Below, courtesy of the ElderLawAnswers website, is the annual roundup of the top 12 elder law decisions decided by federal and state courts in 2012. The cases were selected based upon readership as measured by the number of readers who “clicked through” to the full story in the website’s Weekly and Monthly e-letters. Links in the case summaries below provide access to the actual court opinions. There are also links to blog posts for those cases I blogged about previously.

1. State Can Recover From Spouse’s Annuity for Medicaid Benefits Paid After Spouse Died

A U.S. court of appeals held that a state’s ability to recover Medicaid payments from a community spouse’s annuity after the community spouse dies is not limited to the amount of benefits the state paid before the community spouse’s death. Hutcherson v. Arizona Health Care Cost Cont. Syst. Adm.. (U.S. Ct. App., 9th Cir., No. 10-16426, Jan. 27, 2012).

2. Community Spouse’s Promissory Note Is a Countable Resource

An Ohio appeals court ruled that a promissory note held by a Medicaid applicant’s spouse is a countable resource, finding that the state law excluding promissory notes from countable resources applied only to promissory notes held by Medicaid applicants, not their spouses. Estate of Montgomery v. Ohio Dept. of Job and Family Services (Ohio Ct. App., 5th Dist., No. 11 CAH 06 0054, Feb. 14, 2012).

3. Discretionary Trust Is an Available Resource in Determining Medicaid Eligibility

An Ohio appeals court affirmed the state’s denial of Medicaid benefits to a deceased nursing home resident’s estate, concluding that the resident’s irrevocable discretionary trust was an available asset for purposes of Medicaid eligibility. Gsellman v. Ohio Dept. of Job and Family Services (Ohio App., 9th Dist., No. 25954, April 11, 2012).

4. Son Liable for Mother’s Nursing Home Bill Under Filial Responsibility Law

This was the blockbuster decision of the year. In this case, a Pennsylvania appeals court found a son liable for his mother’s $93,000 nursing home bill under the state’s filial responsibility law. Health Care & Retirement Corp. v. Pittas (Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012). I previously blogged about the Pittas case here.

5. Annuity Purchases Are Transfers Subject to Penalty Period

A federal district court held that Medicaid applicants whose spouses purchased annuities for themselves with community resources after the date of institutionalization were subject to a penalty period because the purchases constituted transfers above the community spouse resource allowance (CSRA). Hughes V. Colbert (U.S. Dist. Ct., N.D. Ohio, No 5:10CV1781, May 29, 2012).

6. 3rd Circuit Says PA’s Pooled Trust Age Limit and Other Restrictions Must Go

Ruling on a challenge to a Pennsylvania law, the Third Circuit Court of Appeals held that those over age 65 may transfer assets into a pooled trust, although they may still be subject to a transfer-of-assets penalty. The court also determined that states may not place restrictions on the amount of funds retained by a pooled trust when a Medicaid beneficiary dies, nor may they dictate what types of expenditures a pooled trust can make so long as they are for the sole benefit of a person with disabilities. Lewis v. Alexander (3rd Cir., No. 11-3439, June 20, 2012). My blog post on the Lewis v. Alexander case is here.

7. Annuity Purchased Post-Initial Eligibility Determination Is Not Available Resource

Reversing a district court, a U.S. court of appeals held that an annuity is an unavailable resource even if it is purchased in addition to the community spouse resource allowance, and that there is no transfer penalty for the couple’s purchase of the annuity prior to a determination of Medicaid eligibility. Morris v. Oklahoma Dept. of Human Services (10th Cir., No. 10-6241, July 9, 2012).

8. State Can Recover Assets Transferred Before Medicaid Recipient’s Death

Reversing a lower court decision, the Idaho Supreme Court held that the state can recover assets from the estate of a Medicaid recipient’s spouse that were transferred to the spouse before the Medicaid recipient died. In Re Estate of Perry (Idaho, No. 38694, Aug. 9, 2012).

9. Second Circuit Affirms That Income Stream from Annuity Is Not an Asset for Medicaid Purposes

In this case, the U.S. Court of Appeals for the Second Circuit upheld a district court ruling that Connecticut cannot treat the income stream from an annuity as an available asset for the purposes of Medicaid eligibility. Lopes v. Dept. of Social Services (2nd Cir., No. 10-3741-cv, Oct. 2, 2012). I blogged about the Lopes case here.

10. Transfer of House From Trust to Husband Subjects Wife to Penalty Period

An Ohio appeals court ruled that the transfer of a house from a revocable trust benefiting the husband to the husband’s name subjects his wife to a Medicaid penalty period. Williams v. Ohio Dept. of Job & Family Servs. (Ohio App. 3d, No. 8-11-18, Oct. 9, 2012).

11. Malpractice lawsuit against Medicaid planning attorney is reinstated by appeals court.

A Michigan appeals court ruled that a trial court erred in dismissing a woman’s suit against an elder law attorney she hired to help her father qualify for Medicaid. Schmidt v. Smith (Mich. Ct. App., No. 300718, March 29, 2012).

12. Malpractice lawsuit can proceed against Medicaid planning attorney who charged Medicaid applicant excessive fees.

A New York appeals court moved forward an action against an attorney who charged more than $44,000 for Medicaid planning work. Sobel v. Ansanelli (N.Y. Sup. Ct., App. Div., 2nd Dept., No. 2011-11418, Sept. 19, 2012). I blogged about the case here.