Important Court Case: Right to Appeal Lost after Medicaid Denial When Nursing Home Handled the Application

This edition of the Koldin Report E-Newsletter discusses an important court case showing what can go wrong when you have a Nursing Home handle your Medicaid application and you are not represented by an Attorney.

All prior newsletters are saved on our website. You can read them by clicking here.

In a recent New York Appellate Court case titled, "Matter of Arthur D. Breier," the Power of Attorney for the Medicaid Applicant retained the Nursing Home to handle filing the Medicaid application. The Medicaid case was denied for failure to submit proper documentation.

Neither the Applicant nor the Power of Attorney received a copy of the Medicaid denial notice from the Medicaid Agency or from the Nursing Home.

Under New York law, you have 60 days to ask for a Fair Hearing to challenge a Medicaid denial. The Nursing Home failed to ask for a Fair Hearing.

The Applicant and the Power of Attorney did not ask for a Fair Hearing within the 60 day deadline because they did not know about the Medicaid denial.

The Medicaid Applicant’s appeal to the New York Appellate Court argued that the 60 day deadline to appeal should be waived because the Medicaid Agency did not send a copy of the denial notice to the Applicant or to the Power of Attorney.

The Court held that once the Nursing Home was retained to be the Applicant’s representative to file the Medicaid application, the Medicaid denial notice only needed to be sent to the Nursing Home and the deadline to appeal is not waived. Therefore, the Medicaid Applicant lost the right to appeal the Medicaid denial of coverage.

The important message of this case is that the Nursing Home is not your advocate and families can lose some or all of their life savings when they are not represented by an Attorney.

To make matters worse, some Nursing Homes have begun to refer their residents to non-lawyer companies to handle the Medicaid application process and this can lead to disastrous results.

These non-lawyer companies are not your advocates. They do not provide you with legal advice on how to protect some or all of your life savings. The job of these companies is to monitor the spending away of your life savings on your Nursing Home bills down to the Medicaid eligibility levels ($15,450 for a single person in 2019) and then handling the Medicaid application process on your behalf.

You have the right to retain your own attorney who will act in your interest.

Nursing home patients and their families are told it is too late to protect any of the life savings because they did not plan at least 5 years in advance. This is not true.

An attorney who is well versed in the Medicaid laws can act as your advocate to provide you with your legal rights to protect some or all of your life savings even when you are already in a nursing home.

It is still possible to save some or all of your life savings even after you are in a Nursing Home. You should never assume it is too late. There are many asset preservation options even if you are already in a Nursing Home such as:

Spousal Refusal

Purchasing Special Annuities

Promissory Notes

Purchasing Exempt items

Transferring the family home and other assets to an exempt person

Special Rules for Retirement Accounts

Fair Hearings to raise the amount of savings the at home spouse can keep

Purchasing a Life Estate in someone else's home

These special asset protection options require knowledgeable legal advice. Selecting the appropriate options to protect some or all of your life savings are complex decisions, but can be very effective and successful. However, when you do not receive advice and representation by an attorney who is knowledgeable in the Medicaid laws, you put yourself at risk of losing your entire life savings.

When the Koldin Law Center, P.C. handles a Medicaid case, we not only handle the entire application process, but we also review asset protection options with our clients. We review with our clients who are already in a Nursing Home options to protect some or all of their assets beyond merely establishing Medicaid eligibility.

At the Koldin Law Center, P.C. located in East Syracuse, New York, we have over 50 years of experience helping individuals plan for immediate crisis and long term care. Our attorneys are available to discuss your estate planning options. We do not charge a fee for the initial consultation. We welcome your children, family attorney, accountant, and/or financial planner to be present at the initial consultation.

There is something you can do.

Our Attorneys are available to speak to your organization

Our Attorneys speak to groups throughout New York State as a public service. If you would like to arrange for one of our Attorneys to speak to your group, please contact our office.

We appreciate your referrals

We have been told by many clients who are in a crisis that they wish they had known about our firm much sooner. We are proud of the many families we have helped in times of crisis.

We are also proud of the many families we helped avoid financial crisis by doing estate planning in advance.

We all share the responsibility for making our family and friends aware of the planning options available to them.

Your referral to the Koldin Law Center could make a major difference in the lives of your family and friends if they are someday faced with a long term illness.

Remember that the Koldin Law Center offers many services for clients of all ages. Our services range from basic estate planning such as a simple will to complex estate planning including asset preservation planning.

THERE IS NO FEE FOR THE INITIAL CONSULTATION