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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And furthermore....

By Portia B. Scott, J.D.,L.L.M. • April 2, 2026
Another Warning from our Appellate Court Regarding Al I hate to repeat myself, but.... The March 25, 2026 release of written opinions from our own Fourth District Court of Appeal (4th DCA) has another warning to persons venturing into the Court system. As you may know, I wrote about a warning from the 4th DCA about a self- represented Appellant (person seeking to have the trial court's decision overturned) using Al and the possible, but not inflicted, sanctions which could have resulted. Now, again, in Gouveia v. Meridian Financial Investments, LLC, the 4th DCA has again written to address this increasingly abusive use of Al in the Courts. In this more recent case, there was a contract dispute and the trial court ruled in favor of the Plaintiff (the party making the complaint...get it? "Plaint-iff" based on "Com-Plaint?"). The losing side filed an appeal, asking for the 4th DCA to overturn the decision of the trial court. Well, that went nowhere and the Plaintiff kept its win. The story here is that the person who lost at trial and on appeal, in his case and appeal to the 4th DCA apparently used Al to help write his argument. The Al manufactured ("hallucinated") prior cases which did not exist or, if they did exist, did not stand for what the person said it did. It would be as if the person made reference to Roe v. Wade (a case which does exist) and told the appeals court that it stood for the legal principal that a Jack of Spades has a higher value in poker than the King of Spades (which is absolutely not what Roe v. Wade said). Is that straight-up nonsense? Yes and as absurd as that which was submitted to the appeals court as if it were true. The Court issued another warning about the possibilities of sanctions if it is done again by the person submitting it, just like before. But, as the concurring opinion in this case points out something else (a "concurring opinion" is a written opinion which agrees with the actual opinion but has more to say). The concurring opinion points out how meaningless it is to threaten sanctions against someone who will most likely not be before the Court again. That means that the opportunity to misbehave for this person is greatly reduced. Most self-represented folks only appear once -if at all- before the appellate court. The concurring opinion said that with attorneys, it is not a problem as sanctions will work against us, seeing how we are in court so often. What is the solution? The writer of the concurring opinion doesn't know but suggests some pro-active steps. (Sanctions are, by their very nature, reactive - they are issued in response to something done.) Perhaps forcing sworn statements from the parties that they have not used Al or, if they have, exactly what the Al included; that the party submitting the Al- generated document has double-checked the sources. Something which can help us all work with the rising tide of Al, Chatbots, LLM tools.  Stay tuned!

Appellate Court Issues Warning to Non-Attorneys Filing Appeals

By Portia B. Scott, J.D.,L.L.M. • March 26, 2026
The Florida trial courts' decisions are subject to appeal to a higher Court. This happens when a litigant (the Plaintiff or Defendant) believes the trial court made a mistake and that the mistake should be corrected. The mistake believed to have been made by the trial court can be based in the facts of the case ("that is not what the evidence showed"), the law ("that is not what the statute or other source of law says"), or both. A recent opinion from the 4th District Court of Appeal (which takes such claimed mistakes from the circuit trial courts in Broward, Palm Beach, Martin, St. Lucie, Indian River and Okeechobee Counties) dealt with an alleged mistake of law. The person who was claiming the mistake (the Appellant), was representing herself. Without an attorney to help her write the appeal, she resorted to Artificial Intelligence ("AI"), as we can expect many people do or might start doing. The decision came back from the 4th District Court of Appeal, disagreeing with her; the appeals court found no error by the trial court. But for the use of Al, there probably would not have been any thing actually written. The 4th would have just said something like, "we find no error." However, the Al tool had "hallucinated" what other, prior District Courts' had said. In the paperwork submitted by the Appellant, she had cited certain old cases saying that these cases were opposite of what the trial court had ruled. She claimed that the trial court had used the wrong law and that she should have won. The problem, as you might have guessed, is that the cases did not exist - some of them not at all. Other cases she cited to the 4th were actual cases, but did not say what her Al asserted they said. Here is the reason everyone needs to know this: Self-represented litigants are held to the same standards as an attorney. Obviously, attorneys are not allowed to make up old cases and present them to a Court (trial or otherwise). If we do use Al to help find the old cases, we absolutely have to check to make sure that they are real and do exist. If we do not, we can be sanctioned - maybe even having to pay the other side's attorney's fees which, for an appeal, can easily be in the tens of thousands of dollars! That is a scary prospect. The self-represented litigant could have faced sanctions - just like her attorney would have had she had one. In this particular case (Roussell v. Bank of New York Mellon, Etc., decided March 11, 2026), the appellate court did NOT sanction her, but easily could have. This was probably a decision issued as a warning to all.