Simmons v. Daines

• Decision Date: 18 March 2010
• Citation: 71 A.D.3d 1322,898 N.Y.S.2d 283
• Parties: In the Matter of Henry SIMMONS, Petitioner, v. Richard F. DAINES, as Commissioner of Health, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 283

71 A.D.3d 1322

In the Matter of Henry SIMMONS, Petitioner,

v.Richard F. DAINES, as Commissioner of Health, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

March 18, 2010.

Kehoe & Merzig, Oneonta (Cynthia Feathers, Saratoga Springs, of counsel), for petitioner.

Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.

Before: CARDONA, P.J., MERCURE, MALONE JR., KAVANAGH and McCARTHY, JJ.

MALONE JR., J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chenango County) to review a determination of respondent Commissioner of Health which, among other things, found petitioner ineligible for Medicaid benefits for a period of time because he improperly transferred assets for less than fair market value.

Petitioner and his wife applied for Medicaid nursing home services benefits in July 2007. During the application review process, respondent Acting Commissioner of Otsego County Department of Social Services discovered, as is relevant here, that in July 2006, petitioner's son, James Simmons, who held power of attorney for petitioner, had deposited $47,200 into a bank account owned solely by petitioner and then, over the next six months, withdrew more than $50,000 from that account. Based on these transfers, as well as others, the Otsego County Department of Social Services (hereinafter DSS) determined that petitioner and his wife had transferred assets for less than fair market value and, consequently, were collectively ineligible for nursing home coverage for a period of 14.11 months ( see 42 USC § 1396p [c][1]; Social Services Law § 366[5][a], [d] ).

At the subsequent administrative hearing, Simmons testified that he had transferredthe $47,200 into petitioner's bank account because lawsuits had been filed against his corporation and he was concerned that "somebody was going to attach" the money. He stated that when he withdrew the money, he used it to pay "bills," some of which were petitioner's. The Administrative Law Judge (hereinafter ALJ) determined that DSS properly concluded that the $47,200 was attributable to petitioner as an asset pursuant to the nonrebuttable presumption of the applicable regulations ( see 20 CFR 416.1208[b]; see also 18 NYCRR 360-4.4[b][1] ). However, the ALJ found that the money withdrawn by Simmons from petitioner's account may have been used to pay legitimate expenses incurred by petitioner and his wife, which would not be considered uncompensated transfers. Accordingly, the ALJ remitted the matter to DSS to "re-calculate and modify the penalty periods, taking into account whether any amounts paid out of [petitioner's account] on and after July 10, 2006 were used to pay expenses incurred by [petitioner and his wife]," and directed that petitioner be provided with an opportunity to submit additional documentation. Petitioner then commenced this CPLR article 78 proceeding, asserting, among other...