Judith Hoberman*

Lea Nordlicht Shedd

CBA Elder Law Section Meeting

April 26, 2005

TREATMENT OF PAYMENTS RECEIVED BY HOLOCAUST VICTIMS IN THE

MEDICAID PROGRAM

I. BACKGROUND

A. Law of Other Countries

1. The [West German] Federal Law for the Compensation of Victims of National Socialist Persecution (amended and supplemented to 06/18/56), referred to as “Federal Compensation Law - BEG[1]" -

IN RECOGNITION OF THE FACT that wrongs have been committed against persons who, under the oppressive National Socialist regime, were persecuted because of their political opposition to National Socialism or because of their race, religion or ideology... persecutee[s] ... [and/or their survivors in certain instances,] ...shall have...claim[s] for compensation.

See also SSA POMS §SI00830.710. For a longer description of German compensation programs, see a summary provided by the Department of Justice and posted on the website of the United States Holocaust Memorial Museum.

2. Austrian General Social Insurance Act (GSIA) - “social insurance payments. . based...on wage credits granted under [certain provisions of the Act] to individuals who suffered a loss during the period March 1933 to May 1945 for political, religious or ethnic reasons.” SSA POMS §SI00830.715A

3. Netherlands’ Act on Benefits for Victims of Persecution 1940-1945 (WUV) — “payments to . . . victims of persecution because of their race, religion, beliefs, or homosexuality and, as a result of that persecution are presently suffering from illnesses or disabilities.” SSA POMS §SI00830.725

B. Case Law

1. Grunfeder v. Heckler, 748 F2d 503 (9th Cir. 1984) - German reparation benefits must be excluded as countable income in SSI eligibility determination.

2. Bondy v. Sullivan, 1991 WL 193535 (M.D. Cal. 1991)- Attorney’s fees awarded to prevailing plaintiff where DHHS’s consideration of Austrian reparation payments as countable income in determining SSI eligibility was found not substantially justified.

3. Holocaust Victim Assets Litigation, (E.D.N.Y., CV96-4849)- Action against Swiss banks and other Swiss entities for those “persecuted or targeted for persecution because they were or were believed to be Jewish, Romani, Jehovah Witness, homosexual, or physically or mentally disabled or handicapped,” and those who performed “slave labor for an entity headquartered, organized or based in Switzerland.” See http://www.swissbankclaims.com/

II. Current Law

B. Federal Law

1. Nazi Persecution Victims Eligibility Act, Pub.L. 103-286 (8/1/94) --

Payments. . . to. . . victims of Nazi persecution shall be disregarded in determining eligibility for and the amount of benefits or services to be provided under any Federal or federally assisted program which provides benefits or services based, in whole or in part, on need.

2. Supplemental Security Income (551) Eligibility

a. Payments made to victims of Nazi persecution pursuant to Public Law 103-286 are excluded as income. 20 CFR Part 416 Subpart K, App.§V(g), SSA P0MS §SI 01130.610

b. Payments made to victims of Nazi persecution pursuant to Public Law 103-286 are excluded as resources. 20 CFR 416.1236 (a)(18). These funds must be segregated and not commingled with other countable resources so that they are identifiable. 20 CFR 416.1236(b), SSA POMS § SI 01130.70

C. Connecticut Law

1. Connecticut Medicaid Eligibility

a. Excluded assets:

i. “payments made to victims of Nazi persecution pursuant to Public Law l03-286.” UPM Sec. 4020.10G.2 1

ii. “reparation payments made to holocaust victims by the Federal Republic of Germany.” UPM Sec. 4020.10G.15 (eff. 1/1/91). See DSS UPM Policy Transmittal No. UP-91-17.

iii. “reparation payments made under (certain provisions] of the Austrian General Social Insurance Act.” UPM Sec. 4020.10G.l8 (eff. 9/1/91)

b. Excluded income:

i. “payments made to victims of Nazi persecution pursuant to Public Law 103-286.” UPM Sec. 5015.l0F.29

ii. “reparation payments made to holocaust victims by the Federal Republic of Germany.” UPM Sec. 50l5.10F.23 (eff. 1/1/91) . See DSS UPM Policy Transmittal No. UP-91-17

iii. “reparation payments made under (certain provisions] of the Austrian General (sic] Insurance Act.” UPM Sec. 50l5.l0F.26 (eff. 9/1/91)

2. By statute, Connecticut excludes from income “Holocaust victims’ settlement payments” made to Holocaust victims in determining “eligibility for, or the benefit level of, such individual in any needs-based program under the general statutes,” or in determining the victim’s ability to repay benefits as a legally liable relative. Conn. Gen. Stat. § 1-1l (eff. 05/26/00). See Corn. Gen. Stat. § 12-701(35) and (36) for definitions of “Holocaust victim settlement payment” and “Holocaust victim.”

III. Medicaid Estate Recovery of Payments Made to Victims of Nazi Persecution.

A. “Government reparation payments to special populations are exempt from Medicaid estate recovery.” HHS/CMS State Medicaid Manual Sec. 38l0A.8 (eff. 02/15/01)

B. Connecticut’s position ?

04/26/05