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Lawsuit seeks to help VA pension beneficiaries wrongly purged from Medicaid rolls

Irene Czajkowski, 84, is the widow of a military veteran, living in a St. Petersburg nursing home with a fixed income of roughly $20,000 a year.

Apparently, she's too rich to qualify for Medicaid assistance. The Department of Children and Families recently notified Czajkowski's brother Michael Buckley — who has power of attorney — that it planned to remove her from the long-term Care Diversion Program.

But in a lawsuit filed in federal court late Friday, attorneys argue that Czajkowski is one of an untold number of Veterans Affairs pension beneficiaries, living in nursing homes across the state, who have been wrongly purged from the Medicaid rolls, in violation of a 1987 injunction spurred by the lawsuit Mitson vs. Coler.

"Shockingly, the State of Florida has failed to comply with the Court's permanent injunction, and class members have suffered, and continue to suffer, injury as a result," according to the motion to reopen Mitson, in which the state's Department of Health and Rehabilitative Services was ordered to review Medicaid qualifying standards.

The suit seeks Medicaid reinstatement for Czajkowski and other class members and potential damages for the state's failure to provide their benefits in the past. It also requests her appointment as the revived lawsuit's class representative, an order to show cause why the defendants should not be held in civil contempt, and to allow her attorney Tod Aronovitz to determine the depth and breadth of the state's failure to comply with the permanent injunction.

U.S. Judge Alan S. Gold is handling the resurrected case.

Aronovitz told the Miami Herald on Monday that "the state is clearly violating" the permanent injunction, and thousands of Florida Medicaid recipients could qualify as class members.

The motion is unique in several ways, all related to the time elapsed since the order was originally issued. None of the suit's primary litigants is still alive, and neither is its judge, Sidney Aronovitz — the father of the plaintiffs' attorney.

The state agency originally sued, the Department of Health and Rehabilitative Services, no longer exists. In 1996, lawmakers broke HRS into two groups: the Department of Health, and the Department of Children and Families. The latter now determines Medicaid eligibility, and current DCF Secretary David Wilkins was among the parties served.

"We received notification of the motion (Monday) morning and are currently reviewing its merits," said DCF spokesman Joe Follick.

As for the plaintiffs, Marilyn Jones filed the suit in May 1987 on behalf of friend Rebecca Mitson, a nursing home patient who was wrongly denied state aid. Both are now dead, as is the named defendant — Gregory L. Coler, then the secretary of Health and Rehabilitative Services. Coler died as a result of a stroke last year at the age of 65.

Sidney Aronovitz ultimately ordered the HRS to stop considering VA pension benefits awarded for unreimbursed medical expenses as "countable income" in determining Medicaid eligibility. The state unsuccessfully appealed Aronovitz's injunction, and it became settled law.

But for at least the last decade, DCF has illegally violated the ruling, Tod Aronovitz says.

Court documents filed by Czajkowski's attorneys claim that she has a monthly "countable income" — that when properly calculated should exclude her VA unreimbursed medical expenses monies received from its aid and attendance program — less than $2,022. That amount is the cap limit for the Florida Medicaid Institutional Care Program. It provides nursing home benefits to those who can prove they need the level of care of a skilled nursing facility and have income streams and assets low enough to qualify for assistance.

Those who make more than that must create a qualified income trust to qualify for Medicaid. Any income exceeding the cap must go into that irrevocable account, which goes back to the state at the time of their death.

When it came time for her annual Medicaid recertification, Czajkowski's VA award letter was not properly considered and she was unable to secure a written breakdown of her VA benefits acceptable to the DCF.

In the agency's estimation, Czajkowski, who is in poor health, needed to establish a qualified income trust to remain on Medicaid; she did not. And so Czajkowski was denied care — wrongly, her attorneys argue, who add that she surely isn't the only one.

"Words alone are insufficient to describe the suffering of class members caused by (the state's) failure to comply with the Court's permanent injunction," the lawsuit stated. "With each passing day, the suffering is compounded."

Miami Herald staff writer Jay Weaver contributed to this report.

Lawsuit seeks to help VA pension beneficiaries wrongly purged from Medicaid rolls 08/29/11 [Last modified: Tuesday, August 30, 2011 12:25am]

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