1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0283p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

D ALE R OGER S INGLETON ; C LAUDE R ANDALL S INGLETON ; B RUCE W AYNE S INGLETON , Plaintiffs- Appellees ,

v

.

C OMMONWEALTH OF K ENTUCKY , et al., Defendants ,

M ARCHETTA C ARMICLE , individual capacity, Defendant-Appellant

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 16-5596

Appeal from the United St ates District Court for the Eastern District of Kentucky at Frankfort. No. 3:15-cv-00015—Gregory F. Van Tatenhove, District Judge.
Decided and Filed: December 6, 2016
Before: MOORE, SUTTON, a nd WHITE, Circuit Judges.

_________________ COUNSEL

ON BRIEF: David Brent Irvin, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellant. Robert C. “Coley” Stilz, III, Kimberly J. O’Donnell, KINKEAD & STILZ, PLLC, Lexi ngton, Kentucky, for Appellees.

_________________ OPINION

_________________ SUTTON, Circuit Judge. This dispute conc erns a conflict between a provision of the Medicaid statute and a correspondi ng Kentucky state regulation. In 2006, in an effort to tighten loopholes in the Medicaid Act that had allowed individuals to transf er assets below fair market 

### >No. 16-5596 Singleton v. Commw. of Ky., et al. Page 2

value in order to qualify for Medicaid covera ge, Congress amended the language of 42 U.S.C. § 1396p(c)(1)(F)(i). A corresponding Kentucky regulation, promulgate d just four months later, mistakenly included the pre-amen dment language of the provision.
Marchetta Carmicle, the Branch Manager for Eligibility Policy for the Kentucky Department of Medicaid Services , realized that Kentucky law c ould not contradict the federal
Medicaid statute and thus enforced the correct ed federal statute, not the uncorrected state regulation. Arguing that Kentucky was authorized by C ongress to adopt a less restrictive alternative, the Singleton s sued Carmicle and the state agency, claiming a right to re lief under the state regulation. Because the federal Medicaid law preempts the contrary state regulation, we
reverse the district court’s denial of Carmicle ’s motion to dismiss the claims against her under Civil Rule 12(b)(6).
Medicare does not cover “custodial care,” such as the services provided in nursing homes. 42 U.S.C. § 1395y(a )(9). Medicaid does. Id. § 1396d(a)(4)(A). By statutory design, an individual who needs custodial care must sp end down any assets that exceed the Medicaid eligibility threshold before the government will pick up the tab. The spouse of an
institutionalized individual is al so required to chip in, but only up to a point. Congress does not consider the healthy spouse’s income to be available to the institutionalized spouse, id. § 1396r5(b)(1), and the healthy spouse may exclude a po rtion of the couple’s as sets, capped by statute, from consideration when determining Medicaid eligibility, see Hughes v. McCarthy , 734 F.3d 473, 475–76 (6th Cir. 2013).
To prevent people from evading these requiremen ts by, say, giving their assets away to their children, the Medicai d statute requires each State to “l ook back” at an institutionalized
individual’s financia l history to see if he or his spouse ha s disposed of any assets for less than fair market value in the past three years. In the event a couple makes any such dispositions, the State must strip the patient of Medicaid eligibility to a proportionate extent. See 42 U.S.C. § 1396p(c)(1).
The statute nevertheless permits individuals a nd married couples to dispose of their assets by purchasing a specific type of annuity. Secti on 1396p(c)(1)(F) says that “the purchase of anNo. 16-5596 Singleton v. Commw. of Ky., et al. Page 3

annuity shall be treated as the disposal of an asset for less than fair market value unless [] the
State is named as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the institu tionalized individual.” By purchasing an annuity structured in this way, a healthy spouse may conve rt assets that would be counted against the institutionalized spouse’s Medica id eligibility into an uncountable stream of income to the healthy spouse. If the healthy spouse passes away before the fu ll value of the annu ity is paid out, however, the State receives the remainder, up to the full value of the care provided to the institutionalized spouse.
In drafting (and passing) this provision, Congress initially made a mistake. As first enacted, § 1396p(c)(1)(F) allowed the State to recover only “the total amount of medical assistance paid on behalf of the annuitant .” Pub. L. No. 109-171, 120 Stat. 4, 63 (2006) (emphasis added). That amount is typically zero for married couples, because a healthy spouse will take out an annuity in her own name so that the income is not attributed to the institutionalized spouse. Just ten months later, as a result, Congress retroactively amended the provision to change “the annuita nt” to “the institutionalized i ndividual.” Pub. L. No. 109-432, 120 Stat. 2922, 2998 (2006).
In March 2007, four months after this amendment fixed the drafting problem, the Kentucky Department of Medicaid Services promul gated an annuity regula tion that reflected the pre-amendment version of § 1396p(c)(1)(F). 907 Ky. Admin. Regs. 1:650 § 2(8)(b)(1) (2007). That regulation sat on the books for over seven y ears until the Department finally replaced
“annuitant” with “institutionali zed individual” in April 20 14. 907 Ky. Admin. Regs. 20:030 § 1(9)(d)(1) (2014). The Departme nt, however, never enforced the regulation as wr itten. In her capacity as the Branch Manager for Eligibility Policy of the Department, Carmicle took the position that the state agency woul d strip eligibility only if the couple took out an annuity that did not comply with the federal rule.
In September 2009, Mary and Claude Singl eton sought Medicaid benefits to support Claude’s full-time residence in a nursing home. They engaged an elder car e law firm to advise them on purchasing an annuity in order to gain eligibility. Mary allegedly wanted to name the State as a beneficiary for the value of care provided to her , rather than Claude, as the KentuckyNo. 16-5596 Singleton v. Commw. of Ky., et al. Page 4

regulation seemed to permit. But Mary’s lawyers informed her that the Department was enforcing the federal annuity rule, prompti ng her to purchase a $220,000 annuity that complied with the federal requirement. (The Singletons do not claim that Mary relied on the text of the Kentucky regulation to her detriment.)
Claude obtained Medicaid eligibility af ter the purchase of the annuity, and the Department paid $98,729.01 in medical expenses on hi s behalf before his death. Mary passed away in February 2014, leaving $118,238.41 in the a nnuity. Because the annuity was structured in accordance with the federal rule, the Depart ment was entitled to reclaim the full amount it paid for Claude’s care, with $19,509.40 left over for the secondary beneficiaries.
The Singleton children, acting as co-administrat ors of their mother’s estate, filed a § 1983 action against the Secretary of the Kentucky Cabi net of Health and Human Services, seeking an injunction and a declaratory judgm ent that the State has no right to the funds remaining in the annuity and that the funds remain the property of the Singletons. They also filed a damages action under § 1983 and state law against Carmicle , whom they accuse of adopting an annuity policy that violates Kentucky and federal law. Carmicle filed a motion to dismiss the complaint under Civil Rule 12(b)(6), claiming that the Ke ntucky annuity regulation was void and that the claim against her should be dismissed on the basi s of qualified immunity. The district court determined that qualified immunity should be a ddressed at summary judgment after both parties had an opportunity for discovery. In response, Carmicle, but not the state agency, filed this interlocutory appeal.
The crux of the Singletons’ case is that Carmicle illega lly ignored the Kentucky annuity regulation, wrongfully depriving Mary’s estate of $98,729.01. But Carmicle complied with the law, the federal law that is. Federal law preempted the state regulation by requiring all state plans to treat annuities in accordance with § 1396p( c)(1)(F), eliminating any viable claim against Carmicle, whether under federal or state law.
The Medicaid statute says that “[a] State plan for medical assistance must . . . comply with the provisions of section 1396p of this title with respect to . . . transfers of assets . . . .” 42 U.S.C. § 1396a(a), (a)(18) (emphasis added). Section 1396p(c)(1)(A) says that “the StateNo. 16-5596 Singleton v. Commw. of Ky., et al. Page 5

plan must provide that if an institutionalized individua l or the spouse of such an individual . . . disposes of assets for less than fair market valu e on or after the look-back date . . . the individual is ineligible for medical assistance for [custodial care]” for a period proportionate to the size of the transfer. (Emphasis added). And when Ma ry Singleton purchased her annuity in September 2009, § 1396p(c)(1)(F) stated that “t he purchase of an annuity shall be treated as the disposal of an asset for less than fair market value unless [] the State is named as the remainder beneficiary . . . for at least the total amount of medical assistance paid on behalf of the institutionalized individual .” (Emphasis added); see Hughes , 734 F.3d at 476; see also Ark. Dep’t. of Health & Human Servs. v. Ahlborn , 547 U.S. 268, 283 (2006).
These provisions left Carmicle no discretion to treat annuities differently under state law.
Once it becomes clear that federal law controls the point, all of the Si ngletons’ claims—whether that the State improperly seized their money under the Fourth Amendment, took it without compensation under the Fifth Amendment, or depr ived them of property under the Fourteenth Amendment—evaporate.
The Singletons respond that the Medicaid stat ute gave the Commonwealth the discretion to be more generous in its treatment of annuitie s and the general spend-down rules. In support, they point to § 1396a(r)(2)(A), which provide s that the “methodology to be employed in determining income and resource eligibility . . . ma y be less restrictive [than the eligibility rules for Social Security],” and which (in their view ) gave Kentucky license to craft its own, more generous annuity rules. But this general grant of discretion permits States only to adopt “less restrictive” methodologies that ma ke “additional individuals . . . e ligible for medical assistance”
and ensure that “no individuals who are otherw ise eligible are made ineligible for such assistance.” 42 U.S.C. § 1396a(r)(2). The regulation at i ssue here did not serv e to extend care to more individuals. Rather, it required Medicaid cl aimants to set up the beneficiary provisions of
their annuities in one manner rather than anothe r. And the beneficiary provision the State required ran contrary to the Medi caid Act’s highly reticulated provisions requiring participating States to treat annuities in a particular way, wh ich were intended to close the loophole that the State re-opened.No. 16-5596 Singleton v. Commw. of Ky., et al. Page 6

“[W]here state and federal law directly conflict, state law must give way.” Wos v. E.M.A.
ex rel. Johnson , 133 S. Ct. 1391, 1398 (2013) (quotation omitted). The Kentucky annuity regulation departed from the Medi caid statute’s clear instructions . To respect the federal law requires preemption of the state re gulation. Carmicle thus was corr ect that federal law required her to impose a look-back penalty on couples who structured their annuities to avoid paying the
State back for the cost of care.
Because the state regulation was void and b ecause Carmicle’s policy was compelled by federal law, she did not violate a ny of the Singletons’ rights. The state regulation did not create a property interest that was taken in violation of the Fourth, Fift h, or Fourteenth Amendments, and
there was no violation of the federal or state Me dicaid statutes. Even if all of the factual allegations in the Singletons’ complaint are accur ate, they accordingly are not entitled to any relief against Carmicle, and their clai ms against her must be dismissed. See Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009).
It is true, as the district court correctly poin ted out, that it is often perilous to resolve a Rule 12(b)(6) motion on qualified immunity grounds gi ven the fact development often needed to
decide whether the state o fficial violated clearly es tablished federal law. See Wesley v. Campbell , 779 F.3d 421, 433 (6th Cir. 2015); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist. , 428 F.3d 223, 234–35 (6th Cir. 2005) (Sutton, J., concurring); Jacobs v. City of Chicago , 215 F.3d 758, 775 (7th Cir. 2000) (Easterbrook, J., concurring). But in this instance our decision has less to do with traditional qualified immunity disputes—especially the clearly established prong of th e qualified immunity inquiry—and mo re to do with the Supremacy Clause. Because federal law preempted th e Kentucky annuity regulation, the Singletons’ complaint does not identify any cognizable legal violation by Carmicle, mu ch less a violation of a clearly established federal right of wh ich a reasonable person should have known. See Pearson
v. Callahan , 555 U.S. 223, 231 (2009).
For these reasons, we reverse and remand to th e district court for proceedings consistent with this opinion.