In May 2015, the NAELA Foundation awarded $7,500 and 10 hours of pro bono work provided by the NAELA Litigation Committee to the Colorado Fund for People with Disabilities (CFPD). The grant supports litigation to confirm that individuals age 65 and older can establish and fund a pooled trust without penalty. Currently the federal statute and Colorado’s Medicaid regulation states that individuals age 65 and older can establish a pooled trust. However, it also states that the rules for transfers without fair consideration or gifts must be applied to funds placed in the trust. These transfers would result in penalties for the beneficiaries and no appeal could be filed for the transfer without fair consideration until a beneficiary was denied due to the transfer. Until late 2012, the Colorado Department of Health Care Policy and Financing confirmed that CFPD had rebutted the presumption of a transfer without fair consideration with the submission of an actuarially sound spending plan in which the pooled trust administrators prove that the funds are being transferred for fair market value and details how the trust will be used. Since then, the Department has changed its practice and not allowed this approach. The District Court has ruled on the state’s partial motion to dismiss, dismissing some aspects of the case but leaving others in place. CFPD may seek an additional grant as it pursues the matter, the next step being a hearing.
In July 2018, the Court issued a decision in the case and the CFPD beneficiary won. The Final Agency Decision was set aside and deemed unlawful. Other claims CFPD brought against the Department related to this case are still pending. The counsel for CFPD: Tammy Conover, Scott Challinor and Shari Caton, believe that the Department will appeal this decision to a higher court.