|
By John M. Bigler In determining Medicaid eligibility for Nursing Home care, it is critical to figure the period of ineligibility caused by a transfer or gift of assets. This month I am going to discuss Brown v Wing, a recent court case and how its decision impacts favorably on Medicaid planning.
Starting in 1989, when this formula was first introduced in the state of New York, the period of ineligibility has always started in the month the assets were transferred. If the formula resulted in an uneven number of months, then the answer was rounded down to the lowest month. The basis for doing this is that Medicaid regulations indicated that eligibility for at least one day in a month would allow for eligibility for the full month.
However, first the lower court and now the Appellate Division of the State of New York have determined that a plain reading of the statute clearly implies that the period of ineligibility must start the month of the transfer. According to the court, that part of the law which reads "and which does not occur in any other periods of ineligibility" could only make sense when interpreted as referring to additional transfers where the penalty for the original transfer had already begun to run in the month in which it was made. Unfortunately, the court also found that the Department of Social Services did have the right to impose partial month penalties rather than rounding down to the lower month. We can be thankful to the persistence of the claimant and the law firm that represented her, Davidow, Davidow, Seagal & Stern with offices in Islandia and Melville. The application for Medicaid was originally open one month later than requested by the Suffolk County Department of Social Services. A Fair Hearing was held and the New York State Department of Social Services affirmed the decision of Suffolk County. However, an appeal was taken to the Supreme Court, Suffolk County and the claimant was successful on that appeal. The Department of Social Services then appealed the case to the Appellate Division which affirmed the determination of the Supreme Court in favor of the claimant. However, applicants should be warned that the Suffolk County Department of Social Services is still computing the penalty starting the month after the transfer is made. The New York State Department of Social Services is refusing to acquiesce to this court decision until an appeal is heard by the highest court of the state, the Court of Appeals. It will be a number of moths before a decision is handed down from that court and the applications being made in the meantime will be processed with a less advantageous date. It remains to be seen what will happen to current applications should the Court of Appeals affirm the lower court and find in favor of claimant. Certainly, those people who have requested a fair hearing and lost at that level should be reimbursed for private payments made to the nursing home. Obviously this is an important decision and will save applicants for Medicaid one month's cost of a nursing home. With the average cost of the nursing home in Suffolk County being $256 per day, if this decision holds up, applicants for Medicaid and their planners will have won a significant victory and will enjoy significant savings. Reprinted with permission of the Suffolk Times © 1999 [ Contact Us ] [ Guestbook ] [ Email ]  The Law Offices of John M. Bigler, Attorney At Law 1421 Wantagh Avenue, Wantagh, New York 11793-2206 1-888-ELDER-LAW · 516-409-6565 · Fax: 516-409-6522 E-Mail: info@biglerlaw.com · Web Site: www.biglerlaw.com |
As we have discussed a number of times, the penalty period or period of ineligibility for nursing home care is determined by dividing the amount gifted by the average monthly cost of the nursing home (currently set by New York State as $7,225 per month on Long Island). This result represents the number of months of ineligibility.
However, several years ago, Suffolk County started to interpret the law as allowing for the transfer penalty to commence the month after the transfer was made. They base their interpretation on a provision of the federal Medicaid Law which indicates that the transfer penalty "shall begin with the first day of the first month during or after which assets have been transferred for less than fair market value and which does not occur in any other period of ineligibility." Suffolk's position, which has now been adopted throughout the state, was that the language allowed them to choose to start the penalty the month after the transfer.