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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Department of Health and Human Services No. 2006-570 APPEAL OF DAVID LOWY (New Hampshire Department of Health and Human Services) Argued: May 9, 2007 Opinion Issued: August 23, 2007 Law Office of Ann N. Butenhof, of Manchester (Ann N. Butenhof and Judith L. Bomster on the brief, and Ms. Butenhof orally), for the petitioner. Kelly A. Ayotte, attorney general (Suzan M. Lehmann, senior assistant attorney general, on the brief and orally), for the respondent. DUGGAN, J. The petitioner, David Lowy, appeals a decision of the Administrative Appeals Unit (AAU) of the New Hampshire Department of Health and Human Services (DHHS) upholding a denial of Medicaid eligibility. The AAU concluded that the petitioner's special needs trust does not qualify for exclusion as a resource from his Medicaid eligibility determination, and, regardless of whether the trust qualifies for exclusion, the petitioner is required to provide information about the trust corpus as part of his initial application. We reverse in part, affirm in part, and remand. The record supports the following. The petitioner is a thirty-six-year-old developmentally disabled man who lived with his parents, John and Margaret Lowy. The Lowys were appointed co-guardians of the petitioner in 1989 (Mrs. Lowy is now deceased).

Although the petitioner had private medical insurance, his parents applied for Medicaid on his behalf in April 2004 so that he would be able to receive medical benefits when they were no longer able to assist with his care. Because the petitioner was employed, the application was processed under the Medicaid for Employed Adults with Disabilities program (MEAD). Participants in the MEAD program are allowed to have incomes up to 450% of the federal poverty guidelines, with wage earners on the upper end of the scale being required to pay a premium. See N.H. Admin. Rules, He-W 641.03 (eff. Feb. 8, 2002; superseded Feb. 24, 2005). Shortly before applying for Medicaid, the petitioner's parents executed the David E. Lowy Irrevocable Trust for the petitioner's benefit, using as principal the petitioner's own savings. It was their express intent to create a special needs trust that conforms with 42 U.S.C.

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New Hampshire Law