Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/21/2019 01:06 AM CDT




                                                         - 24 -
                                  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
                                    - 25 -
            Nebraska Supreme Court A dvance Sheets
                    303 Nebraska R eports
                 WINSLOW v. STATE EX REL. PETERSON
                         Cite as 303 Neb. 24

   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.
                              - 26 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
               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
                              - 27 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
               WINSLOW v. STATE EX REL. PETERSON
                       Cite as 303 Neb. 24

      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,
                             - 28 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
               WINSLOW v. STATE EX REL. PETERSON
                       Cite as 303 Neb. 24

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
                             - 29 -
          Nebraska Supreme Court A dvance Sheets
                  303 Nebraska R eports
              WINSLOW v. STATE EX REL. PETERSON
                      Cite as 303 Neb. 24

“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
                              - 30 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
               WINSLOW v. STATE EX REL. PETERSON
                       Cite as 303 Neb. 24

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
                               - 31 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
               WINSLOW v. STATE EX REL. PETERSON
                       Cite as 303 Neb. 24

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.
                                  - 32 -
             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
                  WINSLOW v. STATE EX REL. PETERSON
                          Cite as 303 Neb. 24

                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).
                                   - 33 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                   WINSLOW v. STATE EX REL. PETERSON
                           Cite as 303 Neb. 24

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.
                                - 34 -
             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
                 WINSLOW v. STATE EX REL. PETERSON
                         Cite as 303 Neb. 24

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).
                                   - 35 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                   WINSLOW v. STATE EX REL. PETERSON
                           Cite as 303 Neb. 24

“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.
                                 - 36 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                  WINSLOW v. STATE EX REL. PETERSON
                          Cite as 303 Neb. 24

      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.
                                  - 37 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                  WINSLOW v. STATE EX REL. PETERSON
                          Cite as 303 Neb. 24

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.
                              - 38 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
               WINSLOW v. STATE EX REL. PETERSON
                       Cite as 303 Neb. 24

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.”
                                 - 39 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                  WINSLOW v. STATE EX REL. PETERSON
                          Cite as 303 Neb. 24

   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.
                                  - 40 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                  WINSLOW v. STATE EX REL. PETERSON
                          Cite as 303 Neb. 24

   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).
                              - 41 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
               WINSLOW v. STATE EX REL. PETERSON
                       Cite as 303 Neb. 24

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.
