WEBVTT

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<v ->SJC-13514.</v>

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Holly T. Freiner, personal representative

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of the Estate of Costa Tingos

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v. Secretary of Health and Human Services.

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<v ->Okay, Attorney Knudsen, whenever you're ready.</v>

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<v ->May it please the Court.</v>

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Jamie Knudsen on behalf of the appellant,

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the Estate of Costa Tingos.

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Congress and the office of Medicaid's considered view

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is that the institutionalized spouse,

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when applying for MassHealth,

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if they sign their rights to spousal support to MassHealth,

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that that is MassHealth's remedy

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as it relates to MassHealth,

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considering the resources of the community spouse.

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And this really just reflects the fact

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that the applicant is the person applying for MassHealth.

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The spouse is really not the applicant.

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Now, the applicant has a duty for, in this case, himself,

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to provide all the information he has.

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So if they've had their,

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if they shared their financial information

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during their marriage and he can provide that,

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he absolutely has that responsibility.

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This appeal has nothing to do with that.

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There's no dispute in this case

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that Mr. Tingos assigned his rights of support

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to MassHealth.

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There's no dispute.

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<v ->On the, it's patent or latent</v>

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that there's more money here

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and he's only provided what he knows.

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But she's the prime earner.

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She has his power of attorney.

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He's lived with her for 50 years.

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Doesn't, they have a right to probe further.

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And you know, she's not like a dis-, you know,

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a spouse who's runaway.

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And so why isn't their rule reasonable?

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Why isn't this reasonable that we need to find out

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whether there are more assets here?

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And your client didn't do enough

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and why isn't it reasonable?

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<v ->Well, Your Honor, there was a lot of probing since 2015</v>

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as we had three fair hearings

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and three Superior Court appeals and he did supply.

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And the reason why, in this case,

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MassHealth knows they've extrapolated, it's in their brief,

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it's in all their briefs.

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They know Mrs. Tingos had

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probably a couple hundred thousand dollars.

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They're extracting that from the tax records

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that my client provided.

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<v Justice Kafker>Right.</v>

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<v ->So they have that information.</v>

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<v ->And she's his power of attorney.</v>

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And she's, you know, she, I,

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the rule you seem to be pushing for

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to me would invite every single,

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you know, everyone could do this.

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We're basically saying, "Oh, I'm not cooperating."

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You know, and therefore you,

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the state will take on the burden of this instead of, again,

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the state is stepping in when you're desperate.

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It's not supposed to be stepping in when you have resources.

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I just don't see how what you're pushing for

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wouldn't create a rule where everyone's gonna do this.

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<v ->Well, Your Honor, the statute and the regulation</v>

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have been in place for a long time.

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<v ->And you've been a, your lawyering is more creative</v>

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than people in the past and we're,

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you're inviting something that's highly problematic

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and maybe exactly why we should have this rule.

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<v ->Well, Your Honor, it is not my rule, okay?</v>

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And it is not even my creative lawyering.

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This is the statute, this is the federal statute.

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<v ->Right, so let's get down to the statute.</v>

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The statute says that you have to disclose,

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the institutionalized spouse,

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must disclose all the assets

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of the institutionalized spouse, the marital assets,

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and the community spouse.

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Right, and that's when assignment is sufficient.

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In the absence of the disclosure,

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which as I understand it is the case here,

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assigning is insufficient.

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And that makes a lot of sense

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because if MassHealth is told precisely the resources

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that are available to pursue the community spouse

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for spousal support, then it need not waste resources.

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And it can do a cost benefit analysis

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on whether or not it can expect to get

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some of the money back.

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<v ->But, so first, is that in the federal statute,</v>

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and I do think it's important,

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we're gonna need to talk about the federal statute

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and the state regulation, because the state regulation.

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<v ->But let's start with the federal statute</v>

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where you're starting.
<v Jamie>Okay.</v>

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Go ahead.

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<v ->But the federal statute is that there's nothing that says</v>

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MassHealth needs to be able to do a cost benefit analysis.

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It says if the institutionalized spouse

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assigns the support rights.

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Through that.

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<v ->Well, it says, "The institutionalized spouse shall not</v>

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"be ineligible by reason of resources

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"determined under paragraph two,"

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which are the three sets of resources

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that I just delineated.

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<v Jamie>Yes.</v>

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<v ->And here, the third set,</v>

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the community spouse's assets have not been disclosed.

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<v ->And that's because the applicant</v>

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doesn't have the information, right?

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<v ->Right and so quite nicely,</v>

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MassHealth has a separate regulation

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that deals with that scenario.

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<v ->Right.</v>

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And I would say the assigning the right of support

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gives MassHealth the ability to get that information.

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In other words, the discovery process

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in the complaint for support.

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They had the ability to get the resources

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that are determined.

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<v ->But if there's nothing there, why start the suit?</v>

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That's why I don't understand.

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MassHealth's position seems eminently reasonable.

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Let us know what the pool of money is

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and then we can start the discovery process

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and pursue the community spouse.

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In the absence of that information

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it's a gamble on the people's dime.

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<v ->But that is that, but that is Congress's determination.</v>

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<v ->But that's why I taught,</v>

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you went back to the words of the statute,

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Congress's determination is that

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"The institutionalized spouse shall not be ineligible

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"by reason of the three sets of resources

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"disclosed by the institutionalized spouse."

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And here, there hasn't been that disclosure.

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<v ->Well, there has been that disclosure</v>

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to the extent that MassHealth knows because,

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and they've put it in their briefs,

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they understand it because it was in the tax records.

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They don't know exactly how much,

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but they know it was hundreds of thousands of dollars.

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They did their own extrapolation.

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They said at a minimum it's $110,000.

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It might be as much as $366,000,

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based on the tax records that we provided.

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So they weren't, they aren't in the dark

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about that in this case.

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<v ->But they don't know the, I, Justice Wendlandt's question,</v>

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they don't know the resources determined to be available

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without more cooperation, right?

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You know?

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<v ->Right, but they have the right</v>

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of the spousal support action.

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There's no, to just say that's meaningless,

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which is what MassHealth is trying to do.

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<v ->I don't think they're saying it's meaningless.</v>

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They're, yes, they can sue and, you know, start chasing,

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but again, they don't know, as Justice Wendlandt said,

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whether there's anything there there.

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This, by doing it up front, one, they're creating leverage

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to make sure they know all the resources determined.

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So it just seems like a reasonable gap filling

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of the federal language.

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<v ->Well, Your Honor, I, so, and again,</v>

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so we can talk about the federal statute

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in the sense that it doesn't explicitly

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address what happens if a spouse refuses

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to provide their financial information?

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But MassHealth has had a regulation for a long time,

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which specifically addresses this.

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And again, and I do think it's important, Your Honor,

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that there, this is the language of prohibition,

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which this Court has acknowledged in Mason and other cases

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said that a spouse, or excuse me,

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that the institutionalized spouse

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shall not be ineligible for benefits.

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So in reading the regulation,

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"An institutionalized spouse whose community spouse

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"refuses to cooperate, will not be ineligible

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"due to his or her inability to provide information

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"concerning the assets of the community spouse

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"when one of the following conditions exists."

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<v ->Right, so that</v>
<v ->That refusal.</v>

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begs the question of what it means to refuse to cooperate.

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Is it refuse to cooperate in providing the financials

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that are required by the federal statute

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or is it a greater act?

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And I'd like to give you an opportunity to address that.

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<v ->Well, I think the regulation is clear</v>

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in that it is, connects in those sentences,

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the community spouse refuses to cooperate,

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and as a result of that, has the inability

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to provide the financial information.

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So it's the community spouse.

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<v ->Well, that's one of the results.</v>

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So you're saying refusing to cooperate

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means the inability of obtaining financial information

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from the community spouse?

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<v ->Yes.</v>

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But that connection is there in the regulation itself.

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<v ->But that refusal to cooperate language is in the preamble</v>

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of the regulation 517.011, right?

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<v ->No.</v>

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<v ->Yeah, it says, "An institutionalized spouse</v>

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"whose community spouse refuses to cooperate."

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And then it has Section A that says,

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"...assets determined to be available."

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<v Jamie>Right, or.</v>

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<v ->That's the comparable of the federal statute,</v>

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right, Section A.

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<v ->Correct, correct.</v>

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But then, or not, you know, clearly not and,

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or B, "...his or her inability to provide the information

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"concerning the assets of the community spouse."

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So the refusal to cooperate is in the context

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of this MassHealth application and results in the inability

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to provide the information.

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<v ->Right, it results in the inability</v>

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to provide the information, but it also applies

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to when the information is available, right?

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<v ->That, absolutely.</v>

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<v ->Okay, so it can't be limited to the situation</v>

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where the community spouse doesn't provide the information.

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<v ->Correct.</v>

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And so spouses could, right,

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so a spouse could provide all,

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a community spouse, I should say,

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again, who is not the applicant, could decide,

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I'm gonna provide all this information

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and then just say, "I'm not going to,

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"but I'm not gonna actually make any of my resources

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"available to the institutionalized spouse."

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And MassHealth has its remedy

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through the assignment of support rights.

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So, and I know there's a num-, you know, there's,

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it's been referenced here.

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It's been referenced certainly in MassHealth's brief,

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it's been referenced in a number of cases

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that the fact that this is a program for the needy

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is why there shouldn't be rules that allow wealthy people,

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I mean, just to be clear, right?

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Because that's not what these resources were,

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are devoted for.

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But this is not that case.

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This is a revenue neutral case for MassHealth

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because they have the rights of support.

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<v ->Well, it's not really revenue neutral, right,</v>

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because the way you want interpret it

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is the community spouse is going to get free nursing care,

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free nursing home care, whatever, right?

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It's gonna, even though these people are wealthy,

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in my hypothetical, maybe not your case,

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00:12:48.240 --> 00:12:51.360
even though they're wealthy, that community,

260
00:12:51.360 --> 00:12:52.560
the institutionalized spouse

261
00:12:52.560 --> 00:12:54.660
will start getting care right away, right?

262
00:12:55.500 --> 00:12:56.333
<v Jamie>Yes.</v>

263
00:12:56.333 --> 00:12:58.650
<v ->And then they've gotta sue the wealthy spouse.</v>

264
00:12:58.650 --> 00:13:01.560
So I mean, that's not revenue.

265
00:13:01.560 --> 00:13:05.700
It may work out that way couple years later,

266
00:13:05.700 --> 00:13:09.180
but it's different, right?

267
00:13:09.180 --> 00:13:11.700
That's why having that leverage up front

268
00:13:11.700 --> 00:13:16.380
changes the dynamic that you're paying for that care

269
00:13:16.380 --> 00:13:19.440
until you get to the next step, right?

270
00:13:19.440 --> 00:13:22.800
<v ->Yes, but they can bring a complaint for spousal support.</v>

271
00:13:22.800 --> 00:13:26.640
<v ->A wealthy person is going to be receiving, again,</v>

272
00:13:26.640 --> 00:13:28.803
in my hypothetical, not yours,

273
00:13:30.240 --> 00:13:34.800
and under your wealthy people are very good about that.

274
00:13:34.800 --> 00:13:37.980
So how does that make sense

275
00:13:37.980 --> 00:13:40.950
given this is a statute for the poor

276
00:13:40.950 --> 00:13:43.740
and people without assets, right?

277
00:13:43.740 --> 00:13:47.010
<v ->Because Congress and the Office of Medicaid</v>

278
00:13:47.010 --> 00:13:50.070
has said that this is MassHealth's remedy

279
00:13:50.070 --> 00:13:51.681
to deal with this situation.

280
00:13:51.681 --> 00:13:52.514
<v ->It.</v>

281
00:13:52.514 --> 00:13:54.057
<v ->But again, well, only if we interpret the statute</v>

282
00:13:54.057 --> 00:13:57.480
and the regulation in the way that you're suggesting.

283
00:13:57.480 --> 00:14:00.720
In the way that MassHealth is suggesting an interpretation,

284
00:14:00.720 --> 00:14:03.030
it doesn't have that perverse outcome

285
00:14:03.030 --> 00:14:04.863
that Justice Kafker's talking about.

286
00:14:06.210 --> 00:14:07.785
<v ->Well, I would, I.</v>

287
00:14:07.785 --> 00:14:09.300
<v ->[Justice Wendlandt] How is that unreasonable?</v>

288
00:14:09.300 --> 00:14:12.030
<v ->I would say I'm not interpreting the statute.</v>

289
00:14:12.030 --> 00:14:15.090
The statute, so the spouse, there,

290
00:14:15.090 --> 00:14:17.610
it is undisputed in this case

291
00:14:17.610 --> 00:14:19.890
that Mrs. Tingos did not cooperate

292
00:14:19.890 --> 00:14:21.870
by providing her financial information.

293
00:14:21.870 --> 00:14:25.680
MassHealth is merely making a public policy statement

294
00:14:25.680 --> 00:14:27.780
and preaching a sermon to Mrs. Tingos,

295
00:14:27.780 --> 00:14:30.810
and I'm not exaggerating that,

296
00:14:30.810 --> 00:14:34.890
in the fair hearing officer's hearing that this, they,

297
00:14:34.890 --> 00:14:36.990
their argument is, if you are married

298
00:14:36.990 --> 00:14:40.830
and you've gotten any mutual benefit out of this marriage,

299
00:14:40.830 --> 00:14:44.280
you, and they're really saying it to Mrs. Tingos,

300
00:14:44.280 --> 00:14:47.054
those spouses must cooperate.

301
00:14:47.054 --> 00:14:50.130
That is completely against the statute.

302
00:14:50.130 --> 00:14:51.701
And I will say this.

303
00:14:51.701 --> 00:14:52.534
<v ->The best argument is that</v>

304
00:14:52.534 --> 00:14:57.534
they've missed their artfully changing refuses to cooperate.

305
00:14:57.930 --> 00:15:02.930
'Cause refuses to, she's, your community spouse here

306
00:15:03.000 --> 00:15:04.710
is not cooperating in your view.

307
00:15:04.710 --> 00:15:06.690
Is a, in plain language,

308
00:15:06.690 --> 00:15:10.020
she's refusing to turn over the goods

309
00:15:10.020 --> 00:15:11.370
and they're sort of ignoring that.

310
00:15:11.370 --> 00:15:13.110
That's your best argument, right?

311
00:15:13.110 --> 00:15:14.970
That they're, I mean,

312
00:15:14.970 --> 00:15:18.480
I don't follow your federal argument very well

313
00:15:18.480 --> 00:15:21.383
because of what Justice Wendlandt points out is

314
00:15:21.383 --> 00:15:24.840
it assumes that the assets are disclosed.

315
00:15:24.840 --> 00:15:28.680
But refu-, MassHealth is changing somewhat

316
00:15:28.680 --> 00:15:30.180
the meaning of refuses to cooperate,

317
00:15:30.180 --> 00:15:32.640
at least from its natural meaning, right?

318
00:15:32.640 --> 00:15:33.663
<v ->Absolutely.</v>

319
00:15:38.580 --> 00:15:41.310
And again, and I will say at the second fair hearing,

320
00:15:41.310 --> 00:15:43.320
the hearing officer found that Mrs. Tingos

321
00:15:43.320 --> 00:15:44.340
had refused to cooperate.

322
00:15:44.340 --> 00:15:46.290
MassHealth essentially admits it in the brief.

323
00:15:46.290 --> 00:15:48.150
They, she has refused to cooperate

324
00:15:48.150 --> 00:15:50.190
by providing her financial assets.

325
00:15:50.190 --> 00:15:54.570
And by the way, I, it is worth reading the affidavit

326
00:15:54.570 --> 00:15:56.943
from Mrs. Tingos, and the,

327
00:15:58.290 --> 00:16:02.460
which were part of the analysis of the hearing officer.

328
00:16:02.460 --> 00:16:04.560
This is extensive as to exactly

329
00:16:04.560 --> 00:16:06.360
why their assets were separate.

330
00:16:06.360 --> 00:16:07.650
They weren't just separated

331
00:16:07.650 --> 00:16:09.360
like right before the application.

332
00:16:09.360 --> 00:16:11.130
This is not some creative defense.

333
00:16:11.130 --> 00:16:14.430
He had a serious gambling and addiction problem,

334
00:16:14.430 --> 00:16:15.263
according to her.

335
00:16:15.263 --> 00:16:16.830
None of that is disputed.

336
00:16:16.830 --> 00:16:19.323
And they filed joint tax returns.

337
00:16:20.430 --> 00:16:23.250
And she, because he was paralyzed,

338
00:16:23.250 --> 00:16:25.080
she had to act as his power of attorney

339
00:16:25.080 --> 00:16:27.477
to write bills and to deal with things.

340
00:16:27.477 --> 00:16:29.640
<v ->Did she actually do the application?</v>

341
00:16:29.640 --> 00:16:30.966
<v ->Absolutely not, Your Honor.</v>

342
00:16:30.966 --> 00:16:31.799
<v ->[Justice Wendlandt] Oh, okay, that was what.</v>

343
00:16:31.799 --> 00:16:32.670
<v ->And that is all in the record.</v>

344
00:16:32.670 --> 00:16:37.670
Mr. Tingos did the application, testified at the hearings,

345
00:16:39.570 --> 00:16:44.570
did everything, did his own efforts regarding all of that.

346
00:16:44.610 --> 00:16:45.990
I know that my time is out.

347
00:16:45.990 --> 00:16:48.810
I would ask the Court to reverse the judgment

348
00:16:48.810 --> 00:16:52.590
and order MassHealth not to deem Mr. Tingos ineligible

349
00:16:52.590 --> 00:16:55.833
because of Mrs. Tingos' refusal cooperate.

350
00:16:55.833 --> 00:16:56.733
<v ->Okay, thank you.</v>

351
00:16:57.630 --> 00:16:58.863
Attorney Bolanos.

352
00:17:01.710 --> 00:17:03.750
<v ->Good morning, may it please the Court.</v>

353
00:17:03.750 --> 00:17:07.290
Assistant Attorney General Cassandra Bolanos for MassHealth.

354
00:17:07.290 --> 00:17:09.630
I'd first like to address the interpretation

355
00:17:09.630 --> 00:17:13.200
of refusal to cooperate in the regulation.

356
00:17:13.200 --> 00:17:16.740
The regulation does not precisely spell out

357
00:17:16.740 --> 00:17:19.110
what refusal to cooperate means.

358
00:17:19.110 --> 00:17:21.743
And so this is certainly a case where.

359
00:17:21.743 --> 00:17:26.190
<v ->It does seem like she's refusing to cooperate, right?</v>

360
00:17:26.190 --> 00:17:30.570
You're basically saying an institutional spouse

361
00:17:30.570 --> 00:17:33.640
whose community spouse could cooperate and doesn't

362
00:17:35.280 --> 00:17:37.830
will not be ineligible due to, right?

363
00:17:37.830 --> 00:17:41.820
I mean, you're, I understand the practical consequences

364
00:17:41.820 --> 00:17:43.830
that everyone's gonna not cooperate if,

365
00:17:43.830 --> 00:17:46.410
unless you dig deeper into that.

366
00:17:46.410 --> 00:17:49.710
But it is hard to say that this is,

367
00:17:49.710 --> 00:17:53.580
the community spouse here is refusing to co-.

368
00:17:53.580 --> 00:17:57.139
I mean, she is refusing to cooperate.

369
00:17:57.139 --> 00:18:01.530
<v ->She's refusing to cooperate on the MassHealth application</v>

370
00:18:01.530 --> 00:18:02.670
or with MassHealth.

371
00:18:02.670 --> 00:18:05.700
But it's an eminently reasonable and natural reading

372
00:18:05.700 --> 00:18:09.720
to read this as a community spouse who refuses to cooperate

373
00:18:09.720 --> 00:18:11.850
with the institutionalized spouse

374
00:18:11.850 --> 00:18:14.925
and the record doesn't support a lack of cooperation.

375
00:18:14.925 --> 00:18:18.967
<v ->Just, do, walk me, so let's read through the regulation.</v>

376
00:18:18.967 --> 00:18:21.487
"An institutionalized spouse whose community spouse

377
00:18:21.487 --> 00:18:24.457
"refuses to cooperate or whose whereabouts is unknown

378
00:18:24.457 --> 00:18:27.367
"will not be ineligible due to his or her inability

379
00:18:27.367 --> 00:18:29.250
"to provide information concerning the asset."

380
00:18:29.250 --> 00:18:32.703
Isn't the cooperation related to the assets?

381
00:18:34.770 --> 00:18:36.960
I mean, it's sort of a normal reading.

382
00:18:36.960 --> 00:18:39.510
Again, I see the practical problems and.

383
00:18:39.510 --> 00:18:40.590
<v ->Right.</v>

384
00:18:40.590 --> 00:18:44.100
Well, his or her inability to provide information.

385
00:18:44.100 --> 00:18:49.100
The, conceptually, where the spouse is not cooperating

386
00:18:49.200 --> 00:18:50.730
with the institutionalized spouse,

387
00:18:50.730 --> 00:18:53.520
that's what prevents him from providing the information

388
00:18:53.520 --> 00:18:54.353
to MassHealth.

389
00:18:54.353 --> 00:18:57.660
And here, there wasn't evidence of non-cooperation

390
00:18:57.660 --> 00:19:00.180
as between the two spouses where Mr. Tingos

391
00:19:00.180 --> 00:19:01.830
testified at the second fair hearing

392
00:19:01.830 --> 00:19:04.800
that he's never asked her for this information

393
00:19:04.800 --> 00:19:07.470
and he's never discussed her refusal.

394
00:19:07.470 --> 00:19:10.230
<v ->You know, MassHealth is not looking at their marriage</v>

395
00:19:10.230 --> 00:19:11.253
as a whole, right?

396
00:19:12.110 --> 00:19:14.760
He wasn't a cooperative spouse or, you know,

397
00:19:14.760 --> 00:19:18.120
she wasn't a cooperative spouse, she was a difficult spouse.

398
00:19:18.120 --> 00:19:19.920
That's not what we're really looking at, right?

399
00:19:19.920 --> 00:19:23.763
We're really looking at cooperation in this process, right?

400
00:19:25.800 --> 00:19:30.360
<v ->It can't just be reasonably construed as cooperation</v>

401
00:19:30.360 --> 00:19:31.320
in this process

402
00:19:31.320 --> 00:19:35.910
because that then permits a spouse to cooperate

403
00:19:35.910 --> 00:19:37.770
up until the point of the application

404
00:19:37.770 --> 00:19:41.070
and then to opt out of the eligibility requirements.

405
00:19:41.070 --> 00:19:42.150
<v ->Right, that's the problem.</v>

406
00:19:42.150 --> 00:19:44.700
Which is everybody's gonna do this

407
00:19:44.700 --> 00:19:47.040
if you can take care of your spouse

408
00:19:47.040 --> 00:19:51.930
up until the day where you can dump the spouse with,

409
00:19:51.930 --> 00:19:53.730
you know.
<v Cassandra>Right.</v>

410
00:19:53.730 --> 00:19:56.040
They're all gonna, and keep your money,

411
00:19:56.040 --> 00:19:57.639
no one's gonna do this.

412
00:19:57.639 --> 00:20:01.375
<v ->There's no limiting principle to the appellant's</v>

413
00:20:01.375 --> 00:20:03.360
interpretation of this language.

414
00:20:03.360 --> 00:20:04.957
<v ->He's saying go chase 'em then.</v>

415
00:20:04.957 --> 00:20:08.190
You know, just when you got that kind of

416
00:20:08.190 --> 00:20:12.038
sort of slick behavior, go sue them.

417
00:20:12.038 --> 00:20:14.370
And I take it you could do that, right?

418
00:20:14.370 --> 00:20:19.370
<v ->Well, so one, it contravenes the federal and state mandate</v>

419
00:20:20.040 --> 00:20:22.140
that MassHealth is a payer of last resort.

420
00:20:22.140 --> 00:20:25.500
So it turns it, the regulatory and legislative design

421
00:20:25.500 --> 00:20:26.490
on its head.

422
00:20:26.490 --> 00:20:27.720
<v ->Upfront it does, right?</v>

423
00:20:27.720 --> 00:20:30.240
I mean it, meaning that you have to start paying them

424
00:20:30.240 --> 00:20:32.400
until you can
<v Cassandra>Right.</v>

425
00:20:32.400 --> 00:20:34.470
identify the assets and.

426
00:20:34.470 --> 00:20:35.303
<v Cassandra>Right.</v>

427
00:20:35.303 --> 00:20:38.670
<v ->I get, but I take it you could pay yourself back and.</v>

428
00:20:38.670 --> 00:20:39.503
<v ->It depends.</v>

429
00:20:39.503 --> 00:20:41.430
Even I'm not sure where it is in the record

430
00:20:41.430 --> 00:20:45.450
where MassHealth estimated that her assets

431
00:20:45.450 --> 00:20:47.640
are worth $110,000 to $360K,

432
00:20:47.640 --> 00:20:49.405
but that actually makes a material difference

433
00:20:49.405 --> 00:20:51.810
because in 2024,

434
00:20:51.810 --> 00:20:55.140
the community spouse resource allowance is $154,000.

435
00:20:55.140 --> 00:21:00.140
So in that case, they'd pursue litigation on taxpayers' dime

436
00:21:00.480 --> 00:21:02.190
and wouldn't be able to recoup anything.

437
00:21:02.190 --> 00:21:07.080
If it's 360, they would be able to recoup something.

438
00:21:07.080 --> 00:21:10.200
And, you know, I don't think that I,

439
00:21:10.200 --> 00:21:11.640
I'm not an expert in family law,

440
00:21:11.640 --> 00:21:14.490
but I don't think that the remedy is the panacea

441
00:21:14.490 --> 00:21:16.500
that appellant says it is.

442
00:21:16.500 --> 00:21:20.700
This would be MassHealth stepping into Mr. Tingos' shoes

443
00:21:20.700 --> 00:21:25.350
saying that there is a grounds for spousal support

444
00:21:25.350 --> 00:21:27.840
of a married individual.

445
00:21:27.840 --> 00:21:30.750
And, you know, I did some search

446
00:21:30.750 --> 00:21:32.880
and the provision that I found that.

447
00:21:32.880 --> 00:21:35.130
<v ->Well, you must, I mean, it's a federal statute.</v>

448
00:21:35.130 --> 00:21:37.680
You must have the power to chase this money, right?

449
00:21:37.680 --> 00:21:38.880
I mean.

450
00:21:38.880 --> 00:21:41.970
<v ->Well, CMS guidance on the federal provision,</v>

451
00:21:41.970 --> 00:21:43.980
which, I think the Court agrees,

452
00:21:43.980 --> 00:21:45.407
does not apply to the situation

453
00:21:45.407 --> 00:21:48.407
'cause it presumes that assets have already been disclosed

454
00:21:48.407 --> 00:21:53.100
says that the, what support rights are available

455
00:21:53.100 --> 00:21:54.600
is a question of state law.

456
00:21:54.600 --> 00:21:57.360
And here, spousal support and alimony

457
00:21:57.360 --> 00:22:00.633
is a creature of statute and it's limited by statute.

458
00:22:01.890 --> 00:22:03.990
And so the provision that I found

459
00:22:03.990 --> 00:22:07.593
that would most likely apply is Section 32 of chapter 209,

460
00:22:08.880 --> 00:22:10.258
which provides for.

461
00:22:10.258 --> 00:22:14.163
<v ->You're not questioning your ability to pursue this, right?</v>

462
00:22:15.420 --> 00:22:18.000
<v ->Well, I'm certainly not saying</v>

463
00:22:18.000 --> 00:22:20.370
that MassHealth has no available remedy,

464
00:22:20.370 --> 00:22:25.110
but MassHealth would be in a position to, you know,

465
00:22:25.110 --> 00:22:27.600
establish grounds for spousal support.

466
00:22:27.600 --> 00:22:29.190
And in some cases it does require

467
00:22:29.190 --> 00:22:32.520
establishing marital offenses such as abandonment

468
00:22:32.520 --> 00:22:37.260
or, you know, showing justifiable costs to live separately.

469
00:22:37.260 --> 00:22:39.000
And that's not what we have here.

470
00:22:39.000 --> 00:22:41.190
We have quite the opposite.

471
00:22:41.190 --> 00:22:45.870
It seems that Mrs. Tingos largely supported Mr. Tingos

472
00:22:45.870 --> 00:22:48.510
financially and in the home that she owned

473
00:22:48.510 --> 00:22:50.550
up until he went into nursing home care.

474
00:22:50.550 --> 00:22:55.470
So this is not, that's why the exception is construed

475
00:22:55.470 --> 00:22:59.490
reasonably and narrowly to really capture those situations

476
00:22:59.490 --> 00:23:02.630
where the information and the resources

477
00:23:02.630 --> 00:23:04.560
of the community spouse are not,

478
00:23:04.560 --> 00:23:06.150
are legitimately not available

479
00:23:06.150 --> 00:23:07.750
to the institutionalized spouse.

480
00:23:09.000 --> 00:23:09.917
And I can.

481
00:23:09.917 --> 00:23:12.900
<v ->Can I, so just to close the loop on refuse to cooperate.</v>

482
00:23:12.900 --> 00:23:15.877
So you ask us to read, "An institutionalized spouse

483
00:23:15.877 --> 00:23:19.770
"whose community spouse refuses to cooperate," with what?

484
00:23:19.770 --> 00:23:23.670
What is the language that's implicit in that, just for us?

485
00:23:23.670 --> 00:23:28.430
So when we write this up your way, if we do so, what,

486
00:23:28.430 --> 00:23:31.080
how are we going to, what missing words

487
00:23:31.080 --> 00:23:33.933
are we putting in there to make this make sense?

488
00:23:35.610 --> 00:23:40.170
<v ->I think it is a refusal to cooperate between the spouses.</v>

489
00:23:40.170 --> 00:23:44.580
It can't just be the spouses associate together

490
00:23:44.580 --> 00:23:46.410
for mutual benefit for many years

491
00:23:46.410 --> 00:23:49.620
and then there is this discreet lack of cooperation

492
00:23:49.620 --> 00:23:52.170
on the application with MassHealth.

493
00:23:52.170 --> 00:23:54.960
<v ->So that tells us how not to define it, right?</v>

494
00:23:54.960 --> 00:23:58.410
Refuses to cooperate is not when the sole act

495
00:23:58.410 --> 00:24:01.863
of non-cooperation is the failure to disclose

496
00:24:01.863 --> 00:24:04.533
that the community spouses financials.

497
00:24:05.760 --> 00:24:06.593
<v ->Right.</v>

498
00:24:06.593 --> 00:24:10.440
<v ->Right, so how do we affirmatively respond to or define</v>

499
00:24:10.440 --> 00:24:12.810
refuses to cooperate?

500
00:24:12.810 --> 00:24:15.213
<v ->I don't think that there are,</v>

501
00:24:16.290 --> 00:24:18.150
that this can be categorical.

502
00:24:18.150 --> 00:24:21.540
I think MassHealth and the Board, in particular,

503
00:24:21.540 --> 00:24:24.120
has interpreted it reasonably

504
00:24:24.120 --> 00:24:28.230
based on a fact-specific application.

505
00:24:28.230 --> 00:24:32.070
And I can give examples of other Board decisions

506
00:24:32.070 --> 00:24:35.040
where they have found that the exception applies

507
00:24:35.040 --> 00:24:37.620
to show how it varies based on the facts.

508
00:24:37.620 --> 00:24:42.620
But in one case, at record volume five, pages four to seven,

509
00:24:43.170 --> 00:24:45.570
the couple lived separately for 21 years,

510
00:24:45.570 --> 00:24:47.280
filed separate tax returns,

511
00:24:47.280 --> 00:24:49.807
and maintained "separate finances, assets,

512
00:24:49.807 --> 00:24:52.020
"households, and lives."

513
00:24:52.020 --> 00:24:54.390
In the decision that follows it,

514
00:24:54.390 --> 00:24:58.530
the Board found that the applicant and community spouse

515
00:24:58.530 --> 00:25:01.533
were estranged and maintained separate households.

516
00:25:02.550 --> 00:25:04.260
In another case that was a little different,

517
00:25:04.260 --> 00:25:07.497
the applicant herself lacked capacity

518
00:25:07.497 --> 00:25:09.930
to obtain the information due to dementia.

519
00:25:09.930 --> 00:25:12.483
The community spouse also had some,

520
00:25:13.650 --> 00:25:15.810
also suffered from some cognitive issues

521
00:25:15.810 --> 00:25:17.580
and he had moved out of state.

522
00:25:17.580 --> 00:25:20.580
So you have closer to a case of abandonment.

523
00:25:20.580 --> 00:25:24.660
But you know, what the application of this refusal

524
00:25:24.660 --> 00:25:27.570
to cooperate language is capturing

525
00:25:27.570 --> 00:25:31.710
is where the resources are legitimately not available

526
00:25:31.710 --> 00:25:33.933
to the institutionalized spouse such that.

527
00:25:35.130 --> 00:25:38.460
<v ->How does this, if we say refuses to cooperate,</v>

528
00:25:38.460 --> 00:25:41.070
is something akin to what you're,

529
00:25:41.070 --> 00:25:44.850
the examples you've delineated,

530
00:25:44.850 --> 00:25:47.640
how does that square with the federal statute

531
00:25:47.640 --> 00:25:50.400
to which MassHealth needs to comply?

532
00:25:50.400 --> 00:25:51.780
Right and the federal statute,

533
00:25:51.780 --> 00:25:55.203
if the community spouse discloses the assets,

534
00:25:55.203 --> 00:25:58.260
then a simple assignment is sufficient.

535
00:25:58.260 --> 00:26:01.950
It seems like MassHealth is adding an extra layer

536
00:26:01.950 --> 00:26:02.913
on top of that.

537
00:26:07.201 --> 00:26:10.770
<v ->It's adding a layer on top of it</v>

538
00:26:10.770 --> 00:26:12.690
for the failure to disclose.

539
00:26:12.690 --> 00:26:13.980
<v ->No, it's not, actually.</v>

540
00:26:13.980 --> 00:26:15.960
I mean, if you look at the regulation,

541
00:26:15.960 --> 00:26:20.130
that does come at the preamble of both Sections A and B.

542
00:26:20.130 --> 00:26:23.670
So refuses to cooperate is part of Section A,

543
00:26:23.670 --> 00:26:26.700
which is the comparable to the federal statute.

544
00:26:26.700 --> 00:26:28.080
<v ->That's right, I.</v>

545
00:26:28.080 --> 00:26:31.124
<v ->And so how does that, I guess, how do we deal with that?</v>

546
00:26:31.124 --> 00:26:36.124
MassHealth as a state agency is adding an element

547
00:26:36.150 --> 00:26:39.303
that is absent in the federal statute?

548
00:26:40.770 --> 00:26:42.830
<v ->Certainly Subsection A, as you know,</v>

549
00:26:42.830 --> 00:26:45.210
is not at issue in this case, but I.

550
00:26:45.210 --> 00:26:48.180
<v ->No, but it is in that the preamble</v>

551
00:26:48.180 --> 00:26:49.680
applies to both A and B.

552
00:26:49.680 --> 00:26:51.660
And if we interpreted

553
00:26:51.660 --> 00:26:52.703
the preamble
<v Cassandra>Right.</v>

554
00:26:52.703 --> 00:26:55.533
the way you suggest, it affects A.

555
00:26:56.730 --> 00:26:57.563
<v ->Right.</v>

556
00:26:57.563 --> 00:26:59.580
I'd say in the scenario of A,

557
00:26:59.580 --> 00:27:02.040
where there's a clear federal provision

558
00:27:02.040 --> 00:27:04.330
that says shall not be ineligible

559
00:27:05.897 --> 00:27:08.400
where the resources have been determined,

560
00:27:08.400 --> 00:27:09.990
where there's an assignment of rights,

561
00:27:09.990 --> 00:27:11.670
MassHealth would comply

562
00:27:11.670 --> 00:27:13.530
with the language of the federal provision.

563
00:27:13.530 --> 00:27:15.181
And I've confirmed that that's with the policy.

564
00:27:15.181 --> 00:27:19.710
<v ->This is a case where the regulation needs to be rewritten</v>

565
00:27:19.710 --> 00:27:23.940
because, in effect, what the state agency has done

566
00:27:23.940 --> 00:27:27.840
is undermine the federal program

567
00:27:27.840 --> 00:27:30.333
that Congress had in mind under the MCCA.

568
00:27:31.470 --> 00:27:34.658
<v ->Certainly not as to Subsection B.</v>

569
00:27:34.658 --> 00:27:35.491
<v ->[Justice Wendlandt] Right.</v>

570
00:27:35.491 --> 00:27:36.324
<v ->Because B preserved.</v>

571
00:27:36.324 --> 00:27:38.910
<v ->So if the preamble came before Subsection B</v>

572
00:27:38.910 --> 00:27:42.447
or was embedded in Subsection B, I think you're right.

573
00:27:42.447 --> 00:27:46.200
But I think the problem is that the regulation as written

574
00:27:46.200 --> 00:27:50.490
makes A subject to that refusal to cooperate.

575
00:27:50.490 --> 00:27:52.590
And it's not something that's been briefed.

576
00:27:52.590 --> 00:27:55.350
And with the permission of the Chief,

577
00:27:55.350 --> 00:27:57.720
if that's something that you can address in a 16L letter,

578
00:27:57.720 --> 00:27:59.580
that would be great.
<v Chief Justice>Yes.</v>

579
00:27:59.580 --> 00:28:04.290
In addition, I noticed that Subsections one, two, and three

580
00:28:04.290 --> 00:28:06.780
only seem to apply to Subsection B.

581
00:28:06.780 --> 00:28:11.010
So I mean, it seems like the whole regulation was not,

582
00:28:11.010 --> 00:28:13.170
there's some sort of error in the regulation

583
00:28:13.170 --> 00:28:18.170
because at least if you look at A,

584
00:28:18.360 --> 00:28:20.520
all that needs to be done is that

585
00:28:20.520 --> 00:28:23.990
there is a determination of all the assets

586
00:28:23.990 --> 00:28:26.810
of the couple without an assignment.

587
00:28:26.810 --> 00:28:28.320
<v Cassandra>Right, right.</v>

588
00:28:28.320 --> 00:28:29.526
<v ->[Justice Wendlandt] Which is not what the federal.</v>

589
00:28:29.526 --> 00:28:30.359
<v ->Which is not the intention.</v>

590
00:28:30.359 --> 00:28:32.550
I'd say that error is more akin to scrivener's errors,

591
00:28:32.550 --> 00:28:35.250
but I acknowledge the difficulty there.

592
00:28:35.250 --> 00:28:38.070
<v ->Right, it seems like there's a few in the regulation.</v>

593
00:28:38.070 --> 00:28:39.690
So it would be great if you could address

594
00:28:39.690 --> 00:28:41.083
how we resolve that.

595
00:28:41.083 --> 00:28:42.030
<v Cassandra>Yeah.</v>

596
00:28:42.030 --> 00:28:45.255
<v ->'Cause we don't usually rewrite statutes and regulations.</v>

597
00:28:45.255 --> 00:28:47.580
<v ->Right.</v>
<v ->Right.</v>

598
00:28:47.580 --> 00:28:49.230
I understand.

599
00:28:49.230 --> 00:28:51.897
<v ->But can you read the refusal to cooper-,</v>

600
00:28:53.856 --> 00:28:58.260
the fed's contemplate the disclosure of the assets

601
00:28:58.260 --> 00:29:01.470
and can you read the refusal to cooperate

602
00:29:01.470 --> 00:29:04.110
as not being inconsistent with it,

603
00:29:04.110 --> 00:29:08.267
but sort of explaining a situation

604
00:29:08.267 --> 00:29:11.100
of why you don't know the assets?

605
00:29:11.100 --> 00:29:12.990
So it's consistent with the,

606
00:29:12.990 --> 00:29:16.503
I don't see them as being necessarily inconsistent.

607
00:29:18.870 --> 00:29:23.100
I see them as it's, although they're not,

608
00:29:23.100 --> 00:29:24.870
they're not saying the exact same thing,

609
00:29:24.870 --> 00:29:28.390
but the feds assume that you've determined the assets

610
00:29:29.550 --> 00:29:33.420
and then they allow you to go chase them.

611
00:29:33.420 --> 00:29:36.930
But here you can't determine the assets

612
00:29:36.930 --> 00:29:39.240
'cause the spouse is not providing

613
00:29:39.240 --> 00:29:40.740
the financial information you need.

614
00:29:40.740 --> 00:29:44.073
So I got, I dunno if that was a question or a mulling, but.

615
00:29:45.030 --> 00:29:45.863
<v ->Right.</v>

616
00:29:45.863 --> 00:29:48.000
Here, and that's why the federal provision

617
00:29:48.000 --> 00:29:51.630
does not contemplate or apply at all to this situation

618
00:29:51.630 --> 00:29:56.550
because the entire federal scheme presumes full disclosure.

619
00:29:56.550 --> 00:30:01.110
There's no exception whatsoever in the federal law

620
00:30:01.110 --> 00:30:03.900
for a failure to disclose or cooperate

621
00:30:03.900 --> 00:30:04.950
in the application process.

622
00:30:04.950 --> 00:30:07.020
It's something that state Medicaid agencies

623
00:30:07.020 --> 00:30:09.374
who are on the ground implementing this program

624
00:30:09.374 --> 00:30:14.374
have confronted and many of them have adopted an approach

625
00:30:14.610 --> 00:30:16.230
similar to that of MassHealth.

626
00:30:16.230 --> 00:30:20.010
<v ->And do many of the use this refusal to cooperate language</v>

627
00:30:20.010 --> 00:30:23.733
or do they have their own better articulation of this?

628
00:30:25.350 --> 00:30:27.270
<v ->Certainly a lot of states</v>

629
00:30:27.270 --> 00:30:30.990
actually have narrower exceptions than MassHealth.

630
00:30:30.990 --> 00:30:34.770
But a lot of them do use refusal to cooperate,

631
00:30:34.770 --> 00:30:38.610
including Delaware, where they say

632
00:30:38.610 --> 00:30:40.650
that they must consider all assets

633
00:30:40.650 --> 00:30:42.570
unless the couple has been separated

634
00:30:42.570 --> 00:30:45.480
and in two households for at least 12 months

635
00:30:45.480 --> 00:30:47.340
preceding the need for nursing home care

636
00:30:47.340 --> 00:30:50.490
and the community spouse is uncooperative

637
00:30:50.490 --> 00:30:51.900
or his whereabouts are unknown.

638
00:30:51.900 --> 00:30:56.700
And that's Delaware Regulation 5100-2900.

639
00:31:00.900 --> 00:31:04.980
Connecticut also permits an assignment of support rights if,

640
00:31:04.980 --> 00:31:06.990
only if the institutionalized person

641
00:31:06.990 --> 00:31:08.850
cannot locate the community spouse

642
00:31:08.850 --> 00:31:12.540
or the community spouse is unable to provide information

643
00:31:12.540 --> 00:31:13.680
concerning his or her assets.

644
00:31:13.680 --> 00:31:15.393
So there it's narrower.

645
00:31:17.100 --> 00:31:22.087
<v ->What's the comparable state statute for 517.011?</v>

646
00:31:23.280 --> 00:31:25.260
<v ->The comparable state, there's no,</v>

647
00:31:25.260 --> 00:31:26.730
this is just a regulation.

648
00:31:26.730 --> 00:31:30.750
I don't think there's a statute that has this exception.

649
00:31:30.750 --> 00:31:35.490
Of course, 520.016 is the,

650
00:31:35.490 --> 00:31:38.820
and that's the regulation that implements the federal scheme

651
00:31:38.820 --> 00:31:43.083
for determining eligibility for institutionalized spouses.

652
00:31:45.990 --> 00:31:49.050
I'd also like to mention that appellant's interpretation

653
00:31:49.050 --> 00:31:52.590
would undermine the main purpose of the MCCA

654
00:31:52.590 --> 00:31:55.350
that enacted this entire regulatory scheme

655
00:31:55.350 --> 00:31:59.190
'cause their Congress was trying to ensure

656
00:31:59.190 --> 00:32:00.893
that couples with sufficient means

657
00:32:00.893 --> 00:32:04.440
contributed their fair share towards long-term care costs

658
00:32:04.440 --> 00:32:08.163
and that assets weren't sheltered with the community spouse.

659
00:32:09.450 --> 00:32:13.710
Because before the MCCA was enacted, Congress only,

660
00:32:13.710 --> 00:32:15.140
most states only considered jointly held assets.

661
00:32:15.140 --> 00:32:18.360
And though, so this permitted states,

662
00:32:18.360 --> 00:32:21.870
couples with ample means to shelter assets

663
00:32:21.870 --> 00:32:22.890
with the community spouse.

664
00:32:22.890 --> 00:32:25.620
And this appellant's interpretation of this regulation

665
00:32:25.620 --> 00:32:27.690
would essentially open up that loophole.

666
00:32:27.690 --> 00:32:31.170
<v ->But can I ask you, Chief, with your permission,</v>

667
00:32:31.170 --> 00:32:33.330
why that, I don't understand that argument?

668
00:32:33.330 --> 00:32:35.530
Because it seems like the federal statute

669
00:32:37.140 --> 00:32:40.650
just contemplates disclosure and if the state,

670
00:32:40.650 --> 00:32:42.997
and once disclosed, the state agency can say,

671
00:32:42.997 --> 00:32:46.310
"Aha, it's worthwhile going after Mrs. Tingos,"

672
00:32:46.310 --> 00:32:49.350
in this case, because she has sufficient assets.

673
00:32:49.350 --> 00:32:53.400
It still allows the sheltering of the assets.

674
00:32:53.400 --> 00:32:56.580
It's just requires that those sheltered assets be disclosed

675
00:32:56.580 --> 00:32:58.803
and it's up to the agency to go after them.

676
00:33:01.290 --> 00:33:02.123
<v ->Right.</v>

677
00:33:02.123 --> 00:33:04.200
That, but here, the sheltering happens

678
00:33:04.200 --> 00:33:06.750
before the state even knows what's there.

679
00:33:06.750 --> 00:33:11.460
And so there's extra cost to figuring it out

680
00:33:11.460 --> 00:33:12.990
and determining whether or not.

681
00:33:12.990 --> 00:33:15.120
<v ->Right, no, I agree with you that the state regulation</v>

682
00:33:15.120 --> 00:33:18.840
is dealing with a situation that the federal Congress

683
00:33:18.840 --> 00:33:20.190
didn't deal with.

684
00:33:20.190 --> 00:33:21.660
But your argument, I thought,

685
00:33:21.660 --> 00:33:25.350
was that this would undermine Congress's purpose.

686
00:33:25.350 --> 00:33:27.210
And you know, my response was,

687
00:33:27.210 --> 00:33:28.290
I don't really understand that

688
00:33:28.290 --> 00:33:30.600
because Congress's purpose is just, okay,

689
00:33:30.600 --> 00:33:31.890
you wanna go shelter, shelter,

690
00:33:31.890 --> 00:33:34.353
but at least tell us what the assets are.

691
00:33:35.220 --> 00:33:36.960
<v ->But this takes it even further</v>

692
00:33:36.960 --> 00:33:39.420
where everyone could essentially just opt out,

693
00:33:39.420 --> 00:33:41.400
forget about the community resource allowance,

694
00:33:41.400 --> 00:33:44.370
forget about that intricate formula and process.

695
00:33:44.370 --> 00:33:46.470
And you opt out at an earlier phase

696
00:33:46.470 --> 00:33:48.720
where there's just no disclosure

697
00:33:48.720 --> 00:33:51.420
and the state agency doesn't know what's on the table.

698
00:33:53.610 --> 00:33:56.400
We'd ask this Court to affirm this was a,

699
00:33:56.400 --> 00:33:59.430
MassHealth has reasonably interpreted its own regulation.

700
00:33:59.430 --> 00:34:01.620
That regulation was applied appropriately

701
00:34:01.620 --> 00:34:03.192
to the facts of this case.

702
00:34:03.192 --> 00:34:04.113
Thank you.