Justice Stevens, in his concurrence, in which three others joined, thought that the rule was prohibited, but the majority declined to reach this issue. See Dokos v. Miller, 517 F. Supp. 1039 (N.D.Ill. 1981), where the court invalidated Illinois' pre-July 1981 transfer rule, noting that " Beltran simply sheds no light on the substantive issues raised in this action." Dokos, 517 F. Supp. at 1042 n. 3.
Two district courts which have considered this issue in reviewing other states' transfer of assets rules have had no difficulty in reaching that conclusion. See Dokos v. Miller, 517 F. Supp. 1039, 1045 n. 8 (N.D.Ill. 1981); Beltran v. Myers, 4 Medicare Medicaid Guide (CCH) ยถ 31,465 (C.D.Cal. July 30, 1981), aff'd, 677 F.2d 1317 (9th Cir. 1982). Appellees argue that the Boren-Long limitations do not apply to Indiana.
At least two other courts have also invalidated transfer of assets rules for this same reason. See Dokos v. Miller, 517 F. Supp. 1039 (N.D.Ill. 1981), and Woodard v. St. Clair, No. J 78-0274(R) (S.D.Miss. Dec. 17, 1980). As the Dokos court stated, "the Federal provisions leave no room for recasting as 'actually available' any assets that the recipient or applicant has in fact relinquished."
Several district courts have also reached this conclusion. See McFarland v. Mitchell, C.A. # C-80-0325 (D.Utah 1982); Dokos v. Miller, 517 F. Supp. 1039 (N.D.Ill. 1981); Woodward v. St. Clair, C.A. # J78-0274(R) (S.D.Miss. 1980).
And regulations assuming that property transferred by an applicant is still available to pay medical bills are invalid. Dokos v. Miller, 517 F. Supp. 1039 (N.D.Ill. 1981); Buckner v. Maher, 424 F. Supp. 366 (D.Conn. 1976), aff'd, 434 U.S. 898, 98 S.Ct. 290, 54 L.Ed.2d 184 (1977). A review of Virginia law pertaining to tax assessments discloses no procedural defect that conclusively results in the over valuation of real property.
A state's ยง 209(b) status does not insulate it from complying with the federal requirement that assets be actually available to an applicant. Dokos v. Miller, 517 F. Supp. 1039 (N.D. Ill. 1981). Because the Department's regulation treats the assets of a discretionary trust as actually available to a beneficiary-applicant, even though the applicant has no legal right to access those resources, it violates the federal "availability" principle and is invalid. Id.