Winslow v. State ex rel. Peterson , 303 Neb. 24 ( 2019 )


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  • Nebraska Supreme Court Online Library
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    06/28/2019 12:06 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    303 Nebraska R eports
    WINSLOW v. STATE EX REL. PETERSON
    Cite as 
    303 Neb. 24
    LaVeta Winslow,          by and through her designated
    authorized representative The Evangelical Lutheran
    Good Samaritan Society - Superior, appellant, v.
    State of Nebraska ex rel. Douglas Peterson,
    Attorney General, and Department of
    Health and Human Services, appellees.
    ___ 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 com-
    petent 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 appel-
    late 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 medi-
    cal 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 stat-
    utes and regulations.
    6. Medical Assistance: Federal Acts: Real Estate. If a Medicaid appli-
    cant is determined to possess real property that is not subject to the
    home exemption and is considered an available resource, the Nebraska
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    WINSLOW v. STATE EX REL. PETERSON
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    Department of Health and Human Services is required to make avail-
    able 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 per-
    son 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: John
    A. Colborn, Judge. Affirmed.
    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, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    LaVeta Winslow, by and through her designated autho-
    rized 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, improp-
    erly 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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    Nebraska Supreme Court A dvance Sheets
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    WINSLOW v. STATE EX REL. PETERSON
    Cite as 
    303 Neb. 24
    I. BACKGROUND
    Winslow is a current resident of Evangelical, a skilled nurs-
    ing 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 even-
    tual 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 exe-
    cuted 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 con-
    sequences 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 prop-
    erty from my trust.
    Section 12.20 addressed Winslow and Garman’s trustee pow-
    ers 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 pro-
    vided 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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    royalties, annuity, pension, and trust fund income and request-
    ing 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, termina-
    tion or decrease in [Winslow’s] benefits.”
    On October 17, 2016, DHHS mailed Winslow another veri-
    fication request seeking confirmation of “Current Trust, Bonds,
    Certificates of Deposit . . . , IRA, Money Market, Keogh,
    401(K), [and] Mutual Funds.” DHHS also requested a cur-
    rent 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 verifica-
    tions 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 attor-
    ney 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 prop-
    erty 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 count-
    able 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 tes-
    tified 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 vari-
    ous 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, argu-
    ing 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 opin-
    ion, 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 appli-
    cation and the house was owned by the trust and not Winslow
    personally. As such, the house was not exempt from consider-
    ation 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 par-
    ticipate in the Medicaid program through enactment of the
    Medical Assistance Act,6 and DHHS is responsible for admin-
    istering 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 maxi-
    mum.9 If the total equity value of available, nonexcluded
    resources exceeds the established maximum, the client is ineli-
    gible.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 Exemption
    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 liv-
    ing 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 maxi-
    mum of 6 months may be allowed to make that determina-
    tion.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 princi-
    pal 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 liq-
    uidation 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 regu-
    lations 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 prop-
    erty 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 R eal Property Exception
    If real property is not considered the applicant’s home
    for eligibility purposes, the applicant may still be prospec-
    tively 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 prop-
    erty, 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 deter-
    mined if the individual has the legal authority to liquidate
    the property. If not, the client is allowed 60 days to initi-
    ate 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 receiv-
    ing assistance.
    [6] To summarize these regulations, if an applicant is deter-
    mined 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 author-
    ity 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 author-
    ity 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 sup-
    port and maintenance.” We have previously found that avail-
    able 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 appli-
    cant has the “legal authority to liquidate” and which is oth-
    erwise 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 empow-
    ered 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 prop-
    erty” 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’ under-
    standing 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 docu-
    ment 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 deter-
    mined 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 docu-
    ment 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 liq-
    uidate 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 liq-
    uidate 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 informa-
    tion 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 deter-
    mination 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 prop-
    erty 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 pro-
    vide 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 pro-
    vide Winslow an IM-1 form until December 30. We therefore
    affirm the judgment of the district court.
    A ffirmed.