Estate of Krueger Ex Rel. Krueger v. Richland County Social Services

KRUEGER, Roland The ESTATE OF KRUEGER, personal

by Leontina Appellee,

representative, SER- SOCIAL

RICHLAND COUNTY County

VICES, Service Richland Social

Board, Department of Dakota North Services, Appellants.

Human No. 940128.

Civ.

Supreme of North Dakota. Court 20, 1994.

Dec. (argued), Legal

Duane Assistance Houdek Dakota, Bismarck, appellee. of North Gen., (argued), Atty. R. Mullen Asst. Jean Office, Bismarck, Atty. appel- General’s lants.

NEUMANN, Justice. County

Richland Social Services and (collectively Department of Human Services judgment re- “Department”) appeal from a Ro- versing Department’s decision that land could not transfer a Veterans and attendance allowance Administration aid community spouse, but instead had to his to his apply the allowance judgment affirm We reverse the costs.1 Department’s decision. veteran, Krueger, 80-year military old County nursing home in a Richland resided wife, Leontina, continued to reside his while in their marital residence Jamestown. died, wife, N.D.R.App.P. Krueger, party Roland and his Leontina stituted estate, representative was sub- 457 Krueger qualified persons for medical assistance whose income and re (“Medicaid”) pay nursing for his home sources are insufficient to meet the financial necessary In care. addition his Veterans Adminis- demands of care and services. At Rivera, security 154, 156, payments, tration kins v. social 477 U.S. 106 S.Ct. (1986). Krueger also received an aid and attendance 91 L.Ed.2d 131 aOnce allowance from the participate, govern Veterans Administration. state elects to the federal December.1992, Department In informed ment shares the costs if the state’s Krueger recipient complies that his requirements with the of the Act figure had increased to This regulations and the related $336. by deducting Atkins, was arrived at of Health and Human Services. 477 $45 154-55, 2457; allowance from an increased aid and attend- U.S. at 106 S.Ct. at 42 U.S.C. effect, ance allowance of when 1396a. $381. Krueger’s aid and attendance allowance in- The Medicaid coverage mandates creased, increased the “categorically needy,” for the Krueger nursing amount had to to the 1396a(a)(10)(A), already eligible who are

home before Medicaid would the remain- Dependent receive Aid to Families with Chil der of the cost. (“AFDC”) dren Supplemental Security In (“SSI”). Atkins,

Krueger sought to transfer to Leontina for come All U.S. at community spouse her maintenance S.Ct. at 2458. States elect to determine eligibility categorically needy by rather than for the us apply it to the cost of his pre-1972 care. either SSI standards or their request. Krueg- eligibility denied his standards. Schweiker v. court, Panthers, appealed arguing Gray 38-39, er to the district 453 U.S. 101 S.Ct. 2633, 2637-2638, applicable (1981); regulation, administrative 69 L.Ed.2d 460 1396a(f). 75-02-02.1-34(5)(a), was U.S.C. A state that bases its contrary coverage pre-1972 to federal law and that he should be on its standards is re 209(b) preserve “§ able the aid and attendance al- ferred to as a state” and is not required provide coverage recipi lowance maintenance of his to SSI generally ents who do not meet the more court, ruling Department’s pre-1972 eligibility requirements. restrictive law, regulation conflicted with federal held Brown, Tokarz, Krauskopf, R. J. K. and A. the Veterans Administration aid and Bogutz, Advocacy Aging Elderlaiv: attendance allowance could not be counted as (2d 1993) (“Elderlaiv”). § 11.1 ed. North post-eligibility phase 209(b) Dakota is one of twelve states. Id. determining the extent of Medicaid assis- at n. 4. tance, and that the aid and attendance allow- applied eligibility entirely ance could be to maintenance of SSI standards are not 209(b) spend Leontina because it was “his to as he irrelevant in states. States are also pleases, Department appealed. permitted coverage “optional ...” The to extend to the is, categorically needy,” that those who are appeal When an from an administra qualified for some do not for SSI but reason agency legal question, tive involves a as is it, qualify receive or who fail to for SSI here, agency’s the case we will affirm because of their institutionalized status. it is not in with decision unless accordance 265, 268-269, Herweg Ray, 455 U.S. Moore, the law. Hettich v. 514 N.W.2d 1062-1063, (1982). S.Ct. L.Ed.2d 137 (N.D.1994); §§ N.D.C.C. 28-32-21 and coverage can extend to the “medi States also 28-32-19. cally needy,” eligibili nonfinancial who meet ty requirements for AFDC or SSI but have I exceeding income or financial resources Atkins, eligibility programs. program, The Medicaid enacted in 1965 as standards of those 157-59, Act, Security Title XIX of the 106 S.Ct. at 2459. Social U.S. 4 1396-1396u, cooperative coverage §§ to both the is a feder- North Dakota extends needy” designed “optional categorically and the “medi- al-state venture afford medical high aging couples 75-02- faced with the cost cally needy.” See N.D.Adm.Code 02.1-05(2) (3). Dept. home care.” Ford v. Iowa (Iowa Services, Human 500 N.W.2d dispute falls There is no 1993). 105(11), H.R.Rep. also “medically needy” group. States within the (1988), reprinted 65-68 Sess. medically needy electing to assist 803, legis 1988 U.S.C.C.A.N. 888-892. eligibility under standards determine spouse” as lation defines an “institutionalized “comparable for all are “reasonable” and an individual who “is in a medical institution 1396a(a)(17). § groups.” In addi- 42 U.S.C. nursing facility” “is to a or and married tion, single plan must describe “the state in a spouse medical institution or who is determining in- employed in standard to be § nursing facility....” 42 1396r- U.S.C. ..., eligibility come and resource and 5(h)(1). “community spouse” “the A is determining- methodology employed to be spouse.” of 42 spouse an institutionalized eligibility, be no more such shall 1396r-5(h)(2). law, prior § U.S.C. Under methodology which would strictive than the ” nearly couple’s all be of a assets had to 42 employed .... [SSI AFDC] under or satisfy depleted either could Med before one 1396a(a)(10)(C)(i)(III). § At- See also U.S.C. eligibility requirements, leaving inade icaid 2459; kins, 157-59, 477 at 106 U.S. S.Ct. at quate support and resources income Thus, 435.401(c). eligibility § 42 C.F.R. Ford; community Elderlaw be no more restrictive than standards can impoverishing § 11.30. To avoid the commu program. those used under the SSI nity spouse, in the Act clarifies Medicaid Determining participation an applicant’s provides eligibility guidelines and come two-phase process: involves allowance, community spousal thus greater first, determining eligibility fi medical and community spouse (usually permitting “the eligibility applicant’s nancial on the based wife) retain sufficient and as income resources; second, income and and determin community disqual live sets to in the ing the to which the extent assistance eligi ifying spouse the institutionalized from applicant eligible calcula is based on another 11.30, § bility for Medicaid.” 1 Elderlaw second, purpose tion of income.2 Ford; Ives, p. 395. See also Whitehouse phase, post-eligibility calculation of income (D.Me.1990). F.Supp. recipient’s share of the cost determine Griep for medical services. See Sherman v. community spouse permitted A a “re- (D.Nev.1991). entrog, F.Supp. allowance,” generally source defined as one- resources, couple’s total half of countable II $60,000, adjusted annually accord- or sum index, price Congress enacted the Medicare to the consumer whichever is 1396r-5(c) Act, (f)(2); Catastrophic Coverage less. 75-02-02.1-24(3). 1396r-5, part designed “to A com- which was in N.D.Adm.Code hardship by munity spouse “monthly permitted is also ameliorate the financial suffered Ives, are, with in LaMore v. 977 F.2d as determined in accordance Described (1st Cir.1992), virtually impenetrable prescribed by Secretary, "a thick- avail- standards (in recipient legalese gobbledygook,” applicant et 42 U.S.C. able or 1396a(a)(17) any applicant two-phase recipient who is said to mandate this case of or resources, would, except process: for income eligible aid or in the form of for assistance plans "§ 1396a. State medical assistance for any plan money payments the State under "(a) Contents I, XIV, X, approved subchapter plan "A State for medical assistance must— XVI, IV, part subchapter A of to have respect supplemental him secu- with rity "(17) subchapter XVI of income benefits under ... include reasonable standards (or (which chapter) disregarded groups this as would not be comparable shall be for all needs) ...) determining eligibility set aside for future determining and the aid, assistance, eligibility for such or bene- under the extent fits, (C) (A) objectives provide for with reasonable evaluation resources, consistent (B) taking (Empha- subchapter, income or ...” such added). sis into income and resources account allowance,” depends “min- §§ on the See 38 seq.; §§ 1101 et 1301 et seq.; §§ monthly seq. imum Compensation maintenance et needs allow- monthly ance,” payment “a $1,500, Secretary made a maximum sum of inclusive of to a veteran because service-connected an excess shelter which is also disability, child, surviving spouse, to a subject adjustment. to annual parent of a veteran because of the service- 5(d)(1)(B), (d)(2), (d)(3)(C); 1396r— connected death of veteran occurring be- 75-02-02.1-24(5)(b)(2).3 101(13). January fore 1957.” 38 U.S.C. An spouse institutionalized is allowed to Dependency indemnity compensation transfer whatever income the “a made bring spouse’s monthly needs to child, (A) surviving to a spouse, parent income to minimum maintenance because of a service-connected death occur- Ford, needs allowance. See at N.W.2d (B) ring after pursu- December or 28; 1396r-5(d)(l)(B) § (d)(2); 42 U.S.C. ant to the election of a surviving spouse, 75-02-02.1-24(5)(b)(2). § If child, parent, in the case of such a death spouse, the income of the institutionalized occurring January before 1957.” 38 community combined with the income of the 101(14). § pension U.S.C. A monthly is “a spouse, is insufficient to reach minimum periodic payment by other made the Secre- monthly allowance, maintenance needs tary service, ato veteran because of age, or community spouse is not entitled to a cash disability, non-service-connected or to a sur- grant bring from the state to the combined viving spouse or a child of veteran because of level, 11.33, § income to that 1 Elderlaiv but the non-service-connected death of the veter- may apply instead for an increase in 101(15). § an.” 38 pension pro- U.S.C. community spouse gram resource allowance to “an program designed is a needs-based to provide adequate persons amount income assistance to such a minimum those specified whose fall incomes below levels. maintenance needs allowance.” § See 38 U.S.C. 1396r-5(e)(2)(C). § See also 75-02-02.1-24(7)(e); N.DAdm.Code Ford. receiving In addition to these benefits un- compensation der pension programs, In determining the amount of an institu- veterans, surviving spouses, disabled and de- spouse’s tionalized ap- income that is to be pendent surviving parents or children plied monthly for the costs of also be entitled to an aid and attendance care, institutional institutionalized See, 1114(r)(l), e.g., §§ allowance. 38 U.S.C. spouse’s monthly income must be reduced 1521(d) 1115(1)(E), 1311(c), 1502(b), 1315(g), (1) by: a needs allowance for the (f). person A is considered in need of (2) spouse; community institutionalized a regular person aid and attendance if the “is spouse monthly only but (1) (2) patient a in helpless home or the extent income of the institutionalized blind, nearly helpless or so or blind as to is made available to the regular need or aid and attend- (3) spouse; family allowance for each de- person.” ance of another (4) member; pendent family amounts for 1115(1)(E), 1502(b). 1311(c), §§ 1315(g), expenses incurred for medical or remedial 3.351(b) (c). also 38 C.F.R. care for the institutionalized pro- of Veterans Affairs has 1396r-5(d)(l); N.D.Adm.Code mulgated regulations to determine need for 75-02-02.1-24(5)(b). an aid in- and attendance allowance which person patient clude not “a Ill physical home because of mental or 3.351(c)(2), The Veterans Administration administers incapacity,” but person programs providing “compensation,” “depen- following: also exhibits the dency indemnity compensation,” “inability of claimant to dress or undress (her- (herself), “pension” qualified keep benefits to individuals. himself or to himself Krueger, the minimum maintenance counsel for the 1994 amount was $1,769 $1,816. per needs allowance could not exceed According month. See 1 Elclerlaw 11.33. self) pe- for the presentable; fre- attendance allowance discontinued ordinarily clean and special adjustment any hospitalization under 38 quent need of riod of extended 5503(e); orthopedic appliances which prosthetic or particular disability can- by reason “(e) receipt Where (this in- will not done without aid not be aid and attendance allowance described appliances adjustment clude 1114(r) hospitalized title section adjust persons unable to would be normal expense, at allowance Government such aid, belts, lacing supports, such day from the first shall be discontinued back, etc.); inability of claimant begins month which the second calendar (herself) through loss of coor- himself feed after the date of the veteran’s admission through upper extremities dination hospitalization long for such so weakness; inability to attend extreme Any hospitalization continues. discontinu- nature; incapacity, physi- wants of regulation, required ance administrative mental, requires assis- cal or care or hospitalization of veteran protect regular on a basis tance Department, of increased based dangers incident from hazards or claimant regúlar need of and attendance addi- daily environment. ‘Bedrid- his or her regu- compensation tional based on need proper basis for determi- den’ will in lar and attendance as described aid paragraph purpose For the of this nation. (1) (m) or 1114 of this subsection of section which, will be that condition ‘bedridden’ title, shall not be effective earlier than the character, through actually re- its essential day the first of second calendar month quires that claimant remain in bed. begins of the veter- after date voluntarily fact claimant has tak- The that hospitalization. In an’s admission for case physician pre- a en bed or that has a veteran affected this subsection leaves greater or in bed for the scribed rest hospital against day promote a medical advice and part of the convales- lesser hosjoitalization suffice. It is not thereafter admitted to with- cence or cure will not disabling conditions required depar- that all of in six months from the date of such paragraph ture, be pension, enumerated in this found or such increased rating may be may exist before a favorable compensation, as the case additional particular personal functions be, made. discontinued the date of shall be from perform is unable to long hospi- for so as such readmission in connection with his should be considered talization continues.” a or her condition as whole. It is also C.F.R. 3.552. necessary establish that evidence helpless regu- veteran is so need the aid attendance allowance Because attendance, be a lar aid and there generally immediately upon was discontinued Determinations that constant need. hospital on a veteran’s entrance to helpless, be in need of veteran is so as to theory payment during that to continue hos- be regular aid and attendance will not duplication pitalization would because solely upon opinion an based being pro- aid and attendance services were is such as would re- claimant’s condition directly by government, pur- vided quire They must him or her to be in bed. encourage pose provision “vet- of this was requirement on the actual of be based receiving aid and erans attendance from others.” hospitals stays for brief to re-enter 3.352(a).4 38 C.F.R. pension, preventing longer of their thus loss illnesses; ...” hospitalized stays more many years, at serious For veterans Sess., S.Rep. government had their expense have care, oí "higher provision of such would 4. for a level aid attendance Criteria 3.352(b). care, hospitalization, nursing C.F.R. are set forth in 38 or other resi- allowance” higher in lieu of a allowance authorized care.” dential institutional regular attendance allowance "if aid and 1114(r)(2). veteran, in that the the absence finds printed regulations “any- in 1964 U.S.C.C.A.N. Those define “income” as “Hospitalization,” purposes thing you you of 2875. receive cash or in kind that your food, provision, “[h]ospital clothing, can use meet limited to treatment needs for Department hospital Affairs and shelter. Sometimes Veterans income also includes you actually more or than any hospital Department of less or in at Veterans receive.... cash, “[institutional, actually In-kind income is not expense,” but Affairs domicili- food, clothing, shelter, you something ary home care get can use to one of these.” 20 C.F.R. domiciliary Veterans Affairs institution or regulations 416.1102. The also what define expense.” Veterans Affairs is not income. 3.551(a)(1) (2).5 38 C.F.R. things you “Some receive are not income IV you food, cannot because use them as shelter, clothing, or use them to obtain receiving Because was Medicaid food, clothing, addition, or shelter. medically needy eligi- category, you what receive from ex- the sale or individual, aged an bility, as and disabled your income; change property own is not regulations determined under no following it remains a resource. The more restrictive than those used under the some that are items not income: program, which in 20 SSI are found C.F.R. 435.401(c)(2). 416. Part "(3) relationship Notwithstanding any Veterans provision benefits and their to the title Act, statutorily Security addressed in was XIX of the Social the amount Budget payment paid In the nursing facility pursuant Omnibus Reconciliation 1990, Congress recognized Act of that there were services furnished a veter- limitations under current by any no law not be reduced amount of pensions to veterans in who were pension permitted homes to be un- such veteran that, eligible (2) for Medicaid "in order benefits paragraph der of this subsection.” 3.55l(i). for individuals to be covered under Medicaid all See also 38 person of the must be first utilized to- by When this feature was Veter- extended defraying nursing wards the cost of home care spouse surviving Act ans’ of 1992 "to a Benefits coverage.” provide H.Rep. child,” before Medicaid will 5503(f)(5), having no it was 101-881, (1990), Cong., No. 101st 2d Sess. pension savings "partially noted' would be offset 2017, reprinted in 1990 U.S.C.C.A.N. 2222. Al- by increased federal Medicaid costs” because though specifically addressing not the aid and pension Med- reduced amount would allowance, Congress attendance limited larger nursing portion icaid "to of their payments pension $90 for to veterans at Medic- 102-753(1), expenses." H.Rep. home No. 102nd aid-eligible recipients spouse no who have (1992), Cong., reprinted 2d Sess. 25 in 1992 child, prohibited "any part pay- $90 and 3646, 3667-3668. U.S.C.C.A.N. being applied ment from the veter- to the cost of provisions special apply only when These nursing-home H.Conf.Rep. an's 964, care.” No. 101— child, having spouse surviving no veteran or a (1990), Cong., 101st 2d Sess. 982-983 child, having spouse by no are covered a Medic- 2374, printed in 1990 U.S.C.C.A.N. 2687-2688. plan by nursing aid for services furnished 5503(f) provides: where, They home. here, do not address a situation receiving "(f)(1) an Med- purposes For the of this subsection— institutionalized "(A) dependent spouse. icaid has a plan’ The term 'Medicaid means a State plan attempt We note that in was further an for medical referred to in 1902(a) (42 per by Security preclude payments made to diem made section Act Social 1396a(a)); the Veterans Administration to State and Veterans’ "(B) facility’ being 'nursing third-party lia- the term means a Homes from considered a nursing facility bility program. S.Rcp. 1919 of the Medicaid described in section under See (42 99-444, 1396r), (1986), Cong., such Act facility other than a 99th 2d Sess. 55 respect reprinted that is a State with to in U.S.C.C.A.N. view, per pay- proposing per which the diem Committee's "the VA makes pursuant payments ments for to home care diem should increase the resources 1741(a) furnishing eligible section of care veter- this title. available for "(2) simply having If a veteran neither nor ans—not reduce the amount of Medicaid by payments child is covered a Medicaid for ser- Homes.” Id. at 5505. This however, provision, law. vices furnished such veteran facil- was not enacted into ity, per Explanatory $90 no in month Statement excess Senate/House any Agreement Compromise shall to or for the veteran for on H.R. Sess., reprinted period after the month of admission to such in 1986 U.S.C.C.A.N. nursing facility. 1396a(a)(25). ap-

“(b) requires regulation are One Social services services. Social following: plicants apply for other benefits. they any of if are not income “(1) “(a) in in provided eligibility, cash or Assistance a condition of As (but for a recipi- return require applicants kind not received and agency must Federal, any you perform) necessary steps under service all to obtain ents take State, retirement, government annuities, whose pensions, or local and any includ- they services purpose disability is to social are enti- benefits which (Example: tled, they good rehabilitation cause for vocational can show unless given Department of Vet- you doing Cash so. not purchase aid attend- erans Affairs to and “(b) Annuities, pensions, and retirement ance);” include, disability not lim- but are benefits 416.1103(b)(1). to, pen- compensation 20 C.F.R. ited veterans’ sions, benefits, railroad retirement OASDI that, under concedes benefits, compensa- unemployment regulations, allow- these tion.” are “income” ances not to considered eligibility post- purposes either the requires Another 42 C.F.R. 435.608. Ginley v. eligibility determinations. assign rights applicant to benefits. (E.D.Pa.1992) (aid White, 1992 WL 17461 “(a) eligibility, the a condition of As cannot be consid- and attendance allowance require legally applicants able agency must eligibility post-eligi- either ered income at to: recipients bility phase).6 promul- has “(1) rights agen- Assign to the Medicaid regulation nev- gated an administrative cy support and to to medical aid attendance allow- ertheless allows party; any from third medical care post-eligibility in the ances be considered which must be as “benefits” determination expenses.

applied to medical “(3) identifying Cooperate provid- source, Payments “5. from ing information assist of a may be received as result parties agency pursuing who third expense increased medical be liable to care services need, are not income. These plan, unless the individual establishes include veterans administration cooperating.” good cause for and administration attendance veterans (3). 435.610(a)(1) and C.F.R. ex- for unusual medical reimbursements penses. V at- “a. Veterans administration aid Krueger that the aid and attend- asserts be benefits must considered tendance third-party payment ance allowance is a in payments as the months received Department the to consider and that allow the benefit was intended cover Department permit the it as such would applied the ex- medical accomplish indirectly it has what been direct- months; ...” pense incurred in those ly by forbidden to do the federal 75-02-02.1-34(5)(a). purposes the regulations, and would defeat monthly main- the that the aid behind contends and the Veterans third-party pay- tenance needs allowance attendance allowances are fed- aid attendance allowance. must be considered under Administration ments which disagree. regulations. See 42 We eral law and argued HCFA State informed us that on June 6. The had the alternative Ives, by changed v. F.2d to the trial court that LaMore was Medicaid Manual 3701.2 (1st Cir.1992), differing treat- authorized Department of and Human Ser- federal Health ment of the aid attendance allowance requirement that an aid vices delete purposes post-eligibility de- "income” of the for counted as "income” attendance allowance be Department abandoned this termination. The argument purposes post-eligibility determination. for appeal. has for Counsel “However, third-party context, liability payment Under the UME Medic- scheme, broadly party” a “third defined as payor not a aid is kind as it did not individual, “any entity program that pay any part for of the service or care for part expen- all or be liable to paid' patient VA UME was —the un- ditures for assistance furnished medical Why payment did. would the TPL scheme 433.136(3). plan.” der a State agency that the state could seek Griepentrog, F.Supp. In Sherman v. for ‘reimbursement’ services it did not (D.Nev.1991), the court ruled that Thus, ? Obviously, it not. does for Veterans ex- Administration unusual medical recipient state cannot assign (“UME”) pense recipi- payments to Medicaid his or her UME check to the state.” ents could not counted as “income” Griepentrog, F.Supp. Edwards post-eligibility stage of cost de- (D.Nev.1992) (footnotes omitted; 1312-1313 termination, perma- granted and the court emphasis original). injunction stop nent practice.7 Unlike allowances, pay- UME Considering pay the nature of UME ments are reimbursements to veterans for ments, why can see court we refused to out-of-pocket expenses unusual medical agency allow the to treat as third-party them if the veteran would not receive However, liability payments. aid and attend previously had not disbursed funds ance are allowances not a reimbursement for Sherman, for the care. medical out-of-pocket expenses. a veteran’s medical F.Supp. ruling, at 1392. After the court’s Instead, they provided based on an as implemented the state policy of Idaho physical sessment the veteran’s and medi quiring UME beneficiaries to turn over their and, cal for them need when veteran is in payments agency UME state Medicaid receive, of, need and in fact does (“TPL”) third-party payments. care, pur home that care for the substitutes The court held new Idaho pose which the aid attendance for allow permanent was in in- direct violation designed. ance was When a veteran inis junction. home, the aid and attendance allow why “When one considers and how VA ance to cover same the exact services pensioners payments receive UME it being paid program. the Medicaid quickly apparent becomes the VA’s Edwards, F.Supp. Compare at 1312-1313 payment program UME is not a ‘third (to n. 5 extent that a UME party.’ pay- pensioners receive VA UME provided given actually for services previously ments as in- reimbursement scope it is outside the of relief of expenses. out-of-pocket curred order). the court’s We therefore conclude They do not receive the as reim- that, receiving nursing when a veteran is bursement for Medicaid services. care, the Administration Veterans “It to the seems obvious court that allowance is a “third and attendance system TPL was instituted obligated pay party” to for those Medicaid- party very good one reason: when a third rendered services. legally provide payment is to for a liable requirement Krueger asserts there is no provided service or will that Medicaid has that the aid and attendance allowance be provide, Medicaid should not be forced purchase aid that used to and attendance is simply It foot the entire bill. is a contribu- Blum, Klapak in nature. v. 97 system whereby legally medical tion two or more 182, 764, (1983), (or 183 responsible A.D.2d 468 N.Y.S.2d providers bill-payers) must court, ap- addressing a “new contention” on split service. It costs of furthers being only peal, to consider the aid and attend- payor Medicaid refused mandate liability party as a of a third last resort. ance allowance (S.D.Ind.1992); By Through ruled Mitson Jones v. Several courts have that UME See, Coler, (S.D.Fla.1987); e.g., cannot be as "income.” F.Supp. considered v. 674 851 Peffers Schweiker, (9th Bowman, Summy (D.Idaho 1984). v. 688 F.2d 1233 Cir. F.Supp. 353 Sullivan, 1982); F.Supp. 659 Inman v. is, resort, payer of last that other avail that would oth- for services have to for because U.S.C. able resources be used before erwise 1502(b) pays did state that aid and attend- for the care of an individual enrolled not ” granted program.’ ance for services medi- York could the Medicaid New State Bowen, Dept. cal in nature. Social Services v. 846 F.2d (2nd Cir.1988) 129, (quoting S.Rep. authority Kb/pak questionable We find reprinted Sess. First, Appeals for two the Court of reasons. 279). also In 1986 U.S.C.C.A.N. of New York affirmed that decision McMullen, 470 N.W.2d Interest of addressing “issue ar- the issue because the (“the (N.D.1991) regulations eligi on welfare gued appeal, having not been considered policy welfare bility reflect a basic social that making agency in the administrative its own in recipients must use their available determination, may not be reviewed shifting come and resources before bur Blum, Klapak 65 N.Y.2d Court.” support taxpayers”). den their (1985). 481 N.E.2d Sec- N.Y.S.2d ond, express statutory although is no there Department’s We conclude that requirement that the aid and attendance al- Krueger’s treatment purposes, it lowance be used liability third-party allowance as apparent the Veterans Administration 75-02-02.1-34(5)(a) does N.D.Adm.Code aid and attendance allowances as medi- views regulations. law or not conflict with federal cally during related institutionalization be- Depart judgment is reversed and the dupli- cause it discontinues the allowance as ment’s decision is affirmed. hospital- cative a veteran’s extended facility. in a ization Veterans Administration 5503(e). WALLE, C.J., VANDE and LEVINE and JJ., SANDSTROM, Department’s policy

We also find that the concur. treating aid and attendance allowance MESCHKE, Justice, concurring. a third-party as does not thwart the spouse policies underlying community I understand Justice Neumann’s Because monthly minimum maintenance needs allow- holds opinion well-written for the court noted, community ance. As we have treating Department’s policy of [this “the grant bring to cash entitled aid and attendance allowance as a veteran’s] spouses to the combined income of both ... third-party liability not thwart does monthly minimum maintenance needs allow- community spouse minimum mainte- Rather, ance level. the institutionalized allowance,” as allowance is nance needs spouse may only transfer income carefully part opinion, II of recognized income made extent that that available join opinion I To in the and result. community spouse. and attend- that this veteran can make his income extent “income,” ance allowance is not viewed but available to his resources recip- an institutionalized intended cover spouse, Catastrophic the federal Medicare ient’s medical care. There other avenues opportunity Coverage to do Act mandates increasing reach communi- so directed in 1396r-5. ty spouse’s minimum maintenance see, amount, e.g., 42 needs allowance 1396r-5(e)(2); § 75-02-

02.1-24(7)(e), do con- allowing for

struction of the law diversion of

a medical allowance intended an institu-

tionalized

Moreover, Department’s policy treat- as third- attendance allowances comports party with the “

principle ‘Medicaid is intended

Case Details

Case Name: Estate of Krueger Ex Rel. Krueger v. Richland County Social Services

Court Name: North Dakota Supreme Court

Date Published: Dec 20, 1994

Citation: 526 N.W.2d 456

Docket Number: Civ. 940128

Court Abbreviation: N.D.