In August 2012, the Board approved a recommendation from the Litigation Committee that NAELA prepare or sign on to an amicus curiae brief to the Sixth Circuit Court of Appeals to advocate that the purchase of immediate annuities is permissible and should not be considered a countable asset in Hughes v. Colbert. The brief, prepared by Litigation Committee Chair Rene Reixach and NAELA member Molly Wood, has been submitted jointly with the Ohio State Bar Association.
In October 2013, the Sixth Circuit Court's decision on Hughes v. McCarthy (formerly Hughes v. Colbert) adopted the arguments made in the amicus brief that a transfer of assets from an institutionalized spouse to the community spouse prior to the date for which Medicaid coverage is sought may be made in any amount without penalty.
This is important for planning to protect the financial well-being of the community spouse who may subsequently be able to use any excess resources for his or her own financial needs, as was done in this case to provide income for the community spouse through an immediate annuity. The decision also recognized, as the amicus brief argued, that informal guidance letters from the Centers for Medicare and Medicaid Services should be given deference by the courts.