Massachusetts NAELA Publications

April 2009

Marie Winfield & Another vs. Elder Services Of Merrimack Valley, Inc. SJC Rescript Opinion SJC-10501 April 9, 2010 2010_04_01

Affirming single justice who denied extraordinary superintendence relief to couple who were evicted from apartment of 90 year old woman, based on ex-parte protective services complaints in Probate Court. SJC found important questions regarding the protective services statute for abused elderly persons, G.L. c. 19A, §§ 14-26; the role of protective services agencies such as ESMV; and the process that was afforded to the petitioners (Winfields), and directed them to file a full appeal of the "disposition that has lasting adverse consequences for them."

Estate Settlement

Cascio v. D'Arcangelo
Mass App. Court Unpublished Decision (March 30, 2010) 2010_04_03

Affirming Superior Court ruling that Daughter's promise to take title and distribute the proceeds after her parents death benefitted her parents sufficiently to constitute adequate consideration. Mother and Father wanted to protect their home from a Medicaid lien, so they conveyed home to Daughter, Bianca. On the same date, Bianca, her siblings and her parents entered into an agreement providing that after Father and Mother died, Bianca would sell the house and split the proceeds equally with her three siblings; the agreement provided that it could only be modified in writing by all of the parties. The parents then executed Wills leaving their remaining estate in equal shares to their four children. After Mother died, Father, Bianca and one of the other daughters executed an amendment to the agreement purporting to change the agreement so that Bianca received 60% of the sale proceeds and one daughter received 40% of the proceeds. Following Father's death, the other daughters sought to enforce the original agreement. Court rejected Bianca's argument that original agreement was unenforceable because there was no consideration. Court didn't need to decide if the agreement created a trust.

Baystate Medical Center , Inc. Vs. Song Waterwood 09-P-1263 76 Mass. App. Ct. 1120 2010_04_07

Dismissing guardianship petition filed by hospital for lack of standing; respondent had been discharged.

Letter from NAELA to Laura Urich Daly, Esq. 2010_04_16

Pass Throughs and Special Industries concerning the new Internal Revenue Code 1022 which replaces IRC Section 1014, and whether any basis increase is allocable to the home upon the death of a life tenant or an income beneficiary of an irrevocable trust.

Appeal Decision - April 22, 2010 -  Hearing Officer: Stanley M. Kallianidis 2010_04_15

Rescinding termination of benefits and penalty period that had been assessed against nursing home resident, after the sale of her house. Appellant owned a .24319 fractional  life estate in the house, which yielded $48,000 after closing  costs.

Hearing Office concluded appellant was responsible for, and acted properly in paying off all of her water, sewer, taxes and betterment charges totaling $21,000. Remaining $27,000 was "reduced by paying off her  medical and legal expenses, a prepaid funeral expense, and by depositing funds in a pooled trust to which MassHealth had approved the appellant as  a beneficiary. The appellant's pooled trust approval was verified by the  MassHealth representative."

"As an approved beneficiary of a pooled  trust, the appellant could have simply transferred these assets into the trust and have them not be countable. Accordingly, the property payments were permissible because qualifying for MassHealth did not factor into these transactions."

Appellant's Memorandum - April 12, 2010 2010_04_15A

Outlining procedural history of the case.

Appeal Decision - April 22, 2010 -  Hearing Officer: Stanley M. Kallianidis 2010_04_15

Rescinding termination of benefits and penalty period that had been assessed against nursing home resident, after the sale of her house. Appellant owned a .24319 fractional  life estate in the house, which yielded $48,000 after closing  costs.

Hearing Office concluded appellant was responsible for, and acted properly in paying off all of her water, sewer, taxes and betterment charges totaling $21,000. Remaining $27,000 was "reduced by paying off her  medical and legal expenses, a prepaid funeral expense, and by depositing funds in a pooled trust to which MassHealth had approved the appellant as  a beneficiary. The appellant's pooled trust approval was verified by the  MassHealth representative."

"As an approved beneficiary of a pooled  trust, the appellant could have simply transferred these assets into the trust and have them not be countable. Accordingly, the property payments were permissible because qualifying for MassHealth did not factor into these transactions."

Appellant's Memorandum - April 12, 2010 2010_04_15A

Outlining procedural history of the case.

Appeal Decision - April 22, 2010 -  Hearing Officer: Stanley M. Kallianidis 2010_04_15

Rescinding termination of benefits and penalty period that had been assessed against nursing home resident, after the sale of her house. Appellant owned a .24319 fractional  life estate in the house, which yielded $48,000 after closing  costs.

Hearing Office concluded appellant was responsible for, and acted properly in paying off all of her water, sewer, taxes and betterment charges totaling $21,000. Remaining $27,000 was "reduced by paying off her  medical and legal expenses, a prepaid funeral expense, and by depositing funds in a pooled trust to which MassHealth had approved the appellant as  a beneficiary. The appellant's pooled trust approval was verified by the  MassHealth representative."

"As an approved beneficiary of a pooled  trust, the appellant could have simply transferred these assets into the trust and have them not be countable. Accordingly, the property payments were permissible because qualifying for MassHealth did not factor into these transactions."

Appellant's Memorandum - April 12, 2010 2010_04_15A

Outlining procedural history of the case.

Hearing Decision – Taunton, April 2, 2010 -  Hearing Officer: Stanley M. Kallianidis 2010_04_14

$2,857/month assisted living fee creates "exceptional circumstances" for community spouse, who is  therefore entitled to keep all $210,648 of excess assets. The excess assets produce monthly income of only $201.87, using BRMI for 2 year CDs. Testimony established that spouse needed assisted living due to physical frailty.

It is not clear what portion of the assisted living fee is for  rent, so it cannot be combined with federal standards to arrive at a new MMNA, but testimony established "exceptional circumstances" arising from "medical condition, frailty or similar special needs of the community spouse."

Therefore, nursing home spouse has patient paid amount of  zero.

Fair Hearing Decision, Springfield - April 16, 2010 - Brook Padgett, Hearing Office 2010_04_08

Granting an increased MMMNA, based on exceptional circumstances, 130CMR 520.017(D)(1). Under "income first" regs, Community Spouse must include interest income generated by any asset allowance, based on highest rate quoted in Bank Rate Monitor Index (BRMI). If that monthly income is still below the MMMNA, then the Community Spouse is entitled to income from the institutionalized Spouse's income (after reduction of the $72.80 PNA) in an amount that would increase the Community Spouse's total income to a level equal to the MMMNA. The Community Spouse's income including income generated from retained assets is below recalculated MMMNA. She is entitled to a portion of the Appellant's income ($170.98) to increase the level of monthly income to the MMMNA.

Appeal  Decision - Feb. 26, 2010 - Hearing Office: Stanley M.  Kallianidis 2010_04_10

Appellant's household had $610,429.00 in countable assets  at the time of her requested eligibility date. Her community spouse,  age 71, has physical and cognitive impairments requiring assistance with  most ADLs. His mortgage, insurance escrow and RE taxes total $2,500.00  monthly. These are shelter costs that are by regulation "necessities." Spouse is entitled to keep all excess assets, which produce only $490.55  using 2 1/2 year BRM rate. Maximum MMNA does not apply to cases brought  to hearing.

You've Been  Served With A Subpoena! What To Do? 2010_04_04

Discussing cases that  challenge a will or estate planning, including assessment of party seeking  discovery a. (Testator, Beneficiary/Beneficiaries,. Third Parties), and your role and duty to your client (Draftsman, Executor, Attorney);  responses to deposition and document discovery under Mass.R.Civ.P. 45(b), Attorney-Client Privilege Issues Relative to Attorney/Witness Testimony; deposition and trial  testimony responses.

Ethical Issues For Attorneys In  Contested Estate Matters 2010_04_05

Ethical checklist for will and document drafting and conduct upon death of client.

Protecting The Validity Of Your Clients' Documents 2010_04_06

Competence, undue influence and procedures to follow when drafting and executing wills, trusts and other documents.

Cascio v. D'Arcangelo
Mass App. Court Unpublished Decision (March 30, 2010) 2010_04_03

Affirming Superior Court ruling that Daughter's promise to take title and distribute the proceeds after her parents death benefitted her parents sufficiently to constitute adequate consideration. Mother and Father wanted to protect their home from a Medicaid lien, so they conveyed home to Daughter, Bianca. On the same date, Bianca, her siblings and her parents entered into an agreement providing that after Father and Mother died, Bianca would sell the house and split the proceeds equally with her three siblings; the agreement provided that it could only be modified in writing by all of the parties. The parents then executed Wills leaving their remaining estate in equal shares to their four children. After Mother died, Father, Bianca and one of the other daughters executed an amendment to the agreement purporting to change the agreement so that Bianca received 60% of the sale proceeds and one daughter received 40% of the proceeds. Following Father’s death, the other daughters sought to enforce the original agreement. Court rejected Bianca's argument that original agreement was unenforceable because there was no consideration. Court didn't need to decide if the agreement created a trust.

Appeal Decision - March  30, 2010 - Hearing Office: Stanley M. Kallianidis 2010_04_09

Excess assets in  revocable trust were $143,491.00 after the appellant was allotted $2000.00. Appellant argued that no trust assets or income are required to  be distributed to her, therefore no trust assets should be attributed to  her regarding eligibility for MassHealth.

Even if the trust were  irrevocable it would be a countable asset because the trustee has complete  discretion to distribute income and principal to the beneficiary. The  trust was created in 2004 by appellant's brother, now deceased, who was  primary beneficiary. His daughter is the trustee who refuses to distribute  any funds to the appellant for her nursing home care even though she is  the current beneficiary. Trust assets were counted against the appellant,  based upon the trustee's discretion to revoke and/or distribute income and  principal from the trust.

If this was the appellant's trust or her  spouse's trust set up for her benefit, the assets would be countable given  the trustee's discretion. However, since the trust was established by the  appellant's brother, 130 CMR 520.024(A)(3) controls, there are no required  distributions, only discretionary ones, the trustee has refused to  distribute to appellant for nursing home care, so none of the trust's  property can be attributed to the appellant.

The Patient Protection and Affordable Care Act 2010_04_11

Summary of Provisions affecting older adults in the U.S.House of Representatives H.R.3590 health care reform bill passed on March 21,2010.

NASMD to CMS: Change Policy on Annuities 2010_04_12

Jeff Marshall’s post on the NAELA Listserv concerning a letter sent to CMS from the National Association of State Medicaid Directors (NASMD) requesting that the agency revisit its treatment of community spouse annuities.  A copy of the NASMD letter is available at www.nasmd.org/home/doc/NASMDletter to CMS annuity concerns.

Life Estate/Irrevocable Trust Step Up in Basis 2010_04_13

Letter from NAELA to Laura Urich Daly, Esq, Pass Throughs and Special Industries concerning the new Internal Revenue Code 1022 which replaces IRC Section 1014, and whether any basis increase is allocable to the home upon the death of a life tenant or an income beneficiary of an irrevocable trust.

Leslie Slavin, Trustee vs. Carol A. Beckwith & Others
SJC Rescript Opinion 2010_04_02

Following deceased settlor's intent to minimize taxes, SJC allowed Trustee's petition to reform trust so it can take advantage of credit for Tax on Prior Transfers (TPT credit), for "all or a  part of the amount of the Federal estate tax paid with respect to the  transfer of property ... to the decedent by or from a person ... who died within 10 years before or within 2 years after the decedent's death." 26  U.S.C. § 2013(a). Trust did not take into consideration circumstances  under which credits, such as the TPT credit, might be available that would  reduce the estate tax for either of Leo's daughters.

Ethical Issues For Attorneys In  Contested Estate Matters 2010_04_05

Ethical checklist for will and document drafting and conduct upon death of client.

Savage v. Oliszczak
Mass Appeals Court No. 09-P-513 2010_06_01

Contesting a will does not trigger the in terrorem clause that was written into the pour-over trust that was designated as the sole beneficiary under the will. Appeals Court affirmed Probate Court summary judgment for children of testator-grantor who contested the will. Appeals Court cautioned Court's appointment of a special master for opinion on a questions of law.

Vol. 98 - June 2, 2009; MassNAELA Newsletter

Estate Settlement

Memorandum In Support Of Petition For Partial Distribution, and copy of Plymouth Superior Court Order allowing Motion for Partial distribution. 2009_06_01
Beneficiary of will, who was live in caregiver for decedent, awarded investment account, over objection of decedent's children.

2009 MassNAELA Handouts, Brief Bank

Patterson v. Patterson
2010 Mass. App. Unpub. LEXIS 191 (March 1, 2010) 2010_03_01

July 18, 2001 - Mother executed will leaving her estate to two of her children, Linda and Sharon, disinheriting her other children (including the Plaintiff) and her husband.

July 27, 2001 - Mother was taken to another attorney, Smith, where she executed a substantially similar Will, as well as a POA. Attorney explained that she could protect her home from a Medicaid lien if property was transferred to a family member who lived with her.

2002 - Linda moved in with Mother and later  that month took Mother to Attorney Smith again, where Mother executed deed conveying West Yarmouth house to Linda, with life estate reserved.

2004  - Mother died Plaintiff, disinherited child Susan, had provided live-in  home care for Mother during 2001; she claimed the conveyance was the product of undue influence. Appeals Court affirmed trial court finding of  no undue influence, noted Linda held a POA, but it was not used to effect the transaction. Further, and accepted Attorney Smith's testimony: Linda  did not exercise undue influence over her Mother’s decision and the purpose of the 2002 deed was to avoid a Medicaid lien. Appeals Court questioned Susan's standing to challenge the deed because she had been disinherited in the 2001 Wills.

In the Matter of the Estate of Bartley J. King, SJC-10404, Jan. 27, 2010 2010_01_08

Remanding award of $510,321 attorneys fees + $64,000 costs to Norfolk Probate Court.

Motion judge had reviewed the case of a contested will, and concluded that contestants will were "excessively zealous in litigating their case" and should be jointly and severally liable to the Executrix for fees and costs of her successful defense of the will.

But the SJC keyed on the contestants' post trial motion to bifurcate the hearing on attorney fees for separate consideration of (1) the issue of whether fees should be awarded and (2) the reasonableness of the amount of the fees.

The SJC ruled that a two day hearing on fees was insufficient, because the motion judge did not separately consider whether to award attorney fees and costs. Mass. Gen. Laws ch. 215 §45 does allow fee shifting in matters relating to wills, estates and trusts, and the statute does not requite evidence of bad faith or egregious litigation activity.

But the contestants were denied the opportunity to be heard on the threshold issue, and the motion judge then did not "follow a conservative approach" in evaluating the fees that were charged by attorneys representing the Executrix.  The SJC noted the Executrix had 18 attorneys and paralegals who billed for duplication of effort and "unnecessary overlawyering."

The motion judge had denied a fee award pursuant to Mass. Gen. Laws ch. 231, §6F

How To  Connect Clients With Community Resources To Avoid Nursing Home Placement 2010_02_11

Summary of multi-site breakfast presentation explaining eligibility criteria and client suitability for MassHealth at home programs: Personal Care Attendant Program: PCA, Senior Care Options: SCO; MassHealth CHOICES and other resources available for at home elder care.

Guardianship of Kenneth K. Simon Barnstable Probate Court 05P 1100 GI1 2010_02_05

January 14, 2010 Judgment Denying Temporary Guardians First & Final Account and rejecting excessive attorney fees.

Affidavit of Brian E. Barreira, Esq., explaining fiduciary's disregard for ward's preferences and disregard of fiduciary and his counsel for ward's interests 2010_02_05 Affidavit

2005 Boston Globe Article explains family background of disputed guardianship

Letter of Paula M. Carey, Chief Justice Probate and Family Court
December 17, 2009, regarding Guardianship Petitions, role of Guardian in financial decision-making, Decree and Order of Appointment, Petition for removal/Resignation/Termination and Petition to Expand/Modify and Limit. 2010_02_01

Letter of Adam Nussenbaum, Esq.
2010_02_02A

Victor v. Dehner
Barnstable Superior Court No. 08-386, June 1, 2009 2010_01_02

Judgment on the Pleadings, Affirming MassHealth hearing officer who ruled that a trust must be solely funded by a Will in order to be exempt from the definition of a Medicaid Qualifying Trust ("MQT") under 130 CMR §520.022(B)(1) and 42 USC 1396a(k)(2) [which was repealed in 1993]. Therefore, MassHealth can count $163,077 held in a Family Trust that was established in 1981 by applicant's husband. The Trust was funded with $160,000 in cd's passing through husband's will soon after he died in Florida in 1983.

Surviving spouse is denied Medicaid for 2006 nursing home admission, because Family Trust is an MQT: Donor did not fund it solely through his will.

Applicant argued her husband created a valid pour-over trust funded by his will, and commentators are unclear whether pour over trusts will be exempted under the MQT statute.

Court affirmed hearing officer's credibility finding against witnesses who testified that trust funds came only through the will. The Family Trust document required annual accounting, but there were no accounts prior to 2006. The deficient record keeping "undercuts the credibility of the appellant's witnesses," who had testified that no assets were received by the Trust during Donor's lifetime, except for $10.

A – B configuration of trust did not matter, because Trustees had discretion over principal and income, and Cohen requires only a "peppercorn of discretion."

Court rejected characterization that $39,984 in trust distributions during 1989-1999 was a "loan" to surviving spouse, based on document she signed in 2007.

Eligibility Operations Memo 09-09 and a discussion by Tim Loff, Esq., explaining why clinical assessment by ASAPS need to be retroactive to the date of eligibility.
2009_12_04

Memo suggests solutions for conflicting eligibility dates entered on the Nursing Facility Clinical Eligibility Form (the "Screening") by the local ASAP and on the SC-1 Clinical Eligibility Date (box #22). The ASAPs are entering the date assessment the assessment was done, rather than the date the Medicaid applicant became clinically eligible (which is typically the day following the last covered Medicare date). The problem is ASAPS do not assess applicants until a Medicaid application has been submitted, and typically not until a case worker has been assigned. By the time an assessment is done, weeks have gone by since the applicant’s last Medicare/skilled date. Meanwhile, the Medicaid application has been submitted, and the eligibility date from that point of view is typically the day following the last covered Medicare date.

East Longmeadow Management Systems, Inc Hampden County d/b/a East Longmeadow Skilled Nursing Center vs. Judith S. Wilson, F/K/A Judith Anne Skipton
Hampden County Superior Court Docket 88-704 2009_12_01

Memorandum Of Decision And Order issued Nov. 20, 2009 allowing nursing home's motion for summary judgment, and denying cross motion for summary judgment by surviving spouse of nursing home resident. Mass. Gen Laws ch. 209, § 1 explicitly expanded common law standard, imposing joint and several liability for necessaries on both spouses. Widow can be held liable for the full cost of necessaries furnished to nursing home resident (husband) prior to his death. Material facts remain in dispute as to the expenses owed and on the issue of possible insurance coverage for those expenses, so the Court will not award summary judgment on those matters.

Hobbs v. Zenderman (10th Cir. 2009)
Federal Appeals court affirms summary judgment in favor of New Mexico Medicaid. The state may regard 1396p(d)(4) trust as a countable resources, and plaintiff cannot challenge termination of SSI and Medicaid in § 1983 suit. 2009_11_04

New Mexico Medicaid ruled $2,000 / month payments to mother from $1.1 million (d)(4)(a) trust for care of her severely disabled child, and other trust expenditures for home expenses, were not for beneficiary's sole benefit.

Mrs. Hobbs helps son with dressing, bathing, monitors for seizures, transports him to school, trains school personnel to deal with child’s disability. Trust funds also used to purchase 50% interest in the Hobbs' home, furnishings, homeowner insurance, maintenance, improvement, life insurance on parents. Payments to Mrs. Hobbs were not for the sole benefit of Hobbs." A trust is considered established for the sole benefit of a spouse or disabled child if trust benefits no one but that individual, at the time the trust is established or any time in the future.

Rejects district court cases that found a civil right enforceable under § 1983.  See Mendez v. Brown, 311 F. Supp. 2d 134 (D. Mass. 2004).

The Rights Of Massachusetts Nursing Home Residents: Legalities Vs. Realities 2009_11_03

Advocating for residents: The law v. Real Life, Nursing home admissions process, source of payment, the "responsible party" problem, discharge/transfer when Medicare coverage ends, discontinuing skilled services when Medicare coverage ends, involuntary transfers, evicting the "problem" resident

The Rights Of Massachusetts Nursing Home Residents: Legalities Vs. Realities 2009_11_03

Advocating for residents: The law v. Real Life, Nursing home admissions process, source of payment, the "responsible party" problem, discharge/transfer when Medicare coverage ends, discontinuing skilled services when Medicare coverage ends, involuntary transfers, evicting the "problem" resident

Gauthier v.  Dehner
Norfolk Superior Court 2009-00542. Judge Elizabeth Bowen Donovan 2010_02_12

Feb. 19, 2010. Memorandum of Decision and Order Denying Plaintiff's Motion for Judgment on the Pleadings and Affirming MassHealth hearing officer who imposed $182,000 transfer penalty on Medicaid applicant. Care Agreement was invalid. At the time the Agreement was executed the applicant did not have mental capacity and there was no conservator appointed to act on her behalf. Thus, no evidence to suggest  the transfer to her son was in her best interest or intended to pay for her care pursuant to the Care Agreement. It is clear from the record that her son intended on making his mother comfortable and safe in his home but  the plaintiff had the burden of proof to persuade the hearing officer that she intended, at the time the services were rendered, to pay for the work. 130 Code Mass. Regs. § 520.019(C), (F). Nothing in the record demonstrates intent at the time she transferred the money.

Creating Family Care Contracts – The Legal And Care Management Components 2009_11_02

Presentation to MassNAELA and Geriatric Caremanagers of New England, November 4, 2009, Framingham, Mass. Family and client options to pay caregivers pursuant to personal service contracts, legal elements of a personal services contract, the supporting assessment and valuation of services, collaborative possibilities for elder law attorneys and GCMs

Shelales vs. Director Of The Office Of Medicaid
Massachusetts Appeals Court No. 08-P-2052 - October 30, 2009. 2009_11_01

2009_11_01_Appellant_Brief

Affirming Superior Court and MassHealth board of hearings. Asset transfer penalty period begins to run when Medicaid applicant's prepayment runs out. Court affirmed MassHealth interpretation of 130 CMR § 520.019(G)(3): date on which the prepayment is exhausted is "the date on which the individual is otherwise eligible for MassHealth payment of long-term care services."

Timeline:
Dec. 7, 2006 – nursing home admission

Jan. 11, 2007 - $41,993 gift to children, and $50,447 prepayment to nursing home

April 30, 2007 – applicant applied for MassHealth benefits, requesting coverage retroactive to Jan. 11, 2007

Parties agree transfer penalty period is 164 days. Court holds applicant ineligible for benefits for 164 days beginning June 28, 2007, the day after applicant's prepayment was exhausted.

Court rejected applicant argument that penalty period began Jan. 12, 2007, the day following the gift transfer, and that MassHealth's interpretation of regulation is inconsistent with Federal Medicaid law.

Court concluded that applicant's interpretation is not the only reasonable way to construe regulation and governing Federal law. "MassHealth's interpretation of its own regulation is reasonable." "[C]ourt must show deference to the experience, technical competence, specialized knowledge, and discretionary authority conferred upon the regulatory agency. . . . Nothing in the Federal [DRA] legislation precludes a State plan that commences the ineligibility period for disqualifying transfers by reference to whether  the applicant is "otherwise eligible for [State] payment of long-term care services." § 520.019(G)(3). Indeed, MassHealth's interpretation of its parallel regulation is consonant with the expressed purpose of delaying or even obviating the need for taxpayer- financed care."

Maguire vs. Director of The Office Of Medicaid
Essex Superior Court reserved decision on applicant's Motion for Judgment on the Pleadings, and Remanded to MassHealth Hearing Officer to develop a more substantial record. 2009_09_05

Administrative record was poorly developed by MassHealth and Applicant.

Mailing addresses were the only evidence of daughter's residence, and that  was not substantial evidence to decide whether daughter was Caregiver Child for two years prior to mother's admission to nursing home in 2007.

Theresa Ford vs. Commissioner Of The Division Of Medical Assistance.
Massachusetts Appeals Court Unpublished Decision 08-P- 2091 2009_12_02

Affirming Superior Court decision that trust that the plaintiff (Medicaid applicant)  and her husband established in 1990 was a self-settled trust giving its trustee discretion to pay trust assets back to the settler. Such assets are countable against the settler. Applicant argued that the family trust was funded when it was formed in 1990, and trust's was given equitable interest in the family home. Under pre-1993 standards of Cohen and Lebow, if there is any way trustee could distribute trust assets to the grantor, those assets count in calculating grantor's Medicaid eligibility.

Also, 2005 sale of the family home was a 'disqualifying transfer' that independently prevented Medicaid eligibility, because applicant sold it to her son for far less than its market value. Applicant's retained life estate in the home suppressed market value, and was a countable asset.

Hearing Decision - Taunton 2009_09_01

130 CMR 520.019(D)(4) allows transfers to trusts created for any permanently disabled person under age 65, but trust must be for sole benefit of disabled person. Further, trust must be actuarially sound, based on life expectancy of disabled person. $613,900 transfer to trust and disabled son-in-law were disqualifying.

The Irrevocable Trust  for benefit of son-in-law had Medicaid payback clause covering the beneficiary (son-in-law), but "Power to Terminate small trusts" clause, "Disclaimers by Beneficiaries" clause, distribution to remainder beneficiaries after disabled person's death, and grantor's retained life estate in house transferred to the trust are deemed disqualifying.

Hearing office rejects MassHealth position that "disabled person" in 520.019(D)(4) = only the applicant.

Clark vs. Director of the Office of Medicaid
Memorandum Of Decision And Order On Plaintiff's Motion For Judgment On Pleadings. 2009_08_01

Middlesex superior Court overturns MassHealth's finding of a disqualifying transfer, where the applicant's spouse received fair market value.

The value of the transfer is set by the note obligation that equals or exceeds the fractional property interest transferred. The period allowed to pay for the transfer of the 44% of the property was actuarially sound and the newly structured transaction cured the original disqualifying transfer.

Amended promissory note had an express provision making it not cancelable upon death.

Family members and estate planners can rely on MassHealth regulation as allowing transfers between family members as long as the expressed conditions of the regulation are met.

Nothing in the regulations require a mortgage as security for a promissory note.

The regulation does not make family members ineligible to meet the conditions required for promissory notes.

Clark v. Denher, Director Of The Office Of Medicaid
Case Commentary Memorandum - October 5, 2009 2009_08_01A

Muriel Doherty vs. Director of the Office of Medicaid
Essex Superior Court and Massachusetts Appeals Court
Restatement of the William A. Doherty and Muriel S. Doherty Family Trust dated April 12, 2000, Promissory Note dated May 18, 2004, Muriel S. Doherty Family Trust 2005 Income Statement, and Amortization Schedule dated May 1, 2006 [from Joint Appendix pages 1 - 23] 2009_07_01

Office of Medicaid Board of Hearings Decision dated December 14, 2006 [from Joint Appendix  pages 24 - 32] 2009_07_02

Essex Superior Court, Notice of Docket Entry, and Judge Richard E. Welch III, Memorandum of Decision and Order on Parties' Cross Motions for Judgment, dated February 29, 2008 Affirming MassHealth decision denying benefits to Doherty for assets in excess of $2000, and Certified Essex County Superior Court Docket, Civil Action No. ESCV2007-00291 [from Joint Appendix pages 33 - 45] 2009_07_03

Table of Contents of the Joint Appendix submitted to the Appeals Court, and the Superior Court Docket 2009_07_04

Brief of Plaintiff / Appellant Muriel Doherty 2009_07_05

Appellant's Addendum containing Federal and State law, MassHealth Regulations, REV. RUL. 2004-44 TABLE 1, and Superior Court Decision 2009_07_06

Appeals Court Decision: Muriel DOHERTY vs. DIRECTOR OF THE OFFICE OF MEDICAID No. 08-P-939 2009_07_07

Complaint pursuant to MGL 30A filed on February 9, 2009 at Essex Superior Court 2007_07_08

Plaintiff's Memorandum of Law in Support of Motion for Judgment on the Pleadings, filed on August 31, 2007 at Essex Superior Court 2009_07_09

Brief of MassHealth, submitted to the Appeals Court on September 19, 2008 on behalf of the Director Of The Office Of Medicaid and The Executive Office Of Health And Human Services, asking the Appeals Court to affirm the decisions of the Superior Court and MassHealth 2009_07_10

Addendum attached to Brief of MassHealth, submitted to Appeals Court, containing photocopies of 42 U.S.C. § 1396p{d), 130 Code Mass. Regs. § 520.023, 42 U.S.C. § 1396a(k) (1988) and H.R. Rep. No. 99-265, pt. 1 (1985) 2009_07_11

Reply Brief of Plaintiff / Appellant Muriel Doherty submitted on October 6, 2008 to the Appeals Court 2009_07_12

Hearing Decision - Revere. December 22, 2009
2010_01_01

Applicant and her daughter purchased property for $450.000. Applicant paid $112,500 toward the purchase, and received a life estate interest. The applicant did not live in the property for at least one year after she purchased the life estate (as required by Deficit Reduction Act DRA). MassHealth denied the application due to excess assets of $464,000, the full value of the house. Applicant reapplied. The applicant then changed her interest in the property from a life estate to a joint tenant with rights of survivorship. MassHealth denied eligibility again. The hearing officer agreed that converting the ownership of the property to a joint tenancy cured the original transfer, but remanded to MassHealth to determine the extent to which the appellant's joint interest in the real estate is a countable asset.

Theresa Ford vs. Commissioner Of The Division Of Medical Assistance.
Massachusetts Appeals Court Unpublished Decision 08-P- 2091 2009_12_02

Affirming Superior Court decision that trust that the plaintiff (Medicaid applicant)  and her husband established in 1990 was a self-settled trust giving its trustee discretion to pay trust assets back to the settler. Such assets are countable against the settler. Applicant argued that the family trust was funded when it was formed in 1990, and trust's was given equitable interest in the family home. Under pre-1993 standards of Cohen and Lebow, if there is any way trustee could distribute trust assets to the grantor, those assets count in calculating grantor's Medicaid eligibility.

Also, 2005 sale of the family home was a 'disqualifying transfer' that independently prevented Medicaid eligibility, because applicant sold it to her son for far less than its market value. Applicant's retained life estate in the home suppressed market value, and was a countable asset.

Wilson vs. Director of the Office of Medicaid
Suffolk Super Court decision affirming MassHealth eligibility denial of applicant who transferred remainder interest in New Hampshire property to children. 2009_08_02

Children executed a promissory note for an amount secured by a mortgage in applicant's favor. MassHealth contended that the note has no value, because the children may not fulfill their obligations to pay, and, in the event that they default, there may not be anyone to bring suit against the children or foreclosure proceedings against the property interest put up as security.

Hearing  officer rejected applicant's valuation expert and determined that the note  has value as between Wilson and her children, but has no fair market value for MassHealth purposes. Hearing Officer gave applicant 30 days to respond in writing to MassHealth's valuation evidence and legal arguments, so decision did not deny due process.

Foley v. Dehner
26 Mass. L. Rep. 146, Hampden County Superior Court (June 3, 2009) 2009_06_05

Medicaid applicant transferred $123,486 for 1/2 interest in niece's house. Even though it was not his principal residence, the purchase of the home was not a disqualifying transfer. Joint interest was subject to right to partition. Joint interest was not purchase of a life estate.

Cardon v. Dehner
Suffolk Superior Court CV 08-3749 2010_02_06

Decision and Order in favor of Plaintiff Executor who appealed the denial of MassHealth long term care benefits, and the penalty period imposed on 95 year old applicant, who had transferred $250,000 cash in exchange for a 1/3 interest in her son's home.

Timeline: June 13, 2007 – Date of Admission to nursing home

Oct. 16, 2007 –  Date of Deed from daughter-in-law and son transferring real estate to daughter-in-law, son and his mother "as joint tenants with right of survivorship."

Nov. 1, 2007 – Requested date of eligibility for Medicaid coverage.

Feb. 2008 – Date of mother’s Application for Medicaid.

July  14, 2008 – Original Fair Hearing on denial of eligibility.

Aug. 22, 2008  – Applicant filed an appeal in Superior Court.

Sept., 2008 – Applicant's date of death.

Dec. 31, 2008 – Applicant's son appointed Executor.

March 24, 2009 – MassHealth ordered a Rehearing of eligibility denial.

May 1, 2009 –Executor's Motion to Quash Rehearing allowed in part by Superior Court, which ordered scope of the Rehearing be limited to a review of "the legal standard that was applied to evidence presented at  the original hearing."

May 4, 2009 – MassHealth Commissioner holds Rehearing, and again denies eligibility.

January, 2010 – Superior Court allows Executor's Renewed Motion for Judgment on the Pleadings and remands  to MassHealth. Court rejected MassHealth argument that purchase of 1/3 interest in the home was a disqualifying transfer that made an "available asset no longer available . . . to reduce her countable assets below" $2,000 limit for long term care coverage.

The asset was not  unavailable, because applicant could retrieve her funds through an action for partition. Mass. Gen. Laws ch 241, 1. Whether partition of her real estate interest from son and daughter-in-law was "realistic" is left to the jurisdiction of the probate or land courts.

Fair market value is "an estimate of the value of a resource if sold at the prevailing price." 130 CMR 130.515.001. Purchase price was not a disqualifying transfer, even though it was not exactly 1/3 of $812,000 assessed value of the house.

130 CMR 520.019(1)(3) (purchase of life estate) held to be  inapplicable. Citing: Foley v. Dehner, 26 Mass. L. Rep. 146, Hampden County Superior Court (June 3, 2009), where Medicaid applicant transferred $123,486 for 1/2 interest in niece's house.

MassHealth Asset Update  Form 2010_02_10

Example of Asset Verification Project that is triggering reviews of assets that were originally reported as inaccessible at the time of the original application. Example form shows how MassHealth tracked recipient's inaccessible assets (real estate in Maine that required Guardianship proceedings before it could be listed for sale).  

Cuddemi v. Dehner, Director of Office of Medicaid
Essex Superior Court, ESCV 2007-02177 January 20, 2010 2010_02_03

Vacating MassHealth decision and entering judgment for the plaintiff, who is executor of his father's estate. Decedent's spouse gave $20,000 business loan to son which was sealed by a promissory note that MassHealth should have included in Community Spouse Resource Allowance of decedent's spouse. She had only $60,000 in other countable assets. MassHealth cannot count the $20,000 loan as a transfer, so decedent has coverage for nursing home care through date of his death.

Victor v. Dehner
Barnstable Superior Court No. 08-386, June 1, 2009 2010_01_02

Judgment on the Pleadings, Affirming MassHealth hearing officer who ruled that a trust must be solely funded by a Will in order to be exempt from the definition of a Medicaid Qualifying Trust ("MQT") under 130 CMR §520.022(B)(1) and 42 USC 1396a(k)(2) [which was repealed in 1993]. Therefore, MassHealth can count $163,077 held in a Family Trust that was established in 1981 by applicant's husband. The Trust was funded with $160,000 in cd's passing through husband's will soon after he died in Florida in 1983.

Surviving spouse is denied Medicaid for 2006 nursing home admission, because Family Trust is an MQT: Donor did not fund it solely through his will.

Applicant argued her husband created a valid pour-over trust funded by his will, and commentators are unclear whether pour over trusts will be exempted under the MQT statute.

Court affirmed hearing officer's credibility finding against witnesses who testified that trust funds came only through the will. The Family Trust document required annual accounting, but there were no accounts prior to 2006. The deficient record keeping "undercuts the credibility of the appellant's witnesses," who had testified that no assets were received by the Trust during Donor's lifetime, except for $10.

A – B configuration of trust did not matter, because Trustees had discretion over principal and income, and Cohen requires only a "peppercorn of discretion."

Court rejected characterization that $39,984 in trust distributions during 1989-1999 was a "loan" to surviving spouse, based on document she signed in 2007.

Hearing Decision - Revere. December 22, 2009
2010_01_01

Applicant and her daughter purchased property for $450.000. Applicant paid $112,500 toward the purchase, and received a life estate interest. The applicant did not live in the property for at least one year after she purchased the life estate (as required by Deficit Reduction Act DRA). MassHealth denied the application due to excess assets of $464,000, the full value of the house. Applicant reapplied. The applicant then changed her interest in the property from a life estate to a joint tenant with rights of survivorship. MassHealth denied eligibility again. The hearing officer agreed that converting the ownership of the property to a joint tenancy cured the original transfer, but remanded to MassHealth to determine the extent to which the appellant's joint interest in the real estate is a countable asset.

Theresa Ford vs. Commissioner Of The Division Of Medical Assistance.
Massachusetts Appeals Court Unpublished Decision 08-P- 2091 2009_12_02

Affirming Superior Court decision that trust that the plaintiff (Medicaid applicant)  and her husband established in 1990 was a self-settled trust giving its trustee discretion to pay trust assets back to the settler. Such assets are countable against the settler. Applicant argued that the family trust was funded when it was formed in 1990, and trust's was given equitable interest in the family home. Under pre-1993 standards of Cohen and Lebow, if there is any way trustee could distribute trust assets to the grantor, those assets count in calculating grantor's Medicaid eligibility.

Also, 2005 sale of the family home was a 'disqualifying transfer' that independently prevented Medicaid eligibility, because applicant sold it to her son for far less than its market value. Applicant's retained life estate in the home suppressed market value, and was a countable asset.

Maguire vs. Director of The Office Of Medicaid
Essex Superior Court reserved decision on applicant's Motion for Judgment on the Pleadings, and Remanded to MassHealth Hearing Officer to develop a more substantial record. 2009_09_05

Administrative record was poorly developed by MassHealth and Applicant.

Mailing addresses were the only evidence of daughter's residence, and that  was not substantial evidence to decide whether daughter was Caregiver Child for two years prior to mother's admission to nursing home in 2007.

Re-Hearing Decision - Tewksbury 2009_09_02
130 CMR 520.019(D)(4) allows transfers to trusts created for any permanently disabled person under age 65, and trust  for the benefit of appellant's daughter's brother-in-law meets this exemption.

Federal law, 42 USC 1396p(c)(2)(B) clearly states "a trust . . . established solely for the benefit of an individual under age 65 years of age who is disabled" and transfer of $263,540 falls within definition of permissible transfer.

Whether the trust meets the "for sole benefit"  of the disabled individual was not discussed at rehearing.

Hearing Decision - Taunton 2009_09_01
130 CMR 520.019(D)(4) allows transfers to trusts created for any permanently disabled person under age 65, but trust must  be for sole benefit of disabled person. Further, trust must be actuarially  sound, based on life expectancy of disabled person. $613,900 transfer to  trust and disabled son-in-law were disqualifying.

The Irrevocable Trust  for benefit of son-in-law had Medicaid payback clause covering the  beneficiary (son-in-law), but "Power to Terminate small trusts" clause, "Disclaimers by Beneficiaries" clause, distribution to remainder beneficiaries after disabled person's death, and grantor's retained life estate in house transferred to the trust are deemed disqualifying.

Hearing office rejects MassHealth position that "disabled person" in 520.019(D)(4) = only the applicant.

Wilson vs. Director of the Office of Medicaid
Suffolk Super Court decision affirming MassHealth eligibility denial of applicant who transferred remainder interest in New Hampshire property to children. 2009_08_02

Children executed a promissory note for an amount secured by a mortgage in applicant's favor. MassHealth contended that the note has no value, because the children may  not fulfill their obligations to pay, and, in the event that they default, there may not be anyone to bring suit against the children or foreclosure proceedings against the property interest put up as security.

Hearing  officer rejected applicant's valuation expert and determined that the note  has value as between Wilson and her children, but has no fair market value  for MassHealth purposes. Hearing Officer gave applicant 30 days to  respond in writing to MassHealth's valuation evidence and legal arguments,  so decision did not deny due process.

Clark vs. Director of the Office of Medicaid
Memorandum Of Decision And Order On Plaintiff's Motion For Judgment On Pleadings. 2009_08_01

Middlesex superior Court overturns MassHealth's finding of a disqualifying transfer, where the applicant's spouse received fair market value.

The value of the transfer is set by the note obligation that equals or exceeds the fractional property interest transferred. The period allowed to pay for the transfer of the 44% of the property was actuarially sound and the newly structured transaction cured the original disqualifying transfer.

Amended promissory note had an express provision making it not cancelable upon death.

Family members and estate planners can rely on MassHealth regulation as allowing transfers between family members as long as the expressed conditions of the regulation are met.

Nothing in the regulations require a mortgage as security for a promissory note.

The regulation does not make family members ineligible to meet the conditions required for promissory notes.

Clark v. Denher, Director Of The Office Of Medicaid
Case Commentary Memorandum - October 5, 2009 2009_08_01A

Muriel Doherty vs. Director of the Office of Medicaid
Essex Superior Court and Massachusetts Appeals Court
Restatement of the William A. Doherty and Muriel S. Doherty Family Trust dated April 12, 2000, Promissory Note dated May 18, 2004, Muriel S. Doherty Family Trust 2005 Income Statement, and Amortization Schedule dated May 1, 2006 [from Joint Appendix pages 1 - 23] 2009_07_01

Office of Medicaid Board of Hearings Decision dated December 14, 2006 [from Joint Appendix  pages 24 - 32] 2009_07_02

Essex Superior Court, Notice of Docket Entry, and Judge Richard E. Welch III, Memorandum of Decision and Order on Parties' Cross Motions for Judgment, dated February 29, 2008 Affirming MassHealth decision denying benefits to Doherty for assets in excess of $2000, and Certified Essex County Superior Court Docket, Civil Action No. ESCV2007-00291 [from Joint Appendix pages 33 - 45] 2009_07_03

Table of Contents of the Joint Appendix submitted to the Appeals Court, and the Superior Court Docket 2009_07_04

Brief of Plaintiff / Appellant Muriel Doherty 2009_07_05

Appellant's Addendum containing Federal and State law, MassHealth Regulations, REV. RUL. 2004-44 TABLE 1, and Superior Court Decision 2009_07_06

Appeals Court Decision: Muriel DOHERTY vs. DIRECTOR OF THE OFFICE OF MEDICAID No. 08-P-939 2009_07_07

Complaint pursuant to MGL 30A filed on February 9, 2009 at Essex Superior Court 2007_07_08

Plaintiff's Memorandum of Law in Support of Motion for Judgment on the Pleadings, filed on August 31, 2007 at Essex Superior Court 2009_07_09

Brief of MassHealth, submitted to the Appeals Court on September 19, 2008 on behalf of the Director Of The Office Of Medicaid and The Executive Office Of Health And Human Services, asking the Appeals Court to affirm the decisions of the Superior Court and MassHealth 2009_07_10

Addendum attached to Brief of MassHealth, submitted to Appeals Court, containing photocopies of 42 U.S.C. § 1396p{d), 130 Code Mass. Regs. § 520.023, 42 U.S.C. § 1396a(k) (1988) and H.R. Rep. No. 99-265, pt. 1 (1985) 2009_07_11

Reply Brief of Plaintiff / Appellant Muriel Doherty submitted on October 6, 2008 to the Appeals Court 2009_07_12

Hearing Decision, Revere 2010_02_09

Sept. 17, 2009 Veterans Aid & Attendance benefit is noncountable income. 130 CMR 520.015(E). Hearing Office denied nursing home resident's initial argument that entire $1056 monthly payment from VA is noncountable

Attorney then submitted a letter from the VA explaining  that $661 is "pension only" and $395 is an additional aid and attendance benefit. Therefore countable VA income is $661, an PPA will be recalculated.

January 22, 2010 Letter from MassNAELA to Amy Andrade, Director, Policy Implementation and Evaluation Services Unit, Office of Medicaid, Boston 2010_02_04

Advocating that NF residents who are 65+ continue to be permitted to transfer assets to pooled trusts. Federal Medicaid law allows the establishment of certain types of trusts for disabled individuals that will not be considered countable resources for MassHealth long term care eligibility. 42 U.S.C. 1396p(d)(4)(C), 130CMR 520.023(D).

Office of Medicaid Board of Hearings Decision, November 17, 2009 - Taunton
Transfer of $207,400.22 into a trust by nursing home resident for the benefit of her daughter-in-law was not a disqualifying transfer. 2010_02_01

MassHealth's regulations do not specifically require that the permanently and totally disabled "person" defined in 130 CMR 520.019(D)(4) be the applicant, spouse or child.

There is nothing in federal law or in Transmittal 64 that leads to the interpretation that "a person" in Section 4 or "an individual in 42 U.S.C §1396p (c)(2)(B)(iv) is the applicant, spouse or child.

The transfer to an amended trust which was for the sole benefit of the daughter-in-law, who is a person under age 65 and permanently and totally disabled, qualifies as a permissible transfer (130 CMR 520.019(D)(4)).

Re-Hearing Decision - Tewksbury 2009_09_02
130 CMR 520.019(D)(4) allows transfers to trusts created for any permanently disabled person under age 65, and trust  for the benefit of appellant's daughter's brother-in-law meets this exemption.

Federal law, 42 USC 1396p(c)(2)(B) clearly states "a trust .  . . established solely for the benefit of an individual under age 65 years of age who is disabled" and transfer of $263,540 falls within definition of permissible transfer.

Whether the trust meets the "for sole benefit" of the disabled individual was not discussed at rehearing.

MassHealth Income - Patient Pay Amount

Feb. 18, 2009 letter to Allen Bryan, Department of Health & Human Services, Centers for Medicare & Medicaid Services 2009_05_02

Sullivan, regarding MassHealth's 130 CMR 520.026 (E) exclusion of "pre-eligibility" nursing home expenses. Kate Downes, Esq., Chair, Subcommittee on Reduction of Patient Pay Amount by Medical Debt

134 Practice Tips from a NAELA Un-Program 2010_02_07

Valuable ideas on elder law practice, office management, and client service.

MassNAELA Public Policy Litigation Committee Referral Criteria, Procedures, and Form 2009_09_04

Discussing the factors to consider in each potential case: Importance of legal issue to clients of NAELA members, Review for Chance of Success, Screen for Bad Facts, Timing and Resources.

In the Matter of the Estate Of Marc R. Beauregard SJC-10455; Feb. 22, 2010 2010_02_08

Affirming Probate Court dismissal of petition for probate of the will of decedent who died  June 19, 2003 at age forty, unmarried and childless, leaving his parents as his sole heirs and next of kin. Probate Court appointed decedent's father as administrator of his estate. Subsequently Knight, of the same residential address as decedent, filed a petition for probate of a "copy of a will" dated July 11, 2003. Decedent's father, mother, and his four siblings filed objections to the petition.

Probate judge concluded there was little time for the decedent to lose his will or give it to someone who suppressed or destroyed it against the decedent's wishes. The competency of the decedent and the temporal proximity of the creation of  the will and the decedent's death support the finding that the decedent destroyed the original will intending to revoke it.

Facts could have been weighed differently: if decedent were competent, as the judge found, then he likely would have destroyed any copies, as well as the original, had he intended to revoke the will. But it is not enough to show a different conclusion could have been reached by the trial court.

In the Matter of the Estate of Bartley J. King, SJC-10404, Jan. 27, 2010 2010_01_08

Remanding award of $510,321 attorneys fees + $64,000 costs to Norfolk Probate Court.

Motion judge had reviewed the case of a contested will, and concluded that contestants will were "excessively zealous in litigating their case" and should be jointly and severally liable to the Executrix for fees and costs of her successful defense of the will.

But the SJC keyed on the contestants' post trial motion to bifurcate the hearing on attorney fees for separate consideration of (1) the issue of whether fees should be awarded and (2) the reasonableness of the amount of the fees.

The SJC ruled that a two day hearing on fees was insufficient, because the motion judge did not separately consider whether to award attorney fees and costs. Mass. Gen. Laws ch. 215 §45 does allow fee shifting in matters relating to wills, estates and trusts, and the statute does not requite evidence of bad faith or egregious litigation activity.

But the contestants were denied the opportunity to be heard on the threshold issue, and the motion judge then did not "follow a conservative approach" in evaluating the fees that were charged by attorneys representing the Executrix.  The SJC noted the Executrix had 18 attorneys and paralegals who billed for duplication of effort and "unnecessary overlawyering."

The motion judge had denied a fee award pursuant to Mass. Gen. Laws ch. 231, §6F

Cuddemi v. Dehner, Director of Office of Medicaid
Essex Superior Court, ESCV 2007-02177 January 20, 2010 2010_02_03

Vacating MassHealth decision and entering judgment for the plaintiff, who is executor of his father's estate. Decedent's spouse gave $20,000 business loan to son which was sealed by a promissory note that MassHealth should have included in Community Spouse Resource Allowance of decedent's spouse. She had only $60,000 in other countable assets. MassHealth cannot count the $20,000 loan as a transfer, so decedent has coverage for nursing home care through date of his death.

Sable v. Velez
Civ. No.  09-2813 (U.S. District Court, D.N.J. Oct. 16, 2009) 2009_12_03

Six applicants for Medicaid long-term care benefits loaned funds to their respective children, in return for otherwise qualifying promissory notes. Federal Court found a factual issue in whether the promissory notes were "trust-like instruments" that would be countable resources subject to the imposition of a disqualification period. The Court remanded the case to New Jersey Medicaid with instructions to determine whether or not the loan recipients had agreed to hold the loaned funds in a fiduciary capacity, for their parents' benefit.

New Jersey Medicaid had contended the promissory notes were "legal instruments or devices similar to a trust" and therefore countable resources upon which loans New Jersey Medicaid then imposed disqualification periods.

Applicants had asked for  injunctive relief, under Sec. 1983, to enjoin New Jersey Medicaid from  imposing disqualification periods on otherwise Medicaid qualifying promissory notes. Applicants asserted that the New Jersey regulation was more restrictive than the Federal Medicaid Act permits under 42 U.S.C. §§ 1396a(a)(10)(C)(i)(III); 1396a(r)(2)(A)(i). Both sides moved for summary judgment.

The Court denied both motions, but agreed with applicants' contention that they have standing to sue under Sec. 1983 and need not exhaust state administrative remedies prior to bringing suit. Compare: Hobbs v. Zenderman (10th Cir. 2009) (no right to sue under §1983 and Mendez v. Brown, 311 F. Supp. 2d 134 (D. Mass. 2004) (district court cases that found a civil right enforceable under § 1983).

Wilson vs. Director of the Office of Medicaid
Suffolk Super Court decision affirming MassHealth eligibility denial of applicant who transferred remainder interest in New Hampshire property to children. 2009_08_02

Children executed a promissory note for an amount secured by a mortgage in applicant's favor. MassHealth contended that the note has no value, because the children may not fulfill their obligations to pay, and, in the event that they default, there may not be anyone to bring suit against the children or foreclosure proceedings against the property interest put up as security.

Hearing  officer rejected applicant's valuation expert and determined that the note  has value as between Wilson and her children, but has no fair market value for MassHealth purposes. Hearing Officer gave applicant 30 days to respond in writing to MassHealth's valuation evidence and legal arguments, so decision did not deny due process.

Clark vs. Director of the Office of Medicaid
Memorandum Of Decision And Order On Plaintiff's Motion For Judgment On Pleadings. 2009_08_01

Middlesex superior Court overturns MassHealth's finding of a disqualifying transfer, where the applicant's spouse received fair market value.

The value of the transfer is set by the note obligation that equals or exceeds the fractional property interest transferred. The period allowed to pay for the transfer of the 44% of the property was actuarially sound and the newly structured transaction cured the original disqualifying transfer.

Amended promissory note had an express provision making it not cancelable upon death.

Family members and estate planners can rely on MassHealth regulation as allowing transfers between family members as long as the expressed conditions of the regulation are met.

Nothing in the regulations require a mortgage as security for a promissory note.

The regulation does not make family members ineligible to meet the conditions required for promissory notes.

Clark v. Denher, Director Of The Office Of Medicaid
Case Commentary Memorandum - October 5, 2009 2009_08_01A

Patterson v. Patterson
2010 Mass. App. Unpub. LEXIS 191 (March 1, 2010) 2010_03_01

July 18, 2001 - Mother executed will leaving her estate to two of her children, Linda and Sharon, disinheriting her other children (including the Plaintiff) and her husband.

July 27, 2001 - Mother was taken to another attorney, Smith, where she executed a substantially similar Will, as well as a POA. Attorney explained that she could protect her home from a Medicaid lien if property was transferred to a family member who lived with her.

2002 - Linda moved in with Mother and later  that month took Mother to Attorney Smith again, where Mother executed deed conveying West Yarmouth house to Linda, with life estate reserved.

2004  - Mother died Plaintiff, disinherited child Susan, had provided live-in  home care for Mother during 2001; she claimed the conveyance was the product of undue influence. Appeals Court affirmed trial court finding of  no undue influence, noted Linda held a POA, but it was not used to effect  the transaction. Further, and accepted Attorney Smith's testimony: Linda  did not exercise undue influence over her Mother’s decision and the purpose of the 2002 deed was to avoid a Medicaid lien. Appeals Court  questioned Susan's standing to challenge the deed because she had been disinherited in the 2001 Wills.

MassNAELA Public Policy Case Bank

Medicaid Deficit Reduction Act of 2005

Wawrzynowicz v. Director of Office of Medicaid
Suffolk Superior Court case; Long-term care eligibility; disqualifying transfer of resources; deficit reduction act challenge

September, 2007 - Administrative Denial 2009_02_06

October, 2007 - Superior Court Complaint 2009_02_07

September, 2008 - Plaintiff's Memo for Judgment on Pleadings 2009_02_08

October, 2008 & January, 2009 - Defendants Opposition and Superior Court Judgment Affirming Denial of Benefits 2009_02_09

MassHealth - Transfers

Wawrzynowicz v. Director of Office of Medicaid
Suffolk Superior Court case; Long-term care eligibility; disqualifying transfer of resources; deficit reduction act challenge

September, 2007 - Administrative Denial 2009_02_06

October, 2007 - Superior Court Complaint 2009_02_07

September, 2008 - Plaintiff's Memo for Judgment on Pleadings 2009_02_08

October, 2008 & January, 2009 - Defendants Opposition and Superior Court Judgment Affirming Denial of Benefits 2009_02_09

MassNAELA Multi Site Outline

Health Care Proxy - Medical Treatment - Decision Making

After The Documents - What Comes Next In Healthcare Decision Making And End-Of-Life Planning? 2009_02_04
Outline of drafting and counseling issues, with internet  links to printed resources

MassNAELA List Serve Posting

Life Estate

Tables for single and joint life estate/remainder factors from age 55 through 100 at the Section 7520 rate  of 2.00%, which is applicable for transfers and sales made during February 2009.

Single Life 2009_02_01

Joint Life 2009_02_02

IRS Notice  2009-18 Discussing Life Estates 2009_02_03

Vol. 97 - April 16, 2009; MassNAELA Newsletter

Caregiver Agreement - Caregiver Contract

Weitzel v. Thomas Dehner,  Director, Essex Superior Court, No. 08-0627-D (December 30, 2008), J. Merita Hopkins. 2009_04_01
Payments To Daughter/POA via Power of Attorney for Caregiving Services: favorable Superior Court decision finding hearing officer's decision to adjust the value of the daughter's services down to zero on the assumption that she was entitled to nothing for the services  she provided her mother was not only arbitrary and capricious, but also  not based on substantial evidence and misapplied the law. The court  concluded: that the MassHealth regulations do not forbid children from  providing their parents with caretaking services in exchange for monetary compensation; that there was no evidence to support either that the  transfers were for anything other than fair market value, or that they were intended to cause her to qualify for MassHealth benefits.

Special Needs Trust - Supplemental Needs Trust

Trusts

A. Attardo v. R. Attardo, Suffolk Probate and Family Court, No. 08E0056GC1, J. John Smoot. 2009_04_03
Complaint In Equity To Reform Irrevocable Trust: Elder purchased  a home for his son and placed it in trust, naming his son as beneficiary in exchange for rent and repayment of the mortgage, neither of which the son/defendant fulfilled. The Court found the trust to be null and void and returned ownership to the elder. Sadly, the elder passed away two weeks before the decision was rendered.

Vol. 96 - January 22, 2009; MassNAELA Newsletter

Caregiver Agreement - Caregiver Contract

Hearing decision and memoranda where payments, made pursuant to a caregiver agreement, were deemed disqualifying transfers

MassHealth Legal's Response to Tewksbury MEC Inquiry 21 2009_01_01

MassHealth Legal's Memorandum in Preparation for Hearing 29 2009_01_02

Fair Hearing Decision 45 2009_01_03

Homestead

Housing

Hudsoncliff Building Co., Petitioner-Landlord-Respondent v Katie Houpouridou, Respondent-Tenant-Appellant; Supreme Court of NY December 16, 2008. 2009_01_05
Daughter's decision to travel to Greece to be at mother's bedside during final illness should not visit upon her the draconian penalty of forfeiture of her long-held regulated apartment

Vol. 95 - December 4, 2008; MassNAELA Newsletter

Long Term Care Insurance

1999 LTC References regarding 130 CMR 515.014 - minimum coverage requirements for MassHealth Exemptions:

Version of 211 CMR 65.04 - 65.07 in effect until Sept. 2, 1999 2008_12_01

Summary of Significant Provisions of 211 CMR 65.00 for policies in effect prior to March 15, 1999 2008_12_02

Notice of when 211 CMR 65.00 was amended 2008_12_03

List of LTCI Policies that met the requirements of 211 CMR 65.00 as of 4/13/99 2008_12_04

Marriage - MassHealth

MassHealth Eligibility - Hardship

Lusignan v. Bibgy, Director of the Office of Medicaid 2008_12_06
Bristol County Superior Court favorable decision; Board of Hearings interpretation of Hardship Waiver regulation, 120 CMR 520.019(L) was contrary of the plain terms of the regulation's first requirement and the Board's decision was based on an error of law. Discussion of personal services contracts

Vol. 94 - October 30, 2008; MassNAELA Newsletter

Marriage - MassHealth

Chapter 118E section 61
new section: definition of spouse 2008_10_01

MassHealth Eligibility - Verifications

Chapter 118E section 23A
no charge for bank account records 2008_10_02

MassHealth Penalty Period, Look Back Period, Equity Interest in Real Estate

Online Calculator you can use to calculate penalty period and any other past or future date

Medicaid Qualifying Trust

Verdow v. Sitkowy, 209 F.R.D. 309 (N.D.N.Y. 2002) 2008_10_04
Irrevocable Trust containing Limited Lifetime Power of Appointment; the retained power to change beneficiaries to individuals amenable to revoking the trust, without evidence of bad faith or fraud, does not render the trust revocable under Medicaid Qualifying Trust analysis

Nursing Home - Discharge

Special Needs Trust - Supplemental Needs trust

Hunt v. Astrue, Civil Action No. 07-11324-RCL (D. Mass. Oct. 8, 2008) 2008_10_05
Special Needs Trust created by Guardian is a Countable Resource; ward was true donor of a SNT that was created by his guardian and funded with proceeds from a malpractice lawsuit his parents filed against the hospital where ward was harmed.

Vol. 93 - September 3, 2008; MassNAELA Newsletter

Guardianship

Standing Order 05-2008 regarding medical certificates

MassHealth Eligibility - Community Masshealth

Hearing Decision May 2, 2008
Denial of community MassHealth benefits denied due to excess income 2008_06_03
Hearing Location: Tewksbury; Hearing Officer: Susan Burgess; MassHealth Representative: Sumatra Som; Appellant Representative: Barbara Jackins

MassHealth - Transfers

Januskiewicz v. Dehner, Director of Office of Medicaid, (Essex Superior Court August 8, 2008) 2008_09_02
Dismissing 30A appeal; graduation gift was disqualifying transfer. Judge: Christine Roach

Wills - Undue Influence

Germain v. Girard (Mass. App., No. 07-P-811, August 21, 2008). 2008_09_03
Undue influence and the burden of establishing the claim.

Vol. 92 - June 12, 2008; MassNAELA Newsletter

MassHealth Eligibility - Assets

Brief and Hearing Decision April 15, 2008 2008_06_03
Allowing 30A Appeal, rescinding termination of benefits; proceeds from the sale of a home of the appellant who had a life estate and those proceeds were reduced by certain costs that were 100% attributed to the value of the appellant's life estate interest.
Hearing Location: Taunton; Hearing Officer: Stanley Kallianidis; MassHealth Representative: Joyce Pereira; Appellant's Counsel: James Thrasher and Karen Wright

MassHealth Eligibility - Over Under

Hearing Decision January 10, 2008
recognition of private annuity; explanation of the "under over" rule. 2008_06_01
Hearing Location: Tewksbury; Hearing Officer: Patricia Mullen; MassHealth Representative: Carole Stoney; Appellant Representative: Todd Lutsky (Office of Leo Cushing)

MassHealth Income - Patient Pay Amount

Hearing Decision April 24, 2008
Denial of appeal; hardship argument to adjust the PPA because the community spouse had passed away and income was needed to maintain the home while it was up for sale. 2008_06_02
Hearing Location: Tewksbury; Hearing Officer: Susan Burgess; MassHealth Representative: Phyllis Eastman

Vol. 91 - April 30, 2008; MassNAELA Newsletter

Irrevocable Funeral/Burial Trust

Client memo regarding advanced funeral and burial arrangements 2008_04_02

Irrevocable Trusts

Favorable Hearing Decision involving several irrevocable trusts that gave the trustee discretion to pay principal for 30 months. 2008_04_04
Hearing Location: Revere; Hearing Officer: Susan Burgess; MassHealth Representative: Patti Young

Superior Court decision finding that the terms of an Irrevocable Trust allowed the trustee enough discretion that the assets were countable for Medicaid eligibility purposes. 2008_04_08
County: Essex; Judge: Richard Welch, III

Long Term Care Insurance

Letter to Elana Margolis, Executive Office Of Elder Affairs, Long Term Care Insurance Partnership 2008_04_01

MassHealth Eligibility - Assets

Superior Court decision finding that the terms of an Irrevocable Trust allowed the trustee enough discretion that the assets were countable for Medicaid eligibility purposes. 2008_04_08
County: Essex; Judge: Richard Welch, III

Vol. 90 - January 22, 2008; MassNAELA Newsletter

Animals

When it's all going to the dogs; Planning Estates with Pets 2008_01_01

Sullivan v. Rich 07-P-109 2008_01_06
Personal injury not actionable against decedent's estate since injury occurred after decedent died, MA Appeals Court Dec. 28, 2007

Probate Court Forms Petition for Attorney Fees 2008_01_02

Life Estate Value - Remainder Interest Value

Calculating the Value of a Life Estate or Remainder Interest in Real Estate 2008_01_03
(MassHealth Eligibility Operations Memo 07-18 Dec. 1, 2007)

MassHealth Eligibility - Assets

Revisions in Regulations about the Asset Allowance 2008_01_04 (lower interest rate to be used for calculating CSRA) MassHealth Eligibility Letter 172 Dec. 15, 2007

MassHealth Eligibility Supplemental Needs Trust

Fair Hearing Decision discussing determination of eligibility date when assets used to fund special needs pooled trust post application date 2008_01_05

NAELA News 2008 - Issue 4

Ethics

Veterans Benefits

NAELA News 2008 - Issue 3

MassHealth Eligibility Supplemental Needs Trust

NAELA Journal 2008 - Vol. IV - Number II

Client Capacity

Income Tax

Medicaid Liens - Personal Injury

Practice of Elder Law

Dinner Meeting Handout - 2002

MassHealth Eligibility - IRA - Retirement Account

Volume 48 - November 28, 2001

MassHealth Penalty Period, Look Back Period, Equity Interest in Real Estate