Panel Overturns Legal Fee Award in Medicaid Case

For the second time in five years, the Appellate Division, Third Department, has overturned an order awarding $100,000 in counsel fees in a case where the state Health Department had directed the community spouse of a Medicaid patient to invest in an annuity. Giaquinto v. Commissioner of the New York State Department of Health, 511701, has been before the justices in Albany twice before and was once before the Court of Appeals. It centers on a question of whether there is anything in the federal law barring the state from relying on the annuity method to purge resources for Medicaid eligibility reasons.

Records show that Dominick Giaquinto, who has since died, was living in an adult-care facility while his wife remained in the marital residence. Mr. Giaquinto applied for Medicaid, but the health commissioner found that the Giaquintos had household income and resources in excess of the permissible levels. The state directed the Montgomery County Department of Social Services to calculate how much of the couple’s excess resources would be needed for the wife to purchase a single-premium immediate life annuity to increase her share of the marital assets. Mr. Giaquinto objected and filed a civil rights action.