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WINSLOW v. STATE EX REL. PETERSON

Cite as 303 Neb. 24

LaVeta Winslow, by and through her desi

authorized representative The Evangelical 

Good Samaritan Society - Superior, appel

State of Nebraska ex rel. Douglas Pete

Attorney General, and Depar

Health and Human Services, a

___ N.W.2d ___

Filed May 3, 2019. No. S-18-181.

1. Administrative Law: Judgments: Appeal and Error. A judgment or 

final order rendered by a district court in a judicial review pursuant to 

the Administrative Procedure Act may be reversed, vacated, or modified 

by an appellate court for errors appearing on the record.

2. ____: ____: ____. When reviewing an order of a district court under 

the Administrative Procedure Act for errors appearing on the record, the 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

3. Judgments: Appeal and Error. Whether a decision conforms to law 

is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the 

lower court.

4. Medical Assistance: Federal Acts: States. The Medicaid program 

provides joint federal and state funding of medical care for individuals 

whose resources are insufficient to meet the cost of necessary medical care.

5. ____: ____: ____. A state is not obligated to participate in the Medicaid 

program; however, once a state has voluntarily elected to participate, it 

must comply with standards and requirements imposed by federal statutes and regulations.

6. Medical Assistance: Federal Acts: Real Estate. If a Medicaid applicant is determined to possess real property that is not subject to the 

home exemption and is considered an available resource, the Nebraska 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/17/2019 01:06 AM CDT
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Department of Health and Human Services is required to make available an “Agreement to Sell Real Estate and Repay Assistance” form to 

the applicant provided that (1) the applicant has authority to liquidate 

the property and (2) the applicant would be under the available resource 

limit if the property is excluded from consideration.

7. Medical Assistance: Federal Acts: Trusts. For Medicaid eligibility 

purposes, available resources can include assets held by trusts if a person establishes that trust with his or her assets and the individual is able 

to benefit from the corpus of the trust or the income derived therefrom.

8. Administrative Law: Presumptions: Proof. When challenging the 

decision of an administrative agency, the presumption under Nebraska 

law is that the agency’s decision was correct, with the burden of proof 

upon the party challenging the agency’s actions.

Appeal from the District Court for Lancaster County: Joh

A. Colborn, Judge. Affirm

Cameron E. Guenzel, of Johnson, Flodman, Guenzel & 

Widger, for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith 

for appellees.

Heavican, C.J., Miller-Lerman, Cassel, St

Papik, and Freudenberg, 

Funke, 

LaVeta Winslow, by and through her designated authorized representative The Evangelical Lutheran Good Samaritan 

Society - Superior (Evangelical), appeals the Lancaster County 

District Court’s order affirming the denial of Winslow’s 

September 2016 application for Medicaid benefits. Winslow 

claims Nebraska’s Department of Health and Human Services 

(DHHS), Division of Medicaid and Long-Term Care, improperly determined she was ineligible for Medicaid due to excess 

resources, namely a house which was owned by a revocable 

trust. Winslow further claims DHHS failed to provide her a 

necessary form so the property could be excluded from her 

available resources pending sale. For the reasons set forth 

herein, we affirm.
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Cite as 303 Neb. 24

I. BACKGROUND

Winslow is a current resident of Evangelical, a skilled nursing facility located in Nuckolls County, Nebraska. Prior to 

moving to Evangelical, Winslow lived in a house in Mankato, 

Kansas, until she was hospitalized in September 2015. On 

October 1, 2015, she went from the hospital to Evangelical to 

receive additional living assistance. Although she was unable 

to return to the Mankato house beyond occasional visits, she 

maintained ownership of the home with the goal of her eventual return. While she resided at Evangelical, no one else lived 

in the house, she did not rent the house to anyone else, and she 

continued to store personal property there.

The record owner of the Mankato house was the LaVeta 

Winslow Living Trust dated April 27, 2004, and restated 

January 8, 2015. The trust identified Winslow as the 

“‘Trustmaker’” and Winslow and her daughter Vycke Garman 

as trustees. As to the Mankato house and other property held 

by the trust, § 1.03 thereof required that the trustees administer 

and dispose of all trust property for Winslow’s benefit and the 

benefit of her beneficiaries. Additionally, § 1.04 provided, in 

relevant part:

During my lifetime, I shall retain the powers set forth 

in this Section in addition to any powers that I reserve in 

other provisions of this agreement.

(a) Action on Behalf of My Trust

During any period that I am serving as a Trustee of my 

trust, I may act for and conduct business on behalf of my 

trust without the consent of any other Trustee.

(b) Amendment, Restatement or Revocation

I have the absolute right, at any time and from time to 

time, to amend, restate, or revoke any term or provision 

of this agreement in whole or in part. Any amendment, 

restatement, or revocation must be in a written instrument 

signed by me.

My agent acting under a valid power of attorney executed by me may amend this agreement to the extent the 
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agent is specifically authorized to do so in the instrument 

appointing the agent. An amendment made by my agent 

in good faith shall be conclusive on all persons interested 

in the trust and my agent shall not be liable for the consequences of any amendment or for not having amended 

the trust. An amendment by my agent must be in a written 

instrument signed by the agent.

(c) Addition or Removal of Trust Property

I have the absolute right, at any time and from time to 

time, to add to the trust property and to remove any property from my trust.

Section 12.20 addressed Winslow and Garman’s trustee powers as to real estate and stated in part, “My Trustee may sell 

at public or private sale, convey, purchase, exchange, lease for 

any period, mortgage, manage, alter, improve and in general 

deal in and with real property in such manner and on such 

terms and conditions as my Trustee deems appropriate.”

Winslow also executed a durable special power of attorney 

appointing Garman and Cindy Kuhn to serve as Winslow’s 

holders of financial power of attorney. This document provided Garman and Kuhn the “full power and authority to 

do everything necessary to transfer, assign, convey, and 

deliver any interest [Winslow] may have in property owned 

by [Winslow] to the then acting Trustee of the . . . LaVeta 

Winslow Living Trust.”

In late 2015 and again in May 2016, Garman applied for 

Medicaid for Winslow. These applications were denied in 

part because Winslow’s resources exceeded program standards. 

These resources included the Mankato house.

Garman again applied for Medicaid for Winslow on 

September 23, 2016. The September application indicated 

Winslow’s assets included a car, a checking account, a savings 

account, an annuity account, an irrevocable burial trust, and the 

Mankato house.

On October 3, 2016, DHHS mailed Winslow a verification 

request seeking confirmation of Winslow’s interest, dividends, 
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Cite as 303 Neb. 24

royalties, annuity, pension, and trust fund income and requesting Winslow’s most recent bank statements and life insurance 

documentation. The request provided that “[f]ailure to provide 

verifications by 10-13-2016 could result in the denial, termination or decrease in [Winslow’s] benefits.”

On October 17, 2016, DHHS mailed Winslow another verification request seeking confirmation of “Current Trust, Bonds, 

Certificates of Deposit . . . , IRA, Money Market, Keogh, 

401(K), [and] Mutual Funds.” DHHS also requested a current accounting of the assets held by the trust. The request 

noted that Winslow was likely over the resource limit but 

that “if LaVeta is wanting to revoke the entire trust at this 

time and return all assets in the trust to herself she is able 

to do so. . . . Initially, if this is done she may still be over 

resources, but she could potentially gain Medicaid eligibility.” 

The request again provided that “[f]ailure to provide verifications by 10-27-2016 could result in the denial, termination or 

decrease in [Winslow’s] benefits.”

In a DHHS supervisor narrative dated October 17, 2016, 

DHHS acknowledged that the trust assets were available to 

Winslow and that Winslow had the authority to revoke or amend 

the trust. This DHHS supervisor narrative copied an October 

6 email from a program specialist with DHHS, Division of 

Medicaid and Long-Term Care, explaining Winslow’s authority 

under the trust.

On November 4, 2016, DHHS mailed Winslow an initial 

notice of action denying her coverage for failure to provide 

information. The notice stated that the information requested 

in the October 17 request was applicable only if Winslow was 

dissolving her trust. If not, Winslow would remain over the 

resource limit and would be ineligible for Medicaid. The notice 

further provided that the September application would remain 

valid until December 22.

On December 20, 2016, Garman deeded the Mankato house 

from the trust to Winslow. On December 22, Winslow’s attorney called DHHS concerning the Mankato house to request an 
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“IM-1 form”—a document entitled “Agreement to Sell Real 

Property and Repay Assistance” which allows an applicant 6 

months to sell real property and excludes use of that property as a resource for Medicaid eligibility purposes. DHHS 

responded to Winslow’s attorney that an IM-1 form would 

not be needed because DHHS had not determined whether 

Winslow’s resources would be under the eligibility limits. 

Winslow then submitted verification documents on December 

22, 23, and 28. DHHS eventually provided Winslow an IM-1 

form sometime after December 22.

After reviewing the documentation provided in December 

2016, DHHS determined Winslow was ineligible for Medicaid 

because her resources, which included two credit union accounts 

and the Mankato house, were above $4,000. On December 

30, DHHS mailed Winslow notice of the denial which stated 

“Resources Exceed Program Standard” as the reason for 

Winslow’s ineligibility. Also on December 30, Winslow signed 

the IM-1 form for the Mankato house. Winslow then reapplied 

for Medicaid, and on April 12, 2017, she was approved, with a 

share of cost, effective January 1, 2017.

Winslow filed an administrative appeal, and a hearing was 

held in June 2017. At the hearing, the parties agreed the main 

issue on appeal was whether the Mankato property “is a countable resource during the potential period of affected benefits 

for the September 2016 application.” Testimony from Sarah 

Shurigar-Meyer and Garman was received.

Shurigar-Meyer was the lead Medicaid worker with DHHS, 

Division of Medicaid and Long-Term Care. In her testimony, 

she explained DHHS’ reasoning for the denial of Winslow’s 

September 2016 application. Specifically, Shurigar-Meyer testified that Winslow was denied because she was over the 

resource limit of $4,000 for Medicaid. Winslow’s asset with 

the most value was the Mankato house, and Shurigar-Meyer 

testified Winslow would have been under the resource limit 

if the property were not an available resource. The Mankato 

house was determined to be an available resource “[b]ecause 
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the property was listed in a trust” and “there was not a[n] IM-1 

[form] signed to exclude that property because it was listed in 

the trust.” Shurigar-Meyer testified that once Winslow had the 

property transferred to her own name and signed the IM-1 form 

on December 30, 2016, Winslow was eligible for Medicaid 

benefits beginning in January 2017.

Shurigar-Meyer further explained that under DHHS policy, 

once DHHS becomes aware a property needs to be sold, 

DHHS is required to provide the applicant with an IM-1 form. 

Shurigar-Meyer testified:

[T]here was a lot of information that was missing, that 

we were asking for, that wasn’t provided until December 

22nd, December 23rd[;] . . . even though we were aware 

of the property, there was still [a] question as to whether 

or not that property was accessible to [Winslow], and I 

don’t know that we necessarily had that answer until we 

got the documentation that we needed on December 22nd

and 23rd.

However, Shurigar-Meyer admitted on cross-examination that 

DHHS had the trust document prior to the September 2016 

application and agreed that DHHS understood Winslow was 

authorized to revoke the trust and have the Mankato house 

returned to her name.

Garman testified to her participation in the application 

process. As to the Mankato house, she explained that she 

was aware that the house would need to be sold within 6 

months after Winslow was approved for benefits. Pursuant 

to such understanding, Garman took actions in the fall of 

2016 to clean out the house and discussed selling it to various people. Garman testified that while DHHS workers told 

Garman she would have to revoke the trust in order to 

sell the house, no one from DHHS advised her she could 

transfer the house to Winslow’s name and utilize an IM-1 

form to keep the house from being considered an available 

resource. Instead, Garman was first told about the IM-1 form 

by her attorney in December 2016. Garman explained that as 
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trustee, she always had authority to transfer the property back 

to Winslow.

Following the hearing, the interim director of DHHS, 

Division of Medicaid and Long-Term Care, issued an order 

affirming the denial of the September 2016 application. The 

order stated that Winslow “did not meet Medicaid eligibility 

requirements, due to resources, until the trust property was 

transferred to [Winslow], and an [IM-1 form] was signed.”

Winslow appealed this decision to the district court, arguing that the Mankato house should have been excluded from 

her countable resources beginning August 1, 2016, and that 

DHHS should have furnished her with an IM-1 form in 

September 2016.

The district court affirmed the denial of benefits. In its opinion, the court found that the Mankato house did not qualify 

for Winslow’s home because Winslow had not resided in the 

house for at least 6 months prior to the September 2016 application and the house was owned by the trust and not Winslow 

personally. As such, the house was not exempt from consideration as an available resource as Winslow’s home under 477 

Neb. Admin. Code, ch. 21, § 001.15B1 (2014), and Winslow 

was not entitled to additional time under 477 Neb. Admin. 

Code, ch. 21, § 001.15B5 (2014), to liquidate before it was 

counted as an available resource.

The court also determined that Winslow did not have the 

legal authority to liquidate the Mankato house until after 

Garman deeded it to her personally on December 20, 2016. 

Because Winslow did not have such authority, the court found 

that DHHS was not required to provide her an IM-1 form 

until after the transfer. Moreover, because Winslow did not 

sign an IM-1 form until December 30, the court held that 

January 1, 2017, was the appropriate start date since 477 Neb. 

Admin. Code, ch. 21, § 001.15B8 (2014), directs that the 

6-month period in which the real property is excluded begins 

on the month following the signing of the IM-1 form. Winslow 

appeals this order.
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II. ASSIGNMENTS OF ERROR

Winslow assigns, restated, that the district court erred by (1) 

failing to find that the Mankato house was Winslow’s home 

and exempt from consideration as an available resource, (2) 

failing to find that DHHS was required to provide Winslow 

an IM-1 form for the Mankato house while it was held by 

the revocable trust, and (3) finding that DHHS appropriately 

counted the Mankato house as an available resource and 

denied Winslow’s September application.

III. STANDARD OF REVIEW

[1] A judgment or final order rendered by a district court in 

a judicial review pursuant to the Administrative Procedure Act 

may be reversed, vacated, or modified by an appellate court 

for errors appearing on the record.1

[2] When reviewing an order of a district court under 

the Administrative Procedure Act for errors appearing on the 

record, the inquiry is whether the decision conforms to the law, 

is supported by competent evidence, and is neither arbitrary, 

capricious, nor unreasonable.2

[3] Whether a decision conforms to law is by definition 

a question of law, in connection with which an appellate 

court reaches a conclusion independent of that reached by the 

lower court.3

IV. ANALYSIS

[4,5] The Medicaid program provides joint federal and state 

funding of medical care for individuals whose resources are 

insufficient to meet the cost of necessary medical care.4 A 

state is not obligated to participate in the Medicaid program; 

1 Neb. Rev. Stat. § 84-918 (Reissue 2014); J.S. v. Grand Island Public 

Schools, 297 Neb. 347, 899 N.W.2d 893 (2017).

2 J.S., supra note 1.

3 Donna G. v. Nebraska Dept. of Health & Human Servs., 301 Neb. 838, 

920 N.W.2d 668 (2018).

4 In re Estate of Vollmann, 296 Neb. 659, 896 N.W.2d 576 (2017).
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however, once a state has voluntarily elected to participate, 

it must comply with standards and requirements imposed by 

federal statutes and regulations.5 Nebraska elected to participate in the Medicaid program through enactment of the 

Medical Assistance Act,6 and DHHS is responsible for administering Nebraska’s program.7

In order to be eligible for Medicaid, an individual applicant 

must be under a resource limit of $4,000.8 This is determined 

by taking the total equity value of available, nonexcluded 

resources of the client and comparing it to the $4,000 maximum.9

 If the total equity value of available, nonexcluded 

resources exceeds the established maximum, the client is ineligible.10 Available resources include cash or other liquid assets 

or any type of real or personal property or interest in property 

that the client owns and may convert into cash to be used for 

support and maintenance.11

1. Home Exempt

An applicant’s home—defined as any shelter which the 

individual owns and uses as his or her principal place of 

residence—is exempt from being considered as an available 

resource.12 However, if the applicant has moved away from 

the home and does not plan or is unable to return to it, it 

may be considered an available resource.13 Specifically, when 

an applicant moves to a nursing home or to an assisted living facility and it is not possible to determine immediately 

5 Id.

6 See Neb. Rev. Stat. § 68-901 et seq. (Reissue 2018).

7 In re Estate of Vollmann, supra note 4.

8 477 Neb. Admin. Code, ch. 21, § 001.16 (2014).

9 477 Neb. Admin. Code, ch. 21, § 001.01 (2014).

10 Id.

11 477 Neb. Admin. Code, ch. 21, § 001.03 (2014).

12 § 001.15B1 and 477 Neb. Admin. Code, ch. 21, § 001.15B2 (2014).

13 § 001.15B5.
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if the client will be able to return to the property, a maximum of 6 months may be allowed to make that determination.14 After these 6 months, the property may no longer be 

considered the individual’s principal place of residence and 

must be considered an available resource.15 However, the 

applicant is allowed time to liquidate the property before it 

affects eligibility.16

Here, it is uncontested that Winslow has been out of the 

Mankato house since September 2015. While an initial goal 

was for Winslow to return to the Mankato house, she stayed 

at Evangelical and returned to the house only for occasional 

visits. When Winslow submitted her September 2016 Medicaid 

application, she had been at Evangelical beyond the 6-month 

maximum and the Mankato house was no longer her principal place of residence under DHHS regulations.

Winslow claims the requirement that an applicant with 

property no longer considered a principal place of residence 

have time to liquidate the property before it affects eligibility 

means the property retains the home exemption during the liquidation proceedings even if this occurs outside of the 6-month 

period. As such, Winslow argues that attempting to liquidate 

property which was classified as a home allows the applicant 

to be eligible once the Medicaid application is submitted in 

contrast to attempting to liquidate real property other than a 

home where the eligibility period would begin the month after 

an IM-1 form is signed.

This distinction is unsupported by the regulations. The regulations clearly provide that if an applicant has lived in an 

assisted living facility and not on the subject property for a 

period beyond 6 months, the property is no longer considered 

the applicant’s principal place of residence and is no longer a 

14 Id.

15 Id.

16 § 001.15B5 and 477 Neb. Admin. Code, ch. 21, §§ 001.15B5a and 

001.15B7 (2014).
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“home” for eligibility purposes.17 As such, in order to exclude 

this property from the available resources calculation, the property is classified as real property other than a home, for which 

the applicant may sign an IM-1 form utilizing the procedure 

discussed below.18

In consideration of all of the above, the district court did 

not err in determining that the Mankato house was no longer 

Winslow’s home for Medicaid eligibility purposes.

2. Other Real Property Ex

If real property is not considered the applicant’s home 

for eligibility purposes, the applicant may still be prospectively eligible pending the liquidation of the property.19 Under 

§ 001.15B7, entitled “Liquidation of Real Property,” this period 

of exception is described as follows:

When a client has excess resources because of real property, s/he may receive Medicaid pending liquidation of 

the resource, according to the following regulations. . . .

Note: If the client has excess resources because of real 

property other than his or her home during a retroactive 

period, s/he is ineligible for Medicaid. The client may be 

prospectively eligible with excess resources because of 

real property if an [IM-1 form] is signed.

Under § 001.15B8 entitled “Time Limits for Liquidation,” the 

procedure is described as follows:

Real property which the client is making a good faith 

effort to sell must be excluded. First it must be determined if the individual has the legal authority to liquidate 

the property. If not, the client is allowed 60 days to initiate legal action to obtain authority to liquidate. . . .

Once the client has the legal authority to liquidate the 

property, the client’s signature on the [IM-1 form] must 

17 § 001.15B5.

18 §§ 001.15B5, 001.15B5a, and 001.15B7.

19 §§ 001.15B5a and 001.15B7.
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be obtained. The client is allowed six calendar months 

to liquidate the real property. If the client refuses to sign 

the [IM-1 form], s/he is immediately ineligible because 

of excess resources. The six-month period begins with 

the month following the month in which the [IM-1 form] 

is signed.

Once the [IM-1 form] is signed, the six calendar 

months are counted, whether or not the client is receiving assistance.

[6] To summarize these regulations, if an applicant is determined to possess real property that is not subject to the home 

exemption and is considered an available resource, DHHS 

is required to make available an IM-1 form to the applicant 

provided that (1) the applicant has authority to liquidate the 

property and (2) the applicant would be under the available 

resource limit if the property is excluded from consideration.20

Should DHHS determine the applicant does not have authority to liquidate the property, “the client is allowed 60 days to 

initiate legal action to obtain authority to liquidate.”21 Once an 

IM-1 form is signed, the applicant’s 6-month eligibility period 

begins the following month.22

(a) Authority to Liquidate

DHHS determined the Mankato property was an available 

resource and not Winslow’s home for eligibility purposes. 

However, DHHS also determined that Winslow lacked authority to liquidate the property, because it was held by the trust 

rather than under her name. Shurigar-Meyer testified that for 

that reason, DHHS did not provide Winslow the IM-1 form 

until after the Mankato property was transferred from the trust 

to Winslow. Shurigar-Meyer explained that until that transfer 

occurred, there was still “[a] question as to whether or not 

20 §§ 001.15B7 and 001.15B8.

21 § 001.15B8.

22 Id.
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that property was accessible to [Winslow]” because it was 

held by the trust.

[7] Under DHHS regulations, an applicant is not required to 

own the property in the applicant’s own name for that property 

to be considered an available resource. Available resources 

are defined in § 001.03 as “cash or other liquid assets or any 

type of real or personal property or interest in property that 

the client owns and may convert into cash to be used for support and maintenance.” We have previously found that available resources, therefore, can include assets held by trusts if 

a person establishes that trust with his or her assets and the 

individual is able to benefit from the corpus of the trust or the 

income derived therefrom.23

Similarly, the regulations which describe other real property 

eligible for the 6-month liquidation period do not require the 

real property to be listed under the applicant’s own name.24

These regulations require only real property which the applicant has the “legal authority to liquidate” and which is otherwise an available resource.25 Thus, real property held by a 

revocable trust which is determined to be an available resource 

may be eligible for the 6-month exception if the applicant has 

authority to liquidate the property.

DHHS’ contention that it could not determine whether 

Winslow had authority to liquidate the Mankato property until 

it was transferred back to Winslow’s name is contradicted by 

the record. Shurigar-Meyer conceded that DHHS knew about 

the Mankato property and had the trust document prior to 

Winslow’s September 2016 application. The trust identified 

Winslow as the trustmaker and listed Winslow as one of the 

trustees. One of the duties of the trustees was to administer 

23 See, Pohlmann v. Nebraska Dept. of Health & Human Servs., 271 Neb. 

272, 710 N.W.2d 639 (2006); Boruch v. Nebraska Dept. of Health & 

Human Servs., 11 Neb. App. 713, 659 N.W.2d 848 (2003).

24 See §§ 001.15B7 and 001.15B8.

25 § 001.15B8.
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and dispose of the property of the trust for Winslow’s and 

her beneficiaries’ benefit. As such, the trustees were empowered with authority to sell at public or private sale, convey, 

purchase, exchange, lease for any period, mortgage, manage, 

alter, or improve any real property held by the trust. Under the 

trust, Winslow retained the right to take action on behalf of 

the trust without the consent of any other trustee. Specifically, 

the trust provided that Winslow, during her lifetime, has “the 

absolute right, at any time and from time to time, to amend, 

restate, or revoke any term or provision of [the trust] in whole 

or in part” and “the absolute right, at any time and from time 

to time, to add to the trust property and to remove any property” from the trust. It is clear from the plain language of 

the trust that Winslow had the legal authority to liquidate the 

Mankato property through revocation of the trust reverting 

trust property back to her possession, transfer of the property 

to her name, or sale of the property under her authority as 

a trustee.

The record shows DHHS was aware by at least October 6, 

2016, of Winslow’s authority to revoke the trust. The October 

6 email from the DHHS program specialist, which was copied 

onto a DHHS supervisor narrative, detailed DHHS’ understanding that Winslow had the authority to revoke or amend 

the trust. Additionally, in the October 17 verification request, 

DHHS informed Winslow of this finding and stated, “[I]f 

LaVeta is wanting to revoke the entire trust at this time and 

return all assets in the trust to herself she is able to do so.”

DHHS argues that there was confusion on whether the trust 

was revocable or irrevocable and that such a determination 

would have affected whether Winslow had authority to reach 

the trust assets and liquidate the Mankato property. In support 

of this argument, DHHS points to the length of the trust document and a filing by Winslow in March 2017 which alleged the 

“denial for assistance is erroneous” because DHHS “wrongly 

categorized property held in an irrevocable trust as an asset of 

. . . Winslow.”
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However, as noted above, the record shows DHHS determined the trust was revocable as early as October 2016. The 

length of the trust document did not prohibit DHHS from 

reaching this conclusion by that time. The document clearly 

established Winslow had authority as the trustmaker to revoke 

the trust and, as a trustee, to transfer property from the trust 

and sell or dispose of the property of the trust.

In summary, Winslow had authority to liquidate the Mankato 

property under the terms of the trust, DHHS had the trust document which provided such authority prior to September 2016, 

and DHHS acknowledged that it understood Winslow had the 

authority to revoke the trust and potentially become eligible 

by at least October 6. As such, DHHS and the district court 

erred in finding that Winslow lacked authority to liquidate the 

Mankato property while it was held by the trust.

(b) Provision of IM-1 Form

As explained above, if an applicant (1) has authority to liquidate real property other than a home and (2) would be under 

the available resource limit if the property is excluded from 

consideration, DHHS is required to provide an IM-1 form.26

Any period of prospective eligibility begins the month after the 

IM-1 form is provided and signed.27

DHHS provided Winslow the IM-1 form on or after 

December 22, 2016; she signed the form December 30; and she 

was prospectively eligible beginning in January 2017. DHHS 

argued it was not required to provide the IM-1 form prior to 

December 2016 because Winslow lacked the authority to liquidate since the property was held by the trust. As determined, 

this was in error and Winslow had such authority while the 

property was held by the trust. DHHS had the trust document 

and acknowledged Winslow could revoke the trust by, at least, 

October 6.

26 §§ 001.15B7 and 001.15B8.

27 § 001.15B8.
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However, DHHS informed Winslow that no IM-1 form 

would be needed until it was determined that she would be 

under the available resource limit if the property were excluded 

from consideration. As a result, we must consider Winslow’s 

available resources.

(c) Available Resource Limit

Winslow’s asset with the most value was the Mankato 

house, and Shurigar-Meyer testified Winslow would have been 

under the resource limit if the property were not an available 

resource. As a result, once DHHS had sufficient information 

that Winslow’s other available resources were below $4,000, it 

was required to provide Winslow an IM-1 form.

[8] We first note the rule that when challenging the decision 

of an administrative agency, the presumption under Nebraska 

law is that the agency’s decision was correct, with the burden 

of proof upon the party challenging the agency’s actions.28 The 

record on appeal is limited as to when DHHS had information 

concerning the extent of Winslow’s assets. While reference 

was made to various documents DHHS requested and received 

during the application process, the record does not include 

many of those documents or explanations as to what information those documents contained. Specifically, testimony and 

exhibits reference documents received December 22, 23, and 

28, 2016, but these documents are not in our record and are 

not described beyond acknowledgment that DHHS received 

requested verification. It is unclear what relationship this 

documentation had to DHHS’ determination that Winslow 

would be under the resource limit if the Mankato property 

were excluded.

In addition, DHHS’ October 6, 2016, email indicates that 

a current accounting of all assets held by the trust was still 

needed and that an annuity verification signed by the financial 

28 Gridiron Mgmt. Group v. Travelers Indemnity Co., 286 Neb. 901, 839 

N.W.2d 324 (2013).
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institution was required. Further, as late as December 28, 

DHHS was seeking additional information regarding assets 

held in another trust, the “Paul Wilson Trust formerly [the] Earl 

M[.] Winslow Trust.” DHHS was still considering at that time 

what access Winslow had to this trust, if any.

As such, on the record before us, we find that the determination that Winslow would be under the available resource 

limit excluding the Mankato property did not occur prior to 

December 30, 2016.

V. CONCLUSION

The district court correctly determined the Mankato property was not subject to the home exemption for Winslow’s 

September 2016 Medicaid application. However, the court 

erred in determining the Mankato property was not eligible 

for the other real property exception because Winslow lacked 

authority to liquidate while it was held by the trust. Winslow 

had the authority to liquidate under the terms of the trust, and 

such authority was recognized by DHHS in October 2016. 

Nevertheless, on the record before us, Winslow failed to provide sufficient documentation prior to December 30 that she 

was under the available resource limit if she could exclude the 

Mankato property. As such, DHHS was not required to provide Winslow an IM-1 form until December 30. We therefore 

affirm the judgment of the district court.

Affirmed