Long Term Care and Medicaid
Portia B. Scott, J.D., L.L.M. • April 1, 2021

Look Backs and Bright Lines - What you need to know.

You may already know that when applying for Long Term Care through Florida’s Medicaid Program, there is a “look back” period of 60 months, That is, Medicaid may temporarily disallow benefits otherwise payable for Long Term Care (such as for skilled nursing facilities) if there were disqualifying transfers of assets in the 5 years immediately preceding the claim. Certain transfers are allowed, which is part and parcel of some Medicaid Plans, but out-right gifts are usually disqualifying events. 

 

Until recently, there was no comparable look back period for Veterans’ benefits such as War time Pension, with or without Homebound enhancement or Aid and Attendance enhancement.

 

That changed October 18, 2018. The VA now has a look back period and it seems the VA is going to keep it. The VA benefits, when received, remain “needs based,” payable monthly and are tax-free. However, the VA will consider all transfers made during the 36 months immediately before the application is submitted.

 

Also, there is a “bright line” asset limit. Until November, 30, 2021 that asset cap is $130,773.00 and it will be subject to COLAs which are tied to Social Security COLAs. Those assets do not include homestead, furnishings or a car but do include the applicant’s annual income. This bright line replaces the old case-by-case analysis where the VA would be asked to determine if it seemed “fair” for the applicant to receive a pension, though the general rule of thumb was an asset cap of around $50,000.00 to $75,000.00.

 

Only if the applicant has assets above the $130,773.00 figure (including those gifted or transferred at less than full market value during the 36 month look back period) is there a possible disqualification period. 

 

If the applicant, for example, had $100,000.00 in assets in January and gave $14,000.00 to each of his 5 children in February and submitted his application in March, he would not have a disqualification period for his pension. (The $100,000.00 total assets less the 5 gifts of $14,000 results in a balance of $30,000,00 remaining assets. However, since he was not above the asset cap to begin with, there is no Disqualification.)

 
By contrast, if another applicant had $200,000.00 in assets and gave comparable gifts, she would be looking at a disqualifying period during which she would not receive a pension. The amount of time she would be disqualified is, currently, the amount over $130,773.00 she gave away divided by the maximum pension awardable at the time of the application. So, $200,000.00 - $130,773.00 = $69,227.00 this is the maximum amount she will be determined to have disqualifyingly transferred. That $69,227.00 is divided by the maximum pension which results in the disqualifying period. That disqualifying period will begin on the first day of month immediately after the month in which the transfers were made.

 

There are, of course, tools which can be used to allow an applicant to qualify, including regaining possession of the disqualifying transfers and then making the transfers in a manner which is not disqualifying.

 

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MY MOTHER, THE GRAMMAR TEACHER, WOULD BE SO PROUD: We Have Our Own "Comma" Case

By Portia B. Scott, J.D., L.L.M. • July 22, 2026
One of the most absurd things for law students to grasp in that all-important first year, is the idea of what can be considered "ambiguous." (Ambiguity is "an uncertainty of meaning or intention, as in a contractual term or statutory provision.") If language is deemed "ambiguous," what happens next depends on where this ambiguity is found. The ambiguity can be subject to interpretation of a Court - if it is in a statute. If the Court has to use interpretation, there are several tools they can use to derive meaning and intent from the writers of the statute. This search for "Legislative intent" is sometimes easy if there is a part of the statute stating specifically what the Legislature was trying to do. Without that, however, judges will look at what the plain and simple language would mean. If that does not help, then they can look at the surrounding language, the other terms, what might be excluded, what would make the language harmonious with the other laws on the topic... All kinds of factors are examined to determine what the law is trying to say. However, if the ambiguity is found in a contract, the options are different and depend on whether the ambiguity is an obvious mistake ("Art is the Buyer" and then, later "The Buyer, Bert" is written in the same contract) or whether it is a more sneaky ambiguity. Here is where the comma comes into play. The Tariff of 1872 misplaced a comma, resulting in fruits not being subject to the tax. The tariff was trying to say that fruits and fruit plants would be subject to the tariff, but, by placing a comma where it did not belong, fruits become tax free and only fruit-bearing plants were subject to the Tariff. Another is a case where there would be no overtime payments for work done for "...drying, marketing, storing, packing for shipment or distribution" of foods. Because there was no comma between "shipment" and "distribution," the Court found it questionable if "shipment and distribution" were one joint act or two separate ones. The result? Workers got their overtime payments. Now, we have a case, decided July 22, 2026 by our appellate court, that a comma found between "construed according to the laws of the State of Florida" and "with venue in Collier County," created an ambiguity allowing venue to be set in another County (Martin). The comma controlled and there is an ambiguity, allowing the action to be filed in Martin County, rather than Collier. The benefits of filing in one county verses another, well, that would be an entirely different article.  Just remember: Watch those punctuation marks folks! Ambiguities may be found everywhere!

Gloves are Off!

By Portial B. Scott, J.D.,L.L.M. • May 31, 2026
Appellate Gloves Are Off: Warnings Appear to Be Over with Our Courts Over Unverified Artificial Intelligence Arguments and Filings This is the third straight article I have written on this topic - but things keep moving and changing. In my first two articles on this topic (the use of Al in Court filings), I explained that our appellate Court (the "4th") has been issuing warnings about the use of Artificial Intelligence in drafting and filing papers with the Court if the Al is not double-checked against reality. In those articles, I explained that the 4th was giving warning after warning against filing unauthenticated Al-generated motions, petitions, appeals, complaints, briefs, memoranda of law. Now, in three separate rulings on May 27, 2026, the 4th has stopped issuing warnings and has started imposing sanctions and, for attorneys, referrals to the Florida Bar for disciplinary action. In the first case,a self-represented litigant was found to have abused the courts. by filing some 90 Al-generated motions against his former wife. The 4th observed that the arguments made in his appeal to the 4th were not based on actual cases, rules of procedure or, if they were actual cases, such arguments were not found in those cases. As a self-represented litigant, the 4th cannot refer him to the bar for discipline. So, what can the 4th do? They can prohibit him from being able to file any more papers in our courts without having a Florida Bar -licensed attorney sign off on the papers. This is a drastic sanction since access to the Courts is of such high value in America. We want people to have access to the Courts - so they don't settle their disputes at high noon in the middle of the street with firearms or have it out with brawls. The idea behind requiring such sanctions is that an attorney will think twice before endangering their right to practice law. The attorney requirement is expensive, too. Still, when a litigant abuses the courts system, there must be some way to safeguard the integrity of the Court. The idea of an attorney cherishing their rights to practice, however, may not always be 100% accurate. (See below) The second case involved an attorney who filed an "emergency" motion, citing cases which do not stand for the concept of what the attorney claimed. By way of example of what I mean, if the attorney claimed that Roe v. Wade stands for the proposition that income tax is unconstitutional, that would be claiming something that just is not so. Importantly, it is verifiably not so. One need only look at the Roe v. Wade decision to see it is not correct. The 4th said that, whether the case is misrepresented as meaning something it does not or even does not exist at all, it does not matter. Both are equally wrong. The attorney was reported to the Florida Bar for disciplinary inquest. in the third case, an attorney filed a brief which included references to what has happened at trial and quoted from the transcript of the trial. However, since appeals ususally have to have a copy of the transcript included when the appeal is filed (so the 4th can read what actually happened and not just take the filer's word for it), it soon became obvious that what the attorney said had been said in Court was not true. This might have been a result of poor prompting by the attorney to the Al or intentionally misdirecting the Al. It also could be that the transcript of the trial was fed to Al and Al misunderstood what had happened - due to not understanding fully the meaning of certain legal terms. On top of that, Al also "hallucinated" legal authority and the attorney filed it with the 4th, even apparently invoking some of it in oral argument before the 4th, doubling his sins. In the end, how it happened did not matter. The 4th found that the lawyer cited imaginary legal authorities as if they were law and the 4th reported him to the Florida Bar for discipline action, putting his law license in jeopardy.  I want to make it clear: the 4th does not prohibit the use of Al in filings, but everyone must ensure that the citations to legal authority, the statement of the facts and all manner of statements are accurate, real and not the figments of Al's desire to provide a winning argument at the cost of truth.