Wisconsin Department of Health and Family Services v. Blumer

PETITIONER:Wisconsin Department of Health and Family Services
RESPONDENT:Blumer
LOCATION:Oklahoma School District

DOCKET NO.: 00-952
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: State appellate court

CITATION: 534 US 473 (2002)
ARGUED: Dec 03, 2001
DECIDED: Feb 20, 2002

ADVOCATES:
Jeffrey A. Lamken – Argued the cause for the United States as amicus curiae, by special leave of the Court, supporting the petitioner
Maureen M. Flanagan – Madison, Wisconsin, argued the cause for the petitioner
Mitchell Hagopian – Argued the cause for the respondent

Facts of the case

The spousal impoverishment provisions of the Medicare Catastrophic Coverage Act of 1988 (MCCA) permit a spouse living at home to reserve certain income and assets to meet the minimum monthly maintenance needs he or she will have when the other spouse is institutionalized, usually in a nursing home, and becomes eligible for Medicaid. The MCCA’s resource allocation rules provide that, in determining the institutionalized spouse’s Medicaid eligibility, a portion of the couple’s resources, called the “community spouse resource allowance” (CSRA), shall be reserved for the benefit of the community spouse. The MCCA allows an increase in the standard allowance if either spouse shows, at a state-administered hearing, that the community spouse will not be able to maintain the statutorily defined minimum level of income on which to live after the institutionalized spouse gains Medicaid eligibility. In 1996, after entering a Wisconsin nursing home, Irene Blumer applied for Medicaid through her husband Burnett and ultimately sought a higher CSRA. Under the “income-first” method for determining whether the community spouse is entitled to a higher CSRA, which Wisconsin uses, the State considers first whether potential income transfers from the institutionalized spouse will suffice to enable the community spouse to meet monthly needs once the institutionalized spouse qualifies for Medicaid. Subsequently, an examiner denied Blumer’s request. The Court of Appeals affirmed, but the Wisconsin Court of Appeals reversed, concluding that the State’s income-first statute conflicted with the MCCA, which, the appeals court held, unambiguously mandates the resources-first method.

Question

Is the income-first method of determining whether a community spouse is entitled to a higher community spouse resource allowance consistent with the Medicare Catastrophic Coverage Act of 1988?

William H. Rehnquist:

We’ll hear argument first this morning in Number oh oh nine five two, the Wisconsin Department of Health and Human Services versus Irene Blumer.

Ms. Flanagan.

[Inaudible]

Maureen M. Flanagan:

Mr. Chief Justice, and may it please the Court.

In nineteen eighty-eight, Congress enacted the spousal impoverishment protections of the Federal Medicaid Act, forty two US Code section thirteen ninety-six R five, to accomplish two competing purposes.

First, Congress sought to protect spouses living at home from impoverishment when the other spouse is institutionalized and requires long-term nursing home care.

Secondly, Congress sought to ensure that married couples seeking Medicaid bear a fair share of the cost of such care.

This case concerns whether States have the discretion to achieve those competing goals by taking into account at the time Medicaid eligibility is determined available income which the nursing home spouse is permitted to use after eligibility to support the at-home spouse.

When the nursing home spouse applies for Medicaid, section thirteen ninety-six R five permits the community spouse to retain certain income and resources to mit- to meet his own monthly maintenance needs.

The statute permits an increase in the standard resource allowance, however, if the at-home spouse can show at a fair hearing that the allowance will be inadequate to provide him with income at the State-protected level once the nursing home spouse qualifies for Medicaid.

When making this determination, Wisconsin, like more than thirty other States, first considers whether income available to the at-home spouse from the nursing home spouse will be sufficient to ensure the protected level of income once Medicaid eligibility occurs.

This method of determining whether to increase or to substitute the standard resource allowance is called the income-first rule.

[Inaudible]

William H. Rehnquist:

And what do the other States do?

Maureen M. Flanagan:

The the remaining States use a methodology called resource first, in which they look first to the additional resources above the standard resource allowance.

The- These cases only arise where the couple has resources above the standard allowance.

In…

this case…

John Paul Stevens:

It’d be very helpful to me if, right at this point, you pointed the statutory pointed out the statutory provision that authorizes the State to transfer income at this stage.

Maureen M. Flanagan:

The the statutory provision, I think, specifically is found in forty-two US Code thirteen ninety-six A, sub A seven- sub seventeen, which deals with State standards for eligibility and and the Secretary’s authority to set standards for…

determining availability.

William H. Rehnquist:

a handy reference in the brief somewhere to the, where we can see that?

Maureen M. Flanagan:

It’s in the Attor- the Solicitor General’s appendix at the first thing in their appendix is the codified statute, thirty- s- thirteen ninety-six R five, the one we are discussing primarily, and no, I’m sorry, thirteen ninety-six A is in the first thing in the Solicitor General’s appendix.

William H. Rehnquist:

Page one A?

Maureen M. Flanagan:

Yes, and A seventeen.

John Paul Stevens:

That’s eight A.

Antonin Scalia:

Eight A?

It looks like seven…

Maureen M. Flanagan:

Honor, it is.

William H. Rehnquist:

Then where in s- s- number seventeen is the language that you’re answering Justice Stevens with?

Maureen M. Flanagan:

Okay, I- A A seventeen provides that the Secretary shall include reasonable standards, and then you skip the one pareth- parenthetical, for determining eligibility for and the extent of medical assistance under the State plan, and then under B, provide for taking into account only such income and resources as are as determined in accordance with standards prescribed by the Secretary available to the applicant or recipient, et cetera.

Sandra Day O’Connor:

Well,

Maureen M. Flanagan:

And…

Excuse me.

Sandra Day O’Connor:

let me ask you a question on this point, if I may.

Maureen M. Flanagan:

That’s right.

Sandra Day O’Connor:

And you’re talking now about post eligibility?

Maureen M. Flanagan:

We’re talking about a determination that’s made at the point of eligibility, but which concerns income available post eligibility.

Sandra Day O’Connor:

Well, it says pre-eligibility none of the income of the community spouse shall be deemed available…

to the institutionalized spouse.

Maureen M. Flanagan:

Well…

Sandra Day O’Connor:

And that provision wouldn’t make sense if income of the community spouse itself included income of the institutionalized spouse.

Maureen M. Flanagan:

Well, I think, Your Honor, the…

Sandra Day O’Connor:

Would it? That wouldn’t make any sense.

Maureen M. Flanagan:

I think you have to take into account that you’re talking about income being calculated at different points in the temporal spectrum for different purposes.

Sandra Day O’Connor:

Well, you’re you seem to be arguing that the phrase, community spouse’s income in C in E two C includes income from the institutionalized spouse,

I think…

Sandra Day O’Connor:

it can’t under that section I read, I think.

how you got there. Uh-huh.

Maureen M. Flanagan:

refers only to prohibiting income of the community spouse from being deemed available…

to the nursing home.

Antonin Scalia:

point is undoubtedly correct that income of the community spouse there means income of the community spouse alone, not any attri- attributed income from the institutionalized spouse, right?

[Inaudible]

Antonin Scalia:

Isn’t that right? It It has to mean only the income of the community spouse.

I think you have to look at…

Maureen M. Flanagan:

what’s available at that point.

That’s that’s…

Antonin Scalia:

Do you Do you have any other section in the act in which the phrase, income of the community spouse, means not just the income of the s- p- community spouse alone, but also income that has been attributed from the institutionalized spouse?

Maureen M. Flanagan:

Under the definition of community spouse, income maintenance allowance, I believe that which is under subsection D to B…

Antonin Scalia:

D to what?

Maureen M. Flanagan:

D to B, refers…

William H. Rehnquist:

Can you tell us where in the app- in the SG’s appendix that is?

John Paul Stevens:

It’s on fifty-nine A of your cert petition.

Antonin Scalia:

Eighteen A of the…

John Paul Stevens:

Fifty-nine A.

Maureen M. Flanagan:

At any rate, that that particular section refers to monthly income otherwise available to the community spouse, and the…

our position…

Maureen M. Flanagan:

is that this evidences an recognition of the of the fact, as Medicaid has long recognized, that spouses are required to s- support one another, and that this is a a background rule.

Ruth Bader Ginsburg:

Ms. Flanagan, it might help if I think one of the main features of this legislation was that income from the community spouse was never to be attributed to the institutionalized spouse, but vice versa, there there is no such prohibition.

Maureen M. Flanagan:

That’s right,

Your Honor.

wha- — none of…

Ruth Bader Ginsburg:

this makes sense unless you appreciate that there that was an absolute prohibition.

institutionalized…

Maureen M. Flanagan:

subsection B one, thirteen ninety-six R five B one, and that was referred to…

Sandra Day O’Connor:

That was the section I read to you…

Maureen M. Flanagan:

Right.

Sandra Day O’Connor:

in my question.

Stephen G. Breyer:

Yes.

Maureen M. Flanagan:

Yes.

Antonin Scalia:

Could could I have an answer to my question? The the section you just referred me to is still not another section other than the one at issue here in which the simple phrase, income of the community spouse, is used in a sense that means the the community spouse’s own income plus any income attributed to the community spouse from the institutionalized spouse.

Maureen M. Flanagan:

I don’t believe it’s used anywhere else.

means.

Antonin Scalia:

no, I think that rather solves the difficulty, frankly.

I disagree…

Antonin Scalia:

think that ins- that income of the of the community spouse means income of the community spouse, and you say it means no, the community spouse’s own income plus attributed income.

income.

Maureen M. Flanagan:

respect, Your Honor, the Medicaid statute has long considered available income as part of the income of the person to which it’s referring, and…

we…

Antonin Scalia:

does that, that’s all I’m asking for.

Maureen M. Flanagan:

Th- that particular phrase is not used frequently in this statute.

used specifically here.

John Paul Stevens:

the the situation you’re talking about we’re deeming in the other direction, where they deem the community spouse income to be attributable to the institutionalized spouse, not vice versa?

Maureen M. Flanagan:

Well, Your Honor, Justice Stevens, the the background rule which I referred to which this Court clearly articulated in Gray Panthers case is that spouses are expected to support one another.

John Paul Stevens:

But that was for purposes of determining how much of the community spouse’s income should be deemed to belong to the institutionalized spouse.

Maureen M. Flanagan:

That’s right.

street,

Maureen M. Flanagan:

and the Court clearly recognized that.

soon as eligibility occurs.

John Paul Stevens:

that the resource-first rule gives greater protection to the community spouse than the income-first rule?

Maureen M. Flanagan:

The the result is that it permits the in general it frequently permits the at-home spouse to retain a greater share of the couple’s joint resources than would be the case under the State-defined standard resource allowance, and in that sense, yes, that’s definitely correct.

William H. Rehnquist:

Ms. Flanagan, am am I right in thinking that the, neither the act we’re talking about nor the SSI actually define community spouse’s income?

Maureen M. Flanagan:

No, it doesn’t.

considered.

Anthony M. Kennedy:

income-first rule in Wisconsin adopted by the legislature, or by a State agency? Or…

Maureen M. Flanagan:

It was initially adopted as a matter of policy by the State agency immediately after passage of the statute.

Anthony M. Kennedy:

So then your State court, I take it, under prevailing Wisconsin rules, could not ignore the legislature’s determination unless it found that the Federal statute was unambiguous.

Maureen M. Flanagan:

That well, that is what they did, yes, Your Honor.

David H. Souter:

Ms. Flanagan, as I understand it, the there’s a provision and these have been referred to this morning, but there’s a provision that forbids attribution from the community spouse to the institutionalized spouse period, no qualifications on that.

During institutionalization.

David H. Souter:

There’s also a provision which recognizes the possibility of transferring income from the institutionalized spouse to the community spouse after eligibility has been determined, but does not require any such transfer.

basically correct?

Maureen M. Flanagan:

require the transfer.

the statute…

Maureen M. Flanagan:

to…

David H. Souter:

R-

Maureen M. Flanagan:

basically require them to do it.

David H. Souter:

But it doesn’t, that latter provision doesn’t make any reference to the period before eligibility, and I guess my question is, why don’t we why don’t we infer some kind of a negative inference when when the provision refers totally to the post eligibility period, why don’t we find some negative implication that it was not expected in the pre-eligibility period?

Maureen M. Flanagan:

Well, the fact is that the calculation that ta- the the hearing officers ask to be made here concerns the post eligibility period.

David H. Souter:

So so basically the answer is, the fair hearing has got to take place before eligibility is determined , and that’s in effect the answer to my…

question.

Maureen M. Flanagan:

but the calculation is looking ahead,

if there are no…

Antonin Scalia:

And if you can’t give me an answer right away, maybe you can when you come back.

Maureen M. Flanagan:

Well, that really doesn’t arise because of subsection B one, which expressly precludes that.

Antonin Scalia:

Okay.

William H. Rehnquist:

Thank you.

Maureen M. Flanagan:

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Ms. Flanagan.

Sandra Day O’Connor:

Mr. Lamken, you’ve heard the questions, and it is difficult, looking at the text of the statute, to figure out what supports the petitioner’s view, although, as I understand it, that is also the view of the Federal Government here.

Jeffrey A. Lamken:

Yes, Your Honor.

our…

Sandra Day O’Connor:

are there proposed regulations of HHS that would allow either resource-first or income-first rules?

Jeffrey A. Lamken:

Yes, Your Honor.

Sandra Day O’Connor:

How far along is that process? When is that going to be adopted?

[Inaudible]

Jeffrey A. Lamken:

November sixth.

Antonin Scalia:

Can I ask what authority the Secretary has to say that the statute is ambiguous, so it can mean either one? We don’t even let Federal agencies do that under Chevron.

Jeffrey A. Lamken:

Justice Scalia, I think the answer comes in two parts.

In addition, this…

Antonin Scalia:

that about e- every ambiguity, I mean, that there are two different methodologies.

point source,

Antonin Scalia:

yeah im- yeah point source of emission.

Jeffrey A. Lamken:

In fact, Justice Scalia, this Court has upheld precisely that type of regulation issued by the Secretary.

and are reasonable, they must be withheld — upheld.

John Paul Stevens:

if I understand it correctly, there is express statutory authorization for the refour- resource-first method, whereas the income-first method is drawn by inference from what you consider ambiguities?

Jeffrey A. Lamken:

No, Your Honor.

in…

John Paul Stevens:

Would you go over that a little more slowly…

for me? How do you read B one to cover reverse…

John Paul Stevens:

deeming as well as deeming?

Jeffrey A. Lamken:

Right.

John Paul Stevens:

Correct.

Jeffrey A. Lamken:

The inference to be drawn from that is that there is no prohibition on deeming income of the institutionalized spouse…

John Paul Stevens:

But even if there’s no prohibition, where is your authorization for doing this? That’s what I don’t find in the…

statute.

Jeffrey A. Lamken:

Your Honor, it was a it’s a…

se-

John Paul Stevens:

you start from a background rule of the name on the check as a background rule for the whole SSI program, how can you change that rule without authorization?

Jeffrey A. Lamken:

That’s the mistake, Justice…

John Paul Stevens:

Pardon me?

Jeffrey A. Lamken:

That’s the mistake, Justice Stevens.

to support…

John Paul Stevens:

statute does it say that?

Jeffrey A. Lamken:

The statute doesn’t but st- Congress said it when it enacted the Medicaid Act in the first instance, and that was the established rule under the Secretary’s policies at the time that this statute was enacted.

the income of one spouse may be deemed to another.

Jeffrey A. Lamken:

I’m sorry.

John Paul Stevens:

That was deeming, not reverse deeming.

No, Your Honor. In fact,

Jeffrey A. Lamken:

deeming did occur reverse deeming did occur, or could occur under the prior policies, particularly in section two oh nine B states.

spouse…

Antonin Scalia:

leave that background principle in place, and we can all concede that it’s in place, without thereby coming to the belief that when you say income of the community spouse, you mean, income of the community spouse plus whatever is deemed attributable to the community spouse.

Jeffrey A. Lamken:

Your Honor, it would be the the Secretary’s or the regulations that existed at this time, when they discussed what we count as your income, as your applicant for SSI, for example, it said, we count as your income your income plus income from other people, so that it treated it as the individual’s income, and that is consistent with the background principle that sp- each spouse’s income is income to the other spouse, and when States may establish reasonable standards…

for…

Antonin Scalia:

sorry what did it mean, income from other people?

Jeffrey A. Lamken:

Their…

account…

Antonin Scalia:

given you by your children on a regular basis, and things of that sort?

Jeffrey A. Lamken:

Well, actually attributed inc- income, Justice Scalia, actual income that’s passed over you don’t need a deeming rule, because…

that’s actually…

Antonin Scalia:

you you you…

don’t…

Antonin Scalia:

mean that.

Jeffrey A. Lamken:

for responsible individuals there were categories, such as spouses, such as parents, such as there is another category I can’t remember the name of, but where somebody had e- e- responsibility for supporting you, their income was deemed to be your income for determining your eligibility.

And that…

David H. Souter:

it the only thing that you’ve got expressed in the record anywhere to indicate that that really is what Congress had in mind is the statement in the legislative history that is quoted in the briefs that refers to other income attributed,

is that right? So y-

David H. Souter:

That’s the only thing in black and white.

Jeffrey A. Lamken:

That is the only thing in black and white, other than the fact that the settled background principles the Secretary operated under before the enactment would treat the income of one spouse as available to the other.

but deeming in the other direction occurred.

William H. Rehnquist:

Thank you, Mr. Lamken.

Sandra Day O’Connor:

Counsel, would you mind telling us why it matters which rule is followed by a State, resource for first or income first, not just in an individual case, but overall? Who who saves what in terms of money if you do one thing or the other?

Mitchell Hagopian:

Yes, Justice O’Connor.

Doesn’t it also make possible…

Ruth Bader Ginsburg:

the the payments, the the actual payments start earlier? I mean, the the reason this this was of such concern is that the institutionalized spouse would not be eligible monthly for checks, so that the immediate effect was to she could pay down more rapidly what was her excess resources before she qualified.

Mitchell Hagopian:

Yes.

Ruth Bader Ginsburg:

The the Yes, so that bu- Justice O’Connor asked you what the effect of when I…

Yes.

Ruth Bader Ginsburg:

the most immediate effect of, is she starts to collect Medicaid sooner and doesn’t use…

Mitchell Hagopian:

the…

Ruth Bader Ginsburg:

spousal resources.

Mitchell Hagopian:

Now I understand your question.

Ruth Bader Ginsburg:

Maybe I’m not making myself clear.

Yes, that’s…

Mitchell Hagopian:

correct.

Ruth Bader Ginsburg:

Yeah.

Anthony M. Kennedy:

But but doesn’t that assume your case and not the more typical case, the more typical case, e- given statistical projections, is that the husband will be the institutionalized per- and so in the typical case it will not work to the advantage of the couple?

Mitchell Hagopian:

Well I I s- I would agree with you, Justice Kennedy, that the typical case is statistically that it is the husband that goes into the nursing home first, and we don’t have that case here today, but I I believe I disagree with you a- as to the effect that this has.

[Inaudible]

Antonin Scalia:

I’m sorry.

Mitchell Hagopian:

I don’t think I answered your question, Justice Kennedy i- But the i- the institutionalized spouse, if it is the high- er Are Am I are you asking me whether, if the institutionalized spouse has a higher income, that that what happened here won’t happen? Is that the question,

or that…

Anthony M. Kennedy:

yi- Yes.

Mitchell Hagopian:

That’s correct, so in fact in many cases the income first rule will have a worse effect when the husband is the one that goes in first.

Well if if…

Sandra Day O’Connor:

States cannot follow this income-first rule, maybe they would just respond by reducing the minimum monthly maintenance needs allowance and adjust it that way.

Yes.

Sandra Day O’Connor:

Or adjust downward the resources protectable for the community spouse.

Mitchell Hagopian:

Yes.

Sandra Day O’Connor:

How many States are using income first?

Mitchell Hagopian:

We don’t exactly know.

Of course,

Antonin Scalia:

I suppose a really hard-nosed State could do both, right, could use the income-first rule plus plus adjust downward the the other I mean, th- the the two don’t go with each other.

That’s correct.

Antonin Scalia:

downward or use the income first.

if they do it this way.

Antonin Scalia:

What is your burden if it is ambiguous? If it is ambiguous, do do you lose, do you acknowledge that you lose?

Mitchell Hagopian:

Oh, absolutely not Justice Scalia.

Antonin Scalia:

Do you think the ambiguity has — Do you think the ambiguity has to be resolved, or can can the Secretary just just leave the ambiguity floating out there?

Mitchell Hagopian:

Well, that’s essentially what they’ve decided to do…

in the proposed…

Mitchell Hagopian:

rule is to leave it floating.

to do it.

Antonin Scalia:

By proper, you mean lawful? y-

Mitchell Hagopian:

Lawful, that’s…

correct.

Antonin Scalia:

are not permitted to do that?

Mitchell Hagopian:

That’s right.

William H. Rehnquist:

Well, what…

i- i- with…

William H. Rehnquist:

a case like Batterton against Francis, then?

Mitchell Hagopian:

Well, Your Honor, I believe that in a case like Batterton B V Francis, w- we have a different set of rules here.

William H. Rehnquist:

Well, but you know, it’s still the general same ball park.

Mitchell Hagopian:

Mhm.

William H. Rehnquist:

Well, you say the question is resolved.

Mitchell Hagopian:

Yes, Your Honor.

William H. Rehnquist:

And how how does that follow?

Mitchell Hagopian:

Well, there’s a a couple of first of all, the the authority that the Secretary has relied on to issue its proposed rule and apparently from which its authority to develop the rule at all is thirteen ninety-six A A seventeen sub B.

one.

William H. Rehnquist:

This is very difficult to take…

in aurally.

William H. Rehnquist:

But go ahead if you want.

Mitchell Hagopian:

It’s almost as difficult to say it.

John Paul Stevens:

May I ask you a question? I know a case is easier if you don’t look at the legislative history, and so it’s probably easier for my colleague than it is for me.

Mitchell Hagopian:

Well, i- i- I’ve two responses to that, Justice Stevens.

Antonin Scalia:

In In that particular provision, to retain an adequate amount of resources, all that all that any other income attributable to the community spouse need mean is income attributable to him from sources other than interest on on on his on his resources.

Mitchell Hagopian:

The institutionalized spouse’s wages, or the…

Antonin Scalia:

The community spouse’s…

Oh, yes,

Mitchell Hagopian:

absolutely.

I think it does.

Antonin Scalia:

I mean it…

Mitchell Hagopian:

Yes, I believe that it does…

[Inaudible]

Antonin Scalia:

is the resources that provide income, which means, you know, stocks or whatever, and all that phrase there need mean is something, any any other income attributable to him from something other than his stocks.

Mitchell Hagopian:

Right.

Antonin Scalia:

Such as his wages,

right?

David H. Souter:

You your argument in in the event that we find ambiguity is I guess boils down simply to the fact that for a variety of reasons it would frustrate the congressional policy behind the act itself if we held against you, and yet in a in a way, haven’t you provided a an answer to that, a counter to that argument in in your answer to a question a few moments ago? You you said, and I I think have to say, that if if the States lose on the particular issue before us here, the States as a practical matter can get to the same kind of rough dollar and cents result simply by adjusting the the the the the amount of resources, that is the the the the th- the baseline amount for the community spouse to retain and the amount of income which is thought to be necessary for the community spouse to to live decently, so it it it almost seems as though it doesn’t very much matter, necessarily, to the enactment of whatever policy Congress had, whether the flexibility comes in income first versus resource first, or whether it comes in setting the the the allowances for income and assets.

Mitchell Hagopian:

Well, I think that the answer to that is that the resource-first allowance, refor- resource-first rule was placed in a provision that is what we call the fail safe provision.

but in…

David H. Souter:

this is kind of an exceptional case kind of mechanism, regardless of how you set income and resources.

Mitchell Hagopian:

Absolutely.

David H. Souter:

And as an as a as an exceptional case mechanism, it’s only going to work if it works the way you say, on a resource-first basis?

Mitchell Hagopian:

That’s right, and and to stress the exceptional case component of it, you have to remember how you get one of these hearings.

Ruth Bader Ginsburg:

Have you read the notice of the proposed rulemaking?

Mitchell Hagopian:

Yes, I have, Justice Ginsburg.

Ruth Bader Ginsburg:

And I suppose your argument is to the effect that that is just not a permissible interpretation of the statute?

Mitchell Hagopian:

Yes, that’s certainly one of our arguments against it.

Sandra Day O’Connor:

Do we owe any deference to the agency here in its interpretation?

Mitchell Hagopian:

Well, because our position is that the position they’re taking is totally unreasonable, no, you don’t owe any deference to the agency.

Sandra Day O’Connor:

Does the income-first rule mean that at the end of the day less Federal money is spent on Medicaid care?

Mitchell Hagopian:

Not necessarily.

John Paul Stevens:

Would you comment on on c one of the questions I asked Mr. Lamken, whether the background rule is the name-on-the-check rule, or as he puts it, the ri- the better view is the background rule is one of deeming, and so that we should start from the premise that it’s okay to treat one spouse’s income as part of the other spouse.

Mitchell Hagopian:

Right.

John Paul Stevens:

Well, even under this program, as I understand it, in the post eligibility determination the income can be transferred from the institutionalized spouse to the community spouse.

Yes.

Stephen G. Breyer:

I might ask one question.

Mitchell Hagopian:

Tha- that was a question?

Stephen G. Breyer:

I was putting the thing…

because I I want you to…

Stephen G. Breyer:

see that at the moment I’m thinking, well, I can’t figure it out but I’m working with those examples and and since I can’t, I say, leave it up to the Secretary, leave it up to the State, leave it up to somebody else as long as the statutue allows that I I wanted to expose that to you because I want you to have a chance to say, no, you’re wrong, your example is wrong, your reasoning is wrong, everything’s wrong, so, go ahead.

Mitchell Hagopian:

I I concur with everything you just said, Justice Breyer.

Stephen G. Breyer:

Although that you make a big point of that.

Mitchell Hagopian:

It would be.

Sandra Day O’Connor:

I would have thought that your response would be the statutory language requires the result you’re urging, but you don’t make that argument, apparently.

Mitchell Hagopian:

No, no, we do make that…

argument, Justice O’Connor. Yes. The statutory language definitely does require…

Sandra Day O’Connor:

hear that in response to the question.

Mitchell Hagopian:

Well, it was in the opening that I didn’t get a chance to make, so In your response to Justice Breyer, isn’t it so, or am I counsel, am…

I…

Mitchell Hagopian:

[Inaudible]

Ruth Bader Ginsburg:

wrong in thinking that under ERISA there is a requirement to provide for the surviving spouse, it isn’t the option of the insured individual?

Mitchell Hagopian:

Well, I’m no expert on ERISA, but I believe that there is a notice requirement and a sign-off requirement in ERISA.

Ruth Bader Ginsburg:

But it’s not the insured’s election in the first place.

Right.

Ruth Bader Ginsburg:

it isn’t the wage earner’s choice…

No.

Ruth Bader Ginsburg:

I don’t want, usually her, to be any part of it.

Mitchell Hagopian:

That’s right, but I think those decisions are made at a time when long-term care is not necessarily in the immediate offing, and maybe usually at age sixty-five or thereabouts, long before nursing home stays may be inevitable, and so the couple is making an informed choice about how best to maximize their income stream.

Antonin Scalia:

Mr. Hagopian, I want to come back to the snippet from legislative history that’s referred to on page eighteen of the Government’s brief.

Mitchell Hagopian:

I think I frankly agree with you, Justice Scalia.

William H. Rehnquist:

Thank you, Mr. Hagopian.

Antonin Scalia:

Know what I mean?

David H. Souter:

Mm.

Maureen M. Flanagan:

Thank you, Your Honor.

serve…

Stephen G. Breyer:

Why is…

that? I mean, he just…

said on that that that and I certainly was in the briefs, that that if you say they have to spend down the three hundred thousand, they’re not going to give it to the doctors in the institution.

Maureen M. Flanagan:

Well, neither of us have any statistics on that.

also…

Maureen M. Flanagan:

would have had money.

William H. Rehnquist:

Thank you, Ms. Flanagan.