| Matter of Schneider |
| 2010 NY Slip Op 00971 [70 AD3d 842] |
| February 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Leon Schneider, Deceased. BethSchneider, Appellant; Nassau County Department of Social Services,Respondent. |
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In a probate proceeding in which the executrix petitioned pursuant to SCPA 1809 todetermine the validity of a claim against the estate of Leon Schneider, the petitioner appeals, aslimited by her brief, from so much of a decree of the Surrogate's Court, Nassau County (Riordan,S.), dated January 22, 2008, as denied that branch of the petition which was to invalidate a claimof the Nassau County Department of Social Services, and granted the petition only to the extentof determining that the estate is not obligated pay so much of that claim as would impinge on aspecific bequest to contingent legatee Marc Schneider.
Ordered that the decree is modified, on the law, by deleting the provision thereof grantingthe petition only to the extent of determining that the estate is not obligated to pay so much ofthe claim of the Nassau County Department of Social Services as would impinge on a specificbequest to contingent legatee Marc Schneider, and substituting therefor a provision granting thepetition to the extent of decreeing that the sum of $279,883 shall be paid by the estate to theNassau County Department of Social Services in full satisfaction of that claim; as so modified,the decree is affirmed insofar as appealed from, without costs or disbursements.
The decedent, Leon Schneider (hereinafter Leon), and his wife, Zeena Schneider (hereinafterZeena), had two children, one of whom, Marc Schneider (hereinafter Marc), is severely mentallydisabled. In December 1995 Leon executed a declaration pursuant to which he refused to makehis resources available for Zeena's medical care. By means of a power of attorney, he alsoexecuted, on Zeena's behalf, an assignment to the Nassau County Department of Social Services(hereinafter DSS) of her right to seek support from him. On June 10, 1996, Zeena, who hadAlzheimer's disease, was placed in a nursing home and began receiving Medicaid benefits,leaving Leon as the "community spouse" within the meaning of the federal Medicaid statute(see 42 USC § 1396r-5 [h] [2]).
Leon died testate on October 3, 2002. His will, offered for probate, provided that hisresiduary estate would go to Zeena in a special needs trust, and that, upon her death, theremaining trust [*2]funds were to be distributed in specificbequests to contingent legatees, which included a bequest in the sum of $15,000 to Marc, whichwas to be placed in a special needs trust for Marc's benefit. A guardian ad litem was appointedfor Zeena in this probate proceeding, and he was directed to exercise Zeena's right of electionagainst Leon's estate. However, Zeena died on December 3, 2003, before the guardian ad litemcould exercise that right.
DSS filed a claim against Leon's estate in the sum of $386,382.77 to recoup Medicaidbenefits it provided to Zeena from June 10, 1996, to October 3, 2002, the date of Leon's death.The claim was rejected by Leon's estate. The petitioner, as executor of Leon's estate, thenpetitioned the Surrogate's Court to determine the validity of DSS's claim. The Surrogate's Courtdenied that branch of the petition which was to invalidate the claim, and determined that theclaim is valid and must be paid by the estate, except that it granted the petition only to the extentof determining that the estate is not obligated to pay so much of the claim as would impinge onthe specific bequest to Marc. The petitioner appeals, and we modify the decree.
Contrary to the petitioner's contention, DSS may recover, from the estate of the communityspouse, the cost of Medicaid benefits paid for the care of an institutionalized spouse, so long asthe community spouse was a "responsible" relative pursuant to Social Services Law § 101,in that he or she possessed sufficient means to pay the institutionalized spouse's medicalexpenses at the time when the expenses were incurred (see Matter of Tomeck, 8 NY3d 724, 739-740 [2007]; Matter ofCraig, 82 NY2d 388, 393-394 [1993]; Matter of Klink, 278 AD2d 883 [2000];see also Matter of Shah [Helen Hayes Hosp.], 95 NY2d 148 [2000]; Sherman v DeRosa, 34 AD3d782, 783 [2006]; Commissioner of Dept. of Social Servs. of City of N.Y. vSpellman, 243 AD2d 45, 48-49 [1998]; 42 USC § 1396k [a] [1] [A]; § 1396a[a] [25]; § 1396r-5 [c] [2]; Social Services Law §§ 101, 366 [3]).
Moreover, the limitation on recoveries from a Medicaid recipient's estate where the recipientis survived by a permanently disabled child (see 42 USC § 1396p [b] [2]; SocialServices Law § 369 [2] [b] [ii]; Matter of Andrews, 234 AD2d 692, 692-693[1996]; Matter of Samuelson, 110 AD2d 187, 192-197 [1985]; Matter ofBurstein, 160 Misc 2d 900, 901-902 [1994]) is inapplicable here, where the DSS does notseek recovery from the estate of the institutionalized spouse for medical benefits that it furnishedto her pursuant to Social Services Law § 366 (3) but, rather, seeks recovery from the estateof the community spouse (see Social Services Law § 369 [2] [b] [ii]).
Assessment of the community spouse's means is made at the time when the institutionalizedspouse applies for benefits (see Matter of Tomeck, 8 NY3d at 733; Commissioner ofDept. of Social Servs. of City of N.Y. v Fishman, 280 AD2d 396, 398 [2001]). TheMedicaid worksheet prepared by DSS in conjunction with Zeena's application for Medicaidbenefits shows that, at the time that Zeena applied to DSS for Medicaid benefits, Leon possessedresources in the sum of $268,048 in excess of the community spouse resource allowance(hereinfter CSRA), and earned the sum of $157.80 in monthly income in excess of the minimummonthly maintenance needs allowance (hereinafter MMMNA). Leon failed to seek a fair hearingto challenge the adequacy of the MMMNA or CSRA at the time of assessment (see 42USC § 1396r-5 [e]; Social Services Law § 366-c [8]) and, thus, the executor of hisestate is foreclosed from doing so now.
Since Leon had excess resources at the time of Zeena's application for Medicaid benefits, hewas a "responsible" relative pursuant to Social Services Law § 101. Consequently, animplied contract to reimburse DSS for his wife's medical expenses was created (seeSocial Services Law §§ 101, 366 [3]; Matter of Tomeck, 8 NY3d at 739,740; Matter of Shah [Helen Hayes Hosp.], 95 NY2d at 161; cf. Matter of Craig,82 NY2d at 393-394). However, DSS may recoup benefits paid only to the extent that Leon, as aresponsible relative, had "available resources" (Sherman v DeRosa, 34 AD3d at 783;see Commissioner of Dept. of Social Servs. of City of N.Y. v Spellman, 243 AD2d at49). Accordingly, DSS may recover only the excess resources and the 75 monthly contributionsit made to cover those of Zeena's medical expenses for which Leon was responsible (see42 USC § 1396r-5 [c] [2]; [d]), that is, the sum of $279,883. Therefore, we modify thedecree so as to grant the petition to the extent of decreeing that the sum of $279,883 shall be paidby the estate to DSS in full satisfaction of its claim. Covello, J.P., Santucci, Miller and Eng, JJ.,concur.