Conservator Not Liable For Failure To Secure Medicaid Coverage

OCTOBER 23, 2000 VOLUME 8, NUMBER 17

J. Michael Cantore, Jr., was appointed as conservator of the person and estate for Diana Kosminer. Shortly after he took responsibility for Ms. Kosminer he arranged for her admission to the Jewish Home for the Elderly of Fairfield County, Inc., a Connecticut nursing home.

Within a year of her admission to the nursing home, Ms. Kosminer was running out of resources. In May of 1990 Mr. Cantore applied for Medicaid’s financial assistance with Ms. Kosminer’s care, but he failed to complete the paperwork necessary to secure eligibility. Eighteen months later, in November, 1991, tried again, but he did not follow through with verification of her assets. Three months after that he applied once more, but the Medicaid agency decided that Ms. Kosminer had too much property to receive benefits.

Five months later Mr. Cantore finally spent Ms. Kosminer’s assets down to the $1,600 level required by Connecticut Medicaid, and applied for (and obtained) Medicaid coverage. For three years (until Ms. Kosminer’s death in 1995), Medicaid subsidized her care.

The nursing home complained about Mr. Cantore’s delay in securing Medicaid eligibility. If he had acted promptly and followed through with the necessary paperwork he could have secured Medicaid assistance shortly after his first application. The result: the nursing home lost $63,000 of income it would have received had Mr. Cantore been a better conservator.

The nursing home filed a complaint against Mr. Cantore with the Connecticut probate court, and asked that his conservatorship bond be charged for the $63,000 shortfall. Both Mr. Cantore and the insurance company which issued his bond objected, arguing that he owed no duty to the nursing home and that Ms. Kosminer actually received excellent care despite his failure to apply for Medicaid in a timely manner.

The Connecticut Court of Appeals threw out the claim by the nursing home, agreeing that Mr. Cantore’s behavior had not harmed Ms. Kosminer. In fact, the court noted, Mr. Cantore had a duty to preserve Ms. Kosminer’s assets, and his failure to spend them more quickly so that she could qualify for Medicaid was not a breach of the duty he owed to her. Since the nursing home had never even threatened to discharge her while her bill was mounting, she had not been injured and the nursing home could not make its claim against Mr. Cantore or his conservatorship bond. Jewish Home for the Elderly of Fairfield County, Inc., v. Cantore, May 30, 2000.

With no Arizona case on point it is difficult to predict how Mr. Cantore would have fared under Arizona law. It seems likely, though, that an Arizona court would agree that Ms. Kosminer was not harmed.

Connecticut does differ from Arizona in two technical aspects: Mr. Cantore’s title would have been “guardian and conservator,” (rather than “conservator of the person and property”) and Ms. Kosminer would have been permitted to retain $2,000 while still qualifying for Medciaid (rather than the $1,600 limit imposed in Connecticut).

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