ILNews

COA affirms transfer penalty for nursing home resident

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has affirmed a finding by the Family and Social Services Administration that an elderly woman was not entitled to Medicaid nursing home benefits in the eight months after she gave $35,500 to her nephew and his wife.

In the case of Lola Austin v. Indiana Family and Social Services Administration, 64A04-1008-MI-514, Lola Austin appealed the FSSA determination that the payment constituted a transfer. The FSSA’s decision had previously been affirmed by an Administrative Law Judge and a trial court.

Austin moved into the Alzheimer’s Unit of the Whispering Pines Health Care Center in September 2007, during which time her nephew and his wife, James and Julianne Mack, began building an addition onto their home. James claimed that the addition could potentially enable Austin to live in the Mack household. At the end of September, Austin signed a form naming the Macks her attorneys-in-fact.

On November 29, 2007, the Macks, signing both on their own behalf and as Austin’s attorneys-in-fact, executed a “Lifetime Care Agreement” that stated the Macks would provide a variety of services for Austin for the remainder of her life, including grooming, laundry, and personal shopping.

The agreement provided, based on Austin’s actuarial life expectancy and an average cost of $12 per hour for the services and an estimated 15 hours per week to provide them, that the total value of the services to be provided by the Macks was $41,236. However, the Macks agreed to accept only $35,500 from Austin, as that was the full extent of her savings at the time. The Macks immediately used the $35,500 to help pay for the addition to their house.

Austin’s Medicare benefits for residing at Whispering Pines ran through November 2007. On December 12, 2007, James filed an application for Medicaid nursing home benefits with FSSA on behalf of Austin. FSSA denied this application on January 24, 2008, on the basis that Austin’s resources exceeded the Medicaid eligibility limit. On April 18, 2008, James filed another application for Medicaid benefits with FSSA, retroactive to December 2007. James believed the first denial failed to consider that several checks from Austin’s checking account had been outstanding at the time of the first application, and that the cashing of those checks would have lowered her resources below the Medicaid eligibility limit. On May 19, 2008, FSSA generally approved the application. However, FSSA stated that it was imposing a transfer penalty based on the November 2007 payment of $35,500 to the Macks, which resulted in Austin being denied coverage for nursing home benefits from December 2007 through July 2008.

In its affirmation, the COA said that it believed the FSSA and the courts are justified in turning a skeptical eye toward “personal care” contracts and carefully examining whether they truly represent a fair market value exchange for cash or assets of a nursing home resident. The FSSA didn't challenge the agreement itself, but rather argued it did not have a fair market value of $35,500.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

ADVERTISEMENT