Estate of Ethel Barnett v. Department of Health and Human Services
This text of Estate of Ethel Barnett v. Department of Health and Human Services (Estate of Ethel Barnett v. Department of Health and Human Services) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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ESTATE OF ETHEL BARNETT, * * Petitioner * * v. * ORDER * * DEPARTMENT OF HEALTH AND * HUMAN SERVICES, and * JOHN R. NICHOLS, COMMISSIONER, * * Respondents *
This case comes before the Court on the Estate of Ethel Barnett's (the
"Estate") 80C appeal challenging a final administrative decision made by the
Commissioner of the Department of Health & Human Services (the
"Department") holding that certain personal care expenses paid to Ethel
Barnett's daughter Amy Barnett were disallowed and assessing a penalty on the
transfer of $57,346 between December 2003 and June 2004.
FACTUAL BACKGROUND
Ethel Barnet, an elderly resident of the Springbrook Nursing Home,
applied for MaineCare benefits on July 26, 2004.' The Department granted the
application for care beginning December 2004, but denied the application for
care prior to December 2004. The Department found that Ethel Barnett had
' Ethel Barnett suffered from Alzheimer's disease and Dimentia. improperly transferred assets in the form of the performance of certain personal
care services and a monthly gift.2
Amy Barnett, Ethel's daughter and power of attorney, executed a personal
care agreement for Ethel by whch Amy would provide personal services for
Ethel in exchange for compensation whle Ethel was in the nursing home. Amy
received monthly payments for paying Ethel's bills; filing paperwork; shopping
for supplies, medications, clothing, and holiday presents; and taking Ethel to her
appointments with her doctor, dentist, and lawyer. During her visits to the
nursing home, Amy was also compensated for assisting Ethel with meals,
brushing her teeth, giving her manicures, trimming her hair, cleaning her hands
and face, and bringing her sister for a visit. Amy kept a log to prove the
existence of the personal care services she provided for her mother. The log
indicates that Amy provided fourteen hours a week of services.
DISCUSSION
The Estate contends that the Department erred in assessing a penalty for a
number of the personal care services she provided. She argues that they were
delivered in accordance with the personal care agreement and therefore should
be honored. The Estate also disputes the method of calculation of the transfer
penalty.
In reviewing an administrative agency decision, the Superior Court, in its
intermediate appellate capacity, will uphold the decision unless the agency has
abused its discretion, made an error of law, or its findings are not supported by
substantial evidence in the record. Town of jay v. Androscoggin Energy, LLC, 2003
The Estate does not dispute that Ethel Barnett made a gift to Amy Barnett. ME 64, ¶ 10, 822 A.2d 1114,1117. As the party attempting to vacate the agency's
decision, the Estate of Burnett bears the burden of persuasion. Id. The Court
gives deference to an agency's interpretation of a statute it administers, but will
not uphold the agency's interpretation "if the language and purpose of the statute
and the agency's practice in a related case contradict it." Id. The language of a
statute is given its plain, common sense meaning unless the statute reveals a
contrary legislative intent. Id.
a. Personal Care Services
Section 4120.01 of the Maine Medical Assistance Eligibility Manual
provides that a transfer of fair market value from a MaineCare applicant to
another incurs no penalty if the transfer is in the form of past support for basic
necessities and if such support is measurable and verified. 10-144 CMR 332 §
4120.01 (Record Tab D-9). Section 4120.01 further provides that relatives may
provide past support or basic necessities, which include clothing, transportation,
and personal care services only if these services were provided as part of a
legally written enforceable agreement. (Record Tab D-3).
In the instant case, although the Department was concerned that the
client's daughter agreed to pay herself for personal care services from her
mother's funds, the Department allowed the transfer of compensation for bill
paying, paperwork, shopping for necessities, and appointments without
assessing a penalty. However, the Department determined that the services
charged for and provided by Amy that were the same services that were
provided by the nursing home were impermissible transfers that incurred a penalty, namely assistance with meals, personal hygiene, and visitation. The
Department held that these services were not measurable or ~erifiable.~
The Court agrees with the Department in that the payment for personal
hygiene services, which are provided by the nursing home, are not measurable.
These services, along with visitation, do not fall within the definition of support
for basic necessities for which a fair market value can be assessed. Rather, they
are the services that any daughter would provide for her ailing mother without
charge.4 Moreover, the record lacks other sources to verify that these services
occurred. The only evidence of these personal services is in Amy's log and her
employer indicating that she left work to go visit her mother.
If the Court were to sanction personal services such as these in this
context, it would essentially be allowing all MaineCare applicants to empty their
bank accounts into the accounts of their children under the guise of providing
service. This scheme ultimately forces the taxpayers of the State of Maine to
cover the costs of caring for ineligble recipients. The Court is not willing to read
the Medical Assistance Eligibility Manual so liberally. The rules set out in the
Manual are meant to prevent MaineCare applicants from distributing their
money to family and friends in order to qualify prematurely for MaineCare. This
decision is in line with this purpose.
b. Transfer Penaltv
3 The testimony of the State's long term care specialist Donna Beal indicates that she reviewed each itemized personal care service noted in Amy's log to determine whether the service was measurable and verifiable. 4 Donna Beal testified that it was extremely rare for a relative to charge for such services, especially visitation of a parent. (Record, Tab B, p. 6, lines 8-9). It is undisputed that Amy returned $3,100 in August 2004 and $5,085 to
the Department in October 2004. The Estate contends that as a result of this
refund, the Department should have shortened the penalty period and allowed
eligibility in October 2004. In response, the Department contends that it
subtracted these amounts from the remaining penalty and applied them to the
December 2004 and January 2005 penalties. The Department then concluded that
the sum of Amy's refund eliminated the December 2004 and January 2005
penalties.
Section 4120.01 of the Eligbility Manual regarding Exempt Transfers
provides:
The following may be transferred without penalty
VI. Assets transferred for less than fair market value once all the assets have been returned to the individual. There is no penalty as of the month in which all the assets are returned to the individual. When only part of an asset or its equivalent value is returned a penalty period can be modified but not eliminated.
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