Medicaid Estate Recovery Could Reach Home Regardless of Which Spouse Owned It at Death (Idaho)

During their marriage, Martha executed a quitclaim deed putting her home into the names of her and her husband, George. Later, she executed a power of attorney with George as her agent. Using the power of attorney, George later transferred Martha’s remaining interest in the home to him solely. Martha then applied for and was approved for Medicaid benefits. Until her death, the Department provided in excess of $100,000 in benefits. George had predeceased Martha and the personal representative of the estate sold the home for just over $81,000. The Department filed a contingent claim with the probate court for the amounts of benefits paid. The Department claimed entitlement under I.C. § 56–218, which allowed recovery from “any property which, at any time, had been the community property of the decedent and decedent's spouse, or which had been the property of decedent's spouse.
Both the probate and appellate courts denied the claim, finding that I.C. § 56–218 limited recovery to property in which the recipient spouse had an interest at the time of death. Since Martha validly conveyed her interest in the home to George via the power of attorney before that time, there was no estate recovery. The Idaho Supreme Court reversed. The court noted that while 42 U.S.C. § 1396p(b)(1) expressly allowed recovery from only “the individual's estate, it also allowed states to expand the definition of ‘estate’ to include any other property in which the individual had any legal title or interest “at the time of death.” Idaho had adopted this more expansive definition of “estate.” The court noted that the definition of “estate” in 42 U.S.C. § 1396p(b)(4)(B) included the phrase “other arrangements,” while the definition of “assets,” in 42 U.S.C. § 1396(h)(1) plainly included the resources of the recipient's spouse, as well as assets the recipient disposed of before death. The federal definition of “resources” included the home for purposes of recovery. In light of the ambiguously inclusive nature of 42 U.S.C § 1396p(b)(4)(B) and the plain definition of “assets” in 42 U.S.C. § 1396(h)(1), the court could not find that federal law preempted States from providing for recovery of assets from both spouses' estates under I.C. § 56–218(1), including assets that were community property during the marriage.  
Estate of Perry, 2012 WL 3206771 (August 9, 2012)

This is why it is important, at least in Missouri, to get your assets into a trust!  Missouri's Medicaid program has NOT expanded it's definition of "estate" to include trusts, but it might at some point.  Most people don't really think about their property being at risk of estate recovery because Medicaid considers the applicant's homestead to be an exempt asset for eligibility purposes.  HOWEVER, that does not mean that MO FSD cannot come after the homestead through Medicaid estate recovery in order to recover any money that it pays out on behalf of the applicant's medical care during their lifetime.  

Annuity Purchased Post-Initial Eligibility Determination Is Not Available Resource

Great news for Medicaid-compliant annuities for married couples!  Way to go 10th Circuit!

Reversing a district court, a U.S. court of appeals holds that an annuity is an unavailable resource even if it is purchased in addition to the community spouse resource allowance, and that there is no transfer penalty for the couple's purchase of the annuity prior to a determination of Medicaid eligibility. Morris v. Oklahoma Dept. of Human Services (10th Cir., No. 10-6241, July 9, 2012).

LINK 

RED ALERT! Congress Attempting Bipartisan Shafting of Veterans Once Again!

RED ALERT!  


FROM www.elderlawanswers.com

The text of a Senate bill imposing asset-transfer rules on VA pension applicants is now available.  S. 3270, introduced by Sen. Ron Wyden (D-OR) and Sen. Richard Burr (R-NC), would require the Secretary of Veterans Affairs to look back 36-months for any uncompensated transfers that a veteran, spouse, surviving spouse or child otherwise eligible for a pension may have made. As ElderLawAnswers reported, the bill comes on the heels a U.S. Government Accountability Office (GAO) report that found abuses among a small group of attorneys and financial planners who help veterans transfer assets in order to qualify for VA pension benefits like Aid and Attendance.Under the bill, the Secretary would look for any resource that was part of the “corpus of the estate” of the veteran and of the veteran’s spouse that the secretary considers would be “reasonable” to be consumed for claimant’s maintenance.  The look-back period would commence on the date of the pension application or the transfer, if it is later. The legislation calls for the imposition of a penalty period if an uncompensated transfer has been made, and the penalty would be calculated by dividing the value of the transferred resources by the amount of the monthly pension the claimant would otherwise be entitled to.  The panalty could not exceed 36 months.A pension will not be denied if transferred assets are returned or if the denial or discontinuance of payment would work an undue hardship.The legislation would take effect one year after enactment and apply to pensions applied for or redeterminations after that date.

S. 3270.

Right now, there is no "transfer penalty" for transfers of assets for less than fair market value when applying for VA Aid and Attendance pension benefits.  This bill, if passed, would impose a transfer penalty of up to 36 months of ineligibility for veterans benefits that the veteran would have otherwise qualified for based on the amount that was transferred by the veteran within three years prior to applying for benefits.  


VA benefits are hard enough to obtain for veterans as it is and this law will exponentially complicate and frustrate veterans who would otherwise be eligible for benefits.  The complex nature of calculating transfer penalties and look-back periods can be mitigated with the help of an experienced elder law attorney in the context of an application for Medicaid.  


HOWEVER, a ridiculous federal law exists that does not allow attorneys to receive compensatino for assisting applicants for VA benefits.  Consequently, there is a tremendous lack of advocacy for veterans that need help with applying for these benefits and therefore many veteran applicants simply give up after their initial application is rejected.  This rule will only exacerbate the problem of eligible veterans being unable to qualify for benefits because of the complexity of the application process. 


This is particularly disheartening as it seems as though this is focused on the Aid and Attendance Pension program that the vast majority of veterans don't utilize because they don't realize that they could become eligible.  Unlike the Veterans Disability program, a veteran can be eligible even if they were never deployed to a combat zone and their eligibility is NOT predicated on a service-connected injury or disability.


If you have any questions about qualifying for the VA Aid and Attendance program, please feel free to call my office at (573) 635-3436.  

LINK to article on www.elderlawanswers.com.

Seminar in Linn, MO TONIGHT!

I will be speaking at a community awareness meeting on Medicaid eligibility and the Veteran's Aid in Attendance program.  It will be held at the Osage County Community Center, which is located next to Linn Tech and the seminar will start at 6 PM.  


Come on out and say "Hi".  (I also hear that there will be food and drinks involved.) 


In the meantime, if you have any questions, please feel free to contact me at (573) 635-3436.

Medicaid and Veterans Benefits Seminar at 6 PM tomorrow night at my office for any that are interested.  The address is 2701 W. Main Street, Jefferson City, MO.  If you have questions about the seminar or anything else, please feel free to contact my office at (573) 635-3436.

Upcoming Seminars for May 2012

Upcoming Seminars

6:00-7:00PM)

May 10, 2012 at Knights of Columbus, Taos, MO (6:00 PM-7:00 PM)

May 17, 2012 at Millard Family Chapels Annex, 2701 W. Main Street, Jefferson City, MO (

May 29, 2012 at Heisinger Bluffs (Media Room), 1002 W. Main Street, Jefferson City, MO (6:00-7:00PM)

May 31, 2012 at Millard Family Chapels, 919 E. Main Street, Linn, MO (6:00-7:00PM)

Missouri Estate Recovery Claim Fails

A Missouri court of appeals rules that in a state's claim for recovery of Medicaid benefits against an estate, computerized records showing checks were issued to the Medicaid recipient's health care providers is insufficient evidence that payment was made to the providers, so the claim must fail. Estate of Nelson v. Missouri Dept. of Social Services (Mo. Ct. App., W. Div., No. WD73957, March 20, 2012).

When Katherine Nelson died, the state filed a claim against her estate for reimbursement of Medicaid benefits paid on her behalf. As proof of the claim, the state provided computer records of expenditures made for Ms. Nelson's care.

The trial court denied the claim, ruling that the state did not present evidence that checks it issued to Ms. Nelson's health care providers were in fact presented and paid. The state appealed, arguing that it need only provide proof that a check was sent.

The Missouri Court of Appeals, Western Division, affirms, holding that the state's evidence is insufficient because it does not establish that the checks it issued in payment of Ms. Nelson's health care services were either presented or honored. According to the court, computerized records providing the date a check was issued are not sufficient evidence of payment.

For the full text of this decision in PDF, go to: http://www.courts.mo.gov/file.jsp?id=53156.