Pentuik v. Department of Health and Rehabilitative Services, 91-221

• Decision Date: 16 August 1991
• Docket Number: No. 91-221,91-221
• Citation: 584 So.2d 1098
• Parties: 16 Fla. L. Weekly D2183, 34 Soc.Sec.Rep.Ser. 707 Lorraine L. PENTUIK, as personal representative of the Estate of Edward Mackey, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 1098

584 So.2d 1098

16 Fla. L. Weekly D2183, 34 Soc.Sec.Rep.Ser. 707

Lorraine L. PENTUIK, as personal representative of the Estate of Edward Mackey, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

No. 91-221.

District Court of Appeal of Florida,

First District.

Aug. 16, 1991.

Helen M.E. Stevens of Florida Rural Legal Services, Inc., Fort Meyers, for appellant.

Anthony N. DeLuccia, Jr., District Legal Counsel, Dept. of Health and Rehabilitative Services, Fort Meyers, for appellee.

SHIVERS, Judge.

This appeal is from a final order entered by a Client Appeal Hearings Officer affirming the Department of Health and Rehabilitative Services' denial of Medicaid benefits under the Institutional Care Program. We reverse.

Edward Mackey suffered a heart attack in 1968. He could no longer take care of himself as his wife had died, so he moved in with his daughter--Lorraine Pentuik. At his daughter's he had a walker, a wheelchair, and a hospital bed. He could manage to get from the bed to the bathroom and to the dining room table. A trapeze had been installed over the hospital bed. Beginning in 1968, Mackey lived with his daughter Lorraine for the next twenty two years. During that time Mackey received income from social security and a pension. His expenses were minimal, and a substantial amount of his savings was deposited in an account held jointly by Mackey and his grandson Ronald.

Mackey's health began deteriorating in 1985. In January 1990 Mackey was hospitalized for two weeks with breathing problems. After his release, he learned he needed prostate surgery. He was hospitalized again on February 6, 1990. On February 7--at Mackey's request--Ronald withdrew his half of the savings account and wrote six checks for the remaining half made out to Mackey's two daughters, Ronald and three other grandchildren. Mackey signed the checks. The prostate surgery was performed on February 8. The children and grandchildren spent all the money.

Following the prostate surgery, Mackey became incontinent. He lost control of his bowels and bladder and the use of his limbs. His arthritis worsened so that his daughter could not lift him to get a diaper under him. He was released from the hospital into a nursing home as a "total care" patient on March 5, 1990. On May 14, 1990, Ronald applied for Institutional Care Program (ICP) benefits on Mackey's behalf. ICP is a Medicaid program run by the Department of Health and Rehabilitative Services (HRS). On July 23, 1990, HRS denied the application on the ground Mackey transferred the savings account assets without receiving compensation. A period of ineligibility for ICP benefits was imposed from February 1990 through April 1991. The nursing home notified Mackey and his family that Mackey might be evicted unless the nursing home bills were paid.

Mackey appealed the denial of ICP benefits. An administrative hearing was convened at the nursing home on November 29, 1990. Ronald testified he transferred the money out of the savings account under Mackey's instructions; but since it was a joint account, Ronald acknowledged he could have transferred the entire account at any time. Ronald said Mackey gave away the money because Mackey "was afraid that he was going to die in this operation and it would ease his mind to disburse it." Lorraine testified that Mackey planned on giving away the money for years because Mackey was afraid of dying. She said her father was sure the prostate operation would kill him. Lorraine expected Mackey to return to her home if he lived through the operation; but Mackey's incontinence and inability to ambulate after the operation made it impossible for Lorraine to care for him.

The hearing moved to Mackey's room. Mackey said he gave away the money "Cause I don't think I was going to live through it and I wanted them to enjoy it while I was alive." Mackey said he expected to live with Lorraine again if he survived the operation. Mackey was asked if he thought the state would take care of him if he gave away his money. He answered, "No, I didn't think the state had anything to do with it."

The hearing officer denied the appeal on the ground that Mackey did not carry his burden of proving that the transfer occurred exclusively for a reason other than to become Medicaid eligible pursuant to F.A.C. Rule 10C-8.0181(1)(b). Mackey died three weeks after the hearing officer's order was entered. Lorraine was appointed as Mackey's personal representative.

Florida Administrative Code Rule 10C-8.0181 deals with the effect of a transfer of assets for the purpose of establishing Medicaid eligibility. Subsection (1) states that

If an individual who is applying for ... nursing facility services ... transfers assets within 30 months of application [and after July 1, 1988] without fair...