August 20

Medicaid Applicant with Care Agreement Assessed Transfer Penalty Because Rate Was Too High

A New Jersey appeals court rules that the state properly disregarded a Medicaid applicant’s care agreement and assessed a transfer penalty because the rate charged under the agreement was too high and the applicant did not provide enough details about the services provided in order to calculate their value. E.A. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-2669-13T3, July 20, 2015).

E.A. lived with her daughter, B.C., from 2004 until 2012. In 2006, they entered into a care agreement in which E.A. agreed to pay B.C. a monthly fee for care. The fee was based on the amount charged by a private home health care company. B.C. occasionally made larger withdrawals than the contract called for and did not keep records of the services provided. In 2012, E.A. entered a nursing home and applied for Medicaid. The state ignored the care agreement and found that B.C. had transferred a total of $244,510 to B.C. and imposed a 936-day penalty period.

E.A. appealed, arguing that the state should not have disregarded the care agreement and that the state did not calculate the worth of B.C.’s services. After a hearing, the administrative law judge ruled the penalty period was appropriate, and E.A. appealed to court.

The New Jersey Superior Court, Appellate Division, affirms the state’s decision, holding that the state properly disregarded the care agreement. According to the court, B.C. and E.A. did not comply with the agreement when B.C. made additional withdrawals, and B.C. was not entitled to the rate charged by the private home health agency because she did not provide the same full-time services as the agency. In addition, the court rules that E.A. did not provide enough details of the types of services actually provided under the care agreement for the state to calculate the value of her services.

August 17

No Medicaid Undue Hardship Exemption for Transfer to Disabled Veteran

A federal district court rules that nothing in federal law requires the state to disregard a transfer of a life estate by a Medicaid applicant to a disabled veteran, so the applicant’s federal claims are dismissed. Pike ex rel. Estate of Pike v. Sebelius (D. R.I., No. CA 13-392 S, July 16, 2015).

F. Norris Pike’s mother transferred two life estates to her granddaughter, a disabled veteran. Later Mr. Pile’s mother was admitted to a Rhode Island nursing home and applied for Medicaid benefits. The state assessed a penalty period because of the transfers and denied Mr. Pike’s appeal.

Mr. Pike filed suit in federal court, claiming that the state should have applied the Medicaid undue hardship exemption to the transfers because the granddaughter is a disabled veteran. The state filed a motion to dismiss.

The U.S. District Court, District of Rhode Island, dismisses the federal claims. According to the court, there is nothing in federal law that requires a hardship exemption for a transfer to a disabled veteran, so Mr. Pike did not state a federal claim.   

For the full text of this decision, go to:

August 15

Agency-Created Rules on Medicare Home Health Services Appeals Are Binding on Agency

Medicare home health services are available for individuals who are “confined to the home.” Medicare pays for these services through contractors known as “Medicare Administrative Contractors” (MACs). A group of individuals filed suit against the Secretary of Health and Human Services alleging the Secretary does not follow its own agency regulations governing appeals of Medicare home health services, which has resulted in improper denial of plaintiffs’ benefits. Although administrative law judges found the plaintiffs to be homebound, the contractors repeatedly denied subsequent claims for services, which plaintiffs contend is in violation of Medicare regulations. The Secretary filed this Motion to Dismiss, which was denied.

The district court held the plaintiffs, who are eligible for both Medicare and Medicaid, have standing to sue even though, as the Secretary asserted, Medicaid would likely pay their claims if they were to be denied Medicare coverage. Plaintiffs are seeking a right to Medicare coverage, and an improper denial of benefits could impose personal liability for uncovered services. Moreover, should Medicaid be forced to pay, one of the plaintiffs would be exposed to estate recovery. In addition, there are differences in the home health services provided between Medicare and Medicaid. Plaintiffs have shown a concrete injury sufficient to support standing. As for jurisdiction, although the court agreed with the Secretary that it does not have mandamus or federal question jurisdiction, the matter is properly before the court under the appeals provision of the Social Security Act found in §405(g). Lastly, the court disagreed with the Secretary’s contention that plaintiffs cannot file a claim for failure to follow interpretive rules related to MACs that do not bind the agency. The court said that it is long settled that rules promulgated by an agency that affect the rights of others are binding on the agency. The regulations governing MACs and Medicare appeals are couched in mandatory language, which, according to the court, shows the agency’s intent to be bound by these regulations.

Ryan v. Burwell
, 2015 WL 4545806 (D. Vt. July 27, 2015)

August 13

Probate Judges Have Broad Discretion to Determine Whether Plenary Hearings Are Required

The son of a ward in a contested guardianship matter appealed a probate court’s summary dismissal of his request to remove the guardian without conducting a plenary hearing. The court reasoned summary dismissal protects further depletion of the ward’s estate that would result in a contentious hearing to address arguments that had been previously decided in the initial contested guardianship application. The probate court’s judgment was affirmed on appeal.

The court held removal of a fiduciary is an “extraordinary remedy” that should only be allowed sparingly and with evidence from the applicant seeking removal, the fiduciary engaged in misconduct. However, probate matters are subject to summary actions and probate judges have broad discretion in determining whether additional plenary hearings are warranted. The son merely raised the same issues that were decided in the initial contested guardianship action and offered no credible evidence supporting removal. Also, the guardian’s yearly accountings were proper, a nursing home report contradicted the son’s assertion the ward was receiving poor care, and the court had already decided the guardian had not engaged in self-dealing. For these reasons, the probate judge properly exercised his discretion to summarily dismiss the son’s claim and deny a plenary hearing.

Matter of Scuderi, 2015 WL 4112149 (N.J. Super. App. Div. July 9, 2015)

August 10

Japan’s Elderly Cause More Crime than the Young

Japanese police took action against more pensioners than juveniles in the first six months of the year, underlining the dramatic changes in a society that is aging rapidly. A total of 23,656 people aged 65 or older were questioned in connection with a crime in the first half of 2015, according to the National Police Agency. In the same period, 19,670 youths between the ages of 14 and 19 were the subject of a police investigation. The number of young people coming to the attention of the police declined more than 15 percent, while the number of elderly getting into trouble with the law was up by 622 cases, or 2.7 percent. A growing proportion of the crimes by elderly perpetrators were listed as “violent” by police, with the total rising 10.8 percent on the previous year. Murders and robberies were up 11.8 percent, the police said. Crimes by elderly people appear to reflect the problems that beset Japanese society at the moment, including a widening gap between rich and poor.

For the article from The Telegraph, click here.