Tucek v. Dept. of Social Services, No. 24444.

CourtSupreme Court of South Dakota
Writing for the CourtSabers
Citation2007 SD 106,740 N.W.2d 867
PartiesTillie TUCEK, Appellant, v. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, Appellee.
Decision Date17 October 2007
Docket NumberNo. 24444.
740 N.W.2d 867
2007 SD 106
Tillie TUCEK, Appellant,
v.
SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, Appellee.
No. 24444.
Supreme Court of South Dakota.
Considered on Briefs on August 27, 2007.
Decided October 17, 2007.

[740 N.W.2d 869]

Douglas R. Kettering of Kettering Law Office, Yankton, South Dakota, Attorney for appellant.

Lawrence E. Long, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Legal Division, Department of Social Services, Pierre, South Dakota, Attorneys for appellee.

SABERS, Justice.


[¶ 1.] After the Department of Social Services (DSS) sent Tillie Tucek a notice that her long-term care benefits under Medicaid would be terminated, Tucek applied for a hearing. The administrative law judge (ALJ) initially found in favor of Tucek in a pending decision, but later found in favor of the Department. The circuit court affirmed the termination of Tucek's long-term care benefits. Tucek appeals. We affirm.

FACTS

[¶ 2.] In 1995 and 1996, Tucek purchased five annuities from Lee Skalberg, an agent for Conseco Annuity Assurance Company (Conseco). She paid $10,000 each for the first four annuities in 1995 and $40,000 for the fifth annuity in 1996. The chosen settlement option of the annuities was for "life or twenty years certain." Tucek was to receive payments for her life; or if she were to die within twenty years of purchasing the annuities, her chosen beneficiary would receive the payments for the remainder of the twenty years.

[¶ 3.] Tucek went to live in a nursing home in September of 1999. For the next three years, Tucek paid for her own nursing care costs.

[¶ 4.] In 2002, the five annuities were rolled into a structured settlement, entitled Contract # SS976057.1 Tucek alleged she had no control over the settlement option and the company, of its own accord, rolled all the annuities into the structured settlement. Once the annuities had been combined, Tucek claimed the original five annuities were surrendered to Conseco and were no longer in Tucek's possession, or in the possession of her daughter, as her power of attorney, or the insurance agent.

[¶ 5.] In February of 2003, she applied for long-term care assistance through DSS. As a part of the application, Tucek listed all assets, including the annuities. The DSS verification form reflected the 1995 annuities and did not show the 2002 consolidation. Tucek was over the resource limit due to her interest in a life estate, so her application was rejected. She sold her interest in the life estate and reapplied for assistance in March of 2003. This application was granted and Tucek began receiving long-term care assistance through DSS.

[¶ 6.] In 2004, Tucek's case was chosen to be reviewed by DSS personnel as part of its quality control review process. During this review, DSS discovered that the original annuities were rolled into the 2002 structured settlement. Finding that the annuity was an available resource, which placed Tucek over the resource limit, DSS sent her notice that her assistance would end March 2005. She requested an administrative hearing, which was held August 1, 2005.

[¶ 7.] At the hearing, despite a subpoena for the contracts, neither the original annuity contracts nor the contract for the structured settlement were in evidence.

740 N.W.2d 870

Instead, the insurance broker Skalberg testified that all the annuity contracts were the same, Tucek had no control over the settlement option, and the decision to roll the annuities into the structured settlement was arrived at by the company based on the settlement options in the original five annuities.2 Skalberg and Lillian Schlechter, Tucek's daughter and power of attorney, testified that neither the structured settlement nor the original annuities could be cashed, sold or borrowed against because they only guarantee a stream of payments during her life.

[¶ 8.] As the hearing on August 1 ended, the ALJ stated that "we may have another hearing or I may have a telephone conference to get more information or more documents." However, the ALJ issued a pending decision on August 4, 2005, which found in favor of Tucek. DSS moved to reopen the hearing for additional evidence and for additional time to obtain copies of the annuity contracts from Conseco. Despite Tucek's resistance, the ALJ granted the motion and ordered the matter stayed for 90 days.

[¶ 9.] A second hearing was held February 16, 2006. Again, the attempts to obtain the annuity contracts failed. Conseco supplied a specimen contract to Tucek, who then gave it to DSS. It was admitted into evidence, over Tucek's objection. After this hearing, the ALJ issued a second pending decision, this time in favor of DSS.

[¶ 10.] Tucek objected to the pending decision, but the ALJ issued a final decision on April 4, 2006, adopting the second pending decision. In this decision, the ALJ found that Skalberg's testimony was incorrect. It noted that Skalberg testified that the annuity policies were all the same and annuities could not be cashed, sold, or borrowed against. Contrary to his testimony, the specimen contract allowed for a change in ownership, withdrawals and lump sum payments. Other documentation provided demonstrated Tucek participated in the combining of the annuities. This raised a question regarding the terms of Tucek's annuity contracts. The ALJ concluded her contracts were necessary in order to determine whether she was eligible for benefits. Therefore, the ALJ found Tucek did not provide DSS with sufficient information to determine her eligibility for long-term care assistance and that DSS could terminate her long-term care assistance pursuant to ARSD 67:46:03:01.

[¶ 11.] Tucek appealed to the circuit court, which affirmed the ALJ's decision. Tucek appeals.

Whether DSS was correct in terminating Tucek's long-term care assistance for failure to provide sufficient evidence of eligibility.

STANDARD OF REVIEW

[¶ 12.] In an appeal from a circuit court's review of an administrative agency's decision, "we review the agency's decision unaided by any presumption that the circuit court's decision was correct." Huber v. Dep't of Public Safety, 2006 SD 96, ¶ 10, 724 N.W.2d 175, 178 (quoting Meligan v. Dep't of Revenue & Regulation, 2006 SD 26, ¶ 13, 712 N.W.2d 12, 17 (quoting Kassube v. Dakota Logging, 2005 SD 102, ¶ 25, 705 N.W.2d 461, 465)). "The Department's factual findings and credibility determinations are reviewed under the clearly erroneous standard." Id. (quoting Kuhle v. Lecy Chiropractic, 2006 SD 16,

740 N.W.2d 871

¶ 15, 711 N.W.2d 244, 247 (citing Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83)). "Questions of law are reviewed de novo." Id. "Mixed questions of fact and law are fully reviewable." VanSteenwyk v. Baumgartner Trees & Landscaping, 2007 SD 36, ¶ 10, 731 N.W.2d 214, 218 (quoting Orth v. Stoebner & Permann Const., Inc., 2006 SD 99, ¶ 27, 724 N.W.2d 586, 592...

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1 practice notes
  • Fin-Ag, Inc. v. Feldman Bros., No. 24431.
    • United States
    • Supreme Court of South Dakota
    • 17 Octubre 2007
    ...Shaull by NBP satisfied the feed debt. [¶ 39.] In this case, Fin-Ag did not protect or maintain its collateral. As the trial court found, 740 N.W.2d 867 Fin-Ag permitted Shaull to sell its collateral without its prior approval. Fin-Ag permitted Shaull to sell its collateral at public auctio......
1 cases
  • Fin-Ag, Inc. v. Feldman Bros., No. 24431.
    • United States
    • Supreme Court of South Dakota
    • 17 Octubre 2007
    ...Shaull by NBP satisfied the feed debt. [¶ 39.] In this case, Fin-Ag did not protect or maintain its collateral. As the trial court found, 740 N.W.2d 867 Fin-Ag permitted Shaull to sell its collateral without its prior approval. Fin-Ag permitted Shaull to sell its collateral at public auctio......

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