In his Elder Law
column, Daniel G. Fish discusses a decision of a Connecticut appellate
court, 'Bloomfield Health Care Center of Connecticut v. Jason Doyon',
which should serve as notice to guardians to pay close attention to the
status of potential Medicaid eligibility of wards and to seek advice
from a source that has extensive experience with the intricate
requirements of Medicaid eligibility
Photo courtesy of kenary820/Shutterstock
A decision of a Connecticut appellate court,
Bloomfield Health Care Center of Connecticut v. Jason Doyon (Conn.
App. Ct., No. AC 40281, Oct. 9, 2018) should serve as a cautionary tale
for guardians. In that case, a nursing home brought suit, outside of
the guardianship court, against a guardian for failure to timely file a
Medicaid application. The lower court dismissed the action for lack of
privity but the appellate court reversed and remanded.
‘Bloomfield’
Samuel Johnson was admitted to the Bloomfield Nursing Home in April
2013. In September of that year his daughter filed a Medicaid
application on his behalf. Medicaid denied that application in January
2014 for failure to provide information, such as an explanation of the
proceeds of the sale of Johnson’s home.
The nursing home then initiated a conservatorship proceeding to
assist Johnson in filing for Medicaid so that it could be paid. Jason
Doyon was appointed conservator in April 2014. He paid over the proceeds
of the sale of the home and Johnson’s monthly Social Security benefits
to the nursing home. He did not file a Medicaid application until
January 2015. This application was denied for failure to submit required
documentation of eligibility.
The guardian then filed a further Medicaid application in August 2015
which was approved. However, the retroactive date that Medicaid
eligibility began, May 1, 2015, left a gap in coverage and a debt owed
to the nursing home. The nursing home brought suit directly against the
guardian, in a plenary action, alleging his failure to timely file the
Medicaid application was negligent and harmed the nursing home.
The guardian filed a motion for summary judgment arguing that he owed
a duty only to his ward and had no duty of care to the nursing home.
The trial court granted his motion. holding that “the defendant’s duty,
and in fact, his authority to pursue Medicaid benefits on behalf of his
ward, does not arise out of any relationship between the plaintiff and
him, but solely from his appointment by the Probate Court as conservator
…”
The appellate court reversed, finding the nursing home had advanced
sufficient facts to demonstrate the foreseeability of harm to the
nursing home if the Medicaid application were not filed timely by the
guardian. The
Bloomfield court gave great weight to the fact
that the initial nursing home petition for the appointment of a
conservator specifically mentioned the need for the Medicaid
application; the guardian had exclusive access and control over the
patient’s assets; the guardian had paid the proceeds of the sale of the
home to the nursing home and paid the ward’s monthly Social Security
benefits to the nursing home and knew of the debt to that facility. In
this case the guardian was directly involved in the financial
relationship between the ward and the nursing home.
New York State
In New York state, suits brought against guardians by third parties
in plenary actions have been few in number and have been unsuccessful.
In
Columbia Memorial Hospital v. Barley, 790 N.Y.S.2d 576
(App. Div. 3d Dept., 2005), the plaintiff hospital sued the patient’s
guardian, the Columbia County Department of Social Services (DSS),
alleging that the guardian failed to prevent the fraudulent transfer of
the patient’s home or seek to have it set aside. DSS moved for summary
judgment in the trial court and that motion was denied. The Appellate
Division reversed and granted summary judgment to the guardian finding
that “Plaintiff’s claim against DSS for breach of fiduciary duty should
have been dismissed, however, because plaintiff neither pleaded nor
proved facts demonstrating that DSS owed a fiduciary duty to plaintiff
or had any relationship approaching privity …”
Martin v. Ability Beyond Disability, 2014 N.Y. Misc. LEXIS
5094 (Sup. Ct. Westchester Cty., 2014) reached a similar conclusion.
This was a suit by mother of a deceased ward (John Martin II) against
the guardian (Philip E. Conaty) for loss of the right of sepulcher. She
alleged the guardian failed to notify her of her son’s death. The
guardian argued lack of privity. The court agreed with the guardian:
“The plaintiffs do not have standing to bring an action against Conaty.
First the Court notes that Conaty owes no duty to the plaintiff other
than in his capacity as a guardian for John.”
Complexity of the Medicaid Application
Bloomfield can be taken as a warning to guardians in New
York to be timely in the filing of Medicaid applications on behalf of
their wards. The fact that it took three applications to secure a
Medicaid approval in
Bloomfield can be taken as an indication of the complexity of a Medicaid nursing home application.
That application requires complete monthly statements from all
financial investment and income tax returns over a five-year period
immediately preceding the filing of the application. Those records must
be analyzed to determine whether any uncompensated transfers were made
within that time period by reviewing all withdrawals of $2,000 or more.
In addition, the application must explain all of the income received
during the five-year period, such as Social Security, pension,
annuities, interest and dividends and required minimum distributions
from retirement accounts. Further the application must document factors
of age, citizenship, marital status, health insurance, and residence.
Obtaining all of the required information for a third party who is a
resident of a nursing home and may be unable to assist in the process
due to dementia can be an arduous process. The guardian should be aware
of the information that will be required by Medicaid and ensure that the
commission authorizes the guardian to secure the necessary information
(e.g., birth certificates, marriage certificates, divorce decrees, death
certificates and tax information).
The guardian should have the skill to timely file the Medicaid
application and if not seek court approval for the retention of an
appropriate professional with the experience and capability of properly
filing the application and monitoring the processing of the application
by the Medicaid agency.
Conclusion
Even though the nursing home in
Bloomfield brought the
original guardianship petition, it brought a separate proceeding against
the guardian for the delay in the filing of the application. The
nursing home might have avoided the privity issue if it had brought the
proceeding for the delay in the guardianship court where the matter
originated. The matter is made more difficult in New York state, where
some nursing homes have brought guardianship petitions to secure payment
for care and been criticized for using Article 81 of the Mental Hygiene
Law for debt collection purposes. “To the extent that the nursing home
is seeking to be paid for the care it has rendered to the person, the
petitioner must seek a different avenue of redress for that relief as a
guardianship application is inappropriate.”
Matter of G.S., 841 N.Y.S.2d 428, Sup. Ct. Bronx Cty., 2007).
This case should serve as notice to guardians to pay close attention
to the status of potential Medicaid eligibility of wards and to seek
advice from a source that has extensive experience with the intricate
requirements of Medicaid eligibility. A Medicaid application is a
daunting task for the first-time filer, and trying to master it without
sufficient experience in the document requirements, deadlines, fair
hearing and litigation options can expose a guardian to liability. The
Bloomfield decision
was not on the merits and only found that summary judgment was not
appropriate in this case. The case is very fact specific, but the risk
that a guardian could be liable to a third party for failure to properly
process a Medicaid application for a ward is a genuine concern.
Daniel G. Fish is a partner at McLaughlin & Stern.
Full Article & Source:
Connecticut Guardian Sued by Nursing Home for Failure to Timely File Medicaid Application
