LaVeta Winslow, by and through her designated authorized representative the evangelical lutheran Good Samaritan Society - Superior, appellant,
State of Nebraska ex rel. Douglas Peterson, Attorney General, and Department of Health and Human Services, appellees.
Administrative Law: Judgments: Appeal and
Error. A judgment or final order rendered by a
district court in a judicial review pursuant to the
Administrative Procedure Act may be reversed, vacated, or
modified by an appellate court for errors appearing on the
_ . When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the
record, the inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
Judgments: Appeal and Error. Whether a
decision conforms to law is by definition a question of law,
in connection with which an appellate court reaches a
conclusion independent of that reached by the lower court.
Medical Assistance: Federal Acts: States.
The Medicaid program provides joint federal and state funding
of medical care for individuals whose resources are
insufficient to meet the cost of necessary medical care.
_:_:_.A state is not obligated to participate in the Medicaid
program; however, once a state has voluntarily elected to
participate, it must comply with standards and requirements
imposed by federal statutes and regulations.
Medical Assistance: Federal Acts: Real
Estate. If a Medicaid applicant is determined to
possess real property that is not subject to the home
exemption and is considered an available resource, the
Nebraska [303 Neb. 25] Department of Health and Human
Services is required to make available an "Agreement to
Sell Real Estate and Repay Assistance" form to the
applicant provided that (1) the applicant has authority to
liquidate the property and (2) the applicant would be under
the available resource limit if the property is excluded from
Medical Assistance: Federal Acts: Trusts.
For Medicaid eligibility purposes, available resources can
include assets held by trusts if a person establishes that
trust with his or her assets and the individual is able to
benefit from the corpus of the trust or the income derived
Administrative Law: Presumptions: Proof.
When challenging the decision of an administrative agency,
the presumption under Nebraska law is that the agency's
decision was correct, with the burden of proof upon the party
challenging the agency's actions.
from the District Court for Lancaster County: John A.
Cameron E. Guenzel, of Johnson, Flodman, Guenzel &
Widger, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Winslow, by and through her designated authorized
representative The Evangelical Lutheran Good Samaritan
Society - Superior (Evangelical), appeals the Lancaster
County District Court's order affirming the denial of
Winslow's September 2016 application for Medicaid
benefits. Winslow claims Nebraska's Department of Health
and Human Services (DHHS), Division of Medicaid and Long-Term
Care, improperly determined she was ineligible for Medicaid
due to excess resources, namely a house which was owned by a
revocable trust. Winslow further claims DHHS failed to
provide her a necessary form so the property could be
excluded from her available resources pending sale. For the
reasons set forth herein, we affirm.
Neb. 26] I. BACKGROUND
is a current resident of Evangelical, a skilled nursing
facility located in Nuckolls County, Nebraska. Prior to
moving to Evangelical, Winslow lived in a house in Mankato,
Kansas, until she was hospitalized in September 2015. On
October 1, 2015, she went from the hospital to Evangelical to
receive additional living assistance. Although she was unable
to return to the Mankato house beyond occasional visits, she
maintained ownership of the home with the goal of her
eventual return. While she resided at Evangelical, no one
else lived in the house, she did not rent the house to anyone
else, and she continued to store personal property there.
record owner of the Mankato house was the LaVeta Winslow
Living Trust dated April 27, 2004, and restated January 8,
2015. The trust identified Winslow as the
"'Trustmaker'" and Winslow and her daughter
Vycke Garman as trustees. As to the Mankato house and other
property held by the trust, § 1.03 thereof required that
the trustees administer and dispose of all trust property for
Winslow's benefit and the benefit of her beneficiaries.
Additionally, § 1.04 provided, in relevant part:
During my lifetime, I shall retain the powers set forth in
this Section in addition to any powers that I reserve in
other provisions of this agreement.
(a) Action on Behalf of My Trust During any
period that I am serving as a Trustee of my trust, I may act
for and conduct business on behalf of my trust without the
consent of any other Trustee.
(b) Amendment, Restatement or Revocation
I have the absolute right, at any time and
from time to time, to amend, restate, or revoke any term or
provision of this agreement in whole or in part. Any
amendment, restatement, or revocation must be in a written
instrument signed by me.
My agent acting under a valid power of attorney executed by
me may amend this agreement to the extent the [303 Neb. 27]
agent is specifically authorized to do so in the instrument
appointing the agent. An amendment made by my agent in good
faith shall be conclusive on all persons interested in the
trust and my agent shall not be liable for the consequences
of any amendment or for not having amended the trust. An
amendment by my agent must be in a written instrument signed
by the agent.
Addition or Removal of Trust Property
have the absolute right, at any time and from time to time,
to add to the trust property and to remove any property from
12.20 addressed Winslow and Garman's trustee powers as to
real estate and stated in part, "My Trustee may sell at
public or private sale, convey, purchase, exchange, lease for
any period, mortgage, manage, alter, improve and in general
deal in and with real property in such manner and on such
terms and conditions as my Trustee deems appropriate."
also executed a durable special power of attorney appointing
Garman and Cindy Kuhn to serve as Winslow's holders of
financial power of attorney. This document provided Garman
and Kuhn the "full power and authority to do everything
necessary to transfer, assign, convey, and deliver any
interest [Winslow] may have in property owned by [Winslow] to
the then acting Trustee of the . . . LaVeta Winslow Living
2015 and again in May 2016, Garman applied for Medicaid for
Winslow. These applications were denied in part because
Winslow's resources exceeded program standards. These
resources included the Mankato house.
again applied for Medicaid for Winslow on September 23, 2016.
The September application indicated Winslow's assets
included a car, a checking account, a savings account, an
annuity account, an irrevocable burial trust, and the Mankato
October 3, 2016, DHHS mailed Winslow a verification request
seeking confirmation of Winslow's interest, dividends,
[303 Neb. 28] royalties, annuity, pension, and trust fund
income and requesting Winslow's most recent bank
statements and life insurance documentation. The request
provided that "[f]ailure to provide verifications by
10-13-2016 could result in the denial, termination or
decrease in [Winslow's] benefits.''
October 17, 2016, DHHS mailed Winslow another verification
request seeking confirmation of "Current Trust, Bonds,
Certificates of Deposit . . ., IRA, Money Market, Keogh,
4Ol(K), [and] Mutual Funds." DHHS also requested a
current accounting of the assets held by the trust. The
request noted that Winslow was likely over the resource limit
but that "if LaVeta is wanting to revoke the entire
trust at this time and return all assets in the trust to
herself she is able to do so. . . . Initially, if this is
done she may still be over resources, but she could
potentially gain Medicaid eligibility." The request
again provided that "[f]ailure to provide verifications
by 10-27-2016 could result in the denial, termination or
decrease in [Winslow's] benefits."
DHHS supervisor narrative dated October 17, 2016, DHHS
acknowledged that the trust assets were available to Winslow
and that Winslow had the authority to revoke or amend the
trust. This DHHS supervisor narrative copied an October 6
email from a program specialist with DHHS, Division of
Medicaid and Long-Term Care, explaining Winslow's
authority under the trust.
November 4, 2016, DHHS mailed Winslow an initial notice of
action denying her coverage for failure to provide
information. The notice stated that the information requested
in the October 17 request was applicable only if Winslow was
dissolving her trust. If not, Winslow would remain over the
resource limit and would be ineligible for Medicaid. The
notice further provided that the September application would
remain valid until December 22.
December 20, 2016, Garman deeded the Mankato house from the
trust to Winslow. On December 22, Winslow's attorney
called DHHS concerning the Mankato house to request an [303
Neb. 29] "IM-1 form"-a document entitled
"Agreement to Sell Real Property and Repay
Assistance" which allows an applicant 6 months to sell
real property and excludes use of that property as a resource
for Medicaid eligibility purposes. DHHS responded to
Winslow's attorney that an IM-1 form would not be needed
because DHHS had not determined whether Winslow's
resources would be under the eligibility limits. Winslow then
submitted verification documents on December 22, 23, and 28.
DHHS eventually provided Winslow an IM-1 form sometime after
reviewing the documentation provided in December 2016, DHHS
determined Winslow was ineligible for Medicaid because her
resources, which included two credit union accounts and the
Mankato house, were above $4, 000. On December 30, DHHS
mailed Winslow notice of the denial which stated
"Resources Exceed Program Standard" as the reason
for Winslow's ineligibility. Also on December 30, Winslow
signed the IM-1 form for the Mankato house. Winslow then
reapplied for Medicaid, and on April 12, 2017, she was
approved, with a share of cost, effective January 1, 2017.
filed an administrative appeal, and a hearing was held in
June 2017. At the hearing, the parties agreed the main issue
on appeal was whether the Mankato property "is a
countable resource during the potential period of affected
benefits for the September 2016 application." Testimony
from Sarah Shurigar-Meyer and Garman was received.
was the lead Medicaid worker with DHHS, Division of Medicaid
and Long-Term Care. In her testimony, she explained DHHS'
reasoning for the denial of Winslow's September 2016
application. Specifically, Shurigar-Meyer testified that
Winslow was denied because she was over the resource limit of
$4, 000 for Medicaid. Winslow's asset with the most value
was the Mankato house, and Shurigar-Meyer testified Winslow
would have been under the resource limit if the property were
not an available resource. The Mankato house was determined
to be an available resource "[b]ecause [303 Neb. 30] the
property was listed in a trust" and "there was not
a[n] IM-1 [form] signed to exclude that property because it
was listed in the trust." Shurigar-Meyer ...