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(FILED: NEW YORK COUNTY CLERK 06/04/2014) INDEX NO. 151788/2014
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/04/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
nana anna nana enna nn nnn nnn nnn nanan nn nnn nnn nnn nnn enn nee
TERENCE CARDINAL COOKE NURSING HOME, Index No.: 151788/14
Plaintiff, REPLY TO
DEFENDANT’S
OPPOSITION TO
PLAINTIFF’S MOTION
FOR SUMMARY
JUDGMENT
~ against -
ROBERT ROHR,
Defendant.
nen nen nee enn nee nen nnn cane nen enn enennnnnmennenee
SHELBY E. NEISS, an attorney duly admitted to the practice of law in the State of New
York, hereby affirms the following to be true pursuant to CPLR § 2106 and under the penalties
of perjury states that:
1 I am an associate attorney with the Law Offices of Wolf Haldenstein Adler
Freeman & Herz, LLP, attorneys for TERENCE CARDINAL COOKE NURSING HOME
(hereinafter referred to as "Plaintiff"), and I am fully familiar with the facts and circumstances
herein.
2. I make this Affirmation in reply to Defendant’s Opposition of Plaintiffs Motion
seeking an Order granting Summary Judgment in favor of the Plaintiff and against Defendant,
ROBERT ROHR (hereinafter referred to as "Defendant").
3 A claim was submitted to Defendant’s insurer, Empire Blue Cross/BlueShield.
Defendant’s claim for coverage for the services provided to him by Plaintiff was denied.
Defendant was advised of his insurance carrier’s denial by letter dated August 10, 2012, which
stated: “Your request for long-term care in a Skilled Nursing Facility is not approved. This is not
a covered benefit in your Medicare Plan. This request is denied per your contracted benefits.”
(See, correspondence from Empire Blue Cross/Blue Shield, annexed hereto as Exhibit A.)
4. Defendant’s August 16, 2012 Notice of Acceptance from NYC Human Resources
Administration only granted him eligibility for Community Medicaid with inpatient Medicaid
coverage, but not for institutionalized long-term/custodial care coverage (emphasis added). (See,
Notice of Acceptance of Your Medicaid Application, annexed to Defendant’s Response in
Opposition to Plaintiff's Motion for Summary Judgment.) In addition, in order to receive
benefits per that notice, Defendant would have had to pay the surplus amount of $1,236.00
toward the cost of his medical expenses. Upon information and belief, Defendant did not do so.
5 With regard to Defendant’s eligibility for Medicaid coverage for
institutionalized/long-term/custodial care services, notices dated December 21, 2012, January 11,
2013, January 31, 2013, February 19, 2013, February 25, 2013, and March 4, 2013, were sent by
Medicaid to Defendant, requesting information regarding his ownership of an annuity with
Genworth Financial. Defendant ultimately failed to satisfy these requests, and his application for
Medicaid benefits was denied as of April 6, 2013. See, respective notices and denial,
collectively annexed hereto as Exhibit B.)
6 Thereafter, Plaintiff and this office continued to attempt to assist Defendant in
obtaining Medicaid eligibility. By letter dated September 5, 2013, this office sent Defendant a
letter with a request for his authorization to pursue a Fair Hearing and obtain the information
regarding his Genworth annuity. Defendant never supplied the executed documents. (See, letter
dated September 5, 2013 with Authorization, Information Sheet and proposed letter to Genworth
Financial, annexed together hereto as Exhibit C.)
7 Thereafter, Defendant provided a letter dated May 3, 2013, with statements from
Genworth Financial regarding his annuity. The statements dated January 17, 2012 and January
16, 2013 showed that Defendant’s ownership of the annuity caused him to be over-resourced
during the length of his stay at Plaintiff facility. In addition, the information provided showed
that “ESTATE” was named as primary beneficiary. (See, letter dated May 3, 2013 and
statements from Genworth Financial, annexed hereto as Exhibit D.)
8 On February 8, 2006, the Deficit Reduction Act of 2005 (“DRA) Pub. L. No. 109-
171, 120 Stat. 4 (2005) was signed into law. 42 U.S.C. 1396p(c)(1) provides in relevant part:
(F) For purposes of this paragraph, the purchase of an annuity shall be
treated as the disposal of an asset for less than fair market value unless-
(i) the State is named as the remainder beneficiary in the first
position for at least the total amount of medical assistance paid on behalf
of the institutionalized individual under this title [42 USCS §1396 et seq.];
or
(ii) the State is named as such beneficiary in the second position
after the community spouse or minor or disabled child and is named in the
first position if such spouse or a representative of such child disposes of
any such remainder for less than fair market value...
9 Based upon the law, and the information provided by Defendant, the annuity did
not comply with this provision, nor the remaining criteria set forth in 42 U.S.C. 1396p(c)(1).
Therefore, it was concluded that Defendant’s purchase within the five (5) years prior to his
application, and/or ownership of this asset, precluded his Medicaid eligibility for the duration of
his stay at Plaintiff facility.
10. Therefore, Defendant’s claim for coverage from his Blue Cross/Blue Shield
insurance was denied; and he never qualified for Medicaid benefits for the services provided by
Plaintiff.
ll. In any event, these issues are wholly irrelevant, as it was Defendant’s
responsibility to assure proper insurance coverage, and that his claims were approved by, and/or
successfully appealed with, his carrier(s) and paid. Defendant agreed to undertake these
obligations upon entering into the Admission Agreement with Plaintiff on August 14, 2012.
(See, Admission Agreement, annexed to AnnMarie Covone’s Affidavit, Exhibit A.)
12. Therefore, it remains uncontroverted that Defendant, Robert Rohr, is responsible
for the payment demanded herein, and that Defendant is thus indebted to Plaintiff in the sum of
$29,333.75 together with interest thereon at the legal rate.
WHEREFORE, it is respectfully requested that this Court issue an Order
awarding summary judgment in Plaintiff's favor against Defendant, in the sum of $29,333.75
together with interest, costs, and disbursements of this action, and directing such other and
further relief as the Court may deem just and proper.
Dated: New York, New York
June 4, 2014
©
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(FILED: NEW YORK COUNTY CLERK 06/04/2014) INDEX NO. 151788/2014 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/04/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK nana anna nana enna nn nnn nnn nnn nanan nn nnn nnn nnn nnn enn nee TERENCE CARDINAL COOKE NURSING HOME, Index No.: 151788/14 Plaintiff, REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ against - ROBERT ROHR, Defendant. nen nen nee enn nee nen nnn cane nen enn enennnnnmennenee SHELBY E. NEISS, an attorney duly admitted to the practice of law in the State of New York, hereby affirms the following to be true pursuant to CPLR § 2106 and under the penalties of perjury states that: 1 I am an associate attorney with the Law Offices of Wolf Haldenstein Adler Freeman & Herz, LLP, attorneys for TERENCE CARDINAL COOKE NURSING HOME (hereinafter referred to as "Plaintiff"), and I am fully familiar with the facts and circumstances herein. 2. I make this Affirmation in reply to Defendant’s Opposition of Plaintiffs Motion seeking an Order granting Summary Judgment in favor of the Plaintiff and against Defendant, ROBERT ROHR (hereinafter referred to as "Defendant"). 3 A claim was submitted to Defendant’s insurer, Empire Blue Cross/BlueShield. Defendant’s claim for coverage for the services provided to him by Plaintiff was denied. Defendant was advised of his insurance carrier’s denial by letter dated August 10, 2012, which stated: “Your request for long-term care in a Skilled Nursing Facility is not approved. This is not a covered benefit in your Medicare Plan. This request is denied per your contracted benefits.” (See, correspondence from Empire Blue Cross/Blue Shield, annexed hereto as Exhibit A.) 4. Defendant’s August 16, 2012 Notice of Acceptance from NYC Human Resources Administration only granted him eligibility for Community Medicaid with inpatient Medicaid coverage, but not for institutionalized long-term/custodial care coverage (emphasis added). (See, Notice of Acceptance of Your Medicaid Application, annexed to Defendant’s Response in Opposition to Plaintiff's Motion for Summary Judgment.) In addition, in order to receive benefits per that notice, Defendant would have had to pay the surplus amount of $1,236.00 toward the cost of his medical expenses. Upon information and belief, Defendant did not do so. 5 With regard to Defendant’s eligibility for Medicaid coverage for institutionalized/long-term/custodial care services, notices dated December 21, 2012, January 11, 2013, January 31, 2013, February 19, 2013, February 25, 2013, and March 4, 2013, were sent by Medicaid to Defendant, requesting information regarding his ownership of an annuity with Genworth Financial. Defendant ultimately failed to satisfy these requests, and his application for Medicaid benefits was denied as of April 6, 2013. See, respective notices and denial, collectively annexed hereto as Exhibit B.) 6 Thereafter, Plaintiff and this office continued to attempt to assist Defendant in obtaining Medicaid eligibility. By letter dated September 5, 2013, this office sent Defendant a letter with a request for his authorization to pursue a Fair Hearing and obtain the information regarding his Genworth annuity. Defendant never supplied the executed documents. (See, letter dated September 5, 2013 with Authorization, Information Sheet and proposed letter to Genworth Financial, annexed together hereto as Exhibit C.) 7 Thereafter, Defendant provided a letter dated May 3, 2013, with statements from Genworth Financial regarding his annuity. The statements dated January 17, 2012 and January 16, 2013 showed that Defendant’s ownership of the annuity caused him to be over-resourced during the length of his stay at Plaintiff facility. In addition, the information provided showed that “ESTATE” was named as primary beneficiary. (See, letter dated May 3, 2013 and statements from Genworth Financial, annexed hereto as Exhibit D.) 8 On February 8, 2006, the Deficit Reduction Act of 2005 (“DRA) Pub. L. No. 109- 171, 120 Stat. 4 (2005) was signed into law. 42 U.S.C. 1396p(c)(1) provides in relevant part: (F) For purposes of this paragraph, the purchase of an annuity shall be treated as the disposal of an asset for less than fair market value unless- (i) the State is named as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the institutionalized individual under this title [42 USCS §1396 et seq.]; or (ii) the State is named as such beneficiary in the second position after the community spouse or minor or disabled child and is named in the first position if such spouse or a representative of such child disposes of any such remainder for less than fair market value... 9 Based upon the law, and the information provided by Defendant, the annuity did not comply with this provision, nor the remaining criteria set forth in 42 U.S.C. 1396p(c)(1). Therefore, it was concluded that Defendant’s purchase within the five (5) years prior to his application, and/or ownership of this asset, precluded his Medicaid eligibility for the duration of his stay at Plaintiff facility. 10. Therefore, Defendant’s claim for coverage from his Blue Cross/Blue Shield insurance was denied; and he never qualified for Medicaid benefits for the services provided by Plaintiff. ll. In any event, these issues are wholly irrelevant, as it was Defendant’s responsibility to assure proper insurance coverage, and that his claims were approved by, and/or successfully appealed with, his carrier(s) and paid. Defendant agreed to undertake these obligations upon entering into the Admission Agreement with Plaintiff on August 14, 2012. (See, Admission Agreement, annexed to AnnMarie Covone’s Affidavit, Exhibit A.) 12. Therefore, it remains uncontroverted that Defendant, Robert Rohr, is responsible for the payment demanded herein, and that Defendant is thus indebted to Plaintiff in the sum of $29,333.75 together with interest thereon at the legal rate. WHEREFORE, it is respectfully requested that this Court issue an Order awarding summary judgment in Plaintiff's favor against Defendant, in the sum of $29,333.75 together with interest, costs, and disbursements of this action, and directing such other and further relief as the Court may deem just and proper. Dated: New York, New York June 4, 2014 ©