One big element of assisting in estate planning are trusts created to allow MASS HEALTH to provide long-term nursing care. There are seminars which I have attended JUST ON the issue of special trusts and Mass Health (called Medicaid Resulting Trusts). The Office has a copy vetted through appearances before Mass Health hearings. The following are excerpts from an article on the front page of the Massachusetts Lawyers Weekly, which we get. The conflict with Mass Health is literally legal news which people need to be aware of. It also is important to me for those out there to know we try to stay on top of things, one step ahead. Let us know if you find the article informative, interesting. Two years ago, after the Supreme Judicial Court handed down its decision in Daley v. Secretary of the Executive Office of Health and Human Services, elder law attorneys fear the ruling would do little to quell MassHealth's so-called "war on trusts." Those fears have been realized and then some, it seems. In Daley, the SJC held that when a settlor retains a life estate or otherwise reserves the right to occupy his home as part of an irrevocable trust, he does not make the equity in the home a countable asset for the purpose of determining eligibility for MassHealth long-term care benefits. The ruling endorsed the position of a majority of MassHealth hearing officers who had reviewed the issue. While attorneys differ on whether MassHealth has relented on the precise issue in Daley, they agree that the "ware on trusts" has continued unabated on other fronts, with MassHealth's lawyers regularly employing what some say are unethical tactics. MassHealth's primary transgression is that it simply ignores unfavorable precedent, whether it comes after an applicant who disagrees with a Mass Health decision requests a "fair hearing," from the Superior court, or even the SJC and Appeals Court, lawyers say. MassHealth lawyers then re-litigate those same losing issues over and over, hoping to find the rare hearing officer who will accept their arguments. According to Plymouth lawyer Brian E. Barreira, MassHealth is fully aware that 20 previous applicants may have won on a particular issue. Yet when the 21st applicant comes along, not only does the agency issue and defend its denials, it fails to disclose those previous 20 losses. That MassHealth lawyers make the same arguments over and over again is not only frustrating to members of the bar on the other side of the case, it is not fair to Massachusetts citizens, says Nicholas G. Kaltsas of Worcester, one of the attorneys in the Daley case. "They're hurting them the most, and I can't understand why," he says. In one of the decisions Burgess-Cox writes that the SJC in Daley highlighted the US Supreme Court's admonition against states "conjuring fictional sources of income and resources by imputing financial support from persons who have (no) obligation to furnish it." "That is exactly what MassHealth is attempting to do in its arguments raised in this case," Burgess-Cox writes. Attorneys on the other side of the cases say they detect a strategy in the continued, stubborn refusal of MassHealth attorneys to heed what would seem to be clear direction from the state's appellate courts. "When an attorney sees the same basic trust or trust language being repeatedly challenged by the commonwealth but with little success, one can only assume the game being played is to frustrate qualified applicants who are fearful of litigation and it's costs," Correira says. Correira points to a recent case of his in which MassHealth tried to argue that the settlors' special power of appointment made the property in their irrevocable trust countable in assessing their MassHealth eligibility, an argument that the Appeals Court had seemingly rejected in Heyn. To bolster that argument, MassHealth cited to the New Hampshire Supreme Court's 201 decision in Petition of Estate of Thea Braiterman, despite the fact that the special power of appointment in Braiterman allowed the settlor to create a legal obligation to return or use the principal for her benefit, a key difference from the trusts in Heyn and in Correira's client' case. Hearing officer Stanley Kallianidis accepted Correira's argument, but Neeley, too, says she has seen MassHealth attempt to rely on Braiterman to try to avoid the implications of Heyn. While reviewing a file, an attorney discovered a "Legal Review Form for Trusts," apparently designed for MassHealth screening workers to send to the agency's lawyers to seek guidance on whether a trust should be treated as a countable asset. "As you can see, there are some specific issues on the checklist that the MassHealth lawyers don't seem to want to let go of despite their countless losses," Barreira writes. The form is tantamount to "illegal, unwritten trusts regulations," which are virtually impervious to judicial review, according to Barreira. "If the positions in this Law Review Form for Trusts were in regulation form, as they should be, citizens could challenge them through a declaratory judgment under Massachusetts General Laws, Chapter 30A, Section 7", he writes.
Follow Us x
