423 Mass. 399 | Mass. | 1996
These four cases raise a common issue in the administration of the Medicaid program that has recurred in virtually identical form throughout the United States. In the four cases before us, the Division of Medical Assistance (division) denied the plaintiffs’ eligibility for Medicaid benefits because it deemed that the plaintiffs had available to them sufficient resources of their own. In three of the cases a Superior Court judge affirmed the division’s determinations, and in the fourth a Superior Court judge reported the case to the Appeals Court.
I
A
The Medicaid program was established in 1965 as Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq., to
In response, attorneys and financial advisers hit upon the device of having a person place his or her assets in trust so that those assets would provide for that person’s comfort and well being, maybe even leaving something over to pass on his or her death, while creating eligibility for public assistance. See H.R. Rep. No. 265, 99th Cong., 1st Sess., pt. 1, at 71-72 (1985) (Committee on Energy and Commerce). The theory behind this maneuver was that, because the assets are in trust, they do not count as the grantor’s assets and thus do not raise the grantor above the level of indigency needed to qualify for public assistance.
There was considerable dissatisfaction with the ensuing state of affairs. The bill containing the provisions now before this court was referred in 1985 to the House Committee on Energy and Commerce. In its report recommending passage, the committee wrote:
“The Committee feels compelled to state the obvious. Medicaid is, and always has been, a program to provide*404 basic health coverage to people who do not have sufficient income or resources to provide for themselves. When affluent individuals use Medicaid qualifying trusts and similar ‘techniques’ to qualify for the program, they are diverting scarce Federal and State resources from low-income elderly and disabled individuals, and poor women and children. This is unacceptable to the Committee.”
H.R. Rep. No. 265, 99th Cong., 1st Sess., pt. 1, at 72 (1985).
The provisions, as finally enacted in 1986 and referred to here as the MQT statute, are the same in all relevant respects to those reported by the committee.
“In the case of a medicaid qualifying trust [described in paragraph (2)], the amounts from the trust deemed available to a grantor, for purposes of subsection (a)(17), is the maximum amount of payments that may be permitted under the terms of the trust to be distributed to the grantor, assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the grantor. For purposes of the previous sentence, the term ‘grantor’ means the individual referred to in paragraph (2).”
42 U.S.C. § 1396a(k)(l). Subsection (2) then goes on to define the term “medicaid qualifying trust”:
“(2) For purposes of this subsection, a ‘medicaid qualifying trust’ is a trust, or similar legal device, established (other than by will) by an individual (or an individual’s spouse) under which the individual may be the benefi*405 clary of all or part of the payments from the trust and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.”9
The rest of the House Committee report as well as later items of legislative history provide no further explanation or clarification of the terms in the MQT statute.
In 1993, Congress amended the provision relating to irrevocable MQTs to provide:
“(i) if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the*406 income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual, and payments from that portion of the corpus or income —
“(I) to or from the benefit of the individual, shall be considered income of the individual, and
“(II) for any other purpose, shall be considered a transfer of assets by the individual subject to subsection (c); and
“(ii) any portion of the trust from which, or any income on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust (or, if later, the date on which payment to the individual was foreclosed) to be assets disposed by the individual for purposes of subsection (c), and the value of the trust shall be determined for purposes of such subsection by including the amount of any payments made from such portion of the trust after such date.”
42 U.S.C. § 1396p(d)(3)(B).
This amendment, which, unlike the MQT statute, explicitly applies only to trusts established after the effective date of the statute, see Pub. L. 103-66, § 13611(e)(2)(C), 107 Stat. 627 (1993),
B
The issue posed by these cases is simply stated, although how the authoritative materials resolve that issue has been the subject of much controversy. In each of these cases, the grantor of an irrevocable trust, of which the grantor (or spouse) is a beneficiary and to which the grantor has transferred substantial assets, claims eligibility for Medicaid assistance because the trust, while according the trustee substantial discretion in a number of respects, explicitly seeks to deny the trustee any discretion to make any sums available to the grantor if such availability would render the grantor ineligible for public assistance. Thus, all these trusts seek to limit the trustees’ discretion just insofar as the exercise of that discretion may make the grantor ineligible for public assistance. The grantors and their representatives argue that, since no funds are available by the terms of the trust if such funds would render the beneficiary ineligible for Medicaid under the provisions of the MQT statute and the implementing State regulations, the grantors’ eligibility is assured. The Commonwealth argues that this device has no purpose other than to frustrate the stated purpose of Congress in enacting the MQT statute. Accordingly, from the time of the adoption of the regulations in 1989, it has undertaken to review the Medicaid eligibility of all persons who are beneficiaries of self-settled trusts and has denied eligibility to persons who
II
The plaintiffs argue that the plain words of the statute support their position. They take as their premises that: (1) the MQT statute provides that the amount deemed available to the grantor is limited to “the maximum amount of payments that may be permitted under the terms of the trust to be distributed to the grantor, assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the grantor”
It is the text of the statute itself that leads to the conclusion that the grantors in all of these cases cannot render themselves eligible for Medicaid assistance by these devices. The clause “under the terms of the trust,” on which plaintiffs place such heavy emphasis, nestles between the phrase “the maximum amount of payments that may be permitted” and “to be distributed to the grantor, assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the grantor.” The clause is most naturally read to measure the maximum amount (principal or income) to be deemed available to the grantor, asking what is the greatest amount the trustees in any circumstances have discretion to disburse. The plaintiffs read the clause as not only measuring the maximum amount available to grantors but also as carrying forward to the determination of availability the circumstances in which that amount might be paid. But the clause does not say this, and making it say this is a less natural reading than the alternative. Once we have identified the maximum amount trustees in any circumstances
Out of an abundance of caution we mention another possible complication. The division’s regulation has the following sentence:
“The amount deemed available to the applicant or recipient is the maximum amount of payments that the trustee has discretion to disburse to the applicant or recipient under the terms of the trust for the applicable budget period.”
106 Code Mass. Regs. § 505.160(1). This sentence in the regulation differs from the MQT statute it is intended to implement, in that it adds the phrase “for the applicable budget period.”
Drawing these strands together, we interpret the statute to define what is an MQT. See 42 U.S.C. § 1396a(k)(2). And that is any trust established by a person (or that person’s spouse) under which that person may receive any payments. This general definition is qualified only by the requirement that the trustees must be permitted to exercise some discretion — that is, the conditions for distribution may not be completely fixed for all circumstances. If there is an MQT, then subsection (1) of the MQT statute, with which we have been occupied, tells us how much money is to be deemed to be available. That amount is the greatest amount that the trustees in any set of circumstances might have discretion to pay out to the beneficiary. Thus, if there is a peppercorn of discretion, then whatever is the most the beneficiary might under any state of affairs receive in the full exercise of that discretion is the amount that is counted as available for Medicaid eligibility.
We are confirmed in this reading by something akin to legislative history: a consideration of the source from which the legislative language appears to have been taken. See Comey v. Hill, 387 Mass. 11, 15 (1982), quoting 2A Sands, Sutherland Statutory Construction § 50.03, at 277-278 (4th
“Where the Settlor is a Beneficiary ... (2) Where a person creates for his own benefit a trust for support or a discretionary trust, his transferee or creditors can reach the maximum amount which the trustee under the terms of the trust could pay to him or apply for his benefit.”
The plaintiffs suggest that this provision was a likely model for the Congressional enactment, and a comparison of the purpose and the language of the provision confirms their suggestion. Section 156 of the Restatement deals with a device, like the MQT, concocted for the purpose of having your cake and eating it too: the self-settled, spendthrift trust. Under such a trust, a grantor puts his assets in a trust of which he is the beneficiary, giving his trustee discretion to pay out monies to gratify his needs but limiting that discretion so that the trustee may not pay the grantor’s debts. Thus, the grantor hopes to put the trust assets beyond the reach of his or her creditors. Like the MQT statute, § 156 defeats this unappetizing maneuver by providing that, even if those assets are sought to be shielded by the discretion of a trustee, or if the trust simply declares assets unavailable to creditors, the full amount of the monies that the trustee could in his or her discretion “under the terms of the trust” pay to the grantor, is the amount available to the grantor and thus to his or her creditors. Not only the courts of this State, but those of many other jurisdictions have long followed this Restatement principle. See Ware v. Gulda, 331 Mass. 68, 70 (1954); Merchants Nat’l Bank v. Morrissey, 329 Mass. 601, 605 (1953). See also Scott, Trusts § 156 n.l (3d ed. 1967 & Supp. 1985) (compiling cases).
Ill
We now proceed to apply these generalities to the specific cases before us.
1. Cohen. In June, 1983, the plaintiff established the Mary Ann Cohen Trust. She was the grantor and the sole lifetime beneficiary of the irrevocable trust. The trust provides that:
“The Trustees may, from time to time and at any time, distribute to or expend for the benefit of the beneficiary, so much of the principal and current or accumulated net income as the Trustees may in their sole discretion, determine. . . . The Trustees, however, shall have no authority whatsoever to make any payments to or for the benefit of any Beneficiary hereunder when the making of such payments shall result in the Beneficiary losing her eligibility for any public assistance or entitlement program of any kind whatever. It is the specific intent of the Grantor hereof that this Trust be used to supplement all such public assistance or entitlement programs and not defeat or destroy their availability to any beneficiary hereunder.”
On October 27, 1993, Cohen was admitted to a nursing
This is the pure case of a trust with no other purpose than to defeat Medicaid ineligibility standards. The trustee has complete discretion to pay income, accumulated income, and principal to the settling beneficiary, save only that the trustee has no discretion to make any payments that may result in loss of public assistance. Since there is “under the terms of the trust” the discretion to pay to the beneficiary the full amount in the trust, then that is the amount deemed available to the beneficiary for the purpose of determining Medicaid eligibility. The judgment of the Superior Court is affirmed.
2. Comins. On January 1, 1985, Sydney Comins established the Syly Realty Trust. The only asset in this trust was the Comins’s home valued in 1993 at $323,000. On August 14, 1990, Lilyan Comins established the 1990 Lilyan and Sydney A. Comins Irrevocable Trust (Comins Trust). She named herself and Sydney as the primary beneficiaries. On September 8, 1990, Sydney transferred the property in the Syly Trust into the Comins Trust.
With respect to the income, the Comins trust provides that the beneficiaries are entitled to the full income of the Comins Trust so long as they are not institutionalized. If one beneficiary is institutionalized, the trustee is instructed to pay over all income to the noninstitutionalized beneficiary to the extent it is requested by that beneficiary, or so much, if more, as is necessary and appropriate to provide him or her with those health, medical, social, and personal benefits and services which are not otherwise available. The trustee can then pay the remainder, if any, to the institutionalized beneficiary as it is necessary and appropriate to provide for his or her health, medical, social, and personal benefits and services not otherwise available from other sources. If both beneficiaries are institutionalized, the trustee is permitted only to:
“apply for the benefit of each of the primary beneficiaries only so much of the net income as is necessary and appropriate to provide each with those health, medical, social, and personal benefits and services, and only those*417 benefits and services which are not otherwise available to each primary Beneficiary from other sources as or when needed for his or her welfare.”
With respect to the principal, the third article of the Comins Trust instrument provides that:
“(c) Principal with respect to Donor. Until the later to occur of (1) the passage of thirty months from the date of the establishment of this trust and (2) the date upon which either beneficiary is first institutionalized, and also thereafter during any periods of time during which the first beneficiary to be institutionalized is not then institutionalized, the Trustee shall apply on behalf of such first beneficiary so much of the principal of the Trust as is necessary and appropriate to provide him/ her with those benefits and services, and only those benefits and services, which are not otherwise available to him/her from other sources as or when needed for his/her welfare.
“(d) Withdrawal of Principal. The Trustee shall also pay over or apply for the benefit of each primary Beneficiary an amount of principal as either primary Beneficiary shall direct in writing, not exceeding the lesser of $5,000 or 5% of the principal . . . provided, however, that the Trustee shall make no distributions of principal under this paragraph to a primaiy Beneficiary during or with respect to any time during which such primary beneficiary is institutionalized . . . .”
Both Sydney and Lilyan Comins were admitted to a nursing home and applied for Medicaid on July 15, 1993. The division denied their applications on August 11, 1993, reasoning that the trust was designed to shield the trust assets from being counted for Medicaid eligibility purposes. The division denied their appeal on October 18, 1993. The Superior Court affirmed the division’s denial. Lilyan died on November 26, 1993.
In this case, Lilyan created the trust for her and her husband’s benefit, thus meeting one of the alternative conditions of § 1396a(k)(2) for an MQT depending on whose ap
With respect to the principal, an analogous conclusion obtains. Paragraph (c) grants the trustee discretion to pay any amount of principal “as is necessary and appropriate . . . for his/her welfare.” This discretion is limited, not in amount but by circumstances: the trustee has discretion until the later of two specified events occurs and “also thereafter during any periods of time during which the first beneficiary to be institutionalized is not then institutionalized.” This provision allows for the care of the beneficiary during the thirty-month ineligibility period that another section of this statute imposes in order to preclude transfers in contemplation of institutionalization. See 42 U.S.C. § 1396p(c)(l); 106 Code Mass. Regs. § 505.125, now codified at 130 Code Mass. Regs. § 505.125 (1995). But as we look to the trustee’s discretion only to measure the amount available, we do not consider the circumstances in which trust assets are payable to a beneficiary but rather determine the amount of assets deemed available by disregarding any limitations on trustee discretion. We conclude here too that the full amount of principal must be deemed available to the Cominses. Therefore, the decision of the Superior Court judge is affirmed.
We pause to note that this case illustrates the good sense of the statute, as we read it. It is true that a trust might be written to deprive the trustee of any discretion (for instance allowing the payment only of income) and that such a limitation would be respected. But the grantor of a trust has a
3. Walker. On March 24, 1990, Walker created “The Clark Family Trust,” an irrevocable trust of which her daughter is the trustee. Walker is the lifetime beneficiary of the trust and her three children are remainderpersons. The trust’s principal is over $100,000.
Article two, paragraph A of the trust provides that the trustee “shall expend as much of the income and principal of the trust property as she in her sole discretion deems necessary for the comfortable maintenance of [Walker] subject to the restrictions contained in paragraph B of this Article.” Paragraph B states:
“The Trustee is prohibited from spending sums of interest or principal to [Walker] for her benefit for services which are otherwise available under any public entitlement program of the United States of America, the Commonwealth of Massachusetts, or any political subdivision thereof. The exercise of a discretionary power to make a distribution for [Walker’s] health care, which would result in trust assets being used in substitution of public entitlement benefits is a breach of the fiduciary duties imposed on the Trustees [sic] under this indenture.”
In July, 1991, Walker entered a nursing home. She applied for Medicaid benefits on February 26, 1993, and the division denied Walker’s application. On April 20, 1993, the division denied her appeal. On January 27, 1994, a Probate and Family Court judge pursuant to a petition for instructions issued a judgment declaring that the trust limits the trustee’s discretion to distribute monies from the trust if doing so would cause Walker to become ineligible for Medicaid. Nevertheless, a Superior Court judge affirmed the division’s decision.
Since the measure of the monies deemed available to the beneficiary under the terms of the trust is the amount the trustee under any circumstances has discretion to disburse, and since that discretion reaches the full amount of the principal and income, the division correctly ignored the
4. Kokoska. Kokoska is a severely disabled, middle aged woman. Kokoska’s disabilities are a result of brain damage sustained during surgely in 1965. She received a substantial amount of money in 1968 as a result of the settlement of an ensuing malpractice action. In 1983, her conservator arranged to have the remaining proceeds placed in a trust,
“ARTICLE ONE PURPOSE OF THE TRUST
“The purpose of this Trust is to provide for the supplemental care, comfort, health, maintenance, support, education, habilitation and welfare of the Primary Beneficiary . . . taking into account the benefits of . . . assistance the Primary beneficiary otherwise receives as a result, of his or her disability . . . from any state or federal government or governmental agency . . . (hereinafter ‘the Benefits’). . . . [T]he trust estate shall be used to the maximum extent possible to supplement such Benefits as are received by the Primary Beneficiary ....
“ARTICLE TWO DISPOSITION OF INCOME
“[T]he trustee shall pay to or for the benefit of the Primary Beneficiary such portion of the net income of the Trust as in the Trustee’s discretion is advisable for the Primary Beneficiary’s care, comfort, health, maintenance, support, education, habilitation, and welfare. The Trustee may make payments of income on account of the Primary Beneficiary for the purchase of such property, goods, or services as from time to time are excluded from the Primary Beneficiary’s eligibility for or receipt of Benefits. Without intending to be an exclusive or controlling list, such property, goods, and services may*421 include those specified by federal and state Medicaid eligibility guidelines. . . .
“ARTICLE THREE DISPOSITION OF PRINCIPAL
“The Trustee . . . may make payment from time to time of so much of the principal of the Trust as is advisable in the discretion of the Trustee to meet the needs of the Primary Beneficiary as set forth in article two.”
In June, 1991, after the adoption of the MQT statute, the division came across Kokoska’s trust and determined that it was an MQT and that the assets were available to her for purposes of the statute. Therefore, the division denied Kokoska Medicaid assistance. Kokoska appealed. In the meantime, the trustee sought instructions from the Probate Court. A Probate Court judge held that,
“by the terms of the trust, the trustee’s discretion is limited to making distributions which are supplemental to benefits, including Medicaid benefits, to which Kokoska is entitled . . . ; that the trustee is not permitted to exercise any discretion if that exercise of discretion would render Kokoska ineligible to receive such benefits; and that, if Kokoska is ineligible to receive benefits for reasons other than the exercise of the trustee’s discretion to make payments, then the trustee may make such payments for Kokoska’s supplemental care and welfare.”
Young v. Department of Pub. Welfare, 416 Mass. 629, 632 (1993). This court upheld the Probate Court judge’s declaratory judgment but noted that the judge did not redetermine Kokoska’s eligibility and that the division is not bound by the Probate Court’s judgment. See id. at 634. Subsequently, the division denied Kokoska’s appeal, and Kokoska appealed to the Superior Court. A Superior Court judge reported this case to the Appeals Court, and we granted the plaintiff’s request for direct appellate review.
The terms of the trust give the trustee discretion to pay
This case presents a difficulty not present in the other cases. Section 1396a(k)(2) of the MQT statute defines an MQT as a trust established by an individual or a spouse under which the individual may be the beneficiary of all or part of the payments from the trust. Kokoska argues that therefore, by its terms, the MQT statute is not applicable to her trust, since it was not Kokoska but her conservator who established the trust and did so by a decree of the Probate Court. Decisions in other States addressing this issue favor the division’s position of treating this as an MQT. See Romo v. Kirschner, 181 Ariz. 239 (Ct. App. 1995) (trust established by conservator and approved by court using proceeds from personal injury action); Thomas v. Arkansas Dep’t of Human Servs., 319 Ark. 782, 784 (1995) (trust established by guardian using settlement proceeds from workers’ compensation claim); Forsyth v. Rowe, 226 Conn. 818 (1993) (individual acting through conservator); Barham v. Rubin, 72 Haw. 308 (1991) (trust established by Colorado Probate Court using settlement proceeds from personal injury action); Williams v. Kansas Dep’t of Social & Rehabilitation Servs., 258 Kan. 161, 166 (1995) (trust established by guardian using settlement proceeds from personal injury action); Matter of Kindt, 542 N.W.2d 391, 396-399 (Minn. Ct. App. 1996) (incompetent individual grantor of injury settlement trust fund). But cf. Trust Co. v. State ex rel. Dep’t of Human Servs., 825 P.2d 1295, 1302-1303 & n.31 (Okla. 1991), cert, denied, 506 U.S. 906 (1992) (considering MQT statute in footnote; court found dis-positive that intent of trust to supplement government benefits); Miller v. Ibarra, 746 F. Supp. 19, 33-34 (D. Colo. 1990) (court’s holding premised on unfairness of Colorado’s
Looking past the form, although Kokoska’s situation is in some ways different from and more sympathetic than that of the other plaintiffs, in respect to the statute and its policy, her situation is the same. The MQT statute allowed for States “to waive the application of [the MQT statute] with respect to an individual where the State determines that such application would work an undue hardship,” see 42 U.S.C. § 1396a(k)(4), and the 1993 amendments make special provision for certain classes of severely disabled persons, see 42 U.S.C.
Nor is our own prior decision in Young, supra, any impediment to such a disposition of the case. As we said, the Probate Court judge correctly interpreted the terms of the trust to limit the trustee’s discretion to making only payments supplementary to public assistance. But we also said that our decision does not determine Kokoska’s Medicaid eligibility, which the division must determine according to the laws and regulation governing that program. See id. at 634. Thus, although the Kokoska trust limits the trustee’s discretion, the MQT statute as we interpret it requires that the division disregard such a limitation when assessing availability. The statute asks only what the maximum amount of funds available to the beneficiary are in any circumstances pursuant to the exercise of the trustee’s discretion. That amount, as we have seen, is the full amount of the interest and principal of the trust. The determination of the division is affirmed.
We note that while Kokoska and the other plaintiffs in these cases were ineligible for Medicaid, the trustees were in compliance with their several trusts in applying such principal and interest as the trusts make available to the support of their several beneficiaries. The modified determination of the Probate Court judge allowing the trustee to make payments for Kokoska’s support was correct, and the condition that the Probate Court judge imposed requiring that the trustee seek reimbursement was prudent. By our decision today, no such reimbursement is in order. The judgments of the Superior Court are affirmed.
So ordered.
This court granted the Cohen’s and the Cominses’ applications for direct appellate review. This court transferred the Walker appeal here on its own motion. A Superior Court judge reported the Kokoska case to the Appeals Court; we then granted the plaintiffs application for direct appellate review.
A fifth case, Canter v. Commissioner of Pub. Welfare, post 425 (1996), raises a distinct issue about the use of a different kind of trust in the context of Medicaid eligibility, and is decided separately.
The regulations implementing the Commonwealth’s codification of the Medicaid program, G. L. c. 118E (1994 ed.), establish a modest ceiling of resources said to be “available” to an applicant above which the individual is determined not to be sufficiently needy to qualify for public assistance from the program. See 106 Code Mass. Regs. § 505.110 (1991), now codified at 130 Code Mass. Regs. § 505.110 (1995) (“total value of countable assets owned by or available to persons . . . may not exceed”: for one person, $2,000; for two persons, $3,000, as of July, 1995).
Prior to 1986, only such assets as were actually available to a beneficiary were counted toward Medicaid eligibility. 42 U.S.C. § 1396a(a)(17)(B) (1982). The statute did not contain a separate provision concerning what is now referred to as Medicaid qualifying trusts.
The Committee on Energy and Commerce indicated in its report that the MQT statute applies retroactively. See H.R. Rep. No. 265, 99th Cong., 1st Sess., pt. 1, at 73 (1985) (“Medicaid qualifying trusts that have already been established, as well as those that may be created in the future, would be subject to the [MQT statute]”). The plaintiffs do not question that such an application is appropriate.
Subsection (3) provides that “[t]his subsection shall apply without regard to - (A) whether or not the medicaid qualifying trust is irrevocable or is established for purposes other than to enable a grantor to qualify for medical assistance under this title; or (B) whether or not the discretion described in paragraph (2) is actually exercised.” 42 U.S.C. § 1396a(k)(3).
The State Medicaid Manual, the Federal manual that provides interpretive guidance to the States, and the Massachusetts Medical Assistance Procedures Handbook, distributed to those who determine Medicaid eligibility for the division, do not provide any further illumination on this issue.
The MQT regulations now appear at 130 Code Mass. Regs. § 505.160 (J) and are, for all relevant purposes here, the same as the regulations codified at 106 Code Mass. Regs. § 505.160 (J).
“(J) Medicaid Qualifying Trusts “(1) Requirements. A Medicaid qualifying trust is a trust or similar legal device established other than by will by the applicant for or recipient of Medical Assistance or his or her spouse under which:
“(a) The applicant or recipient is a beneficiary of all or part of the payments from the trust; and
“(b) The distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the amount to be distributed to the applicant or recipient. The amount deemed available to the applicant or recipient is the maximum amount of payments that the trustee has discretion to disburse to the applicant or recipient under the terms of the trust for the applicable budget period.”
The amendment provides that subsection (d) “shall apply without regard to — (i) the purposes for which a trust is established, (ii) whether the trustees have or exercise any discretion under the trust, (iii) any restrictions on when or whether distributions may be made from the trust, or (iv) any restrictions on the use of distributions from the trust.” 42 U.S.C. § 1396p(d)(2)(C).
The 1993 amendment also repealed the 1986 MQT statute. Pub. L. 103-66, § 13611 (d)(1)(C), 107 Stat. 627 (1993). The plaintiffs do not argue that since the 1993 amendment is prospective only and that the 1986 MQT statute is now repealed, the law in respect to pre-August 1993 trusts is as it was before the enactment of the 1986 MQT statute. The claimants are right not to make this argument, as the evident intention of Congress in 1993 was to supersede the 1986 MQT statute for trusts created after August 10, 1993, by a more stringent provision, not to loosen eligibility requirements for previous trusts.
Although all of these trusts were established prior to 1991 and some prior to 1986, the Commonwealth has not sought reimbursement in this action for Medicaid assistance afforded prior to the determination of ineligibility.
The division worded its regulation in a slightly different manner. See note 12, supra. No party to this litigation argues that the Commonwealth’s regulation is intended to do more or less than the MQT statute.
The health care financing administration (HCFA) is charged with the administration of the Medicaid program and its interpretive guidelines appear in the State Medicaid Manual. See Massachusetts Hosp. Ass’n v. Department of Pub. Welfare, 419 Mass. 644, 646 (1995). See also 42 U.S.C. § 1396a(a)(17)(B) (States must make determinations of availability in accordance with standards prescribed by the Department of Health and Human Services). In response to an inquiry by the division, on July 11, 1991, HCFA sent a letter to the division explaining that “exculpatory clauses,” clauses of MQTs that limit “the authority of a trustee to distribute funds from a trust if such distribution would jeopardize eligibility for government programs, including Medicaid,” should be disregarded.
The Commonwealth urges us to give deference to the division’s administrative interpretation of the statute. Although there is some merit to the argument, it is not served up in its most appetizing form in this case. First, there are no Federal or State regulations to which we may defer. The State regulations recast the words of the statute but do not address the difficulty we face here any more directly than does the statute itself. See 106 Code Mass. Regs. § 505.160(1) (1991). Likewise, the State Medicaid Manual does not expand on the words of the statute. See State Medicaid Manual, HCFA Pub. 45-3 at § 3215.3 (May, 1989). Second, the administrative interpretation which resulted in the denials of eligibility in this case dates only from 1991, before which time beneficiaries of trusts such as these were treated as eligible. It is usually the initial not the changed interpretation of a statute that earns the kind of deference the Commonwealth would need here. See Barnett v. Weinberger, 818 F.2d 953, 960-961 n.74 (D.C. Cir. 1987), and cases cited (deference depends on consistency of interpretation). Third, the Commonwealth’s interpretation is based on an interpretation announced in a letter from a regional administrator of HCFA. This Federal interpretation, if that is what it is, was never embodied in regulations which had been the subject of notice, comment, and due promulgation.
The regulations define “budget period” as “a six-month prospective period which starts on the first day of the month of application on which the applicant would have been eligible, dr on the date of service of the first bill which the recipient wishes to have covered by Medical Assistance.” 106 Code Mass. Regs. § 505.300.
The State Medicaid Manual, supra, also refers to “budget period” in this context.
It is the requirement of that peppercorn of discretion that the 1993 amendment removes, providing that eligibility is to be measured by the maximum amount available under the trust under any circumstances, whether or not the trustee enjoys any discretion. .
Section (2) of the MQT statute also requires some trustee discretion for a trust to count as an MQT at all. This condition is also absent from the 1993 amendment. See Matter of Kindt, 542 N.W.2d 391, 396 n.2 (Minn. Ct. App. 1996) (listing differences between MQT statute and 1993 amendment).
The plaintiffs argue that trust law supports their position and cite Randolph v. Roberts, 346 Mass. 578 (1964), and Pemberton v. Pemberton, 9 Mass. App. Ct. 9 (1980). But these cases concerned trusts established by individuals for the benefit of another. When the trust is not a self-settled trust, the language of the trust, even to the extent of a spendthrift clause, is
The Restatement provides further analogies to the reading of the MQT statute we adopt here. Restatement (Second) of Trusts § 157 (b) (1959) provides that in the case of a spendthrift trust or a trust for support — a genus of which the trusts in question here are a species — the beneficiary’s interest is available to those who render necessary services or furnish necessary supplies to the beneficiary. Of course that is just what Medicaid does for the grantors in these cases. Indeed, § 339 of the Restatement provides roundly that “[i]f the settlor is the sole beneficiary of a trust ... he can compel the termination of the trust, although the purposes of the trust have not been accomplished.” Thus, trust attorneys are likely to be familiar with the notion that the law is anything but hospitable to arrangements such as an MQT that is designed to allow a beneficiary to have his cake and eat it too.
As to the principal, this might be a case in which the reading of the division’s regulation we reject might make a difference in favor of the beneficiary. As we point out, however, the correct reading of the statute and regulations asks not what discretion the trustee has during the applicable budgetary period but only whether the amounts available, assuming the full exercise of discretion wherever and whenever it is granted, would yield an amount that would make the beneficiary ineligible during that period.
On September 28, 1983, a Probate Court judge authorized Kokoska’s conservator to transfer all of Kokoska’s property into an irrevocable trust.
On April 14, 1992, a Probate Court judge modified the judgment to permit the trustee to make payments from the trust for Kokoska’s support on the condition that the trustee seek reimbursement. Presently, the assets have been exhausted, and Kokoska is again receiving Medicaid assistance.
Massachusetts participates in a Federal program that provides funds to bridge the “Utah Gap,” under which the medically needy are not totally disqualified from Medicaid benefits if their income and assets exceed their eligibility limit. See 130 Code Mass. Regs. §§ 506.600-506.620 (1994).
See Pub. L. 99-509, 99th Cong., 2d Sess., reprinted in 1986 U.S. Code Cong. & Admin. News 3714 (legislative history indicating that purpose for enacting Pub. L. 99-509, § 9435, 100 Stat. 2070, was to respond to the possibility of the loss of Medicaid eligibility for about 1,200 mentally retarded individuals residing in Massachusetts).