The answer to the question, “Who interprets the law?” is simple enough, as inevitably the Supreme Court of the United States has both the duty and authority after Marbury v. Madison,1 as well as the specialized skill, to do so. However, a blind, disabled, or aged person ought to be discouraged to hear that the Supreme Court has called the laws governing Medicaid “among the most intricate ever drafted by Congress,”2 and has agreeably quoted a second circuit court which said the Medicaid Act is “’almost unintelligible to the uninitiated.’”3 Budgetary constraints currently weigh heavily on every state, and funding health insurance for the aged, blind and disabled has left many states in an untenable position. The spirit of the Medicaid program4 is to ensure that needy individuals have access to medical care that maintains their dignity and respects their life. However, in an attempt to curb the utilization of a safe harbor Congress provided in the Medicaid Act and therefore limit eligibility for the elderly disabled, the federal agency charged with administering the Medicaid program has proven to be a lion in sheep’s clothing. Through an interpretive memo construing the Medicaid laws regarding the utilization of pooled trusts, the administrative agency in charge of Medicaid has taken with one hand what Congress explicitly granted with the other, rendering the safe harbor of the pooled trust a nullity for disabled individuals over the age of 65. Practically, this interpretive memo has a chilling effect on the utilization of pooled trusts by the elderly disabled. It also places the burden of the time and cost of litigation upon the elderly disabled, many of whom are wards subject to guardianships. Relying on the agency’s interpretive memo, state Medicaid administrators are now equipped to ignore the clear language of their own regulations and impose a penalty upon an elderly disabled individual applying for Medicaid. Few advisors and courts are willing to utilize the pooled trust now knowing that in doing so, the elderly disabled will be faced with certain litigation over the issue. The interpretive memo has sent shockwaves through the elder law community. In addition to the chilling effect, it has raised significant questions about a disabled individual’s rights under the Medicaid
1 2

5 U.S. 137 (1803). Schweiker v. Gray Panthers, 453 U.S. 34 (1981). 3 DeJesus v. Perales, 770 F.2d 316, 321 (1985), quoting Friedman v. Berger, 547 F.2d 724, 727, n.7 (2nd Cir. 1977). 4 See Analysis, Section B, infra.




statutes, whether States are bound by the federal agency’s interpretation, whether the pooled trust safe harbor provision of the Medicaid Act is unambiguous, and how much, if any weight courts should give to the agency interpretation of federal law. Currently, a circuit-split appears to exist regarding these questions. Thus, to alleviate uncertainty and inconsistency among the federal and state jurisdictions as it pertains to the law, and to adhere to the spirit of the Medicaid Act , the Supreme Court of the United States should revisit the issues of §1983 actions and agency deference in the Medicaid-eligibility context, and offer a clear and decisive interpretation of the safe harbor provisions found in federal Medicaid law.

A. A Brief Overview of Medicaid Medicaid is a program by which the federal government reimburses States for the cost of medical care for needy individuals.5 “Each participating State develops a plan containing reasonable standards ... for determining eligibility for and the extent of medical assistance.”6 The Medicaid statutes themselves provide States with the baseline rules by which the program should be implemented, and the Secretary of Health and Human Services is charged with interpretive responsibility.7 The States, then, must create a system by which applicants for assistance are determined to be eligible based only upon the available income and resources of the applicant, within the boundaries set by the Secretary.8 In short, the Medicaid program is a mechanism to administer health insurance to those needy individuals.9 Born in 1965 after the completion of the Social Security Act’s Medicare program, Medicaid passed into law as part of the “Great Society” legislation under the Johnson administration.10 The goal of the Medicaid program was to provide healthcare to Americans considered poor, disabled, and elderly.11

See Social Security Act, tit. XIX, as added, 79 Stat. 343, and as amended, 42 U.S.C. § 1396 et seq. (1994 ed. and Supp.

V) Schweiker v. Gray Panthers, 453 U.S. 34, 36–37, 101 S.Ct. 2633 (1981); 42 U.S.C. §1396a(a)(17) (1994 ed.). See, generally, 42 U.S.C. 1396 et. seq.; See also, Centers for Medicare & Medicaid Services; Statement of Organization, Functions and Delegations of Authority; Reorganization Order 66 FR 35437, 35437. (All delegations of authority from the Secretary or other HHS officials to the Administrator, Health Care Financing Administration and redelegations from the Administrator to subordinate employees pertaining to the Health Care Financing Administration are vested in the Administrator, Centers for Medicare & Medicaid Services and such subordinate employees and remain in effect until revoked or modified.) 8 42 U.S.C. § 1396a(a)(17)(B) (“provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant.”). 9 Dayna Bowen Matthew, The “New Federalism” Approach to Medicaid: Empirical Evidence That Ceding Inherently Federal Authority to the States Harms Public Health, 90 Ky. L.J. 973, 978–79 (YEAR). 10 Id. at 979. 11 Id.
7 6




Nearly all of the Medicaid statutes are focused on how to determine whether and when an individual is poor, disabled, and/or elderly, and thus entitled to this government-funded health insurance. From the beginning of the program, the federal government has applied significant control over how each State administers the program.12 To receive federal funding as reimbursement for Medicaid benefits, the federal government required each State to submit a plan that met the satisfaction of the Department of Health and Human Services.13 Each State that wanted to participate in the partnership formulated programs to be administered by their State governments that would provide medical care to needy citizens while satisfying all the federal requirements and rules promulgated by the Secretary of the Department of Health and Human Services.14 Practically, this meant that the federal government, through the Medicaid statutes15 and the Secretary’s interpretation of those statutes, set the broad criteria for eligibility, and left the States to determine income and resource restrictions.16 Although the degree of federal control over the Medicaid program has varied over the course of time and presidential administrations, the basic partnership structure as discussed remains characteristic of Medicaid.17 B. Federal Interpretation and Implementation The Secretary of Health and Human Services delegated his authority to interpret and implement the federal Medicaid statutes to a federal agency called the Centers for Medicare and Medicaid Services (CMS). CMS publishes what are called the POMS, or the Program Operations Manual, which outlines the requirements for the benefits individuals may receive under the different programs of the Social Security Act.18 In Wisconsin v. Blumer,19 the Supreme Court stated that the rules outlined in the POMS have persuasive authority.20 CMS also provides guidance to the states through interpretive memos that are distributed throughout the year and which encompass a wide variety of topics.21 The interpretive memos are sent out to the

Id. Id. 14 Id. 15 See 42 U.S.C. § 1396 et seq. 16 Dayna Bowen Matthew, The “New Federalism” Approach to Medicaid: Empirical Evidence That Ceding Inherently Federal Authority to the States Harms Public Health, 90 KY. L.J. 973, 979. 17 Id. at 984–85.
13 18 19 20


534 U.S. 473 (2002). Id. at __ 21 For a review of CMS’s guidance and transmittals, see generally,

25 One of the three types of special needs trusts is a pooled trust. the conflicting language in the various sub-sections of this statute has caused significant controversy and confusion. managed for each member of the pooled trust. whereby an individual funds a trust that is administered by a nonprofit organization. 26 42 U. and the assets are pooled together.C. (2) contain a separate account. and (4) must provide for a distribution to the State of trust money that the trust does not retain after the beneficiary dies. “A trust containing the assets of an individual who is disabled…. 27 Id. 22 Pooled Supplemental Needs Trusts Help Keep Wolves From Seniors’ Doors. 1396p(d)(4)(A) begins by stating. unlike 1396p(d)(4)(A). It simply states.C. “A trust containing the assets of an individual under the age of 65 who is disabled…. B. 25 Id.24 The relevant provisions of the legislation state that trusts created by an individual who applies for Medicaid are assets for eligibility determination except for three types of special needs trusts.23 The legislation that excepted pooled trusts from Medicaid asset limits is referred to as OBRA ’93. 1396p(d)(4)(C) (2007). coupled with the lack of an age restriction in the proceeding sub-provisions. As we will see in the next section. is void of any mention whatsoever of an age restriction.C. Id.S.4 CAPITAL UNIVERSITY LAW REVIEW [39:XXX various regional directors of CMS and the content is then distributed through the regional directors to their respective states’ Medicaid Directors. Pooled Trusts Part of the plethora of exceptions and exclusions for counting of resources built into the federal Medicaid statutes today are contained in 42 U. 1382c(a)).” 24 23 .22 C. 28 42 U.J. 21 ME. (3) are established solely for the benefit of a disabled individual (according to the definitions of disability found at 42 U.S. This section is a creation of legislation passed by Congress in 1993 that created a safe harbor for pooled special needs trusts.26 The Medicaid statutes require that pooled trusts (1) are managed by a non-profit organization. 1396p(d)(4).S. creates a stark contrast.S. 28.28 The age restriction contained in the first sub-provision. in the amount of Medicaid benefits paid on behalf of the beneficiary.C.27 Section 1396p(d)(4)(C).” Section (d)(4)(C) has no such language. 30-31 (2006).

30 For more information on pooled trusts and their benefits.S.html (“An Individual must be under age sixty-five to utilize a Individual Special Needs Trust. PARTY 5 III. See http://www.sntcenter. CMS has distributed memoranda to the various regions of the United States with a new and controversial interpretation of 42 U. if an individual residing in a nursing home (or. Policy Change Since early 2008. non-profit associations established pooled trusts in nearly every State. April 14.29 Numerous benefits exist that make pooled trusts attractive. a noninstitutionalized individual or the spouse of such an individual) disposes of assets for less than fair market value. the individual is ineligible for Medicaid benefits. Disabled and Elderly Health Programs Group (DEHPG).33 The basis for their determination is found in 1396p(c) of the Medicaid statutes. § 1396p(c)(1)(A).30 With no explicit age restriction within (d)(4)(C) (unlike the explicit age restriction in (d)(4)(A)).32 These bulletins suggest to State Medicaid Directors that an age restriction is implied within subsection (d)(4)(C). a non-profit organization based in Florida that provides services to pooled trusts across the United States. 33 Id. Center for Medicaid and State Operations. not pertaining to the availability of the assets.snthelp. notwithstanding the federal exemption from assets under Medicaid eligibility requirements.C. of Health & Human Serv. which relates back to paragraph (1) of the subsection. When read together. at the option of a State.34 The specific provision cited in the CMS memos is 1396p(c)(2)(B)(iv).asp? gclid=CL2k2uPrv50CFSMNDQodty46iQ. see www. 1396p(d)(4)(C).specialneedsanswers.35 For a list of pooled trusts by state.C. disabled individuals of all ages have established trusts under this provision. and encouraged disabled individuals to take advantage of the safe harbor Congress had so clearly and unequivocally carved out in 42 U. CMS Chicago Regional State Letter 08-03 July 2008. but the permissibility of the transfer itself.31 B. Common Practice & Utilization of Pooled Trusts For nearly fifteen years. RECENT DEVELOPMENTS A. 2008. See http://www. has been in existence in Ohio since 2005. § 1396p(d)(4)(C). 35 42 U.2008] TITLE/SUBJECT/PARTY v. on or after the lookback date specified by the Act. and is one of five pooled trusts set up in Ohio. The McGivney Trust.S. 34 Id. 31 Pooled trusts currently operate under the assumption that there is no age restriction to enter into a pooled trust.” ) 32 CMS Memo from Gale Arden (Baltimore) to Jay Gavens (Atlanta Region IV). for instance.C. section 1396p(c) dictates that the State eligibility plans must provide that. Dept.S. There are no age restrictions on participants who join a Pooled Special Needs 29 .com/faq.

38 39 A tremendous amount of confusion surrounds the date of the “look-back” period. CMS had radically changed direction concerning pooled trusts. or (II) a noninstitutionalized individual is the date on which the individual applies for medical assistance under the State plan or. A May 12. the “look-back date” will be referred to generally as the date of application. a greater amount of Medicaid.37 Translated for our purposes. This provision is logically formulated to keep people from divesting themselves of wealth in order to qualify for Medicaid. the exceptional language of §1917(c)(2)(B)(iv) allowed for transfers to trusts for the sole benefit of disabled individuals under age 65 and for trusts described in subsection (d)(4). or the date from which one looks back five years for improper transfers.”36 According to subsection (c) (2)(B)(iv). they would be deemed ineligible for Medicaid due to this “improper transfer” of assets. Associate Regional Administrator of Region I. however. section 1396p(c) simply states that someone who transfers assets to a trust within five years of application39 for Medicaid has performed an improper transfer. on or after five years prior to their application.C. 60 months) before the date specified in clause (ii). Since the inception of (d)(4) trusts in 1993. The Medicaid statutes at §1396p(c)(1)(B)(i) defines the look back date as “a date that is 36 months (or. if later. regarding the application of transfer of assets penalty for pooled 36 While the federal code is silent as to a definition of an improper transfer.6 CAPITAL UNIVERSITY LAW REVIEW [39:XXX The statute does provide an exception to these “improper transfers.S. Practically. if a disabled individual places $25. and applies for Medicaid in 2010. with respect to—(I) an institutionalized individual is the first date as of which the individual both is an institutionalized individual and has applied for medical assistance under the State plan. § 5101:1-39-07.” For clarity.38 On its face. McGreal. However. In early 2008. The statute specifically refers to (d)(4) trusts as inclusive in this exception to the general definition of an improper transfer.A. . the transfer is not improper. and will be ineligible for Medicaid. this means that a Medicaid applicant who places their assets in a pooled trust. if the individual transferred assets to a trust established solely for the benefit of an individual less than 65 years of age who is disabled. based on the Medicaid statutes: “An ‘improper transfer’ means a transfer on or any time after the lookback date…of a legal or equitable interest in a resource for less than fair market value for the purpose of qualifying for Medicaid. 2008 letter sent to all Medicaid state agencies from Richard R. the Ohio Administrative Code offers the following definition. in the case of payments from a trust or portions of a trust that are treated as assets disposed of by the individual pursuant to paragraph (3)(A)(iii) or (3)(B)(ii) of subsection (d) or in the case of any other disposal of assets made on or after the date of enactment of the Deficit Reduction Act of 2005. 37 42 U. (ii) The date specified in this clause. or for the purpose of avoiding the utilization of the resource to meet medical needs or other living expenses. is ineligible for Medicaid. an individual will be eligible for Medicaid if they fund a trust (including a trust described in subsection (d)(4)) established solely for the benefit of an individual under 65 years of age who is disabled.C.000 in a pooled trust in 2006. the date on which the individual disposes of assets for less than fair market value.” See O. § 1396p(c)(2)(B)(iv).

June 20. 40 . STATE AGENCY REGIONAL BULLETIN No. PARTY 7 trusts communicates a clarification in policy. wrote a strongly worded letter to Allen Bryan of the Department of Health and Human Services outlining the flaws in CMS’ interpretation of the federal Medicaid law regarding pooled trusts. on behalf of the Public Policy Committee of the Massachusetts Chapter of the National Academy of Elder Law Attorneys. like the pooled trusts. stating: We believe that the conflicting provisions … could render the …exemption in section 1917(d)(4)(B) a nullity. 2008. we believe that we must give precedence to section 1917(d)(4)(B)…. Levin. produced a memo in 1994 to clarify that (d)(4)(B) trusts were not subject to transfer of assets penalties. 42 Id. are explicitly exempted by Congress and contain no age restriction.”42 He further clarifies that only trusts established for a disabled individual age 64 or younger are exempt from application of the transfer of assets penalty provisions. Levin to Allen Bryan. which. Levin Letter (how do I cite these letters?) 48 Id.2008] TITLE/SUBJECT/PARTY v. 2008. 1994. Susan H. April 14. Sally K. funds placed in a pooled trust established for an individual age 65 or older may be subject to penalty as a transfer of assets for less than fair market value.transfer of assets penalties will not apply to income placed in a [(d)(4)(B)] trust48 US Department of Health and Human Services. quoting HCFA Memorandum dated March 17.47 CMS’s predecessor.. May 12. …. 2008.44 C. 43 Id.the transfer rules require a transfer penalty. 46 1396p(c)(2)(B) conflicts with 1396p(d)(4)(C). and to avoid interpreting a provision of the statute as a nullity. 41 Id. 2008-05. while section 1917(d)(4)(B) clearly attempts to except certain trusts from being counted as available income or resources under the Medicaid program. and the Chicago Region. (citing §1917(c)(2)(B)(iv) of the Social Security Act). Centers for Medicare & Medicaid Services. Levin’s first argument outlined that CMS’s interpretation of the seemingly conflicting federal statutes46 is inconsistent with a prior CMS interpretation of (d)(4)(B) trusts. Center for Medicaid and State Operations. the Health Care Finance Agency.41 Administrator McGreal states. Richardson. “Although a pooled trust may be established for beneficiaries of any age.40 The letter unequivocally clarifies that a pooled trust established by an individual age 65 and older is not exempt from the transfer of assets provisions. 47 Susan H. Disabled and Elderly Health Programs Group (DEHPG).45 Ms. Reverberation In response. CMS Region I. 45 Letter of Susan H.43 A nearly identical letter went out to the Atlanta Region IV. In order to resolve this conflict in the law. Director of Medicaid Bureau for HCFA. 44 CMS Memo from Gale Arden (Baltimore) to Jay Gavens (Atlanta Region IV).Congress clearly intended…. That is.

and one of the memos distributed by the Chicago Regional State Letter dated July of 2008. at least in Ohio. AG No. at the very least. Id. the Supreme Court of the United States affirmed this action in Wisconsin v.52 When ambiguity arose out of how to determine another Medicaid eligibility requirement. with ambiguity in the federal statute. 46767). CMS Chicago Regional State Letter 08-03 July 2008.54 Nevertheless. according to the memos and to the Administrative Appeal decision.”50 In a public directive.49 She writes. “that interpretation is supported by both the explicit language of the underlying federal Medicaid statute as well as a federal Medicaid interpretive letter. was not that the assets in the pooled trust were countable. (quoting HCFA Transmittal 64 §3259. §1396p(d)(4)(C).53 In fact. Levin argues that the exact same argument ought to be applied to transfers to pooled trusts. but penalize the transfer of assets to such a trust.S.C. Docket Number: AA-3743. but that the transfer into the pooled trust was an improper Id. Appeal No(s) 1444413. CMS decided to defer to the States. Reg. leave the States with the discretion as to how they will treat pooled trusts.”)). 56 .56 The agency justified its position by citing to 42 U. (“Because the trust provisions are more specific and detailed in their requirements for dealing with funds placed in trust. the trust provisions are given precedence in dealing with assets placed in trusts.(citing 66 Fed. 54 534 U. of Health & Human Serv. US Dept.S. invoking their rule-making authority under section 1902(a)(17) of the Act to leave the choice in the hands of the States.6 G. 57 Id.55 In a recent Administrative Appeal of the Ohio Department of Job and Family Services. 46763. the directives of these memos have taken hold. “It is illogical for Congress to have exempted the assets in a qualified pooled trust from countability regardless of the age of the disabled individual. and as such should be given precedence over the general transfer of assets provisions.S. 53 Id.51 Another compelling argument that goes against the CMS interpretation of pooled trust provisions and the overall spirit of the memos is the fact that CMS should. (need to cite properly) (This decision explained. §1396p(c)(2)(B). 51 Id. And it is clear that the Ohio Medicaid program and rules must be in compliance with the federal Medicaid statutes. and highlights that (d)(4)(A) trusts are different than (d)(4)(B) and (C) trusts because there is specific Congressional intent of an age restriction in that provision and only that provision. 42 U. 5077875085. HCFA Transmittal 64. See section ____ infra for a discussion of Wisconsin v.C. the predecessor to CMS stated that the trust provisions are more specific and detailed in requirements for dealing with funds placed in a trust. Blumer. 50 55 49 Administrative Appeal Decision.8 CAPITAL UNIVERSITY LAW REVIEW [39:XXX Ms. Franklin County CDJFS. 52 Id. the agency denied Medicaid nursing home vendor payments due to the applicant’s purchase of participation in a pooled trust arrangement.57 The issue.”) Citing. 473 (2002). Blumer.

Additionally.A. and eventually the Supreme Court. the state administrative code. accordingly. aging population. without a judicial interpretation. pooled trusts seem to be exempted from the imposition of a penalty for transfer of assets: “Transfers of assets to a pooled trust are not subject to the improper transfer provisions…. 1396p(d)(4).C. has taken the position of the CMS letter and chosen to ignore the plain language of the exemption found in subsection (d)(4)(C) of the federal statute.58 Illuminating the problem. is startling. as individuals over 65 who entered pooled trusts apply for Medicaid in the coming years. The state agency shows a tremendous amount of deference to the CMS Letter in interpreting the federal statute and. will need to resolve..S. the Ohio Department of Job & Family Services. whose Medicaid rules mirror the federal Medicaid statutes closely.”59 Amazingly. citing O. and rights and remedies for Medical benefits require answers in the short run. the agency stipulates in the decision that in Ohio’s Administrative Code at §5101:1-39-07. First. PARTY 9 transfer.1(C)(3)(c)(vi). 58 59 Id. 5101:1-39-27. the “special needs trusts?” Lastly. Id. the costs of medical care do not appear to be going down in the near future.2008] TITLE/SUBJECT/PARTY v.C. does an applicant for Medicaid benefits have a claim under §1983 due to a State agency’s imposition of a transfer of assets penalty for purchasing participation in a pooled trust? This comment will explore these three important questions and identify the primary issues the federal courts. With healthcare reform on the immediate horizon. and both the federal government and the States will face increased pressure in dealing with smaller budgets and a growing. A better understanding of the complexity of the issue brought forth in the CMS memos. how have federal courts interpreted the exemptions located at 42 U. . Three important questions are raised by this problem. This deference shown to the interpretive letters on an issue of such longstanding practical import. how much deference do State agencies owe to the CMS Memos such as the ones sent out to clarify the treatment of pooled trusts? Secondly. statutory construction. demonstrates that it is a problem that federal courts will likely be faced with very soon. as well as a cursory glance of the arguments against CMS’ interpretation of the pooled trust exemption. within the 5 year look-back period for improper transfers. the questions of deference.

which requires the formation of rules to fill gaps left by Congress. 837 (1984). and understanding the policy has depended on more than ordinary knowledge of the issues the administrative agency seeks.60 The first approach is found in the Chevron v. 69 Id. 68 Id.10 CAPITAL UNIVERSITY LAW REVIEW [39:XXX IV. 144 (1981)). and (2) if the intent of Congress is clear. and an administrative agency has offered an interpretation. the court may not simply supply its own statutory construction. Ruiz. Natural Resources Defense Council61 where a court reviews an agency’s construction of a statute. 450 U.62 If it is not clear what Congress intended. at 842. DISCUSSION A. 467 U. of America v.66 When Congress has explicitly left gaps in statutes. Id.70 60 61 62 467 U.65 the court dictated that an administrative agency has power to administer a congressionally created program.”64 In Morton v. at 231.S. 67 Chevron. which it administers.63 Instead. 467 U.S. the Supreme Court of the United States has taken two distinct approaches. it is confronted with two questions: (1) whether Congress has directly spoken to the precise question at issue. 389 (1984)). 63 Id. Dist. Central Lincoln Peoples’ Util. 66 Id. . 70 Id. Deference Owed to CMS When considering how much deference the CMS guidance should be given by the States in interpreting federal statutes. 199 (1974).68 Deference to interpretations by administrative agencies is pursued when decisions as to the meaning or scope of a statute involves resolving conflicts in policy.. 64 Id.69 The issue in Chevron revolved around an Environmental Protection Agency regulation allowing states to treat all pollutionemitting devices within same industrial grouping as though they were encased within a single bubble. therein lies an “express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. 380. 139. Jong Ha Wang.”67 The Chevron court recognized that it is well established that considerable weight should be accorded to an agency’s interpretation of a statute for which it is charged to administer. at 844 (citing INS v.S.S. (citing Aluminum Co. at 843–44 (1984). at 843. whether those gaps were left implicitly or explicitly. 65 415 U.S. a court must consider if the agency’s interpretation is based on a “permissible construction of the statute.

77 These letters do not deserve.71 The court concluded. 437 U. but the people. Arabian American Oil Co. 195 (1978) (“Our Constitution vests such responsibilities in the political branches. including public notice and comment. 134 (1944). the Chevron court found the administrative agency’s interpretation of the federal statute to be permissible. (quoting TVA v.82 The Supreme Court has often given significant and decisive weight to Treasury regulations and interpretations. does not mean that the interpretations deserve no respect.80 When regulations are not reached because of the interpreter hearing adversarial proceedings in which he finds facts from evidence and reaches conclusions of law from findings of fact.73 Accordingly.”)). 74 Id. nor do they bind a court.’”)). Harris County. via its regulation. at 139. at 866.79 set out a path for courts to follow in regards to how much deference administrative agencies’ regulations are owed. was a permissible construction of the statute.”72 The policy determinations behind the regulations. 515 U. . PARTY 11 The question for the court was whether the EPA’s interpretation. 244 (1991) (interpretive guidelines do not receive Chevron deference) 79 323 U.S.76 Agency interpretations that are found in opinion letters lack the force of law. at 140. Id. which is not ‘subject to the rigors of the Administrative Procedur[e] Act.S. 585 (2000). Hill. 50.78 The Supreme Court in Skidmore v. 72 80 81 82 71 Id. rather than whether it is a reasonable choice within a gap left open by Congress. just because an agency’s interpretations of statute are not products of an adversarial hearing.2008] TITLE/SUBJECT/PARTY v.’ entitled only to ‘some deference.81 However. 83 Id. when Congress leaves gaps in the statutes for agencies to interpret. 77 Id. 153. (citing Reno v. 76 Id. the challenge must fail. 73 Id. Id. are not for the judiciary to determine. according to the Christensen court. The Court tackled an agency interpretation found in an opinion letter rather than one promulgated through a formal adjudication or notice-and-comment rulemaking.75 the Court addressed a scenario much like the CMS memos at issue in the interpretation of the pooled trust provisions of the federal Medicaid statutes. they do not constitute an interpretation of statute. 499 U. at 587. Chevron-style deference.S. 78 Id. fairly conceptualized.. EEOC v. 51 (1995) (“internal agency guideline.S.74 In Christensen v. “When a challenge to an agency construction of a statutory provision. Swift & Co. at 840. 75 529 U.S. Koray.83 Id. really centers on the wisdom of the agency’s policy.

”95 84 85 Id. When interpreting other statutes so structured. 95 Id.S. 218 (2002). If the statute in question speaks clearly to the precise question at issue. at 495. 87 Id.12 CAPITAL UNIVERSITY LAW REVIEW [39:XXX The Skidmore court held that rulings.92 The case revolved around interpretation of provisions of the Medicare Catastrophic Coverage Act of 1988.88 This evidence of consistent interpretation.”84 The degree of deference will be determined. “The Medicaid statute…is designed to advance cooperative federalism. the agency’s regulations reflected their longstanding interpretation. interpretations. at 478. we have not been reluctant to leave a range of permissible choices to the States…. at 842–43). under the Skidmore test. Walton86 clarified both statutory construction issues as well as agency deference. as well as the fact that the statute did not unambiguously forbid the agency’s interpretation. Id. .”85 The Court’s decision in Barnhart v.93 Wisconsin utilized a particular method to determine income and resource allowances. its consistency with earlier and later pronouncements. after a determination that the interpretation was reasonable. at 219–20. led the court to apply Chevron-style deference.S. by the “thoroughness evident in its consideration. which the applicant appealed. Blumer91 provides some of the best insight into how to determine how much deference is owed to CMS and the rules promulgated by the Secretary of Health and Human Services.90 The court’s decision in Wisconsin Department of Health and Family Services v. at 212.89 The Barnhart court held that the Social Security Administration’s interpretation of a statutory definition of disability was lawful construction. as proven by a litany of cited sources to prove the consistency of the agency’s position. if lacking power to control. and all those factors which give it power to persuade. at 218 (quoting Chevron.87 In Barnhart. a court must give consequence to the expression of Congress.94 In wading through the nebulous Medicaid statutes. at 477. Id. 477 (2002). which is now part of the federal Medicaid statute. and opinions of agencies make up a body of experience and “informed judgment to which courts and litigants may properly resort for guidance. 88 Id. claiming it delayed her benefits. the court noted. 534 U. 89 90 91 92 93 94 Id. 86 535 U. the validity of its reasoning. Id.

”97 In fact. going on to say that the “Secretary’s position warrants respectful consideration. 512 (1994) (reliance on Secretary’s “significant expertise” particularly appropriate in the context of a “complex and highly technical regulatory program”).96 In Blumer. Shalala.2008] TITLE/SUBJECT/PARTY v. PARTY 13 The Secretary of Health and Human Services possesses the authority to prescribe standards for Medicaid eligibility that are consistent with the federal Medicaid statutes.S. and cites a Chicago Regional State Letter. the court references the Secretary’s proposed rule. 504. 512 U. in other decisions. at 497. 1396a(a)(17) Id. 98 Thomas Jefferson University v.C.S. the Secretary’s interpretation or policy determination is given rather significant deference.98 42 U. 97 96 .

A Second Circuit case arising out of a handicapped student filing suit against the Secretary of Health and Human Services to receive Medicaid benefits applies Chevron type deference.S.. . the courts have given little weight to conflicting CMS interpretations. sought to determine whether congress had addressed the issue.S. citing 42 U. Sullivan. “our role is not to speculate on what Congress might have intended had it considered this question. Id.C.. at 63.. Id. refined its role.. however.101 The court declared. 103 Id.99 The overriding theme. at 842–43. quoting Chevron 467 U. it is bound to defer to the agency’s interpretation as long as it is a “sufficiently reasonable” construction of the regulation.104 The applicant argued that Congress directs states to administer the programs of 42 U.’”106 99 100 101 Detsel by Detsel v.C. quoting Chevron 467 U. 104 105 106 Id.S. 1990). for the court’s duty is to enforce the unambiguously expressed will of congress.14 CAPITAL UNIVERSITY LAW REVIEW 1.”102 Nevertheless. reviewing the secretary’s interpretation of a section of the code of federal regulations. 895 F. at 844–45. if the court finds that Congress never specifically addressed the issue at hand. 102 Id.S. as evidenced in the following cases.”105 The court. 1396a(a)(19). “If the intent of congress is clear. citing Chevron 467 U. stating. If the underlying statute is unambiguous.100 The court. but rather to determine whether Congress ‘actually ha[d] an intent. at 62..103 The Medicaid applicant in Detsel argued that the secretary’s interpretation conflicted with Congress’ explicit intent.2d 58 (2nd Cir. Application of Chevron [39:XXX A number of circuits have applied Chevron type deference to CMS interpretations in the Medicaid context. at 845.S. 1396 in “the best interests of the recipient. that ends our inquiry. is establishing whether the underlying statute is unambiguous.

. “Holding the secretary to a ‘reasonableness’ standard…is not equivalent to reviewing his decisions under the ‘minimum rationality’ standard we use in reviewing acts of Congress. PARTY 15 Determining that Congress had not spoken directly to the issue. at 63.111 The Secretary relied on a common understanding of facts circa mid-1960s. 109 Id. citing Motor Vehicle Mfrs. when the regulation and the Medicaid program were initially formulated. 9. American Hospital Association. and that agencies have a responsibility to “explain the rationale and factual basis for its decision. at 168. 610 (1986).S.”108 Further.. 156.. Id. Co. United States. State Farm Mutual Auto. 463 U. 113 Id.107 The court deferred to the secretary’s resolution of the issue.”113 107 108 Id.S.2008] TITLE/SUBJECT/PARTY v. the court assessed the reasonableness of the secretary’s interpretation. v.. at 63.S. Assn.109 The court relies on Bowen v. v. that limitation would not necessarily remain reasonable today. “Even if the secretary was correct in his assumption that [the regulation] was originally intended to limit. the Secretary claimed that the interpretation reflected a common understanding of the facts of the issue. . at 43 & n. the court noted that administrative agencies must base their decisions on logic and reason in connecting facts and choices made. at 64.110 where the Supreme Court emphasized that agency deference is held to a higher standard than congressional intent. 371 U. 111 Detsel. citing Burlington Truck Lines Inc. 110 476 U. 29. 112 Id. stating.. rather than describe.112 The court rejected this argument.. the common understanding of [the issue] as it existed in 1965. but clarified.” In defense of his interpretation. Ins.

117 The court offered what it described as a “short and sufficient answer. at 65.115 The court found that the secretary failed to show his interpretation of the regulation “furthers any of the department’s legitimate fiscal concerns. .”114 The court also found this catchall defense to be without merit.. 118 Id.” clarifying that the regulation was not what the Medicaid applicant was challenging..”116 Lastly. 117 Id. at 64.16 CAPITAL UNIVERSITY LAW REVIEW [39:XXX The secretary also argued that his interpretation was a “rational exercise of the secretary’s duty to allocate public resources efficiently. the court addressed the secretary’s defense that his interpretation should be given special deference because the regulation was issued at the same time the Medicaid laws passed and has not changed. which actually was the secretary’s narrow interpretation.118 114 115 Id. 116 Id. at 63.. Id.

we see no reason to confer any greater degree of deference to the [interpretation] than it would ordinarily deserve. . and particularly applicable to the problem of CMS’ interpretation of (d)(4)(C).”121 119 120 121 Id.119 The CMS memo provided a stark contrast between a past interpretation of an issue and the interpretation offered in the matter by the secretary. is the court’s illumination of a conflict between the secretary’s interpretation and a CMS memo issued nine years prior to the publishing of the decision.120 The court stated. “Considering the inconsistencies in the department’s views in this area. PARTY 17 Moreover. Id.2008] TITLE/SUBJECT/PARTY v.

S.124 The fact that Pennsylvania had a reporting requirement when a pregnancy was the result of rape or incest.18 CAPITAL UNIVERSITY LAW REVIEW [39:XXX In a Third Circuit case.123 The court addressed conflicting interests in the Medicaid statutes and the 1994 Hyde Amendment.126 122 123 61 F.125 that a state law cannot set Medicaid eligibility requirements that are more restrictive than criteria set forth by Congress.122 health care providers brought action against state official challenging Medicaid funding for abortions. 125 392 U. 124 Id. conflicted with the Supreme Court’s holding in King v. Elizabeth Blackwell Health Center for Women v. 1995). Id. 126 Id. Smith.. at 180. 309 (1968).3d 170 (3rd Cir. Knoll. .

’”132 127 128 Id. and he proscribed a waiver provision in the state reporting requirement in order to bring both interests in alignment. the director proscribed a waiver.”131 The secretary’s interpretation is actually an interpretation of the Hyde Amendment. PARTY 19 Initially. 132 Id.”129 To solve the problem.. 130 Id. we deem it ‘interpretive.130 The court noted that the December 1993 directive was the secretary’s “attempt to give interpretive guidance to the states in advance of their submission of state Medicaid plans. quoting Bailey v.2d 52. supra. . See note __.2008] TITLE/SUBJECT/PARTY v. 1989). at 62 (3rd Cir. Sullivan. and since the secretary’s directive “clarifies and explains existing law. 131 Id. 885 F. the director of HCFA (CMS)128 sent a directive to all state Medicaid directors explaining that states may not “impose reporting… requirements that deny or impede coverage for abortions where pregnancies result from rape or incest.127 In December of 1993. regarding HCFA and its metamorphosis into CMS. 129 Id.. the Secretary of Health and Human Services is responsible for resolving an issue like the one presented in this case. at 181.

135 Another matter concerned the secretary’s interpretation of a provision in the code of federal regulations.139 hospitals with Medicaid covered patients sued California’s Department of Health director. the court gives “substantial deference to an agency’s construction of its own regulation. 449 U. at 183. 150–51 (1991). 137 Id.134 “Because the Secretary’s consistent and contemporaneously expressed construction of the Medicaid statute as amended by the Hyde Amendment is a reasonable one. at 844–85..140 The court examined the statute at issue and addressed legislative intent.141 133 134 Id.. 138 139 140 188 F.133 The court found the secretary’s solution through its directive to be reasonable.138 In Children’s Hospital and Health Center v. 1999). citing Chevron. claiming the director’s methods executed through the California Department of Health Services violated federal law.20 CAPITAL UNIVERSITY LAW REVIEW [39:XXX Having established the secretary’s directive as an interpretation of a federal statute. at 182. Occupational Safety and Health Review Comm’n. Id. at 1096.3d 1090 (9th Cir.”137 The court noted that the secretary’s interpretation aligned with the plain reading of the regulation.. 135 Id.S. 141 Id. it is accorded considerable weight under the principles announced in Chevron. Belshe. the court recalls that federal courts have traditionally given “considerable weight” to an executive’s interpretation of a statute.. citing Martin v. . 136 Id. Id. 144.136 Again.

241 (1989). citing Green. when Congress creates an unambiguous statute.2008] TITLE/SUBJECT/PARTY v.. it must be presumed that if Congress wants to distinguish. the court. 151 Id.146 In looking at the plain meaning of the statute at issue.148 Plainly stated. Ron Enters. 707 F. thus the plain meaning of the statute is that Congress had no intention to differentiate. 143 142 .S. and when its plain meaning is unambiguous. 707 F. 145 Id. (2) Congress’ placement of an age restriction in subsection (d)(4)(A) is an explicit differentiation from subsections (d)(4)(B) & (C).142 Citing United States v.C.2d at 405.151 In its treatment of the statute’s legislative history. that meaning is controlling. 149 Arguments to follow in this note applying this logical method of statutory construction to pooled trusts and the statutory construction of 42 U..” 150 Id.153 Id. Inc. 235. the court notes California’s director’s request that the court defer to CMS’ interpretation of the statute. 148 Id.150 However. 235. 146 Id.. citing Chevron. citing 489 U. 1990). a court may very well examine the legislative history.2d 404.. it will do so.145 Only when ambiguity exists do courts need to give treatment to legislative history.S. citing Green.144 The court determined that a proper statutory interpretation involves an examination of the specific provision and the structure of the statute as a whole. including its objectives.143 the court declared that statutory interpretation starts with the language of the statute. an investigation of Congressional intent through legislative history is unnecessary.. 153 Id. 489 U.S. 152 Id. 144 Id. at 1098. citing Chevron at 843. 147 Id. at 1097. at 1096. does not honor the director’s request because the court is not permitted to defer to an agency’s interpretation when Congress has unambiguously addressed the issue. the court found that it does not distinguish between the points at issue.152 Nevertheless.147 The court supports this stance by illuminating that the Medicaid statutes themselves contain a plethora of provisions where Congress creates distinctions and explicitly differentiates between particular facts or issues. since the statute at issue was deemed unambiguous by the court. and (3) Congress could not have intended to “take with hone hand what it had just given with the other.149 Additionally. citing Green v. if an issue is of great importance. 1396(d)(4) as well as § 1917(c) of the Social Security Act will demonstrate that (1) Congress was unambiguous in (d)(4) as to its intentions. Commissioner.. PARTY 21 The court began its examination with the language of the statute.. 405 (9th Cir. 241 (1989).

155 the court recognized the obvious but oft-overlooked purpose of Medicaid. The court further recognized. which is “informal and not made subject to notice-and-comment procedures. Id. at 808. 159 Id. searching for congressional intent apparent on the face of it.3d 801 (3rd Cir. 156 Id. Finding the statute ambiguous. both CMS and HHS stated in memoranda and letters an interpretation of the federal statute. neither have they remained silent.161 This court’s analysis of the problem before it begs the question. at 805. Cleary v.. and whether challengers of CMS interpretations will find themselves in a court that will simply defer to the agency. the court looks to the statute. how do they interpret the statute? First. 160 Id.159 The court thus takes on an ambiguous statute and analyzes a CMS interpretation.22 CAPITAL UNIVERSITY LAW REVIEW [39:XXX The preceding review of various circuit courts’ application of Chevron type deference places a high level of importance on the determination of whether the underlying statute is ambiguous.158 As stated above...154 In Cleary ex rel. Application of Skidmore A Third Circuit case arising out of New Jersey addressed whether the state’s implementation of a portion of Medicaid law violated the law itself. Chevron’s progeny has undoubtedly provided some clarification as to how the courts will treat CMS interpretations. 157 Id.”160 However. and (2) if so. “While the federal agencies which administer the Act have not adopted formal regulations. the court was faced with a dilemma: (1) do they need to interpret the law (or is CMS’s interpretation enough).. 2. at 806.”157 In this case. CMS is delegated the authority to administer the Act. the court must decide whether congressional intent is apparent enough to defeat an interpretation by CMS. 158 Id. which addressed income an applicant’s spouse. which is to “provid[e] necessary medical services for both the indigent and the elderly.”156 The court endeavored to interpret § 1396r5(e)(2)(C). 1999). Waldman. . 161 Id. Thus. is there a difference between interpretation and administration of a statute? 154 155 167 F. at 807. the court then endeavored to apply the proper degree of deference to the CMS interpretation.

.. The Skidmore doctrine arbitrarily places the role of interpreting the will of Congress within the realm of an agency created by the statute itself.166 But astonishingly. that since the Medicaid statute is so complex. at 810. PARTY 23 The § 1983 Plaintiff in Cleary contended that New Jersey’s implementation of the statute ran contrary to the plain language of the statute. and their policy is a reasonable interpretation consistent with the plain language and stated purposes of the statute.168 This seems to be the danger in applying the Skidmore doctrine.165 The court agrees with the plaintiff’s assessment of the purpose of Medicaid. placing it into the nebulous context of the surrounding subsections.163 Nevertheless. the plain meaning of a statute cannot speak for itself? Is the court supplanting traditional statutory construction with total deference to CMS? The plaintiff also asserts that New Jersey’s implementation violates the purpose of the Act.. evidence of the complexity for which the Medicaid Act is infamous. at 812. the court reads beyond the plain language of the statute. “…to conflate the detailed provisions [of the Medicaid Act]…would run contrary to the statute. 165 Id. 164 Id. 168 169 Id.2008] TITLE/SUBJECT/PARTY v. 167 Id. grants the courts with an “out.. at 809. at 810–11.”164 Is the court saying. to the extent that Medicaid was meant by Congress to be a source of financing for a broad range of income groups. not just the poor but the medically needy as well (disabled). 166 Id..” Courts can defer to CMS and simply take CMS for its word. Id. and their views were made pursuant to experience that is more specialized and information than a judge would likely have.”167 Thus. . if the statute at issue in Cleary was formulated with 162 163 Id. which exempts and applies various provisions.169 Applying this rule. in short. the Court granted deference to the Agency view and the Plaintiff applicant lost the decision. This sets a dangerous precedent and runs counter to the foundational ideal that the branches of government balance one another. at 807–08. then that view deserved some deference.162 In response. the Court holds. “[CMS] ha[s] statutory authority to administer the Act. amongst admissions about ambiguity and complexity. as seen in Cleary. Additionally. the court states. The Skidmore court said that as long as an administrative agency has delegated authority to administer the statute.

v. courts may simply dispose of them without affording any deference. For a § 1983 plaintiff suing for enforcement of a statutory right. Graham.176 Hence. Chevron did not overrule Skidmore. 623 A. 498 F. capricious. Barnett v. Utah 1995). Rowe. an abuse of discretion. have foregone the application of these deference doctrines in light of circumstances that make a CMS interpretation arbitrary.C.1379 (D. 1987).3d 248 (D. 529 U.S. 470 F. Arizona v. the plaintiffs claimed that the Secretary’s enforcement of a transmittal.Supp. 176 Westmiller v. 729 F.D. quoting Christensen.3d 401 at 409 (6th Cir. 1993). 729 F. v. notice-andcomment rulemaking. Cir. 172 Bank of New York v.’”172 Hence. 410 F. 2002). since the interpretation was 15 years late and CMS had acquiesced to no age requirement since the inception of the pooled trust. Sullivan.” why does the agency need to offer an interpretation and for what does the court defer to the agency?170 One must be reminded that opinion letters from CMS do not have the force of law and are not entitled Chevron deference. 175 174 .Supp. citing Clark Reg’l Med. 143–44 (1976). 429 U. (W.173 Outside of Chevron. is entitled respect ‘to the extent that the interpretations have the power to persuade. or otherwise not in accord with the law. 260.3d 304 (6th Cir. Thompson. 2006). Matarazzo v. Utah Women’s Clinic. dealing with the complex and ambiguous Medicaid statute and a CMS interpretation. 2007). is subject to the whims of the Secretary of Health and Human Services. Cir..2d 470 (Conn. and left unchecked. or political pressures. all encompassing. 173 Battle Creek Health System.Y. In Westmiller. Gilbert. at 812. 1990). this doctrine places all too much power in the hands of CMS. at 265 (W.3d at 410. See Westmiller v.Supp. “[i]nterpretive guidance from administrative agencies that is not the product of formal.171 However.N. and when the interpretation contradicts what the agency had allowed previously. as with CMS’s interpretation of the age requirement and transfer penalty of pooled trusts. 125. a plaintiff must persuade a court that the agency interpretation is “arbitrary. Battle Creek Health System v. Weinberger.2d 953 (D. 1990).C. as seen in Cleary. 892 F. 260.3d at 245.3d 264. 818 F.D. courts ought to defer to CMS interpretations so long as they are persuasive. Anna Marie Bowling Irrevocable Trust Date June 27. at 587. 2005). however. Skidmore controls when.N. Inc. Sullivan. citing General Electric Co. 281 F. Ctr. There are numerous instances where courts. 314 F. Leavitt. 2002.24 CAPITAL UNIVERSITY LAW REVIEW [39:XXX “plain language” and “stated purposes. Spectrum Health Continuing Care Group v. Janowick.”174 3.175 CMS interpretations may not be afforded deference when the interpretation was not made contemporaneously with the enactment of the statute. which interpreted the Medicaid statute in contravention of 14 years of “uninterrupted federal toleration of and 170 171 Id. 498 F.S. 269 (6th Cir.Y. No Deference Applied Chevron & Skidmore are not. the economy.

citing Foley v. quoting Capitano v. at 263. Barnett v.Supp..179 The court disagreed with the Secretary.E. 1990). 1987). 181 Id. 183 Id.”180 What about deference? The Westmiller Court. citing General Electric Co. in addressing the Secretary’s argument that the court should afford great deference to his agency’s interpretations. 466.Y. if not the letter of the Medicaid Act.. citing Haley v.. § 1396p(d)(4)(C) is unambiguous as it pertains to an age requirement. PARTY 25 acquiescence. 178 177 .. 125. 182 Id. 184 Id. forbidding states to allow for resource spend-down. Secretary of Health & Human Services. notwithstanding Skidmore and Chevron. at 262. the court found that the interpretation was not issued 15 years after the passage of the Medicaid Act. the Court notes that deference is inappropriate if a court determines that the “agency interpretation is unreasonable because it violates the spirit of the statute. when the interpretation is not made contemporaneously with the enactment of the statute. Gilbert.182 Further. The court found the interpretation to be a violation of the Medicaid Act. and that if it intended states to employ resource spenddown.2008] TITLE/SUBJECT/PARTY v. notes that this case involved “some judicially-recognized circumstances in which administrative interpretations are not to be accorded great weight. like Ohio.S. Cir.2d 1066. at 265. 1984). at 262 (W.C. 729 F. 180 Id. 394 Mass. Weinberger. the Secretary asserted that Congress used plain language in providing for income spend-down. no such distinction or qualification exists within subsection (d)(4)(C).S.N.178 The Secretary further asserted that the interpretation complied with the plain language of the Medicaid Act. “the Transmittal violates at least the spirit. 1076 (2d Cir.D. Westmiller. 732 F. at 266. 429 U. Is there an age requirement for special needs trusts? The plain language of 43 U. 185 Id.2d 953 (D..” violated the Medicaid Act. While (d)(4)(A) clearly states that it provides exemption for disabled individuals who are under age 65. 476 N. v. the court afforded the agency interpretation no deferential weight.177 In reply. 179 Id. 818 F. Suter. and “when it contradicted the position which the agency had taken previously. Id.C. to adopt Medicaid plans to be correspondingly void of any age limitation in their pooled trust statutes. The complete lack of any language requiring an age limitation in the language of the statute has led many states.2d 572 (1985).. as set forth in Chevron. it would have said so explicitly.”181 Circumstances in which administrative interpretations are not given great weight include. 143–44 (1976).185 B. and that its position directly contravened the agency’s position it had held for 14 years prior.184 Thus.. Commissioner of Public Welfare.”183 In Westmiller. saying.

at 281.188 which held that § 1983 actions could be brought against state actors to enforce rights created by federal statues and the Constitution..26 CAPITAL UNIVERSITY LAW REVIEW [39:XXX For instance.21.190 The Court analyzed Pennhurst State School and Hospital v. at 343.192 The Gonzaga court recalls its holding in Blessing v. Freestone. The Gonzaga Court reflects on its past treatment of this question. 1 (1980). 194 Gonzaga.194 The court 186 187 Ohio Revised Code §5111. provides a detailed framework and analysis for determining if (d)(4)(C) confers a federal right enforceable in suits for damages under § 1983. and n. examining Maine v. Doe.S. citing Thiboutot.151(F). 188 448 U. C.S. clearly states that a person of any age can utilize the safe harbor. at 281.193 which distinguished individual entitlement to services from a measuring stick used to evaluate system-wide performance. which is the corresponding statute authorizing the exception of pooled trusts. at 17. 1(1981). quoting Blessing. Ohio Revised Code § 5111. and that a transfer to a pooled trust is not an improper disposition of assets. federal funding provisions [like Medicaid] provide no private enforcement under § 1983. 190 Id. 28. Notwithstanding the clear language of the law (both the federal and Ohio statutes are clear).151(F)(3)(c) 536 U. should the court establish the trust knowing that the CMS memo is urging state departments to treat the transfer as an improper disposition of assets? Additionally.191 reiterating its holding that unless Congress clearly communicates its unambiguous intent to confer individual rights.187 decided in 2002. Thiboutot.S. 192 Gonzaga. .186 This situation now poses a serious problem. the Court held that plaintiffs could recover payments wrongfully withheld by a state agency in violation of the Social Security Act. Gonzaga University v. 329 (1997). Whether federal statutory “exemptions” like Special Needs Trusts create a right actionable under Section 1983. it would appear that the courts could not create trusts in the best interest of the ward (which a court is bound to do) if it is subject to collateral attack by another court or an administrative review in the future. 191 451 U. 193 520 U. at 4. at 280.S. citing Pennhurst. for guardianships especially. the uncertainty of how ODJFS will treat the utilization of the pooled trust creates an unacceptable conflict between a right created by statute enforceable under §1983 and the practice of denying eligibility based on the CMS interpretations. 189 Gonzaga. If a guardian petitions a court to create a pooled trust for a ward over 65 years of age. Halderman.189 In Thiboutot. 273 (2002).

and due to budget constraints and various policy initiatives.197 “For a statute to create such private rights. states are likely to argue that federal courts need not illuminate the Medicaid laws because ensuring that state Medicaid law complies with 42 U. it is presumed that it is enforceable by § 1983.. at 290.. 442 U.2008] TITLE/SUBJECT/PARTY v. Id. at 340..C.199 As soon as an individual demonstrates that the statute confers an individual right. at 283. 441 U. that the plaintiff must demonstrate that the right was not so vague and amorphous that it would strain judicial competence. especially in the area of Medicaid. quoting California v. if the statute is phrased with explicit rights creating terms and clearly identifies a class of individuals. citing Blessing.S. After Gonzaga and Blessing. at 283–84. 200 Id. 201 Id. and that the provision must be mandatory rather than precatory. like disabled persons. 287.”202 Initially. § 1396p is the responsibility of the CMS and not the courts. citing Cannon v.196 Additionally.S.. Gonzaga seemed to foreclose Medicaid applicants from enforcing their perceived rights to Medicaid benefits through § 1983. 198 Id. then Congress has established a federal right.200 Hence. the Gonzaga court recalled that it had held in order for Congress to establish a private right. it must do so in clear and unambiguous terms—no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action. Individuals suing under § 1983 do not possess the burden of showing that Congress intended him to have a private remedy because § 1983 itself provides the remedy. 560.. its text must be “phrased in terms of the persons benefited. 199 Id. which included that Congress had to have intended that the statute at issue benefit the plaintiff. not laws. 197 Id. at 285. v. 202 Id.”198 Consequently. 576 (1979). Redington. 677 (1979). .. at 282. However.195 Interpretation of this test leads to the conclusion that only violations of rights. the statute by its terms must grant that right to an identifiable class. 294 (1981). Sierra Club. citing Touche Ross & Co.S. This argument is 195 196 Id.”201 Gonzaga’s holding is unequivocal: “if Congress wishes to create new rights enforceable under § 1983. PARTY 27 noted the three factors of the Blessing test to determine whether a statute confers a right. at 284.. 451 U. give rise to § 1983 actions. the primary analysis remains to determine whether or not a statute “confer[s] rights on a particular class of person. this argument is premised upon the assertion that the federal courts cannot enforce any aspect of the Medicaid statute. University of Chicago.S.

142-43 (1963). the court found an enforceable § 1983 claim in (d)(4)(A).’”208 Based on this. Publ. Shumway. 2007). Doe 1-13 v. 461 U. 2007). 204 Additionally.2d at 770. 367 F.2002). Paul.Okla. 501 F.3d 456 (6th Cir. 203-04 (1983).D.2d 671 (E. 442 F. 190. citing Pac. Richman.2d 1050 (N. the court ruled that the provisions of § 1396p(d)(4) confer enforceable rights under 42 U. Conservation & Dev. Okla..3d 1094 (9th Cir. citing Pac. Sherman. Gas & Elec. Bryson v. Lewis v.D. Rendell. the court stated that the state official in his capacity as director of the Medicaid program was a person for purposes of § 1983. Intervenor v. 2004). Richman. 208 Lewis.S. Sabree v.S. Hood. . Sherman.g. citing Wis.2d 671. Sabree v. Chapter of Am. “An actual conflict arises where compliance with both state and federal law is a ‘physical impossibility. they are part of the intended beneficiaries. 308 F. “1396p(d)(4)(A) creates a federal right enforceable under § 1983. Comm’n.3d 496. 136 F.C.Supp. 2006).2d at 688.Pa. quoting Johnson207 “‘because Plaintiffs contend they would benefit from the State’s compliance with § 1396p.S. Co.’”213 203 See. even after Blessing & Gonzaga. “state law is preempted to the extent that it actually conflicts with federal law. Olszewski. S. Mortier. Harris v.Supp.211 Concerning the Medicaid Act. 604 (1991). at 679 (E. Gas & Elec. 190.3d 581 (5th Cir.3d 180.D. 501 U.D. 204 Lewis v.210 The Eighth Circuit has recognized that under the preemption doctrine. 212 Id. 2006).” 212 The Eighth Circuit noted. 210 Lankford v. 207 91 F. 597.209 Furthermore.2004).S.S. 501 F.203 In Lewis v. State Energy Res.Supp. the Eighth Circuit Court of Appeals has held that even if enforcement is not available under § 1983. at 182 (3rd Cir. Rendell. v.Supp. Fogarty. Acad.3d 496 (8th Cir. Rendell.”205 The court found that (d)(4)(A) refers to the “eligibility” for Medicaid and that a special needs trust shall not affect eligibility. Lime & Avacado Growers.28 CAPITAL UNIVERSITY LAW REVIEW [39:XXX discernibly inaccurate in light of numerous cases permitting enforcement of various provisions of the Medicaid Act under § 1983. 2006).2005). Pa. 211 Lankford v. state laws that interfere with or are contrary to the laws of Congress are preempted. 367 F. v. 451 F. Co.’ or where the state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.Supp. Sabree ex rel.. v. 366 F. 451 F. 206 Id. 461 U. Rodgers 492 F. 2007). Inc. Ball v.3d 180 (2004). at 687. quoting Fla. 510-11 (8th Cir.1998). 501 F. 206 The court provided its logic. The court concluded.3d 79 (1st Cir. of Pediatrics v. it is available under the Supremacy Clause of the Constitution. 132. 373 U. § 1983. at 510. 213 Id. 391 F. 205 Id. e. Chiles. 209 See also.3d 709 (11th Cir. at 688.

at 479. at 483. 222 Id. did not use express language.222 The Wong court states that § 1396p(d) is not ambiguous. Tex v.D.223 The Secretary of Health and Human Services argued that because Congress spoke in the negative.N. A beneficiary is not given any control over trust distributions. citing Jackson v. the state is obligated by the Supremacy Clause to comply. seeking a declaratory judgment that his assets placed in an SNT would not be included against him when determining his Medicaid eligibility. designed to aid the disabled. 219 Id. Congress created three exceptions to the restrictions on trusts and codified them at § 1396p(d)(4)..217 The court provided a clear description of SNTs and their development from their inception. PARTY 29 When a state voluntarily accepts Congress’s requirements.e. 1991).Supp..221 Thus. the court stated. Federal Interpretation of (d)(4) While the question at issue in this comment has yet to fully addressed by the federal court system. Rapps.2008] TITLE/SUBJECT/PARTY v. 2008). at 477. “Any payments from the trust that are not specifically covered by the statute are considered to be assets transferred by the individual. Planned Parenthood of Houston & Se.218 The court stated. 216 582 F. the 214 215 Id. at 480 221 Id. King v. .S. Sanchez. 220 Id. 309.214 In short. 392 U.2d 332. Daines216 a Medicaid recipient sued the local agencies under § 1983.2d 475 (S. The exceptions were codified in response to the advocates’ concerns that special needs trusts. 223 Id.3d 324.. In Wong v. 947 F.219 Further.Y.”215 D. 217 Id. 337 (5th Cir. it is bound by the strings that accompany them. 403 F. Supplemental Needs Trusts are governed by state law. the trust assets would be considered resources of the beneficiary and could disqualify him from eligibility for government benefits. who triggers a penalty period…. 326-27 (1968). 316. because if the beneficiary had control. 218 Id. 2005). i.. 336 (8th Cir. Smith. some federal case law does exist that sheds light on how the courts have viewed the safe harbor found in subsection (d)(4).. “Once a state has accepted federal funds. They arose in order to provide support for permanently and severely disabled persons. would be underutilized.”220 Advocates for the disabled worried that the tough new laws concerning trusts found in OBRA ’93 would discourage the use of special needs trusts.

224 Being ambiguous. 232 Chevron v. In analyzing (d)(4)(C) and the CMS interpretive memo at issue. 228 Id. ANALYSIS A. “We are compelled to conclude that § 1396p(d)(4)(A) does not require States to exempt special needs trusts from Medicaid eligibility determinations. 229 579 F. we must determine whether Congress has specifically spoken to the precise question at issue. called Hobbs v.225 The court called this argument. at 842 (1984). at 1187. 227 Id. 230 Id. and that it owes deference to CMS’s interpretation of those provisions. 2009). stated.233 Policy decisions are for people. at 866. not the judiciary. Zenderman229 the court addressed the issues and found differently than its Sister Circuits.227 The court thought that the Secretary ignored the obvious explanation. according to the Secretary.30 CAPITAL UNIVERSITY LAW REVIEW [39:XXX subsection is ambiguous. Id. 233 Id. . 226 Id. 467 U. we are reminded that under Chevron.S. 234 Id. at 1181. at 484.230 The court.228 In a disturbing decision out of the Tenth Circuit. The court found that there was no enforceable right under § 1983 found in § 1396p(d)(4). ignoring Congressional intent and the best interests of disabled individuals. “that Congress excepted [(d)(4)(A)] trusts from all eligibility and benefits calculations. The CMS Interpretation from the July 2008 Interpretive Memo Should be Afforded Extremely Limited. 231 Id. the CMS interpretation.”226 and reasoned that Congress created rules and then created an exception to those rules. rather than the “wisdom” of the determination itself. a challenger ought to focus on whether the CMS interpretation is reasonable in light of a gap left by Congress.. Natural Resources Defense Council. “circular.234 224 225 Id. what is the purpose of its existence in the federal Medicaid code? V..232 As the issue of whether there is an age limitation in (d)(4)(C) is a question of policy.3d 1171 (10th Cir. should be afforded considerable deference. 837.”231 This statement of the Tenth Circuit begs the question: if § 1396p(d)(4)(A) does not require states to exempt SNTs from Medicaid eligibility determinations... if Any Deference. and if Congress’s intention is clear from the statute itself.

CMS would then have the authority to fill the interpretive gap. Harris County235. In support of this..2d 58. 242 Detsel by Detsel v.”241 For litigants in the circuits.2008] TITLE/SUBJECT/PARTY v. It is clear that CMS will argue that the subsection’s silence as to age is either a mistake in drafting by Congress or is an issue covered by a preceding subdivision. they do not constitute an interpretation of statute nor do they bind a court. they are simply not as forceful. Congress would do so explicitly. when Congress creates an unambiguous statute like § 1396p(d). 895 F. “our role is not to speculate on what congress ‘actually ha[d] an intent. 585 (2000). which have applied Chevron deference to CMS interpretations. Swift. Sullivan. PARTY 31 According to the decision of Christenson v.240 Further.237 Hence. 241 Id. it must be presumed that if they want to distinguish it.. the Skidmore test requires a review of the opinion’s “thoroughness of consideration. 239 Skidmore v. While CMS’s letter acknowledges that § (d)(4)(C) itself does not contain an age restriction. at 63 (2nd Cir. 235 236 529 U. 240 Id. CMS must argue that the statute is ambiguous in order to have Chevron deference applied. at 140.S. at 140 (1944). Id. consistency with earlier and later pronouncements. a potential litigant should look to the Detsel court which said. .239 According to Skidmore. at 587. 134. we must now look to Skidmore to determine how it should be treated. was Congress’s explicitness about an age limitation in (d)(4)(A) an indication that it explicitly did not include that language in (d)(4)(C)? Further.’”242 Thus. The over 65 litigant must prove that the secretary’s interpretation conflicts with Congress’s explicit intent.. at 139. When regulations (or an interpretation) are not reached because of the interpreter hearing adversarial proceedings in which he finds facts from evidence and reaches conclusions of law from findings of fact. if lacking power to control. and is therefore ambiguous.S.236 Because the CMS letters are not a product of notice-and-comment type promulgation. 237 Id. the CMS interpretive memo is a product of a body of experience and litigants and the courts may be guided by the opinions. the argument must hinge upon the unambiguousness of the federal statute. 238 Id. 1990). validity of its reasoning. 323 U. the interpretation of (d)(4)(C) in the CMS memo lacks the force of law. and all those factors which give it power to persuade.238 Having established that the CMS interpretive memo should not receive Chevron style deference (considerable weight standard). it appears that the July 2008 CMS interpretive memos do not deserve Chevron deference according to the application of Christensen.

N.248 Historically.. Finding a clear interpretation of 42 USCA 1396p through limited treatment by federal courts In Ramey v. 251 Id. however. 729 F.246 B. 260.D.”250 This statement may be the clearest indication of what Congress believes is the “spirit” of the Medicaid program. 246 Id. when the CMS memo communicated a shift in policy. particularly that disabled individuals are the intended recipients of the aid. at 958. Id.3d 955 (10th Cir.249 Congress condemned the use of irrevocable trusts.Supp. Reinertson.245 As a result. at 266. 248 Id. 1990). a plaintiff will claim that the Secretary’s enforcement of the interpretive memo. the July 2008 CMS memo should be given no deferential weight. 249 Id. 250 Id. that not all irrevocable trusts were abusive. individuals would shelter their assets in an irrevocable trust. 262 (W. like the court found in Westmiller. the CMS interpretation of (d)(4)(C) should not be afforded deference because the interpretation was not made contemporaneously with the enactment of the statute. which interprets the Medicaid statute. i.247 the court explained that Congress structured the Medicaid program to direct limited funds to those who were most impoverished.Y. 2001). and is a response to abuse of the system using “Medicaid Qualifying Trusts. 266 (7th Cir.243 Moreover. quoting Mattingly v. 247 268 F. 245 Id. Heckler. . and it contradicts the position of the agency had taken from 1993. to 2008. 1986). The CMS interpretive memo at issue here seeks to divest a disabled individual from his or her right to the safe harbor provision based solely on his or her age. Like the facts in Westmiller. reiterating its intent that “Medicaid was designed to provide basic medical care for those without sufficient income or resources to provide for themselves.. Sullivan. thereby maximizing their income without having available assets. at 263.. maintaining Medicaid eligibility. Furthermore.e. and that if the Medicaid program was intended to benefit those who could not care for 243 244 Westmiller v.”251 Congress recognized.32 CAPITAL UNIVERSITY LAW REVIEW [39:XXX Still a better argument for this situation is that a court should not apply any deference to the CMS memo. when the pooled trust statute was passed. and special needs trusts are designed to supplement a disabled individual’s needs and maintain their dignity.2d 258. while maintaining Medicaid eligibility. contravenes more than 15 years of “uninterrupted federal toleration of and acquiescence” and violates the Medicaid Act. 784 F. the memo here violates the spirit and the letter of the Medicaid act.244 The safe harbor provisions in (d)(4) were established to be consistent with the spirit of the Medicaid law.

3d 1171 (10th Cir. supports this statement.255 the court illuminated the purpose of special needs trusts. 21 ME. as the inclusion of (d)(4) was in response to disability advocates’ concern and pressure.2d 316.261 Neither sections (d)(4)(B) nor (d)(4)(C) (the pooled trust provision) include an age restriction. recall Hobbs v. most of the federal treatment of special needs trusts deal with (d)(4)(A) trusts. § 1396p(d)(4) was unambiguous.. 582 F.S.257 To prove that not all courts are in agreement as to how Congress intended special needs trusts to be treated.. Norwest Bank of North Dakota. 254 Wong v. Hobbs v.3d 1171 (10th Cir. 159 F.2008] TITLE/SUBJECT/PARTY v. stating.259 C. 28.Y 2008) 258 579 F.C.S. but included the safe harbor provisions at (d)(4). Daines. Congress passed OBRA ’93 which effectively ended the use of Medicaid shelter trusts.C. Daines. Supplemental or Special Needs Trusts allow a disabled individual who is very likely to receive Medicaid benefits for their entire life to retain some assets to supplement and dignify their existence. disabled individuals should be able to shelter some assets for their supplemental needs.. The Invisible Age Requirement for Pooled Trusts The Wong court stated that 42 U. Zenderman. v.J. 2009). 261 42 U. the court’s analysis as it pertains to subsection (d)(4) as a whole ends there.C. 259 Id. Zenderman.S. 253 Pooled Supplemental Needs Trusts Help Keep Wolves From Senior’s Doors.N. 579 F. e.2d 475 (S. Thus.D.262 If Congress wanted to impose an age restriction on pooled trusts. N.258 which stated that notwithstanding the exceptional language of (d) (4).253 It is evident from the history that Congress intended special needs trusts to be exceptions to the rules prohibiting the use of irrevocable trusts.254 In Wong v. Wong.2d at 483. 2008). PARTY 33 themselves. it makes little sense to refuse a disabled individual basic medical care until they spend all of the assets they own. “They arose in order to provide support for permanently and severely disabled persons.N. 256 Id. 1998). 2009).”256 However. yet it is important to note what the effect an age restriction would have on (d)(4)(C) as an excepting provision. § 1396p(d)(4). one can only assume they would have done so as they did in subsection (d)(4)(A). 770 F. 582 F. 30-31 (2006). 260 582 F.252 After all.D.260 Section (d)(4)(A) includes an age restriction. DeJesus. states are not required to exempt special needs trusts when determining Medicaid eligibility. Doth.Y. B.Supp. at 1181. at 479. In fact.3d 328 (8th Cir.2d 475 (S. §1396p(d)(4) 252 . 255 Id. as an exception to the general rules prohibiting the use of trusts to shelter assets.Supp. CMS’s interpretive memo suggests that Congress intended for assets in a pooled trust to be exempt from The existence of 42 U.S.A.g. 257 See.Supp. §1396p(d)(4)(A) 262 42 U.C. and rarely examine the nature of the exceptions found within the subsection.

Sabree ex rel.Okla. Sabree v. Fogarty. Congress certainly intended (d)(4)(C) to benefit a disabled individual (as the statute explicitly states so). the statute by its terms must grant that right to an identifiable class..D. Hood. 2007).2002). Lewis v. 264 263 . To be sure. 42 U. Bryson v. Acad. regarding the viability of a § 1983 claim is cause for the high court’s clarification.3d 180 (2004). but Congress intended to penalize the transfers to the trust. e.2d 671 (E. (d)(4)(C) identifies a class – the disabled – and noticeably excludes an age qualification for that class. n. of Pediatrics v. n. 367 F. Susan H.Supp. 265 Infra. 197. in order for Congress to have established a private right. that a disabled individual’s right to utilize the safe harbor was not vague and amorphous.265 and as such gives rise to a § 1983 action. Letter. 196.264 Disallowing disabled individuals from utilizing pooled trusts because they are over 65 years of age is not merely a violation of the law. 136 F.2004). v.Pa.Supp. particularly between the tenth and third circuits. Lankford v.263 Whether you count the assets or impose a transfer penalty. Disabled individuals have a right created within 42 USCAp(d)(4) enforceable by a claim under 42 USCA 1983 It is important first to establish whether there exists a right actionable under § 1983 in order to enforce (d)(4)(C) trusts. the mere fact that they are 65 is being used to disqualify them from receiving Medicaid benefits. SCOTUS should make clear to ensure disabled individuals don’t “outlive” their rights The circuit split that now exists. 195. Rodgers 492 F.3d 79 (1st Cir. the individual is not eligible for Medicaid.3d 709 (11th Cir.D.3d 456 (6th Cir.C. 266 Infra.g.3d 581 (5th Cir.34 CAPITAL UNIVERSITY LAW REVIEW [39:XXX countability.268 Particularly. Richman. 366 F. 308 F. Olszewski.S.D. Lewis v. Doe 1-13 v. 2007). Infra. Okla.1998). 46. Rendell. 2006).3d 1094 (9th Cir.266 Clearly. 267 See.C.S. S.2d 1050 (N. Chiles. D. Shumway.267 E. 501 F. Rendell. 391 F. § 1396p(d)(4)(C) indeed grants a right actionable under § 1983. Zenderman. when one considers See Levin. Applying the logic of various circuits across the country as it pertains to (d)(4)(A) and other Medicaid issues. 442 F. and that the provision is mandatory.2005). Sherman. An individual over 65 years of age has an individual right in the exemptions found in 42 U. The CMS opinion letter of July 2008 inevitably discourages the use of pooled trusts by individuals over the age of 65. Harris v. according to the CMS interpretive memo. n. § 1396p(d)(4). Notwithstanding these individuals’ full compliance with the provisions of (d)(4)(C). but an unfair and unfounded violation of disabled people’s rights. Ball v. Chapter of Am. According to Gonzaga. 268 See Hobbs v. supra n.

Thus. we believe that we must give precedence to section 1917(d)(4)(B)…. eliminating redundant and widespread litigation of the same issue over every county of every state of this country. CMS has already appropriately addressed this issue. and eventually federal litigation places undue hardship on cash-strapped individuals and state administrative agencies facing unprecedented budget concerns. Sally K. 271 Id. the trust will not be subject to collateral attack through an administrative appeal or by another court. CONCLUSION A. 269 270 HCFA Memorandum dated March 17.transfer of assets penalties will not apply to income placed in a [(d)(4)(B)] trust. and its own logic in dealing with that problem should be applied to pooled trusts. the resources spent on administrative appeals. PARTY 35 that a § 1983 plaintiff in a claim to enforce their rights under (d)(4)(C) will likely be over the age of 65.Congress clearly intended…. CMS has done what it sought to avoid fourteen years ago: “…interpreting a provision of the statute as a nullity. The federal agency responsible for the administration of the Medicaid program has already addressed the improper transfer issue as it pertains to (d)(4)(B) trusts.”271 B. US Dept. Clarity in the law. being the grantor of a pooled trust. would undoubtedly serve the public interest far beyond the economic savings the shift in policy was meant to achieve.”270 Notwithstanding its clarification of transfer penalties as they pertain to (d)(4)(B) trusts. If the circuit split remains in place. VI. years of litigation in addition to a disabled and elderly individual’s medical costs are prohibitive to the achievement of justice. Probate courts across the country who oversee guardianships of many elderly disabled deserve some assurance that. See also. state-court litigation. of Health & Human Serv.269 The agency’s original position is perhaps the greatest indication that the interpretive memos of 2008 are founded in policy concerns rather than a genuine concern for the attainment of Congressional intent: “to avoid interpreting a provision of the statute as a nullity.2008] TITLE/SUBJECT/PARTY v. one could imagine an exodus of disabled elderly from nonfriendly jurisdictions to those that embrace the safe harbor Congress provided over 15 years ago.. Director of Medicaid Bureau for HCFA Id. judicial guidance from the federal courts – and the Supreme Court – is required if Probate courts are to adequately protect their wards. Further. . Richardson. CMS Chicago Regional State Letter 08-03 July 2008. 1994. States need Federal Guidance on Special Needs Trusts in order to administer Congressional intent via state laws and regulations.

. § 1396p(d)(4) is disability.36 CAPITAL UNIVERSITY LAW REVIEW [39:XXX C. and is founded on the principle that those in our society who are blind. The Spirit of the Medicaid Act The Medicaid Act was born out of the Great Society legislation. aged or disabled have a right to medical insurance if they cannot provide it for themselves.C.S. it clearly stated so in (d)(4)(A). the CMS interpretive memos of 2008 regarding pooled trusts should serve as an important warning of the power a federal agency can wield over rights explicitly granted to individuals by Congress. Congress clearly made three exceptions for special needs trusts. The common thread in all three trusts under 42 U. and when Congress wanted age to be a determinative factor for the exception. As the nation debates an increased role for the government in the healthcare industry as a whole. While Congress has taken great steps to limit the use of trusts to artificially create Medicaid eligibility.

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