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Commonwealth v. Estate of Cooper

Court of Appeals of Kentucky

April 12, 2019

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT
v.
ESTATE OF LENNIE COOPER APPELLEE

          APPEAL FROM PULASKI CIRCUIT COURT HONORABLE DAVID A. TAPP, JUDGE ACTION NO. 15-CI-00884

          BRIEF FOR APPELLANT: Lucas Roberts Frankfort, Kentucky

          BRIEF FOR APPELLEE: Jay McShurley Somerset, Kentucky

          BEFORE: JONES, KRAMER AND K. THOMPSON, JUDGES.

          OPINION

          K. THOMPSON, JUDGE:

         The Commonwealth of Kentucky, Cabinet for Health and Family Services, appeals from an order of the Pulaski Circuit Court ruling that 907 Kentucky Administrative Regulation (KAR) 1:005 did not preclude a reduction in the period of disqualification from Medicaid benefits. Because we conclude the regulation precluding reimbursement by the Cabinet for payments made for a Medicaid covered service does not apply to those made while an application is pending, we affirm.

         In August 2012, Lennie Cooper became a resident of Somerwoods Nursing and Rehabilitation in Somerset. At the same time, she gifted real estate valued at $80, 000 and $79, 785.09 from a bank account to her daughter, Marion Cooper. An application for Long Term Care Medicaid benefits was filed on Lennie's behalf on September 21, 2012.

         The Department of Medicaid Services (the Agency), the Cabinet's internal agency that directly administers the Medicaid programs, issued a Medicaid Coverage Denial Notice dated October 22, 2012. The denial notice advised that Medicaid coverage was being denied as mandatory verification was not returned, specifically, a Qualifying Income Trust. However, this denial was mailed to the wrong address and neither Lennie, Marion, nor Lennie's attorney received a copy of the notice of denial.

         On June 27, 2013, Lennie's attorney made a written request to the Agency regarding the status of the Medicaid application and was provided a copy of the notice of denial dated October 22, 2012. Lennie then requested a fair hearing on August 22, 2013. A hearing was held on November 18, 2013.

         The hearing officer found that the denial was mailed to an incorrect address so that proper notification of the denial was not received and gave Lennie the opportunity to provide the required verification to process the application. On August 20, 2014, Medicaid benefits for Lennie were approved retroactive to June 2014. Lennie died on July 31, 2014.

         While Lennie's Medicaid application was pending and before the approval of Medicaid benefits, Marian paid the nursing home $120, 880 from non-Medicaid funds for Lennie's care from her admission in September 2012 through May 2014. In July 2014, Lennie's attorney provided the Agency with documentation of payments made by Marian to the nursing home for Lennie's care. Although the Agency processed the claim with an August 1, 2012 application date, Lennie was only approved for benefits effective June 2014, on the basis that private payments ended in May 2014. Lennie's estate appealed arguing that the start date for benefits should have been earlier than June 2014.

         A hearing was conducted on April 21, 2015. On May 6, 2015, the hearing officer issued a recommended order affirming the Agency's action. As framed by the hearing officer, the issue presented was whether the Medicaid disqualification period was correctly computed pursuant to 907 KAR 20:030. As applicable here that regulation provides:

(3) Transfer of resources on or after February 8, 2006.
(a) If an institutionalized individual applies for Medicaid, a period of ineligibility for NF services, ICF IID services, or 1915(c) home and community ...

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