WEBVTT
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SJC-13439 in the matter of Francis R. Mason.
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Okay, Attorney Fimognari.
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Thank you, Chief Justice Budd,
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and may it please the court.
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Good morning, Your Honors.
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Assistant Attorney General Christine Fimognari
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on behalf of the appellant,
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the Massachusetts Executive Office
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of Health and Human Services, MassHealth.
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MassHealth asked the court to reverse the decision
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of the probate court below and find the following.
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First, that a lien imposed by MassHealth
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on the real property of a MassHealth beneficiary
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does not automatically expire upon that beneficiary's staff.
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And second, that the Massachusetts Uniform Probate Code,
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or MUPC's three-year ultimate time limit
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does not apply retroactively to bar a claim
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brought against the estate of an individual
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who died prior to the MUPC's effective date.
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Beginning with the first issue,
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the Probate Court erred in its interpretation
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when it concluded that the lien expires upon death.
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And in its interpretation,
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the probate court failed to consider
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the ordinary way in which statutory liens operate.
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Isn't the purpose of it,
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it has a specific purpose,
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that you put this lien on in case the house is sold
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while the person is in the facility, right?
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So, it serves a distinct purpose, right?
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That's one purpose of the lien, Your Honor, yes.
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Another purpose-
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Go ahead.
I'm sorry, Your Honor.
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Another purpose of the lien is to secure the right
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of MassHealth to recover after the individual's death.
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But they have the right to recover
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after the individual's death through the estate,
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and they don't need to file a lien, right?
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They can collect the amount owed.
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And there are all kinds of very specific rules about
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when you can do it,
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if there's someone living in the house,
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the order of priority.
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It's just a very detailed process about
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what happens when you're dead,
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as opposed to basically making sure
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the major asset, which is the house,
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is not sold while the person's in the facility, right?
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Seems like there are two separate ways of going about this.
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Yes, Your Honor, that's absolutely correct.
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There are two separate mechanisms for recovery
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that Congress has allowed states to pursue,
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and one is a state recovery, as you laid out,
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and the other is liens.
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But if you do what you want,
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aren't you basically,
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the word collapsing keeps coming up every argument,
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so collapsing the distinction, right?
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And you're creating a lien that goes on,
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particularly before 2013, for 50 years,
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which will completely bollocks up the probate process.
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No, Your Honor,
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we're not collapsing the two mechanisms for recovery,
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because there are instances in which MassHealth
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cannot recover through
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the estate recovery process.
Why not?
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That I can't figure out.
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Why can't you always recover
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through the estate process if you pay attention?
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Certainly, Your Honor.
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So there are situations in which
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heirs of an estate will be incentivized
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not to probate an estate
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and just wait out the three-year statute of limitations.
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Aren't you notified when the person dies?
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Aren't you...
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You've been paying for them in that facility.
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Don't you get a notice saying,
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"She died or he died?"
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Not always, Your Honor.
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[Justice Wendlandt] You just keep paying?
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No, Your Honor,
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but there's different situations
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in which MassHealth may stop paying.
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It could be that the individual
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has been discharged from the institution and returned home.
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But you're saying Mass Health doesn't know
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when somebody dies?
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Not always, Your Honor.
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They do their best-
Okay, but let's just say
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in this case, did you know when the decedent died?
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MassHealth knew when the decedent probate
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was entered pursuant to
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the notice that's required.
So nine years
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after her death you knew that she died?
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Yes, Your Honor.
Before then,
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you were continuing to pay for her nursing care?
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Not continuing to pay for her nursing care,
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Your Honor.
You thought she
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was back home.
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I'm not sure exactly what if it...
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There's 2.3 million people in MassHealth, Your Honor,
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so MassHealth.
Right, so I would think
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it would be a big deal for MassHealth to know
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when to stop paying.
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Yes, Your Honor and MassHealth does its best
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to keep track of this,
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but there are also instances
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where MassHealth receives notice
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and still does not engage in the estate recovery process.
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And the reason for that is because
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if probate is not initiated,
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then MassHealth has the option, after one year,
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to appoint a public administrator to probate the estate.
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But MassHealth, as a policy matter,
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will not appoint the public administrator
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if there is another individual living in the home.
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Because as a policy matter,
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MassHealth doesn't wanna force
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the individual who's living in the home out of the house.
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Well, they can't right?
They can't, right.
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Yeah, by statute, they have to...
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They can't do that.
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Yes, they can, Your Honor.
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What would happen is they would
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appoint the public administrator,
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the public administrator's required by law
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to resolve the estate,
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and if the home is the primary asset
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that's needed to resolve the estate, excuse me,
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the claims against the estate,
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then it would be sold, and that would be used
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to pay the creditors.
But I thought there's a rule
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that if there's like a surviving spouse
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or somebody in the home,
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you can't exercise the lien on that.
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Yes, Your Honor, that is correct.
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31B provides that if there's a surviving spouse,
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a child under the age of 21, or a blind or disabled child,
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that recovery cannot occur.
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But I'm talking about when there's another individual
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living in the house who's not protected from recovery.
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If it was forced to go to the estate recovery process,
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MassHealth would be forced to
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push that individual outta the house.
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And as a policy matter, they choose not to,
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and they can continue to protect their interests
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through the lien process.
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Additionally, Your Honor, in the instances
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that you were referencing where there
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is a protected individual in the house,
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MassHealth often does not appoint a public administrator,
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because the public administrator,
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it would be very inefficient for them to be appointed
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and then to only have a claim that's deferred
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until that individual dies or the property is sold.
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So those are two instances in which MassHealth,
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as a practical matter,
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uses the lien to secure their rights to recover.
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But can't they protect themselves in the probate process
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without the TEFRA lien being in place?
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I mean, I get it.
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All of us are paying for this person to be taken care of.
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Our tax dollars are paying.
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You should be able to recover that.
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I completely get that.
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But I also (chuckling)
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don't see why the ordinary probate process
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doesn't protect you.
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And also it just seems like you're,
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by collapsing those two processes,
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you're creating all kinds of confusion,
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and the idea that you can do this for 50 years.
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So, everything's going hunky dory before two...
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A lot of people have wills and things from 2013,
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they're in these homes,
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so everything, you guys can do whatever you want
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for the next 50 years in those cases?
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If the individual died before the effective date.
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Doesn't that seem crazy to you?
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No, Your Honor, because the legislature provided
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that period of limitations,
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and so it's what the legislature thought was appropriate.
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But additionally, Your Honor, another-
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Which period of limitations, the 50?
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Yes, Your Honor, that was the line placed before 2012
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with the-
Well, let me ask you
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about MassHealth's own manual,
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which I think one of the judges below relied on
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in interpreting the lien as expiring after,
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upon the death of the beneficiary and/or the family members.
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Yes, Your Honor, so I believe you're referring to
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the State Medicaid Manual's reference to-
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Yeah, which says, "Recoveries must be made
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"from the individual's estate after death
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"or from the proceeds of the sale of the property
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"on which the lien has been placed."
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Yes, Your Honor, and-
Isn't that a clear statement
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of interpreting the language that you want us to interpret
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a different way, consistent with the way the judge here,
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Judge Ordonez, interpreted it?
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Because it requires too many inferences, Your Honor.
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The ordinary rule for statutory liens such as this,
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is that they only expire upon a condition
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that is explicitly set out in the authorizing statute.
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Here, section 34 of Chapter 118E is the authorizing statute
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for MassHealth to impose these liens.
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That section provides that MassHealth
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is permitted to impose liens
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which are allowed by the Federal Secretary.
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Those liens are laid out in Section 42 USC 1396p.
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That federal section only provides one condition
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upon which these liens dissolve,
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and that's discharge from the institution and return home.
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If-
Well, don't those provisions
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refer to during the life of?
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Or they have this language that's cross-referencing
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the person being alive, right?
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No, Your Honor, the federal statute 42 USC 1396p
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just says that you can impose the lien,
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and the only condition upon which the lien dissolves
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is if the individual returns home.
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The reference to an individual's-
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It doesn't say only.
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No, Your Honor, it says unless.
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Well, it says it shall dissolve
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when the person returns home.
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That's correct.
Okay.
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So there may be other situations where the lien dissolves.
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Yes, Your Honor.
It's just
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that this is the one that's listed,
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and I guess your argument is having listed this one,
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silence as to the others means that those other ways
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of dissolving the lien does not exist.
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Yes, Your Honor.
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Because you would have to read a condition
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into the statute that's not there.
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Does any-
Well, you're
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reading an only.
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I'm just, you know...
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So, shame on you (laughing) but,
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I take your argument meaning that the silence
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as to the other dissolution mechanisms
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means that this is the only one.
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Yes, Your Honor and-
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Does either,
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any of the federal or state statutes
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say that TEFRA liens survive death?
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'Cause that's...
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You would think that...
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'Cause we've got various precise limitations on recovery.
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Does anything ever say it survives death?
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No, Your Honor,
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but you wouldn't expect it to say that it survives death,
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because the ordinary way that real estate
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and statutory liens operate,
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as outlined in real estate treatises
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and recognized by the Supreme Court,
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is that they continue until they're paid,
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discharged, or a condition occurs.
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And that's because the interest attaches to the property.
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It's not attached to the individual.
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It's attached to the property.
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So the death ordinarily does not affect a lien.
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But you don't also have a separate way of recovering.
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Here we have a pre-death and a post-death way of recovering.
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So I understand normal liens,
268
00:12:03.660 --> 00:12:05.910
that's how you wanna preserve your rights,
269
00:12:05.910 --> 00:12:08.100
but here you have a whole separate way of
270
00:12:08.100 --> 00:12:11.760
protecting with all kinds of particular rules, right?
271
00:12:11.760 --> 00:12:14.970
Yes, Your Honor, but we know that the federal government,
272
00:12:14.970 --> 00:12:18.000
Congress, when it enacted the law
273
00:12:18.000 --> 00:12:21.570
to allow states to recover under these TEFRA liens,
274
00:12:21.570 --> 00:12:25.470
did not intend to limit it to just pre-death recovery,
275
00:12:25.470 --> 00:12:26.880
because we know that other states
276
00:12:26.880 --> 00:12:28.803
engage in post-death recovery.
277
00:12:29.670 --> 00:12:31.530
Although the Feds have written a guidance
278
00:12:31.530 --> 00:12:33.753
saying that we do the exact opposite.
279
00:12:34.710 --> 00:12:35.880
We we don't do that.
280
00:12:35.880 --> 00:12:37.470
We have...
281
00:12:37.470 --> 00:12:41.730
Right, you've got that policy brief from DD, whatever the-
282
00:12:41.730 --> 00:12:42.563
Yes, Your Honor,
283
00:12:42.563 --> 00:12:45.270
I believe you're referring to policy brief number five.
284
00:12:45.270 --> 00:12:47.490
We would argue that that policy brief
285
00:12:47.490 --> 00:12:49.620
is a federal interpretation of state law
286
00:12:49.620 --> 00:12:51.810
with no citations to any authority,
287
00:12:51.810 --> 00:12:54.300
and so it should not be found to have
288
00:12:54.300 --> 00:12:55.890
any persuasive value here.
289
00:12:55.890 --> 00:12:59.760
It's contrary to MassHealth's interpretation of the law.
290
00:12:59.760 --> 00:13:02.430
But certainly not contrary to the way MassHealth's,
291
00:13:02.430 --> 00:13:04.713
in its manual, used to describe it.
292
00:13:06.030 --> 00:13:07.080
I believe it is, Your Honor,
293
00:13:07.080 --> 00:13:10.140
because MassHealth's manual just says
294
00:13:10.140 --> 00:13:11.790
the estate after death.
295
00:13:11.790 --> 00:13:14.640
It doesn't indicate that the recovery from the lien
296
00:13:14.640 --> 00:13:16.920
is limited to an individual's life.
297
00:13:16.920 --> 00:13:19.320
There's no such express statement of that,
298
00:13:19.320 --> 00:13:21.120
and you would have to infer
299
00:13:21.120 --> 00:13:24.390
that the use of the term after death in estate
300
00:13:24.390 --> 00:13:27.150
would be meant to limit the lien recovery
301
00:13:27.150 --> 00:13:28.560
that's also referenced.
302
00:13:28.560 --> 00:13:31.500
I don't believe that that's the best interpretation
303
00:13:31.500 --> 00:13:32.760
of the language, Your Honor.
304
00:13:32.760 --> 00:13:34.560
But even if it were,
305
00:13:34.560 --> 00:13:37.110
the court should not rely on that language,
306
00:13:37.110 --> 00:13:39.660
which only has persuasive authority.
307
00:13:39.660 --> 00:13:42.390
They should look to the text of Section 31D,
308
00:13:42.390 --> 00:13:44.620
which provides that
309
00:13:45.870 --> 00:13:47.730
the division is also authorized
310
00:13:47.730 --> 00:13:49.350
during an individual's lifetime
311
00:13:49.350 --> 00:13:52.320
to recover all assistance correctly provided
312
00:13:52.320 --> 00:13:55.020
on or after April 1st, 1995,
313
00:13:55.020 --> 00:13:59.250
a property against which the division has a lien is sold.
314
00:13:59.250 --> 00:14:01.680
But the language at the probate court,
315
00:14:01.680 --> 00:14:04.350
and no other court which has considered this,
316
00:14:04.350 --> 00:14:07.860
this issue in section 31D is at the end of the section.
317
00:14:07.860 --> 00:14:11.197
It says, "This subsection shall not limit
318
00:14:11.197 --> 00:14:13.087
"the division's ability to recover
319
00:14:13.087 --> 00:14:16.477
"from the individual's estate under subsection A or B,
320
00:14:16.477 --> 00:14:21.060
"or as otherwise provided under any general or special law."
321
00:14:21.060 --> 00:14:23.730
So the probate court below read a section,
322
00:14:23.730 --> 00:14:25.800
which says that you are also authorized
323
00:14:25.800 --> 00:14:28.320
during an individual's lifetime to recover.
324
00:14:28.320 --> 00:14:33.320
They read that to mean that the lien expires upon death,
325
00:14:34.020 --> 00:14:36.180
even though there's an express statement
326
00:14:36.180 --> 00:14:39.660
that it's not supposed to limit other recovery provided
327
00:14:39.660 --> 00:14:42.840
under other laws, such as section 34.
328
00:14:42.840 --> 00:14:46.290
So Your Honor, the probate court read out that section,
329
00:14:46.290 --> 00:14:49.560
and it also ignored some other statutory sections
330
00:14:49.560 --> 00:14:53.910
such as Chapter 118E section 32J.
331
00:14:53.910 --> 00:14:57.420
That section was enacted at the same time as 31D,
332
00:14:57.420 --> 00:15:01.590
and it provides that a personal representative
333
00:15:01.590 --> 00:15:05.710
can discharge a lien against the estate
334
00:15:07.230 --> 00:15:08.610
through certain mechanisms.
335
00:15:08.610 --> 00:15:12.030
I see my time has expired.
Ask you, I'm sorry.
336
00:15:12.030 --> 00:15:13.680
Chief, can I ask one more question?
337
00:15:13.680 --> 00:15:15.150
There is a second part to your argument
338
00:15:15.150 --> 00:15:16.350
that you haven't yet gotten to.
339
00:15:16.350 --> 00:15:17.250
Can I ask you?
Yes, Your Honor.
340
00:15:17.250 --> 00:15:21.810
Why Judge Ordonez's interpretation of that statute
341
00:15:21.810 --> 00:15:26.103
of repose applying to claims against the estate is wrong.
342
00:15:27.420 --> 00:15:30.540
I don't really quite understand your argument.
343
00:15:30.540 --> 00:15:31.840
You're just saying that...
344
00:15:33.120 --> 00:15:35.730
Kendall was about a date of death that happened
345
00:15:35.730 --> 00:15:40.730
after the MUPC was already in place, and our,
346
00:15:41.130 --> 00:15:43.080
excuse me, beneficiary died before then.
347
00:15:43.080 --> 00:15:46.020
And so we're under the old regime of 50 years.
348
00:15:46.020 --> 00:15:48.090
Yes, Your Honor, as this court has recognized,
349
00:15:48.090 --> 00:15:51.720
the ordinary approach is that
350
00:15:51.720 --> 00:15:54.180
where there is no express legislative directive,
351
00:15:54.180 --> 00:15:56.370
the court applies the rule of interpretation
352
00:15:56.370 --> 00:16:00.060
that statutes operate prospectively, not retroactively,
353
00:16:00.060 --> 00:16:01.590
but additionally, Your Honors,
354
00:16:01.590 --> 00:16:05.190
the session laws which enacted the MUPC here
355
00:16:05.190 --> 00:16:08.347
expressly provide that "if a right is acquired,
356
00:16:08.347 --> 00:16:11.107
"extinguished, or barred upon the expiration
357
00:16:11.107 --> 00:16:14.017
"of a prescribed period that has commenced to run
358
00:16:14.017 --> 00:16:15.667
"under any other statute
359
00:16:15.667 --> 00:16:18.037
"before the effective date of this act,
360
00:16:18.037 --> 00:16:20.827
"that statute shall continue to apply to the right,
361
00:16:20.827 --> 00:16:22.950
"even if it has been superseded."
362
00:16:22.950 --> 00:16:27.950
So the right to recover under the pre-MUPC statute
363
00:16:28.140 --> 00:16:30.510
would be what's described in that section,
364
00:16:30.510 --> 00:16:32.700
and it's indicated that it's not.
365
00:16:32.700 --> 00:16:35.850
Is there an argument that only applies to trusts?
366
00:16:35.850 --> 00:16:39.780
No, Your Honor, because that section refers to the act,
367
00:16:39.780 --> 00:16:42.960
and the act that is at issue is an act
368
00:16:42.960 --> 00:16:47.730
that amended both the MUPC and the Uniform Trust Code.
369
00:16:47.730 --> 00:16:48.810
It doesn't...
370
00:16:48.810 --> 00:16:50.280
The provision you're reading from
371
00:16:50.280 --> 00:16:52.350
just refers to trusts, right?
372
00:16:52.350 --> 00:16:53.183
No, Your Honor,
373
00:16:53.183 --> 00:16:56.220
actually there's a part A and a part B of that provision.
374
00:16:56.220 --> 00:16:57.930
Part A refers to trusts,
375
00:16:57.930 --> 00:17:00.480
and Part B is the part that I'm referring to.
376
00:17:00.480 --> 00:17:03.960
But Part B also doesn't expressly refer to
377
00:17:03.960 --> 00:17:06.690
the act you want it to refer to, right?
378
00:17:06.690 --> 00:17:09.960
It just uses the word acts, generally?
379
00:17:09.960 --> 00:17:12.300
Yes, Your Honor, it uses the general word act,
380
00:17:12.300 --> 00:17:15.150
which we argue applies to the entire act,
381
00:17:15.150 --> 00:17:17.193
which includes the MUPC.
382
00:17:18.060 --> 00:17:21.870
Just going back to the first issue for just a second,
383
00:17:21.870 --> 00:17:26.870
what is it that MassHealth loses if we interpret it the way
384
00:17:27.570 --> 00:17:30.330
your opposing counsel wants us to interpret?
385
00:17:30.330 --> 00:17:34.110
Given the fact that there is another way to get the money?
386
00:17:34.110 --> 00:17:35.970
Well, Your Honor, there were the examples
387
00:17:35.970 --> 00:17:37.410
where a personal administrator,
388
00:17:37.410 --> 00:17:40.140
it's not practical or good as a policy matter
389
00:17:40.140 --> 00:17:44.100
to appoint one, which I addressed with Judge Justice Kafker.
390
00:17:44.100 --> 00:17:49.100
But additionally, MassHealth loses the security on
391
00:17:49.410 --> 00:17:51.450
its ability to recover post-death
392
00:17:51.450 --> 00:17:53.970
that it otherwise would have as a secured creditor.
393
00:17:53.970 --> 00:17:56.430
So if there's an instance where-
394
00:17:56.430 --> 00:17:57.940
Meaning if it falls asleep
395
00:17:59.100 --> 00:18:02.970
and forgets to use the probate process for eight years,
396
00:18:02.970 --> 00:18:05.970
we can resurrect the lien, right?
397
00:18:05.970 --> 00:18:09.300
No, Your Honor, Section 32I
398
00:18:09.300 --> 00:18:13.500
requires MassHealth to wait one year before it can,
399
00:18:13.500 --> 00:18:16.770
post-death, before it can appoint a public administrator.
400
00:18:16.770 --> 00:18:19.050
So during that one-year period,
401
00:18:19.050 --> 00:18:20.613
if the lien dissolves upon death,
402
00:18:20.613 --> 00:18:23.700
then MassHealth is not recognized as a creditor,
403
00:18:23.700 --> 00:18:25.410
and they're not being notified
404
00:18:25.410 --> 00:18:27.120
if the house goes into foreclosure
405
00:18:27.120 --> 00:18:29.700
because it's fallen behind on taxes,
406
00:18:29.700 --> 00:18:31.260
if there's a mortgage foreclosure,
407
00:18:31.260 --> 00:18:33.480
if there's a reverse mortgage foreclosure.
408
00:18:33.480 --> 00:18:36.090
MassHealth would lose its status as creditor
409
00:18:36.090 --> 00:18:38.400
during that one year.
Wait, I don't understand
410
00:18:38.400 --> 00:18:40.620
why it would lose its status as creditor.
411
00:18:40.620 --> 00:18:44.310
Maybe it would lose a priority that the lien gives it,
412
00:18:44.310 --> 00:18:46.080
but why would it not be a creditor,
413
00:18:46.080 --> 00:18:48.750
having given the benefits to the decedent?
414
00:18:48.750 --> 00:18:52.380
Because, Your Honor, if the lien dissolves upon death,
415
00:18:52.380 --> 00:18:56.670
MassHealth is not considered to be a creditor
416
00:18:56.670 --> 00:19:00.030
until it files its notice of claim in the probate court.
417
00:19:00.030 --> 00:19:02.400
We know this because if they don't file the notice of claim,
418
00:19:02.400 --> 00:19:03.570
they can't collect.
419
00:19:03.570 --> 00:19:08.433
They cannot file the notice of claim until probate begins.
420
00:19:10.334 --> 00:19:12.870
If an individual does not begin probate
421
00:19:12.870 --> 00:19:14.400
during that one-year period,
422
00:19:14.400 --> 00:19:16.890
MassHealth is prohibited
423
00:19:16.890 --> 00:19:18.660
from appointing a public administrator
424
00:19:18.660 --> 00:19:20.733
for a whole year after the death.
425
00:19:22.350 --> 00:19:26.820
But after that year, they're completely protected, right?
426
00:19:26.820 --> 00:19:30.870
What could happen that would screw MassHealth
427
00:19:30.870 --> 00:19:32.880
out of the money during that year?
428
00:19:32.880 --> 00:19:34.590
I'm trying to understand that.
429
00:19:34.590 --> 00:19:35.423
Certainly, Your Honor.
430
00:19:35.423 --> 00:19:37.140
It could be the case that the property
431
00:19:37.140 --> 00:19:40.800
is subject to tax liens
432
00:19:40.800 --> 00:19:45.570
that then are collected and the estate is foreclosed upon.
433
00:19:45.570 --> 00:19:48.000
And MassHealth not only doesn't have priority,
434
00:19:48.000 --> 00:19:50.280
sometimes they're not even noticed.
435
00:19:50.280 --> 00:19:52.560
It could also be something like a reverse mortgage
436
00:19:52.560 --> 00:19:53.820
that's collected upon.
437
00:19:53.820 --> 00:19:56.190
So, you've got...
438
00:19:56.190 --> 00:20:00.810
Again, 'cause we'll ask your opposing counsel
439
00:20:00.810 --> 00:20:01.680
this very question.
440
00:20:01.680 --> 00:20:03.300
So what's gonna happen?
441
00:20:03.300 --> 00:20:06.630
So there's a tax foreclosure on that property
442
00:20:06.630 --> 00:20:10.200
and MassHealth would somehow lose out.
443
00:20:10.200 --> 00:20:11.040
Is that what you're saying?
444
00:20:11.040 --> 00:20:12.600
That there's that possibility?
445
00:20:12.600 --> 00:20:15.180
Yes, Your Honor, because if MassHealth is not,
446
00:20:15.180 --> 00:20:18.720
if the lien is not in place, MassHealth is not a creditor,
447
00:20:18.720 --> 00:20:21.600
the tax foreclosure occurs, they're not notified,
448
00:20:21.600 --> 00:20:24.960
and the assets from the estate are distributed.
449
00:20:24.960 --> 00:20:26.940
The home assets are distributed.
450
00:20:26.940 --> 00:20:29.490
And so by the time it gets to a state recovery,
451
00:20:29.490 --> 00:20:32.440
there might be nothing left for MassHealth to collect upon.
452
00:20:33.930 --> 00:20:36.090
Thank you very much, Your Honor, as we ask you to reverse.
453
00:20:36.090 --> 00:20:36.993
Okay, thank you.
454
00:20:38.730 --> 00:20:40.030
All right, Attorney Dupuy.
455
00:20:41.640 --> 00:20:42.840
And don't forget that one,
456
00:20:42.840 --> 00:20:44.190
'cause I'd like the answer to that.
457
00:20:44.190 --> 00:20:45.030
Maybe you can start with that.
458
00:20:45.030 --> 00:20:45.863
Yeah.
459
00:20:51.600 --> 00:20:53.350
Good morning, Chief Justice Budd,
460
00:20:54.210 --> 00:20:58.533
and other justices, Matthew Dupuy for the appellee.
461
00:21:01.710 --> 00:21:05.700
MassHealth does not have a problem during that one year.
462
00:21:05.700 --> 00:21:07.950
Think about what the situation is.
463
00:21:07.950 --> 00:21:11.490
The house is in the name of Francis Mason.
464
00:21:11.490 --> 00:21:13.080
It's in her name.
465
00:21:13.080 --> 00:21:13.913
Okay?
466
00:21:17.070 --> 00:21:20.260
The heirs can't do anything with it because
467
00:21:21.420 --> 00:21:23.880
it has to be probated.
468
00:21:23.880 --> 00:21:24.933
They can't sell it.
469
00:21:26.640 --> 00:21:28.440
She passed away.
470
00:21:28.440 --> 00:21:31.350
So if the property is in her estate,
471
00:21:31.350 --> 00:21:33.390
it's just gonna sit there.
472
00:21:33.390 --> 00:21:38.390
Well, she's saying the town of Newton
473
00:21:39.000 --> 00:21:41.283
wants to foreclose on the house.
474
00:21:42.510 --> 00:21:47.510
Is that possible that they can foreclose
475
00:21:48.840 --> 00:21:53.010
without that lien that MassHealth is left holding the bag?
476
00:21:53.010 --> 00:21:55.440
Meaning you and me and the rest of us taxpayers
477
00:21:55.440 --> 00:21:56.370
are left holding the bag?
478
00:21:56.370 --> 00:21:58.533
Or how does that prevent it?
479
00:21:59.820 --> 00:22:02.490
First of all, we're talking real estate taxes,
480
00:22:02.490 --> 00:22:05.280
whether it's five or even 10,000 a year,
481
00:22:05.280 --> 00:22:06.540
in a situation like this,
482
00:22:06.540 --> 00:22:09.390
the person has passed away in the nursing home.
483
00:22:09.390 --> 00:22:11.970
I don't know what the situation is with the real estate,
484
00:22:11.970 --> 00:22:12.803
but,
485
00:22:15.360 --> 00:22:19.440
it's not enough to come close to the value of the property.
486
00:22:19.440 --> 00:22:21.303
So MassHealth is not in danger.
487
00:22:26.070 --> 00:22:27.570
So they are protected.
488
00:22:27.570 --> 00:22:29.850
So MassHealth, that first year,
489
00:22:29.850 --> 00:22:34.850
can sit back and, if no one files an estate,
490
00:22:35.610 --> 00:22:37.833
then they can come in in month 13.
491
00:22:39.780 --> 00:22:41.610
They're totally protected.
492
00:22:41.610 --> 00:22:43.950
It's a red herring, my sister's argument.
493
00:22:43.950 --> 00:22:47.580
Can I ask you one thing that does bother me directly?
494
00:22:47.580 --> 00:22:50.523
It's the language of 32.
495
00:22:52.980 --> 00:22:56.197
So they reference 32J,
496
00:22:58.110 --> 00:23:00.900
they reference the personal representative
497
00:23:00.900 --> 00:23:03.693
and they reference a lien.
498
00:23:04.890 --> 00:23:06.750
Is this just a drafting error?
499
00:23:06.750 --> 00:23:11.750
Why does 32J, if there's no liens allowed,
500
00:23:12.150 --> 00:23:14.643
if liens dissolve on death,
501
00:23:16.470 --> 00:23:19.290
what is 32J talking about?
502
00:23:19.290 --> 00:23:20.123
I don't know.
503
00:23:20.123 --> 00:23:23.040
Is it referencing the MassHealth lien?
504
00:23:23.040 --> 00:23:25.110
Or is it referencing all liens?
505
00:23:25.110 --> 00:23:28.320
Well, it's referencing liens in general,
506
00:23:28.320 --> 00:23:29.940
but I think it also makes a reference
507
00:23:29.940 --> 00:23:31.710
to MassHealth in that section.
508
00:23:31.710 --> 00:23:33.720
Do you have 32J handy?
509
00:23:33.720 --> 00:23:35.340
I...
510
00:23:35.340 --> 00:23:37.413
Not real handy, Your Honor.
Okay.
511
00:23:38.970 --> 00:23:40.590
Sorry about that.
512
00:23:40.590 --> 00:23:43.590
All right, I'll dig up the provision.
513
00:23:43.590 --> 00:23:45.360
We can talk about it more expressly,
514
00:23:45.360 --> 00:23:50.100
but it seems like, to me, that if you're right,
515
00:23:50.100 --> 00:23:53.880
that all liens, these TEFRA liens are gone,
516
00:23:53.880 --> 00:23:58.880
there would be no discussion of liens in 32J
517
00:23:59.280 --> 00:24:03.363
and MassHealth in relation to those liens,
518
00:24:04.590 --> 00:24:08.460
rendering this sort of a drafting error, in your view.
519
00:24:08.460 --> 00:24:11.850
'Cause otherwise it would make sense
520
00:24:11.850 --> 00:24:13.410
to have the liens stay alive,
521
00:24:13.410 --> 00:24:15.610
'cause that would be what it's referring to.
522
00:24:17.280 --> 00:24:20.970
Well, the states have the option.
523
00:24:20.970 --> 00:24:23.220
Mass has opted not to keep it alive.
524
00:24:23.220 --> 00:24:27.660
Well, 32J is a Massachusetts statute, right?
525
00:24:27.660 --> 00:24:29.894
Well, but the MUPC,
526
00:24:29.894 --> 00:24:31.650
it essentially overruled that,
527
00:24:31.650 --> 00:24:36.570
because they want it handled in the estate,
528
00:24:36.570 --> 00:24:38.430
and they want it handled within three years,
529
00:24:38.430 --> 00:24:40.440
and this court wants it handled within three years,
530
00:24:40.440 --> 00:24:42.480
which is the way it should be handled.
531
00:24:42.480 --> 00:24:43.470
Well, that's a separate...
532
00:24:43.470 --> 00:24:44.850
Don't jump around yet,
533
00:24:44.850 --> 00:24:49.110
'cause we will get there, but I'm just trying to...
534
00:24:49.110 --> 00:24:51.120
It would be really helpful if you could give us
535
00:24:51.120 --> 00:24:53.190
an interpretation that makes sense of this,
536
00:24:53.190 --> 00:24:55.920
unless it's just a drafting error.
537
00:24:55.920 --> 00:24:58.170
If it's a drafting error, that's okay,
538
00:24:58.170 --> 00:25:02.613
but it just seems nonsensical to reference it.
539
00:25:04.050 --> 00:25:06.993
Yeah, I'm sorry, I can't answer that, Your Honor.
540
00:25:08.427 --> 00:25:09.420
I would like to talk about-
Let me just
541
00:25:09.420 --> 00:25:10.920
read it to you for a second.
542
00:25:10.920 --> 00:25:11.753
Sure, go ahead.
"If the
543
00:25:11.753 --> 00:25:13.657
"personal representative wishes to sell or transfer
544
00:25:13.657 --> 00:25:15.247
"any real property
545
00:25:15.247 --> 00:25:18.060
"against which the division has filed a lien."
546
00:25:18.060 --> 00:25:20.977
So again, the division has filed a lien or a claim.
547
00:25:20.977 --> 00:25:23.077
"Not yet enforceable,
548
00:25:23.077 --> 00:25:24.847
"because circumstances or conditions
549
00:25:24.847 --> 00:25:27.967
"specified in Section 31 continue to exist
550
00:25:27.967 --> 00:25:30.787
"the division shall release the lien or claim
551
00:25:30.787 --> 00:25:33.090
"if the personal representative agrees to blankety blank."
552
00:25:33.090 --> 00:25:38.090
But, isn't this all unnecessary if a lien,
553
00:25:38.670 --> 00:25:42.093
if MassHealth's lien automatically dissolved on death?
554
00:25:43.260 --> 00:25:45.300
Now I understand, Your Honor.
555
00:25:45.300 --> 00:25:50.000
I don't know when that statute was enacted, but liens...
556
00:25:51.750 --> 00:25:54.960
In the real estate world, if there's a lien there,
557
00:25:54.960 --> 00:25:56.850
it's gonna have to be dealt with.
558
00:25:56.850 --> 00:26:00.840
And the dissolution of the lien is only-
559
00:26:00.840 --> 00:26:04.743
It's the division, in which the division has filed a lien.
560
00:26:06.300 --> 00:26:08.465
Division of MassHealth.
Yeah.
561
00:26:08.465 --> 00:26:09.930
Right.
So but you say
562
00:26:09.930 --> 00:26:14.100
all liens of MassHealth dissolve on death.
563
00:26:14.100 --> 00:26:18.510
If that's the case, this makes no sense, right?
564
00:26:18.510 --> 00:26:22.383
Well, because my statement is 2023,
565
00:26:23.640 --> 00:26:27.510
and it wasn't until 2012
566
00:26:27.510 --> 00:26:30.240
when we first started to look at this issue.
567
00:26:30.240 --> 00:26:33.210
And then, Kendall, we started to look at it more closely.
568
00:26:33.210 --> 00:26:35.700
So it's a difference of timing.
569
00:26:35.700 --> 00:26:39.663
But there are liens out there today, and there's no-
570
00:26:40.620 --> 00:26:45.180
But no, no, Kendall doesn't deal with TEFRA liens.
571
00:26:45.180 --> 00:26:50.180
TEFRA liens have been around for a long, long time.
572
00:26:51.600 --> 00:26:53.760
I mean, I understand all of your argument,
573
00:26:53.760 --> 00:26:57.000
that the TEFRA liens are designed for the sale of the house
574
00:26:57.000 --> 00:26:59.550
while the person's in the institution,
575
00:26:59.550 --> 00:27:02.250
and there's a whole separate process
576
00:27:02.250 --> 00:27:06.600
to use the probate process and you don't need a lien there.
577
00:27:06.600 --> 00:27:11.600
My problem is that 32J kind of makes this mushy and messy,
578
00:27:11.760 --> 00:27:13.830
but you're not really helping me out of
579
00:27:13.830 --> 00:27:16.563
telling me what 32J is talkin' about yet.
580
00:27:18.420 --> 00:27:20.520
That's correct, Your Honor.
Okay.
581
00:27:20.520 --> 00:27:22.640
So on the...
582
00:27:24.210 --> 00:27:26.883
On why the lien dissolves,
583
00:27:27.750 --> 00:27:30.750
we look at the Wells Fargo case,
584
00:27:30.750 --> 00:27:33.540
which talks about the federal statute
585
00:27:33.540 --> 00:27:36.020
and that it's primarily for...
586
00:27:38.430 --> 00:27:40.690
To resolve the situation if the person
587
00:27:43.380 --> 00:27:45.540
leaves the facility,
588
00:27:45.540 --> 00:27:49.560
and the lien is going to be discharged at that time,
589
00:27:49.560 --> 00:27:52.563
or the lien's gonna be paid off if the house is sold.
590
00:27:53.910 --> 00:27:56.340
And-
Again, all that makes,
591
00:27:56.340 --> 00:27:59.610
I completely understand the pre-death process.
592
00:27:59.610 --> 00:28:02.070
You don't want people in these institutions
593
00:28:02.070 --> 00:28:03.510
and then the family selling the home
594
00:28:03.510 --> 00:28:07.170
and then the Commonwealth's left holding the bag.
595
00:28:07.170 --> 00:28:09.870
But, why don't you...
596
00:28:09.870 --> 00:28:13.300
Why couldn't the liens survive and
597
00:28:14.880 --> 00:28:16.440
have it just survive and then
598
00:28:16.440 --> 00:28:18.570
it goes into the probate process?
599
00:28:18.570 --> 00:28:21.780
It could, but Mass has elected not to do that.
600
00:28:21.780 --> 00:28:23.190
And many states have,
601
00:28:23.190 --> 00:28:24.750
but Mass has made the choice
602
00:28:24.750 --> 00:28:26.820
that they'd rather have the estate deal with it.
603
00:28:26.820 --> 00:28:30.063
And what is the evidence of that statement?
604
00:28:31.350 --> 00:28:33.300
It's the state-
'Cause the property
605
00:28:33.300 --> 00:28:35.310
goes into the estate, so-
Correct.
606
00:28:35.310 --> 00:28:37.710
Having the lien attached to the property
607
00:28:37.710 --> 00:28:38.880
going into the estate
608
00:28:38.880 --> 00:28:42.540
still requires MassHealth to go to the estate.
609
00:28:42.540 --> 00:28:46.530
I guess I don't understand your argument that the lien must,
610
00:28:46.530 --> 00:28:51.530
that Mass decided and chose not to have the lien
611
00:28:53.910 --> 00:28:57.000
continue after the beneficiary died.
612
00:28:57.000 --> 00:28:58.650
That's correct, and-
But what is
613
00:28:58.650 --> 00:28:59.490
the evidence of that?
614
00:28:59.490 --> 00:29:01.440
What are you relying on?
615
00:29:01.440 --> 00:29:03.660
Well, the federal statute,
616
00:29:03.660 --> 00:29:04.740
which-
So that wouldn't tell me
617
00:29:04.740 --> 00:29:06.960
what Massachusetts decided.
Okay.
618
00:29:06.960 --> 00:29:11.960
The State Medicaid Manual states that it dissolves.
619
00:29:14.700 --> 00:29:16.890
Where does it say that?
Where does it say that?
620
00:29:16.890 --> 00:29:19.353
It's discussed in the Wells Fargo case.
621
00:29:20.947 --> 00:29:22.020
[Justice Wendlandt] Okay.
622
00:29:22.020 --> 00:29:24.800
Wells Fargo found that a plain text reading
623
00:29:24.800 --> 00:29:28.800
of the statutory code properly dispose of the liens
624
00:29:28.800 --> 00:29:31.410
upon the death of a member.
625
00:29:31.410 --> 00:29:33.990
And further-
Which language
626
00:29:33.990 --> 00:29:36.360
does it rely on to do that?
627
00:29:36.360 --> 00:29:40.830
It relies on, first it relied on the federal statute.
628
00:29:40.830 --> 00:29:44.070
But the federal statute, I think you both agree,
629
00:29:44.070 --> 00:29:45.000
under the federal statute,
630
00:29:45.000 --> 00:29:46.710
you could keep the liens alive, right?
631
00:29:46.710 --> 00:29:48.420
They don't preclude you from keeping alive.
632
00:29:48.420 --> 00:29:49.470
A lot of states do.
633
00:29:49.470 --> 00:29:52.631
We just don't, you argue?
Correct.
634
00:29:52.631 --> 00:29:56.280
So the federal statute gives the option to the state,
635
00:29:56.280 --> 00:29:59.760
and then the State Medicaid Manual,
636
00:29:59.760 --> 00:30:04.760
their policy was to go by way of the estate recovery
637
00:30:04.890 --> 00:30:06.420
and not use the lien.
Can you tell us...
638
00:30:06.420 --> 00:30:10.020
It would be useful if you tell us the provision
639
00:30:10.020 --> 00:30:12.810
in that Medicaid Manual, 'cause I'm not aware of it.
640
00:30:12.810 --> 00:30:16.830
I'm aware of the federal policy brief
641
00:30:16.830 --> 00:30:18.780
that says we don't do that.
642
00:30:18.780 --> 00:30:21.420
But I didn't know that we actually said it
643
00:30:21.420 --> 00:30:23.970
in a Medicaid Manual.
644
00:30:23.970 --> 00:30:26.430
It's not only in the State Medicaid Manual,
645
00:30:26.430 --> 00:30:29.130
but it's been the MassHealth practice.
646
00:30:29.130 --> 00:30:32.160
And what's kind of ironic-
I know you answered
647
00:30:32.160 --> 00:30:34.349
the first question before you move to practice.
648
00:30:34.349 --> 00:30:37.157
Where in the Medicaid Manual does it say that?
649
00:30:37.157 --> 00:30:39.753
'Cause that would be really useful for you.
650
00:30:41.820 --> 00:30:42.753
All right.
651
00:30:51.030 --> 00:30:51.970
That would be
652
00:30:56.070 --> 00:30:58.770
in the Wells Fargo case.
653
00:30:58.770 --> 00:30:59.603
Yeah, but,
654
00:31:00.600 --> 00:31:05.070
the Wells Fargo case may be just interpreting something.
655
00:31:05.070 --> 00:31:06.870
But again, I'll look for...
656
00:31:06.870 --> 00:31:09.180
You've attached the Wells Fargo case here,
657
00:31:09.180 --> 00:31:10.436
have you?
That's correct.
658
00:31:10.436 --> 00:31:14.340
Okay, and,
659
00:31:14.340 --> 00:31:17.343
is the Medicaid Manual attached somewhere in here?
660
00:31:18.450 --> 00:31:21.000
'Cause-
Yes, I believe so.
661
00:31:21.000 --> 00:31:24.210
Okay, so it would be useful if...
662
00:31:24.210 --> 00:31:27.420
I would ask the chief if we could have a 16L letter
663
00:31:27.420 --> 00:31:29.730
that references the particular provision
664
00:31:29.730 --> 00:31:32.820
in the Medicaid Manual that's supposedly in this record,
665
00:31:32.820 --> 00:31:35.130
so that we don't have to dig it up,
666
00:31:35.130 --> 00:31:36.430
that you're talking about.
667
00:31:38.760 --> 00:31:40.050
Sure.
Sure.
668
00:31:40.050 --> 00:31:40.883
Yep.
669
00:31:46.500 --> 00:31:48.060
And what did you describe that as?
670
00:31:48.060 --> 00:31:48.893
A what?
671
00:31:49.800 --> 00:31:50.910
I'm just quoting you.
672
00:31:50.910 --> 00:31:55.710
You said the Medicaid Manual says that,
673
00:31:57.060 --> 00:31:58.800
I guess that these things do not,
674
00:31:58.800 --> 00:32:02.070
that the TEFRA liens do not survive death.
675
00:32:02.070 --> 00:32:02.970
That would be a...
676
00:32:02.970 --> 00:32:05.400
I know that the federal policy brief
677
00:32:05.400 --> 00:32:07.770
says that exact same thing,
678
00:32:07.770 --> 00:32:10.563
but your sister just argued that that's wrong.
679
00:32:12.060 --> 00:32:14.100
But if the State Medicaid Manual
680
00:32:14.100 --> 00:32:17.430
says exactly what the federal policy brief says,
681
00:32:17.430 --> 00:32:19.980
that's a very helpful piece for you,
682
00:32:19.980 --> 00:32:23.760
and I would like to look at it, and I haven't seen it.
683
00:32:23.760 --> 00:32:26.100
Okay, do you want me to do that now, Your Honor?
684
00:32:26.100 --> 00:32:27.480
Or you want me to-
No, no, no.
685
00:32:27.480 --> 00:32:29.520
16L, afterwards.
Afterwards.
686
00:32:29.520 --> 00:32:31.650
16?
It's called a 16L letter.
687
00:32:31.650 --> 00:32:32.820
You send us a letter
688
00:32:32.820 --> 00:32:34.680
after or.
Yes, mm-hm.
689
00:32:34.680 --> 00:32:35.880
Be happy to, Your Honor.
690
00:32:37.740 --> 00:32:41.913
So, the Wells Fargo case,
691
00:32:43.827 --> 00:32:46.200
they follow the federal statute,
692
00:32:46.200 --> 00:32:50.040
State Medicaid Manual, and it also talks about
693
00:32:50.040 --> 00:32:52.320
the MassHealth practice.
694
00:32:52.320 --> 00:32:56.743
And then Chapter 118 section 34 is,
695
00:33:01.590 --> 00:33:02.913
that's also relevant,
696
00:33:06.120 --> 00:33:07.900
in that it discusses
697
00:33:09.967 --> 00:33:13.267
"The division is authorized during an individual's lifetime
698
00:33:13.267 --> 00:33:16.627
"to recover all assistance correctly provided.
699
00:33:16.627 --> 00:33:18.397
"If the property against which the division
700
00:33:18.397 --> 00:33:22.710
"has a lien or a conference under section 34 is sold."
701
00:33:22.710 --> 00:33:24.873
There's no mention that it survives death.
702
00:33:27.180 --> 00:33:31.860
The second issue-
703
00:33:31.860 --> 00:33:34.380
But it seems, again, it seems ambiguous, right?
704
00:33:34.380 --> 00:33:37.050
It doesn't say it survives death,
705
00:33:37.050 --> 00:33:39.270
nor does it say it does not survive death.
706
00:33:39.270 --> 00:33:40.280
It's kind of...
707
00:33:41.250 --> 00:33:43.710
We have to figure that out ourselves, right?
708
00:33:43.710 --> 00:33:44.760
That's correct.
709
00:33:44.760 --> 00:33:47.640
Right, and so I guess my question for you,
710
00:33:47.640 --> 00:33:49.200
following on the heels of that is,
711
00:33:49.200 --> 00:33:54.090
given that the default is liens usually follow property.
712
00:33:54.090 --> 00:33:55.350
They don't dissolve.
713
00:33:55.350 --> 00:33:57.420
They're not in personam, right?
714
00:33:57.420 --> 00:33:58.710
They're in rem.
715
00:33:58.710 --> 00:34:01.170
Why, given that default,
716
00:34:01.170 --> 00:34:05.670
would we read section 34 to expire,
717
00:34:05.670 --> 00:34:07.950
to require the lien to expire
718
00:34:07.950 --> 00:34:10.980
upon the death of the beneficiary?
719
00:34:10.980 --> 00:34:13.110
Because the way Mass handles it.
720
00:34:13.110 --> 00:34:15.273
The second the person dies,
721
00:34:16.290 --> 00:34:17.703
now we have an estate,
722
00:34:18.690 --> 00:34:21.387
and that's where the estate provisions come in,
723
00:34:21.387 --> 00:34:23.280
and MassHealth is protected.
724
00:34:23.280 --> 00:34:26.850
And that's the way that this state chooses to do it.
725
00:34:26.850 --> 00:34:27.810
And it's interesting
726
00:34:27.810 --> 00:34:29.760
that my sister.
Are you saying that
727
00:34:29.760 --> 00:34:34.760
allowing MassHealth to continue to have a lien
728
00:34:35.280 --> 00:34:38.400
on property that's now part of the estate,
729
00:34:38.400 --> 00:34:41.250
would somehow, I don't...
730
00:34:41.250 --> 00:34:42.390
Finish my sentence.
731
00:34:42.390 --> 00:34:44.295
What are you saying?
732
00:34:44.295 --> 00:34:47.220
Couldn't the property go to the estate?
733
00:34:47.220 --> 00:34:50.160
MassHealth continues to have a lien on it,
734
00:34:50.160 --> 00:34:51.990
so that when the property is sold
735
00:34:51.990 --> 00:34:55.500
as part of the distribution of assets of the estate,
736
00:34:55.500 --> 00:34:58.833
MassHealth has priority because of the lien.
737
00:35:00.600 --> 00:35:02.430
Well, they wouldn't have priority,
738
00:35:02.430 --> 00:35:05.160
based upon the statutory,
739
00:35:05.160 --> 00:35:07.353
the seven or eight enumerated items,
740
00:35:08.610 --> 00:35:12.690
post-death expenses, burial.
741
00:35:12.690 --> 00:35:14.640
But couldn't they-
They could live
742
00:35:14.640 --> 00:35:15.927
in the same universe.
Right.
743
00:35:15.927 --> 00:35:18.600
You could still have a lien in a probate.
744
00:35:18.600 --> 00:35:20.019
Yes, they could.
Right?
745
00:35:20.019 --> 00:35:21.150
It still could have a lien.
And it could
746
00:35:21.150 --> 00:35:24.180
follow the statute and be the fifth one in priority.
747
00:35:24.180 --> 00:35:25.650
Right.
748
00:35:25.650 --> 00:35:26.910
Right?
I don't know if they,
749
00:35:26.910 --> 00:35:27.900
it'd be the fifth one.
750
00:35:27.900 --> 00:35:29.820
It might be further down the line.
751
00:35:29.820 --> 00:35:31.195
But regardless-
Right.
752
00:35:31.195 --> 00:35:32.028
[Justice Wendlandt] It's up there.
753
00:35:32.028 --> 00:35:32.861
Correct.
754
00:35:32.861 --> 00:35:36.900
But there's no need...
755
00:35:36.900 --> 00:35:41.163
When the legislature made the statute,
756
00:35:42.210 --> 00:35:43.100
and when they...
757
00:35:45.397 --> 00:35:46.980
And then the federal statute which gave them
758
00:35:46.980 --> 00:35:48.480
the authority to do what they can do,
759
00:35:48.480 --> 00:35:50.613
and they have to be compliant with that,
760
00:35:52.126 --> 00:35:55.490
and then they have the situation where the...
761
00:35:58.080 --> 00:35:59.750
They want the...
762
00:36:03.660 --> 00:36:05.550
They want their fiduciary to handle it.
763
00:36:05.550 --> 00:36:07.620
They want the personal rep.
764
00:36:07.620 --> 00:36:10.810
And it's somewhat
765
00:36:12.450 --> 00:36:15.000
ironic, if you will, that my sister was,
766
00:36:15.000 --> 00:36:20.000
MassHealth has this reluctance to evict someone.
767
00:36:20.760 --> 00:36:21.593
Well,
768
00:36:25.260 --> 00:36:27.240
they don't have to evict someone.
769
00:36:27.240 --> 00:36:28.950
They can reach an agreement with a person
770
00:36:28.950 --> 00:36:31.264
staying in the home that,
771
00:36:31.264 --> 00:36:32.850
all right, you can pay us in three or four years.
772
00:36:32.850 --> 00:36:36.190
They can essentially draft a new contract
773
00:36:37.110 --> 00:36:39.753
in a new lien, if they want to.
774
00:36:40.680 --> 00:36:43.920
So it's ironic that they're arguing
775
00:36:43.920 --> 00:36:45.750
that their lien is still there,
776
00:36:45.750 --> 00:36:48.210
and yet they don't wanna use it.
777
00:36:48.210 --> 00:36:50.360
So I don't...
778
00:36:51.540 --> 00:36:54.873
So MassHealth is basically protected.
779
00:36:55.770 --> 00:37:00.770
And in terms of the, my sister mentioned the incentivized,
780
00:37:03.390 --> 00:37:08.390
there is so many costs associated with keeping a house,
781
00:37:09.591 --> 00:37:13.653
that really is another red herring argument.
782
00:37:21.390 --> 00:37:22.223
So,
783
00:37:23.670 --> 00:37:24.610
essentially
784
00:37:29.926 --> 00:37:31.926
MassHealth is protected,
785
00:37:33.930 --> 00:37:38.430
and I wanna talk about the retroactivity.
786
00:37:38.430 --> 00:37:40.050
Second point.
Oh dear, okay.
787
00:37:40.050 --> 00:37:41.580
So we're a little bit over.
788
00:37:41.580 --> 00:37:45.120
Does anyone have any questions about the retroactivity?
789
00:37:45.120 --> 00:37:47.102
Thank you, Chief.
Is it in your brief, sir?
790
00:37:47.102 --> 00:37:48.003
Yes.