Ark Bar Elder Law
-
Upload
thedkennett -
Category
Documents
-
view
216 -
download
0
Transcript of Ark Bar Elder Law
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 1/29
Arkansas Bar Association
110th Annual Meeting
Elder Law Update
Raymon B. Harvey
Arkansas Elder Law & Special Needs Trusts
650 S. Shackleford Rd., Ste 400
Little Rock, Arkansas 72211
www.ArkansasElderLaw.com
501-221-3416
Medicaid Cheat Sheet for Long Term Care Benefits - 2008
Single Individual with Care at Home
Income:
Assets:
Transfers:
$1,911.00 per month cap.
Miller Trust is not allowed if income exceeds cap.
No requirement to contribute to cost of care.
$2,000.00 total countable assets.
Includes: anything that can be converted to cash.
Excludes: the home and land attached, one car (may have limit on value),
personal possessions, and anything that cannot be converted to cash.
There can be no Medicaid eligibility if any transfers were made on or after
February 8,2006. The transfer rules were changed on February 8,2006 and prior
transfers mayor may not result in a penalty.
Married Individual with Care at Home
Income:
Assets:
$1,911.00 per month cap.
Miller Trust is not allowed if income exceeds cap.
No requirement to contribute to cost of care.
Both spouses' assets are looked at. $2,000.00 total countable assets. The spouse
can keep one-half of all countable assets as of the date of the application up to a
maximum of$104,400.00 and a minimum of$20,880.00.
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 2/29
Transfers:
Includes: anything that can be converted to cash.
Excludes: the home and land attached, one car (may have limit on value),
personal possessions, and anything that cannot be converted to cash.
There can be no Medicaid eligibility if any transfers were made on or after
February 8,2006. The transfer rules were changed on February 8,2006 and prior
transfers mayor may not result in a penalty.
Married Couple Both with Care at Home
Income:
Assets:
Transfers:
$1,911.00 per month cap, per individual.
Miller Trust is not allowed if income exceeds cap.
No requirement to contribute to cost of care.
$3,000.00 total countable assets.Includes: anything that can be converted to cash.
Excludes: the home and land attached, one car (may have limit on value),
personal possessions, and anything that cannot be converted to cash.
There can be no Medicaid eligibility if any transfers were made on or after
February 8,2006. The transfer rules were changed on February 8,2006 and prior
transfers mayor may not result in a penalty.
Single Individual with Nursing Home Care
Income:
Assets:
Transfers:
$1,911.00 per month cap.
Miller Trust is allowed if income exceeds cap.
Keeps $40.00 per month and contributes the rest for cost of care.
$2,000.00 total countable assets.
Includes: anything that can be converted to cash.
Excludes: the home and land attached, one car (may have limit on value),
personal possessions, and anything that cannot be converted to cash.
Benefits are delayed one month for every $4,215.00 (or portion thereof) given
away within 36 months of the date the application for benefits is submitted (the
"look-back"). The calculation of the penalty depends on whether the gift was
before or after February 8, 2006. The "look-back" will gradually extend to 60
months by February 2011.
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 3/29
Married Individual with Nursing Home Care and Well Spouse at Home
Income:
Assets:
Transfers:
$1,911.00 per month cap.
Miller Trust is not allowed if income exceeds cap.
Keeps $40.00 per month and contributes the rest for cost of care. Spouse at home
can receive income to raise his/her income up to $1,712.00 a month (this amount
increases every July 1st) .
Both spouses' assets are looked at. $2,000.00 total countable assets. The spouse
can keep one-half of all countable assets as of the date of institutialization up to a
maximum of$104,400.00 and a minimum of$20,880.00.
Includes: anything that can be converted to cash.
Excludes: the home and land attached, one car (may have limit on value),
personal possessions, and anything that cannot be converted to cash.
Benefits are delayed one month for every $4,215.00 (or portion thereof) given
away within 36 months of the date the application for benefits is submitted (the
"look-back"). The calculation of the penalty depends on whether the gift was
before or after February 8, 2006. The "look-back" will gradually extend to 60
months by February 2011.
Married Couple Both with Nursing Home Care
Income:
Assets:
Transfers:
$1,911.00 per month cap, per individual.
Miller Trust is allowed if income exceeds cap.
No requirement to contribute to cost of care.
$3,000.00 total countable assets.
Includes: anything that can be converted to cash.
Excludes: the home and land attached, one car (may have limit on value),
personal possessions, and anything that cannot be converted to cash.
Benefits are delayed one month for every $4,215.00 (or portion thereof) given
away within 36 months of the date the application for benefits is submitted (the
"look-back"). The calculation of the penalty depends on whether the gift was
before or after February 8, 2006. The "look-back" will gradually extend to 60
months by February 2011.
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 4/29
Arkansas Cases - Update
Arkansas Department of Health and Human Services, Petitioner,
vs. Honorable Vann Smith., Respondent
Supreme Court of Arkansas
370 Ark. 490
Opinion Delivered: September 13,2007 by Tom Glaze, Associate Justice
Vella A. Fox, Appellant v. Arkansas Department of Health and Human Services, Appellee
CA07-829
Court of Appeals of Arkansas, Division Three
Decided March 5, 2008
Opinion by Judge Larry D. Vaught
Arkansas Legislation - Update
Act 621 of the 86th General Assembly, Regular Session, 2007
TO ESTABLISH THE "ARKANSAS SUBSIDIZED GUARDIANSHIP ACT" OF 2007
Act 820 of the 86th General Assembly, Regular Session, 2007
AN ACT TO PROVIDE FOR PUBLIC GUARDIANSHIP OF INCAPACITATED ADULTS
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 5/29
No. 06-6
SUPREME COURT OF ARKANSAS
ARKANSAS DEPARTMENT OF
HEALTH AND HUMAN SERVICES,PETITIONER,
VS.
HONORABLE VANN SMITH.,
RESPONDENT,
Opinion Delivered September 13, 2007
A PETITION FOR WRIT OF
PROHIBITION, OR, IN THE
ALTERNATIVE, WRIT OF
CERTIORARI TO THE CIRCUIT
COUR T OF PULASKI COUNTY,
ARKANSAS, NO. DR2005-2845,
HONORABLE VANN SMITH,
CIRCUIT JUDGE
WRIT OF PROHIBITIONGRANTED.
TOM GLAZE, Associate Justice
The Arkansas Department of Health and Human Services (DHHS), petitions this court
for a writ of prohibition instructing the Circuit Court of Pulaski County that it is without
jurisdiction to grant Karen Blaylock's request for an increase of her Medicaid Community
Spouse Monthly Income Allowance (CSMIA) and Medicaid Community Spouse Resource
Allowance (CSRA) until her husband applies for Medicaid.
Karen Blaylock's husband, Alan Blaylock, became disabled in 1986; he suffered further
injuries when he was beaten during a home-invasion robbery in 2005. As a result of the 2005
injuries, Alan required twenty-four-hour care and supervision to meet his daily needs, and he
was institutionalized at Timber Ridge Ranch in early 2005.
On July 15, 2005, Karen filed an amended petition in the Pulaski County Circuit
Court, seeking an order of support prior to applying for Medicaid benefits to help cover
06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 6/29
Alan's long-term care costs. DHHS, as the entity responsible for administering the Arkansas
Medicaid program, was granted permission to intervene in the Blaylocks' suit. After being
allowed to intervene, DHHS filed a motion for summary judgment, contending that, because
Alan had not applied for Medicaid and DHHS had made no determination of his eligibility
for benefits, Karen and Alan had failed to exhaust their administrative remedies. Accordingly,
DHHS argued that the circuit court lacked jurisdiction over the matter.
On November 22, 2005, the circuit court denied DHHS's motion for summary
judgment. In that order, the court determined that it had jurisdiction, finding that the
Medicare Catastrophic Coverage Act (MCCA), 42 U.S.C. § 1396r-5, and the Arkansas
Medical Services Manual provided implied authority for the court to allocate property outside
an action for divorce or separate maintenance. In addition, the court found that the Blaylocks
did not need to exhaust their administrative remedies prior to seeking a court order, because
cases from other jurisdictions had found that Congress provided two alternative means by
which a community spouse might obtain a higher resource or income allowance calculated
under the MCCA - 1) through an administrative hearing under 42 U.S.C. § 1396r5-(e), or
2) by judicial order. Given these two alternative routes, the court found that it was within
Karen's discretion to choose which method she wanted to use to obtain a higher allowance.
Following the circuit court's denial ofDHHS's motion for summary judgment, DHHS
sought a writ of prohibition from our court on January 4, 2006.
1
Prohibition is an
1 On May 16, 2006, Karen provided this court with documentation that Alan had
passed away and that she had been lawfully appointed by the circuit court as administratix
of his estate. However, the documentation did not contain an order of revivor from the
-2- 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 7/29
extraordinary writ that is appropriate only when the trial court is wholly without jurisdiction.
Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004). The writ is
appropriate only when there is no other remedy, such as an appeal, available. ld. Prohibition
is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than
a factual question. ld. However, prohibition is never issued to prohibit a trial court from
erroneously exercising its jurisdiction. ld.
In its first point, DHHS argues that the circuit court lacked jurisdiction to consider
Karen's petition because of a failure to exhaust her administrative remedies. Generally, the
doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial
relief for a supposed or threatened injury until the prescribed statutory administrative remedy
has been exhausted. See Centerpoint Enelgy Resources Corp , v. Circuit Court of Miller County,
___ Ark. , S.W.3d (june 7, 2007); Austin v. Center Point Enelgy Arkla, 365 Ark.
138,226 S.W.3d 814 (2006). A basic rule of administrative procedure requires that an agency
be given the opportunity to address a question before a complainant resorts to the courts.
Austin, supra; Dixie Downs, Inc. v. Arkansas Racing Comm'n, 219 Ark. 356,242 S.W.2d 132
circuit court. We remanded the matter to the circuit court in order to determine whether
such an order was appropriate. See Ark. Dep't of Human Servs. v. Smith, 366 Ark. 584, _
S.W.3d (2006) (per curiam).
The circuit court subsequently determined that Alan's death did not extinguish the
cause of action and that revivor was appropriate. DHHS, joined by Karen, then asked this
court to reinstate the petition. We granted the motion to reinstate the petition to this
court's active docket on April 5, 2007, and directed the parties to supplement the record
with the order of the circuit court on remand within fifteen days of that date, stating that
we would "decide the case on the original briefs." See Ark. Dep't c] Human Servs. v.
Circuit Court of Pulaski County, 369 Ark. 345, S.W.3d (2007) (per curiam).
-3- 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 8/29
(1951). Where a party has failed to exhaust his or her administrative remedies, the trial court
lacks jurisdiction over the suit. See Staton v. American Mfrs. Mut. Ins. Co., 362 Ark. 96, 207
S.W.3d 456 (2005).
The issue before us is (1) whether Karen was entitled to proceed directly to circuit
court to obtain an order of support, or (2) whether she was first required to avail herself of the
administrative procedures set out in the Medicaid Catastrophic Coverage Act. DHHS urges
this court to adopt the latter approach and conclude that, because Karen did not exhaust her
administrative remedies, the circuit court lacked jurisdiction to consider her petition.
Before addressing this specific issue, however, it is necessary to examine the
complexities of the MCCA on which Karen's petition was premised.
The federal Medicaid program provides funding to States that reimburse
needy persons for the cost of medical care. See Social Security Act, tit. XIX,
as added, 79 Stat. 343, and as amended, 42 U.S.C. § 1396 et seq. (1994 ed. and
Supp. V) "Each participating State develops a plan containing reasonable
standards ... for determining eligibility for and the extent of medical assistance"
within boundaries set by the Medicaid statute and the Secretary of Health and
Human Services. Schweiker v. Gray Panthers, 453 U.S. 34 (internal quotation
marks omitted); § 1396a(a)(17) (1994 ed.) [footnote omitted]. In formulating
those standards, States must "provide for taking into account only such income
and resources as are, as determined in accordance with standards prescribed by
the Secretary, available to the applicant." § 1396a(a)(17)(B) (emphasis added).
Wisconsin DEpartment (f Health & Family Services v. Blumer, 534 U.S. 473, 479 (2002).
The objective of the MCCA was to protect married couples when one spouse IS
institutionalized in a nursmg home, so that the spouse who continues to reside in the
community (the so-called "community spouse") is not impoverished and has sufficient income
and resources to live independently. See, e.g., Chambers v. Ohio Dep't (f Human Servs., 145
-4- 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 9/29
F.3d 793,798 (6thCir. 1998) (citing H.R. Rep. No. 100-105(11), 100th Cong., 2d Sess. at
65 (1988), r ep r in te d i n 1988 U.S.C.C.A.N. 857, 888). In essence, the MCCA allows a couple
to avoid having to spend all of the couple's assets on the institutionalized spouse's long-term
medical and custodial care before the institutionalized spouse is eligible for Medicaid benefits.
Under the MCCA, which governs the treatment of income and resources for
institutionalized spouses, income is allocated between spouses pursuant to a complex formula.
See 42 U.S.C. § 1396r-5(b) & (d). That formula provides that "no income of the community
spouse shall be deemed available to the institutionalized spouse." 42 U.S.C. § 1396r-5(b)(1).
The effect of the formula is to preserve the community spouse's income for that spouse, thus
avoiding "pauperization" of that spouse, and to prevent that spouse's income from affecting
the determination of whether the institutionalized spouse qualifies for Medicaid. S ee B lume r,
534 U.S. at 480. Section 1396r-5(b)(2) then sets out the rules to be used "[i]n determining
the income of an institutionalized spouse or community spouse for purposes of the post-
eligibility income determination described in subsection (d) of this section." (Emphasis added.)
Subsection (d) then provides a number of exceptions to those rules; those exceptions
are "designed to ensure that the community spouse and other dependents have income
sufficient to meet basic needs." Blumer, 534 U.S. at 481. Among those exceptions are the
"Minimum Monthly Maintenance Needs Allowance" (MMMNA), 42 U.S.C. § 1396r-
5(d)(3); the Community Spouse Monthly Income Allowance (CSMIA), 42 U.S.C. § 1396r-
5(d)(2); and the Community Spouse Resource Allowance (CSRA), 42 U.S.C. § 1396r-
5(£)(2).
- 5 - 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 10/29
These last two allowances are at issue in the instant case, as Karen's petition sought an
order increasing her CSMIA and CSRA. Under the MCCA, the CSMIA comes into play
when the income of the community spouse is insufficient to yield an income equal to or
above the MMMNA. The CSMIA allows the community spouse to deduct the amount of
that shortfall from the institutionalized spouse's income; the amount so deducted is then not
considered "available" to the institutionalized spouse. As a result, Medicaid will pay a greater
portion of the institutionalized spouse's medical expenses than it would absent the CSMIA
provision. See Blumer, 534 U.S. at 482.
In addition, for purposes of establishing the institutionalized spouse's Medicaid
eligibility, a portion of the couple's assets is reserved for the community spouse. This reserved
amount is the CSRA, which is determined by calculating the total of all of a couple's assets,
and then allocating half to the community spouse. The CSRA is considered unavailable to
the institutionalized in the eligibility determination, but all resources above that amount must
be spent before eligibility can be achieved. See Blumer, 534 U.S. at 483.
As just mentioned, Karen sought an order from the circuit court establishing her
CSMIA and CSRA; DHHS, however, contended that the circuit court lacked jurisdiction
to entertain Karen's petition. The crux ofDHHS's argument is that, in enacting the MCCA,
Congress did not create an independent, original cause of action in state courts whereby
potential Medicaid applicants could get a preemptive court order attributing and allocating
assets in anticipation of a future application for Medicaid. Because the Blaylocks had not
-6- 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 11/29
applied for Medicaid, DHHS contends that their attempt to pursue relief in state court is
without a jurisdictional foundation. We agree.
The circuit court determined that, under the MCCA, it had the "implied authority"
to make a pre-Medicaid-eligibility-determination allocation of the Blaylocks' assets. That
decision was premised largely on two provisions in the MCCA that refer to a "court order."
Section 1396r-5 (d)(5) declares that, "[ilf a court has entered an order against an institutionalized
spouse for monthly income for the support of the community spouse, the community spouse
monthly income allowance for the spouse shall be not less than the amount of the monthly
income so ordered." (Emphasis added.) In addition, section 1396r-5(f)(3) provides that, "[ilf
a court has entered an order against an institutionalized spouse for the support of the community
spouse, section 1396p of this title shall not apply to amounts of resources transferred pursuant
to such order for the support of the spouse or a family member[.]" (Emphasis added.)
DHHS counters, however, that reading the statute in its entirety makes it clear that any
allocation of a couple's assets can only occur after a determination of Medicaid eligibility has
been made. For example, DHHS notes language from § 1396r-5(b)(2) that speaks of the
attribution of income "for purposes of the post-eligibility income determination." (Emphasis
added.) Similarly, § 1396r-5(d)(1) permits deductions or allowances from the institutionalized
spouse's income "after an institutionalized spouse is determ ined ... to be eligible for medical
assistance." (Emphasis added.)
Congress has declared that "the determination of eligibility for medical assistance under
the [State] plan [for medical assistance] shall be m ade by the State or local agency adm inistering the
-7- 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 12/29
S ta te p la n[.]" 42 U.S.C. § 1396a(a)(S) (emphasis added). In Arkansas, that agency is the
Department of Health & Human Services. S ee, e.g ., Ark. Code Ann. § 2S-10-129(a)(2)(C)
(Rep!. 2002) (recognizing that DHHS "is presently charged with, among other things, all
welfare activity in the state, including ... [m]edical assistance."); Ark. Code Ann. § 20-10-
129(a)(4) (declaring it the legislature's intent to give DHHS the authority to adopt rules in
conformity with federal laws); Ark. Code Ann. § 20-77-101(a) (Rep!. 2001) (referring to the
"Medicaid medical assistance program administered by the Department of Human Services").
DHHS accordingly reasons that it is the only body empowered or authorized to make
Medicaid determinations, including determinations concerning the allocation of assets within
the context of the CSRA and CSMIA.
Karen responds primarily by pointing to § 1396r-S(f)(2) & (3). Subsection (f) generally
deals with permitting the transfer of resources to the community spouse; section 1396r-S (f)(2)
defines the CSRA in part as the "amount by which ... the greatest of ... the amount
transferred under a court order under paragraph (3) exceeds the amount of resources otherwise
available to the community spouse[.]" Paragraph (3) of subsection (f), as mentioned above,
declares that "if a court has entered an o rder against an institutionalized spouse for the support c] th e
co mm unity sp ouse, section 1396p of this title shall not apply to amounts of resources transferred
pursuant to such order for the support of the spouse or a family member[.]"
Focusing on the above highlighted language, Karen then goes on to argue that
Congress used the word "shall" in § 1396r-S(f)(3), thereby making the language mandatory.
However, what Karen's argument fails to recognize is that the word "shall" does not actually
-8- 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 13/29
appear to direct DHHS to apply the court's order. Reading the statute closely reveals that
what the Medicaid-administering agency "shall" do is to not apply 42 U.S.C. § 1396p to
resources transferred pursuant to such order. Section 1396p deals with liens, adjustments and
recoveries, and transfers of assets. That statute discusses when a lien may be imposed against
the property of an individual who has been receiving medical assistance.
Moreover, the fallacy in Karen's reliance on subsections (f)(2) and (f)(3) becomes
apparent when one reads § 1396r-S(f)(1), which provides as follows:
An institutionalized spouse may, without regard to section 1396p(c)(1)
of this title, transfer an amount equal to the community spouse resource
allowance (as defined in paragraph (2)), but only to the extent the resources of
the institutionalized spouse are transferred to (or for the sole benefit of) the
community spouse. The transfer under the p receding sentence shall be m ade as soo n
a s p r ac tic ab le a fte r th e d ate o f th e in itia l d ete rm in atio n o f e lig ib ility , taking into account
such time as may be necessary to obtain a court order under paragraph (3).
(Emphasis added.) The emphasized language makes it clear that the transfers between an
institutionalized spouse and a community spouse, as specified in this statute, must all transpire
cfter a determination has been made about the institutionalized spouse's Medicaid eligibility.
Given this language, we must conclude that DHHS's argument is correct. As discussed
above, Congress has declared that Medicaid eligibility "shall be made by the State or local
agency administering the State [Medicaid] plan." See 42 U.S.C. § 1396a(a)(S). In Arkansas,
that agency is DHHS; in turn, DHHS has promulgated the rules and regulations governing
Medicaid applications and eligibility. See Ark. Code Ann. § 20-10-129(a)(4). Thus, because
DHHS is the entity charged with administering the Arkansas Medicaid Program, it - rather
-9- 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 14/29
than the circuit court - is the sole entity that may determine whether a Medicaid applicant
is eligible for Medicaid, as well as for any of the deductions or allowances permitted under the
MCCA.
Moreover, the MCCA provides a means for administrative review of DHHS's
decisions regarding eligibility. Under 42 U.S.C. § 1396r-5(e), if the applicant disagrees with
DHHS's decision, that person can seek a review of that decision. Under § 1396r-5(e)(1),
once the Medicaid-administering agency determines eligibility for benefits, the State is to
notify the applicant and the spouse of the amount of allowances and how those allowances
were computed. If either spouse disagrees with DHHS's determination, § 1396r-5(e)(2)
provides for a review of that decision, as follows:
(A) In general
If either the institutionalized spouse or the community spouse IS
dissatisfied with a determination of-
(i) the comm unity spouse monthly incom e allowance;
(ii) the am ount (f m onthly incom e o therwise ava ilable to the community spouse(as applied under subsection (d)(2)(B) of this section);
(iii) the computation of the spousal share of resources under subsection
(c)(l) of this section;
(iv) the attribution of resources under subsection (c)(2) of this section;
or
(v) the determ ination of the com munity spouse resource a llowance (as defined
in subsection (f) (2) of this section);
such spouse is entitled to a fair hearing described in section 1396a(a) (3) of this
title with respect to such determination if an application for benefits under thissubchapter has been made on behalf of the institutionalized spouse. Any such
hearing respecting the determination of the community spouse resource
allowance shall be held within 30 days of the date of the request for the
hearing.
(Emphasis added.)
-10- 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 15/29
Should the applicant then still disagree with DHHS's determinations, at that point, the
applicant may seek judicial review under the Administrative Procedures Act, Ark. Code Ann.
§ 25-15-101 et seq. (Rep!. 2002).2 Only at that point - i.e., once the applicant has exhausted
his or her administrative remedies - does the state court system come into play. This
conclusion comports with our court's consistent holdings that administrative agencies are
better equipped than courts, by specialization, insight through experience, and more flexible
procedures to determine and analyze underlying legal issues affecting their agencies. See, e.g.,
Ark. Dep't of Health & Human Servs. v. R. C., 368 Ark. 660, S.W.3d (2007); Wright
v. Ark. State Plant Ed., 311 Ark. 125,842 S.W.2d 42 (1992).
In sum, DHHS is the sole entity charged with administering Medicaid and determining
eligibility for Medicaid benefits. The fact that Congress used language to the effect of "if a
court has entered an order of support" - without any further explanation of the
circumstances in which such an order might be entered - is insufficient to confer
jurisdiction, even impliedly, on the circuit court. This is particularly so when one considers
that sections 1396r-5 (d) (5) & (f) (3) only generally reference an order of spousal support; they
do not mention a court-ordered CSRA, CSMIA, or MMMNA. One who wishes to apply
for Medicaid must go through the process established by Congress and the State and cannot
do an "end run" around that process by seeking a preemptive court order of spousal support.
The Blaylocks failed to avail themselves of their administrative remedies, let alone
2Ark. Code Ann. § 20-10-129(c) (Rep!. 2002) provides that "[a]ll rules
promulgated pursuant to this section shall be promulgated in conformity with the Arkansas
Administrative Procedures Act, § 25-15-201[.]"
-11- 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 16/29
exhaust them, and as such, the circuit court was utterly without jurisdiction to consider the
Blaylocks' petition. Further, because DHHS was without another available remedy, such as
an appeal (as this case comes to us after the denial of a motion for summary judgment - a
non-appealable order), the writ of prohibition will lie in this case. See Ouachita Railroad v.
Circuit Court of Union County, 361 Ark. 333,206 S.W.3d 811 (2005) ("a writ of prohibition
is a proper remedy for lack of subject-matter jurisdiction in the trial court even when a
petitioner is not entitled to an appeal from a denial of a motion for summary judgment");
Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001) ("if there is no
jurisdiction, the only way petitioners can obtain review by this court is by way of a petition
for a writ of prohibition. Therefore, a petition for writ of prohibition is a proper method to
obtain review of jurisdiction by this court").
Because we grant DHHS's petition for writ of prohibition on this point, it IS
unnecessary to address any remaining issues.
Petition for writ of prohibition granted.
-12- 06-6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 17/29
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
LARRY D. VAUGHT, JUDGE
DIVISION III
CA07-829
March 5, 2008
VELLAA. FOX
APPELLANT
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[CV2006-1893-2]
V.
ARKANSAS DEPARTMENT OF
HEALTH &HUMAN SERVICES
APPELLEE
HON. KIM MARTIN SMITH,
JUDGE
AFFIRMED
Appellant Vella Fox applied for Long Term Care Medicaid but was found ineligible
for those benefits by appellee Department of Health and Human Services. The Washington
County Circuit Court affirmed the denial. On appeal, Fox argues that (1) the trial court erred
in refusing to allow her to present additional evidence and (2) there was insufficient evidence
to support the trial court's denial of benefits. We affirm.
On December 1, 2005, Fox, who was eighty years old and in poor health, entered a
nursing home. To assistwith the cost of the care, Fox, on January 11, 2006, applied for Long
Term Care Medicaid with the Washington County DHS. Fox's daughter, Susan, held a
power of attorney for Fox and handled the application for benefits. Fox was awarded benefits
beginning February 1, 2006; however, she was denied benefits for December 2005 and
January 2006 because her countable resources exceeded the limit of$2000. In denying benefits
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 18/29
for those two months, the Washington County DHS office relied in part upon an annual
statement from the Principal Life Insurance Company, which reflected that Fox owned a life
insurance policy with a cashvalue of $2033.16.
Following the denial of benefits for December 2005 and January 2006, Fox requested
an administrative hearing, which was held onJuly 20,2006. It was learned at the hearing that
the Principal Lifepolicy had a facevalue of$30,000. Susan, on behalf of her mother, testified
that while the stated cash value of the policy was $2033.16, that amount should be reduced
because there was an outstanding loan against the policy in the amount of $16,000. Susan
testified:
... the net cash value of $2033 in, in my opinion should be offset by the fact that there
is a $16,000 loan against the policy so I could not cash in the policy without paying off
this $16,000 loan. So it's my argument that there really isn't a $2000 cash value to the
policy. It's really got a negative value because of the loan against it.
Susan further testified that none of the accumulated interest on the $16,000 loan-totaling
approximately $973-had been paid.
DHS offered the testimony of Brenda Bass,a DHS family-support specialist,who was
assigned to Fox's claim. Bass testified that her duties include Long Term Care Certification,
which involves interviewing clients and determining their eligibility for Long Term Care.
According to Bass,when Fox made her application for benefits, she was receiving $961.50 a
month in social security income, had a bank account balance of $65.56, and had two life
insurance policies-a Life Investors policy with a cashvalue of$569.20 and the Principal Life
2
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 19/29
policy with a cash value of $2033.16. Because these countable assets exceeded the resource
limit, Bass testified that Fox was ineligible for Long Term Care Medicaid.
On July 26,2006, the hearing officer entered a final order, affirming the Washington
County DHS's denial of benefits. The hearing officer found that the preponderance of the
evidence demonstrated that Fox was ineligible for Long Term Care Medicaid because her
countable resources were in excess of $2000. Fox appealed the final order by filing a
complaint in the Washington County Circuit Court on August 25,2006.
On November 27, 2006, Fox filed a motion for leave to present additional evidence
and remand for further proceedings. In this motion, Fox argued that she had obtained two
letters from Principal Life ("Principal Lifeletters") that support her position that she isentitled
to Long Term Care Medicaid. The trial court denied the motion, finding that Fox failed to
show a good reason for failing to timely obtain and present the Principal Life letters.
A hearing before the trial court washeld May 31, 2007. After arguments from counsel,
the court affirmed the hearing officer's final order denying Fox benefits. The trial court found,
among other things, that Fox failed to demonstrate good cause supporting her request to
present additional evidence and that substantial evidence supported the hearing officer's
decision because the Principal Life annual statement established that the cash value of the
policy exceeded the resource limit. The trial court entered an order outlining these findings
onJune 19, 2007.
Fox's first point on appeal is that the trial court erred in refusing to allow her to present
the Principal Life letters as additional evidence. Arkansas Code Annotated section
3
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 20/29
25-15-212(f) (Repl. 2002) permits the circuit court to order that additional evidence be taken
before the administrative agency if the court finds that the evidence ismaterial and that there
were good reasons for failure to present it in the proceeding before the agency.
We have held that, when aparty appliesfor leave to present additional evidence under
section 25-15-212(f), the trial court should first view the application for additional evidence
to determine if the party was diligent; that the trial court may then in the exercise of its
discretion conduct a hearing to determine if the additional evidence fits within the
requirements of the statute; and that, if the trial court finds that under the requirements of the
statute additional evidence should be taken, the trial court may then remand to the
appropriate agency to hear the additional evidence. Dep't o f F in. &Admin. v. Samuhel, 51
Ark. App. 76, 909 S.W.2d 656 (1995). The trial court's decision to grant or deny a motion
to present additional evidence is within the discretion of the trial court and should not be
overturned absent an abuse of that discretion. See S am uh el, su pr a; 1 v1 arsh all v . A lco ho lic B ever ag e
C o ntro l B d., 15 Ark. App. 255, 692 S.W.2d 258 (1985).
The only reason Fox gives for not presenting the Principal Life letters in July 2006 is
that the letters did not exist then. She argues that the letters were not created until September
2006; therefore, it was impossible to introduce them any earlier. The trial court found that
this was not a good reason for not timely obtaining the letters.
The record demonstrates that Fox was capable of timely presenting evidence from
Principal Life because she was the party who provided the 2005 Principal Life annual
statement to DHS for consideration with the application for benefits. The record further
4
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 21/29
establishes that the Principal Life letters were requested by Susan, on behalf of Fox, because
they are addressed to Susan. What is not clear from the record is why Fox could not timely
present these letters, i.e., why Fox did not request and present the Principal Life letters in
January 2006, when she applied for benefits, or inJuly 2006, at the administrative hearing. To
the contrary, the record is completely void of any explanation as to why the letters were not
requested and presented at these earlier times. Moreover, as of August 2006, when Fox filed
her complaint in circuit court, she never mentioned the need for these letters, the importance
of these letters, or that she had requested these letters and was waiting for them.
The Principal Life letters were first discussedby Fox in her November 2006 motion
to present additional evidence. In this motion, Fox again failed to give any reason for failing
to obtain and present these letters when she applied for benefits in January 2006 or at the July
2006 administrative hearing. In light of the facts that Fox failed to give any reason, good or
otherwise, for not timely presenting the Principal Life letters, we cannot say that the trial
court abused its discretion in refusing to grant Fox's motion to present additional evidence.
For her second point on appeal, Fox argues that there is insufficient evidence
supporting the trial court's finding that she was not eligible for Long Term Care Medicaid.
The rules governing judicial review of administrative decisions are the same for both the
circuit and appellate courts and this review is limited in scope: administrative decisions will
be upheld if supported by substantial evidence and not arbitrary, capricious, or characterized
by an abuse ofdiscretion. Samuhel, supra. In determining whether there issubstantial evidence,
we review the entire record rather than merely the evidence supporting the administrative
5
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 22/29
decision. Id . To establish an absence of substantial evidence to support the decision, an
appellant must demonstrate that the proof before the administrative tribunal was so nearly
undisputed that fair-minded men could not reach its conclusion. Williams v. Scott, 278 Ark.
453,647 S.W.2d 115 (1983). Finally, the question is not whether the testimony would have
supported a contrary finding but whether it supports the finding that was made. Id .
Fox's claim for benefits in this case arises under the Medicaid program, created by
federal law but administered in part by the Arkansas DHS. The DHS Medical Services
Manual, § 3000 et seq., sets forth the guidelines applicable Long Term Care Medicaid. To be
eligible for these benefits, an individual's countable resources cannot exceed $2000. Medical
Services Manual, § 3310 (2)(c ) (5). Resources are generally defined as those assets, including
both real and personal property, which an individual possesses. Id . at § 3330. Resources
include all liquid assetsaswell as those assetswhich are not presently in liquid fonn. Id . Life
insurance policies that have a cash surrender value in excess of$1500 are counted against the
resource limit. Id . at § 3332.3(2)(a).
The record demonstrates that Fox is not eligible for Long Term Care Medicaid
because she had countable resources in excess of $2000. The only document Fox timely
offered into evidence was the Principal Life annual statement, which reflected a cashvalue for
that policy in excessof$2000. Furthermore, she had a bank account with a balance of$65.56
and second life insurance policy with Life Investors with a cash value of$569.20.
Fox argued to the trial court that the hearing officer erred because he did not deduct
from the cashvalue the interest on the loan taken on the Principal Life policy. She argued that
6
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 23/29
deducting the loan interest of$982.14 and adding the dividend of$917.57 would result in a
cash value less than $2000. The cash value of the Principal Life policy in that case would be
$1968.59, which islessthan $2000; however, inmaking this argument, Fox ignores her other
countable resources-her savings account and second life insurance policy, which total
$634.76. In such a case, Fox's countable resource would be $2603.35.
Because substantial evidence supports the trial court's finding that Fox had countable
resources in excess of$2000, we affirm the trial court's denial of Long Term Care Medicaid.
Affirmed.
GRIFFENand BAKER,]]., agree.
7
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 24/29
Stricken language would be deleted from and underlined language would be added to the law as it existed
prior to this session ofthe General Assembly.
Act 621 of the Regular Session
12
3
4
State of Arkansas
86th General Assembly
Regular Session, 2007
As Engrossed: H312107 H3112107
A BillHOUSE BILL 2256
5 By: Representative E. Brown
6
7
8
9
For An Act To Be Entitled
AN ACT TO ESTABLISH THE "ARKANSAS SUBSIDIZED
10
11
12
13
14
15
16
17
18 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
GUARDIANSHIP ACT" OF 2007; AND FOR OTHER
PURPOSES.
SubtitleTO ESTABLISH THE "ARKANSAS SUBSIDIZED
GUARDIANSHIP ACT" OF 2007.
19
20 SECTION 1. Arkansas Code Title 9, Chapter 8, is amended to add an
21 additional subchapter to read as follows:
22
23
9-8-201. Title - Purpose
(a) This subchapter shall be known and may be cited as the "Arkansas
24 Subsidized Guardianship Act".
25 (b) The purpose of this subchapter is to create the framework for
26 subsidized guardianships in the event that funding becomes available for such
27 a program.
28
29
30
9-8-202. Administration, Funding and Limitations
(a) Contingent upon adequate funding, appropriation, and position
31 authorization, both programmatic and administrative, the Department of Health
32 and Human Services shall establish and administer a program of subsidized
33 guardianship.
34 (b) Guardianship subsidies and services for children under this
35 program shall be provided out of funds appropriated to the department or made
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 03-12-200708:45 MXR033
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 25/29
As Engrossed: H3/2/07 H3/12/07 HB2256
1 available to it from other sources and shall be subject to any restrictions
2 as outlined in the funds appropriated or made available to the department.
3
4 9-8-203. Promulgation of Regulations.
5 (a) The Department of Health and Human Services shall promulgate rules
6 and regulations to implement this program.
7 (b) The department shall promulgate rules and regulations that include
8 eligibility requirements in accordance with any requirements from the funding
9 stream.
10
11
12
9-8-204. Eligibility.
(a) A child is eligible for a guardianship subsidy if the Department
13 of Health and Human Services determines the following:
14 (1) The child has been removed from the custody of his or her
15 parent(s) as a result of a judicial determination to the effect that
16 continuation in the custody of the parent(s) would be contrary to the welfare
17 of the child;
18 (2) The department is responsible for the placement and care of
19 the child;
20 (3) Being returned home or adopted are not appropriate
21 permanency options for the child;
22
23
24
(4) Permanent placement with a guardian is in the child's best
interest;
(5) The child demonstrates a strong attachment to the
25 prospective guardian and the guardian has a strong commitment to caring
26 permanently for the child;
27 (6) With respect to a child who has attained fourteen (14) years
28 of age, the child has been consulted regarding the guardianship;
29 (7) If permitted or required by the funding stream, the guardian
30 is qualified pursuant to a means-based test;
31 (8) If permitted or required by the funding stream, the
32 necessary degree of relationship exists between the prospective guardian and
33 the child; and
34 (9) The child has special needs.
35 (b)(I) The department shall redetermine eligibility of the
36 guardianship on an annual basis and shall include confirmation that the
2 03-12-2007 08:45 MXR033
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 26/29
As Engrossed: H3/2/07 H3/12/07 HB2256
1 guardian is still providing care for the child.
2 (2) If permitted or required by the funding stream, the annual
3 redetermination of eligibility shall include whether or not the guardian is
4 qualified pursuant to a means-based test.
5
6 9-8-205. Guardianship subsidy agreement.
7 (a) A written guardianship subsidy agreement must be entered before
8 the guardianship is established.
9 (b) The guardianship subsidy agreement shall become effective upon
10 entry of the order of guardianship.
11 (c)(I) In the case of a child whose eligibility is based on a high
12 risk for development of a serious physical, mental, developmental, or
13 emotional condition, the guardianship subsidy agreement shall provide no
14 guardianship subsidy until the child actually develops the condition.
15 (2) No guardianship subsidy shall be made until adequate
16 documentation is submitted by the guardian showing that the child has now
17 developed the condition upon which eligibility was based.
18 (3) Upon acceptance by the Department of Health and Human
19 Services that the child has developed the condition upon which eligibility
20 was based, the guardianship subsidy shall be retroactive to the date the
21 guardian submitted adequate documentation that the child developed the
22 condition.
23 (d) No guardianship subsidy may be made for any child who has attained
24 eighteen (18) years of age unless permitted by the funding stream.
25
26 9-8-206. Subsidy amount
27 (a)(I) The amount of the guardianship subsidy shall be determined
28 through agreement between the guardian and the Department of Health and Human
29 Services but cannot exceed the current foster care board rate.
30 (2) The amount of the guardianship subsidy shall be based on
31 consideration of the circumstances and needs of the guardian and the child as
32 well as the availability of other resources to meet the child's needs.
33
34
35
9-8-207. Records confidential.
(a) All subsidized guardianship records personally identifying a
36 juvenile shall be confidential and shall not be released or otherwise made
3 03-12-2007 08:45 MXR033
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 27/29
As Engrossed: H3/2/07 H3/12/07 HB2256
1 available except to the following persons or entities and to the extent
2 permitted by federal law:
3
4
5
6
7
(1) The guardian;
(2) The attorney for the guardian;
(3) The child;
(4) The attorney ad litem for the child;
(5) For purposes of review or audit by the appropriate federal
8 or state agency;
9 (6) To a grand jury or court upon a finding that information in
10 the record is necessary for the determination of an issue before the court or
11 grand jury;
12 (7)(i) To individual federal and state representatives and
13 senators in their official capacity and their staff members with no
14 redisclosure of information.
15 (ii) No disclosure of any information that
16 identifies by name or address any recipient of a subsidy or service shall be
17 made to any committee or legislative body;
18 (8) The administration of any federal program or federally
19 assisted program that provides assistance, in cash or in kind, or services
20 directly to individuals on the basis of need.
21 (b)(I) Any person or agency to whom disclosure is made shall not
22 disclose to any other person any personally identifying information obtained
23 pursuant to this section.
24 (2) Nothing in this subsection shall prevent subsequent
25 disclosure by the guardian or the child.
26 (3) Any person disclosing information in violation of this
27 subsection shall be guilty of a Class C misdemeanor.
28
29
30
31
32
33
34
35
36
/s/ E. Brown
A PP RO VE D: 3 /2 8/ 20 07
4 03-12-2007 08:45 MXR033
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 28/29
Stricken language would be deleted from and underlined language would be added to the law as it existed
prior to this session ofthe General Assembly.
Act 820 of the Regular Session
12
3
4
State of Arkansas
86th General Assembly
Regular Session, 2007
As Engrossed: H3/14/07
A BillHOUSE BILL 2335
5 By: Representative Stewart
6
7
8
9
For An Act To Be Entitled
AN ACT TO REQUIRE A PUBLIC HIGH SCHOOL AND AN
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
INSTITUTION OF HIGHER EDUCATION TO PROV IDE
ELECTRONIC STUDENT TRANSCRIPTS TO THE DEPARTMENT
OF HIGHER EDUCATION TO DETERMINE STUDENT
ELIGIBILITY FOR STATE FINANCIAL AID PROGRAMS; AND
FOR OTHER PURPOSES.
Subtitle
TO REQUIRE A PUBLIC HIGH SCHOOL AND AN
INSTITUTION OF HIGHER EDUCATION TO
PR OV IDE ELE CTRO NIC STU DEN T TRA NSC RIP TS
TO THE DEPARTMENT OF HIGHER EDUCATION TO
DETERMINE STUDENT ELIGIBILITY FOR STATE
FINANCIAL AID.
26
27
28
29
SECTION 1. Arkansas Code § 6 -80-107 is amended to read as follows:
6-80-107. Transcripts.
(a)(I) By May 1, 2007, the Department of Higher Education, in
30 cooperation with the Department of Education, shall prescribe a uniform
31 method of formatting and transmitting transcripts that shall be used by all
32 grade nine through twelve (9-12) public high schools and institutions of
33 higher education in the state.
34 (2) The uniform transcripts shall be transmitted electronically
35 to the Department of Higher Education as necessary to process state financial
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 03-14-200709:39 JSE198
8/2/2019 Ark Bar Elder Law
http://slidepdf.com/reader/full/ark-bar-elder-law 29/29
As Engrossed: H3/14/07 HB2335
1 aid applications for both high school students and higher education students
2 and between public high schools to correctly enroll and place students that
3 transfer between public schools.
4 (3) All public high schools in Arkansas shall begin submitting
5 electronic transcripts to the Department of Higher Education for state
6 scholarship programs by January 1, 2008.
7 (4) Except as provided under subsection (b)(2) of this section,
8 all institutions of higher education in Arkansas shall begin submitting
9 electronic transcripts to the Department of Higher Education by July 1, 2008.
10 (b)1ll ~ Except as provided under subdivision (b)(2) of this
11 section, after implementation of the uniform method prescribed under
12 subsection (a) of this section, no institution of higher education shall be
13 eligible to receive state financial aid on behalf of students unless the
14 institution provides uniform, electronic transcripts as prescribed by the
15 Department of Higher Education under this section.
16 (2) Any institution of higher education with less than ten (10)
17 students who are recipients of financial aid programs administered by the
18 Department of Higher Education are exempt from the requirements under
19 subsection (a) and the penalty under this subsection (b).
20 (c)(I) The Department of Education shall prescribe a uniform method of
21 formatting and electronically transmitting transcripts that shall be used by
22 all kindergarten through grade eight (K-8) public elementary and middle
23 schools in the state.
24 (2) The uniform transcripts shall be transmitted electronically
25 between all kindergarten through grade twelve (K-12) public schools as
26 necessary to correctly enroll and place students transferring between public
27 schools.
28
29 /s/ Stewart
30
31 APPROVED: 4/2/2007
32
33
34
35
36