may please the court counsel and wayne young i represent the plaintiffs in this action to prevail in the trial court but lost by a split decision in the appellate court on the construction of a provision of the medicaid catastrophic coverage act passed by the congress in one thousand eighty eight it's a narrow question of law it has to do with some paragraph b two of the act and the question is whether or not that act as passed by the congress prohibits the state of illinois through its agencies from imposing a spousal support order in medicaid cases that i find anywhere dealing with this precise issue and there are states that do have laws very similar deal i am not aware i have are focused only on the illinois law and the federal law which i say sprint's i just want to know  think you know i didn't i now the the issue at issue is the provision subparagraph be one which the supreme court has referred to in the bloomer case as the rule of subsection b one and in that case it said that rule is honored for at no time is any income of the community spouse simultaneously deemed available to the institutionalized spouse what the mecca and by that i mean of course the shorthand for the medicare catastrophic coverage act what the meca intended to do was to correct what the congress referred to the courts also as amended ten unintended consequence of the original medicaid law which deemed all of the human come of both spouses both the institutionalized spouse and the community spouse as available for the care of the institutionalized when the meca was passed the part b one expressly says that during any month that the institutionalized spouse is in the institution no part of the income of the community spouse shall be deemed available for the care of the institutionalized spouse and the question here simply is is there any wiggle room for the state to go beyond that the meca starts out with the blanket statement that all other provisions of subchapter nineteen which is the medicaid act are superceded if they're inconsistent with the provisions of the meca so we start with that brief very broad generalization of the language then respecting the income of the community spouse is also very broad it says during no month is any part of the income of the community spouse deemed available it's our first position is that that couldn't be clear and if that should in this case but the state of illinois has gone beyond that saying that look their position is that only has to do with initial eligibility but the meca addresses both continuing  and availability of medical assistance to the institutionalized spouse both with respect to income and with respect to resources the state seems to  refers to any month and that's the phrase that keeps getting lost and even in the majority opinion the appellate court usually that provisions refer to those words are left off off but this doesn't say for initial eligibility just as in determining the eligibility that's correct debility for medicaid is a monthly proposition and so technically you know although they don't review it really terminate every month it's done any of late if there's a change if the institutionalized spouse dies or the community spouse dies then it's good through the following month through the end of the month by definition now i mean the question before this court is whether or not the mic as passed by the congress was intended to supersede this sort of indirect appropriation of community spouses income for the support of the institutionalized spouse and we submit that under the bloomer case which has been construed which  construe the maca and it's obviously a great weight of authority here the united states supreme court did make reference to the preservation of the sub section rule the rule of subsection b one which addressed the availability of the income of the community spouse for the care of the institutionalized spouse that bloomer referred to as a key provision of the m and that expressed language we first to any month not just the initial month of eligibility the rules promulgated by the secretary which we reproduce the applicable rules in the appendix are completely in accord and those rules are replete with the language at the big commitment of many of the section that say irrespective of state law nowhere is there any suggestion by the secretary as there was in the room or case as to whether you start with a newcomer an asset approach to approach alger billy nowhere has the secretary indicated that well we're going to leave it up to the states to go either way or that they can do that there's just no suggestion and i think the phrase used by the supreme court was the latitude accorded by the secretary there is no such suggestion anywhere that the secretary has deferred to this kind of an issue for the state so the the regulations are in complete accord with the plain language of section b one and what happens i think is because there is an occasional spouse as there wasn't pretty macca under that situation if the assets were and went in the name of one spouse the other spouse was immediately eligible that was one of the unintended consequences that was addressed but everything else all the income and  sets were held jointly all of them had to be spent down to zero or down to the ultra bill of the amount and under those circumstances now the using an occasional example of saying well ok you can't the meca provides for a minimum income and even a diversion of income from the community from the institutionalized spouse to the community spouse under certain circumstances it does set a floor and income can be diverted but there is no maximum set anywhere and of the statute saying look over so much income you've got to start paying a portion of it for the support of your spouse it does not address that and so what really happens is there may be some cases that seem to be offensive to some but then they say you know the there's kind of a creeping determinism that means that hey we've got to stop some of these you know maybe some cases that i didn't excessive but my position is and i think it's correct as this court stated in the heinz case those are issues of policy for the congress to address if the congress is offended that there are some occasional cases where the income allowed to the community spouse exceeds what they believe to be prudent then it's up to the congress to address not for the court to supply a maximum amount under those circumstances we believe the judge connect said it well that it's really not for the courts to set the policy but it's for the court simply to enforce the policy set by the legislature so that any change should be supplied by the congress it is also true and it has this has to do with the state's argument that by policy there ought to be some limitation set the meca also makes it very clear in part c four and paragraph c four that resources once eligibility is determined can the sky's the limit for the community spouse the community spouse can win the lottery the next day and there are untouchable under the medicaid law the community spouses entitle to grow her assets to whatever she can after eligibility is determined that couldn't be plainer and so it's our position that the magazine is consistent in that it provides for the preservation and protection of not only the income but the resources of the community spouse once the eligibility has has been determined there are cases that refer to support rights and actually the meca itself refers to support rights but those are in the limited circumstance under which there is what's called you know kind of on a it's come to be known as spousal refusal cases where the spout the community spouse says look i will not participate in the process and i will not disclose my assets to make it makes it clear if the institutionalized spouse is still entitled to coverage there but the state can pursue those excess resources under the spousal support assignments which is required under the makah and if you read carefully the cases that the state uses the men's cases the  cases those are spousal refusal cases every single one of them have to do with going after excess resources not after any kind of notion of excess income and those  seeking of the support is under the spouse or the spousal support provisions of the meca itself not the general support provisions of title  nineteen well i think there is a mean if it's said as a couple of places first of all it says that the maker will supersede all other country which some states early on in illinois i was one of them a nine hundred seventy with the advent of the medicaid act could elect under what was called to nineteen or to a nine b provisions to opt out of some restrictive provisions but the meca expressly overrides the regulations of two hundred ninety states by the reference of thirteen it's thirteen ninety six a f which is the corresponding provision of the old to nineteen the to nineteen is just a term of art used to refer to the states that had elected originally under medicaid law to opt out of some of the more restrict correct but at issue would be for us simply be to as to whether or not the the court can impose a support right and it's our position that expressly cannot that this is been preempted by  federal law and by the very terms of mecca itself again i think the language of the supreme court in the blue mckay says thus at all times the rule of subsection b one is honored for at no time any income of the community spouse simultaneously deemed available to the institutionalized spouse it seems to me that that interpretation given to the makah is real clear that you cannot access the income of  the community spouse or the support of the institutionalized spouse during any month the shift of income allowed by america is only to provide the community spouse with the what is statutory known as the community spouse minimum monthly maintenance needs allowance the supreme court in bloom are referred to as a community monthly income allowance which allows diversion of income which is otherwise payable to the institutionalized spouse to be diverted to the spouse at home the current rate is somewhere around twenty six hundred dollars a month construction has done a masterful job of dealing with you know the approach that the court ought to take with construing the statute then heinze case it was determined because state law didn't comply with federal law which allowed an expanded version of the definition of in the state that the state could not recover from a community spouse even after her death in this situation unless the appellate court decision is reversed we have the strange situation where a community spouse is liable for support during her lifetime but not after her death which i think flies in the face of the the purpose of the makah in the first place and that was to do away with the unintended consequence of proper zation of spouses and i really i think what the state is really complaining of is something in the nature of you know hindsight bias saying well there are some cases here that people just shouldn't get by with and you know pointing to one or two that may have had a spike of income that that should just shouldn't be allowed but that's not the issue before this court we respectfully submit that is for the congress to decide the congress having said no ceiling i think the state is really is responsible to abide by the federal law and that the the matter has been preempted express y by the congress but also otherwise because of the regulations probably gaited by the secretary the state medicaid manual which is the secretary's directives to the states and how to operate medicaid law those regulations are all in accord and if you read those are through those regulations they are replete with the phrase irrespective of state law irrespective of state law so we submit that it's been not only expressly printed but otherwise and that the congress and having acted usurp this whole area and that the trial court's decision ought to be reinstated and you've got a court reversed and that's what we would ask you to do thank you and it was  good afternoon your honor still my assistant attorney general caldwell it's appearing for two state agencies this afternoon the department of health care and family services and the department of human services these agencies act together to administer the medicaid act in illinois  i want to start by referencing something there is in mr young's brief he says that we didn't file a cross petition for relief and so we're forbidden from bringing up the argument that that the plaintiffs fail to exhaust their ministry of remedies  dismiss it's in the record we didn't have to file a cross petition also mr young argues that we should have filed or at least made a notice under supreme court rule three fifteen h we are not seeking cross relief we are not seeking to have the appellate court's judgment changed in any way we're simply offering the court an alternative ground for affirming the appellate court's decision so i don't believe we had to final thing under supreme court all three fifteen h either that puts in issue second argument which by mr young has been addressed which is whether the plaintiffs have exhausted their administrative remedies i don't expect your honour's to this case to have a technical argument about that but i want to spend at least some time discussing that because we feel very strongly that this case should have never really gotten past the complaint stage there are nine plaintiffs here the easiest arguments i have all with regard to six of them who never received final administrative action they received letters asking them to provide information about their income these six planets simply refuse this and this court has precedent which we think is on offer for us on that particular question which is the national mourning case  hundred ninety four case i believe where the court made it very clear that when you're not faced with an agency final action you can't bring any sort of relief in the circuit court so those six plans we think should be dismissed out on national marine on the grounds  marine the other three plaintiffs did get final orders from the department even services they were told to pay spousal support my complaint with regard to those three is that they never sought relief at the agency level that they were entitled to which is a hearing and then an opportunity to have the results of that hearing confirmed by the director i know that they suggest that this would have been fruitless pointless this is a question of law that the courts were going to if you had to know  but the agency does have a statutory rather an administrative provision governing this type of argument he's making which is that if you have a well enough income you're a community spouse the state can't do  this that is the ministry of regulation one of the three point one zero essay he was free to argue at the agency level that that administrative regulation was not broad enough and should be expanded and then the agency could have considered that made the appropriate record i know there's been a lot of suggestion certainly oh i suppose the appellate court brief that there was no point to having an administrative review here because it was a pure question of law but the fact that the agency already has a regulation  suggests that that's not really true he could have made the opportunity now the other argument was made below is that we know what the state's position would be so what's the point but we know what the state's position would be only here after we've litigated through the circuit court and through the court so i want to urge the court to look strong in heart of the exhaustion argument they also these three plaintiffs also did not seek because they hadn't gotten a final judgment from the director they would have been allowed the opportunity to bring circuit court review under the administrative review law so it's our position that those three plaintiffs double fault it trying to the merits your honour's i think the case at the center point of the case has to do with the words of the statute deeming income it's important understand what deeming it is deeming is a term of art used by the medicare act in the eligibility context regarding the assumption that income or resources are available whether or not they actually are deeming income deeming resources is sometimes very unfair because it means the state is assuming someone has the ability to make a payment when they really don't have it and so congress recognized that the steaming was a problem under the under the medicaid act as it was originally promulgated and passed the m c c i agree with my opponent that one of the concerns congress had in passing the m c c a was to prevent the zation of community spouses because the states were deeming income that wasn't really available with regard to the preemption question your honor asked about whether there was any provision in the medicaid act saying that preempted state law there is no per provision that i know of and there is no provision actually i don't see that i know of i'm sure there's no provision with the idea that there's field preemption here is i think rather silly the plumber case is very clear the u s supreme court's decision plumber goes on and on about how medicaid has always been a cooperative federal state program there is definitely going to be an interplay between federal and state law so the idea that congress has preempted the field here is simply untenable and the court should quickly reject that i've just said that there's no express preemption in the act i think that's almost certainly true  although he does my point mr john does focus on language appearing at the beginning of the m c c a section thirteen ninety six or five a and b and i'd like to sort of turn to that and just point out that the language used there i think actually actually does support the state's position not the plaintiff's position it says in determining eligibility for medical assistance that's the beginning section thirteen ninety it's eligibility we're talking about it's not things that happen after eligibility and section b it says as he points out during any month in which an institution my spouse is an institution then later it says no income of the community spouse shall be deemed available to the institutional spouse again this were deemed this has to do with determining a person's eligibility now it's just me counsel yes you're posing counsel said eligibility w every month yes and that's my next point your honor it's it was a light bulb when i read the supreme court's briefs that went off because in the appellate court i didn't really understand this and i realized after later when he explained it i think he's explained it properly eligibility in illinois is a monthly process so when congress sat us during any month in which an institutionalized spouses in the institution no income of the community spouse shall be deemed available the concern congress had there was that the states in stand it's every year but when they do the yearly review they look at each month so if someone has had a change of financial status in a given month they can lose their eligibility for that month section thirteen ninety six are five be talks about eligibility as a monthly thing because it is a monthly thing it is not something that just there is an initial eligibility germination but there's also ongoing eligibility that goes month to month and so we think that actually ducktails nicely with everything else we've an institutionalized spouse is in the institution it's no income of the community spouse shall be deemed available to the institutional spouse and i just i have a hard time looking at the plain language and  terminated means anything else other than the institutionalize the money of the community spouse the income of the community spouse will not be available to the institutional spouse to pay to absolutely believe that there's a basis for you saying that but i have no idea what the basis is that this team is a word of art is this out of the rags or out of case law you know and i don't know it certainly appears in the medicaid manual  references to what deeming means that's the that's the federal government's agency the tells the states how do you mean are deemed there's a difference between those two words you're on i don't remember whether it's deemed redeeming but deemed is certainly different defined by the medicaid manual in this way in fact when i said to the court this morning when i read out what demian was i took that from the medicaid manuals language this is sumption in the in the in the context of determining eligibility it's deciding whether income can be used to eligibility eligibility for another month yes but then but but and this is the point that i think is so critical your honor we're not denying eligibility here to anyone the mr young is correct so he's going to sure of course but without this statute income could never be used to determine eligibility is that accurate well we're talking about the income of the community spouse and the eligibility of the institutional dollar the case where all the income goes to the community spouse and that's the name on the check yes several in the old system right before the m passed what would have happened is the state would say well community spouse you have a very large income and we're going to assume that you're protecting your providing for your spouse so your spouse is not eligible and if it were a husband or wife in the way for the institutional spouse the wife will not get coverage and that's one of the things that congress was very unhappy about that income was being deemed to be institutionalized spouse even though it was income that was coming to the community spouse so congress said in the one don't do that states you know it's and if you just bear with choice that's more than just theme though it doesn't say deem to the end in the institutionalized us which is i guess is the word of our it says the statute deemed available to the institution yes one of the elements also one of the provisions in the medicaid act about what can be considered available and the states consider things available by deeming them and so those two words are often we're disagree fundamentally about this obviously you know i'm just trying to figure out what the words to me at all but all i'm about were dreaming and i know there's at least one case because i'm sure i cited in my brief deeming is a term of art the courts have recognised it as a term of art and it means assuming income is available to someone whether or not they're actually going to get it in the l and this is another important point in the eligibility contact we do have the isn't there a term like initial eligibility  basis you don't you don't reevaluate the reach the resources resource yes that was a point he made when i presented his side he said that whether a community spouse won the lottery that would not be something the state could use against the institutionalize spouse i quickly check the statute i think he's right about that but that's not income and the one is about income written the statute is very makes the distinction a very clear distinction between resources calculation and income calculation  on this whole section that you've been talking about during the any month that's the b one there is a provision buried in the middle of that census says except as provided in paragraph two when you go to paragraph two that's the category th subsection d and then subsection d is labeled protecting the income for the community spouse and my guess in is when you weave your way through these references that's specifically talks about how much of the spouses income that's the community spouse has to be applied monthly to the paper for cost of care in the institution that has these allowances personal needs community spouse income allowance family allowance medical care expenses loan allowance is concerned show concern for the community spouse's income and since that's what this case is about i think we need to talk about the part d deals with the concern the congress had about people whose income was too low it doesn't talk about people whose income too high i think it silent about that it makes it clear that if the community spouse's income is below one hundred fifty percent of the poverty level which at the time of this case was about twenty four hundred dollars if the community spouse doesn't have that level of income the states must make allowances and the way it works now is income that comes to the institutionalized spouse instead of being taken as part of her spend down will be diverted to the community spouse and if that's not enough i believe it's still the law although i may be wrong but i think it's still the law that initially at the initial level they could make some changes of resources as well as income but in any case this provision is the place where congress talked about income and the community spouse in the only thing congress said to the states in part d is now shown not you know make laws that don't give the community minimum income allowances as long as congress is assured that the community spouse has a minimum income of one hundred fifty percent of the poverty level then we've met the state of illinois has met the requirements of makkah and then the question is well what we've we've met our america obligations we've got our eligible spouse eligible we've got a community spouse with sufficient income does that person then not have any more financial responsibility for his spouse and the state has taken the position that a person who has an institutional ice spouse is still financially responsible for that spouse it's not that they don't have some benefits by part d this hundred fifty percent but they have to also meet the requirements of illinois law to the extent they can  point about table a that's in the back of my brief that's where the state tries to collect spousal support it is a table which only tries to take approximately one percent of annual income per month about twelve percent a year of gross annual income that's all the state is looking for in this case that's far below what the state is paying to keep institutionalized spouses in their history seems to show if we were to rule in your favor there'd be no limit taishan such as necessary  oh the argument i think logically the state has to has to my argument has to be that the state cannot go below and not allow a community spouse to go below one hundred fifty percent that's the only real reason that's the restriction congress insisted on and that's the restriction that we were meeting in this case  the twelve percent appropriate place to become fifty percent there'd have to be a change in the administrative regulation you know and of course there's we have to be very careful not to invade what congress said was the minimum monthly income allowance for the community spouse but yes ron i think that's right i suppose i want to just finish by saying that the dissent in the appellate court was critical of my argument saying that we had argued policy and if the strict language of the of the statute required a result which the policy shouldn't matter i didn't argue policy though i tried not to anyway i think the answer in this case is in the language of the statute of course in the underlying principles that govern it because this is a preemption case so the court has to tread slightly differently in a preemption case has to show a little more concern for the intent of congress but it's the that the policy arguments i make are that it just happens to be good we get a good policy result if the words are read the way i think they should be read and it's not an absurd result we have plaintiffs here some of whom have six figure incomes who are claiming they don't have any obligations to support their spouses that's just not a reasonable position to take because we all know that the medicaid statute was designed go to benefit the states very poorest people it's just not a program designed to provide medical benefits for people of anything but the poorest level of income it's not a retirement program for people so they can be better off it's not a program that ever tries to assist people in passing income to their children these are all things that medicaid tries not to do we get an absurd result i think if we follow mr young's arguments and i'd ask the court to affirm the appellate court i ask mr young this question i'm not sure i got direct answer and i'm not sure you covered it but thirteen ninety six or five is section we're dealing with and a one starts with excuse me in determining the eligibility for medical assistance of an institutionalized of the provisions of the section supersede any ads by it seems to me all of the sections under the sort of subsections are part of this and the entire section deals only with the issue of eligibility yes i think that's right here on this doesn't say state law is printed either it says the provisions of the medicaid act so state was outside that make one quick point your honor i mean i want to back off ever so slightly from reliance on the spelman decision i've argued that it was directly on point on all fours i think that's probably too far i understand mr young's point now which he's been making all along it's one of the another aha moment spelman really was about collecting resources however if you read it carefully there's lots of what i think is reasonable to be considered is dicta about income suggesting this result has been there for twenty years it's under stirred i think the court if you read spellman i think i have to concede it's not really about income collection which is the point he made but i think it's briefly and first of all the point about deeming what deeming is i take a sign and i preying on a cow and i hang it on my dog and say deem my dog a cow that's what it means and i readily admit there are times of the law does this by curious liability agency those kinds of things but in this particular instance as mr justice kilbride notice in the middle of that section it refers to sub paragraph to which is the codification of the name of the check rule the old rule was if either spouse's name was on the check or the asset the income it was deemed the institutionalized spouse is checked the meca  codified the name of the check rule if it says spouse a or spouse be the rule says divided in half if it says spouse i for the institution my spouse it's going to be deemed his or hers and if it says community spouse on it then it's deemed hers that i think ends that argument the old deeming rule where the income of either spouse was deemed the income of the  of the name of the check rule which is the which is really the refinement of the rule of b one secondly with respect to the exhaustion issue i mean things because we're dealing here with strict statutory construction that's reserved for the courts and we're dealing with the issue of presenting which is a constitutional issue that's reserved to the course the agencies have no particular authority to tributed whatever it is that founded in that part of what is but what it leads you into was what he acknowledges is the congress intended that there be the minimum but i never said a maximum so i think we all agree that income can be diverted from the institution i spouse to the community spouse to make sure that the community spouse has at least the minimum but there is no maximum well then what does that mean and that's actually says in determining the amount of the spouse's income that's the communities house that is to be applied monthly payment for cost of the care of the institution what does that mean what's a paragraph or your friends the one protecting income for communities files what is allowances to be offset from income know those has to do with the the income that can be diverted from the institutionalized spouse for example or persons including supplementing the income of the community spouse i mean i  mind on it but in the second line say the amount of the spouse's income that's the communit i read that as being the institutionalized spouse because that's what the whole section refers to allowances to be all set from the income of the institutionalized spouse that's the heading