The payment stream from a non-assignable annuity may not qualify as a resource, for purposes of Medicaid eligibility. The plaintiff, John Lopes, resides in a nursing facility. To reduce assets below $180,735, so that her husband could qualify for Medicaid, Lopes' wife, Amelia, spent $166,220, to purchase an annuity from The Hartford. The contract provided, "Any attempt to transfer, assign, sell, anticipate, alienate, commute, surrender, cash in or pledge this contract shall be void of any legal effect and shall be unenforceable against [The Hartford]." The Hartford wrote a letter, which confirmed that Amelia Lopes' annuity of $2,340 per month was irrevocable and could not be assigned. The Department of Social Services denied the plaintiff's request for Medicaid benefits, because Amelia Lopes failed to cooperate, when the department's attorney, Dan Butler, asked her to attempt to sell her interest in the income stream. The plaintiff sued and argued that the department interpreted the word "assets" too broadly and that the annuity payments qualified as "income" that Amelia Lopes was not required to spend down, in order for her husband to receive benefits. The District Court found that the plaintiff established that the annuity was unassignable and that the Department of Social Services wrongly treated Amelia Lopes' income stream as an "asset." The department appealed to the 2nd Circuit. The Medicare Catastrophic Coverage Act provides that a spouse who is not living in a nursing facility can obtain Medicaid benefits for a spouse in a nursing facility and keep a portion of assets. Section 01110.15 of the Social Security operations manual, which is referred to as the Program Operations Manual System, or POMS, §SI 01110.15, supported Lopes' argument that the payment stream qualified as income. "[T]he income stream from Lopes's annuity," wrote the 2nd Circuit, "is properly considered income, not a resource, because the annuity is non-assignable." The fact that Lopes converted cash to an annuity, prior to applying for Medicaid, was not pertinent to whether the annuity, in its current form, qualified as a resource under the regulations. The 2nd Circuit affirmed the judgment of the District Court, Hall, J.

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