MATTER OF SCHNEIDER, 325932 (6-12-2007)

2007 NY Slip Op 51185(U)

In the Matter of the Estate of Leon Schneider, Deceased.

325932.

Surrogate's Court,

Nassau County.

Decided June 12, 2007.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

Epstein Becker & Green, New York, NY, (Attorney for Petitioner).

H. William Hodges, Esq., Rockville Centre, NY, (Guardian Ad Litem).

Nassau County Department of Social Services, Uniondale, NY., (Attorney

for Respondent).

JOHN B. RIORDAN, J.

This is a proceeding brought by Beth Schneider, the executor of the

estate of her father, Leon Schneider, to determine the validity of a

claim made by the Nassau County Department of Social Services against

the estate for public assistance rendered to Zeena Schneider, Leon's

wife, from June 10, 1996 to October 3, 2002, while Leon was still alive.

Leon and Zeena had two children, Beth Schneider and Marc Schneider,

who is mentally retarded. On August 11, 1972, Leon was shot four times

in what Beth described as a "bungled mob" assassination attempt.

According to newspaper articles, the gunman mistook Leon and three

others for the mobsters he intended to kill. Leon suffered serious

injuries that left him unable to work for the remainder of his life. He

began receiving Social Security disability benefits in January 1976 and,

according to Beth, also received a Worker's Compensation award.

Zeena was diagnosed with Alzheimer's Disease in 1992. On December 22,

1995, Leon, as attorney-in-fact for Zeena, executed an "Assignment to

Petition the Court for Support Pursuant to 18 NYCRR 360-3.2." It states

that, in consideration of the medical assistance and care provided and

to be provided to Zeena by the New York State and Nassau County

Departments of Social Services, Zeena assigned to the Nassau County

Department of Social Services (DSS) "so much of [her] right, title and

interest to petition the court for support from my legally responsible

spouse." Leon, as Zeena's spouse, executed a "Declaration of the Legally

Responsible Relative" on January 4, 1996. It states, "I, Leon Schneider,

declare that I refuse to make my income and/or resources available for

the cost of necessary medical care and services for the Medicaid

applicant/recipient listed above."

Zeena began receiving Medicaid on June 10, 1996 when she was placed in

a nursing home. The record before the court includes a "Medical

Assistance Institutionalized Spouse Budget Worksheet," which was signed

on March 11, 1997 by a representative of DSS. The worksheet bears the

date of March 12, 1997 and lists the date of application as April 18,

1996. According to the worksheet, Leon had $ 268,048 in excess resources

and $ 157.80 in excess monthly income above the amounts allowed under

the rules and regulations applicable at that time.

Leon predeceased Zeena. He died on October 3, 2002. By prior decision

(Dec. No. 951, January 13, 2003), the guardian ad litem appointed by the

court to represent Zeena's interest in the probate proceeding in Leon's

estate was directed to exercise the right of election on her behalf, as

the surviving spouse, as the failure to exercise it would have resulted

in Zeena's non-eligibility for Medicaid.

Zeena died on December 3, 2003. The guardian ad litem had not yet

exercised the right

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of election on Zeena's behalf and, the right being personal, with

certain statutory exceptions, to the surviving spouse, was extinguished

upon her death (EPTL 5-1.1-A [c] [3].) A personal representative has not

been appointed for her estate.

On or about June 9, 2003, DSS filed the subject claim for $ 386,382.77

for public assistance provided to Zeena from June 10, 1996 to October 3,

2002, claiming preferred creditor status pursuant to Social Services Law

§ 104 (1); the claim was rejected by the estate on September 5, 2003.

Leon's will was admitted to probate by decree of this court on

February 24, 2004. The will created a supplemental needs trust for Zeena

to be funded with Leon's residuary estate. Upon Zeena's death, her

supplemental needs trust was to be distributed in accordance with the

terms of Leon's will, which contained bequests to Marc of $ 15,000 in a

supplemental needs trust, $ 15,000 outright to a niece, $ 5,000 to

Putnam ARC, and the rest to Beth.

Beth commenced the instant proceeding on December 1, 2005, asking the

court to determine that DSS's claim is invalid and should be disallowed.

The petition alleges that Leon's gross taxable estate is approximately $

566,000 and the net probate estate is approximately $ 350,625. Along

with the petition, Beth filed an affidavit, sworn to on November 1,

2005, in which she states, but supplies no proof, that Leon

"continuously made the monthly spousal income contributions requested by

the Department of Social Services." On the return date of the citation,

DSS failed to appear or interpose any objection to the relief requested.

By order dated April 21, 2006, the court appointed a guardian ad litem

to protect Marc's[fn1] interests in this proceeding. The guardian ad

litem filed his report on May 15, 2006, at which time DSS was in

default. In the report, the guardian ad litem states that Marc is

"woefully disabled" and "functions at the level of a two-year old

infant." The guardian ad litem also states that "if the claim is upheld

no beneficiary, including my ward, Marc Schneider, who is permanently

disabled, will receive any benefit under the will." The guardian ad

litem concludes that the claim should be denied.

DSS filed its verified answer to the petition on September 14, 2006,

after the court issued Dec. No. 405 on August 16, 2006 giving DSS thirty

days from the date of the decision and order to do so. The DSS asserts

that the claim is valid under a theory of an "implied contract" between

it and Leon.

After the petitioner and DSS submitted memoranda of law, the matter

was submitted for decision.

DISCUSSION

The petitioner asserts that the claim against the estate is invalid on

the following grounds: (1) both federal and New York State law preclude

the recovery of properly paid medical assistance, except in certain

circumstances not applicable in this case; (2) DSS cannot recover

against the estate of a Medicaid recipient's spouse; (3) DSS cannot

recover against the estate of a Medicaid recipient's predeceased spouse;

(4) recovery of a claim is prohibited where the Medicaid recipient is

survived by a permanently disabled child; (5) DSS failed to meet its

burden of proving "sufficient ability" on Leon's part at the time

Medicaid assistance was rendered to

Page 3

Zeena; and (6) the claim is barred by the equitable defense of laches.

DSS counters that the claim is properly recoverable from Leon's estate.

Briefly, Medicaid is a "co-operative Federal-State program operated

under State direction, but subject to Federal statutory and regulatory

guidelines" (Scarpuzza v Blum, 73 AD2d 237, 241-242 [2d Dept 1980]).

Enacted by Congress in 1965, Medicaid "was intended to provide partial

federal funding of the cost of providing medical care to the

disadvantaged" (id. at 241). States are not required to participate in

the Medicaid program; however, if a state participates, it is required

by federal law to enact a "statutory plan detailing the extent of

coverage and comporting with Federal law" (id. at 242). The numerous

required provisions of a state Medicaid plan are governed by

42 USC § 1396a (a). State programs are required to comply with

42 USC § 1396p

"with respect to liens, adjustments and recoveries of medical assistance

correctly paid" (42 USC § 1396a [a] [18]). Section 1396p (b) (1) permits

a state to recover for medical assistance properly paid only in limited

circumstances:

(A) In the case of an individual described in subsection (a)(1)(B) of

this section, the State shall seek adjustment or recovery from the

individual's estate or upon sale of the property subject to a lien

imposed on account of medical assistance paid on behalf of the

individual.

(B) In the case of an individual who was 55 years of age or older when

the individual received such medical assistance, the State shall seek

adjustment or recovery from the individual's estate, but only for

medical assistance consisting of

(i) nursing facility services, home and community-based services, and

related hospital and prescription drug services, or

(ii) at the option of the State, any items or services under the

State plan (42 USC § 1396p [b] [1] [A] & [B]).

New York State began participating in the Medicaid program in 1966

(Matter of Colon, 83 Misc 2d 344, 346 [Sur Ct, Kings County 1975],

citing L 1966, ch 256, § 3, eff April 30, 1966). Sections 363 through

369 of Article 5, title 11 of the Social Services Law govern New York

State's medical assistance implementation. Federal and New York State

law generally prohibit "recovery from the property of the recipient"

(Matter of Craig, 82 NY2d 388, 391 [1993], citing 42 USC § 1396a [a]

[18] and Social Services Law § 369 [2]). Social Services Law § 366 (3)

(a) is of particular significance to the determination of this

proceeding. It states: Medical assistance shall be furnished to

applicants in cases where, although such applicant has a responsible

relative with sufficient income and resources to provide medical

assistance as determined by the regulations of the department, the

income and resources of the responsible relative are not available to

such applicant because of the absence of such relative or the refusal or

failure of such relative to provide the necessary care and assistance.

In such cases, however, the furnishing of such assistance shall create

an implied contract with such relative, and the cost thereof may be

recovered from such relative in accordance with title six of article

three and other applicable provisions of law (Social Services Law § 366

[3] [a]).

In Matter of Craig (82 NY2d 388 [1993]), the issue before the Court of

Appeals was

Page 4

whether the Wayne County Department of Social Services was entitled to

reimbursement from the estate of Elizabeth Craig for Medicaid payments

provided to her husband, Norman. In 1983, Norman received Medicaid in

the amount of $ 4,373.79. He died intestate soon after. Wayne County did

not seek reimbursement from Elizabeth during her lifetime. The Court of

Appeals noted that it was undisputed that she lacked the financial means

that would have made her a "financially responsible relative" during the

time her husband was receiving benefits and until her own death

(id. at 390). By way of further background, Elizabeth also received

Medicaid in the amount of $ 10,478 prior to her death in 1989. She died

leaving an estate worth $ 27,348.50, out of which was paid the $ 10,478

claim filed in connection to her care. It was the claim against

Elizabeth's estate for $ 4,373.79 (plus interest since 1983) for

Medicaid provided to Norman that made its way to the Court of Appeals

after the Surrogate's Court and the Appellate Division disallowed the

claim (id. at 390-391).

The Court of Appeals determined that the Wayne County Department of

Social Services was not permitted to require an individual to sell his

home to pay for Medicaid (id. at 391). Thus, the surviving spouse of a

Medicaid recipient is not a responsible relative solely by dint of the

fact that he or she owned a house. However, an exception to the rule is

allowed upon the death of a person who was over fifty-five[fn2] when he

received medical assistance. In that instance, his house can be sold to

recover Medicaid payments properly paid to the recipient

(id.;42 USC § 1396p [b] [1] [B]). The Court of Appeals noted that this

was what was done in order for Wayne County to recover the payments made

to Elizabeth. But, the Court found that "the exception is qualified and

did not allow Wayne County to reach even farther back for recoupment as

to her predeceased husband's Medicaid payments" (id.).

The Court of Appeals explained that:

"[t]his scheme is set forth in Social Services Law § 369(2), which

incorporates Social Services Law § 366(3). When medical assistance is

furnished to an applicant who has a responsible relative with sufficient

income and resources to provide medical assistance, the furnishing of

such assistance shall create an implied contract with such relative. But

a responsible relative' by necessity and statute is determined by the

sufficient ability to pay at the time the expenses are incurred. Social

Services Law § 101 (Liability of relatives to support') only provides

that the spouse or parent of a recipient of public assistance or care

. . . if of sufficient ability, [will] be responsible for the support of

such person' (§ 101 [1]; emphasis added)" (id. at 391-392).

The Court of Appeals held that Elizabeth's estate was not liable for

the Wayne County Department of Social Services' claim for services

rendered to Norman because Elizabeth did not have sufficient means at

the time Medicaid payments were furnished to Norman (id. at 392). The

Court found that Wayne County's reliance on Social Services Law §

104[fn3] to support its claim

Page 5

against Elizabeth was misplaced, because that "section does not take the

sufficient means test out of contemporaneous assessment as of the time

the Medicaid payments are made on behalf of a predeceased relative"

(id.). The Court of Appeals concluded that the "assertion of a nunc pro

tunc obligation against the widow's estate is not supportable under

presently governing statutes, regulations and decisional reasoning"

(id. at 390).

There are three significant differences between the facts in

Matter of Craig and those before this court. First, in Craig, Elizabeth

was determined to have lacked sufficient means at the time Norman

received Medicaid benefits. Thus, the Court of Appeals concluded that

Wayne County could not recoup the payments from her estate (id. at 390,

392). In the instant case, a contemporaneous assessment was made by

Nassau County DSS that Leon had the requisite excess resources above the

maximum community spouse[fn4] resource allowance[fn5] and income above