Opinion
HHBCV156027650S
11-24-2015
Paul Valliere et al. v. Roderick Bremby, Commissioner of the State of Connecticut Department of Social Services
UNPUBLISHED OPINION
Filed Date November 25, 2015
MEMORANDUM OF DECISION RE PLAINTIFFS' APPEAL
Cesar A. Noble, J.
This appeal by the plaintiffs, Paul Valliere; Ellen D. Shea, Conservator of the Estate and of the Person of Marjorie D. Valliere, Incapable, and Plaintiff, Executrix Ellen D. Shea, Executrix of the Estate of Marjorie D. Valliere (the " plaintiffs"), from the decision of the defendant Commissioner (the " commissioner") of the Department of Social Services (the " department") raises the question of what is the appropriate methodology for establishing the amount of a community spouse allowance (the " CSA") in the context of the determination of Medicaid's contribution to an institutionalized applicant's medical bills. The CSA is significant because it is deducted from the institutionalized spouse's income in arriving at what is known as the " applied income, " which is defined as that income applied to the cost of his or her medical care. The plaintiffs claim error in the commissioner's application of a CSA calculation that resulted in a zero community spouse allowance and $898.45 in applied income rather than a prior Probate Court CSA calculation which would have resulted in a CSA of $1, 170.33 and no applied income. The court agrees with the plaintiffs and reverses the commissioner's decision.
The CSA is referred to in the Medicaid statute as the community spouse monthly income allowance or CSMIA. 42 U.S.C. § 1396r-5(d)(2). Because the department uses the term community spouse allowance, or CSA, DSS Uniform Policy Manual (the UPM) § 5035.30, it will be referred to here as such.
I. FACTS AND PROCEDURAL HISTORY
The record of the administrative hearing establishes the following facts, none of which is in dispute. On November 24, 2012, Marjorie Valliere (hereinafter " Valliere"), now deceased, was institutionalized at a long-term care facility. Her daughter, Ellen Shea, was appointed conservator of the estate for the appellant (the " conservator") by the Probate Court. At all times relevant to this appeal Valliere's spouse, Paul Valliere (the " spouse"), lived in the community. The conservator applied to the Probate Court, pursuant to § § 17b-261b and 45a-655, for an order of spousal support for the spouse on March 21, 2013. (Return of Record (" ROR"), pp. 93-95). At the time of the application, Valliere had neither applied for nor received Medicaid. As required by § 17b-261b, Valliere forwarded a copy of the application to the department. There is nothing in the record that indicates whether the commissioner did or did not attend the subsequent Probate Court hearing. The commissioner makes no claim, however, nor was there any finding of fact, that he was not provided the appropriate notice of the hearing or in any way deprived of the right to appear at such hearing and present his position as to the application in person or in writing, all of which are mandated by § 17b-261b.
General Statutes § 17b-261b provides:
General Statutes § 45a-655 provides in pertinent part:
The commissioner asserts in his brief that Attorney Hugh Barber, his counsel, did not attend the Probate Court hearing, which assertion was not disputed by the plaintiffs at oral argument.
On June 25, 2013, the Probate Court issued a decree ordering monthly spousal support in the amount of $1, 170.33 to be paid by Valliere to the spouse. (ROR, pp. 99-101.) That amount represented her total net income. The Probate Court decree provided that the spousal support payment was " known, identified and defined as the community spouse monthly income allowance or the community spouse allowance in 42 U.S.C. 1396r-5(d)(5) and in Uniform Policy Manual § 5035.30.B.1.b." Id. The Probate Court based its spousal support order, the CSA, on the " proper under the circumstances of this case" standard. (ROR, p. 100.) This standard is, if not generous in detail, the appropriate standard to be applied pursuant to General Statutes § 45a-655(b), where the applicant is not receiving or has not applied for Medicaid assistance. There is no claim that the department did not receive the proper notice of the decision.
On July 13, 2013, less than one month after the decree issued, Valliere applied to the department for Medicaid assistance.
On January 21, 2014, the department sent Valliere a Notice of Action and Notice of Approval for Long-Term Medicaid. The Notice of Approval for Long-Term Medicaid declared Valliere eligible to receive Medicaid benefits but found that: 1) The spouse was not eligible for a CSA, and 2) Valliere was required to contribute $898.45 from her income toward her cost of care (applied income). (ROR, p. 66.)
The department's finding as to the amount of the CSA was derived from the application of one of two standards contemplated by the Medicaid scheme as written by Congress and incorporated by the department in its Uniform Policy Manual. The first standard requires a computation of the difference between the community spouse's minimum monthly maintenance needs and his monthly income (hereinafter the " MMMNA calculation"). 42 U.S.C. § 1396r-5(d)(2) and UPM § 5035.30.B.1.a. The second standard is applicable where an order is entered by a court against an institutionalized spouse for monthly income of the community spouse. In these circumstances the CSA " shall be not less than the amount of the monthly income so ordered." 42 U.S.C. § 1396r-5(d)(5) and UPM § 5035.30.B.1.b. The department concluded it was not bound by the probate court's order and instead applied the first standard, the MMMNA calculation, which resulted in a greater applied income amount. This decision forms the crux of this appeal.
The plaintiffs requested a hearing pursuant to General Statutes § 4-176e et seq. and 42 U.S.C. § 1396r-5(e)(2) claiming error in the application of the MMMNA calculation rather than the adoption of the Probate Court order. This appeal stems from the Fair Hearing Decision to reject the plaintiffs' claim. The commissioner's Fair Hearing Notice of Decision, and his argument in this appeal, is that the department is not bound either by its own policy manual or the federal statute.
The plaintiffs conceded at oral argument that they made no claim that any limitations on income to the spouse imposed by the finding of no CSA would result in significant financial duress. Such a condition would entitle a community spouse to an increase in the minimum monthly maintenance needs allowance which in turn impacts the CSA. 42 U.S.C.A. § 1396r-5(e)(2)(B).
II. APPLICABLE LAW
A. Legal Standard of Review
Under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., judicial review of an agency decision is very restricted. See Martorelli v. Department of Transportation, 316 Conn. 538, 544-45, 114 A.3d 912 (2015). This is especially so where the issues appealed involve questions of fact or the weight of the evidence. See General Statutes § 4-183. " Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Internal quotation marks omitted.) Schallenkemp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994). " It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion . . ." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
The plaintiffs, however, do not challenge the commissioner's essential findings of facts. Instead, the issue joined is a pure question of law for which the Supreme Court has articulated a different standard of review. " Cases that present pure questions of law . . . invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Shanahan v. Dept. of Environmental Protection, 305 Conn. 681, 716, 47 A.3d 364 (2012). The court is mindful that great deference must normally be given to the construction of a statute by the agency charged with its enforcement. Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 372, 627 A.2d 1296 (1993). However, when " a case presents only questions of law, an administrative agency's legal determinations are not entitled to any special deference, unless they previously have been subject to judicial review or to a governmental agency's time-tested interpretation" (citations omitted). Planning & Zoning Commission of Town of Monroe v. Freedom of Information Commission, 316 Conn. 1, 9, 110 A.3d 419, 425 (2015).
The issue presented here, one purely of law, is the proper determination of the CSA by the department where the Probate Court previously issued an " order against an institutionalized spouse for monthly income for the support of the community spouse." None of the parties suggest that the department's interpretation has been subjected to judicial scrutiny. Indeed, neither party cited any case addressing the issue of which standard is applicable. Neither have any of the parties suggested that the commissioner's legal determination in this case resulted from the department's time-tested interpretation. No deference is thus awarded the commissioner's Fair Hearing Notice of Decision. " Instead, [w]ell settled principles of statutory interpretation govern our review . . . Because statutory interpretation is a question of law, our review is de novo . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered." (Citations omitted; internal quotation marks omitted.) Id., 9-10. Furthermore, statutory language is interpreted " in light of the purpose and policy behind the enactment." (Citations omitted; internal quotation marks omitted.) Tilcon Conn., Inc. v. Comm'r of Envtl. Prot., 317 Conn. 628, 651, 119 A.3d 1158 (2015).
The court finds that the statutes are unambiguous and there is only one plausible interpretation of the statutory and regulatory scheme such that the department must adopt the Probate Court spousal allowance.
B. Medicaid Statutory Scheme
The Medicaid program, enacted in 1965 as Title XIX of the Social Security Act, 42 U.S.C § § 1396 through 1396u, is a cooperative federal-state venture which is designed to afford medical assistance, including long-term institutionalization, to persons whose income and resources are insufficient to meet the financial demands of necessary care and services. Atkins v. Rivera, 477 U.S. 154, 156, 106 S.Ct. 2456, 91 L.Ed.2d 131 (1986). Its administration is undertaken by the states. Robbins ex rel. Robbins v. DeBuono, 218 F.3d 197, 199 (2nd Cir. 2000), cert. denied, 531 U.S. 1071, 121 S.Ct. 760, 148 L.Ed.2d 662 (2001). The state's administration of the Medicaid program must, however, be consistent with federal standards and regulations. See 42 U.S.C. § 1396a(a) (1-83); Cleary ex rel. Cleary v. Waldman, 167 F.3d 801, 805 (3rd Cir.), cert. denied, 528 U.S. 870, 120 S.Ct. 170, 145 L.Ed.2d 144 (1999); New Mexico Dept. of Human Services v. HCFA, 4 F.3d 882, 883 (10th Cir. 1993). Connecticut courts have recognized that the federal statutes and regulations set a limit upon the authority of the Commissioner as well as furnish a guide to his administration of the program. See Clark v. Commissioner, 209 Conn. 390, 396-97, 551 A.2d 729 (1988); Morgan v. White 168 Conn. 336, 343-44, 362 A.2d 505 (1975). In Connecticut, the Commissioner administers the plan under the authority of General Statutes § 17b-260 which requires him to act in " accordance with the requirements provided" by Title XIX, 42 U.S.C. § 1396 et seq.
Because financial eligibility for Medicaid benefits requires income and assets below mandated levels, individuals who seek such benefits are confronted with the need to divest themselves of sufficient assets and income to qualify. Until 1988, a married couple was confronted with the devastating requirement to use nearly all of its income to offset the costs of the institutionalized spouse's treatment. Congress sought to remedy the resulting near destitution of the community spouse by enacting the " Protection of Income and Resources of Couples for Maintenance of Community Spouse" provisions of the Medicare Catastrophic Coverage Act of 1988 (MCCA). Pub. L. No. 100-360, § 303, 102 Stat. 683, 754-64; see also Bianconi v. Preston, 383 F.Supp.2d 276, 277 (D.Mass. 2005). These provisions sought to insure that the community spouse had " sufficient but not excessive income and resources available while the other spouse is institutionalized." (Citation omitted; internal quotation marks omitted.) Cleary ex rel. Cleary v. Waldman, supra, 167 F.3d 805. To that end, Congress set a minimum income and asset allowance for the community spouse. Ruck v. Novello, 295 F.Supp.2d 258, 260 (W.D.N.Y. 2003). The standard for the determination of the income allowance serves as the basis for the dispute in this appeal.
It is axiomatic that spouses have the joint duty to support themselves and their families. See General Statutes § 46b-37.
Section 1396r-5(d)(3) of title 42 of the United States Code, part of the MCCA establishes a formula for the determination of a minimum monthly maintenance needs allowance (the " MMMNA") for the support of the community spouse. If the income of the community spouse is less than the MMMNA, the difference is considered the maximum allowable limit of the CSA, which sum is called herein the MMMMNA calculation. The CSA in turn is a sum which may be deducted from the income of the institutionalized spouse that would otherwise be made available for the payment of the institutionalized spouse's medical expenses. 42 U.S.C. § 1396r-5(d)(1) and (2). " If a community spouse's income does not equal or exceed the MMMNA, the amount of the shortfall is 'deducted' from the income of the institutionalized spouse--reducing the amount of income that would otherwise be considered available for the institutionalized spouse's care--so long as that income is actually made available to the community spouse." Koehler v. Colorado Dept. of Health Care Policy & Financing, 252 P.3d 1174, 1176 (Colo.App. 2010), citing Wisconsin Dept. of Health & Family Services v. Blumer, 534 U.S. 473, 481-82, 122 S.Ct. 962, 151 L.Ed.2d 935 (2002) and 42 U.S.C. § 1396r-5(d)(1)(B). The benefit of the CSA to the married couple is that less of the institutionalized spouse's income is exposed for contribution to medical expenses, more of the expenses are absorbed by the Medicaid program, and the community spouse realizes a greater share of the marital income.
In the event that either the institutionalized spouse or the community spouse is dissatisfied with the CSA and claims a need for income above the monthly needs allowance, they are entitled to a hearing regarding such determination. Section 1396r-5(e)(2)(B) provides that the complaining spouse must, in order to obtain additional consideration for their MMMNA, show " exceptional circumstances resulting in significant financial duress." As noted earlier, the plaintiffs here acknowledged in oral argument that they have not shown such significant financial duress.
The MCCA provides, however, another source from which the CSA may be set. 42 U.S.C. § 1396r-5(d)(5) states " If a court has entered an order against an institutionalized spouse for monthly income for the support of the community spouse, the community spouse monthly income allowance for the spouse shall be not less than the amount of the monthly income so ordered." [emphasis applied]. Thus, the MCCA contemplates not only that the CSA may be determined by an entity other than the department, a court, but that if such a court does enter such an order the CSA " shall" be no less than the amount ordered. The Uniform Policy Manual written by the department mirrors the MCCA. This provides that " The CSA is equal to the greater of the following. a. the difference between the Minimum Monthly Needs Allowance (MMNA) and the community spouse gross monthly income, or b. the amount established pursuant to court order for the purpose of providing necessary spousal support." UPM § 5035.30.B.1.
III. DISCUSSION
The only issue raised by this appeal is whether the commissioner acted correctly in applying the calculation set out in 42 U.S.C. § 1396r-5(d)(2) through (4) in determining the CSA rather than adopting the order of the Probate Court. Neither the appellant nor the commissioner raised, argued, or briefed the issue of whether the Probate Court correctly applied the " proper under the circumstances of the case" standard required by General Statutes § 45a-655(b) in its determination of the appropriate CSA. That issue is, thus, not before the court.
The court agrees that the commissioner erred in concluding that he was entitled to apply an MMMNA calculation as the standard for determining the CSA, rather than adopting the order of the Probate Court. While § 1396r-5 conceives of two methods by which the CSA may be established, where such a court order exists, both the statutory scheme and the department's policy manual provide for the mandatory adoption of and deference to a prior court order setting the CSA in lieu of the MMMNA calculation standard.
The authority of the Probate Court to establish a CSA is derived from General Statutes § 45a-655. This statute generally addresses the duties of the conservator in the management of an estate. It authorizes a conservator to apply a portion of the income of a conserved person to the support, maintenance, and medical treatment of the conserved person's spouse. General Statutes § 45a-655(b). Prior to the application of such income, the conservator is required to submit the proposed use of the income to the Probate Court for its approval. The only standard articulated by subsection (b) of the statute is that the amount be " proper under the circumstances of the case." General Statutes § 45a-655(b).
Subsection (d) of § 45a-655 modifies the standard the Probate Court must apply for the determination of the CSA, where an institutionalized conserved person " has applied for or is receiving [Medicaid]." In such a case, the Probate Court is prohibited from approving an application of the " net income of the conserved person to the support of the conserved person's spouse in an amount that exceeds the monthly income allowed a community spouse as determined by the Department of Social Services pursuant to 42 U.S.C. 1396r-5(d)(2) through (4) . . . unless such limitations on income would result in significant financial duress." General Statutes § 45a-655(d). The legislature thus harmonized the standards the Probate Court must utilize in the approval of a CSA with the Medicaid scheme. If no prior court order has entered then the department is free, indeed required, to apply the standard enunciated by 42 U.S.C § 1396r-5(d)(2) through (4). Where a prior court order regarding a CSA has entered however, the department is obliged to adopt that amount pursuant to § 1396r-5(d)(5). The department's failure to have followed the federal and state statutory schemes requires the commissioner's finding to be set aside.
This conclusion is buttressed by the rules the department adopted that govern its administration of the Medicaid program. General Statutes § 17b-10 mandates that the department will prepare policy manuals containing policy regulations and substantive procedures. The department has done so by way of the DSS Uniform Policy Manual (UPM). Such policy manuals " shall be construed to have been adopted as regulations . . ." General Statutes § 17b-10(a). " The department's uniform policy manual is the equivalent of a state regulation and, as such, carries the force of law." Bucchere v. Rowe, supra, 43 Conn.Supp. at 178, citing General Statutes § 17b-10; Richard v. Commissioner of Income Maintenance, 214 Conn. 601, 573 A.2d 712 (1990); see generally McDonald v. Rowe, 43 Conn.App. 39, 44, 682 A.2d 542 (1996).
UPM § 5000, Treatment of Income, states, " This section describes how income received by the assistance unit [Medicaid recipient] and certain individuals outside the assistance unit is treated." UPM § 5035.30 addresses the handling of a CSA. This section incorporates the divergent approaches to a determination of the CSA found in § 1396r-5(d). This section, entitled " Calculation of CSA, " provides that the " CSA is equal to the greater of the following: a. the difference between the Minimum Monthly Needs Allowance (MMNA) and the community spouse gross monthly income; or b. the amount established pursuant to court order for the purpose of providing necessary spousal support." UPM § 5035.30.B. The department thus has created a scheme for itself which contemplates the adoption of a prior court order as the amount of the applicable CSA.
The department and commissioner contend that because the department is the sole agency to determine eligibility for assistance and services available under the Medicaid program, it has the sole right to determine what amount, if any, should be assigned as a CSA. General Statutes § 17b-261b(a) does indeed state that the department " shall be the sole agency to determine eligibility for assistance and services under programs operated and administered by said department." This statute appears to have been written in conformance with 42 U.S.C. § 1396a(a)(5) and 42 C.F.R. § 431.10, which limit the administration and supervision of the Medicaid program to a single state agency.
The department's argument is essentially an assertion that because the department is the single state agency tasked with the administration of the Medicaid program, it is not bound by the statutes enacted by the Congress, the state legislature, or the rules it adopted for itself. This is an absurd and untenable position. The commissioner's stance would permit him to ignore the federal Medicaid statutory framework which he and the department are obliged to follow pursuant to General Statutes § 17b-261, which requires the commissioner to administer the Medicaid program in accordance with the requirements of Title XIX which, in turn, explicitly require the CSA to be not less than an amount ordered by a court.
There is scant case law or other authority addressing the issue presented by this appeal. What case law exists on the question of how the CSA is to be determined, however, provides support for the proposition that the department is required to follow its own policy manual and the federal statute.
In Gomprecht v. Gomprecht, 86 N.Y.2d 47, 652 N.E.2d 936, 629 N.Y.S.2d 190 (1995), the New York Court of Appeals held that the harmonization of the New York Medicaid statutory scheme and a family law statute charging one spouse with the support of his or her spouse required the application of the Medicaid MMMNA calculation rather than a standard found in the latter statute The relevant New York Medicaid statute, Social Services Law § 366-c, was promulgated to implement at the state level the federal MCCA. Gomprecht v. Gomprecht, supra, 86 N.Y.2d 50. Section 366-c applies an MMNA calculation similar to the federal Medicaid statute, 42 U.S.C. § 1396r-5(d)(2) through (4). Social Services Law § 366-c(2)(d). Also similar to § 42 U.S.C. 1396r-5(d), Social Services Law § 366-c contains a provision for the adoption of a court order for the support of the community spouse. Social Services Law § 366-c(2)(d)(iv).
The plaintiff, a community spouse, obtained an order in Family Court against her institutionalized spouse under Family Court Act § 412 for an amount which was substantially greater than the MMNA provided to the plaintiff for spousal support under § 366-c. The Family Court had applied the § 412 standard of " due regard to the circumstances of the respective parties" in determining the CSA. The Family Court order was appealed with the issue consisting of whether the Family Court was free to apply the § 412 standard rather than the MMMNA calculation under Social Services Law § 366-c. The Appellate Court held that the Family Court was obliged to apply the MMMNA calculation articulated in Social Services Law § 366-c(2)(d). The Court reached this decision by reading § 366-c in conjunction with § 412. The " due regard to the circumstances of the respective parties" standard not only must be guided by the income standards of Social Services Law § 366-c, but also required consideration of the fact that one spouse was institutionalized at the public's expense. The Court of Appeals thus held that the proper interpretation of the standard under § 412 mandated the application of the MMMNA calculation. Here, the commissioner has not questioned the Probate Court's interpretation or application of the " proper under the circumstances of the case" standard found in § 45a-655.
The United States District Court for the Southern District of New York had the opportunity to review the Gomprecht decision in a collateral attack on the validity of its conclusion. The court in Jenkins v. Fields, United States District Court, Docket No 95 CIV. 9603 (JSM), (S.D.N.Y. May 1, 1996), considered a purported class action on behalf of community spouses whose institutionalized spouses were receiving Medicaid assistance The plaintiff sought an injunction enjoining the New York Family Court from applying the MMMNA calculation rather than the § 412 " due regard of the circumstances of the respective parties' standard." The plaintiff claimed that the Gomprecht ruling violated federal law because Congress intended that state court support orders be based on a less demanding standard than the Medicaid standard. The plaintiff argued that absent such a conclusion, the court ordered support alternative in the Medicaid scheme was rendered meaningless.
The court acknowledged that the federal Medicaid statutory scheme did not set a standard to be applied in state court support proceedings and declined to conclude that any such standard was contemplated by Congress by inclusion of the § 1396r-5(d) provision allowing a state court order to set the minimum amount of a CSA. " Instead, § 1396r-5(d)(5) appears to be intended to do no more than permit State courts to apply a more lenient standard in support proceedings in State courts if they chose to do so . . . At most, Congress did not want to be in a position, as a direct and automatic result of its passage of the Medicaid amendments [MCCA], of itself taking income from the relatively few community spouses who had obtained greater benefits as a matter of State law and policy." Jenkins v. Field, supra, United States District Court, Docket No. 95 CIV 9603 (JSM) . While New York could have adopted a different standard for arriving at a CSA, an examination of its statutory scheme yielded the conclusion that it simply did not. Id. Accordingly, the injunction was denied.
In M.E.F. v. A.B.F., 393 N.J.Super. 543, 925 A.2d 12 (App.Div. 2007), the Appellate Division of New Jersey examined the relationship between the " court ordered support" and " fair hearing" of the MCCA in determining the MMMNA of a community spouse who sought more money than the CSA provided by the state Medicaid program. The court considered the appeal from a family court decision of a community spouse seeking a CSA from an institutionalized spouse receiving Medicaid assistance. The community spouse had received an upwards adjustment of her MMMNA, but rather than pursuing a statutorily available administrative remedy of a fair hearing, applied for a collateral decision for a CSA from the Family Part of the New Jersey Superior Court. That judge determined that the MCCA's provisions regarding court orders of support applied only to orders in existence prior to an application for Medicaid eligibility and that the community spouse, having already begun her administrative process, was obliged to exhaust her remedies M.E.F. v. A.B.F., supra, 393 N.J.Super. 547-50.
The Appellate Division affirmed the decision of the Family Part judge. It held that the use of the past tense in 42 U.S.C. § 1396r-5(d)(5) suggested that the court ordered support provision referred to in § 1396r-5(d)(5) implicate only those orders in existence at the time of a Medicaid eligibility determination. The Appellate Court commented: " It is noteworthy that the Act does not authorize the community spouse to obtain a court order after eligibility has been determined, nor does it explicitly permit parallel proceedings. It merely recognizes the effect of an order of support if it has been previously obtained." M.E.F. v. A.B.F., supra, 393 N.J.Super. 555. The effect was such that where a court had previously entered an order for support the court order had a " preemptive effect." Id.
" If a court has entered an order against an institutionalized spouse for monthly income for the support of the community spouse, the community spouse monthly income allowance for the spouse shall be not less than the amount of the monthly income so ordered." (Emphasis added.) 42 U.S.C.A. § 1396r-5(d)(5).
This court concurs with the persuasive reasoning of the New Jersey Appellate Division. To conclude otherwise would be to render meaningless the provisions of 42 U.S.C. § 1396r-5(d)(5), which this court may not do. A statute must be interpreted so as to ensure that no provision is treated as superfluous, void or insignificant See Kasica v. Columbia, 309 Conn. 85, 101, 70 A.3d 1 (2013).
The commissioner notes the timing of the Medicaid application by the appellant and suggests a conscious machination on her part. Indeed, the hearing officer characterized the pre-application Probate Court activity as the " Appellant's attempt to circumvent the Medicaid eligibility process by having the court issue the community spouse monthly income allowance or the community spouse allowance, instead of having the Department make that determination." (ROR, p. 29.) This ignores not only the temporal relationship of the court order to the Medicaid application, as noted by the M.E.F. v. A.B.F, court, but also the importance of timing to the applicable standard for a CSA delineated in General Statutes § 45a-655. This statute sets out two applicable standards which a Probate Court is directed to use when establishing a CSA. While § 45a-655(b) mandates a " proper under the circumstances of the case" standard be generally applied, § 45a-655(d) directs that where an institutionalized person " has applied for or is receiving [Medicaid] no conservator shall apply and no court shall approve the application of [a sum determined pursuant to § 1396r-5(d)(2) through (4)]." Here the undisputed evidence is that the appellant had neither applied for nor was receiving Medicaid assistance at the time the Probate Court approved the CSA. The statute is utterly silent as to any automatic modification of a CSA triggered by a conserved person's application for Medicaid. While § 45a-655 does not explicitly provide the commissioner with a remedy to address a prior court order of a CSA that may well be greater than that computed by a MMMNA calculation, any such lacuna must be addressed not by this court, which is not at liberty to rewrite statutes, but by the legislature. See Okeke v. Commissioner of Public Health, 304 Conn. 317, 329-30, 39 A.3d 1095 (2012).
The commissioner is not without remedy. General Statutes § 17b-261b(b) requires that any person filing an application for spousal support with the Probate Court shall provide a copy of such application to the commissioner and the court shall provide notice of a hearing at least fifteen business days prior to the hearing. The statute further provides that the commissioner or a designee shall have the right to appear at such hearing and to present the commissioner's position as to the application in person or in writing. General Statutes § 17b-261b(b) Here, the commissioner could have appeared or written to the Probate Court and requested that any order contain a provision modifying the CSA upon the application or receipt of Medicaid benefits by the conserved person.
The commissioner correctly points out in his post-hearing supplemental brief that intervention in a Probate Court proceeding requires standing and directs the court's attention to State v. Goggin, 208 Conn. 606, 546 A.2d 250 (1988). The state claimed a fraudulent conveyance of a life estate vested in the institutionalized recipient which was terminated by the Probate Court and thereafter sold by the remaindermen to third parties. The defendant remaindermen invoked the Probate Court's decree terminating the life estate and approving the conveyance to the remaindermen. The trial court granted judgment against the state on the basis that the Probate Court order precluded the state from seeking recovery. Id., 609-12. The Supreme Court found error because the state had not been a party to the probate proceeding and in fact its interest arose months after the probate decree when an application for public assistance was filed. Id., 614. The state would similarly have been unable to appeal the decree because it was not a party aggrieved by the probate order at the time it was issued. Id., 615.
The fallacy in the commissioner's assertion and reliance on Goggin lies in the Connecticut Medicaid statutory scheme which specifically provides the department with standing to present its position. General Statutes § 17b-261b. This statute became effective in 2001 (Public Acts, Spec. Sess., June 2001 No 01-2, § 5, eff. July 1, 2001) and as such, was not considered by the court in State v. Goggin .
The court concludes that pursuant to 42 U.S.C. § 1396r-5(d)(5), relevant Connecticut statutes including General Statutes § 45a-655, as well as the commissioner's own policy manual, the department is obliged to adopt a Probate Court order awarding a CSA where the order predates an institutionalized person's application for Medicaid.
Wherefore, the judgment is reversed and the case is remanded with direction to sustain the plaintiffs' appeal.
(a) The Department of Social Services shall be the sole agency to determine eligibility for assistance and services under programs operated and administered by said department. (b) Any person filing an application with a probate court for spousal support, in accordance with section 45a-655, shall certify to that court that a copy of the application and accompanying attachments have been sent by regular mail, postage prepaid, to the Commissioner of Social Services. The probate court shall provide a notice of hearing to the commissioner at least fifteen business days prior to the hearing. The commissioner or a designee shall have the right to appear at such hearing and may present the commissioner's position as to the application in person or in writing. Any final order by the court on such application for spousal support shall be sent to the commissioner within seven business days of the order. (c) No probate court shall approve an application for spousal support of a community spouse unless (1) notice is provided in accordance with subsection (b) of this section, and (2) the order is consistent with state and federal law.
(b) Any conservator of the estate of a married person may apply such portion of the property of the conserved person to the support, maintenance and medical treatment of the conserved person's spouse which the Court of Probate, upon hearing after notice, decides to be proper under the circumstances of the case . . . (d) In the case of any person receiving public assistance, state-administered general assistance or Medicaid, the conservator of the estate shall apply toward the cost of care of such person any assets exceeding limits on assets set by statute or regulations adopted by the Commissioner of Social Services. Notwithstanding the provisions of subsections (a) and (b) of this section, in the case of an institutionalized person who has applied for or is receiving such medical assistance, no conservator shall apply and no court shall approve the application of (1) the net income of the conserved person to the support of the conserved person's spouse in an amount that exceeds the monthly income allowed a community spouse as determined by the Department of Social Services pursuant to 42 U.S.C. 1396r-5(d)(2)-(4), or (2) any portion of the property of the conserved person to the support, maintenance and medical treatment of the conserved person's spouse in an amount that exceeds the amount determined allowable by the department pursuant to 42 U.S.C 1396r-5(f)(1) and (2), notwithstanding the provisions of 42 U.S.C. 1396r-5(f)(2)(A)(iv), unless such limitations on income would result in significant financial duress.