Lawyers at the Office of Medicaid Attempt to Mislead Hearing Officers and Judges about Federal Medicaid Trust Law

by: Brian E. Barreira, Esq.

The Office of Medicaid makes a willful, reckless misrepresentation of law to the extent that it suggests that all state trust law is to be ignored in the determination of eligibility for Medicaid benefits for long term care.  Current federal Medicaid law (42 USC §1396p(d)) and Massachusetts MassHealth regulations (130 CMR 520.021-520.024) address the treatment of trusts in the Medicaid arena, and they do not state or even imply that all state trust laws or the common law of trusts are to be ignored.

Under the 1985 changes in federal Medicaid trust law, a door had been left open whereby a provision could be placed in the trust limiting trustee discretion in some circumstances; the 1993 federal Medicaid law at 42 USC 1396p(d)(2)(C) corrected that problem, and specifies four (and only four) aspects of state trust law (often referred to by the Defendant as the “common law of  trusts”) that may be ignored in determining an applicant’s Medicaid eligibility:

“(i) the purposes for which a trust is established,

(ii) whether the trustees have or exercise any discretion under the trust,

(iii) any restrictions on when or whether distributions may be made from the trust, or

(iv) any restrictions on the use of distributions from the trust.”

These 1993 changes in federal Medicaid trust law ended the tactical usage of shifting trustee discretion to obtain Medicaid coverage. The 1985 Congressional intention of authorizing scrutiny of irrevocable trusts under state debtor-creditor laws remained unchanged when the 1993 changes were made, and there have been no further changes in federal Medicaid trust law since that time.

Other than these four exceptions in 42 USC 1396p(d)(2)(C), all Massachusetts trust law applies to an Irrevocable Trust in a MassHealth application.  The United States Court of Appeals for the Third Circuit has already examined Congressional intent in this context, and concluded:  “Congress rigorously dictates what assets shall count and what assets shall not count toward Medicaid eligibility.  State law obviously plays a role in determining ownership, property rights, and similar matters.” Lewis v. Alexander, 685 F.3d 325, 334 (3d Cir. 2012) “[T]here is no reason to believe [Congress] abrogated States’ general laws of trusts.  … After all, Congress did not pass a federal body of trust law, estate law, or property law when enacting Medicaid.  It relied and continues to rely on state laws governing such issues.” Lewis at 343.

The Office of Medicaid continually attempts to mislead hearing officers at MassHealth fair hearings and judges in Superior Court appeals by emphasizing yet decontextualizing the phrase “any circumstances” in the 1993 federal Medicaid trust law, when in fact since 1993 these four circumstances in 42 USC 1396p(d)(2)(C) have been the only “circumstances” addressed by the federal Medicaid trust law wherein state trust law is to be ignored.

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