Posts Tagged ‘Josephine Burstein’

Recent Court Cases

OCTOBER 10, 1994 VOLUME 2, NUMBER 14

A number of recent decisions from courts around the country are of interest to advocates, caretakers and service providers to the elderly. Many of the cases will be based on local state law or precedent, and so may not be very persuasive in Arizona. Nonetheless, they may be interesting or thought-provoking.

Who pays for patient’s care? No one.

Beatrice Passmore was admitted to Piedmont Medical Center in South Carolina in April, 1992. When the hospital was ready to discharge her less than a month later, her husband refused to accept responsibility for her. Nursing homes all declined to accept her because she did not qualify for Medicaid. Consequently, Piedmont Medical Center could not discharge her.

The hospital brought an action under South Carolina’s divorce law seeking to compel either her husband or the county Department of Social Services to accept financial responsibility for Mrs. Passmore. The court ruled that third parties (like the hospital) can not bring such an action to compel support. This is true even though Mrs. Passmore could have brought an action for support herself if she had wished to do so. Amisub of South Carolina, Inc., v. Passmore, South Carolina Supreme Court, July 25, 1994.

Disabled child prevents estate recovery

New York’s state statutes prohibit recovery of Medicaid payments from the estate of a recipient who is survived by a disabled child. When Josephine Burstein died, she was survived by two children. One of her daughters was permanently disabled.

Ms. Burstein had not provided any support for her disabled daughter for years, and she did not reside with Ms. Burstein. Ms. Burstein’s will left half of her estate to her disabled daughter and the other half to the second daughter. The state sought to recover from Ms. Burstein’s estate, arguing that the statute meant to preclude recovery where a disabled child was dependent on the decedent.

The New York court disagreed, holding that the law applies whenever the Medicaid recipient has a disabled child, whether or not the child is dependent on the parent. In re Estate of Burstein, New York Surrogate Court, March 21, 1994.

[Arizona law is very similar. ALTCS’ Eligibility Policy and Procedure Manual, §910.2, provides that recovery may not be sought unless the deceased recipient has no surviving spouse and no child under age 21, disabled or blind.]

Oregon court refuses to create “Miller” Trust

Richard Baxter resides in an Oregon nursing home. He is ineligible for Medicaid because he receives about $200 per month more than the Medicaid “income cap.” (Oregon, like Arizona, is an income cap state.) Mr. Baxter filed a petition asking the court to create a “Miller” trust, as permitted by federal law, to permit him to qualify for Medicaid.

Federal law indicates that such a trust may be established by a parent, grandparent, guardian or court. The court in this case refused, holding that Mr. Baxter is mentally competent. Because Mr. Baxter’s parents and grandparents are deceased, he apparently can not qualify for Medicaid. In re Baxter, Oregon Court of Appeals, May 25, 1994.

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