IN THE SUPREME COURT OF FLORIDA CASE NO.: SC14-211
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1 Filing # Electronically Filed 03/19/ :07:58 AM RECEIVED, 3/19/ :08:47, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO.: SC THE FLORIDA BAR RE: ADVISORY OPINION MEDICAID PLANNING ACTIVITIES BY NONLAWYERS APPENDIX TO ANSWER BRIEF OF PETITIONER, ELDER LAW SECTION OF THE FLORIDA BAR, IN REPLY TO BRIEFS OF INTERESTED PARTIES Robert M. Sondak Fla. Bar No.: Cohen, Chase, Hoffman & Schimmel, P.A South Dadeland Blvd. Suite 600 Miami, Florida Tel: rmsondak@miamitaxlaw.com On behalf of Elder Law Section of the Florida Bar
2 This appendix is a summary of Medicaid issues that arise in Medicaid Planning. This appendix does not address the Medicaid eligibility basics such as determination of income eligibility, asset eligibility, the intricacies in determining what is counted in income, the extensive rules requiring verification in Medicaid, or issues of Medicaid estate/lien recovery in the context of Medicaid planning. The Florida Economic Self-Sufficiency Public Assistance Policy Manual is abbreviated as ESS. The Social Security Administration s Program Operation Manual System a/k/a POMS is abbreviated as SI. QUALIFIED INCOME TRUST (QIT) 42 USC 1396p(d)(4)(B), 42 U.S.C. 1382c; 42 U.S.C. 1614; 42. U.S. C. 1396p(b); 29 U.S.C. 1056(d); 38 U.S.C. 1110; 38 U.S.C. 1111; 38 U.S.C. 5121; 42 U.S.C. 1396R-5; 20 C.F.R ; 20 C.F.R ; 38 C.F.R. 3.4; 38 C.F.R ; 42 C.F.R ; 42 C.F.R ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. R. Prob. Proc ; Fla. Admin. Code R. 65A ; Miller V. Ibarra 746 F. Supp. 19 (D. Colo.1990); HCFA Transmittal No. 64 (1994); ESS ; ESS ; ESS , ; ESS Appendix A-10; ESS Appendix A-22.1;
3 ESS Appendix A-22.5; Department of Children & Families form CF-ES 2262; Department of Children & Families Transmittal No. P (February 8, 2013). Numerous Department of Children & Families Fair Hearings Orders exist applying these provisions to the creation, funding and on-going administration of the QIT. INCOME FIRST RULE CMS State Medicaid Manual ; 42 U.S.C. 1396r-5; Wisconsin v. Blumer, 534 US 473 (2002); I.R.C. 61(A); Treas. Reg. 1.61; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; ESS ; ESS ; ESS ; ESS ; ESS Numerous Department of Children & Families Fair Hearings Orders exist applying these provisions to the increase of a community spouse s income allowance and asset allowance. PATIENT RESPONSIBILITY 42 U.S.C. 1396b; 42 U.S.C. 1396R-5; 42 C.F.R ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS
4 ; ESS ; DCF Transmittal No. P (September 19, 2013). Numerous Department of Children & Families Fair Hearings Orders exist applying these provisions to allocation of income between personal needs allowance, spouse, dependents, and patient responsibility. LEVEL OF CARE 42 C.F.R ; 28 C.F.R ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Admin. Code R. 59G ; Fla. Admin. Code R. 59G-4.290; ESS ; Agency for Health Care Administration form AHCA MedServ-3008; Agency for Health Care Administration form AHCA MedServ-2040; Department of Elder Affairs DOEA Form 701B. Numerous Department of Children & Families Fair Hearings Orders exist applying these provisions to Medicaid applicant s medical and personal needs circumstances. HOMESTEAD AS AN EXEMPT ASSET 42 U.S.C. 1382b(a)(1); 20 C.F.R ; 20 C.F.R (c); Art. X, Section 4(a)-(b) of the Florida Constitution, ESS ; ESS ; ESS ; ESS ; ESS ; ESS HOMESTEAD EQUITY CAP 42 U.S.C p(c); 20 C.F.R ; 20 C.F.R ); Fla. Admin. Code R. 65A-1-
5 ANNUITIES PERSONAL SERVICE CONTRACTS 712(5)(a); ESS ; ESS ; ESS , ESS Appendix A-9; Department of Children & Families form CF-2354A 42. U.S. C. 1396p(c); 42. U.S.C. 1396p(b) 42. U.S. C. 1396p(e); CMS State Medicaid Director Letter, SMDL # (July 27, 2006); I.R.C. 408; Fla. Stat ; Fla. Stat ; Fla. Stat ; ESS (Before 11/01/07); ESS (After 11/07/07); ESS Appendix A-14; ESS Appendix A-34; DCF Transmittal Memorandum Re: Institutionalized Hospice (March 17, 2004). Numerous Department of Children & Families Fair Hearings Orders exist applying these provisions to various annuities available in the market. I.R.C. 61(A); Treas. Reg. 1.61; 42 U.S.C. 1396p; 20 C.F.R ; SI ; HCFA Transmittal No. 64; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Admin. Code R. 65A-1-712; Thomas V. Florida Department of Children and Families, 707 So. 2d 954 (Fla. 4 th DCA 1998); ESS ; ESS ; ESS ; ESS ; ESS Appendix A-14. Numerous Department of Children & Families Fair Hearings Orders
6 exist applying these provisions to proper creation, funding and use of these contracts. REAL ESTATE UNCOUNTED AS ASSET ESS , , ; 42. U.S. C. 1396p(b), Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; FAC 65A (2)(f), ESS , ESS , ESS , ESS LIFE ESTATES 42. U.S. C. 1396p(b); 42. U.S. C. 1396p(c); CMS State Medicaid Director Letter, SMDL # (July 27, 2006); Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Admin. Code R 65A (2)(b); ESS ; ESS SPOUSAL REFUSAL Medicare Catastrophic Coverage Act of 1988 (42 UCS 1396 r-5)(g); ESS Connor V. Southwest Florida Regional Medical Center, Inc., 688 So. 2d 175 (Fla.1996); Fla Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; FAC 65A-1.712(4)(g). FAC 65A 1.400; Feldman V. Department of Children and Families Fla. App. Ct., 1 st Dist., No. 1D , Dec. 14, 2005). Gorlick V. Florida Department of Children and
7 Families 2001 SL Fla. Dist. Ct. Appl ESS LOOK BACK/PENALTY PERIOD 42 U.S.C. 1396p; Fla. Stat ; Fla. Admin. Code. R. 65A-1.712; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS; ; ESS ; ESS ; ESS ; ESS Appendix A-35; DCF Transmittal No. P re: Look-back Period For Long Term Care Programs (January 1, 2010). Numerous Department of Children & Families Fair Hearings Orders exist applying these provisions to transfers and requests for information within the look back. HARDSHIP CLAIMS 42 U.S.C. 1396p(c); 20 C.F.R ; CMS State Medicaid Director Letter SMDL #06-018; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; ESS , (Excess home equity interest); ESS ; ESS (trusts, set up before 10/01/93); ESS ; ESS ; ESS Appendix A-8; Department
8 of Children & Families Form CF-ES 2264A; Department of Children & Families Form CF-ES SPECIAL NEEDS TRUSTS 42 USC 1396p(d)(4); 42 U.S.C. 1382c; 42. U.S. C. 1396p(b); 42 U.S.C. 1614; 29 U.S.C. 1056(d); 20 C.F.R ; SI ; SI ; SI ; SI ; SI ; HCFA Transmittal No. 64; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Admin. Code R. 65A-1.701; Fla. Admin. Code R. 65A-1.702; ESS ; ESS ; ESS Appendix A-22.3; ESS Appendix A-22.4; ESS Appendix A PROMISSORY NOTES I.R.C. 61(A); Treas. Reg. 1.61; 42 U.S.C. 1396p(b); 42 U.S. C. 1396p(c); CMS State Medicaid Director Letter, SMDL # (July 27, 2006); Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Admin. Code R. 65A-1.712(2)(f); ESS (Before 3/01/05); ESS (After 3/01/05) GIFTING/TRANSFERS 42 U.S. C. 1396p; CMS State Medicaid Director Letter, SMDL # (July 27,
9 2006); HCFA Transmittal No. 64; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Admin. Code R. 65A-1.712; Fla. Admin. Code R. 65A-1.716; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS ; ESS Appendix A-8; ESS Appendix A-35; Department of Children & Families Form CF-ES 2264A; Department of Children & Families Form CF-ES 2357; Numerous Department of Children & Families Fair Hearings Orders exist applying these provisions to transfers of assets and income and gifts made by a Medicaid applicant to determine whether the transfer would result in a penalty and, if so, the appropriate penalty period calculation.
10 EXEMPT PERSONAL PROPERTY 42 U.S.C. 1396a(r)(2); 42 U.S. C. 1396p; 20 C.F.R ; 20 C.F.R ; CMS State Medicaid Director Letter, SMDL # (July 27, 2006); ESS ; ESS ; ESS ; ESS ; INDIVIDUAL RETIREMENT ACCOUNTS 42 U.S.C. 1396p(c); Fla. Admin. Code R. 65A (3)(b) 1-3; ESS ; ESS SPEND DOWN 42 U.S.C. 1396a(r)(2); 42 U.S. C. 1396p; 20 C.F.R ; 20 C.F.R ; CMS State Medicaid Director Letter, SMDL # (July 27, 2006); HCFA Transmittal No. 64; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Stat ; Fla. Admin. Code R. 65A Extensive litigation has been done through Department of Children & Families Fair Hearings clarifying what are appropriate ways in which assets and income are spent prior to eligibility determinations. ENTRANCE FEES FOR CCRC S 42 U.S. C. 1396p(g); CMS State Medicaid Director Letter, SMDL # (July 27, 2006); Fla. Admin. Code R. 65A-1.712; ESS
11 LONG TERM CARE INSURANCE I.R.C. 7702B; 42 U.S.C. 1396p; ESS ; Department of Children & Families Form CF-ES 2356.
12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Appendix to Answer Brief of Petitioner was furnished by to the following individuals on this 19 th day of March, Jeffery T. Picker, Esq. The Florida Bar 651 East Jefferson Street Tallahassee, Florida jpicker@flabar.org upl@flabar.org Cindy Huddleston Florida Legal Services, Inc Torreya Drive Tallahassee, Florida (850) cindy@floridalegal.org Anne Swerlick Florida Legal Services, Inc Torreya Drive Tallahassee, Florida (850) anne@floridalegal.org Valory Greenfield Florida Legal Services, Inc Biscayne Blvd., Ste. 102 Miami, Florida (305) valory@floridalegal.org Stephen M. Masterson 2927 Kerry Forest Parkway Tallahassee, Florida (850) steve@smastersonlaw.com and by mail to: Antony L. Turbeville P.O. Box 8087 Lakeland, Florida (800) /s/ Robert M. Sondak Robert M. Sondak Fla. Bar No.: South Dadeland Blvd., Suite 600 Miami, Florida Tel:
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