In 2008, then 13-year-old Gianinna Gallardo was struck by a vehicle after getting off of a school bus, leaving her in a persistent vegetative state and unable to care for herself in any manner.  Her parents filed a lawsuit against the driver of the vehicle, the school bus driver and the school district.  The case eventually settled for $800,000, or about 4 percent of the case’s $20 million value.  Because Medicaid had provided $862,688.77 in medical payments on Gianinna’s behalf, her attorney advised the Agency for Health Care Administration (AHCA), Florida’s Medicaid agency, of the settlement.   The attorney also advised the agency that $35,367.52 of the settlement represented past medical expenses that were recoverable by AHCA.

Florida’s reimbursement statute uses a uniform formula in which the recipient’s gross settlement is first reduced by 25 percent to account for attorney fees, the remainder is divided in half, and AHCA is then entitled to recover the lesser of its total medical payments or one half.   Under this formula, AHCA would recover $323,508.29 in medical payments from Gianinna’s settlement. 

Gianinna’s parents filed suit against the agency in federal court seeking an injunction and a declaration that Florida’s reimbursement statute violates federal law inasmuch as it allows the state to recover from the portion of her settlement beyond that allocable to past medical expenses.  AHCA countered that it was entitled to satisfy its lien from the portion of the settlement representing compensation for both past and future medical expenses. The parties filed cross motions for summary judgment.

The U.S. District Court, N.D. Florida, grants the Gallardos’ motion for summary judgment and denies AHCA’s motion.  The court finds that, consistent with the U.S. Supreme Court’s decision in Arkansas Department of Health and Human Services, et al. v. Ahlborn (547 U.S. 268 (2006)), AHCA is entitled to recover for past medical payments it made on Gianinna’s behalf only from that portion of the settlement allocated to past medical expenses.  The court rules that where, as here, the state reimbursement law explicitly allows for recovery from the portion of the settlement attributable to future medical care, that portion of the state law violates, and is preempted by, federal Medicaid law.

For the full text of this opinion, click here.

R.G was the attorney-in-fact and primary caregiver for his parents. After R.G.’s mother fell ill, R.G. wanted to place his mother in a nursing home. R.G’s brother objected to this plan, but R.G. went ahead and had his mother admitted to a nursing home without his brother’s consent. R.G.’s brother sent angry and threatening texts and emails to R.G. as well as emails expressing his desire to find a way to care for their parents in their home. Eventually the men got into a physical altercation in which R.G.’s brother shoved R.G.

R.G. filed for a restraining order against his brother under the Prevention of Domestic Violence Act. The trial judge ruled that R.G. was harassed and assaulted and issued the restraining order. R.G.’s brother appealed, arguing that R.G. did not meet the definition of a victim of domestic violence.

The New Jersey Superior Court, Appellate Division, reverses, holding that R.G.’s brother’s actions did not amount to domestic violence. The court finds that there was insufficient evidence that R.G.’s brother purposely acted to harass R.G., ruling that “a mere expression of anger between persons in a requisite relationship is not an act of harassment.”

For the full text of this decision, go to: http://njlaw.rutgers.edu/collections/courts/appellate/a0945-15.opn.html

For New Jersey ElderLawAnswers member Donald D. Vanarelli’s more detailed summary of the case, click here.

The U.S. Court of Appeals for the Sixth Circuit rules that a case by the family of a Kentucky Medicaid recipient challenging the state’s adherence to federal law regarding spousal annuities rather than to a less restrictive state regulation is dismissed because federal law preempts the state regulation. Singleton v. Commonwealth of Kentucky (6^th Cir., No. 16-5596, Dec. 6, 2016).

Claude Singleton entered a nursing home and applied for Medicaid. His wife, Mary, purchased an annuity with herself as annuitant. Ms. Singleton wished to name the state as remainder beneficiary up to the amount of Medicaid paid on her behalf. State regulations provide that the state must be named remainder beneficiary for the amount of Medicaid benefits paid on behalf of the annuitant, and this did not change even after federal Medicaid law was amended in 2006 to require that states be named as a remainder beneficiary for Medicaid benefits paid on behalf of the institutionalized individual.  However, Ms. Singleton’s attorneys – the Lexington, Kentucky, ElderLawAnswers member firm of McClelland & Associates, PLLC — informed her that the state Medicaid agency’s branch manager would view structuring the annuity pursuant to the state’s regulation as a transfer for less than market value, so Ms. Singleton changed the state’s remainder beneficiary amount to Medicaid paid on behalf of Mr. Singleton.  

After Ms. Singleton died, her children, the annuity’s secondary beneficiaries, sued the secretary of the state Medicaid agency, along with other parties, in federal court, arguing that state regulations may be less restrictive than federal law and that the branch manager’s alleged policy of rejecting annuities drafted pursuant to Kentucky’s own statute was improper. The secretary of state filed a motion to dismiss, claiming immunity. The district court determined the case should not be dismissed because the secretary of state was not immune, and she appealed.

The U.S. Court of Appeals for the Sixth Circuit grants the secretary’s motion to dismiss, holding that federal law preempts the state regulation. According to the court, states may pass less restrictive laws that make additional people eligible for Medicaid, but because this regulation does not extend care to more individuals,  the secretary “was correct that federal law required her to impose a look-back penalty on couples who structured their annuities to avoid paying the state back for the cost of care.”

For the full text of this decision, go to: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0283p-06.pdf