Opinion
13-P-1853
05-29-2015
CAROL BURT, personal representative, v. DIRECTOR OF THE OFFICE OF MEDICAID.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At issue in this appeal is when Catherine Harrington should have been considered otherwise eligible for the Massachusetts Medicaid program (MassHealth) long-term care benefits pursuant to 130 Code Mass. Regs. § 520.019(K)(2)(b)(2) (2008).
Background. Harrington's first application for long-term care coverage requested coverage starting on December 1, 2006. This application was denied on April 10, 2007, because Harrington had transferred assets totalling $179,834.16, which resulted in an ineligibility period from December 1, 2006, to December 1, 2008. The assets transferred included one transfer of $45,000 and a separate transfer of $134,834. Harrington did not appeal this denial but did partially cure one of the disqualifying transfers by receiving almost all of the $45,000 back from her niece before filing her next application for long-term care coverage on June 30, 2008. This partial cure occurred more than sixty days after the notification of the ineligibility period. After relogging Harrington's second application, MassHealth denied the second application because it applied a new penalty period for the outstanding transfer of assets ($135,346.47), which occurred before the first application. MassHealth calculated a new ineligibility period running from March 5, 2008, to July 23, 2009. The plaintiff appealed this decision to the Office of Medicaid board of hearings, which denied her appeal. The plaintiff then sought judicial review. The Superior Court affirmed the Office of Medicaid board of hearings' decision and this appeal followed.
The transfer of $45,000 was described as a loan to her niece and was documented with a promissory note.
As a result, any argument that the promissory note was not a disqualifying transfer is waived. See Gordon v. State Bldg. Code Appeals Bd., 70 Mass. App. Ct. 12, 16 (2007), quoting from Foxboro Harness, Inc. v. State Racing Commn., 42 Mass. App. Ct. 82, 85 (1997).
This was done because it was determined the plaintiff was over assets when the second application was originally reviewed.
Discussion. Harrington reapplied for MassHealth long-term care coverage to begin before the end of the original penalty period because she had partially cured the transfer of assets that caused the original penalty period. This partial cure happened more than sixty days after Harrington received notice of the period of ineligibility, and as a result, Harrington was required to reapply and MassHealth had to "recalculate[] the period of ineligibility based on the amount of the transfer remaining after the cure, beginning with . . . the later of the date of transfer or the date on which the individual would have otherwise been eligible." 130 Code Mass. Regs. § 520.019(K)(2)(b)(2) (2008). There is no dispute that MassHealth did "recalculate[] the period of ineligibility based on the amount of the transfer remaining after the cure," which it calculated to be $135,346.47. Both parties agree that the beginning date for the ineligibility period should be "the date on which [Harrington] would have otherwise been eligible."
However, the plaintiff contends that she was "otherwise . . . eligible" for MassHealth on December 1, 2006, because after her first application MassHealth determined this was the date she was "otherwise eligible." The plaintiff argues it is impermissible under Federal and State law for MassHealth to apply a new ineligibility period for the same transfer that was already penalized because it amounts to a double penalty. The plaintiff's interpretation does not allow MassHealth to account for the assets which were returned, here approximately $45,000, which could be used to pay for long-term health care.
In contrast, MassHealth interprets its regulation to require a reapplication to be reviewed in its entirety and it must make a new determination based on the information submitted as to when the applicant would be otherwise eligible. Once that determination is made, a new penalty period will run from the new "otherwise eligible" date, not from the original date of the penalty period calculated for the first application. MassHealth claims that at the time of Harrington's reapplication she was "otherwise eligible" for MassHealth benefits on March 5, 2008, because prior to that date Harrington had been able to privately pay for her long-term care.
This allows MassHealth to consider the assets that were returned in determining when the applicant is otherwise eligible.
On appeal, the plaintiff asserts that she was only able to make partial payments to the nursing home during the period between December, 2006, and March, 2008. However, she does not raise the argument that the hearing examiner's factual conclusion that "the appellant was paying the facility on her own until March 200[8]" was clearly erroneous, and therefore, we will not address it. Mass.R.A.P 16(a)(4), as amended, 367 Mass. 921 (1975). We are bound by the hearing examiner's factual determinations in absence of an argument that they are clearly erroneous. See generally, G. L. c. 30A, § 14(7)(e) (a party may challenge factual findings as not supported by substantial evidence). We do, however, note that partial payment in each month could not support the conclusion that an applicant was not "otherwise eligible" for each month. Instead, as MassHealth's internal legal memorandum concerning calculating the start date suggested: "[t]he total amount the applicant privately paid the nursing home during the initial penalty period should be calculated and then divided by the daily nursing home rate to arrive at the date the penalty period could begin to run." We further note that the reference by the hearing examiner and the case worker that the date the applicant reapplied, after a partial cure, could affect the "otherwise eligible" date is illogical and would result in a perpetual penalty period. The plaintiff has not raised this issue, and therefore, it has no effect on the appeal.
"An agency's interpretation of its own regulations is entitled to 'considerable deference' and must be upheld unless it is inconsistent with the plain language of the regulation or otherwise arbitrary or unreasonable." Theophilopoulous v. Board of Health of Salem, 85 Mass. App. Ct. 90, 100 (2014), quoting from Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct. 788, 794 (2013). Here, the plain language of the regulation indicates that when a transfer is cured MassHealth "will rescind or adjust the period of ineligibility and will apply the countable-assets rules at 130 CMR 520.007 and the countable-income rules at 130 CMR 520.009 to the returned resources in the determination of eligibility." 130 Code Mass. Regs. § 520.019(K)(2)(b) (2008). It further provides that when a partial cure is completed "later than the 60th day after the date of the notice of a period of ineligibility" the applicant "must reapply" and the MassHealth agency will "recalculate" the period of ineligibility "beginning with . . . the later of the date of transfer or the date on which the individual would have otherwise been eligible." 130 Code Mass. Regs. § 520.019(K)(2)(b)(2) (2008). Nothing in the plain language of the regulations requires that the start date for the recalculated penalty period be the same day that the prior penalty period began. In addition, the agency's interpretation allows MassHealth to consider the returned assets in determining when the applicant was "otherwise eligible," which "comports with the Federal and State legislative and regulatory scheme for providing a needs-based program aimed at maximizing the use of personal funds for long-term care before relying on public funds." Shelales v. Director of Office of Medicaid, 75 Mass. App. Ct. 636, 640-641 (2009). See 130 Code Mass. Regs. § 517.008 (1999) (MassHealth agency "is payer of last resort and pays for health care and related services only when no other source of payment is available, except as otherwise required by federal law"). Furthermore, we have upheld as reasonable MassHealth's interpretation that an "individual is not otherwise eligible for MassHealth payment of long-term care" at a time when nursing home services have been paid for, even though the individual met the other eligibility requirements. See Shelales, 75 Mass. App. Ct. at 640 (MassHealth's "determination that Shelales did not become eligible for payment of long-term nursing care until her prepayment to the nursing home was exhausted is a reasonable interpretation of the pertinent regulations that accords with both the plain language and the intent of the governing legislation"). This interpretation is part of what MassHealth relies upon in determining when Harrington was otherwise eligible.
In that case, the court indicated that Shelales' countable assets were less than $2,000, she was over age sixty-five, and was medically eligible for nursing facility care. However, because she had prepaid for services, she was not considered to be "otherwise eligible" until the nursing home would need payment. See Shelales, 75 Mass. App. Ct. at 639 & n.7.
Finally, we are not persuaded that this interpretation is inconsistent with Federal law. The Federal statutory scheme requires that if the applicant disposes of an asset for less than market value after February 8, 2006, the applicant will be ineligible from "the first day of a month during or after which assets have been transferred for less than fair market value, or the date on which the individual is eligible for medical assistance under the State plan and would otherwise be receiving institutional level care . . . based on an approved application for such care but for the application of the penalty period, whichever is later, and which does not occur during any other period of ineligibility under this subsection." 42 U.S.C. § 1396p(c)(1)(D)(ii) (2006). This statute does not address how a partial cure affects the start date of the ineligibility period. Instead, the plaintiff asserts that "informal, written interpretative guidance," from the Centers for Medicare & Medicaid Services (CMS), a Federal agency, provided to a Connecticut official concerning proposed Connecticut regulations, require us to conclude that MassHealth's interpretation does not conform with Federal law. However, as MassHealth argues, this letter, which does not address a Massachusetts regulation, was followed by an additional clarification letter that stated "CMS has not developed any formal guidance on this issue post-DRA [the Deficit Reduction Act of 2005]. In the absence of formal CMS guidance a State may adopt any reasonable methodology for considering the availability of returned assets for the purposes of Medicaid eligibility. We do believe that the State is not required to count the fully returned assets as having been available to the individual from the date of transfer." In addition, the letter the plaintiff submitted appears to be addressing Connecticut's attempt to apply guidance that was provided before the enactment of the Deficit Reduction Act to its current regulation. As a result, we cannot reasonably conclude that the letter's original guidance concerning another State's regulation precludes MassHealth's interpretation here.
The proposed regulations are not included in the record.
The plaintiff has not provided us with a citation to any decision that applies her requested interpretation.
MassHealth's interpretation of its partial cure regulation must be upheld because it is reasonable and comports with the Federal and State scheme.
The plaintiff's argument that 130 Code Mass. Regs. § 520.019 (N) (2008), which prohibits "double penalty," is applicable to this situation is incorrect. That section of the regulation prohibits applying both the transfer rules and the trust rules to the same transfer of resources. The present appeal does not present a factual situation that is governed by that section.
Judgment affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 29, 2015.