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Five-Year Look-Back Applied/Pension Properly Included in Determining Applicant’s Income In Spite of Unexplained Cessation of Payments

The Fourth Department confirmed the Department of Social Service’s determination that transfers of property within the five-year look-back period were properly taken into account in imposing a penalty period before the applicant, who was in a nursing home, was eligible to for Medicaid. The court agreed that a gift made during the look-back period was at least partially motivated by qualifying for Medicaid and the applicant’s pension payments, which stopped at some point for unknown reasons, were properly considered in determining the applicant’s income (noting that the department was not obligated to determine why the payments, which presumably were for life, stopped).  In explaining the relevant law, the court wrote:

“In determining the medical assistance eligibility of an institutionalized individual, any transfer of an asset by the individual . . . for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services” for a certain penalty period (Social Services Law § 366 [5] [d] [3]).  The look-back period is the “sixty month period[] immediately preceding the date that an [applicant] is both institutionalized and has applied for medical assistance” (§ 366 [5] [d] [1] [vi]).  Where an applicant has transferred assets for less than fair market value, the burden of proof is on the applicant to “rebut the presumption that the transfer of funds was motivated, in part if not in whole, by . . . anticipation of future need to qualify for medical assistance” (…see generally § 366; 18 NYCRR 360-4.4).  Matter of Donvito… v Shah…, 663, 4th Dept 7-19-13

 

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