Opinion
10-P-211
09-27-2011
EUNICE S. SMITH, executrix, v. THE SOLDIERS' HOME IN HOLYOKE & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a decision of a judge of the Superior Court, on cross motions for summary judgment, declaring that the Soldiers' Home in Holyoke and its administrator, Paul A. Morin (collectively, Home) had the authority, pursuant to c. 184, § 229, of the Acts of 2002, to collect monthly aid and attendance (A&A) payments received from the Department of Veterans Affairs (VA) by the plaintiff's decedent, Herbert H. Spencer, as an additional charge for Spencer's long-term care. We agree with much of the judge's reasoning, i.e., that A&A was a source of 'income' for purposes of § 229, and that the collection of A&A by the Home did not conflict with Federal law. In other respects, we take a different view of the case.
Section 229 provides, in relevant part: 'For the soldiers' home in Holyoke, the charge for long-term care beds shall be $20. The first $500 of a married veteran's monthly income shall be exempt and spousal income shall not be used in payment of these charges. The first $300 of an unmarried [v]eteran's monthly income shall be exempt. The veteran shall maintain adequate medical insurance. The soldiers' home may apply for any other income or benefits on behalf of a veteran and shall retain that income as part of the monthly charge.'
Although the judge also ruled against the plaintiff on counts for conversion and breach of contract, she limits her appeal to her count for declaratory judgment.
The Home's customary practice notwithstanding, it has not been made to appear that the trustees of the Home had any authority to collect A&A from Spencer at the inception of his residency in November, 1999. At oral argument, the Home pointed to only two potential sources of such authority: § 229, which permits the Home to 'retain' other income of its residents, but which was not enacted until July, 2002; and G. L. c. 115A, § 5, which long has allowed the trustees of the two Massachusetts Soldiers' Homes to issue and promulgate reasonable rules and regulations in some areas, but which made no mention of the trustees' authority over charges until July, 2003. We consider of each of these laws in turn.
According to the Home's answers to interrogatories, it had a long-standing practice of collecting A&A from any resident entitled to receive it from the VA -- initially only as a credit against monthly room and board charges, but later as an additional payment beyond those charges. (A. 352) Ordinarily the Home made arrangements with the resident and the VA to have the resident's A&A payments sent directly to the Home, but according to the affidavit of Morin, although the Home applied for A&A on Spencer's behalf, his A&A payments were deposited in his own bank account by direct deposit, instead of going to the Home. Upon realizing that this was the case, the Home demanded that the plaintiff, as Spencer's guardian, remit the A&A payments to the Home. (A. 360-361)
The Home is governed by a board of trustees, comprised of seven members appointed by the Governor. (A. 360)
The plaintiff does not contend that anything turns on the word 'retain,' or the fact that, in this particular case, the Home sought to collect Spencer's A&A, as distinct from receiving it directly and keeping it.
Although § 229 is inartfully written, its language is plain and capable of reasonable construction. Of particular significance is the phrase 'as part of the monthly charge' (emphasis supplied). In view of this phrase, a reasonable reading of § 229 is that it authorized the Home to apply other income (including A&A) to make up the maximum monthly charge of a resident otherwise entitled to reduced charges because of low income; but it did not authorize the Home to collect A&A in addition to the maximum monthly charge. Although 'monthly charge' is not defined in § 229, we infer from the statutory language that a resident's 'monthly charge' is the product of the number of days in a given month multiplied by the daily bed charge. There is no dispute that, at his income level, Spencer paid the maximum monthly charge at all times. Accordingly, there was no shortfall to make up, and § 229 did not authorize the Home to collect his A&A.
This phrase was not addressed in the decision below.
The Home's own literature uses this formulation. A letter addressed to families of residents shows, under the heading 'monthly charge,' the daily bed charge multiplied by the number of days in the month. (A. 99) The same letter refers to the Home's claimed entitlement to A&A under the heading 'other charges.' (A. 100)
Insofar as G. L. c. 115A, § 5, is concerned, we fail to see (and the Home has not explained) how this statute conferred authority upon the trustees to set or to raise charges prior to its amendment, effective July 1, 2003. Only after this amendment did § 5 allow the trustees to increase charges, 'subject to the approval of the secretary of health and human services.' After the amendment was adopted, the trustees voted on charges to take effect on November 1, 2003 (A. 379), and secured the approval of Ronald Preston, then the Secretary of the Executive Office of Health and Human Services (A. 381). The approved charges for long-term care residents like Spencer were stated as follows: 'Veteran without spouse $30.00 per day with a $300.00 personal exemption from monthly income. Income shall not include Aid and Attendance, which shall be retained by the Home' (emphasis supplied). These approved charges, adopted in accordance with § 5, did permit A&A to be retained by the Home separate and apart from daily charges. The Home therefore became entitled to collect A&A from Spencer as an additional charge, as of November 1, 2003.
As originally inserted, G. L. c. 115A, § 5, provided in relevant part: 'Nothing in this chapter shall be construed to prevent the trustees of the Soldiers' Home in Massachusetts and the trustees of the Soldiers' Home in Holyoke from adopting, issuing and promulgating reasonable rules and regulations governing out-patient treatment at, admission to, and hospitalization in, said Homes.' St. 1954, c. 627, § 42. The 2003 amendment inserted 'including an increase in any charges, subject to the approval of the secretary of health and human services in' following 'hospitalization in.' St. 2003, c. 26, § 307. The amendment was approved on June 30, 2003, as an emergency act, and by § 715, made effective July 1, 2003.
Previously, as illustrated by § 229, it appears that charges were set by session law.
Pursuant to the analysis, supra, we vacate the judgment as to count I (declaratory judgment) and remand the case to the Superior Court for: (1) the entry of a new declaration that the Home became entitled to collect Spencer's A&A in addition to his monthly room and board charges, as of November 1, 2003; (2) the determination of the status of Spencer's account at the time of his death, taking into consideration underpayments and overpayments made by Smith; and (3) the entry of an order directing the disposition of monies that the parties have informed us have been placed in escrow by the plaintiff during the pendency of this case.
Because there are funds in escrow, and because affording complete relief requires entry of a declaratory judgment as to the disposition of those funds based upon the status of Spencer's account, we disagree with the Home's argument (contained in its response to this court's order of July 21, 2011) that this matter has become moot due to Spencer's death.
--------
So ordered.
By the Court (Kafker, Cohen & Rubin, JJ.),