Selected Cases of Relevance to Connecticut Elder Law and Special Needs Law (a work in progress)
(last updated February 16, 2020 - recently posted cases marked "")

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CONNECTICUT CASES

Reported cases, most recent at top (if not linked, check Casemaker or other sources) - click for Unreported cases below.

• Sec. 309 of PA 19-117 overrules Handel v. Commissioner, 183 Conn. App. 392 (see CLJ official report) (July 17, 2018) (case had ruled that fair hearing decision must be issued within ninety days following date of request for fair hearing, or if not, appeal must be sustained).
  
  
• Valliere v. Bremby, Commissioner of Social Services, 328 Conn. 294 (see CLJ official report) (February 1, 2018) (probate court orders regarding support to be paid to spouse of conserved person must be honored by DSS if conserved person subsequently applies for Medicaid -- even if as a result spouse will receive far more than default DSS rules allow; suggests that probate court orders in general must be honored .)
  
  
• Pikula v. Commissioner of Social Services  179 Conn. 83 (May 10, 2016) (trust for  "support" NOT an available resource to beneficiary where trustee's discretion was "absolute," in amounts trustee deems "advisable" taking into account other resources, and where trustee was exonerated, saying that the Trustee's discretion was "conclusive as to the advisability of any such disbursement and the same shall not be questioned by anyone -- and where trust was "only" $170,000).  Also quotes with approval the "actually available" language from Zeoli and this useful passage:  "This principal ‘‘has served primarily to prevent the [s]tates from conjuring fictional sources of income and resources by imputing financial support from persons who have no obligation to furnish it or by overvaluing assets in a manner that attributes nonexistent resources to recipients.’’ Heckler v. Turner, 470 U.S. 184, 200, 105 S. Ct. 1138, 84 L. Ed.2d 138 (1985)."
  
  
• Palomba-Bourke v. Commissioner of Social Services, 312 Conn. 196 (June 6, 2014) (inter vivos support trust established pre-MCCA for community spouse by her former husband is a counted asset for purposes of Medicaid eligibility of her non-beneficiary second husband).
  
  
• Wilton Meadows Limited Partnership v. Coratolo, 299 Conn. 819 (2011) (Gen. Stat. 46b-37, the "spousal liability" statute, does NOT permit nursing home to recover against spouse for unpaid nursing home goods and services provided to husband, applying statutory construction and noting that this would constitute an implied guarantee prohibited by the nursing home residents' bill of rights, Conn. Gen. Stat. section 19a-550(b).  (SLIP OPINION).
  
  
• Garrigus v. Viarengo, 112 Conn.App. 655, 963 A.2d 1065 (Conn.App. 2009) -- not specifically "elder law," this case summarizes the law on the issue of joint accounts, finding that there was clear and convincing evidence the "joint" holdings were procured by fraud, rebutting the presumption that they were intended to pass at death to the joint account owner.
  
  
• Corcoran v. Department of Social Services, 271 Conn. 679 (2004) (third-party trust to be used in Trustee's discretion for "health" and "support" is available for Medicaid purposes despite language directing Trustee to take into account available government benefits -- applies Conn. Gen. Stat. sec. 17b-261(c)).
  
  
• Parkhurst v. Department of Social Services 82 Conn. App. 877 (2004) (transfer to an OBRA '93 trust (42 USC 1396p(d)(4)(A)) is a disqualifying transfer of assets for purposes of the state supplement program; although decision implies that asset in trust may be considered available for purposes of state supplement program, as of this writing 2/17/20, DSS asserts that it is not treating them as available).
  
  
• Evans v. Department of Social Services (Conn. App. Jan. 13, 2004) (construes the concept of "inaccessible" assets in statute and UPM)
  
  
• Sunrise Healthcare Corp. v. Azarigian, 76 Conn. App. 800 (May 20, 2003) (holder of power of attorney who signs a nursing home contract as "responsible party" could be liable to nursing home for principal's costs of care)
  
  
• Skindzier v. Comm'r of Social Services, 258 Conn. 642 (2001) (creation of a testamentary trust for the benefit of the surviving spouse is not a transfer, nor is trust available)
  
  
• The Jewish Home for the Elderly of Fairfield Cty., Inc. v. Cantore, 257 Conn. 531 (2001) (nursing home had right to make a claim on conservator's bond for his negligence in pursuing Medicaid)
  
  
• In re Michaela Lee, 253 Conn. 570 (2000) (probate court's "implied powers" as discussed in Saunders are limited to what is "necessary" to the performance of the court's statutory duties)
  
  
• Department Of Social Services v. Saunders, Conservatrix, 247 Conn. 686 (1999) (conservator had authority to establish OBRA '93 Trust for disabled ward as part of the duty to "manage" the estate; footnote suggests failure to do so might have been a breach of duty)
  
  
• Ahern v. Thomas, 248 Conn. 708, 733 A.2d 746 (1999) (Callahan, J.). (Affirmed lower court's decision that principal of a funded 1990 income-only trust, with a special testamentary power of appointment, duty to pay income taxes generated by capital gains the trust realizes, and discretionary power to pay estate taxes and debts, was not "available" asset after other assets were consumed 4 years later, under the pre-OBRA '93 MQT rules.)
  
  
• Bezzini v. DSS, 49 Conn. App. 432, 715 A.2d 791 (1998) (Schaller, J.) (Affirmed lower court's decision that transfer from revocable trust established and funded by community spouse to third-party beneficiaries upon community spouse's death prior to eligibility of institutionalized spouse was a disqualifying transfer with respect to the applicant, institutionalized spouse, with the penalty period commencing upon community spouse's death).
  
  
• Burinskas v. Department of Social Services, 240 Conn. 141 (1997) (Rejected request for enhanced MMNA to include expenses of paying for snow removal, home maintenance, lawn care, and housecleaning chores that the community spouse, who had emphysema, was unable to perform himself); accord, even when an additional claim regarding expenses of prescription medication:  Hogberg v. Department of Social Services, 123 Conn. App. 545 (2010).
  
  
• Department of Income Maintenance v. Watts, 211 Conn. 323, 555 A.2d 998 (1989) (Shea, J.) (Statute generally prohibiting disposition of property obtained while receiving public assistance payments precluded probate court's approval of disclaimer by conservator of ward receiving state assistance of ward's interest in testamentary trust)
  
  
• Kolodney v. Kolodney, 6 Conn. App. 118 (1986) ("Sole" discretion is not "absolute" and does not permit Trustee to withhold payments where a standard of "comfortable maintenance, support and education" was stated as the measure of distributions; distinguishes Auchincloss v. City Bank Farmers Trust Co., 136 Conn. 266, 70 A.2d 105 (1949), which had no standard and used the phrase "absolute" discretion." This interpretation is codified in Conn. Gen. Stat. sec. 17b-261(c), eff. 10/1/2001)
  
  
• State v. Murtha, 179 Conn. 463, 427 A.2d 807 (1980) (Cotter, J.) ((1) disclaimer by current Medicaid recipient is invalid; no finding whether fact that interest "vested" in beneficiary at death of benefactor would affect benefits since Title XIX only counts "available" benefits; and (2) "the state is precluded from seeking restitution, pursuant to a [statutory] lien...., of any funds correctly expended on [beneficiary's] behalf under the Title XIX program during her lifetime." at 470.
  
  
• Zeoli v. Commissioner of Social Services, 179 Conn. 83, 425 A.2d 553 (1979) (where trustee had "absolute" discretion to distribute among disabled beneficiaries or to withhold, and directed to consider other sources of support, trust not countable as a resource -- rejects state's public policy argument that "beneficiary of a private trust [should be prohibited] from receiving support at public expense")
  
  
• Bridgeport v. Reilly, 133 Conn. 31, 47 A.2d 865 (1946) (upholding principle of a "supplemental needs trust" if in line with settlor's intent -- settlor gave trustee discretion to withhold all payments (spendthrift trust), knew beneficiary was receiving benefits, and trust was not large enough to have provided all support.)
  
  
• Greenwich Trust Co. v. Tyson, 129 Conn. 211, 27 A.2d 166 (1942) (holding that a self-settled discretionary trust remains subject to the claims of the grantor's creditors, as a matter of public policy.)
  
  

Unreported cases

• In re: Dennis Balogh (Probate Court, Torrington District, March 8, 2016) (reprinted as "In re: B" in 30 Quinnipiac Probate Law Journal 5 (2016): Trustee's purchase of irrevocable funeral contract by payment from self-settled Special Needs Trust  established pursuant to 42 USC 1396p(d)(4)(A) was a proper expenditure and was for the sole benefit of the trust beneficiary.
  
  
•  In re: The Conserved, an Incapacitated Individual (Probate Court, New Haven Probate District, Oct. 1, 2012), published in 27 Quinnipiac Probate Law Journal No. 1 at 1 (2013) -- subscribe or contact the author of this page! (Holds that the requirements of 45a-655(d) respecting payment by a conservator of income to the support of a spouse permit the Court to enhance the community spouse allowance through a showing that absent the enhancement, the spouse would suffer "significant financial duress," WITHOUT REGARD to whether the financial duress itself is the result of "exceptional circumstances.")  In this odd case, the institutionalized spouse, who was under 65 and had been severely beaten and was not a recipient of Social Security at the time, was a nursing home resident who qualified for Medicaid under the Husky D program as "medically needy," [n.b -- not an option post 1/1/14] meaning that all income would have had to be paid to the nursing home, in this case about $7,000/month.  The conservator sought an order requiring that all the income be paid to the community spouse, and Judge Keyes so ordered after a lengthy analysis of the difference between "significant financial duress" and "exceptional circumstances leading to significant financial duress."  Apparently, DSS / the AG elected not to appeal this decision, perhaps fearing a precedent, but the analysis may be useful in future cases.  Quoting the decision:  "As there are no Connecticut cases addressing the meaning of 'significant financial duress' under section 45a-655(d), this Court fins, on the basis of the language of the Connecticut statute and the arguments entertained by the New Jersey and New York courts, that the exceptional circumstances standard should not be applied in a determination of whether a community spouse is beset by "significant financial duress.'"
  
  
• Griswold v. Commissioner of Social Services, No. HHB-CV-06-4012113S HAS (J.D. New Britain, May 25, 2007) (Pinkus, J.) (PDF file) (invalidates Department of Social Services decision with respect to computations of enhanced CSPA that was based on "national" interest rates of banks with no presence in CT other than through internet, rather than rates of banks doing business in Connecticut) - remand ordered to recalculate using "local" rates; Pages of Record detailing the rates used and proposed have been provided by Dillman & Pope which represented the community spouse, and are appended to the opinion.  NOTE:  this decision has been implemented in the provisions of the Uniform Policy Manual.
  
  
• State v. Hennebery (Incorrectly indexed in Casemaker as "Hanneberry."), No. CV020098667S (J.D. Middlesex at Middletown, December 16, 2003) (Aurigemma, J.) (overturns probate court order approving OBRA '93 Trust, holding that an OBRA '93 Trust established by a conservator may not include provisions purporting to render the individual eligible for programs other than Medicaid [and, presumably, SSI], on the theory that the State might be estopped from claiming later that the trust was unavailable under the Cash Assistance or other programs) -- see also Parkhurst, supra.
  
  
• Hill, Conservator v. Commissioner of Social Services (J.D ___ 2003) (value of transfer caused by purchase of annuity with term longer than "actuarially sound" should be measured by excess term, not by total amount of annuity purchase price). (PDF File, 600k) (settled)

FEDERAL CASES (in chronological order) (ESPECIALLY but not only, District of Connecticut/ Second Circuit)

• Fagan v. Bremby, 244 F.Supp. 3d 280 (D. Conn. 2017) (lump sum received by institutionalized husband and transferred to spouse subsequent to loss of benefits but prior to new application, was a transfer subject to penalty).
  
  
• Simonsen v. Bremby, No. 16-204-cv (2d Cir.  2017) (district court for District of Connecticut did not abuse its discretion in 2015 when granting a preliminary injunction against a transfer penalty, lower court's opinion based on conclusion that in treating a trust that had a spendthrift trust clause to be an available resource (such that decanting the trust was held to be a transfer of assets), DSS had used more restrictive standard than used by the Social Security Administration for determining SSI eligibility, in violation of 42 U.S.C. §§ 1396a(a)(10)(C)(i), 1396a(r)(2)(A)(i))
  
  
•  Consent decree in Shafer v. Bremby, No. 3:12cv-00039 (AWT) (D. Conn. March 28, 2014), setting forth terms to be complied with by various benchmark dates.  The decree is in effect until July  1, 2017.
  
  
• Wos v. EMA ex rel Johnson, 568 U.S. 627, 133 S. Ct. 1391 (2013), further expanding Arkansas Dept. of Human Services v. Ahlborn to make clear that a statutorily specified irrevocable presumptions as to percentage of personal injury proceeds attributable to past medical expenses, and thus subject to a recovery lien, are not appropriate, and that a case-by-case determination is required.  The opinion is also clear that state cannot declare a "lien" on anything other than reimbursements for past medical expenses, for example, on inheritances. (Note that a federal statute overruling these cases was itself repealed by the Omnibus Bipartisan Budget Act of 2018.
   
  
• Lopes v. Commissioner,  696 F.3d 180 (2d Cir. 2012), upholding  Lopes v. Starkowski,  No. 3:lO-CV-307 (JCH) (D. Conn. 8/11/2010) to invalidate Connecticut policy manual regulation counting a non-assignable spousal annuity as an available resource.
  
  
•  Fortmann v. Starkowski, No. 3:10-CV-1562 (JBA) (D. Conn. 9/28/2011) (granting preliminary injunction prohibiting DSS from denying institutionalized spouse's application on the basis of community spouse's assets because modifications to spousal "assignment of support" statute 17b-285 is preempted by federal law). (NOTE:  Mr. Fortmann died -- case is now moot.)
  
  
• Weatherbee v. Richman, No. 1:07-CV-00134, W.D. Pa. (1/21/2009), applying the decision in James v. Richman, held that a non-revocable, nontransferable annuity that otherwise complies with the Deficit Reduction Act cannot be treated as a "resource" for purposes of Medicaid eligibility, that this would conflict with federal law prohibiting deeming of community spouse income, and rejecting claim that DRA allows states to treat these annuities as resources.
  
  
• James v. Richman, 547 F.3d 214 (3 Cir. 2008) (a non-revocable, nontransferable annuity purchased prior to the Deficit Reduction Act may not be treated as an available resource for purposes of calculating Medicaid eligibility; even if it can be assigned de facto, if this cannot be done without legal liability, it is not available.)
  
  
• Wojchowski v. Daines, 2nd Cir., No. 06-3373-CV, Aug. 2, 2007. Effectively overrules Robbins v. DeBuono, 218 F.3d 197 (2nd Cir. 2000), which had held that Social Security's prohibition on involuntary assignment precludes consideration of Social Security income of institutionalized spouse when seeking to meet community spouse's MMNA, unless institutionalized spouse consents. Robbins interpretation rejected in light of Keffeler case (below); this approach was also taken in Ruck v. Novello, Commissioner (W.D.N.Y. Nov. 24, 2003).
  
  
• Arkansas Dept. of Human Services v. Ahlborn , 547 U.S. 268; 126 S. Ct. 1752 (2006). (Medicaid lien in personal injury lawsuit limited to portion of award or settlement that represents payments for medical care that had been paid through Medicaid; case involved total award that was less than medical payments because of plaintiff's contributory negligence, and state should have proportionately reduced its recovery to reflect proportionate reduction in recovery).
  
  
• Morenz v. Wilson-Coker, 415 F.3d 230 (2d Cir. July 14, 2005) (affirming district court's 2004 decision ordering Connecticut's Department of Social Service to grant Medicaid benefits to an institutionalized spouse who had assigned his rights of support to the State after the community spouse refused to pay for care -- thus ushering in to Connecticut the possibility of "spousal refusal" as a method of protecting the community spouse's standard of living. Note that at the district court level, attorneys' fees were also awarded to the community spouse.)
  
  
• Washington Dept. of Social Services v. Keffeler, 537 U.S. 371, 123 S. Ct. 1017 (2003). Applies narrow reading of "other legal process" that cannot be used to reach the institutionalized spouse's Social Security benefits; used by CT Attorney General in arguing that Robbins case was wrongly decided.
  
  
• Blumer v. Wisconsin, 534 U.S. 473, 122 S. Ct. 962 (2002). Upheld state's decision to apply "income first" methodology in meeting the community spouse's MMNA, before enhancing the spouse's CSRA.
  
  
• Skandalis v. Rowe, 14 F.3d 173 (2nd Cir. 1994) (Rejecting challenge to CHCPE waiver income cap)
  
  
• Alvarez v. Aronson (D. Conn. 1990, UNREPORTED) consent decree (45 day rule for processing Medicaid applications) - 1 mb PDF file
  
  
• Atkins v. Rivera, 477 U.S. 154 (1986) (upholds 6-month spenddown calculation for "medically needy" states, despite revisions enacted as part of  the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), § 137(a)(8), 96 Stat. 378, requiring "comparable' methodology for Medicaid and SSI determinations.  The opinion states that this proviso "operated solely to invalidate the ... regulations permitting the income and resource standards in state Medicaid plans to deviate from those used in the AFDC and SSI programs in 'such matters as deemed income, interest, court-ordered support payments, and infrequent and irregular income.' See 46 Fed. Reg. 47980 (1981)."
  
  
• Buckner v. Maher, 424 F.Supp. 366 (D. Conn. 1976) Invalidated Connecticut regulation imposing 7-year penalty period on any transfer made within 7 years prior to application on the basis that the regulation in effect irrebuttably presumed the transferred asset was available to the transferor when it was not, in fact, available, in violation of federal law.
  
  
• Labbe v. Norton (D. Conn. 1974, UNREPORTED) judgment, decree, and supplemental order 90 day rule for completing all administrative action required following request for a hearing, including issuance of any checks required as a result, and ordering that the requested relief be granted if the requirements of the decree are not met within 90 days; includes accompanying memorandum from Connecticut Legal Services to its staff) - PDF
  
  
• (reported on www.seniorlaw.com) A class action in federal court,Verdow v. Sutkowy, (PDF) 2002 U.S. Dist. Lexis 16975 (NDNY, 9/10/02), held that New York's denial of plaintiffs' Medicaid benefits because they allegedly are potential beneficiaries of self-settled trusts containing limited powers of appointment exceeds the limits of federal law and specifically is in violation of the "Medicaid Qualifying Trust" statute.
  
  

CASES FROM OTHER STATES

• Pfoser v. Harpstead (Minn. App. 2020) (DN A19-0853).  Well-reasoned decision overturns imposition of transfer penalty when 65+ nursing home resident with Parkinsons transferred $27,000 to a pooled trust on the basis that DSS should have considered the consideration he "intended" to receive based on consideration before, at, and after issuance of decision, life expectancy, etc.
  
  
• Ross v. Department of Public Welfare (Pa. Cmnwealth Court, November 15, 2007). Rejects Pennsylvania's characterization of an irrevocable, non-assignable annuity payable to the community spouse as "available asset" even though evidence that a secondary market may exists for the payments as a "stream of income," reasoning that the State's characterization impermissibly blurred the distinction in federal law between assets in income. See also Mertz ex rel. Mertz v. Houstoun, 155 F. Supp. 415 (E.D. Pa. 2001). Note: the annuity "cost" over $400,000; the stream of payments was then valued at $200,000.
  
  
• Estate of F.K. v. Division of Medical Assistance and Health Services 374 N.J.Super. 126 (App. Div.), cert. denied, 184 N.J. 209, 876 A.2d 283 (2005). (overturning NJ Medicaid agency's treatment of actuarially sound annuity FBO community spouse as an available asset based on (1) its arguments that it was purchased with an amount of assets greater than community spouse protected amount and (2) its claim that the annuity, although irrevocable and non-assignable, could be sold on a secondary market) (note that annuity named NJ as first secondary beneficiary -- perhaps most importantly, holds that Transmittal 64 (State Medicaid manual) is entitled to deference and is binding on the States unless in clear conflict with the statutes)
  
  
• In re Mildred Keri (N.J. Supreme Court, April 5, 2004): New Jersey decides to follow Shah (below) and apply a "substituted judgment" standard. "HELD: When a Medicaid spend-down plan does not interrupt or diminish an incompetent person's care, involves transfers to the natural objects of the person's bounty, and does not contravene an expressed prior intent or interest, the plan clearly provides for the best interests of the incompetent person and satisfies the law's goal to effectuate decisions an incompetent would make if he or she were able to act." Mildred Keri gave her sons a POA with gifting powers; they cared for her well; she became incompetent; her funds of approximately $250,000 would otherwise have not maintained her in a nursing home; the New Jersey Supreme Court rejected the lower court's rejection of the sons' half-a-loaf plan that had been approved by the probate court. Interestingly, the court analogizes Medicaid planning to estate tax planning -- a point often made by elder law attorneys.
  
  
• Shah v. DeBuono, 95 N.Y.2d 148 (N.Y. 2000), 711 N.Y.S.2d 824, affirming In re Shah, 257 A.D.2d 275, 694 N.Y.S.2d 82 (N.Y. App. Div. 1999).  (both appellate and underlying decisions have wonderful language approving the ethics of "medicaid planning" to the extent allowed by law. Affirms the exempt status of inter-spousal transfers of any amount without imposition of a transfer of assets penalty period and the right of community spouse to exercise the right of spousal refusal after receiving such transferred assets.)
  
  
• Gorlick v. Florida Dept. of Children & Families, 789 So.2d 1247 (Fla. Ct. App. 2001) (affirming right of spouse in Florida to exercise spousal refusal even when "assignment" to state of claim for support was executed by community spouse acting under durable power of attorney).
  
  
• Bowden v. Delaware Dept. of Health, 1993 Del. Super. Ct., LEXIS 304( Del. Super. Ct. (1993), aff'd 642 A.2d 837 (Del., 1994) (rejecting spousal refusal)
  
  
• Anna W. v. Bane, 863 F. Supp. 125 (W.D.N.Y. 1993) (federal case, but relies on the rule for "SSI states" (e.g. New York) that says rule concerning "intent to return home" cannot be more restrictive than the purely subjective test used by SSI. Connecticut is, however, a "209(b)" state that does not have to follow SSI interpretations, so this case may have limited applicability in Connecticut.)
  
  
• Spetz v. New York State Dep't of Health, 737 N.Y.S.2d 524 (Sup. Ct., Chautauqua Co., Jan. 15, 2002). (lifetime power of appointment in irrevocable trust created by petitioner's husband did not render trust available).
  

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