SUSAN E. COX and EDWARD A. COX, Appellants, vs. IOWA DEPARTMENT OF HUMAN SERVICES, Appellee.
No. 18-0026
IN THE SUPREME COURT OF IOWA
Filed November 30, 2018
WATERMAN, Justice.
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.
Petitioners appeal district court judgment affirming agency ruling imposing Medicaid long-term care eligibility penalties based on their transfer of assets to a pooled special needs trust. AFFIRMED.
Rebecca A. Brommel of Brown, Winick, Graves, Gross, Baskerville, and Schoenebaum, P.L.C., Des Moines, for appellants.
Thomas J. Miller, Attorney General, and Matthew K. Gillespie, Assistant Attorney General, for appellee.
Matthew Bollman of Pearson Bollman Law, West Des Moines, and Ron M. Landsman, Rockville, Maryland, for amici curiae National Academy of Elder Law Attorneys, Inc. and Special Needs Alliance, Inc.
In this appeal, we must determine whether the district court correctly interpreted the Federal Medicaid Act concerning eligibility for benefits for long-term institutional care. States must adhere to federal eligibility requirements to ensure that benefits are reserved for persons who lack financial means and who have not transferred personal assets that could pay for their care. The petitioners, husband and wife, are disabled and reside in a nursing home. At age sixty-five, they transferred over one-half million dollars to a pooled special needs trust. The Iowa Department of Human Services (DHS) determined the transfers were for less than fair market value and required a delay in their eligibility for Medicaid benefits. An administrative law judge (ALJ) affirmed the determination but required recalculation of the wife‘s penalty delay. After exhausting intra-agency appeals, the petitioners sought judicial review. The district court affirmed the DHS position, and we retained the petitioners’ appeal.
On our review, we conclude the district court and DHS correctly construed and applied federal law requiring the delay in Medicaid benefits for long-term institutional care, effectively requiring the petitioners to tap their pooled trust assets first to pay for their nursing home care. Our determination is based on the plain meaning of the statutory text. Other appellate courts and the federal and Iowa agencies administering Medicaid have reached the same conclusion that Congress chose to treat transfers into pooled special needs trusts by such recipients under age sixty-five differently than transfers by those age sixty-five or older. Substantial evidence supports the DHS finding that the transfers were for less than fair market value. Accordingly, we affirm the district court judgment.
I. Background Facts and Proceedings.
Edward and Susan Cox, both born in 1950, are a married couple currently living at Westview Care Center in Indianola, Iowa. Both Edward and Susan are disabled and are unable to live on their own. Edward has lymphedema, which causes swelling and makes his left arm unusable. He has had two kidney transplants and takes a number of medications daily. Susan had a stroke, which has induced left-side neglect.
In 2015, Susan received a settlement from a medical malpractice lawsuit relating to her stroke. Edward also received a settlement from the lawsuit for loss of consortium. They decided to transfer most
In 2016, around the time the couple moved to the Westview Care Center, Edward and Susan applied for Medicaid long-term care benefits. The couple provided the pooled trust documents to the DHS for review. On June 14, the DHS issued Disposal of Assets Penalty Notices of Decision to Edward and Susan, denying their applications for long-term care benefits on the basis that they “transferred assets for less than fair market value.” Edward‘s notice of decision imposed an eighteen-month and twenty-five-day penalty, making him ineligible for Medicaid long-term care benefits through July 25, 2017. Susan received a penalty of eighty-seven months and twenty-two days, making her ineligible for Medicaid long-term care benefits through July 22, 2023.
Edward and Susan appealed their notices of decision and requested a hearing. The DHS consolidated the appeals. After the hearing, an ALJ issued a proposed decision finding that because Edward and Susan had made the transfers to the pooled trusts when they were sixty-five and had transferred assets for less than fair market value, they were subject to a penalty period. The ALJ found
[t]he Department determined the accounts constituted legitimate pooled trusts under
42 U.S.C. § 1396p(d)(4)(c) and, as such, the trusts were generally exempt from Medicaid eligibility rules. However, the Department further determined that the deposits into those subaccounts on February 8, 2016, after Edward and Susan had each turned 65 years old, constituted transfers of assets for less than fair market value requiring the imposition of penalty periods within which neither Mr. nor Mrs. Cox would be eligible for long term care assistance.
The ALJ affirmed the DHS‘s decision as to Edward. With regard to Susan, the ALJ affirmed the decision that the transfer made her ineligible for Medicaid long-term care benefits, but remanded the matter to the DHS for a recalculation of the penalty period because it improperly included amounts paid for her care prior to the beginning of the penalty period. Under the revised calculation, Susan is ineligible for Medicaid long-term care benefits through April 28, 2023.
Edward and Susan appealed the proposed decision. Charles Palmer, then the director of the DHS, issued a final decision adopting the ALJ‘s proposed decision in its entirety.
Edward and Susan filed a petition for judicial review challenging the DHS‘s decision. The district court affirmed the final decision, concluding that the DHS had correctly interpreted the relevant statutory provisions relating to pooled special needs trusts and found that the transfer of assets after Edward and Susan had turned sixty-five subjected them to penalty periods. The district court also concluded that the DHS interpretation of the relevant statutory provisions did not constitute a per se approach to determining the Coxes’ penalties
Edward and Susan appealed the district court decision, and we retained their appeal.
II. Scope of Review.
By contrast, we apply federal law on judicial deference to the federal statutory interpretation of the Centers for Medicare and Medicaid Services (CMS), the federal agency administering Medicaid. The CMS interpretation is set forth in its “State Medicaid Manual” and by opinion letter. The CMS interpretation was not the product of “a formal adjudication or notice-and-comment rulemaking.” See Christensen v. Harris County, 529 U.S. 576, 587, 120 S. Ct. 1655, 1662 (2000). The Supreme Court has determined that “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.” Id.1 “In Chevron, we held that a court must give effect to an agency‘s regulation containing a reasonable interpretation of an ambiguous statute.” Id. at 587-88, 120 S. Ct. at 1662. “Instead, interpretations contained in formats such as opinion letters are ‘entitled to respect’ under our decision in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 164, 89 L. Ed. 124 (1944), but only to the extent that those interpretations have the ‘power to persuade.‘” Christensen, 529 U.S. at 587, 120 S. Ct. at 1663. In Skidmore, the United States Supreme Court clarified the level of deference to give to agency opinion letters.
We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.
323 U.S. at 140, 65 S. Ct. at 164.
Accordingly, we will give Skidmore deference to the CMS statutory interpretation
rulings on statutory interpretation by the DHS and district court for correction of errors at law. Iowa Dental Ass‘n, 831 N.W.2d at 142-43.
We will apply substantial evidence review to the factual findings of the DHS, which has the authority to determine whether an individual is eligible for Medicaid. See generally
If an agency has been clearly vested with the authority to make factual findings on a particular issue, then a reviewing court can only disturb those factual findings if they are “not supported by substantial evidence in the record before the court when that record is reviewed as a whole.”
Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 256 (Iowa 2012) (quoting
On the other hand, the application of the law to the facts . . . takes a different approach and can be affected by other grounds of error such as erroneous interpretation of law; irrational reasoning; failure to consider relevant facts; or irrational, illogical, or wholly unjustifiable application of law to the facts.
III. Analysis.
We must decide whether the DHS correctly imposed Medicaid eligibility penalties for long-term institutional care after the petitioners, at age sixty-five, transferred assets to a pooled special needs trust. This is a question of federal statutory law. We are not writing on a blank slate—the same legal issue has been adjudicated by the United States Court of Appeals for the Eighth Circuit, the South Dakota Supreme Court, and other courts. We join those courts in holding that the plain meaning of the controlling statutory provision mandates the delay in eligibility.
We begin our analysis with an overview of Medicaid. We then focus on the text of the dispositive statutory provision and the caselaw applying that provision. Finally, we address the remaining arguments for reversal by the counsel for Mr. and Mrs. Cox and amici curiae National Academy of Elder Law Attorneys, Inc. and Special Needs Alliance, Inc.
A. Overview of Medicaid. The Medicaid program, established in 1965 and codified at
The Secretary of Health and Human Services administers the Medicaid program and “exercises his authority through the Centers for Medicare and Medicaid Services (CMS).” Ahlborn, 547 U.S. at 275, 126 S. Ct. at 1758. State participation in the Medicaid program is voluntary, but states choosing to participate “must comply with all federal statutory and regulatory requirements.” Lankford v. Sherman, 451 F.3d 496, 504 (8th Cir. 2006). “Among these requirements, states must ‘comply with the provisions of section 1396p . . . with respect to . . . treatment of certain trusts.‘” Olson, 676 F.3d at 694-95 (quoting
B. Pooled Special Needs Trust Provisions. This case requires us to interpret provisions relating to pooled special needs trusts. Eligibility determinations for Medicaid benefits are complex, with certain requirements for eligibility for general benefits such as medical treatment and additional limitations on eligibility for long-term care in nursing homes. A two-tiered analysis is required. We begin with the general provisions and then address the controlling long-term care provisions.
1. General Medicaid eligibility determinations. Medicaid administrators will consider assets held in most types of trusts as available resources for Medicaid general eligibility determinations.
“[A] pooled special-needs trust . . . pays for a disabled person‘s Medicaid-ineligible expenses, such as clothing, phone service, vehicle maintenance, and taxes.” Olson, 676 F.3d at 695. Pooled special needs trusts are “special arrangement[s] with a non-profit organization that serves as trustee to manage assets belonging to many disabled individuals, with investments being pooled, but with separate trust ‘accounts’ being maintained for each disabled individual.” Lewis v. Alexander, 685 F.3d 325, 333 (3d Cir. 2012) (quoting Jan P. Myskowski, Special Needs Trusts in the Era of the Uniform Trust Code, 46 N.H. Bar J., Spring 2005, at 16, 16). These trusts are “intended for individuals with a relatively small amount of money. By pooling these small accounts for investment and management purposes, overhead and expenses are reduced and more money is available to the beneficiary.” Id.
Because pooled special needs trusts are not countable as assets for general Medicaid benefit eligibility purposes, an individual of any age may place his or her assets into a pooled special needs trust without incurring penalties delaying his or her eligibility for general Medicaid benefits. The statute provides,
(d) Treatment of trust amounts
. . . .
(4) This subsection shall not apply to any of the following trusts:
. . . .
(C) A trust containing the assets of an individual who is disabled (as defined in section 1382c(a)(3) of this title) that meets the following conditions:
- (i) The trust is established and managed by a nonprofit association.
(ii) A separate account is maintained for each beneficiary of the trust, but, for purposes of investment and management of funds, the trust pools these accounts. - (iii) Accounts in the trust are established solely for the benefit of individuals who are disabled (as defined in section 1382c(a)(3) of this title) by the
- parent, grandparent, or legal guardian of such individuals, by such individuals, or by a court.
- (iv) To the extent that amounts remaining in the beneficiary‘s account upon the death of the beneficiary are not retained by the trust, the trust pays to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under the State plan under this subchapter.
2. Medicaid long-term care benefit eligibility. “Long-term care assistance is an optional category of Medicaid coverage.” In re Pooled Advocate Trust, 813 N.W.2d 130, 141 (S.D. 2012). Long-term care benefits include nursing facility services.
When an individual applies for long-term care benefits, the state must conduct additional analysis regarding the individual‘s transfers of assets.
the relevant look-back period.
There are certain transfers of assets, set out in
(c) Taking into account certain transfers of assets
. . . .
(2) An individual shall not be ineligible for medical assistance by reason of paragraph (1) to the extent that—
. . . .
(B) the assets—
. . . . (iv) were transferred to a trust (including a trust described in subsection (d)(4) of this section) established solely for the benefit of an individual under 65 years of age who is disabled (as defined in section 1382c(a)(3) of this title)[.]
When interpreting a statute, we look first to the statute‘s plain meaning. State v. Nall, 894 N.W.2d 514, 518 (Iowa 2017). “When the text of a statute is plain and its meaning clear, the court should not search for meaning beyond the express terms of the statute . . . .” State v. Tesch, 704 N.W.2d 440, 451 (Iowa 2005) (quoting State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999)). If unambiguous, we will apply the statute as written. Nall, 894 N.W.2d at 518. We do so here.
Congress placed age limits in certain provisions for Medicaid eligibility, and not others. “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Chestnut v. Montgomery, 307 F.3d 698, 701-02 (8th Cir. 2002) (alteration in original) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983)); accord Oyens Feed & Supply, Inc. v. Primebank, 808 N.W.2d 186, 193 (Iowa 2011). “When interpreting the meaning of the statute, we give effect to all the words in the statute unless no other construction is reasonably possible.” Oyens, 808 N.W.2d at 193 (quoting State v. Osmundson, 546 N.W.2d 907, 910 (Iowa 1996)).
“By the omission of an age limit in the [pooled special needs trust] paragraph of subsection (d), Congress‘s intent was to permit disabled persons over age 65 to participate in [pooled special needs] trusts.” Olson, 676 F.3d at 702. The court in Olson distinguished between an individual‘s participation in a pooled special needs trust and the individual‘s temporary disqualification from Medicaid long-term care benefits based on that participation. Id.
Edward and Susan argue that the DHS incorrectly interpreted the statutes relating to Medicaid eligibility and pooled special needs trusts and improperly treated the pooled special needs trusts as countable assets for purposes of their Medicaid long-term care eligibility determinations. The amici argue that the trust provision in
The Eighth Circuit, the South Dakota Supreme Court, and the Kansas Court of Appeals have already addressed the issue we face today. We find their reasoning persuasive.
The Eighth Circuit, considering both
When all paragraphs of the statute are read together, a disabled individual over 65 may establish a [pooled special needs] trust, but may be subject to a delay in Medicaid benefits. Despite the
lack of an age limit within paragraph 1396p(d)(4)(C) for purposes of counting resources, Congress intended to exempt transfers of assets into pooled [special needs] trusts from the transfer penalty rules of subsection 1396p(c)(1) only if the transfers were by those under age 65.
The South Dakota Supreme Court reached the same conclusion. In re Pooled Advocate Trust, 813 N.W.2d at 142. The court considered CMS‘s and the Social Security Administration‘s interpretations of
Although a pooled trust may be established for beneficiaries of any age, funds placed in a pooled trust established for an individual age 65 or older may be subject to penalty as a transfer of assets for less than fair market value. When a person places funds in a trust, the person gives up ownership of the funds. Since the individual generally does not receive anything of comparable value in return, placing funds in a trust is usually a transfer for less than fair market value. The
statute does provide an exception to imposing a transfer penalty for funds that are placed in a trust established for a disabled individual. However, only trusts established for a disabled individual 64 or younger are exempt from application of the transfer of assets penalty provisions . . . .
Id. at 144 (quoting Memorandum from Gale P. Arden, Dir. of Disabled & Elderly Health Programs Grp., Ctr. for Medicaid & State Operations, Balt. to Jay Gavens, Acting Assoc. Reg‘l Adm‘r, Div. of Medicaid & Children‘s Health (Apr. 14, 2008)). CMS‘s State Medicaid Manual also provides,
Establishing an account in [a pooled trust] may or may not constitute a transfer of assets for less than fair market value. For example, the transfer provisions exempt from a penalty trusts established solely for disabled individuals who are under age 65 or for an individual‘s disabled child. As a result, a special needs trust established for a disabled individual who is age 66 could be subject to a transfer penalty.
Id. at 145 (quoting Ctrs. for Medicare & Medicaid Servs., The State Medicaid Manual, § 3259.7(B) [hereinafter State Medicaid Manual]). The court concluded,
Considering the unambiguous language of the statutes, coupled with the reasonable agency interpretations, we conclude that transfers of assets into pooled trusts by beneficiaries age 65 or older may be subject to a transfer penalty period for Medicaid eligibility purposes.
Id. at 147. We give the CMS interpretation Skidmore deference under federal law. Skidmore, 323 U.S. at 140, 65 S. Ct. at 164.
In Hutson v. Mosier, 401 P.3d 673 (Kan. Ct. App. 2017), the Kansas Court of Appeals reached the same conclusion and, after “considering all of the provisions of
[W]e find the plain language of the statute to mean that a person age 65 or older who transfers assets to a pooled supplemental or special needs trust is subject to the imposition of a transfer penalty under the rules of subsection
42 U.S.C. § 1396p(c)(1) if the transfer is for less than fair market value.
Id. at 681. The court “recognize[d] that in some cases the impact of a transfer penalty may seem harsh, [but] the imposition of such penalties are specifically authorized by federal law as well as state regulation, and they serve a legitimate purpose.” Id. at 682. “[P]ooled trusts are intended to assist individuals with a relatively small amount of money who lack the financial resources to secure long-term care.” Id. at 681-82. “They are not intended to be vehicles for affluent individuals to use in order to divert scarce Medicaid resources from those truly in need.” Id. at 682.
A United States District Court recently reached the same conclusion, stating, “The text of (c)(2)(B)(iv) explicitly limits its reach to trusts ‘established solely for the benefit of an individual under 65 years of age.‘” Richardson ex rel. Carlin v. Hamilton, No. 2:17-CV-00134-JAW, 2018 WL 1077275, at *16 (D. Maine Feb. 27, 2018) (quoting
We agree with the foregoing authorities. Sections 1396p(c)(2)(B)(iv) and (d)(4)(C) are unambiguous. While an individual age sixty-five and older may establish a pooled special needs trust, the individual may be subject to a delay in Medicaid long-term care benefits if transfers to the trust after the individual reached the age of sixty-five were for less than fair market value.
Congress may have had policy reasons for penalizing such transfers by those age sixty-five or older. Medicaid is “a payer of last resort,” and benefits are intended for those who are truly unable to afford medical care. In re Estate of Melby, 841 N.W.2d at 875. Congress could reasonably choose to help younger disabled individuals with longer life expectancies conserve their resources. Conversely, “Congress could have rationally concluded that the benefits of making special needs trusts available to elderly individuals outweighed the burden of the penalty. As it stands, congressional intent—as exemplified by the text of the statute—is clear.” Lewis, 685 F.3d at 352.
The DHS and the district court properly interpreted the relevant statutory provisions with regard to pooled special needs trusts. We turn next to the Coxes’ argument that the DHS erred when it determined the transfers were for less than fair market value.
C. The Transfer for Less Than Fair Market Value. The Coxes argue the DHS erred when it determined that the transfers to the pooled special needs trusts were a disposal of assets for less than fair market value. Specifically, they contend the DHS did not conduct an individualized factual analysis to determine whether the deposits were (1) a “transfer or disposal of assets” and (2) for fair market value.
1. Transfer or disposal of assets. The Coxes argue that their deposits into the pooled special needs trusts were not a “transfer or disposal of assets” under Iowa Administrative Code section 441—75.23(8) because a pooled special needs trust is not listed among the six examples enumerated in that rule.
“Transfer or disposal of assets” means any transfer or assignment of any legal or equitable interest in any asset as defined above, including:
- 1. Giving away or selling an interest in an asset;
2. Placing an interest in an asset in a trust that is not available to the grantor (see 75.24(2) “b” (2)); - 3. Removing or eliminating an interest in a jointly owned asset in favor of other owners;
- 4. Disclaiming an inheritance of any property, interest, or right pursuant to
Iowa Code section 633.704 on or after July 1, 2000 (seeIowa Code section 249A.3(11) “c” );- 5. Failure to take a share of an estate as a surviving spouse (also known as “taking against a will“) on or after July 1, 2000, to the extent that the value received by taking against the will would have exceeded the value of the inheritance received under the will (see
Iowa Code section 249A.3(11) “d” ); or- 6. Transferring or disclaiming the right to income not yet received.
Our conclusion complies with well-settled canons of construction. “[W]hen a statute uses the word ‘includes’ rather than ‘means’ in defining a term, it does not imply that items not listed fall outside the definition.” White v. Nat‘l Football League, 756 F.3d 585, 595 (8th Cir. 2014) (quoting United States v. Whiting, 165 F.3d 631, 633 (8th Cir. 1999)); see also Am. Eyecare, 770 N.W.2d at 837 (“Generally ‘the verb “includes” imports a general class, some of whose particular instances are those specified in the definition.‘” (quoting Helvering v. Morgan‘s, Inc., 293 U.S. 121, 125 n.1, 55 S. Ct. 60, 61 n.1 (1934))). To determine the meaning of “includes” we examine the context in which it is used. Am. Eyecare, 770 N.W.2d at 837-38.
Here, the rule‘s first sentence defines “transfer or disposal of assets” broadly as “any transfer or assignment of any legal or equitable interest in any asset.”
The Coxes’ contrary interpretation of rule 441—75.23(8) would render it invalid under the supremacy clause. See Oberschachtsiek v. Iowa Dep‘t of Soc. Servs., 298 N.W.2d 302, 304 (Iowa 1980) (“State regulations which contravene the federal regulatory scheme are invalid under the supremacy clause.“). The Federal Medicaid Act applies to transfers into pooled special needs trusts. See, e.g.,
The amici also argue that funding a trust is not a transfer and that
[n]o transfer occurs when the asset is given to a trustee—it is still available
and belongs to the applicant—but it is transferred once it is given to a third person (or the trustee can no longer use it for the applicant). That is when the penalty period starts—later, after a period when the asset was deemed available—and thus rendering the applicant ineligible for a longer period of time.
We disagree. The South Dakota Supreme Court refuted the amici‘s argument as follows:
Under
42 U.S.C. § 1396p(d)(4)(C) , a pooled trust is “[a] trust containing the assets of an individual who is disabled . . . .” (Emphasis added.) While parents, grandparents, legal
guardians, or courts may establish a pooled trust for a disabled beneficiary, these third parties may not fund the pooled trust with third-party assets. See
42 U.S.C. § 1396p(d)(4)(C)(iii) . Thus, when a third party places his or her own assets into a pooled trust for the benefit of a pooled trust beneficiary, the trust would not qualify as a[] Medicaid pooled trust in the first place.
In re Pooled Advocate Trust, 813 N.W.2d at 146-47.
A United States district court also rejected the amici‘s argument.
Subsection (d)‘s text does not support [the Main Pooled Disability Trust‘s] assertion that it governs transfers into trusts. Subsection (d) speaks repeatedly and exclusively to transfers from trusts—that is funds outgoing from trusts (to beneficiaries)—not to transfers into trusts. This corresponds to the implication from the subsection‘s title—“treatment of trust amounts.” It stands to reason that an amount does not become a “trust amount” until it is transferred into the trust. [The Maine Department of Health and Human Services] penalizes transfers of funds pursuant to subsection (c) when they are transferred—conceptually prior to the completed transfer and deposit into the trust and conversion into “trust amounts.”
Richardson, 2018 WL 1077275, at *16 (footnote omitted).
We find this reasoning persuasive. We conclude that Edward and Susan‘s deposits into the pooled special needs trusts constituted a “transfer or disposal of assets.”
2. Fair market value. The Coxes argue that any transfer into the trust was not automatically disqualifying and the DHS failed to conduct a factual analysis to determine whether the funds placed in trust constituted a transfer for fair market value. The Coxes ask us to determine that the assets were transferred for fair market value rather than remanding the case back to the DHS for fact finding.
To avoid the ineligibility period, the Coxes were required to make a showing that
(i) the individual intended to dispose of the assets either at fair market value, or for other valuable consideration, (ii) the assets were transferred exclusively for a purpose other than
to qualify for medical assistance, or (iii) all assets transferred for less than fair market value have been returned to the individual.
The Coxes argue there is no evidence that the transfers were made for less than fair market value. The Coxes submitted proposed budgets and argue the funds will be used to purchase items for fair market
In our view, the DHS and district court correctly determined that the Coxes transferred their assets into the pooled trust for less than fair market value. The Coxes admittedly gave up full control over their own funds totaling $576,379 by placing that combined amount into the pooled special needs trust. They will benefit as the trust pays out for their care over time. But future specified benefits inherently are worth less than present full control over cash on hand.
In the proposed decision, later adopted as the final decision by the DHS, the ALJ addressed whether the transfers were for fair market value. The ALJ found the DHS position to be consistent with state and federal rules and regulations.
[T]he Department agrees that any funds placed in trust for either of the Coxes which were actually paid for his or her benefit prior to the beginning of the applicable penalty period should be deducted from the amount of the uncompensated transfer which was used to calculate the penalty periods. . . .
The Department’s position on this issue is consistent with state and federal rules and regulations and the State Medicaid Manual and, as such, is found to be correct. As noted above, any payments made for a beneficiary’s benefit for market value prior to the beginning of the penalty date cannot be considered to have been transfers for less than fair market value. However, once the penalty periods began, all funds that have not been used for a beneficiary’s benefit must be considered to have been transferred for less than fair market value. Thereafter, Medicaid law provide[s] an exception from the penalty rules only if all assets transferred for less than fair market value have been returned.
42 USC [§] 1396p(c)(2)(C)(iii) ;441 IAC 75.23(5)(c)(3) .
In the discussion accompanying the final decision, the DHS director agreed with the ALJ, stating, “[O]nce the penalty periods began, all funds that have not been used for a beneficiary’s benefit must be considered to have been transferred for less than fair market value.” The South Dakota Supreme Court reached the same conclusion. In re Pooled Advocate Trust, 813 N.W.2d at 147.
The DHS determined that transfers to pooled special needs trusts are per se
When a person places funds in a trust, the person gives up ownership of those funds. Since the individual generally does not receive anything of comparable value in return, placing funds in a trust is usually a transfer for less than fair market value.
Ctrs. for Medicare & Medicaid Servs., Dep’t of Health & Human Servs., State Agency Regional Bulletin No. 2008-05 (May 12, 2008), available at http://www.sharinglaw.net/elder/CMS-d4c.pdf.
Valuable consideration means that an individual receives in exchange for his or her right or interest in an asset some act, object, service, or other benefit which has a tangible and/or intrinsic value to the individual that is roughly equivalent to or greater than the value of the transferred asset.
State Medicaid Manual § 3258.1(A)(2). Again, we give the CMS interpretation Skidmore deference. Skidmore, 323 U.S. at 140, 65 S. Ct. at 164.
The DHS argues that, in considering the facts of this case, the transfers were for less than fair market value. The DHS argues the trustee controls how the funds are spent and the Coxes have to pay the trustee for trust maintenance. The DHS also argues the transfers were not made for valuable consideration because the Coxes received nothing in return for their transfers. Finally, from a policy perspective, the DHS argues it should be able to evaluate fair market value at the time the assets are transferred to the trust rather than after the trust funds have been spent.
After reviewing the DHS findings in light of all of the evidence in the record, we conclude that substantial evidence supports the DHS finding that the transfers were made for less than fair market value. The value of readily available assets is greater than the value of assets that are restricted in a trust for future use. Even if the trustee were obligated to pay out trust funds over a period of time, these funds are still worth less than unrestricted cash. The trustee may only use the funds in the pooled trusts for Edward and Susan’s care. Edward and Susan cannot later decide to use some of the funds for other purposes such as paying for the college tuition of their grandchildren. Also, if there are funds left in the trust when Edward and Susan die, the trustee will keep the funds or use the funds to reimburse the State for Medicaid expenses. The funds will not go to the estate to pay estate debt nor will the funds go to beneficiaries of the estate. We conclude the DHS conducted an adequate individualized factual analysis with regard to both Edward and Susan to determine the length of the penalty period.
IV. Disposition.
For these reasons, we affirm the judgment of the district court.
AFFIRMED.
All justices concur except Appel, J., who dissents.
#18–0026, Cox v. Iowa DHS
APPEL, Justice (dissenting).
I respectfully dissent.
I acknowledge, at the beginning, that the undertaking of making sense of the Medicaid statute is no easy feat. The Act has been called “an aggravated assault on the English language.” Friedman v. Berger, 409 F. Supp. 1225, 1226 (S.D.N.Y. 1976). And, it has been said that the Act is the equivalent of a “Serbonian bog . . . Where armies whole have been sunk.” Cherry ex rel. Cherry v. Magnant, 832 F. Supp. 1271, 1273 n.4 (S.D. Ind. 1993)
While I will not add to the colorful language, I will simply state that I do not find this statute nearly as easy to penetrate as does the majority. I take on our assignment in this case with caution. Based on my review of the entire statutory section in context, however, I come to a different conclusion than the majority. In any event, it is clear to me that the questions posed in this appeal have repeatedly surfaced in administrative appeals in a number of states with mixed results. Authoritative clarification of the dispute would require congressional action or a definitive interpretation from the United States Supreme Court.
I. Relationship Between Subsections d and c in 42 U.S.C. § 1396p .
The first interpretive question in this case is the relationship between
The “Treatment of trust amounts” provision,
Assets in a revocable trust are considered resources available to the individual in determining Medicaid eligibility.
Assets held in an irrevocable trust are next considered in subsection d.
Subsection d thus generally eliminates the possibility of using creative estate planning devices to achieve eligibility for Medicaid. In particular, establishing a trust with a residual benefit for heirs, or a trust that only conditionally removes assets from the individual’s control, will not work as a tool to avoid restrictions on Medicaid eligibility. But there are three exceptions to the general rule: trusts related to providing benefits to disabled persons; trusts related to certain pension, Social Security, or other income (commonly known as Miller trusts); and pooled trusts established for a disabled individual.
Certain pooled trusts are not subject to the unfavorable treatment for Medicaid eligibility purposes under a number of conditions.
In this case, there is no dispute that the trusts qualify under
I now turn to subsection c. It generally provides that if an institutionalized individual disposes of assets for less than fair market value, the individual is ineligible for medical assistance for long-term care services during a penalty period.
It seems to me that the best reading of the statutory provisions in tandem is that, generally, the establishment of a pooled trust itself is not a transfer of assets under the statute. Subsection d clearly outlines the situations under which funds placed in trust are to be considered (1) available to the individual for Medicaid purposes, (2) regarded as income, or (3) considered to have been disposed of and thus subject to the benefit-limiting provisions of subsection c. While the Medicaid statute does not define “transfer,” I conclude that if you establish a qualifying pooled trust, no transfer occurs. In short, I think subsection d addresses the question of when and under what circumstances transactions involving a pooled trust established for the benefit of the individual are considered transfers subject to unfavorable treatment for purposes of Medicaid eligibility.
I think this interpretation makes sense. The purpose of subsection d is to lay out the general rules regarding the establishment of trusts for Medicaid eligibility. In contrast, I view subsection c as designed to handle situations where individuals seek to divest themselves of assets for the benefit of third parties while at the same time seeking to qualify for Medicaid long-term care benefits.
I understand there are contrary interpretations. In particular, Center for Special Needs Trust Administration, Inc. v. Olson, 676 F.3d 688 (8th Cir. 2012), and In re Pooled Advocate Trust, 813 N.W.2d 130 (S.D. 2012), are consistent with the majority opinion and contrary to my approach. These cases, however, do not seem to address the interpretation presented here. By way of example, these courts do not consider that, because their approach implicitly assumes that subsection c applies to all transactions funding a trust, the
Finally, I do not think that those courts adequately considered the reasons why
There is one case, however, where the issues raised here have been addressed, at least in part, and that is Richardson ex rel. Carlin v. Hamilton, No. 2:17-CV-00134-JAW, 2018 WL 1077275, at *16 (D. Me. Feb. 27, 2018), appeal docketed, No. 18–1223 (1st Cir. Mar. 22, 2018). The district court in Richardson decided the case adverse to the individual establishing the trust. This case, however, is on appeal to the United States Court of Appeals for the First Circuit.
Although it is not completely clear, it appears that the majority opinion turns on federal rather than state law. In relying on federal law, the majority cites Skidmore deference. See Skidmore v. Swift & Co., 323 U.S. 134, 139–40, 65 S. Ct. 161, 164 (1944). None of the parties in this litigation claimed that Skidmore deference should be afforded to interpretations of the statute by Centers for Medicare & Medicaid Services (CMS). In any event, Skidmore deference is a weak rather than robust doctrine. It turns on the ability of the agency to persuade. United States v. Mead Corp., 533 U.S. 218, 227–28, 121 S. Ct. 2164, 2171–72 (2001). I am not persuaded by the CMS analysis in this case and do not find that any Skidmore deference saves the day for the State.
I also want to mention briefly the practical effect of the approach adopted here. If an individual places funds in a qualified pooled trust, the funds will be used during the lifetime of the individual only for supplemental benefits that Medicaid authorizes to be provided without affecting Medicaid eligibility. Upon death, if there are funds remaining in the trust corpus not retained by the nonprofit managing the
As such, I believe that the decision of the director of the department of human services is based upon an erroneous interpretation of
II. Transfer for Fair Market Value.
Even assuming the establishment of the trust in this case amounted to a transfer under subsection c, there is a question whether the individual establishing the trust received fair market value for the assets placed in the trust.
It seems to me that the Coxes received fair market value for their assets. As a result of their establishment and funding of the trust, they received the investment and management services of a trustee and a method for financing the provision of supplemental services that Medicaid does not provide but does not regard payment for as income affecting Medicaid eligibility. There is no reason to think the Coxes took a haircut on their assets, and nothing that they have done is designed to move assets to the benefit of third parties such as heirs while maintaining Medicaid eligibility.
The Coxes provide a number of unappealed decisions in other states where fact finders adopt a version of the position they advocate here. For instance, in Peittersen v. Minnesota Department of Human Services, No. 19HA-CV-11-5630 (Minn. Dist. Ct. Oct. 2, 2012), the district court held that whether an individual received fair market value for assets placed in a pooled trust could not be determined by a per se rule. Id. at 6–7. Thus, it rejected the approach of the majority here, namely, that the transfer of assets into a pooled trust is per se not a transfer for fair market value because the use of the assets is restricted. See id. To the Minnesota court, an individualized showing is required. Id.; see also Dziuk v. Minn. Dep’t of Human Servs., No. 21-CV-09-1074, at 2 (Minn. Dist. Ct. Feb. 7, 2012) (holding that state offered insufficient evidence showing assets were transferred for less than fair market value).
A different approach to fair market value was taken by the Minnesota Department of Social Services. In Doe (Redacted) v. Winona County Department of Human Services, No. 186029 (Minn. Dep’t Soc. Servs. Mar. 10, 2017), a human services judge held that the time for determining fair market value of assets deposited by a seventy-seven-year old individual in a pooled trust was the time the funds were deposited in the trust. Id. at 9. The judge determined that the individual placing the funds in the trust “gained an immediate vested equitable interest in the trust assets, the value of which roughly equaled the value of appellant’s interest.” Id. A similar approach was embraced by the Minnesota district court in Beinke v. Minnesota Department of Human Services, No. CV-14-271 (Minn. Dist. Ct. June 24, 2014). The Beinke court observed that a seventy-two-year-old individual who placed funds in a pooled trust received “the value of an equitable interest in the remaining trust assets,” as well as the value of the managing and investing services of the trustee and fiduciary. Id. at 8. And, in Doe v. El Paso County Department of Human Services, Appeal No. SHP 2014-0929 (Colo. Office of Admin. Cts. Jan. 26, 2015), an administrative law judge in Colorado held there was nothing in the department’s regulations that required “a full and immediate exchange of value.” Id. at 9. The Colorado administrative law judge noted that other legally binding documents such as annuities provide for future performance but are considered fair consideration. Id. A Michigan administrative law judge has come to a similar result based on similar reasoning. Estate of Wierzbinski v. Mich. Dep’t of Human Servs., No. 2010-4343-AA, at 5 (July 26, 2011).
The various unreported district court decisions cited above, of course, are not binding precedent on this court. But they do suggest that the question of fair market value of any transfer in this case is subject to fair debate. I am inclined to believe that absent extraordinary circumstances, the placement of assets in a qualified pooled trust is ordinarily an exchange for fair market value because of the equitable rights retained by the individual.
I believe that the director’s determination that the transfers were for less than fair market value is unreasonable, arbitrary, and capricious. Therefore, I would reverse that decision. See
III. Conclusion.
For the above reasons, I would reverse the decision of the district court.
Notes
A trust containing the assets of an individual under age 65 who is disabled . . . and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.