SCOTUS Rules State Medicaid Programs Can Recoup a Larger Share of Personal Injury Settlements

Suppose you were injured due to another person’s negligence and your medical expenses were paid in whole or part by Medicaid. In that case, the state has a legal right to recover the funds it spends on your care from a personal injury settlement or award. In a case involving a Florida teen catastrophically injured more than a decade ago, the United States Supreme Court has ruled that state Medicaid programs can recover the amounts paid from settlement funds reserved for future medical expenses.

In 2008, a truck struck 13-year-old Gianinna Gallardo, leaving her in a persistent vegetative state. The state’s Medicaid agency provided $862,688.77 in medical payments on Gallardo’s behalf. Her parents sued the parties responsible, and the case eventually settled for $800,000, of which about $35,000 represented payment for past medical expenses. The settlement also included funds for Gallardo’s future medical expenses, lost wages, and other damages.

The state Medicaid agency claimed it was entitled to more than $300,000 in medical payments from this settlement, including money specifically allocated for Gianinna’s future medical expenses.

Gianinna’s parents then sued the agency in federal court, arguing that Florida should be able to recover monies only from that portion of the settlement allocated for past medical expenses in accord with a prior Supreme Court ruling.

A U.S. District Court ruled for Gianinna, and the Medicaid agency appealed. The Court of Appeals reversed the lower court’s decision. Ultimately, the Supreme Court agreed to hear the case

In a 7-2 decision, the Supreme Court agreed that Florida could recover from the proceeds allocated to Gianinna’s past and future medical care. Justice Clarence Thomas, who wrote the majority opinion, noted that Medicaid law “distinguishes only between medical and non-medical care, not between past (paid) medical care payments and future (un-paid) medical care payments.”

Justices Sonia Sotomayor and Stephen Breyer dissented. They argued that accepting Medicaid shouldn’t leave a beneficiary indebted to the state for future care that may or may not be necessary.

If you or a family member are receiving care through Medicaid and expect a settlement, it would be wise to contact our office and learn if Medicaid will zero in on you or your estate for past, present, and future medical expenses.

Compare and Contrast: Medicaid Asset Protection Trust and Medicaid Annuity

The prospect of a spouse needing nursing home care is one of the biggest financial worries for couples. With some facilities on Long Island now charging more than $600 a day, even with long-term care insurance policy benefits, the monthly out-of-pocket cost of a room in a nursing home can easily exceed $6,000.

For couples who worked hard throughout their careers and saved to own a home and healthy retirement accounts, the thought of impoverishing a well spouse so the sick spouse can apply for Medicaid is frightening.

When family members determine they know what to do, the results are often disastrous. The Medicaid Program, funded by the federal and state governments, is extremely complex, and you are dealing with both federal and state law. Many Medicaid strategies can have unintended federal and state tax consequences. They transfer homes and other assets to family members and change the names on various bank and investment accounts. But, if a person needs Medicaid within five years of a transfer, they are ineligible for Medicaid.

There are ways to protect assets. A personalized asset protection plan prepared by an experienced Elder Law attorney will assure the plan stands up to Medicaid scrutiny.

What does work is pre-planning with an experienced Elder Law attorney.

Our firm works with families and individuals facing the challenges of ensuring their loved ones receive the care they need while protecting their accumulated assets over a lifetime. The earlier this planning takes place, the more options the person will have.

A Medicaid Asset Protection Trust is used to allow a person to qualify while protecting assets. The family home, investment accounts, etc., can be placed in the trust and are not countable. If investments fund a trust, the prior owner may not sell them but can continue to receive income if the MAPT restricts payments only to income.

A MAPT trust must be created and funded five years before the application. Some assets cannot be transferred into the trust. They may need to be liquidated and placed in the trust.

There are numerous other strategies, depending on the individual’s situation.

A Medicaid Compliant Annuity is another way to reduce non-exempt assets so a person can qualify for Medicaid. The Medicaid compliant annuity is a single premium immediate annuity (SPIA). Upon payment of the premium, the healthy spouse receives equal monthly payments for the payment period selected. Medicaid must be named the initial beneficiary to Medicaid paid for care. Any amount remaining goes to the family.

Annuities are complicated financial products. There are many ways to structure an SPIA. An experienced Elder Law attorney has the knowledge and experience to ensure the SPIA meets the family’s needs.

There may be other strategies when a person requires institutional care. It is known as Medicaid Crisis Planning. Medicaid Crisis Planning strategies differ significantly from the Medicaid pre-planning. However, they are not mutually exclusive and can increase the ability to protect assets.

Our practice helps people with Medicaid planning and Medicaid crisis planning. If you have questions, we invite you to call 516-307-1236. Please note that we limit our practice to New York State and Florida.

Elder Law Attorneys Stephen J. Silverberg and Scott B. Silverberg Named to the 2021 Super Lawyers Metro New York Lists — Scott B. Silverberg Named Rising Star 2021

Stephen J. Silverberg has been selected to the New York Metro Super Lawyers list as one of the top New York metro area lawyers for 2021. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers has named Silverberg to its select list of attorneys for fifteen consecutive years, from 2007 to 2021.

Stephen J. Silverberg is nationally recognized as a leader in the areas of estate planning, estate administration, asset preservation planning and Elder Law. He is a past President of the prestigious National Academy of Elder Law Attorneys (NAELA) and was awarded the credential of NAELA Fellow, the highest honor bestowed by NAELA to “attorneys… whose careers concentrate on Elder Law, and who have distinguished themselves both by making exceptional contributions to meeting the needs of older Americans and by demonstrating commitment to the Academy.” Mr. Silverberg is a past President of the New York State chapter of NAELA and was a founding member of the chapter.

He holds the designation of a Certified Elder Law Attorney (CELA), awarded by the National Elder Law Foundation to fewer than 525 CELAs throughout the United States. Mr. Silverberg is rated AV Preeminent (5.0 out of 5.0), the highest possible designation from Martindale-Hubbell.

Scott B. Silverberg has been named to the 2021 New York Metro Rising Stars list for the second year in a row. To qualify, New York Metro Rising Stars must be 40 years old or younger or have been practicing for less than 10 years. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

He is a member of the National Board of Directors of the National Academy of Elder Law Attorneys (NAELA) and a member of the Board of Directors and Treasurer of the New York State Chapter of NAELA. Scott is Vice-Chair of the Practice Management Committee of the Elder Law and Special Needs Section Executive Committee of the New York State Bar Association.  He is also a member of the Nassau County Bar Association.

Scott has attained the L.L.M. (Master of Laws) in Elder Law from Stetson University School of Law. This rigorous program is offered only to Elder Law practitioners who have provide legal services in elder law matters in highly specific areas of the law. Stetson’s L.L.M. Elder Law program faculty comprises many leading attorneys in Elder Law.

Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from over 70 practice areas who have attained high peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive, and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

We are Open to Serve You, Safely

Our office moved seamlessly to working remotely in March because the firm’s systems were designed to allow attorneys and staff to work in the office, at home, or anywhere. Investing in technology has always been a high value at the firm, and when New York State was “paused,” our clients benefited from our ability to keep working without interruption.

We have never stopped working, but now we, like many of you, are slowly returning to a more “normal” world.

The Law Office of Stephen J. Silverberg continues to provide all services for our clients, through telephone, email, and videoconferencing.

Clients who are comfortable coming to our office will be welcome – we are following all guidelines from the Centers for Disease Control and local government.

For clients who are not comfortable coming to our office, we can still serve you. Governor Cuomo, through executive order, has allowed for virtual witnessing of Wills and other estate planning as well as notarizing services. These orders are still in place and allow us to provide clients with a “contact free” estate plan. Consultations, draft reviews, and execution of documents can all be completed without the client needing to leave their house.

We have always considered ourselves a different kind of law firm. We provide Elder Law and estate planning legal services; for some clients we are using complex and highly technical tax and estate planning methods, and for others, we work with fundamental Elder Law and estate planning tools needed to protect individuals, families, and property.

Whatever your Elder Law and estate planning needs, we are here to help. Call us at 516-307-1236 or send an email to sbsilverberg@sjslawpc.com if you have any questions.

Stay well, be safe and stay in touch.