please the court through this we are here on an appeal of an administrative review and at the outset i want to address the issue of the standard of review there's a substantial disagreement as to whether or not there which standard would apply and we submit that there's simply an issue of loss of the good noble standard of review should apply here there was no dispute on the market was for fair market value which i think is acknowledged that should be in the law simply is very clear that yes the question perhaps then is becomes whether or not the agency can look behind that and to determine basically whether or not the product that she did purchase at arm's length which by the way is by definition for fair market value whether they can inquire into that whether the court or the agency or the court is entitle to enter into the fray of whether or not the allocation of resources has to be done by the agency or the executive or the judiciary that is strictly a legislative function is that your case has very plainly said so this case when she bought the insurance product that she bought which had been approved by the department of insurance at arm's l was available to anybody and everybody that should have concluded this case the regulation which we have cited the policy manual of go to zero seven twenty be simply says fair market value transfers for fair market value i'm sorry what is it purchasing something yeah our lives like it's available to anybody and everybody in the marketplace is by definition a fair market value because some of the season purchase something or  widget that's a legitimate purchase certainly what you do with a widget i guess is another question and i suppose under those circumstances the widget might have been available you know would be accountable accountable as something also that  bly our ship purchased to be to benefit her father how in any way did she benefit from a purchase of this life which she acquired the life insurance protection that policy afforded for her daughter in this instance which is perfectly legitimate she quiet that's what life insurance is you purchase protection for one or more people persons and by definition you know you're out the money and somebody else is now assumed you know some risks and in this case the acquisition of that protection was not illegal oh it was fifteen thousand dollars this case was and that's correct right of to one hundred thousand dollars  supplied sheltering of assets is perfectly permissible as we stayed in the ethical opinion from the his opinion bar association and the especially designer case of the third district you know planning is extending to medicaid five year period the question immediately becomes did she receive fair market value for what you're quire with her assets like that she received the life insurance policy she purchased with the she bought the protection for her family that's what life insurance there is no subjective test that you can go to beyond to say well you know somehow or another you know as this on her case said adding a sniff taste to tell the whole situation whether whether her motives were you are irrelevant what the department thought about the product is irrelevant the question simply is whether or not she acquired an asset on the market at that arm's length from fair market value  the whole in part to look behind it is to add a subjectivity test to the to the whole idea and you know that's not right or legal there is only one subjective allowed under medicaid and that is if you've made a transfer within the lookback area and it was plainly not made for purposes of qualifying for medicaid then the court can allow the medicaid and the  example is the man who gave his business to his son retired went to florida had a stroke came back and they said well obviously he didn't make the transfer for purposes of qualifying for medicaid and therefore he did qualify for it that's the only subjective test allowed under the rules regulations under federal law it's expected that people would do plan unlike any other situation you plan for your children's college and put money aside for for that you know it's not for none of this is any of the government's business and no one cares unless you're going to say oh i need a government subsidy it's does that make all the difference now now the question is did you obey the regulations did you did you shelter assets legally or did you abuse of the shelter  and in this case she bought a product available to anybody market and receive fair market value by operation of law by definition the supreme court decided many many years ago u s supreme court in the  and the agency should stay out of the fray that's a legislative function and we submit respectfully of that that your case does not apply here because it does it refers to the shuffling of assets but the real test is whether they were abusive shelter so when the gilmore case talks about the fact that the boat payment under the annuity would extend beyond the purchasers life expectancy wh  in that situation that was decided pre the ira or the that deficit reduction act of two thousand and five which is a bit of a foot of the field but were allowable before but we do acknowledge that your case does talk about the shape of assets but clearly as an in this case i think this is much plainer really count i mean these things are decided on life expectancy based on the table we don't i mean we decide death on a wholesale basis not on a retail basis and in that instance so to do otherwise is to inject the subjective test to question the purpose or intent of the purchase and there is no provision under the law for the agency or even the courts to go beyond the purchase of this product for  clear fair market value which was done in this case as we indicated you know planning is appropriate in me even be malpractise for a counselor or an advisor to this woman not to advise that she do that to get the protection for her own daughter there's no legal excuse to look behind the reason for this transaction or second guess the purpose of the intent of the applicant in this case we submit that the designer case i think finally lays out at great length and with great clarity the way the court should view medicaid applications the third district made it very not matter the courts are to look at the tables they will be published by the united states census department and what life expectancy is and if she meets those qualifications so here's my much of a market for life insurance if you're all but i suspect there's something trance company that if you hear him to achieve thirty thousand dollars purchase a life insurance policy they were sell you a policy that normally sell to people eighty and she says well what's the market and how about the two hundred sixty thousand dollars worth of insurance now pay you two hundred fifty thousand cash i suspect they do i f it was a product approved by the department of insurance perfectly permissible for her to do so yes president seem to be contrary to what the legislature if it is it's for the legislature to correct it not for the agency to just make up their own rules and look behind the fair market value transaction and to apply their own subjective test and say we don't like this single more snow or good law and if so why i would say this there was a recent case decided by this court which there's a p l a pending right now and it's on that very issue so we're asking the supreme court actually review  life expectancy of the annuity that the question there was whether you could push all those payments towards the end of your expect life expectancy and exact so i mean this have to reject you know more to decide the way you want us to decide i don't think so i mean gilmore dealt with annuities this deals with insurance products really available on the market the annuit negotiated based on you know what was available all the life expectancy in reference to tables and those kinds of things so i don't think you run afoul of he lets for two agencies the department of human services department of parents or of her family services the agencies issued decisions jointly i'm sure you realize that our position is that this case the facts of this case are controlled by gilmore i've also cited a case from this district jaden and another case in this disrepute donald i think also go to the same point which is that if you don't actually receive the fair market value for the benefit of the transaction then it's not something that can state subsidized medical care and you have one of these transactions you incur paoli period she's entitle to buy this product she can buy it she can make provisions for it it's just going to affect the state's obligation to pay for health care coverage transaction to us but with regard to the department determining eligibility there's a specific regulation on this point and they have not as the circuit court pointed out challenge that regulation did not challenge any the regulation including that  your position is you can't do that you are positions you can't do it he calls this a bulletproof transaction apparently it does away with all the need for even analysis under the rules as to whether fair market value has been received because as long as we can establish that the market would allow th transaction between some other eighty year old or ninety year old person and an insurance company that would be fine but the point i want to emphasize is not just the public policy that makes this a bad result and it is a terrible result i think it just scraps an involving life insurance and for that reason i think the answer your question maybe it's not the first case i don't know but this is the first patient over no our it is but i'm dealing with the few cases that i've cited you know that seem to be on point i haven't gone to see if there's unpublished decisions that might lead to decisions that partner with or whatnot but i don't know that it matters and mr young saying he can distinguish gilmor on this basis but i wish he had said that before we got to this podium because he didn't file or apply brief distinguishing gilmore in that way and the jet the circuit court decisions based on gilmore gore was distinguishable it seems late in the game to argue that the deficit reduction act or the differences between annuities and life insurance policy mean that gilmore doesn't apply my argument is that gilmore applies he's not raised any argument with this court distinguishing gilmore and the court should simply cite gilmore and we should move on if there's appeal lay in the supreme court now to to to tease out this issue we might get incision from that maya i'm not disagreeing with the definitions of fair market value my point is that ms buckley didn't receive that value that in this particular transaction this life insurance transaction is structured such that the benefit of the fair market value is received by her daughter or her sister and her daughter isn't available to take the take the benefit and that is in my view violation of the regs and it's not a subjective test at all it's a question of the have you met the regs as how is it that miss buckley has received the benefit of this fifteen thousand dollars if she had bought a widget and the which it was part of her state when she died or the widget would be used as an asset in calculating what her possible medical benefits would be transaction improper transaction immoral transaction we're just saying that if you do one of these transactions before you make an application for medical benefits we're not going to pay the benefits out until a period of discounts is passed and in this case is just t i so maybe took to wrap up again it's not the definition of fair market value in memphis i said it's the it's the it's the who has received the value of that fair market value transaction that  puppy's application or at least doesn't do much she still entitle to medicaid benefits but she does have a waiting period of two months we think no more is directly on point we don't think it's been properly distinguished before this court i don't think it can be part of this thing  isn't the case just like this one out of this district and that was the clearly erroneous standard applying the facts applying the law rather that we agree on what the what the regs are the facts that are established by the record that's the this court is left with very briefly are we seriously saying that when i buy life insurance to protect my children that because i die in order for that protection to be afforded to them that i have received no benefit from that that's what life insurance is she bought an integrated policy for the protection of her child and to suggest that it was just done out of love and affection i think  distorts the law the supreme court of the united states has long ago help that the value of the life insurance protection you purchase is what you pay for it therefore it has to be fair market value to somehow suggest