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Pending Insurance Claim Is Not “Available” to ALTCS Applicant

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It makes sense that someone seeking to qualify for public benefits would want to argue that they do not have assets available to them. Sometimes, however, an applicant will want to argue that more assets are available, as Charles Smith and his wife did—unsuccessfully.

Mr. Smith, an Arizona resident, was injured in a motorcycle accident in April, 2000. As a result he was hospitalized and ultimately moved to a nursing facility. A year after his injury his wife applied for coverage from the Arizona Long Term Care System (ALTCS), Arizona’s Medicaid program for long-term nursing care.

The ALTCS system calculated that Mr. and Mrs. Smith had assets of $108,421.98 on the date of the accident. That meant that Mr. Smith would not be eligible for ALTCS coverage until the total available assets reached $56,210.99—the so-called Community Spouse Resource Deduction (or CSRD).

Meanwhile, the driver of the car that struck Mr. Smith admitted fault for the accident. Unfortunately, he had no liability insurance. Mr. Smith, however, was covered by two uninsured / underinsured motorist policies, with total coverage of $125,000. Those policies paid out to the Smiths in July, August and December of 2000.

Mrs. Smith, on her husband’s behalf, argued that the insurance coverage should have been counted as an available resource as of the date of the accident. Because the CSRD (the amount the couple would be allowed to keep) is calculated based on the total available resources, inclusion of the insurance proceeds would mean that they would have been entitled to retain $87,000. That would have meant that Mr. Smith would have qualified for ALTCS coverage in February, 2001, rather than May of that year (as he ultimately did), resulting in reimbursement for three additional months of nursing facility bills—perhaps a $10,000 to $15,000 benefit.

Although a hearing officer agreed with Mrs. Smith, ALTCS did not, and the agency set enrollment in the program for the later date. A Maricopa County (Phoenix) trial judge reversed the agency and ruled in the Smiths’ favor.

The Arizona Court of Appeals, however, restored the ALTCS interpretation. The insurance proceeds weren’t actually available on the date of the accident, said the judges—as evidenced by the fact that it took nine months before the claims were finalized and payments received. ALTCS was right to calculate the Smiths’ assets at the lower number. Smith v. Arizona Long Term Care System, January 22, 2004.

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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.

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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.