code which i'll be referring to as the applicable regulation and specifically whether under that regulation mrs sanders the plaintiff opponent whether her assignment of a beneficial interest she owned in a way on trust is a transfer sixty month look back under the ethical regulation so mrs cmdr in december of zero three assigned her interest her beneficial interest in a way and trust that held firm property to her daughter's she then thirty seven months later and january of zero seven applied for medicaid predication was denied and it was denied because the department determined that her assignment of her beneficial in of seven years and three months she appealed the final administrative decision uphold the original denial the circuit court affirmed the final administrative decision so the applicable regulation generally that transfers made more than thirty six months before the date of the application for medicaid coverage for long term care allowable affect the regulation specifically says these transfers out allowable and then goes on to describe them any any transfer bad for two exceptions are considered to be allowable transfers and those two exceptions are payments from our focus of trust and but a payment suggests that the source of that pain remains within the trust and therefore it is a different sort of thing exhaust a little bit although it is possible to pay out the entire corpus of the trust and it would be one payment and occasionally that does come up but again it would still necessarily be a pain is supposed to  as opposed to treat if it came from the corpus of the trust it would be a pain my position is that under illinois law the beneficial interest in atlanta trust is the personal property of the beneficial owner and is not part of the corpus of the trust so that is one of our primary arguments here and i think illinois law supports that position as a numerous cases let's let's let's address at least that part when you say it's illinois law you suggesting that this medicaid program a federal program should vary from state to state depending on the log each state well they'll each state has significant frame matters in terms of how they implement the medicaid law and there are significant divergence is between the federal law on a particular state program so not sure how your what your exact question is well the question is the fact that the illinois treat the property within a trust as personal or the beneficial interest within a trust as personal property should that decide what is a combined federal state question that affects many other within the process really transformed into personal property it's a legal fiction however it's pretty clear illinois line it's here and the cases have described illinois land trusts as not conventional trusts and have distinguished the l i land trust from a conventional trust and it is peculiar to illinois it's not and land trusts are not nationwide entities now lost trust in fact most states in fact don't acknowledge them but ours is statutorily created as well as created by a long line of case law interpret in what i plan trust this and it's not a conventional trust and because it's not a conventional trust my argument is that this particular phrase payment from over a focal trust could not apply to this particular assignment of a beneficial interest it's not a conventional trust which means that in conventional trusts the  trust is that naked naked title it's both legal and equitable in fact the courts have referred to it when i land trusts as naked trust because that's all they own the rest of the ownership the beneficial interests it's clearly been described as the personal property rights of the owner of that beneficial entrails like why why describe it as personal property likewise if it's personal property only because which is obviously real property the actual corpus of the trust is the legal an equitable title to the farm land and the state law is important in interpreting this regulation because state law both in the statute as well as in the case law precedent for you to follow in this case so i'm i'm just wondering whether we should be tied to that characterization of personal property and address the no matter that really calls that hasn't been addressed  well the reason i believe that you should be tied to that construction of that what that personal property right is this because this particular regulation is punitive it's a penal statute and courts have consistently held that where courts are construing penal statutes they have to confine their construction to the actual limits of the plain language of the regulation here the plain language is hammond's from a revokable trust but that's not what this is a tender thought she was doing she thought she was transferring a personal property right she had no way of looking at that language and knowing that that was going to apply to what she did which under illinois law clearly was a transfer for personal property right she had an unfettered an absolute right to transfer the trustees not in fault that she did does not affect the corpus of the trust and that that was the law which she was aware of this but in the sadness when you consider the overall impact on the medicaid program it is beneficial to other individuals who don't have resources or certainly allows the resources the medicaid program to expand to extend beyond those who are to include those who simply don't have the resources to that extent that those who have resources are treated differently  because it does have a particular formula for calculating a specific penalty and the penalty is this as a number of months of eligibility for medicaid i don't think there's any doubt that it is tentative but one of the public policy reasons for the court and as noted by this court in the cesspool decision is that it's unfair to penalize somebody if they're not clearly a price of what behavior is going to result in a penalty and because illinois law is very well settled that this is a personal property rights of mrs sanders and a she has an unfettered right it's not clear from the the language of that regulation that she was going to be penalize now had she known she could have taken a couple of different steps which may have had the same consequence to the taxpayer and that would be had she now on the department acknowledges if she had used a quit claim  language that was used to create away from us and to that extent she impacted the future of back property within the land trust and she did retain control of matter at the time she trust she did but once she assigned her beneficial interest she gave up all rights and all control and not any incidents of ownership except that the person that you see the beneficial interest of land right was not standing in the shoes of mrs and her prior to the creation of the land it cannot just do anything they want with the property of that land trust that man was remains they can exercise all rights of beneficial owners owner of a lamb trust which means they can sell it they can occupy they can collect rents it's pretty massive monument of freedom that's all three of them so my position is there's really no difference between her quick claim on her ownership interest and her assigning her beneficial interest it's the same result the only difference is one is personal property and one is real property so had she been aware that this regulation was going to be interpreted to include her transfer of her personal property rights she wouldn't have done that and i think that's why it's not fair to apply this to a beneficial ownership and let me just why would she do it to begin with or judgment issues it would preserve title to the property and there are many i mean we're not entirely protected but at some protection from that give it some protection as non marital property should and if her daughters have marital issues you know it provided some protection and her reasons for using it had nothing to do with this being some sort of a benefit for medicaid plan and it certainly was really not i probably agree with you there but no further interest in the land trust she transfer personal property i it's comparable to the quick carried a curious thing about it is that these land trust itself was created the early part of december two thousand that that's no different than just signing a quit claim deed except she had certain estate planning reasons and other reasons to use the land trust instead of a quit claim deed and she had no idea that this payment from the trust would be applied to her and it's really not fair because  language doesn't clearly include assignments of beneficial interest which historically and consistently in illinois are personal property rights let me take you back to the public policy argument and we've been jumping around the same little bit had she been aware had she had notice in the first instance if you're starting off point but would you detail for me the public policy argument that you think militates in favor are finding for you well under both federal and state law transfers a personal property from one individual to another all rob or if they are made more than thirty six months before applying for medicaid that simple yes i hope it is you know it is it is allow i mean it's allowable and that's what you know the citizens of the state of illinois have relied on so would you would you say that citizens know why you stand in a better position than the individuals in states where land trust recognized south dakota kansas no i don't think so because they wouldn't even use the land trust in south dakota and kansas they'd use a quit claim deed and they'd accomplish the page seventeen of their brief where they characterize mrs sanders assignments of her beneficial interest as a dispersal from the corpus of land trust and again the law is absolutely clear the corpus of the land trust is the legal and equitable title and there was no no payment for me to quote either the corpus or the interest because it's a it's a naked tryst under illinois law all of this is legal an equitable title there are no other rights no right to collect for the proceeds from the sale no way to collect income no way to occupy and possess the property is all the attributes of the actual personal property right of the beneficial interest so i believe that doesn't this state illinois law they also made another a statement on page seventeen i'm saying basically that mrs sanders beneficial interest in atlanta trust acquires no interest in title to the race of the property of the court of the land trust which is that they could sell it and they can sell it because that's their personal property right that they received from their mother and then finally i actual assets bonds and those trust that were created by the settlers and the issue was this is that myla valuable to them this is their self suttle trust this is not the issue before the court which is really the construction of this regulation and the it's a federal state program designed to help the state's poorest citizens and with one of the things that this case involves with paying for nursing home care when they can't otherwise do so helping out the poorest citizens certainly one aspect but the other is that there is a provision to help the medically needy needy regardless of their resources so long as they've sort of depleted their own resources fire to within a certain time frame write up a plan yes and and and you know that no concern is certainly not something that we can take lightly i mean why should mrs vander be treated as if she were on notice that the land trust that she created where it seems this very possibility in my why should why should we say tough luck your honor i think the language payment from that trust was sufficient but the zander and her attorney on notice when they created the land trust that this was something that would trigger the sixty month one back as opposed to the thirty six months that the term is not self defining and so the federal like value has moved from this is interest ownership to somewhere where she doesn't really have the same ownership rights anymore and the property is no longer available to assist her in her medical care that's really the task i mean that's that's what congress intended when they house certainly the amendments to the medicaid act in the early one nine hundred ninety s how does illinois blog regarding the characterization of the beneficial interest as personal property interplay with that very intensive relevant but i think this study and i are actually talking past each other it can be in my opinion from what i understand a transfer of personal property interest and a payment for purposes the medicaid that those things don't seem to be inconsistent to me here and this is a transfer of a value i think that's what the policy of congress is when it enact these regulations that if the value goes from the applicant to someone else that is unavailable to pay for her medical care then there's a look back and if i can tell you from personal property it certainly doesn't follow if she gives entirely all of her rights to something personal or real estate as i understand it that would be a thirty six month look back and but she received the benefit of the of the  here whatever those benefits are and my understanding is rudimentary but one of the things she got from this is that you know this this asset then became titles to the trust of not to her personally and it was managed it more easily by the fact regulation little law is notoriously confused i think in this area well i think we might be able to agree on that well clear but they know what the language of the statute is for regulation and they say they put aside agency and said we don't need you to tell us what this means we're justices and we understand how to read a statute how to read a regulation and then there are other cases where they say this language is subject to some construction and construing a regulatory step regulation or even statutes where where the general assembly or congress has given the interpret the regulation to the agency then the courts presume regularity and try to find a way of ruling consistently with the state agency out you don't have to guess which side i'm on in that debate how this court should consider those in that strange illinois way where there seems to be some presumption of regularity as your honor said other cases talk about some deference other cases it is no deference but then go on and read the regulations and try to get the nub of what's going on that's what i would suggest is appropriate here even now i'm not willing to concede that payment from is something that that the court without looking at any regulations would come to include and that's really what happened here even though there's only to give things away so that they can qualify the state is fairly generous in protecting these people who are ill and need care but the payback for that is the state expects them to pay first for what they can part of the medicaid has to be really poor i think two thousand dollars is the maximum amount of assets someone can have that's just beyond him that's behind or that's just their core and that's what the state requires of applicants for the medica not it's some of the cases i that i i read have referred to this as penal in the same is that there's a thirty six month look back for some people who have and a sixty month the but for others so they seem to be power wise if they use the trust vehicle to transfer their property i i was reluctant to take her on about that because i think the case would be back to happy here it says here is a people here they called him i don't think i've ever found a case that says it's penal and then goes on to strictly construe it against the government what congress meant when it said payments from trusts would be subject to the sixty month look back i don't think there's anything wrong with saying this is a transfer of personal property and a payment from a trust that requires thirty six months look back  as i said she received the benefits whatever they were of using hill milan trust it was not a quit claim deed if it had been a quickly indeed we'd have a much easier case with a thirty six month wait instead of the sixty when she used is that it isn't the congress decided that it was going to impose a sixty month look back instead of a thirty six month look back and it was because congress perceived that the trust instruments any sort of trust instruments were being abused by applicants who were making medica applications saying they were dirt poor like they have to say in making those applications or were soon to be doing more and that and yet what they were really doing was transferring value to their family members  interpretations we look at their interpretation the statute always up down to follow those precise what only has to follow is that that is the congressional legislation but it's helpful to look at what c m s says because c m s has this presumption of regularity that they help the states parse this language out and they say in regulation that the fed promulgated that a payment includes actual cash as well as non cash or property disbursements such as the right to use an occupied real property i said that an ownership interest was transferred apparently on page seventeen my brief maybe i mistakenly said that but i don't think that matters much because i think what matters is that there's the right to use and occupy real property was moved here as the beneficiary the land trust the daughters could pick up the phone tell the trustee we'd like the way it's sold one of us would like to move into one place the other the second the third the third parcel it is their property it was a gift him in the misandrist briefs retain the beneficial interest she never share transferred it so it wasn't in the corpus of the trust you know if i don't dispute the fact that it was a gift that was a gift that she didn't transfer something for value might my point is that under federal and state law if you transfer personal property to an individual more than thirty six months before applying for medicaid the state says it's allowable and that's what she was she was counting on and also i wanted to note that the c m s guideline which is not a promulgated regulation it's simply just a guideline specifically says that for purposes of the section opinion is any dispersal from the work this or from the income generated by the trust there was no dispersal of either the corpus or