Marmet Health Care Center v. Brown, 132 S. Ct. 1201 (2012). Marmet began as three seperate cases in West Virginia. In each case, a family member of a nursing home resident signed an admission agreement which included an arbitration clause buried within the text. The Plaintiffs argued the arbitration provision was void because it violated […]
Trust corpus found to be countable ( R.I. Super.) ————————————- Jeanne M. Biagetti established a revocable trust in 1998. According to counsel, it became irrevocable in 2001 when she became unable to manage her own financial affairs. When She applied for Medicaid in 2009, however, the trust was found to be a countable resource and […]
Another Court Rules that NHRA is a toothless tiger (E.D. Mo.) Elgin James filed suit alleging that he developed bedsores due to nursing home negligence. Specifically, he alleged that the nursing home violated 42 C.F.R. § 483.25 which provides that a nursing home must prevent bedsores unless they are unavoidable. Following a line of cases […]
CMS has no obligation to accept an MSP liability allocation without an adjudication on the merits (W.D. Kentucky) In this is Medicare Secondary Payer case, Hadden sought waiver of recovery of a condition payment. After suing to recover for injuries sustained in a collision, Hadden settled for $125,000, in addition to receiving $10,000 in Kentucky […]
Transfer of Partnership Interest Was Not Immediate Gift (TC) —————————————— The tax court was faced with whether gifts petitioners made of limited partnership interests to their adult children during 2000, 2001, and 2002 qualified as annual exclusions pursuant to section 2503(b). The court found that they did not. On September 11, 1997, petitioners formed Price […]
Clear and convincing evidence supported establishment of conservatorship (TN App) —————————————— Petitioners petitioned for the appointment of a conservator for the person and estate of their mother. They alleged that she had dementia, Parkinson’s disease, coronary artery disease, and was unable to make decisions about her health or finances. The Trial Court found by clear […]
“Right to Live” appeal dismissed as moot (N.J. Super.) —————————————— Rueben Betancourt underwent surgery to remove a malignant tumor from his thymus gland. Although the surgery went well, during recovery, the ventilation tube supplying him with oxygen was dislodged and he developed anoxic encephalopathy which left him in a persistent vegetative state and with other […]
Probate heir has no property right in conservatorship estate (Ga.) ——————————- Opal Stewart was appointed as her father’s conservator. After her father died, she was also his personal representative. Under Georgia law, a conservatorship terminates upon the death of the ward, but the conservator must still petition for discharge. Where the conservator also serves as […]
Cooperative federalism is not license to re-write clear federal rules (Co. App.) Ruth Koehler sued the Department after it terminated her benefits under its Medicaid Home and Community Based Services for the Elderly, Blind and Disabled (HCBS) program. Ruth, an elderly disabled woman, received HCBS as an alternative to nursing home care. Her husband resided […]
Trustee had discretion to assess defense costs to wayward son (Ga. App.) ———————————— Howard McPherson established an irrevocable trust in 1990. At the time, he had four children, Scott, Lisa, Robin, and Eric. An additional son was born to Howard’s second wife after the trust was established. The trust gave the trustee discretion to provide […]
Hogberg v. State Dep’t of Soc. Servs., 2009 Conn. Super. LEXIS 50 (2009). Lynda Hogberg was admitted to a nursing home in September, 2004. Two years later, in September 2006, her husband, a community spouse, filed a Medicaid application. The application was denied in March, 2007. In April, 2007, he filed an appeal. On May […]
James v. Richman, 465 F. Supp. 2d 395 (M.D. Pa. 2006). Robert and Josephine James were married when Robert went to the nursing home. A resource assessment was done and Medicaid determined they had $278,343 in available resources. To reduce their resources, Josephine purchased a $250,000 single premium immediate irrevocable annuity from General Electric Assurance […]
Harris v. McRae, 448 U.S. 297 (1980). The Medicaid program created by Title XIX is a cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons. Under this system of “cooperative federalism,” King v. Smith, 392 U.S. 309, 316, if a State […]
In Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), the Georgia Supreme Court considered whether arbitrary limits to noneconomic damages in malpractice cases violated Georgia’s Constitution. Those limits were imposed as part of the Tort Reform Act of 2005, and were codified at O.C.G.A. § 53-13-1. In Nestlehutt, Dr. Harvey P. Cole had […]
In Booth v. State, the Georgia Supreme Court considered the appeal of a daughter convicted of killing her mother. Booth took custody of her elderly mother, Cowart, after she was discharged from the hospital in October 2016. Booth cared for Cowart in Booth’s home with the assistance of a registered nurse until early December. Cowart […]
In Giller v. Slosberg, an elderly father revoked an existing power of attorney, executed a new power of attorney, and made changes to certain financial accounts relating to his estate-planning strategy. Giller and Seidner (sisters) appealed a judment following a jury verdict in favor of their brother, Slosberg. Slosberg believed his sisters exerted undue influence […]
In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court turned treatment for individuals with special needs on its head. Justice Ginsburg, writing for the Court framed the issue presented as follows: “Specifically, we confront the question whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather […]
Trust Company Bank was named trustee of a trust created by Nancy Cooper in 1968. The trust provided that the settlor had no right to alter, amend, or revoke the trust. Nonetheless, she attempted to revoke the trust in 1985. The bank filed a declaratory judgment action because it believed the trust was irrevocable. Cooper […]
In 1977, Collins took a judgment against Hunt for $300,000. Collins then sought to enforce the judgment against a Louisiana trust created in 1941; Henderson was the trustee and Hunt was a beneficiary. Both Hunt and Henderson took the position that the trust was not subject to the judgment. The trial court disagreed and ordered […]
A trust sought direction concerning whether it was required to pay for private school tuition. A grandfather established a trust for the support, maintenance and education of his minor grandchildren. Later, when his son divorced, the son asked the trust to pay his children’s tuition. The former wife responded on behalf of the children, contending […]
Medicaid, just one of the sets of rules applicable to most older adults, is one of the most complex laws ever enacted. Even Judges have difficulty understanding it. What follows are a few quotes from court decisions: “The Social Security Act is among the most intricate ever drafted by Congress. Its Byzantine construction, as Judge […]
The husband died six months after the decedent. The decedent had required nursing home care, and she received Medicaid assistance to pay for the care. The estate’s personal representative allowed $ 63,880 as a claim against the estate but disallowed $ 44,533. The county contended that it was entitled to full recovery because the value […]
Plaintiffs were a group of couples with one spouse in the nursing home and other spouse still in the community. In each case, the Community Spouse was the beneficiary of a Community Spouse Annuity Trust (“CSAT”). Some institutionalized spouses had been denied Medicaid, while others had applications pending. The Plaintiffs challenged the State’s treatment of […]
Guardians of two nursing home residents brought suit contending that the State erred by beginning a transfer penalty on the first day of the month after a transfer, rather than on the month of the transfer. The Court found the claims barred by the Eleventh Amendment. It dismissed the remainder of the Complaint for failure […]
Hazel Wilson and her husband executed and funded a revocable living trust in 1991. The trust became irrevocable at her husband’s death in 1998, forming an A/B trust. Hazel had access to the principal and income from trust A, but only the income from trust B. In 1999, Hazel transferred $636,638 in property to her […]
Sonya Lotzer and Bobbi Lerud were in separate collisions. After settling their negligence claims, they funded special needs trusts without first paying Medicaid liens asserted by the State of Minnesota. Norwest Bank filed a declaratory judgment action alleging that Medicaid’s right to recover is deferred until the beneficiary’s death where a third party recovery is […]
A tort plaintiff sought to fund his special needs trust without first repaying the Medicaid lien. Citing Norwest, the Court concluded that 1396p(d)(4) does not alter Medicaid’s right to recover on its lien prior to funding a special needs trust. The recipient’s rights against the third-party tortfeasor were assigned when he applied for and received […]
A 51 year old nursing home resident assigned her Social Security Disability check to a special needs trust. She then argued that the SSD payment was not subject to Medicaid’s co-pay requirement. The Department rejected her argument, requiring that she pay her SSD (less her personal needs allowance) toward the cost of nursing home care. […]
Carl Bergman had an annuity account which he transferred to his wife after he was admitted to a nursing home. After Lucille, his wife, was diagnosed with cancer, she gifted those assets to their children. Following Lucille’s death, the State filed an estate recovery claim in Lucille’s estate relating to payments made for Carl’s care. […]
Prior to his death, Harold Ullmer was on Medicaid. At his death, Harold and his wife, Agnes, owned their home in joint tenancy. Agnes continued to reside in the home. The State recorded a notice of lis pendens against the property, and filed a petition seeking to impose a lien in the amount of $144,475.76 […]
Beverly Tutinas’s husband, Julian, was on Medicaid, but she was not. When Beverly died owning a home valued at $69,641.89 and a car worth $2,000, the state of Illinois filed a claim against Beverly’s estate, seeking to recover what Medicaid had invested in Julian’s care. The court found that, although the state clearly had a […]
Seeking to increase the Community Spouse Resource Allowance (CSRA), the Staffords conveyed their home to a trust. After Mr. Stafford was institutionalized, the trust conveyed the home to Mrs. Stafford. The purpose of the transaction was to make the home countable during the resource assessment, thereby increasing the value of the marital assets; in Idaho […]
Robert and Josephine James were married when Robert went to the nursing home. A resource assessment was done and Medicaid determined they had $278,343 in available resources. To reduce their assets, Josephine purchased a $250,000 single premium immediate irrevocable annuity from General Electric Assurance Company. She then purchased a new vehicle for $8,550 and filed […]
Greene appealed denial of his application for Medicaid. The denial was affirmed by an administrative law judge. After review, the Commissioner adopted the findings of fact of the ALJ. The Commissioner addressed Greene’s specific arguments by explicitly noting the underlying evidence in the record supporting the ALJ’s decision and citing two cases: Atkinson v. Ledbetter […]
In Cruver v. Mitchell, Medicaid had paid many of Mitchell’s expenses until shortly before the hearing. Appellants, however, had decided to stop her benefits and “just pay for [the expenses] out of pocket,” using money from Mitchell’s bank accounts. Appellants explained that they removed their mother from the Medicaid program so that the State would […]
The undisputed record shows that in April 2004, Gladowski qualified for Medicaid assistance to pay for nursing home care, but the Department of Community Health delayed her benefits until September 2006 on the ground that Gladowski improperly transferred assets to qualify for Medicaid coverage. Gladowski appealed the decision to an administrative law judge (ALJ), who […]
White, a British citizen and a legal permanent resident of the United States entered the United States in 1991.She was issued a green card and resided in the U.S. continuously. When she applied for Medicaid, she was denied eligibility because she had not resided in the U.S. cotinuously for five years as provided for in […]
The Georgia Supreme Court granted certiorari to consider whether the Court of Appeals properly interpreted 42 USC § 1396p with respect to whether a Medicaid applicant’s purchase of an annuity was subject to an asset transfer penalty. In this case, the Georgia Department of Human Services, Family and Children Services (“DFCS”) granted appellee Jerry L. […]
Corrine Barber died on June 22, 2005. Her Will left the bulk of her estate to her youngest child, Alecia Holmes (fathered by Adams). When Alecia offered the Will for probate, Corrine’s four older children (fathered by Barber) filed a caveat. They contended the Will was invalid due to undue influence. The probate court granted […]
In November 2002, Mrs. Medder’s husband died. Her husband left her real estate and personal property in his Will. In May, 2003, Mrs. Medders filed a renunciation and disclaimer “renouncing” the gift in her husband’s Will. Less than three years after the renunciation, Mrs. Medders applied for Medicaid. When Mrs. Medders applied for Medicaid, the […]
Richard J. Medalie, brought suit under the Medicare Secondary Payer statute (the “MSP”) against the drug companies that developed, manufactured, and marketed the drug Baycol. Following its decision in Stalley v. Catholic Health Initiatives, Nos. 06-3884, 06-4121, 2007 U.S. App. LEXIS 27331, 2007 WL 4165751 (8th Cir. Nov. 27, 2007), the Court held that an MSP […]
This case involves an insurance coverage dispute after Freddie Mae Burns died at Leland Health Care Center, a 128-bed skilled nursing facility, due to excessive heat. Teresa Johnson, administrator and former director of nursing, was responsible for controlling the HVAC settings and failed to set them properly during a heat wave. Leland Health Care, LLC, […]
Jury returned a defense verdict and Plaintiff appealed challenging two issues concerning the exclusion of evidence. Plaintiff contended it was error to exclude evidence that another resident inappropriately touched the resident, as well as evidence of subsequent similar acts. Plaintiff also argued that the trial court erred by going forward with the trial while there […]
Walter M. Clark v. Tirr Rehabilitation Center Plaintiffs sued alleging that resident, who had osteoporosis, was negligently dropped by a physical therapist. The trial court dismissed the suit for failure to file an expert witness report. Plaintiffs argued an expert report was not necessary because the claim was for ordinary negligence. Although the injury occurred […]
Margie Mary Anderson started receiving Medicaid benefits on January 1, 1994. She died on February 21, 2004. Prior to Ms. Anderson’s death, benefits in the amount of $99,345.81 were paid to her medical providers on her behalf by the Tennessee Bureau of TennCare. In June, October and November of 2003, TennCare sent letters to Henkel’s […]
Mary Virginia Jones Henkel started receiving Medicaid benefits on July 1, 1991. She died on February 19, 2003. In March of 2003, her Conservator sent the Tennessee Bureau of TennCare a copy of the final accounting for Henkel’s conservatorship. TennCare responded by sending a printout of medical services paid by the State to the conservator, […]
On appeal, the issue was the validity of an arbitration agreement entered into by Dorothy Necessary (“Plaintiff”) while signing documents on her husband’s behalf to have him admitted to a skilled nursing facility. Necessary had her husband’s oral express authority to sign all paperwork necessary for his admission to the facility. She claimed that this […]
The Estate of Clifford Ward filed a wrongful death case against a nursing home and corporate defendants in the Rutherford County Circuit Court. The four defendants were National Healthcare Corporation; NHC/Delaware, Inc.; NHC, Inc.; and National Healthcare/Knoxville, LLC. In the complaint, the plaintiffs alleged that the defendants were joint venturers with an equal right to […]
Stinson, a 75 year old who was struck by another resident, fell and broke her hip. She died four months later. The resident who struck her, Johnson, had been approved for placement at the nursing home after he was evaluated by the State. Gensis was under contract with Life Care to provide mental health services […]
On appeal, the Supreme Court of Tennessee found that the primary issue was whether a durable power of attorney for health care authorized the attorney-in-fact to enter into an arbitration agreement as part of a contract admitting the principal to a nursing home and thereby to waive the principal’s right to trial by jury. The […]
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