383 F.Supp.2d 276 (2005) | Cited 1 time | D. Massachusetts | August 23, 2005


At the heart of this litigation is the dilemma faced bycouples, often in their later years, when infirmity requires oneof the pair to receive full-time care in an institution while theother remains in the community. The substantial expense incurredby the institutionalized spouse will make eventual reliance uponMedicaid, in many cases, inevitable.

Prior to 1988, eligibility for Medicaid often demanded thevirtual impoverishment of both spouses. The passage of the"Protection of Income and Resources of Couples for Maintenance ofCommunity Spouse" provisions of the Medicare CatastrophicCoverage Act of 1988 ("MCCA"), Pub.L. No. 100-360, § 303,102 Stat. 683, 754-764, sought to end the pauperization of thecommunity spouse by insuring that he or she would havesufficient, but not excessive, income and resources available forsupport. 42 U.S.C. § 1396r-5 See, generally, Wisconsin Department of Health and Family Servicesv. Blumer, 534 U.S. 473, 479-80 (2002).

In Massachusetts, and in many other states, state authorities,in calculating the resources available for the community spousewill deem certain income paid in the name of theinstitutionalized spouse as being available for the communityspouse. With this additional income attributed to the spouseremaining in the community, that spouse will be allocated asmaller percentage of the couple's assets for support, with theresult that the couple will have to spend down a somewhat greaterportion of their assets before the institutionalized spouse willqualify for Medicaid.

Included among the sorts of income that may be deemed availableto the community spouse in Massachusetts are both Social Securityand Veteran's benefits. In other words, in calculating the amountof income available for the spouse remaining in the community,Massachusetts, along with other states, will consider asavailable to the community spouse Social Security and Veteran'sbenefits payable to the husband or wife who is institutionalized.This "deeming" process does not involve actual seizure of anySocial Security or Veteran's benefits, nor does it involve anyrequirement that the institutionalized spouse actually pay anymoney to the community spouse. These funds are simply deemed to be available to the community spouse for purposes ofcalculating the institutionalized spouse's Medicaid eligibility.

The plaintiffs assert that this "deeming" of benefit income infavor of the community spouse violates the "anti-attachment"provisions of the Social Security and Veteran's Acts,42 U.S.C. § 407(a) and 38 U.S.C. § 5301(a)(1), respectively. Plaintiffs havemoved for class certification with regard to this issue, and thecourt has allowed this motion (Docket No. 27). Plaintiffs, inaddition, have moved for summary judgment on their claim ofviolation of the proscription against alienation of SocialSecurity and Veteran's benefits.

Counsel came before this court for argument on the plaintiff'sMotion for Summary Judgment on August 16, 2005. At that time, thecourt inquired with regard to the absence of any cross-motion forsummary judgment offered by the defendants. The defendants'memorandum (Docket No. 32) does seek summary judgment in thedefendants' favor, but no separate motion was filed. Plaintiffs'counsel agreed that the plaintiffs' Motion for Summary Judgmentraised a pure question of law and that, if plaintiffs' motionwere denied, it would be appropriate for the court to considersummary judgment for the defendants. Following oral argument, the court indicated that it would bedenying the plaintiffs' Motion for Summary Judgment and orderingentry of summary judgment in favor of the defendants based uponthe Supreme Court's decision in Washington State Department ofSocial and Health Services v. Guardianship Estate of Keffeler,537 U.S. 371 (2003).

In Keffeler, Justice Souter, writing for a unanimous court,found that the State of Washington's "use of Social Securitybenefits to reimburse itself for some of its initialexpenditures" did not violate the provision of the SocialSecurity Act protecting benefits from "execution, levy,attachment, garnishment, or other legal process."42 U.S.C. § 407(a). Id. at 375. In articulating this holding, the Courttook a narrow view of what constituted legal process for purposesof the anti-alienation provisions of the Social Security Act. Aforbidden legal process "should be understood to be process muchlike the processes of execution, levy, attachment, andgarnishment, and at a minimum, would seem to require utilizationof some judicial or quasi-judicial mechanism, though notnecessarily an elaborate one, by which control over propertypasses from one person to another in order to discharge or securedischarge of an allegedly existing or anticipated liability."Id. at 385. In this case, the "deeming" process used by the Commonwealth ofMassachusetts in determining Medicaid eligibility has even lessresemblance to any "legal process" recognized by the SupremeCourt than the process used by the State of Washington inKeffeler. The mere fact that an unhappy spouse may request afair hearing to review decisions in this "deeming" process doesnot create any type of administrative or judicial mechanismbearing any resemblance to "execution, levy, attachment orgarnishment." Since the Veteran's Act provisions closely parallelthe anti-alienation provisions of the Social Security Act,Keffeler's holding is fatal to both aspects of the plaintiffs'claim here.1

For the foregoing reasons, the plaintiff's Motion for SummaryJudgment (Docket No. 28) is hereby DENIED. This court, suasponte, but with the agreement of both parties, hereby grantssummary judgment for the defendants and orders entry of judgmentfor the defendants on all counts. This case may now be closed. It is So Ordered.

1. Plaintiffs are correct that the Second Circuit's decisionin Robbins v. Dibuono, 218 F. 3d 197 (2nd Cir. 2000), stronglyfavors the plaintiffs here. Robbins, of course, is not bindingin this Circuit, and this court finds it unpersuasive. Moreover,it predates Keffeler, and the Second Circuit has recognizedthat the Supreme Court's more recent decision throws a shadowover Robbins. See Binder & Binder, P.C. v. Barnhart,Commissioner of Social Security Administration, 399 F.3d 128,134 (2nd Cir. 2005).

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