-: SJC-13514.
Holly T. Freiner, personal representative
of the Estate of Costa Tingos
v. Secretary of Health and Human Services.
-: Okay, Attorney Knudsen, whenever you're ready.
-: May it please the Court.
Jamie Knudsen on behalf of the appellant,
the Estate of Costa Tingos.
Congress and the office of Medicaid's considered view
is that the institutionalized spouse,
when applying for MassHealth,
if they sign their rights to spousal support to MassHealth,
that that is MassHealth's remedy
as it relates to MassHealth,
considering the resources of the community spouse.
And this really just reflects the fact
that the applicant is the person applying for MassHealth.
The spouse is really not the applicant.
Now, the applicant has a duty for, in this case, himself,
to provide all the information he has.
So if they've had their,
if they shared their financial information
during their marriage and he can provide that,
he absolutely has that responsibility.
This appeal has nothing to do with that.
There's no dispute in this case
that Mr. Tingos assigned his rights of support
to MassHealth.
There's no dispute.
-: On the, it's patent or latent
that there's more money here
and he's only provided what he knows.
But she's the prime earner.
She has his power of attorney.
He's lived with her for 50 years.
Doesn't, they have a right to probe further.
And you know, she's not like a dis-, you know,
a spouse who's runaway.
And so why isn't their rule reasonable?
Why isn't this reasonable that we need to find out
whether there are more assets here?
And your client didn't do enough
and why isn't it reasonable?
-: Well, Your Honor, there was a lot of probing since 2015
as we had three fair hearings
and three Superior Court appeals and he did supply.
And the reason why, in this case,
MassHealth knows they've extrapolated, it's in their brief,
it's in all their briefs.
They know Mrs. Tingos had
probably a couple hundred thousand dollars.
They're extracting that from the tax records
that my client provided.
Justice Kafker: Right.
-: So they have that information.
-: And she's his power of attorney.
And she's, you know, she, I,
the rule you seem to be pushing for
to me would invite every single,
you know, everyone could do this.
We're basically saying, "Oh, I'm not cooperating."
You know, and therefore you,
the state will take on the burden of this instead of, again,
the state is stepping in when you're desperate.
It's not supposed to be stepping in when you have resources.
I just don't see how what you're pushing for
wouldn't create a rule where everyone's gonna do this.
-: Well, Your Honor, the statute and the regulation
have been in place for a long time.
-: And you've been a, your lawyering is more creative
than people in the past and we're,
you're inviting something that's highly problematic
and maybe exactly why we should have this rule.
-: Well, Your Honor, it is not my rule, okay?
And it is not even my creative lawyering.
This is the statute, this is the federal statute.
-: Right, so let's get down to the statute.
The statute says that you have to disclose,
the institutionalized spouse,
must disclose all the assets
of the institutionalized spouse, the marital assets,
and the community spouse.
Right, and that's when assignment is sufficient.
In the absence of the disclosure,
which as I understand it is the case here,
assigning is insufficient.
And that makes a lot of sense
because if MassHealth is told precisely the resources
that are available to pursue the community spouse
for spousal support, then it need not waste resources.
And it can do a cost benefit analysis
on whether or not it can expect to get
some of the money back.
-: But, so first, is that in the federal statute,
and I do think it's important,
we're gonna need to talk about the federal statute
and the state regulation, because the state regulation.
-: But let's start with the federal statute
where you're starting. Jamie: Okay.
Go ahead.
-: But the federal statute is that there's nothing that says
MassHealth needs to be able to do a cost benefit analysis.
It says if the institutionalized spouse
assigns the support rights.
Through that.
-: Well, it says, "The institutionalized spouse shall not
"be ineligible by reason of resources
"determined under paragraph two,"
which are the three sets of resources
that I just delineated.
Jamie: Yes.
-: And here, the third set,
the community spouse's assets have not been disclosed.
-: And that's because the applicant
doesn't have the information, right?
-: Right and so quite nicely,
MassHealth has a separate regulation
that deals with that scenario.
-: Right.
And I would say the assigning the right of support
gives MassHealth the ability to get that information.
In other words, the discovery process
in the complaint for support.
They had the ability to get the resources
that are determined.
-: But if there's nothing there, why start the suit?
That's why I don't understand.
MassHealth's position seems eminently reasonable.
Let us know what the pool of money is
and then we can start the discovery process
and pursue the community spouse.
In the absence of that information
it's a gamble on the people's dime.
-: But that is that, but that is Congress's determination.
-: But that's why I taught,
you went back to the words of the statute,
Congress's determination is that
"The institutionalized spouse shall not be ineligible
"by reason of the three sets of resources
"disclosed by the institutionalized spouse."
And here, there hasn't been that disclosure.
-: Well, there has been that disclosure
to the extent that MassHealth knows because,
and they've put it in their briefs,
they understand it because it was in the tax records.
They don't know exactly how much,
but they know it was hundreds of thousands of dollars.
They did their own extrapolation.
They said at a minimum it's $110,000.
It might be as much as $366,000,
based on the tax records that we provided.
So they weren't, they aren't in the dark
about that in this case.
-: But they don't know the, I, Justice Wendlandt's question,
they don't know the resources determined to be available
without more cooperation, right?
You know?
-: Right, but they have the right
of the spousal support action.
There's no, to just say that's meaningless,
which is what MassHealth is trying to do.
-: I don't think they're saying it's meaningless.
They're, yes, they can sue and, you know, start chasing,
but again, they don't know, as Justice Wendlandt said,
whether there's anything there there.
This, by doing it up front, one, they're creating leverage
to make sure they know all the resources determined.
So it just seems like a reasonable gap filling
of the federal language.
-: Well, Your Honor, I, so, and again,
so we can talk about the federal statute
in the sense that it doesn't explicitly
address what happens if a spouse refuses
to provide their financial information?
But MassHealth has had a regulation for a long time,
which specifically addresses this.
And again, and I do think it's important, Your Honor,
that there, this is the language of prohibition,
which this Court has acknowledged in Mason and other cases
said that a spouse, or excuse me,
that the institutionalized spouse
shall not be ineligible for benefits.
So in reading the regulation,
"An institutionalized spouse whose community spouse
"refuses to cooperate, will not be ineligible
"due to his or her inability to provide information
"concerning the assets of the community spouse
"when one of the following conditions exists."
-: Right, so that -: That refusal.
begs the question of what it means to refuse to cooperate.
Is it refuse to cooperate in providing the financials
that are required by the federal statute
or is it a greater act?
And I'd like to give you an opportunity to address that.
-: Well, I think the regulation is clear
in that it is, connects in those sentences,
the community spouse refuses to cooperate,
and as a result of that, has the inability
to provide the financial information.
So it's the community spouse.
-: Well, that's one of the results.
So you're saying refusing to cooperate
means the inability of obtaining financial information
from the community spouse?
-: Yes.
But that connection is there in the regulation itself.
-: But that refusal to cooperate language is in the preamble
of the regulation 517.011, right?
-: No.
-: Yeah, it says, "An institutionalized spouse
"whose community spouse refuses to cooperate."
And then it has Section A that says,
"...assets determined to be available."
Jamie: Right, or.
-: That's the comparable of the federal statute,
right, Section A.
-: Correct, correct.
But then, or not, you know, clearly not and,
or B, "...his or her inability to provide the information
"concerning the assets of the community spouse."
So the refusal to cooperate is in the context
of this MassHealth application and results in the inability
to provide the information.
-: Right, it results in the inability
to provide the information, but it also applies
to when the information is available, right?
-: That, absolutely.
-: Okay, so it can't be limited to the situation
where the community spouse doesn't provide the information.
-: Correct.
And so spouses could, right,
so a spouse could provide all,
a community spouse, I should say,
again, who is not the applicant, could decide,
I'm gonna provide all this information
and then just say, "I'm not going to,
"but I'm not gonna actually make any of my resources
"available to the institutionalized spouse."
And MassHealth has its remedy
through the assignment of support rights.
So, and I know there's a num-, you know, there's,
it's been referenced here.
It's been referenced certainly in MassHealth's brief,
it's been referenced in a number of cases
that the fact that this is a program for the needy
is why there shouldn't be rules that allow wealthy people,
I mean, just to be clear, right?
Because that's not what these resources were,
are devoted for.
But this is not that case.
This is a revenue neutral case for MassHealth
because they have the rights of support.
-: Well, it's not really revenue neutral, right,
because the way you want interpret it
is the community spouse is going to get free nursing care,
free nursing home care, whatever, right?
It's gonna, even though these people are wealthy,
in my hypothetical, maybe not your case,
even though they're wealthy, that community,
the institutionalized spouse
will start getting care right away, right?
Jamie: Yes.
-: And then they've gotta sue the wealthy spouse.
So I mean, that's not revenue.
It may work out that way couple years later,
but it's different, right?
That's why having that leverage up front
changes the dynamic that you're paying for that care
until you get to the next step, right?
-: Yes, but they can bring a complaint for spousal support.
-: A wealthy person is going to be receiving, again,
in my hypothetical, not yours,
and under your wealthy people are very good about that.
So how does that make sense
given this is a statute for the poor
and people without assets, right?
-: Because Congress and the Office of Medicaid
has said that this is MassHealth's remedy
to deal with this situation.
-: It.
-: But again, well, only if we interpret the statute
and the regulation in the way that you're suggesting.
In the way that MassHealth is suggesting an interpretation,
it doesn't have that perverse outcome
that Justice Kafker's talking about.
-: Well, I would, I.
-: [Justice Wendlandt] How is that unreasonable?
-: I would say I'm not interpreting the statute.
The statute, so the spouse, there,
it is undisputed in this case
that Mrs. Tingos did not cooperate
by providing her financial information.
MassHealth is merely making a public policy statement
and preaching a sermon to Mrs. Tingos,
and I'm not exaggerating that,
in the fair hearing officer's hearing that this, they,
their argument is, if you are married
and you've gotten any mutual benefit out of this marriage,
you, and they're really saying it to Mrs. Tingos,
those spouses must cooperate.
That is completely against the statute.
And I will say this.
-: The best argument is that
they've missed their artfully changing refuses to cooperate.
'Cause refuses to, she's, your community spouse here
is not cooperating in your view.
Is a, in plain language,
she's refusing to turn over the goods
and they're sort of ignoring that.
That's your best argument, right?
That they're, I mean,
I don't follow your federal argument very well
because of what Justice Wendlandt points out is
it assumes that the assets are disclosed.
But refu-, MassHealth is changing somewhat
the meaning of refuses to cooperate,
at least from its natural meaning, right?
-: Absolutely.
And again, and I will say at the second fair hearing,
the hearing officer found that Mrs. Tingos
had refused to cooperate.
MassHealth essentially admits it in the brief.
They, she has refused to cooperate
by providing her financial assets.
And by the way, I, it is worth reading the affidavit
from Mrs. Tingos, and the,
which were part of the analysis of the hearing officer.
This is extensive as to exactly
why their assets were separate.
They weren't just separated
like right before the application.
This is not some creative defense.
He had a serious gambling and addiction problem,
according to her.
None of that is disputed.
And they filed joint tax returns.
And she, because he was paralyzed,
she had to act as his power of attorney
to write bills and to deal with things.
-: Did she actually do the application?
-: Absolutely not, Your Honor.
-: [Justice Wendlandt] Oh, okay, that was what.
-: And that is all in the record.
Mr. Tingos did the application, testified at the hearings,
did everything, did his own efforts regarding all of that.
I know that my time is out.
I would ask the Court to reverse the judgment
and order MassHealth not to deem Mr. Tingos ineligible
because of Mrs. Tingos' refusal cooperate.
-: Okay, thank you.
Attorney Bolanos.
-: Good morning, may it please the Court.
Assistant Attorney General Cassandra Bolanos for MassHealth.
I'd first like to address the interpretation
of refusal to cooperate in the regulation.
The regulation does not precisely spell out
what refusal to cooperate means.
And so this is certainly a case where.
-: It does seem like she's refusing to cooperate, right?
You're basically saying an institutional spouse
whose community spouse could cooperate and doesn't
will not be ineligible due to, right?
I mean, you're, I understand the practical consequences
that everyone's gonna not cooperate if,
unless you dig deeper into that.
But it is hard to say that this is,
the community spouse here is refusing to co-.
I mean, she is refusing to cooperate.
-: She's refusing to cooperate on the MassHealth application
or with MassHealth.
But it's an eminently reasonable and natural reading
to read this as a community spouse who refuses to cooperate
with the institutionalized spouse
and the record doesn't support a lack of cooperation.
-: Just, do, walk me, so let's read through the regulation.
"An institutionalized spouse whose community spouse
"refuses to cooperate or whose whereabouts is unknown
"will not be ineligible due to his or her inability
"to provide information concerning the asset."
Isn't the cooperation related to the assets?
I mean, it's sort of a normal reading.
Again, I see the practical problems and.
-: Right.
Well, his or her inability to provide information.
The, conceptually, where the spouse is not cooperating
with the institutionalized spouse,
that's what prevents him from providing the information
to MassHealth.
And here, there wasn't evidence of non-cooperation
as between the two spouses where Mr. Tingos
testified at the second fair hearing
that he's never asked her for this information
and he's never discussed her refusal.
-: You know, MassHealth is not looking at their marriage
as a whole, right?
He wasn't a cooperative spouse or, you know,
she wasn't a cooperative spouse, she was a difficult spouse.
That's not what we're really looking at, right?
We're really looking at cooperation in this process, right?
-: It can't just be reasonably construed as cooperation
in this process
because that then permits a spouse to cooperate
up until the point of the application
and then to opt out of the eligibility requirements.
-: Right, that's the problem.
Which is everybody's gonna do this
if you can take care of your spouse
up until the day where you can dump the spouse with,
you know. Cassandra: Right.
They're all gonna, and keep your money,
no one's gonna do this.
-: There's no limiting principle to the appellant's
interpretation of this language.
-: He's saying go chase 'em then.
You know, just when you got that kind of
sort of slick behavior, go sue them.
And I take it you could do that, right?
-: Well, so one, it contravenes the federal and state mandate
that MassHealth is a payer of last resort.
So it turns it, the regulatory and legislative design
on its head.
-: Upfront it does, right?
I mean it, meaning that you have to start paying them
until you can Cassandra: Right.
identify the assets and.
Cassandra: Right.
-: I get, but I take it you could pay yourself back and.
-: It depends.
Even I'm not sure where it is in the record
where MassHealth estimated that her assets
are worth $110,000 to $360K,
but that actually makes a material difference
because in 2024,
the community spouse resource allowance is $154,000.
So in that case, they'd pursue litigation on taxpayers' dime
and wouldn't be able to recoup anything.
If it's 360, they would be able to recoup something.
And, you know, I don't think that I,
I'm not an expert in family law,
but I don't think that the remedy is the panacea
that appellant says it is.
This would be MassHealth stepping into Mr. Tingos' shoes
saying that there is a grounds for spousal support
of a married individual.
And, you know, I did some search
and the provision that I found that.
-: Well, you must, I mean, it's a federal statute.
You must have the power to chase this money, right?
I mean.
-: Well, CMS guidance on the federal provision,
which, I think the Court agrees,
does not apply to the situation
'cause it presumes that assets have already been disclosed
says that the, what support rights are available
is a question of state law.
And here, spousal support and alimony
is a creature of statute and it's limited by statute.
And so the provision that I found
that would most likely apply is Section 32 of chapter 209,
which provides for.
-: You're not questioning your ability to pursue this, right?
-: Well, I'm certainly not saying
that MassHealth has no available remedy,
but MassHealth would be in a position to, you know,
establish grounds for spousal support.
And in some cases it does require
establishing marital offenses such as abandonment
or, you know, showing justifiable costs to live separately.
And that's not what we have here.
We have quite the opposite.
It seems that Mrs. Tingos largely supported Mr. Tingos
financially and in the home that she owned
up until he went into nursing home care.
So this is not, that's why the exception is construed
reasonably and narrowly to really capture those situations
where the information and the resources
of the community spouse are not,
are legitimately not available
to the institutionalized spouse.
And I can.
-: Can I, so just to close the loop on refuse to cooperate.
So you ask us to read, "An institutionalized spouse
"whose community spouse refuses to cooperate," with what?
What is the language that's implicit in that, just for us?
So when we write this up your way, if we do so, what,
how are we going to, what missing words
are we putting in there to make this make sense?
-: I think it is a refusal to cooperate between the spouses.
It can't just be the spouses associate together
for mutual benefit for many years
and then there is this discreet lack of cooperation
on the application with MassHealth.
-: So that tells us how not to define it, right?
Refuses to cooperate is not when the sole act
of non-cooperation is the failure to disclose
that the community spouses financials.
-: Right.
-: Right, so how do we affirmatively respond to or define
refuses to cooperate?
-: I don't think that there are,
that this can be categorical.
I think MassHealth and the Board, in particular,
has interpreted it reasonably
based on a fact-specific application.
And I can give examples of other Board decisions
where they have found that the exception applies
to show how it varies based on the facts.
But in one case, at record volume five, pages four to seven,
the couple lived separately for 21 years,
filed separate tax returns,
and maintained "separate finances, assets,
"households, and lives."
In the decision that follows it,
the Board found that the applicant and community spouse
were estranged and maintained separate households.
In another case that was a little different,
the applicant herself lacked capacity
to obtain the information due to dementia.
The community spouse also had some,
also suffered from some cognitive issues
and he had moved out of state.
So you have closer to a case of abandonment.
But you know, what the application of this refusal
to cooperate language is capturing
is where the resources are legitimately not available
to the institutionalized spouse such that.
-: How does this, if we say refuses to cooperate,
is something akin to what you're,
the examples you've delineated,
how does that square with the federal statute
to which MassHealth needs to comply?
Right and the federal statute,
if the community spouse discloses the assets,
then a simple assignment is sufficient.
It seems like MassHealth is adding an extra layer
on top of that.
-: It's adding a layer on top of it
for the failure to disclose.
-: No, it's not, actually.
I mean, if you look at the regulation,
that does come at the preamble of both Sections A and B.
So refuses to cooperate is part of Section A,
which is the comparable to the federal statute.
-: That's right, I.
-: And so how does that, I guess, how do we deal with that?
MassHealth as a state agency is adding an element
that is absent in the federal statute?
-: Certainly Subsection A, as you know,
is not at issue in this case, but I.
-: No, but it is in that the preamble
applies to both A and B.
And if we interpreted
the preamble Cassandra: Right.
the way you suggest, it affects A.
-: Right.
I'd say in the scenario of A,
where there's a clear federal provision
that says shall not be ineligible
where the resources have been determined,
where there's an assignment of rights,
MassHealth would comply
with the language of the federal provision.
And I've confirmed that that's with the policy.
-: This is a case where the regulation needs to be rewritten
because, in effect, what the state agency has done
is undermine the federal program
that Congress had in mind under the MCCA.
-: Certainly not as to Subsection B.
-: [Justice Wendlandt] Right.
-: Because B preserved.
-: So if the preamble came before Subsection B
or was embedded in Subsection B, I think you're right.
But I think the problem is that the regulation as written
makes A subject to that refusal to cooperate.
And it's not something that's been briefed.
And with the permission of the Chief,
if that's something that you can address in a 16L letter,
that would be great. Chief Justice: Yes.
In addition, I noticed that Subsections one, two, and three
only seem to apply to Subsection B.
So I mean, it seems like the whole regulation was not,
there's some sort of error in the regulation
because at least if you look at A,
all that needs to be done is that
there is a determination of all the assets
of the couple without an assignment.
Cassandra: Right, right.
-: [Justice Wendlandt] Which is not what the federal.
-: Which is not the intention.
I'd say that error is more akin to scrivener's errors,
but I acknowledge the difficulty there.
-: Right, it seems like there's a few in the regulation.
So it would be great if you could address
how we resolve that.
Cassandra: Yeah.
-: 'Cause we don't usually rewrite statutes and regulations.
-: Right. -: Right.
I understand.
-: But can you read the refusal to cooper-,
the fed's contemplate the disclosure of the assets
and can you read the refusal to cooperate
as not being inconsistent with it,
but sort of explaining a situation
of why you don't know the assets?
So it's consistent with the,
I don't see them as being necessarily inconsistent.
I see them as it's, although they're not,
they're not saying the exact same thing,
but the feds assume that you've determined the assets
and then they allow you to go chase them.
But here you can't determine the assets
'cause the spouse is not providing
the financial information you need.
So I got, I dunno if that was a question or a mulling, but.
-: Right.
Here, and that's why the federal provision
does not contemplate or apply at all to this situation
because the entire federal scheme presumes full disclosure.
There's no exception whatsoever in the federal law
for a failure to disclose or cooperate
in the application process.
It's something that state Medicaid agencies
who are on the ground implementing this program
have confronted and many of them have adopted an approach
similar to that of MassHealth.
-: And do many of the use this refusal to cooperate language
or do they have their own better articulation of this?
-: Certainly a lot of states
actually have narrower exceptions than MassHealth.
But a lot of them do use refusal to cooperate,
including Delaware, where they say
that they must consider all assets
unless the couple has been separated
and in two households for at least 12 months
preceding the need for nursing home care
and the community spouse is uncooperative
or his whereabouts are unknown.
And that's Delaware Regulation 5100-2900.
Connecticut also permits an assignment of support rights if,
only if the institutionalized person
cannot locate the community spouse
or the community spouse is unable to provide information
concerning his or her assets.
So there it's narrower.
-: What's the comparable state statute for 517.011?
-: The comparable state, there's no,
this is just a regulation.
I don't think there's a statute that has this exception.
Of course, 520.016 is the,
and that's the regulation that implements the federal scheme
for determining eligibility for institutionalized spouses.
I'd also like to mention that appellant's interpretation
would undermine the main purpose of the MCCA
that enacted this entire regulatory scheme
'cause their Congress was trying to ensure
that couples with sufficient means
contributed their fair share towards long-term care costs
and that assets weren't sheltered with the community spouse.
Because before the MCCA was enacted, Congress only,
most states only considered jointly held assets.
And though, so this permitted states,
couples with ample means to shelter assets
with the community spouse.
And this appellant's interpretation of this regulation
would essentially open up that loophole.
-: But can I ask you, Chief, with your permission,
why that, I don't understand that argument?
Because it seems like the federal statute
just contemplates disclosure and if the state,
and once disclosed, the state agency can say,
"Aha, it's worthwhile going after Mrs. Tingos,"
in this case, because she has sufficient assets.
It still allows the sheltering of the assets.
It's just requires that those sheltered assets be disclosed
and it's up to the agency to go after them.
-: Right.
That, but here, the sheltering happens
before the state even knows what's there.
And so there's extra cost to figuring it out
and determining whether or not.
-: Right, no, I agree with you that the state regulation
is dealing with a situation that the federal Congress
didn't deal with.
But your argument, I thought,
was that this would undermine Congress's purpose.
And you know, my response was,
I don't really understand that
because Congress's purpose is just, okay,
you wanna go shelter, shelter,
but at least tell us what the assets are.
-: But this takes it even further
where everyone could essentially just opt out,
forget about the community resource allowance,
forget about that intricate formula and process.
And you opt out at an earlier phase
where there's just no disclosure
and the state agency doesn't know what's on the table.
We'd ask this Court to affirm this was a,
MassHealth has reasonably interpreted its own regulation.
That regulation was applied appropriately
to the facts of this case.
Thank you.