is a person who puts money into a special needs trust themselves to be denied medicaid benefits for long term care as though they had given the money away to someone else we have two very different approaches by the parties here penalty subject to certain exceptions and one of the exceptions is indeed a type of trust which suggests that but for that exception that disposition of that trust wouldn't have right so there's  a little roman to the says if you put money into a crossed and it's not available create that as a transfer but you just as easily say it seems to me that  comprehensive treatment of transfers including transfers to trusts and little for he sends us to d for it's because it's really the other way around   which is what is on page sixty seven condition and it hasn't cross reference then to d i don't even understand the concept of saying that d put them there i don't know what that means for purposes of subsections congress wrote there to say there are some trust transactions we want to put under the koreans who row and one of those because the one here is our trust that can't be for your benefit first they were they were authorized and there was no exception to allow and now congress adds two exceptions at that point they had the one for a trust for your own disabled child the law already allowed transfers to you situations that was it what one of those is allowed transfers to roughly fifty million other people this is a shoe a mess of expansion of the what you're allowed to do who giving away money to qualify for medicare and it goes from a handful of people to your immediate relatives and not even all of them not your healthy child who doesn't provide care not your loving sibling who never should have done the house with you  congress now so we're going to allow more transfers we would all transfers to anyone in the country under sixty five who's the servant now the question is that congress think it had to put in that provision to also allow people to from their own special needs  there's not a hint of a whisper in the legislative history or in this context to suggest that that was congress's purpose and then go medically you could say yeah well it might mean that the question is you're not disagreeing with the question judge is asking you in the sense that if i do nothing i flew down from mars and i sort of reading this text it might be unclear whether an individual means any individual another individual the individual it may be unclear whether that parent of old in four is something that you pay attention to only if you got to d or whether that suggesting that c itself and compass is those types of things there is there any benefit trust which is available and or rather that force medicaid eligibility as well across the board interest to you is going to disqualify you from medicaid unless you can fall into one of the exceptions there's the transfer exceptions for third parties and then there's the d for sepsis for trust for your own benefit to two questions pleas i'm sorry if not before see two before right is another individual then it must be the case that d four better not be referring to a trus you need the words an individual to exclude the there you're right it may disagree about the circuit you need the phrase individual in that little four to exclude the individual went through why that's the case harsh cross rule and that's the d for trusts to enable mom or grandma to buy with their own funds basic necessities that medicaid will not pay for and those are explaining that is that they rejected it partly it's because a d for c trust is a pooled trust and the reason that you pool trusts is congress i believe understood is that you don't have enough money to do it yourself so a different a trust you could put in as baron said you know a billion dollars would be rather unusual if you decided to pull your assets with a number of other individuals to script together enough cash to pay your trustee if you weren't already on the margins of being able to pay for these things otherwise but these things i say that a car or a house or something else would be that these are institutionalized individuals for the most part they're looking for things as is the plan in this case crossword puzzles you know being able to hire an aide to come in and  speak with them for one hour a day market plenty of the best in the more i don't believe that would be appropriate i believe these are paying in to have amounts that are don't going to then be dispersed for the benefit of the individual it's the trustee as any other trustee would say i don't think playing in the market is what you need i think what you're looking for here is a new set of issues but the point here i believe is that the state is taking the position that because mom is over sixty five and disabled she's being asked to choose between her medicaid and her hearing aid and we don't believe that's congressional intent and the reason we don't leave this congressional town is not only because the statute says it but also because the parent pointed out the statute appears to be ambiguous in some respects and he respects to mean that other individual i don't disagree with my brother but i would offer a slightly separate and i believe consistent reading and that again is that d is the comprehensive trust structure is the black hole nothing that the trust ever get there congress knew it was doing when it did that because it directed people to see indeed three it doesn't do that and d for there is no provision in the for whatsoever that says oh and we should also be applying subsection c congress clearly knew how to apply  good morning they please the court meniscus tub from the maid attorney general's office so i would like to go through the statute and try to hopefully outlined our view of the correct interpretation of subsection c and d so so we do start with subsection c which says which applies to a transaction in which a person quote disposes of assets for less than fair market value so i think one argument one could make  it may be the first time i think even though and i just do want to address that argument in the event that the court determines that that issue has been preserved i think under a common sense meaning of the words disposal or transfer  think we all agree that congress uses those terms interchangeably in the statute i think when you take assets over which you have complete and unfettered control over and you give them to it to a trustee in an irrevocable try just where the trustee has complete an unfettered discretion to decide whether or not to make dispersants to you and where the trustee can then retain any assets that are left over after you pass away our views under a common sense meaning of those terms that is both a disposal and a transfer us so i think i think that is one argument that one could make as to why this transaction doesn't come within subsection c but not if that's right what's the point of the parent of the parent guess i'm not quite following that argument but what i do want to say and let me say this first and see if this answers the question but i think to the extent that we're looking at an individual i think i think one argument you could make is that s c does apply to transfers to trust but only when you transfer trusts screw someone else is the beneficiary right so so i take money and i and i could a trust for some other individual you could say that is a just clarifying for the reader and making plain that even we're seeing this but it's also true that trust destroyed subsection the for was carving out an exception for certain transfers to cross it was saying that this includes the trusts that a rough person subsection d but then it limited the ability of exception to to trust the benefit an individual under the under the age of sixty five suppose we accepted or soon that an individual needs another individual only and not be so this transaction doesn't fit in moment in little for what i'm having trouble understanding how that argument helps the other side because it seems that thing just kicks them back to the general rule and the only are you know i heard on that voice well maybe there's no transfer that most of them talk about transfers to another individual or transfer to a spouse or to a trial and they said that means that this last one transfers created to benefit an individual under sixty five must be another  is if someone decides to go ahead and create one of these trust they get i guess it would delay their ability to get medicare  instead received from the trust is income and i suppose it's theoretically possible that they could continue their income after their healthy period expired so in that sense they could have set up a trust situation where you first to penalize when you transfer your assets to the trust and then you get paralyzed again for having assets in the trust that can be used to your benefit you know if they treat it as income where they're treating it as income if you get the are they treating it as available assets if it's in the trust so your big i'm sorry to be a problem the incomes occurring during the penalty period if the income is occurring during the penalty period because who cares where you can come in is if you're not eligible an there's a good question and i don't know enough about medicaid law but but but so that's the double penalty that c m s is talking about that you're both getting penalize on the front end for creating the trust and then you're going to penalize again for having a trust and so in bolton sixty four c m s is referring to that kind of situation and it's saying if that's going to be the result then you look to the trust provision because that's going to be the one that's going to control to make sure there's not a double penalty but in both in sixty four and this is this is where i disagree five puts assets into it into a trust now that the double penalty that the attorney for the amec he was talking about is a much different kind of double penalty he's arguing that you get paralyzed when you transfer the money into the trust and then you get penalized again because any money that's left over in the trust after you pass away goes to the state to pay for the benefits i mean leaving aside the fact that sort of a different kind of double penalty than what c m s was talking about it's not even clear that there is any money left over to go to the state under the statute the the pool trust can keep as much assets are left when the person passes away so if a person passes away and there are fifty is fift quote the provision from transmittal sixty four and first c m s says that when you put assets in a trust that is usually a transfer because you are giving up your title i'm not sure that would be a transfer because you always have the ability to get get the assets back again so i don't know if if if that's what c m s is referring to when they say generally the words that are there could be some forms of trust that you but but the bulletin does pacifically address pool trusts you know and pool trust by definition are trust created by the seller for that for for his or her own benefit only well it says it has to it has to be the assets of  for the medicaid recipient but because the medicaid recipients assets were already just of a simple question there's a to be cool trust is in the condition of being a pool of trust that the beneficiary is the no but but it is a condition that the that the beneficiary assets be used to fund the trust so for example if it will speak to the question of in the case of a settler being the beneficiary whether it counts as a transfer right so the so wouldn't you think all the way back to the very beginning about whether a transfer to a trust is a transfer within the meaning of the transfer position when if an individual means the individual then the argument that a trust set up by a settler in which the settlers the beneficiary is no transfer fails can't be true because the transfer provision itself would be talking about just such a trust right ok so they need individual to mean another individual oh they can't possibly say that one day is not talking about the kind of trust that we've got here to meet another individual but they're stuck with this apparent hole which is talking about before trust in the d for trusts are only trust in which the seller is the beneficiary so we're back to the only argument that i see standing is this argument that well don't worry about that because that language is there just to emphasize the point that our transfer provisions in c are not meant to override the exemption we created in d c for qualify for medicaid all force is i can set up a trust for her for i want to or i could buy money into her existing d trust that's exactly what it's meant to alarm and that's what it allows and that's how i use it every day otherwise i would be penalized and then let me underscore because i i with all due respect i think you've who you failed to appreciate the tremendous breadth of dig it is absolutely a bartek and a use of trust in medica except where there are exceptions if the cost is for somebody else or the trustee makes transfers to someone else or third party treated under c and we have a list of exceptions all of which are you know to talk about if it's if if i do what congress asked me to do i set up a trust as for my benefit congress along oh no no we don't want to play games every penny in a cross is available and i said well wait a minute congress let me i'll do the very thing you've asked me to do i'll agree i'll give it to a nonprofit that's going to pull my money i'll have my own account and and and before and medicaid gets paid back before the money ever goes to my family but trust might be allowed to keep some some do some don't i've done what you asked congress i i set up a trust that would have counters mine and therefore would not have been transferred that's that's the point of a ailability but i but but i've done what you monitor me to do to qualify for medicaid benefits if i'm under sixty five i can use an individual trust for use of pool trust them over sixty five i can either use an income