Recent Developments in Elder Law
Recent Developments in Elder Law- Selected Cases and Legislation
June 30 2016
By Carmine Perri & Brendan Daly1
It was Aristotle, in his Politics, that said “even when laws have been written down, they ought not always to remain unaltered.” In keeping with that quote, since 2012, there have been a number of developments in elder law. The aim in this article is to address a portion of the federal and state law developments, focusing on developments closer to the present.
This article is divided into the following three sections: (A) recent Connecticut Legislation affecting Connecticut elders; (B) noteworthy nursing facility collection actions since 2012; and (C) recent Title XIX litigation, both in federal court and state court.
I. RECENT CONNECTICUT LEGISLATION
In this section, three specific pieces of legislation will be discussed: the first and second laws, having to do with elder exploitation and the Uniform Power of Attorney Act respectively, were enacted in 2015, while the third, nursing facility statutory cause of action regarding transfers of assets, was enacted in 2013.
A. Public Act 15-236 titled, “An Act Protecting Elderly Consumers from Exploitation.”
Public Act 15-236 is titled, “An Act Protecting Elderly Consumers from Exploitation,” and is codified at Connecticut General Statute (herein “C.G.S.”) §17b-462. This act, effective on October 1, 2015, states, in pertinent part, “an elderly person who has been the victim of abuse, neglect, exploitation or abandonment, as such are defined in section 17b-450 of the general statutes, as amended by this act, may have a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, exploitation or abandonment together with costs and a reasonable attorney’s fee.” 2 Conn. Gen. Stat. §17b-462 (a)(2016).
This new cause of action buttresses the usual claims of, among other claims, breach of fiduciary duty, conversion, unjust enrichment, and statutory theft (brought pursuant to Connecticut General Statute §52-564).
The Act also revised the so called “slayer statute,” C.G.S. §45a-447. To the extent deterrence has an effect on a wrong-doer, not only does a wrong-doer subject him or herself to an additional cause of action, he or she is also exposed to the possibility of being prevented from inheriting from their victim. Connecticut General Statute §45a-447 now states, in pertinent part, the following:
(a) (1) A person finally adjudged guilty, either as the principal or accessory, of any crime under section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-122, 53a-123 or 53a-321, or in any other jurisdiction, of any crime, the essential elements of which are substantially similar to such crimes, or a person determined to be guilty under any of said sections pursuant to this subdivision, shall not inherit or receive any part of the estate of (A) the deceased victim, whether under the provisions of any act relating to intestate succession, or as devisee or legatee, or otherwise under the will of the deceased victim, or receive any property as beneficiary or survivor of the deceased victim . . . .
Conn. Gen. Stat. §45a-447 (2016).
Additionally, regarding real property, the Act severs joint tenancy, between the wrong-doer and the victim, pursuant to C.G.S. §45a-447, and, as to life insurance policies and annuities, states, in pertinent part:
(c) (1) A named beneficiary of a life insurance policy or annuity . . . who is finally adjudged guilty under section 53a-122 [Larceny in the first degree], 53a-123 [Larceny in the second degree], or 53a-321 [Abuse in the first degree], is not entitled to any benefit under the policy or annuity, and the policy or annuity becomes payable as though such beneficiary had predeceased the deceased victim.
The analysis for a beneficiary on a life insurance policy or annuity is not as cut and dry as either an inheritance or joint tenancy of real property since there are three possible scenarios where a beneficiary may be prevented from receiving a benefit under a policy or annuity. The clearest scenario is a conviction: a named beneficiary is not entitled to any benefit. If there is no conviction but a Superior Court judge makes the determination, “by a preponderance of the evidence, that a named beneficiary who has predeceased the interested person would have been found guilty under section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-122, 53a-123 or 53a-321 had the named beneficiary survived,” then the beneficiary would be prevented from receiving a benefit. Conn. Gen. Stat. §45a-447 (c)(2)(B) (2016). Finally, the third scenario, in the absence of either a conviction or a judicial determination, “the Superior Court may determine by the common law, including equity, whether the named beneficiary is entitled to any benefit under the policy or annuity.” Conn. Gen. Stat. §45a-447 (c)(2)(C) (2016). It is unknown what standard the Superior Court would employ when making a determination “by the common law;” the burden of proof, however, would be on the person challenging the eligibility of the named beneficiary. Conn. Gen. Stat. §45a-447 (c)(2)(D) (2016).
B. Public Act 15-240, effective July 1, 2016, entitled, “An Act Concerning Adoption of the Connecticut Uniform Power of Attorney Act.”
Moving on to the second piece of legislation, Public Act 15-240, effective July 1, 2016, entitled, “An Act Concerning Adoption of the Connecticut Uniform Power of Attorney Act,” was a substantive piece of legislation which will undoubtedly impact elder law practices throughout the state. Given the depth and breadth of this legislation, however, this article will only address certain portions that affect litigation.
Section 11 of the Act permits a principal to designate two or more persons to act as co-agents. Pursuant to Section 11 (d), however, one agent who has actual knowledge of a breach or imminent breach of fiduciary duty by another against must notify the principal or, in the case of an incapacitated principal, take “any action reasonably appropriate in the circumstances to safeguard the principal’s best interest.” Public Acts 2015, No. 15-240, §11(d). The “good agent” failing to report the “bad agent” is “liable for the reasonably foreseeable damages that could have been avoided if the [good] agent had notified the principal or taken such action relating to such theft or misappropriation.” Id. Section 15 of the Act permits the principal to include a provision in the power of attorney relieving an agent of liability for breach of duty except, the Act does not permit the principal to relieve the agent “of liability for breach of duty committed dishonestly, with an improper motive or with reckless indifference to the purposes of the power of attorney or the best interest of the principal” and the Act does not permit a provision within the power of attorney that “was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.” Public Acts 2015, No. 15-240, §15.
As to requesting an accounting pursuant to C.G.S. §45a-175, the Act provides a laundry list of interested parties who have standing to do so including, but not limited to, the following: principal; agent; conservator; health care representative; the principal’s spouse, parent, or descendant; and “the principal’s caregiver or another person that demonstrators sufficient interest in the principal’s welfare.” Public Acts 2015, No. 15-240, §16. In short, almost anybody can request an agent to account for their doings under a power of attorney.
Finally, as to damages, Section 17 states, in pertinent part, that an agent “is liable to the principal or principal’s successors in interest for the amount required to:
(1) Restore the value of the principal’s property to what it would have been had the violation not occurred; and
(2) Reimburse the principal or the principal’s successors in interest for the reasonable attorney’s fees and costs paid on the agent’s behalf.”
Public Acts 2015, No. 15-240, §17.
C. Public Act 13-234, substantially revised, among other sections of the General Statutes, C.G.S. §17b-261q.
This next Public Act further empowered nursing facilities by creating a statutory cause of action regarding transfers of assets; although, however, the application of this cause of action is extremely limited. Effective October 1, 2013, Public Act 13-234, also known as the Governor’s Implementer Bill, substantially revised, among other sections of the General Statutes, C.G.S. §17b-261q.
Pursuant to C.G.S. §17b-261q, a nursing facility could bring a cause of action against a transferor or a transferee, as defined by the statute. The statute imposes the following two conditions on the cause of action: (1) the debt recovery does not exceed the fair market value of the transferred asset at the time of transfer, and (2) the asset transfer that triggered the penalty period took place not earlier than two years prior to the date of the nursing facility resident's Medicaid application ( a penalty period is “ the period of Medicaid ineligibility imposed pursuant to 42 United States Code §1396p(c) . . . on a person whose assets have been transferred for less than fair market value for the purposes of obtaining or maintaining Medicaid eligibility” ). Conn. Gen. Stat. §17b-261q (2016).
If the nursing facility proves, based upon clear and convincing evidence, that the defendant or defendants incurred a debt for unpaid care provided to a resident who has been subject to a penalty period by (1) willfully transferring assets that are the subject of a penalty period, (2) receiving such assets with knowledge of such purpose, or (3) making a material misrepresentation or omission concerning such assets, then a court may award the nursing facility actual damages, court costs, and reasonable attorney’s fees. If, on the other hand, the defendant successfully defends the action, the court shall, as a matter of law, award the defendant court costs and reasonable attorney’s fees. It must be noted that this statutory cause of action is in addition to all other rights or remedies a nursing facility has or may believe it has.
Finally, a conservator of the estate who transfers income or principal with the approval of the Probate Court is not subject to suit from the nursing facility.
Time will tell whether this statutory change is used as a vehicle to collect from one who willfully transferred assets resulting in a debt owed to the nursing facility or whether this new legislation will be used by nursing facilities as another collection tactic employed to overpower residents, family members, and friends.
II. NOTEWORTHY NURSING FACILITY COLLECTION ACTIONS
Since 2012, there have been a number of decisions regarding nursing facility collection actions that have altered the landscape of defending responsible parties who are sued by nursing facilities. In this article we will discuss two of those cases: Aaron Manor, Inc. vs. Janet Irving and Meadowbrook v. Buchman.
A. Aaron Manor, Inc. vs. Janet Irving, 307 Conn. 608 (2013).
Since 2012, no case has altered the landscape of nursing facility collection actions like the case of Aaron Manor, Inc. vs. Janet Irving. In Aaron Manor v. Irving, the nursing facility sued Janet Irving, the daughter of a resident, for breach of contract and fraud. The trial court entered judgment in favor of Ms. Irving and awarded her attorney's fees pursuant to C.G.S. § 42-150bb for her successful defense.
The Plaintiff appealed. As to whether Ms. Irving breached her contract with Aaron Manor, the Appellate Court agreed with the trial court that Ms. Irving had no control or access to her father’s income and assets and concluded that Ms. Irving was “not obligated under the admission agreement to remit to the plaintiff any sums that she received from her father as gifts or reimbursements.” Id. at 655. As to the attorney’s fees issue, the Appellate Court held, with Judge Barry J. Schaller dissenting, that C.G.S. §42-150bb did not apply to Ms. Irving because she was not a consumer since she was “not a buyer, debtor, lessee or personal representative” of her father. Id. at 661.
Ms. Irving petitioned for certification to the Supreme Court seeking the Court to address whether the Appellate Court properly reversed the trial court's award of attorney's fees under C.G.S §42-150bb. Aaron Manor, Inc. v. Irving, 301 Conn. 908 (2011). The Court granted Ms. Irving’s Petition for Certification. On January 1, 2013, the Court issued its opinion that Ms. Irving was a consumer under C.G.S. §42-150bb and that she was entitled by operation of law to reasonable attorney’s fees as provided in the Resident Admission Agreement. Aaron Manor, Inc. vs. Janet Irving, 307 Conn. 608 (2013). Part of the Court’s reasoning focused on the apparent inconsistency that Aaron Manor could file suit against a responsible party, not the resident that received its services, and also seek its attorney’s fees from the responsible party but, if the responsible party successfully defended the lawsuit, he or she would not be entitled to attorney’s fees. It would be wholly incongruous with this design to conclude that the plaintiff would be entitled to fees for successfully prosecuting the present action but that the defendant would not be entitled to fees for mounting a successful defense. Id. at 618. The Court reversed the Appellate Court’s decision as to the award of attorney’s fees and remanded to the Appellate Court with direction to affirm the judgment of the trial court. Id. at 620.
On June 28, 2013, five and a half months after the Court issued its opinion, the trial court, the Honorable Julia J. Aurigemma, held a hearing to address the following three issues: (1) the reasonableness of the requested attorney’s fees incurred in connection with the appeal of the action to the Appellate Court and the Supreme Court; (2) whether a discretionary award of post-judgment interest was appropriate; and (3) if post-judgment interest was appropriate, the date from which interest shall accrue and the rate of interest to be awarded. Aaron Manor, Inc. vs. Janet Irving, 2013 Conn. Super. LEXIS 2009, 1 (2013). On September 9, 2013, almost five years after Judge Jones’ decision in Ms. Irving’s favor, Judge Aurigemma issued her decision. As to the first issue, Judge Aurigemma accepted the Court’s finding that the trial court’s initial award of $36,000.00 in attorney’s fees pursuant to C.G.S. §42-150bb was reasonable. As to the second issue, Judge Aurigemma found the award of post-judgment interest appropriate because “without such an award, a judgment debtor could, theoretically, evade payment of the entire judgment.” Id. at 7. As to the third issue, Judge Aurigemma found February 27, 2009, the date on which $36,000.00 was initially awarded by Judge Jones, to be the date from which interest shall accrue. Id. In total, Judge Aurigemma awarded “the defendant a total of $14,865.58 for attorney’s fees attributable to the appeals to the Appellate and Supreme Courts and interest [of $1,559.31] on the original award of $36,000.00.”3 Id. at 9.
B. Meadowbrook v. Buchman, 149 Conn. App. 177 (2014).
The case of Meadowbrook v. Buchman, 149 Conn. App. 177 (April 8, 2014) is that rare case that provides both nursing facility attorneys and elder law attorneys with ample ammunition regarding their respective positions.
The defendant, Robert Buchman, signed as responsible party when his mother, Maude Buchman, was being admitted into the Plaintiff’s nursing facility. For approximately the first year and a half of Ms. Buchman’s admission, she was a private pay resident. Once Ms. Buchman’s assets were exhausted, a Medicaid application was filed with the Department of Social Services (herein “the Department” or “DSS”). The Department sent two letters to Robert requesting that he provide information regarding his mother’s Medicaid application. The Department “denied the Medicaid application, stating as the basis for denial: ‘You failed to give us enough information or verification we need to prove you are eligible.’" Id. at 181. At the time of Ms. Buchman’s death, she owed an unpaid balance of $99,820.78 to the Plaintiff. Id. “The parties stipulated to the trial court that if the department had granted Medicaid benefits to the defendant's mother, the department would have paid the facility $47,561.18.” Id.
The Plaintiff sued Robert claiming, among other claims, that he breached the Admission Agreement by failing to provide the Department with the requested information for Ms. Buchman’s Medicaid Application. Robert, in his defense, argued that: (1) the Plaintiff failed to name him in his capacity as conservator of his mother’s estate and, therefore, any evidence of his conduct as a conservator were irrelevant to the issues before the court; (2) the Admission Agreement did not impose any personal liability except if a responsible party has received a transfer of assets that results in the resident’s ineligibility for Medicaid; and (3) that the Plaintiff did not prove that Ms. Buchman would have qualified for Medicaid even if the requested information had been given to the Department. Id. at 182.
After the Plaintiff’s case in chief, Robert moved for summary judgment arguing that the existence of the three defenses above established that there was no genuine issue of fact which necessitated a judgment in Robert’s favor. The trial court, Judge Robert Hale, denied Robert’s motion for summary judgment. After the court denied the motion for summary judgment, Robert rested, choosing not to call any witnesses. After a recess, Judge Hale issued an oral decision in the Plaintiff’s favor and awarded damages in the amount of $47,561.15 plus attorney’s fees to be determined post-judgment. Id. at 184. Robert appealed.
On appeal, among other arguments, Robert claimed that the trial court’s award of damages was impermissibly speculative since, Robert argued, “the plaintiff failed to adduce any evidence to support the court's finding that his breach of the aforementioned contractual obligations ‘caused the plaintiff to lose the Medicaid money.’" Id. More specifically, Robert’s counsel argued, “there has been absolutely no evidence, not one scintilla of evidence that if [defendant] had provided this [financial] information that Maude Buchman would have qualified for Medicaid . . . .” Id.
The Appellate Court reversed the trial court’s decision since the Plaintiff failed to establish that had Robert complied with his purported obligations under the Admission Agreement, the Department would have granted and the Plaintiff would have received Medicaid benefits. Id. at 191-192. Specifically, the Appellate Court stated:
The testimonial evidence submitted to the court demonstrated, on the one hand, that submitting the proper information to the department merely triggered a review of the resident's eligibility and, on the other hand, the submission of such information was not a guarantee of approval to receive such benefits. John Leveque, an eligibility services supervisor at the department, testified that the department could not determine whether an applicant qualified for Medicaid absent a review of the applicant's financial information, which was not furnished to the department in the present case. As the defendant notes in his appellate brief, the plaintiff did not ask Leveque "if, based upon the defendant's testimony regarding the assets maintained by [his mother], he had an opinion regarding whether . . . [she] would have qualified for [such] benefits." In addition, the record before us does not indicate that the plaintiff was prevented from presenting the proper financial documentation, expert testimony, or other evidence that would have otherwise established the resident's likelihood of approval, nor has the plaintiff in this appeal directed our attention to any such evidence.
Id. at 192.
One of the critical issues in this case is the majority’s viewpoint on the voluntariness of a responsible party signing an admission agreement; it is often argued by elder law attorneys that the responsible party is not voluntarily signing the agreement. The majority stated, “Courts across this country have held that a responsible party may voluntarily undertake contractual obligations in agreements such as the one at issue here.” Id. at 200. The majority concluded that holding a responsible party personally liable in the instance when one voluntarily elects to undertake a specific contractual obligation is not in violation of federal law. Most disconcerting, putting aside most purportedly responsible parties do not voluntarily sign these admission agreements, is the following statement, which casts a wide-net that one can anticipate nursing facility’s seeking to employ:
Reading the agreement as a whole, as we must, we cannot conclude that the responsible party's liability for a breach of the agreement is as limited as the defendant and the concurrence suggest. Section XVIII (1) provides that, in executing the agreement, the responsible party accepts a duty to "undertake faithfully all of the obligations of [the] agreement." (Emphasis added.) Although the first sentence of § XVIII (2) does establish that the responsible party is not a surety for payment as described in three enumerated sections of the agreement, the second sentence of the section explicitly leaves open the possibility that the responsible party can be found liable "for failure to perform any of the other obligations set forth in [the] agreement," and provides that such liability "shall be determined in accordance with the provisions of [the] agreement." (Emphasis added.)
Id. at 206.
Judge Schaller, in his concurring opinion, took issue with the majority’s analysis regarding responsible party’s being held personally liable for a resident’s debt by stating:
In sum, the plaintiff was not without a remedy for the defendant's breach but, instead, is simply without the remedy it wants to have and now seeks. By virtue of the contract language that the plaintiff, itself, drafted, the plaintiff foreclosed the possibility of recovering the resident's outstanding financial obligations from the defendant personally for this breach. It is axiomatic that courts do not impose liability where none exists. See, e.g., Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 759, 674 A.2d 1313 (1996) (contracts must be enforced as drafted, not enforced to relieve party from difficulties); see also Gibson v. Capano, 241 Conn. 725, 732, 699 A.2d 68 (1997) (courts do not rewrite contracts for parties). This principle is at its apogee where both the language of the contract and the statute from which it is derived plainly indicate the absence of liability. When an individual with legal access to a resident's income signs an admission agreement, he or she does so "without incurring personal financial liability . . . ." 42 U.S.C. § 1396r (c) (5) (B) (ii). If Congress intended that these individuals could incur personal liability for the resident's financial obligations by executing an admission agreement, it certainly would not have used the language "without incurring personal financial liability."
Id. at 222-223.
1 Both of Czepiga Daly Pope & Perri and the Hartford Bar.
2 Punitive damages are, however, “limited under Connecticut law to litigation expenses, such as attorney's fees less taxable costs.” Hylton v. Gunter, 313 Conn. 472, 484 (2014).
3 The $14,865.58 for attorney’s fees attributable to the appeals was in addition to the already ordered $36,000.00 for attorney’s fees attributable to successfully defending at the trial court level.