No Retroactive Application of Policy Changes Permitted; Payments for Renovations to Accommodate Petitioner Permitted; Payments Consistent with Prior Accepted Obligation Permitted. Petitioner was hospitalized with a stroke in 2008, after which she went to live with one of her sons until she was re-hospitalized in November 2008. Thereafter, she remained in a nursing home. Petitioner applied for Medicaid on January 28, 2009. DFCS assessed a transfer of resources penalty denying eligibility for February, March and a portion of April, 2009. At the hearing, facts showed that Petitioner’s husband experienced financial difficulty in 1982 and, after his children provided assistance, he conveyed a one-fourth interest in the home to each of his three children, retaining a one-fourth interest which passed to Petitioner upon his death. Petitioner and her husband remained in the home, paying utilities but no rent. When the home became vacant in January 2008, one of the children continued paying utilities and routine maintenance from Petitioner’s resources. DFCS determined that Petitioner’s payment of more than one-fourth of the utilities and maintenance on the home was a transfer of resources. DFCS also found that Petitioner’s payment for renovations to her son’s home to accommodate Petitioner’s needs was a transfer of resources since Petitioner did not have an ownership interest in his home. Finally, DFCS found that payments of $200 to her son and his wife for caregiver services was a transfer of resources for less than FMV. Initially, the ALJ found that DFCS could not retroactively apply its policy that an agreement for personal care services be in writing. Applying the old manual provisions, the ALJ found that payment of $200 per week for personal care services was not a transfer for less than FMV. Further, renovations to her son’s home were for Petitioner’s benefit to accommodate her special needs and to make her comfortable. Thus, they were transfers made exclusively for a purpose other than to qualify for Medicaid. The ALJ affirmed a penalty on payments of three-fourths of the utility and maintenance costs for the home and reversed the penalty on payments for personal care services and renovations in the son’s home.

• On review, the Decision of Commissioner generally upheld the Initial Decision, finding that payments for personal care services were permitted and that the testimony of the children regarding a prior agreement was credible in light of the extensive notes kept regarding the care they provided; that payments for gasoline for an out-of-town son who provided services were permitted because Petitioner would have wanted her out-of-town son to provide care for her, and payments for renovations were for Petitioner’s benefit. Also, payment of more than one-fourth of the utilities and maintenance expenses on the home after November 2008 was a transfer of resources; however, payments prior to that time were in keeping with Petitioner’s established payment obligation assumed by Petitioner to pay of of those types of expenses since 1982 even though her children had an ownership interest in the home. The Commissioner remanded for recalculation of the penalty based on his decision.
• Thereafter, as part of an agreement under which Petitioner withdrew her judicial appeal, the Commissioner entered a Revised Decision. In the revised decision, it was agreed that Petitioner would have eligibility from January ongoing if she applied for IME coverage. “[T]he Petitioner is declared to be eligible for Medicaid coverage for the month of January 2009 without the necessity of re-filing additional paperwork to establish the IME criteria of eligibility or further arguing the legality of the over-resource issue.”

Fossett v. Department. (July 16, 2009).