Cases of Relevance to Connecticut Elder Law and Special Needs Law
(a work in progress)
(last updated June 8, 2014 - recently posted cases marked
Direct link to cite and link for Lopes v. Commissioner
most recent at top (if not linked, check Casemaker or other
sources) - click for Unreported cases below.
NOTE: useful collection of Connecticut asset protection cases
(and statute) available at "The Asset Protection Book" site
v. Commissioner of Social Services,
___ Conn. ___
(June 6, 2014) (inter vivos support trust established pre-MCCA for
community spouse by her former husband is a counted asset for purposes
of Medicaid eligibility of her non-beneficiary second husband).
- Wilton Meadows Limited Partnership v.
Coratolo, 299 Conn. 819 (2011) (Gen. Stat. 46b-37,
liability" statute, does NOT permit nursing home to recover against
for unpaid nursing home goods and services provided to husband,
statutory construction and noting that this would constitute an implied
guarantee prohibited by the nrusing home residents' bill of rights,
Stat. section 19a-550(b). (SLIP OPINION).
v. Viarengo, 112 Conn.App. 655, 963 A.2d 1065 (Conn.App. 2009) --
not specifically "elder law," this case summarizes the law on the issue
of joint accounts, finding that there was clear and convincing evidence
the "joint" holdings were procured by fraud, rebutting the presumption
that they were intended to pass at death to the joint account owner.
- Corcoran v. Department of Social Services (Conn., November 9, 2004) (third-party trust to
be used in Trustee's discretion for "health" and "support" is available
for Medicaid purposes despite language directing Trustee to take into
account available government benefits -- applies Conn. Gen. Stat.
- Parkhurst v.
Department of Social Services (Conn. App. May 11, 2004) (transfer to an OBRA '93 trust (42
USC 1396p(d)(4)(A)) is a disqualifying transfer of assets and assets
held in such a trust may be considered "available," in each case for
purposes of the state supplement program.
- Evans v. Department of Social Services (Conn. App. Jan. 13, 2004) (construes
the concept of "inaccessible" assets in statute and UPM)
- Sunrise Healthcare Corp. v. Azarigian, 76 Conn. App. 800 (May 20, 2003)
(holder of power of attorney who signs a nursing home contract as
"responsible party" could be liable to nursing home for principal's
costs of care)
- Skindzier v. Com'r of Social Services, 258 Conn. 642 (2001) (creation of a
testamentary trust for the benefit of the surviving spouse is not
a transfer, nor is trust available)
- The Jewish Home for the Elderly of Fairfield
Cty., Inc. v. Cantore, 257
Conn. 531 (2001) (nursing home had right to make a claim on
conservator's bond for his negligence in pursuing Medicaid)
- In re Michaela Lee, 253
Conn. 570 (2000) (probate court's "implied powers" as discussed in Saunders are limited to what is "necessary" to
the performance of the court's statutory duties)
Of Social Services v. Saunders, Conservatrix, 247 Conn. 686 (1999) (conservator had
authority to establish OBRA '93 Trust for disabled ward as part of the
duty to "manage" the estate; footnote suggests failure to do so might
have been a breach of duty)
- Ahern v. Thomas, 248 Conn. 708, 733 A.2d 746 (1999)
(Callahan, J.). (Affirmed lower court's decision that principal of a
funded 1990 income-only trust, with a special testamentary power of
appointment, duty to pay income taxes generated by capital gains the
trust realizes, and discretionary power to pay estate taxes and debts,
was not "available" asset after other assets were consumed 4 years
later, under the pre-OBRA '93 MQT rules.)
v. DSS, 49 Conn. App.
432, 715 A.2d 791 (1998) (Schaller, J.) (Affirmed lower court's
decision that transfer from revocable trust established and funded by
community spouse to third-party beneficiaries upon community spouse's
death prior to eligibility of institutionalized spouse was a
disqualifying transfer with respect to the applicant, institutionalized
spouse, with the penalty period commencing upon community spouse's
- Burinskas v. Department of
Social Services, 240 Conn. 141 (1997) (Rejected request for
enhanced MMNA to include expenses of paying for snow removal, home
maintenance, lawn care, and housecleaning chores that the community
spouse, who had emphysema, was unable to perform himself)
- Department of Income
Maintenance v. Watts, 211 Conn. 323, 555 A.2d 998 (1989) (Shea, J.) (Statute generally prohibiting disposition of property
obtained while receiving public assistance payments precluded probate
court's approval of disclaimer by conservator of ward receiving state
assistance of ward's interest in testamentary trust)
- Kolodney v. Kolodney,
6 Conn. App. 118 (1986) ("Sole" discretion is not "absolute" and does
not permit Trustee to withhold payments where a standard of
"comfortable maintenance, support and education" was stated as the
measure of distributions; distinguishes Auchincloss v. City Bank
Farmers Trust Co., 136 Conn. 266, 70 A.2d 105 (1949), which had no
standard and used the phrase "absolute" discretion." This
interpretation is codified in Conn. Gen. Stat. sec. 17b-261(c), eff.
- State v. Murtha, 179
Conn. 463, 427 A.2d 807 (1980) (Cotter, J.) ((1) disclaimer by current
Medicaid recipient is invalid; no finding whether fact that interest
"vested" in beneficiary at death of benefactor would affect benefits
since Title XIX only counts "available" benefits; and (2) "the state is
precluded from seeking restitution, pursuant to a [statutory] lien....,
of any funds correcty expended on [beneficiary's] behalf under the
Title XIX program during her lifetime." at 470.
- Zeoli v. Commissioner of
Social Services, 179 Conn. 83, 425 A.2d 553 (1979) (where trustee
had "absolute" discretion to distribute among disabled beneficiaries or
to withhold, and directed to consider other sources of support, trust
not countable as a resource -- rejects state's public policy argument
that "beneficiary of a private trust [should be prohibited] from
receiving support at public expense")
- Bridgeport v. Reilly,
133 Conn. 31, 47 A.2d 865 (1946) (upholding principle of a
"supplemental needs trust" if in line with settlor's intent -- settlor
gave trustee discretion to withhold all payments (spendthrift trust),
knew beneficiary was receiving benefits, and trust was not large enough
to have provided all support.)
- Greenwich Trust Co. v.
Tyson, 129 Conn. 211, 27 A.2d 166 (1942) (holding that a
self-settled discretionary trust remains subject to the claims of the
grantor's creditors, as a matter of public policy.)
re: The Conserved, an Incapacitated Individual (Probate
Court, New Haven Probate District, Oct. 1, 2012), published in 27
Quinnipiac Probate Law Journal No. 1 at 1 (2013) -- subscribe or
the author of this page! (Holds that the requirements of 45a-655(d)
respecting payment by a conservator of income to the support of a
spouse permit the Court to enhance the community spouse allowance
through a showing that absent the enhancement, the spouse would suffer
"significant financial duress," WITHOUT REGARD to whether the financial
duress itself is the result of "exceptional circumstances.") In
this odd case, the institutionalized spouse, who was under 65 and had
been severely beaten and was not a recipient of Social Security at the
time, was a nursing home resident who qualified for Medicaid under the
Husky D program as "medically needy," meaning that all income would
have had to be paid to the nursing home, in this case about
$7,000/month (perhaps he was at Gaylord or Hospital for Special Care?),
without a community spouse allowance of any kind. The
conservator sought an order requiring that all the income be paid to
the community spouse, and Judge Keyes so ordered after a lengthy
analysis of the difference between "significant financial duress" and
"exceptional circumstances leading to significant financial
duress." Apparently, DSS / the AG elected not to appeal this
decision, perhaps fearing a precedent, but the analysis may be useful
in future cases. Quoting the decision: "As there are no
Connecticut cases addressing the meaning of 'significant financial
duress' under section 45a-655(d), this Court fins, on the basis of the
language of the Connecticut statute and the arguments entertained by
the New Jersey and New York courts, that the exceptional circumstances
standard should not be applied in a determination of whether a
community spouse is beset by "significant financial duress.'"
- Griswold v.
Commissioner of Social Services, No. HHB-CV-06-4012113S HAS (J.D. New
Britain, May 25, 2007) (Pinkus, J.) (PDF file) (invalidates Department
of Social Services decision with respect to computations of enhanced
CSPA that was based on "national" interest rates of banks with no
presence in CT other than through internet, rather than rates of banks
doing business in Connecticut) - remand ordered to recalculate using
"local" rates; Pages of Record detailing the rates used and proposed
have been provided by Dillman & Pope which represented the
community spouse, and are appended to the opinion.
v. Hennebery (Incorrectly
indexed in Casemaker as "Hanneberry."), No. CV020098667S (J.D.
Middlesex at Middletown, December 16, 2003) (Aurigemma, J.) (overturns
probate court order approving OBRA '93 Trust, holding that an OBRA '93
Trust established by a conservator may not include provisions
purporting to render the individual eligible for programs other than
Medicaid [and, presumably, SSI], on the theory that the State might be
estopped from claiming later that the trust was unavailable under the
Cash Assistance or other programs) -- see also Parkhurst, supra.
Conservator v. Commissioner of Social Services (J.D ___ 2003) (value of
transfer caused by purchase of annuity with term longer than
"actuarially sound" should be measured by excess term, not by total
amount of annuity purchase price). (PDF File, 600k) (settled)
CASES (in chronological order)
Commissioner, __ F.3d ___ (2d Cir. 2012), upholding Lopes v.
Starkowski, No. 3:lO-CV-307 (JCH) (D. Conn. 8/11/2010) to
invalidate Connecticut policy manual
regulation counting a non-assignable spousal annuity as an available
Starkowski, No. 3:10-CV-1562 (JBA) (D. Conn. 9/28/2011)
(granting preliminary injuction prohibiting DSS from denying
institutionalized spouse's application on the basis of community
spouse's assets because modifications to spousal "assignment of
support" statute 17b-285 is preempted by federal law). (NOTE: Mr.
Fortmann died -- case is now moot.)
- Weatherbee v. Richman, No.
1:07-CV-00134, W.D. Pa. (1/21/2009), applying the decision in James v. Richman, held that a non-revocable,
non-transferrable annuity that otherwise complies with teh Deficit
Reduction Act cannot be treated as a "resource" for purposes of
Medicaid eligibility, that this would conflict with federal law
prohibiting deeming of community spouse income, and rejecting claim
that DRA allows states to treat these annuities as resources.
- James v. Richman, 547 F.3d 214
(3 Cir. 2008) (a non-revocable, non-transferrable annuity purchased
prior to the Deficit Reduction Act may not be treated as an available
resource for purposes of calculating Medicaid eligibility; even if it
can be assigned de facto, if this cannot be done without legal
liability, it is not available.)
v. Daines, 2nd Cir.,
No. 06-3373-CV, Aug. 2, 2007. Effectively overrules Robbins v.
F.3d 197 (2nd Cir. 2000), which had held that Social Security's
prohibition on involuntary assignment precludes consideration of Social
Security income of institutionalized spouse when seeking to meet
community spouse's MMNA, unless institutionalized spouse consents. Robbins
interpretation rejected in light of Keffeler case (below); this approach was also
taken in Ruck v. Novello, Commissioner (W.D.N.Y. Nov. 24, 2003).
- Arkansas Dept. of Human Services v.
547 U.S. ___; 126 S. Ct. 1752 (2006). (Medicaid lien in
personal injury lawsuit limited to portion of award or settlement that
represents payments for medical care that had been paid through
Medicaid; case involved total award that was less than medical payments
because of plaintiff's contributory negligence, and state should have
proportionately reduced its recovery to reflect proportionate reduction
v. Wilson-Coker (2d
Cir. July 14, 2005) (affirming district court's 2004 decision ordering Connecticut's Department of
Social Service to grant Medicaid benefits to an institutionalized
spouse who had assigned his rights of support to the State after the
community spouse refused to pay for care -- thus ushering in to
Connecticut the possibility of "spousal refusal" as a method of
protecting the community spouse's standard of living. Note that at the
district court level, attorneys' fees were also awarded to the
Dept. of Social Services v. Keffeler, 123 S. Ct. 1017
(2003). Applies narrow reading of "other legal process" that cannot be
used to reach the institutionalized spouse's Social Security benefits;
used by CT Attorney General in arguing that Robbins case was wrongly decided.
- Blumer v. Wisconsin, 534 U.S. 473, 122 S. Ct. 962
(2002). Upheld state's decision to apply "income first" methodology in
meeting the community spouse's MMNA, before enhancing the spouse's CSRA.
- Skandalis v.
Rowe, 14 F.3d 173 (2nd Cir. 1994) (Rejecting challenge to CHCPE
waiver income cap)
- Alvarez v.
Aronson (D. Conn. 1990,
UNREPORTED) consent decree (45 day rule for processing Medicaid
applications) - 1 mb PDF file
v. Maher, 424
F.Supp. 366 (D. Conn. 1976) Invalidated Connecticut regulation
imposing 7-year penalty
period on any transfer made within 7 years prior to application on the
basis that the regulation in effect irrebutably presumed the
transferred asset was available to the transferor when it was not, in
fact, available, in violation of federal law.
- Labbe v.
Norton (D. Conn.
1974, UNREPORTED) judgment, decree, and supplemental order 90 day rule
for completing all administrative action required following request for
a hearing, including issuance of any checks required as a result, and
ordering that the requested relief be granted if the requirements of
the decree are not met within 90 days; includes accompanying memorandum
from Connecticut Legal Services to its staff) - PDF
- (reported on www.seniorlaw.com) A class action in federal court,Verdow v. Sutkowy, (PDF) 2002 U.S. Dist. Lexis
16975 (NDNY, 9/10/02), held that New York's denial of plaintiffs'
Medicaid benefits because they allegedly are potential beneficiaries of
self-settled trusts containing limited powers of appointment exceeds
the limits of federal law and specifically is in violation of the
"Medicaid Qualifying Trust" statute.
FROM OTHER STATES
- Ross v. Department of Public Welfare (Pa. Cmnwealth Court, November 15,
2007). Rejects Pennsylvania's characterization of an irrevocable,
non-assignable annuity payable to the community spouse as "available
asset" even though evidence that a secondary market may
exists for the payments as a "stream of income," reasoning that the
State's characterization impermissibly blurred the distinction in
federal law between assets in income. See also Mertz ex rel. Mertz
v. Houstoun, 155 F. Supp. 415 (E.D. Pa. 2001). Note: the annuity
"cost" over $400,000; the stream of payments was then valued at
- Estate of F.K. v. Division of Medical
Assistance and Health Services 374 N.J.Super. 126 (App. Div.), cert. denied,
184 N.J. 209, 876 A.2d 283 (2005). (overturning NJ Medicaid agency's
treatment of actuarially sound annuity FBO community spouse as an
available asset based on (1) its arguments that it was purchased with
an amount of assets greater than community spouse protected amount and
(2) its claim that the annuity, although irrevocable and
non-assignable, could be sold on a secondary market) (note that annuity
named NJ as first secondary beneficiary -- perhaps most importantly,
holds that Transmittal 64 (State Medicaid manual) is entitled to deference and is binding
on the States unless in clear conflict with the statutes)
- A.B. v. Division of Medical
Assistance and Health Services (N.J. App. Div. January 1, 2005) (overturning NJ Medicaid
agency's requirement that NJ be named as secondary beneficiary of an
annuity FBO the community spouse for the annuity's purchase not to be
treated as a transfer of assets; note that the facts were a commercial
annuity purchased one year prior to application and amount did not
exceed community spouseu protected amoung) (holding that letters from
CMS are entitled to deference -- relying on a letter to A.B.'s attorney
restating the CMS position that actuarially sound annuities are not
- In re Mildred Keri (N.J. Supreme Court, April 5,
2004): New Jersey decides to follow Shah (below) and apply a
"substituted judgment" standard. "HELD: When a Medicaid spend-down plan
does not interrupt or diminish an incompetent person's care, involves
transfers to the natural objects of the person's bounty, and does not
contravene an expressed prior intent or interest, the plan clearly
provides for the best interests of the incompetent person and satisfies
the law's goal to effectuate decisions an incompetent would make if he
or she were able to act." Mildred Keri gave her sons a POA
with gifting powers; they cared for her well; she became incompetent;
her funds of approximately $250,000 would otherwise have not maintained
her in a nursing home; the New Jersey Supreme Court rejected
the lower court's rejection of the sons' half-a-loaf plan that had been
approved by the probate court. Interestingly, the court
analogizes Medicaid planning to estate tax planning -- a point often
made by elder law attorneys.
v. DeBuono (New York
Court of Appeals 6/8/2000) Wonderful language approving the ethics of
"medicaid planning" to the extent allowed by law. Affirms the exempt
status of inter-spousal transfers of any amount without imposition of a
transfer of assets penalty period and the right of community spouse to
exercise the right of spousal refusal after receiving such transferred
- Gorlick v. Florida Dept.
of Children & Families, 789 So.2d 1247 (Fla. Ct. App. 2001)
(affirming right of spouse in Florida to exercise spousal refusal even
when "assignment" to state of claim for support was executed by
community spouse acting under durable power of attorney).
- Bowden v. Delaware Dept.
of Health, 1993 Del. Super. Ct., LEXIS 304( Del. Super. Ct.
(1993), aff'd 642 A.2d 837 (Del., 1994) (rejecting spousal refusal)
- Anna W. v. Bane, 863
F. Supp. 125 (W.D.N.Y. 1993) (federal case, but relies on the rule for
"SSI states" (e.g. New York) that says rule concerning "intent to
return home" cannot be more restrictive than the purely subjective test
used by SSI. Connecticut is, however, a "209(b)" state that does not
have to follow SSI interpretations, so this case may have limited
applicability in Connecticut.)
- Spetz v. New York State
Dep't of Health, 737 N.Y.S.2d 524 (Sup. Ct., Chautauqua Co., Jan.
15, 2002). (lifetime power of appointment in irrevocable trust created
by petitioner's husband did not render trust available).
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