An individual entered the nursing home with no pre-plan. The daughter, the power of attorney, contacted Mike Goss’s office for a plan. As he has successfully done many times in the past, Mike created an asset protection plan for the new nursing home resident using an MIT trust. The penalty period was correctly calculated and a Medicaid Compliant Annuity was purchased to pay through the penalty.
This is where the “typical” part of Mike’s typically successful Medicaid application ends. Because, unlike countless other applications he had submitted using the same format and planning tools, this patient’s application was denied. It was denied under the premise that, because the patient could become the trustee, she therefore had access to the principal of the trust.
At the desk review, documentation was submitted stating that the trust, under no uncertain terms, allows the trustee to be a principal beneficiary. It was further submitted, though not necessary, that although the woman could not ever be a beneficiary, she also could not be a trustee, as she was admitted to the nursing home in an incompetent state.
After losing at the desk review, Mike moved forward to the Administrative Law Judge. Surely when the case was placed in front of an attorney, it would be determined that the desk worker simply did not understand a trust that had full force of the law and had been submitted and approved by the Medicaid Agency many times.
In the interim, the Lawyers with Purpose team, headed by Dave Zumpano and LWP members from the state of Indiana, met to go over the legal arguments supporting the long use of the IPUG trust in Indiana. However, it was determined that in all likelihood this case would be overturned by the ALJ. The ALJ did not feel the same way. He ruled that the trust was an available resource because the grantor could be the trustee.
Mike was forced to file for judicial review of the denial, and the case was moved over to the FSSA attorney. Using the law review article written by Dave Zumpano, POMS and state rulings, Mike invested time writing a brief for the hearing. Months went by as the FSSA attorney “attempted” to get the records from the administrative hearing. Mike tried to negotiate with the FSSA attorney to no avail. Right before the hearing date, Mike was asked for an extension by the FSSA attorney, with the reasoning that they may be able to negotiate a settlement. A few weeks later, Mike was contacted and asked to write an Order. He had won the appeal with no judicial hearing – a year after his client applied for Medicaid.
Mike’s due diligence paid off and his client received the Medicaid benefits she was legally entitled to. His advocacy for his client not only got her on Medicaid but protected the MIT trust as a planning tool for all attorneys in his state moving forward. Had he not kept fighting for what the law allows, bad interpretation by a Medicaid desk worker could have closed an entire avenue of planning for countless applicants in the future. Thank you Mike Goss for being a tireless advocate for not only your clients, but for all elderly in your community and state.
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Kimberly Brannon, Technical Legal & Software Trainer - Lawyers With Purpose