Thursday, January 15, 2015

Estoppel! In The Name Of Love

In re Bernice Landry2015 VT 6

By Elizabeth Kruska

Who loves filling out insurance forms? Nobody! (If you are someone who loves filling out insurance forms, feel free to leave a comment below. I anticipate zero comments.) But sometimes you fill out insurance forms in the name of love, like if your mama is 87 and has diagnoses of dementia and Alzheimer’s disease. Those are terrible things. Those are also a pretty apt description of Bernice Landry.

Bernice’s daughter (Daughter) was her power of attorney and had authority to act on her behalf. In January 2011, she filled out some Medicaid forms for Bernice and submitted them to the State. She sought coverage, plus three months of retroactive benefitsso, going back to October 2010presumably to help pay for Bernice’s stay in a nursing home, which started in September 2010. Three months’ worth of benefits retroactive to the time of application can be granted.

The Medicaid people (here, a benefits specialist through the Department for Children and Families, which is under the umbrella of the Agency of Human Services) reviewed the application as submitted and discovered they needed more information. They sent a request to Daughter seeking that additional information, but she never responded. Since there was no response, Medicaid denied the request, but noted that Bernice could appeal the decision. They also said that Bernice could reapply at any time. This was in March 2011.
They reapplied in June 2011, and again more information was sought but not given, so there was another denial. Then there was a third application, which also ended up getting denied in the same fashion.

In September 2011, Daughter contacted the benefits specialist and was upset about the denial. They had a meeting, and Daughter admitted she dropped the ball (her words, not mine) on the whole situation. By December 2011, they submitted a fourth application. This was also denied after a request for further information, which was also not provided.

Bernice’s son (Son) then stepped in in February 2012 and filed a complete application, which was granted and provided retroactive benefits to November 2011. Bernice actually wanted the benefits to be retroactive to October 2010, which was the time they could have started receiving the benefits based on the timing of Bernice’s first application. That got denied, so Bernice appealed that to the Human Services Board (HSB).

An evidentiary hearing was held before the HSB. Team Bernice pretty much argued that the forms were confusing, in that they said there could be an appeal but they also said Bernice could reapply at any time. This made Bernice (by and through her Daughter) believe that meant any benefits would be retroactive to the time of the first application. HSB understood the argument and the confusion. Also, they noted that there have been times when benefits beyond the 3 month window had been provided in the past, so they could do that here, too. HSB said that because of these factors, the doctrine of equitable estoppel kicked in and tolled, or stopped, the original 90 day appeals period from back in early 2011. HSB ordered benefits going back to October 2010.

DCF asked that the decision be reviewed by the Secretary of Human Services, who acts as sort of an appellate review of HSB decisions in situations like this. The Secretary disagreed with the HSB’s decision. The Secretary reversed the HSB because each of the four times Bernice applied and was denied, she was provided with a notice that more information was needed, which was never supplied. Because it was never supplied, the applications were all denied, and each denial included the proper notice about how to appeal. That never happened, either. The Secretary didn’t think the fact that Daughter “dropped the ball” was enough of a good cause not to respond. The Secretary said the facts just weren’t enough for equitable estoppel, and reversed the board.

Uh oh. This is a problem for Bernice, because she had received over a years’ worth of retroactive benefits, which I think we can assume would have been helpful and important in paying for her nursing home care. Bernice appeals the Secretary’s decision to the Vermont Supreme Court.

SCOV affirms the Secretary’s decision. Although SCOV concedes that there was some merit to Bernice’s claim of confusion about the retroactivity of benefits, the actual question is whether equitable estoppel applies to the facts here or not.

I’ve used the phrase “equitable estoppel” about four times in this post without explaining what it is. That seems unfair. It happens where Party 1 makes some initial representations, and Party 2 relies on those representations, believing them to be true (they might not be, but it’s what Party 2 relies on). Then Party 1 changes its tune and changes the earlier representations or asserts the true facts. This would cause Party 2 to be at a disadvantage, based on the initial representations. Party 2 would then try to estop Party 1 from proceeding based on the information Party 2 didn’t have.

Perhaps a concrete example would help. A person sees a sign in a storefront advertising snow shovels on sale for $5. The person goes in to inquire, sees some snow shovels on display, and says to the store owner, “I think I have $5 in the car, I’ll be right back.” The store owner doesn’t tell him that the $5 shovels are sold out, and that the shovels on display actually cost $10. The person goes to get his money, and when he returns, waving Honest Abe’s green portrait, is told the snow shovels he saw are $10 apiece, not the $5 as advertised in the window. He could complain to the shop owner that he relied on the earlier representation that the snow shovel is $5, and the fact that the owner didn’t point out that those were different shovels, so he should get the shovel for that price, not the higher price. This reminds meI need a new snow shovel.

SCOV examines the doctrine of equitable estoppel, pretty much in the same way I described it above, but they use slightly different words and far fewer references to snow shovels. They point out that they can also consider, in the context of equitable estoppel against the government, whether an unjust result would occur if the government were not estopped.

SCOV finds that although Daughter was confused by the paperwork she received, the fact that, by her own admission she “dropped the ball” is not enough to assert equitable estoppel. SCOV finds that the notice relative to the appeal process was clear, and that Daughter’s understanding really wasn’t reasonable. No government official made explicit representations to Daughter that she needed to do something (or not) and did so to her detriment.

So, unfortunately for Bernice and her family, SCOV affirms the Secretary’s decision that benefits can’t be retroactive to October 2010.

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