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COA: Expenses apply under penalty period

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The Indiana Court of Appeals ruled in favor of a woman who wanted her out-of-pocket payments to a nursing facility allowed as a spend-down expense, finding the Indiana Family and Social Services Administration's denial of her request would penalize her twice.

In Bernice M. Reedy, by her next best friend Mentoria Headdy v. Indiana Family and Social Services Administration, No. 53A01-0806-CV-294, the Court of Appeals had to determine if Reedy's out-of-pocket nursing facility payments could be an allowable spend-down, or out-of-pocket expense, while she was serving out a transfer penalty period. Reedy entered a nursing home in 2005 and applied for Medicaid in 2006. For one year, her coverage wouldn't include payments for nursing facility services because she had improperly transferred money to become eligible for Medicaid; Reedy would have to pay for her care out-of-pocket during that time. Reedy also received medical assistance under Medicaid but was required to spend-down more than $3,000 a month before Medicaid would cover her other health-related services such as prescriptions.

The FSSA rejected Reedy's request to have her out-of-pocket nursing facility expenses applied toward her monthly spend-down, which was affirmed by an administrative law judge at a hearing.

The FSSA believed Reedy couldn't apply her out-of-pocket expenses while on a transfer penalty period, but there is no statute, administrative code provision, or case that addresses this issue, wrote Judge Michael Barnes. The appellate court's review of the administrative law judge's decision shows no statutory interpretation.

The Court of Appeals examined 405 Ind. Admin. Code 2-3-10(f), which defines which incurred medical expenses submitted to the county office will be credited toward the spend-down; nursing facility services and rehabilitative services are included on the list.

While under the transfer penalty, the spend-down only applies toward Medicaid's coverage of Reedy's non-nursing facility expenses, so the court "fails to see how applying the nursing facility expenses to Reedy's spend-down 'cancels out' the transfer penalty as the FSSA suggests," Judge Barnes wrote.

"Similarly, under the FSSA's approach, being subject to a transfer penalty subjects an individual to an additional punitive measure by effectively raising the spend-down to the amount of the calculated spend-down plus the individual's nursing facility expenses. The State points to no support for this double punishment, and without such we will not impose the extra burden on Reedy," he wrote.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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