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Medicaid Eligibility Sometimes Requires Legal Assistance

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Bipin Shah worked in New York as a chemical engineer. Along with his wife Kashmira and their two children, Mr. Shah lived in New Jersey. On August 1, 1996, while working in Suffolk County, New York, Mr. Shah suffered a serious head injury, resulting in his hospitalization in Rockland County, New York.

Mr. Shah remains in a coma at Helen Hayes Hospital, a facility operated by New York State, where it is anticipated that he will probably not recover or improve. His care costs over $1,600 per day.

In January, 1997, Kashmira Shah was informed that her husband’s medical insurance coverage would shortly expire, and that she would be responsible for the cost of her husband’s care. After advice from an experienced elder law attorney in New York, she took several steps to try to avoid having to bankrupt her family to pay for her husband’s care.

First, Mrs. Shah filed an application for Medicaid long-term care benefits through the Rockland County, New York, office of the state’s Medicaid agency. Then she filed a petition with the New York courts asking to be appointed her husband’s guardian, for the express purpose of transferring all the couple’s assets into her name alone. Then she took advantage of an unusual New York law which permits spouses to simply refuse to use their separate assets to pay for long-term care for the ill spouse. Finally, she prepared for the inevitable objections from the state Medicaid agency.

Mrs. Shah did not have long to wait. Rockland County first transferred the Medicaid application to Suffolk County (arguing that the injury had occurred in that county) and then denied the application anyway, on the basis that Mr. Shah was a New Jersey resident. Suffolk County also denied the application, agreeing with Rockland County that he was not a New York resident. Then the state Medicaid agency weighed in on the request to transfer assets out of Mr. Shah’s name.

In court, the state agency argued that the request to transfer assets to Mrs. Shah should be denied. Since Mr. Shah was not eligible for Medicaid in New York, reasoned the state’s lawyer, the effect of such a transfer would just be to make it difficult for the hospital to pursue Mr. Shah’s assets when insurance coverage expired. The hospital agreed, arguing that New York law did not apply to the New Jersey residents.

Mrs. Shah prevailed in the guardianship proceeding, but the two state agencies (the Medicaid agency and the hospital itself) both appealed. The New York Supreme Court, Appellate Division,  sided with Mrs. Shah. The court first observed that the Medicaid agency was wrong about Mr. Shah’s residency (“if the person is incapable of forming intent, then residency is where the individual is physically present”).

The central question, however, was whether Mr. Shah’s assets should be transferred to his wife in order to make him eligible for Medicaid benefits. On that subject, the court observed that “no agency of the government has any right to complain about the fact that middle-class people confronted with desperate circumstances choose voluntarily to inflict poverty upon themselves when it is the government itself which has established the rule that poverty is a prerequisite to the receipt of government assistance in the defraying of the costs of ruinously expensive, but absolutely essential, medical treatment.” Thanks to the work of a qualified elder law attorney, Mr. Shah will qualify for Medicaid. Matter of Shah, July 6, 1999.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.