Opinion
11-P-1208
04-17-2012
MICHAEL J. LOMBARDI, guardian. v. DIRECTOR OF THE OFFICE OF MEDICAID.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Michael J. Lombardi, guardian of Catherine B. Lombardi (collectively Lombardi), appeals from a judgment of the Superior Court affirming a hearing officer's decision upholding a determination by the Office of Medicaid (MassHealth). MassHealth determined that Lombardi was ineligible for long-term care benefits for a period of 118 days, commencing on October 1, 2006. The basis for ineligibility at the time of the application was the existence of countable assets in excess of the $2,000 limit as well as a disqualifying transfer of $17,400 to a trust benefiting her three children. On appeal, Lombardi argues that (1) MassHealth cannot consider a court-approved transfer of assets in determining eligibility for benefits and (2) MassHealth improperly imposed a double penalty. We affirm. Court-approved estate plan. Lombardi argues that the transfer of the $17,400 to MBC Realty Trust is exempt from consideration by MassHealth because the distribution was pursuant to a court-approved estate plan. Lombardi cites no legal authority in support of this proposition, and attempts to distinguish the circumstances here from those in Shelales v. Director of the Office of Medicaid, 75 Mass. App. Ct. 636 (2009), in which the plaintiff was also penalized for a disqualifying transfer. The fact that in Shelales the transfer occurred without a court-approved estate plan is a distinction that has no legal significance. In that case, we nowhere cited the lack of such approval as determinative. As MassHealth rightly argues, a probate judge cannot insulate asset transfers from being considered in the determination of eligibility for MassHealth. See G. L. c. 215, § 6. Lombardi's transfer of assets to the trust was plainly a 'disqualifying transfer' within the meaning of 130 Code Mass. Regs. § 520.019C (2006).
Double penalty. Lombardi also contends that the penalty period imposed by MassHealth was arbitrary and capricious and constituted a double penalty. This argument fails.
At the time Lombardi applied for MassHealth benefits, she had $17,642 in excess countable assets, making her ineligible until those assets were spent down to the permissible $2,000 limit, which was forty-eight days. 130 Code Mass. Regs. § 520.003(A)(1)(2004). Prior to her application for MassHealth benefits, Lombardi had also transferred $17,400 to the MBC Realty Trust as a gift for her children for less than fair market value.
The ineligibility period is calculated by dividing the excess countable assets by the private pay rate for the applicant's nursing facility. Here, the calculation is achieved by dividing $17,642 by $365. See 130 Code Mass. Regs. §§ 520.004 (2004).
According to Federal Medicaid law, a transfer of assets for less than fair market value during the 'look-back' period disqualifies the individual from receiving benefits for a specified period of time. See 42 U.S.C. § 1396p(c)(1)(A)(2006); 130 Code Mass. Regs. § 520.019(C)(2006). In this case, the transfer resulted in a disqualification period of seventy days, calculated by dividing the amount of the disqualifying transfer by the average private pay rate. 'For transfers occurring on or after February 8, 2006 [as in this case], the period of ineligibility . . . begin[s] on . . . the date on which the individual is otherwise eligible.' 130 Code Mass. Regs. § 520.019(G)(3)(2006).
Here, $17,400 divided by $246.
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Lombardi would have been eligible for benefits on November 18, 2006, as the spend-down period occasioned by her excess countable assets expired on November 17. The penalty period thus ran from November 18, 2006, to January 27, 2007. There was no error by MassHealth in determining the period of ineligibility.
Judgment affirmed.
By the Court (Rapoza, C.J. Kafker & Meade, JJ.),