The court also rules that the advocacy group has standing to sue in its own right and on behalf of its members, and that the plaintiffs' constitutional claims are appropriate.