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                 SUPREME COURT OF ARKANSAS
                                       No.   CV-13-870

ARKANSAS DEPARTMENT OF                            Opinion Delivered   May 29, 2014
HUMAN SERVICES
                  APPELLANT                       APPEAL FROM THE ARKANSAS
                                                  COUNTY CIRCUIT COURT,
V.                                                [NO. CV-12-55]

                                                  HONORABLE DAVID G. HENRY,
GORDON PIERCE                                     JUDGE
                                 APPELLEE
                                                  REVERSED AND REMANDED.


                                JIM HANNAH, Chief Justice


         Appellant, the Arkansas Department of Human Services (“DHS”), appeals from an

order of the Arkansas County Circuit Court reversing and remanding DHS’s decision that

appellee, Gordon Pierce, was ineligible for Medicaid benefits. The circuit court ruled that

retirement accounts owned by appellee’s spouse, Martha Pierce, should not have counted in

the determination of Gordon’s eligibility for long-term-care Medicaid benefits. DHS

appealed to the Arkansas Court of Appeals, which recommended certification of the appeal

to this court because it involves an issue of first impression and substantial public interest.

This court accepted certification, and our jurisdiction is proper pursuant to Arkansas Supreme

Court Rule 1-2(d)(2) (2013). We hold that a spouses’s individual retirement account

(“IRA”) and 401(k) may be countable resources under the Medicare Catastrophic Coverage

Act of 1988, 42 U.S.C. § 1396r-5. Therefore, we reverse and remand the circuit court’s

order.
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       This case requires the court to interpret the “spousal impoverishment” provisions of

the Medicare Catastrophic Coverage Act of 1988 (the “MCCA”), 42 U.S.C. § 1396r-5, “a

complex set of instructions made part of the federal Medicaid statute.” Wis. Dep’t of Health

& Family Servs. v. Blumer, 534 U.S. 473, 477 (2002). Medicaid was enacted in 1965 as Title

XIX of the Social Security Act, and the “federal Medicaid program provides funding to

States that reimburse needy persons for the cost of medical care.” Id. at 479.1 “‘Each

participating State2 develops a plan containing reasonable standards . . . for determining

eligibility for and the extent of medical assistance,’ within boundaries set by the Medicaid



       1
       As noted by the Missouri Court of Appeals,

       Language in the federal Medicaid law and in the statutes and regulations of states that
       participate in the Medicaid program has been characterized, inter alia, as (1) a
       “virtually impenetrable ‘Serbonian bog,’ ” Ross v. Giardi, 237 Conn. 550, 680 A.2d
       113, 116–17 (Sup. 1996), (2) “almost unintelligible to the uninitiated,” Friedman v.
       Berger, 547 F.2d 724, 727 n.7 (2d Cir. 1976), and (3) an “aggravated assault on the
       English language, resistant to attempts to understand it.” Friedman v. Berger, 409 F.
       Supp. 1225, 1225–26 (S.D.N.Y. 1976).

Maples v. Dep’t of Soc. Servs., 11 S.W.3d 869, 873 n.5 (Mo. Ct. App. 2000).

       2
         If a state participates in Medicaid, it must provide coverage to the “categorically
needy.” 42 U.S.C. § 1396(a)(10)(A) (Supp. II 1982). These are persons eligible for cash
assistance under either the Aid for Dependent Children program or the Supplemental
Security Income program. See Atkins v. Rivera, 477 U.S. 154, 157 (1986). Congress has also
enacted an optional program for the “working poor” who are deemed “medically needy.”
Ramsey v. Dep’t of Human Servs., 301 Ark. 285, 287, 783 S.W.2d 361, 362 (1990). The
“medically needy” become eligible for Medicaid benefits when their income and assets are
reduced by incurred medical expenses that reduce their income and assets below certain
established levels. Id., 783 S.W.2d at 362. This then puts them in roughly the same position
as the “categorically needy.” Id., 783 S.W.2d at 362. Arkansas has elected to include this
optional plan under its State Medicaid Plan. Id., 783 S.W.2d at 362.

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statute and the Secretary of Health and Human Services.” Id. (quoting Schweiker v. Gray

Panthers, 453 U.S. 34, 36 (1981)); 42 U.S.C. § 1396a(a)(17). “In formulating those standards,

States must ‘provide for taking into account only such income and resources as are, as

determined in accordance with standards prescribed by the Secretary, available to the

applicant.’” Blumer, 534 U.S. at 479 (emphasis in original) (citing § 1396a(a)(17)(B)). “[S]tate

methodologies for determining eligibility must be ‘no more restrictive’ than the federal

methodology that would be employed under the supplemental security income [SSI]

program.” Geston v. Anderson, 729 F.3d 1077, 1079 (8th Cir. 2013); 42 U.S.C. §

1396a(a)(10)(C)(i). “A State’s methodology is considered ‘no more restrictive’ if ‘additional

individuals may be eligible for medical assistance and no individuals who are otherwise

eligible are made ineligible for such assistance.’” Geston, 729 F.3d at 1079; § 1396a(r)(2)(B).

       “Because spouses typically possess assets and income jointly and bear financial

responsibility for each other, Medicaid eligibility determinations for married applicants have

resisted simple solutions.” Blumer, 534 U.S. at 479. Prior to the enactment of the MCCA,

when one spouse entered a nursing home (or other institution) and applied for Medicaid,

each spouse was treated as a separate household. See H. R. Rep. No. 100-105(II) (1987),

reprinted in 1988 U.S.C.C.A.N., 1987 WL 61566, at *66. Income, such as Social Security

checks, pensions, and interests or dividends from investments, were considered to belong to

the spouse whose name was on the instrument conveying the funds. Id. Thus, when the

husband, for example, entered a nursing home and the couple’s pension check had only the

husband’s name on it, all of that income was attributed to him when determining Medicaid,


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leaving the wife destitute. Id. Conversely, if the wife entered the nursing home, because

none of the income was considered hers, the husband was under no obligation under federal

law to contribute any income toward the cost of her care. Id.

       The rule for attribution of resources was basically the same as that for attributing

income. Id. Generally, in the month following institutionalization, resources to which a

spouse had unrestricted access, such as a joint savings account, were considered available to

that spouse for eligibility purposes. Id. On the other hand, assets held solely by the

community spouse were, after the first month, considered to belong to her, and she had no

obligation under federal law to contribute any amount of such resources toward the costs of

care of the institutionalized spouse. Id. at *66–67. Thus, before the enactment of the MCCA,

“[m]any community spouses were left destitute by the drain on the couple’s assets necessary

to qualify the institutionalized spouse for Medicaid and by the diminution of the couple’s

income posteligibility to reduce the amount payable by Medicaid for institutional care.

Conversely, couples with ample means could qualify for assistance when their assets were

held solely in the community spouse’s name.” Blumer, 534 U.S. at 480 (internal citation

omitted).

       In the MCCA, Congress sought to end the “pauperization” of the community spouse

“by assuring that the community spouse has a sufficient—but not excessive—amount of income

and resources available . . . while . . . [the institutionalized spouse] is in a nursing home at

Medicaid expense.” H. R. Rep. No. 100–105(II), at *65. (Emphasis added.) In addition,

“Congress intended to close the loophole where a couple could shelter resources in the


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community spouse’s name while the institutionalized spouse received Medicaid.” Johnson v.

Guhl, 91 F. Supp. 2d 754, 761 (D. N. J. 2000).

       “To achieve those goals, the MCCA requires that at the time of institutionalization,

a ‘snapshot’ of the total value of the couple’s resources owned by either the institutionalized

or community spouse is inventoried or assessed.” Id.; 42 U.S.C. § 1396r-5(c)(1)(A). The

couple’s resources are divided into countable and exempt assets and one-half of the total

value of the resources “to the extent either the institutionalized spouse or the community

spouse has an ownership interest” is considered a spousal share. 42 U.S.C. § 1396r-5(c)(1)(A).

To avoid impoverishment of the community spouse, the community spouse is allowed a

“community spouse resource allowance” of the couple’s assets. 42 U.S.C. § 1396r-5(f)(2).

       The Arkansas Department of Human Services Medical Services Policy Manual defines

the “community spouse resource allowance” (“CSRA”) as the maximum amount of the

institutionalized spouse’s resources which may be transferred to the community spouse or to

another for the sole benefit of the community spouse. Ark. Admin. Code 016.20.1-3337.1.

Arkansas’s “community spouse maximum resources” (“CSMR”) is the total amount of

resources which may be considered available to the community spouse; this amount includes

resources held solely by the community spouse (in which the institutionalized spouse has no

ownership interest) and the CSRA. Id. At the time of the application, all resources held by

either the institutionalized spouse or the community spouse shall be considered available to

the institutionalized spouse to the extent that the resources exceed the CSMR. Ark. Admin.

Code 016.20.1-3337.4.


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       In the instant case, Gordon was admitted to a long-term-care facility on July 29, 2010,

at which time he had been married to, and living in the same home with, Martha for forty-

six years. Hoping Gordon’s medical condition would improve, Martha did not apply for

Medicaid assistance until December 29, 2011. As part of the application process, the Pierces

indicated that they had, inter alia, two retirement accounts. The retirement accounts

consisted of an IRA and a 401(k), and both accounts were in Martha’s name only. As of the

date of the Medicaid application, Martha’s IRA account had a balance of $325,245.92, and

her 401(k) had a balance of $27,300.13. When calculating the couple’s total available

resources, a DHS caseworker included these two retirement accounts and found that the total

amount of resources held by Gordon and Martha at the time of the application was

$358,550.38, and that the CSMR was $109,560;3 therefore, the value of countable resources

for Gordon’s application was $248,990.38. Because the maximum amount of resources the

applicant may have and still be eligible for nursing-home-care benefits is $2,000, the

caseworker denied Gordon’s application.

       Gordon appealed the denial of his application. In his brief and in oral arguments

before a DHS hearing officer, Gordon’s attorney contended that federal law exempted

Martha’s retirement accounts in calculating Gordon’s resources for purposes of Medicaid

eligibility. The hearing officer disagreed, finding that DHS had acted correctly when it


       3
       Pursuant to DHS’s long-term-care resource-eligibility worksheet, if the total
resources are under $21,912, the community spouse gets all. If the total resources are $21,912
to $43,824, the community spouse gets $21,912. If the total resources are $43,824 to
$219,120, the community spouse gets one-half. If the total resources are over $219,120 the
community spouse gets $109,560.

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determined that Martha’s IRA and 401(k) accounts were countable resources and not subject

to an exclusion. Gordon then filed a petition for judicial review with the circuit court. The

circuit court reversed and remanded, concluding that, based on the briefs and arguments of

counsel and the holding and discussion in Keip v. Wisconsin Department of Health & Family

Services, 606 N.W.2d 543 (Wis. Ct. App. 1999), DHS should not have counted against

Gordon’s Medicaid eligibility the retirement accounts owned by Martha.

       Review of administrative agency decisions, by both the circuit court and the appellate

court, is limited in scope. E.g., Ark. State Highway & Transp. Dep’t v. Lamar Advantage Holding

Co., 2011 Ark. 195, at 4, 381 S.W.3d 787, 790. The standard of review to be used by both

the circuit court and the appellate court is whether there is substantial evidence to support

the agency’s findings. Id., 381 S.W.3d at 790. The appellate court’s review is directed, not

toward the circuit court, but toward the decision of the agency, because administrative

agencies are better equipped by specialization, insight through experience, and more flexible

procedures than courts, to determine and analyze legal issues affecting their agencies. Id., 381

S.W.3d at 790. When reviewing such decisions, we uphold them if they are supported by

substantial evidence and are not arbitrary, capricious, or characterized by an abuse of

discretion. Id., 381 S.W.3d at 790. We review issues of statutory interpretation de novo;

however, the interpretation placed on a statute or regulation by an agency or department

charged with its administration is entitled to great deference and should not be overturned

unless clearly wrong. Id., 381 S.W.3d at 790.

       The only issue on appeal is whether, under federal law, retirement accounts owned


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by a community spouse may be countable resources when determining Medicaid eligibility

for an institutionalized spouse. MCCA provides as follows:

       (a) Special treatment for institutionalized spouses

       (1) Supersedes other provisions

       In determining the eligibility for medical assistance of an institutionalized spouse (as
       defined in subsection (h)(1) of this section), the provisions of this section supersede
       any other provision of this subchapter (including sections 1396a(a)(17) and 1396a(f)
       of this title) which is inconsistent with them.

       ...

       (3) Does not affect certain determinations

       Except as this section specifically provides, this section does not apply to--

       (A) the determination of what constitutes income or resources, or

       (B) the methodology and standards for determining and evaluating income and
       resources.

42 U.S.C. § 1396r-5(a)(1), (3).

       MCCA also specifically provides that the term “resources” does not include resources

excluded under 42 U.S.C. § 1382b(a) or (d) or resources that would be excluded under §

1382b(a)(2)(A) but for the limitation on total value described in that section. 42 U.S.C. §

1396r-5(c)(5). Section 1382b(a) and (d) specifically excludes, inter alia, the home, household

goods, personal effects, an automobile not in excess of an amount determined to be

reasonable by the Commissioner, funds set aside for burial expenses, and “other property

which is so essential to the means of self-support of such individual (and such spouse) as to

warrant its exclusion, as determined in accordance with and subject to limitations prescribed


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by the Commissioner of Social Security . . . .”

       MCCA does not specifically exclude IRAs or 401(k)s. Likewise, the Arkansas

regulation does not specifically exclude IRAs or 401(k)s. See Ark. Admin. Code 016.20.1-

3332.3 (stating that the following items of personal property qualify for special exclusion

when specific conditions are met: (1) automobile, (2) life insurance policies, (3) household

goods and personal effects, (4) income producing and non-home property, (5) burial spaces

and funds; (6) SSI or SSA retroactive payments; and (7) funds from a class-action settlement

from the case of Susan Walker v. Bayer Corp.). Rather, the Arkansas regulation states that

resource items which do not meet conditions for exclusion will be included with countable

resources. Id.

       DHS contends that, because the MCCA and the Arkansas regulation do not

specifically exclude IRAs and 401(k)s from the eligibility determination, the circuit court

erred in concluding that Martha’s retirement accounts were not countable resources. Gordon

acknowledges that there is no specific exclusion under the MCCA or the Arkansas

regulation, but he contends that because the MCCA is part of the Medicaid Act, this court

should look at the Medicaid-eligibility requirements when determining whether resources

are countable. Specifically, he contends that, pursuant to the “no more restrictive” provision

of the Medicaid Act, a state’s standards for determining an applicant’s Medicaid eligibility

may be no more restrictive than the eligibility requirements for SSI. Gordon maintains that,

under the SSI guidelines, Martha’s retirement accounts would have been excluded from an

SSI-eligibility determination; therefore, he contends that the accounts must be excluded from


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a Medicaid-eligibility determination. Gordon cites 20 C.F.R. § 416.1202(a), which provides,

in relevant part:

       Married individual. In the case of an individual who is living with a person not eligible
       [for SSI benefits] and who is considered to be the husband or wife of such individual
       . . . , such individual’s resources shall be deemed to include any resources, not
       otherwise excluded under this subpart, of such spouse whether or not such resources
       are available to such individual. In addition to the exclusions listed in § 416.1210 , we
       also exclude the following items:

       (1) Pension funds that the ineligible spouse may have. Pension funds are defined as funds held
       in individual retirement accounts (IRA), as described by the Internal Revenue Code, or in
       work-related pension plans (including such plans for self-employed persons, sometimes referred
       to as Keogh plans).

(Emphasis added.)

       DHS, citing Houghton v. Reinerston, 382 F.3d 1162 (10th Cir. 2004), responds that the

MCCA renders the “no more restrictive” provision inapplicable. In Houghton, the State of

Colorado revised its Medicaid-eligibility guidelines used to calculate a married couple’s

resources when a spouse enters a nursing home and changed the way it classified self-funded

retirement accounts such as IRAs, 401(k)s, and 403(b)s. Id. at 1166. Prior to the revision,

Colorado did not classify self-funded retirement accounts held by the community spouse as

“resources” available to support the institutionalized spouse. Id. Then, Colorado began

classifying those retirement accounts as countable resources. Id. Plaintiffs challenged the

revision, contending that the new rule violated federal law because it was more restrictive

than the provisions for determining SSI eligibility. Id. at 1170–71. The Houghton court

rejected this argument, stating,

       We agree that the Medicaid Act’s eligibility requirements (and therefore the MCCA’s
       eligibility requirements unless otherwise explicitly noted) must be no more restrictive

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       than the SSI eligibility requirements, but the SSI provides no guidance on the issue
       raised here. Notably, § 416.1202(a) applies only when an SSI applicant is living with
       his or her spouse. By definition, an institutionalized spouse and a community spouse
       in the Medicaid context do not live together. We therefore conclude that neither the
       SSI, nor its corresponding guidelines, address the eligibility requirements where one
       spouse is institutionalized.

Id. at 1171 (emphasis in original).

       The Supreme Court of New Jersey reached a similar conclusion in Mistrick v. Division

of Medical Assistance & Health Services, 712 A.2d 188 (N.J. 1998), another case relied on by

DHS. Even though the New Jersey Medicaid regulations did not specifically exclude a

community spouse’s pension plans and IRAs from the eligibility determination, the New

Jersey Superior Court, Appellate Division, held that pension plans and IRAs were required

to be excluded from the determination because of the “no more restrictive” methodology

provision. Id. at 192. The New Jersey Supreme Court reversed:

               MCCA provides that it supersedes any other provision that is inconsistent with
       it. 42 U.S.C.A. § 1396r-5(a)(1). MCCA further indicates that the term “resources”
       does not include those items excluded from the definition of “resources” pursuant to
       42 U.S.C.A. § 1382b(a) and (d). 42 U.S.C.A. § 1396r-5(c)(5). Those subsections do
       not exclude IRAs or pension plans from the determination of “resources.” However,
       the SSI regulation, 20 C.F.R. § 416.1202, excludes for purposes of determining SSI
       eligibility IRAs owned by an SSI-ineligible spouse living in the same household. On
       two grounds, however, we conclude that reliance on that SSI regulation is misplaced.

               First, the regulation does not apply generally in determining SSI eligibility, but
       applies only to exclude IRAs owned by ineligible spouses of SSI-eligible individuals
       living in the same household. Its narrow application, therefore, does not render the
       exclusion of IRAs in that specific circumstance a benchmark for determination of
       eligibility in the case of medically needy or optionally categorically needy applications.

               Second, even assuming the regulation excluding IRAs for purposes of SSI
       eligibility had a broader scope, we find the methodology used in that regulation
       inapplicable here because we conclude that the “no more restrictive” provision is
       superseded by MCCA. MCCA explicitly provides that it supersedes any provision

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that is inconsistent with it. For purposes of determining medically needy or optionally
categorically needy eligibility, application of a methodology “no more restrictive”
than the SSI methodology set forth in 20 C.F.R. § 416.1202, which excludes IRAs,
would clearly be inconsistent with MCCA, which specifies by reference to 42
U.S.C.A. 1382b(a) and (d) what items are excluded from the determination of
resources, without excluding IRAs. In that context, the conclusion is inescapable that
MCCA supersedes the “no more restrictive” provision. See 42 U.S.C.A. §§
1396a(a)(10)(C)(i)(III), 1396a(r)(2)(A). Thus, MCCA requires the inclusion of the
community spouse’s IRA in the determination of the institutionalized spouse’s
resources.

       The legislative history of MCCA supports our conclusion. The Senate
amendment to the House bill proposed an additional provision concerning the
treatment of resources that would have excluded “resources that are necessary to
produce income that is available to the community spouse or the family allowance.”
H.R. Conf. Rep. No. 100-661, at 263 (1988), reprinted in 1988 U.S.C.C.A.N. 923,
1041. However, the conference agreement “[did] not exclude from countable
resources those assets necessary to produce income available to the community spouse
or the family allowance.” 1988 U.S.C.C.A.N. at 1043. Instead, the agreement
provided that “either the institutionalized or the community spouse may request a fair
hearing as to whether the community spouse resource allowance is adequate to
generate sufficient income to raise the community spouse’s income to the minimum
monthly maintenance needs allowance.” Ibid. We are confident that had Congress
intended MCCA to exclude resources necessary to produce income, such as IRAs,
the proposed exclusion would have been adopted.

        We repeat that the SSI regulation relied on by respondent, 20 C.F.R. §
416.1202, applies only to a spouse eligible for SSI benefits who is living with his or
her ineligible spouse. Respondent contends that she and her husband were living
together at the time of their resource assessment; the Division contends that they were
not. MCCA provides that the “snapshot” assessment of a couple’s resources and of the
community spouse’s share is computed “as of the beginning of the first continuous
period of institutionalization ... of the institutionalized spouse.” 42 U.S.C.A. §
1396r-5(c)(1). An institutionalized spouse is “an individual who ... is in a medical
institution or nursing facility ... and is married to a spouse who is not in a medical
institution or nursing facility.” 42 U.S.C.A. § 1396r-5(h)(1). Therefore, by definition
an institutionalized spouse cannot be living with a community spouse. However, we
note that the dispute between the parties concerning whether the Mistricks were
living together is academic. The question is not whether the SSI regulation
concerning spouses who live together actually applied, but whether MCCA
superseded the “no more restrictive methodology” provision. Whether the Mistricks
were living together at the time of their resource assessment is of no import because

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       we conclude that the “no more restrictive” provision is inconsistent with and
       therefore is superseded by MCCA.

Mistrick, 712 A.2d at 196–97 (alteration in original).

       The Ohio Court of Appeals concurred, holding that a spouse’s IRA is a countable

resource under the MCCA and rejecting the argument that the “no more restrictive”

provision barred inclusion of an IRA. See Martin v. Ohio Dep’t of Human Servs., 720 N.E.2d

576 (Ohio Ct. App. 1998), abrogated on other grounds by Pack v. Osborn, 881 N.E.2d 237 (Ohio

2008). The Martin court explained:

       As the New Jersey Supreme Court noted, the provision of the MCCA establishing
       that it supersedes conflicting provisions of the federal code indicates that the MCCA
       establishes a separate method of evaluating resources for Medicaid eligibility for
       institutionalized spouses. The method established is generally much more lenient in
       the exclusion of resources than SSI standards. To the extent that the MCCA is less
       lenient, it was intended to remedy prior inequities between married couples created
       by different recognition of whether assets were held in the name of one spouse or the
       other. A rule that would exclude an IRA held by the community spouse would only
       revitalize this old distinction by treating that couple more leniently than one in which
       the institutionalized spouse held the IRA. We are not troubled, therefore, that the
       MCCA might consider a resource available that is excluded under SSI standards.

Id. at 583; accord Mannix v. Ohio Dep’t of Human Servs., 731 N.E.2d 1154 (Ohio Ct. App.

1999) (rejecting argument that exclusion of IRA was mandated by 20 C.F.R. § 416.1202(a)).

       For his part, Gordon urges this court to follow Keip, 606 N.W.2d 543, and hold that

the “no more restrictive” provision mandates that a community spouse’s retirement accounts

cannot be included as a countable resource when determining an institutionalized spouse’s

Medicaid eligibility. In Keip, Walter Keip entered a nursing home on October 17, 1996,

returned to his home before Christmas that year, and was readmitted to the nursing home

on April 23, 1997. Id. at 545. In June 1997, Walter’s wife, Caryl Keip, began the medical-

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assistance (“MA”) application process on Walter’s behalf. Id. Caryl learned that the Wisconsin

Department of Health and Family Services (“WDHFS”) intended to count her IRA as an

asset in determining Walter’s eligibility for MA and that the inclusion would render him

ineligible. Id. To accelerate Walter’s eligibility date, Caryl used about half of the funds in her

IRA to purchase an irrevocable fixed annuity. Id. This type of annuity did not count as an

asset for MA eligibility purposes. Id. Walter qualified for MA as of August 1997, but WDHFS

denied him benefits for the period prior to that month. Id.

       The Wisconsin Court of Appeals determined that WDHFS erred in interpreting the

federal spousal-impoverishment provisions to require the inclusion of a community spouse’s

IRA when determining the MA eligibility of the institutionalized spouse. Id. The court

rejected WDHFS’s argument that Congress intended the resource exclusions enumerated in

the spousal-impoverishment provisions of the MCCA to supplant rather than supplement the

resource exclusions applicable in SSI-eligibility determinations. Id. at 550. The court

concluded that the SSI regulation at 20 C.F.R. § 416.1202(a) excluded Caryl’s IRA, noting

that under applicable MA eligibility criteria, the Keips were considered to have been living

together at the time of Walter’s first institutionalization in October 1996, notwithstanding

his temporary absence for care and treatment. Id. In addition, the court pointed out that

WDHFS’s decision to include Caryl’s IRA when determining Walter’s eligibility was

not based on guidance in the MA Handbook, Wisconsin’s medical-assistance manual, because

the MA Handbook’s appendix regarding “spousal impoverishment” specifically stated: “Don’t

count the following assets: . . . All assets not counted in determining SSI-related MA


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eligibility.” Id. at 549. Thus, the court noted that WDHFS’s decision to include Caryl’s IRA

as a countable resource for Medicaid eligibility was inconsistent with the guidelines stated in

the MA Handbook and that the MA Handbook “strongly implie[d] that the department had

previously concluded that an asset of either spouse excluded under federal SSI-eligibility

regulations must also be excluded when determining MA eligibility under the spousal

impoverishment provisions.” Id.

       DHS contends that Gordon’s reliance on Keip is misplaced because Arkansas does not

have a provision in its regulation similar to the one in Wisconsin’s medical-assistance manual

that instructed personnel to exclude from consideration for medical-assistance eligibility any

assets that were excluded in determining SSI eligibility. Moreover, DHS contends that,

unlike Wisconsin, Arkansas has adopted the approach that all assets available to an individual

are considered countable resources unless specifically excluded by policy. See Ark. Admin

Code 016.20.1-3332.3 (stating that resource items which do not meet conditions for

exclusion will be included with countable resources). According to DHS, this method for

counting resources is consistent with the public policy of the State of Arkansas, as stated, in

relevant part, in Arkansas Code Annotated section 20-77-101(a) (Repl. 2001):

       It is the intent of the General Assembly that the Medicaid medical assistance program
       administered by the Department of Human Services is intended to be supplemental
       to other potential sources of payment which are or may be available to pay for the
       costs of medical care delivered to residents of this state. To ensure that the
       appropriated funds are available to meet the needs of those residents, it is hereby
       declared the public policy of the State of Arkansas that the program is the payor of last
       resort to supplement and not supplant other sources which are or may be available to
       any individual[.]

       Finally, DHS contends that Congress, in enacting the MCCA, intended to leave to

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the states the determination of whether retirement accounts are countable resources. DHS

again points to the Houghton case, in which the Tenth Circuit concluded that,

       unless an asset is specifically mentioned by the MCCA, the classification of that asset
       for eligibility purposes depends on the federal Medicaid Act’s treatment of that asset.
       Applying this rule to retirement accounts, we conclude that Congress did not
       explicitly exclude retirement accounts when defining resources. Rather, we conclude
       that Congress neither foreclosed nor mandated a particular classification for retirement
       accounts.

Houghton, 382 F.3d at 1171.

       After reviewing the legislative history of the MCCA and studying the persuasive

authority cited by the parties in this case, we conclude that the circuit court erred in finding

that DHS was not permitted to count against Gordon the retirement accounts owned by

Martha. Although the Medicaid Act’s eligibility requirements (and therefore the MCCA’s

eligibility requirements unless otherwise noted) must be no more restrictive than the SSI

eligibility requirements, the regulation at 20 C.F.R. § 416.1202(a) provides no guidance

when one spouse is institutionalized. See Houghton, 382 F.3d at 1171 (noting that §

416.1202(a) applies only when an SSI applicant is living with his or her spouse). Moreover,

even assuming the SSI regulation did provide some guidance, the MCCA supersedes any

provision that is inconsistent with it. Therefore, the “no more restrictive” provision is

inapplicable in this case. While we do not agree with the Mistrick court that the MCCA

requires the inclusion of the community spouse’s IRA in the determination of the

institutionalized spouse’s resources, see 712 A.2d at 197, we do agree with DHS’s assertion

that Congress has left it to each state to determine whether to include retirement accounts

in the computation of a couple’s resources. See Houghton, 382 F.3d at 1173 (“By not taking

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a clear position on the status of retirement accounts, Congress intended, through cooperative

federalism, to leave resolution of this complicated matter to the states.”). We conclude that

DHS’s policy of considering as countable resources a community spouse’s retirement

accounts does not violate federal law.

       Reversed and remanded.

       HOOFMAN, J., dissents.

       CLIFF HOOFMAN , Justice, dissenting. Because I believe the majority errs in

reversing and remanding the circuit court’s order, I respectfully dissent. It is undisputed that

appellee Gordon Pierce (“Gordon”) had been married and lived with his wife, Martha Pierce

(“Martha”) for forty-six years prior to being admitted to a long-term-care facility on July 29,

2010, for health reasons. Rather than seeking Medicaid assistance immediately and hoping

that his condition would improve, Gordon waited until December 29, 2011, to apply for

assistance. It is undisputed that Gordon would have qualified for Medicaid benefits if the

two retirement accounts that were titled in Martha’s name only were not considered

countable resources. Therefore, as the majority correctly indicates, the sole issue on appeal

is whether a 401k and an IRA owned by a community spouse are countable resources under

federal law when determining Medicaid eligibility for an institutionalized spouse.

       In the absence of any binding federal or Arkansas case law on this specific issue, and

rather than placing my reliance on Houghton v. Reinerston, 382 F.3d 1162 (10th Cir. 2004),

as the majority does, I find the analysis in Keip v. Wisconsin Department of Health & Family

Services, 606 N.W.2d 543 (Wis. Ct. App. 1999), more persuasive in this case.


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       This court’s cardinal rule of statutory construction is to give effect to the intent of the

legislature. Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001). Where

the language of a statute is plain and unambiguous, we determine legislative intent from the

ordinary meaning of the language used. Id. When a statute is ambiguous, we must interpret

it according to legislative intent. Id. Our review becomes an examination of the whole act,

and we reconcile provisions to make them consistent, harmonious, and sensible in an effort

to give effect to every part. Id. We also look to the legislative history, the language, and the

subject matter involved. Id. We have also explained that literal meaning yields to legislative

intent if the literal meaning leads to absurd consequences contrary to legislative intent. Bank

of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003).

       The majority aptly explains the background of the Medicaid program as it was enacted

in 1965 and the enactment of the Medicare Catastrophic Coverage Act of 1988 (“the

MCCA”), 42 U.S.C. § 1396r-5. In Arkansas Department of Human Services v. Schroder, this

court explained,

       MCCA was designed “to protect the elderly and disabled population from the
       financial disaster caused by catastrophic health care expenditures not currently
       reimbursed under the Medicare and Medicaid programs.” H.R.Rep. No. 100–105,
       pt. 2, at 65–68 (1998), reprinted in 1988 U.S.C.C.A.N. 803, 888. MCCA also
       “sought to close the loophole where a couple could shelter their assets by transferring
       them into the community spouse’s name while the institutionalized spouse received
       Medicaid benefits.” Johnson v. Guhl, 166 F. Supp. 2d 42 (D.N.J. 2001).

353 Ark. 885, 890–91, 122 S.W.3d 10, 14 (2003).

       Under 42 U.S.C. § 1396a(a)(10)(C)(i) and 42 U.S.C. § 1396a(r)(2)(A) of the Medicaid

Act, our state program can be “no more restrictive” in methodology for determining


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eligibility than the federal methodology employed under the Supplemental Security Income

(“SSI”) program, and the “methodology is considered to be ‘no more restrictive’ if, using the

methodology, additional individuals may be eligible for medical assistance and no individuals

who are otherwise eligible are made ineligible for such assistance.”           42 U.S.C.A. §

1382c(f)(1) provides,

       For purposes of determining eligibility for and the amount of benefits for any
       individual who is married and whose spouse is living with him in the same household
       but is not an eligible spouse, such individual’s income and resources shall be deemed
       to include any income and resources of such spouse, whether or not available to such
       individual, except to the extent determined by the Commissioner of Social Security
       to be inequitable under the circumstances.

Pursuant to this authority, the Commissioner has promulgated 20 C.F.R. § 416.1202, which

provides,

       § 416.1202 Deeming of resources.

       (a) Married individual. In the case of an individual who is living with a person not
       eligible under this part and who is considered to be the husband or wife of such
       individual under the criteria in §§ 416.1802 through 416.1835 of this part, such
       individual’s resources shall be deemed to include any resources, not otherwise
       excluded under this subpart, of such spouse whether or not such resources are
       available to such individual. In addition to the exclusions listed in § 416.1210, we also
       exclude the following items:

       (1) Pension funds that the ineligible spouse may have. Pension funds are defined as
       funds held in individual retirement accounts (IRA), as described by the Internal
       Revenue Code, or in work-related pension plans (including such plans for
       self-employed persons, sometimes referred to as Keogh plans).

However, the MCCA, or “spousal impoverishment provisions,” was subsequently enacted,

and 42 U.S.C. § 1396r-5 provides the following relevant provisions:

       § 1396r-5. Treatment of income and resources for certain institutionalized spouses


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       (a) Special treatment for institutionalized spouses

              (1) Supersedes other provisions
              In determining the eligibility for medical assistance of an institutionalized
              spouse (as defined in subsection (h)(1) of this section), the provisions of this
              section supersede any other provision of this subchapter (including sections
              1396a(a)(17) and 1396a(f) of this title) which is inconsistent with them.
              ....
              (3) Does not affect certain determinations
              Except as this section specifically provides, this section does not apply to--
                     (A) the determination of what constitutes income or resources, or
                     (B) the methodology and standards for determining and evaluating
                     income and resources.
       ....
              (5) Resources defined
              In this section, the term “resources” does not include--
                      (A) resources excluded under subsection (a) or (d) of section 1382b of
                      this title, and
                      (B) resources that would be excluded under section 1382b(a)(2)(A) of
                      this title but for the limitation on total value described in such section.

42 U.S.C. § 1382b lists a number of specifically excluded items from resources, including a

home, household goods, personal effects, and an automobile. However, none of the listed

exclusions in this section include pensions or retirement accounts, nor does the section

specifically exclude pensions or retirement accounts. Thus, the issue in this case requires this

court first to decide whether the exclusion under the SSI regulations for an ineligible spouse’s

pension and IRA remains viable under the subsequently enacted spousal-impoverishment

provisions. I would conclude, as did the court in Keip and Houghton, that the provisions of

the spousal-impoverishment law are ambiguous in this respect.

       The court in Keip resolved the ambiguity by looking to the legislative intent of the

MCCA as our rules of statutory construction would require us to do.

       We conclude that the more reasonable interpretation is that Congress did not intend

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      to make it more difficult for a community spouse to remain self-sufficient by requiring
      that spouse to spend down or diminish the value of a pension fund or IRA in order
      to render his or her institutionalized spouse eligible for MA [medical assistance or
      Medicaid].
      ....

      [T]he explanation contained in the House Report regarding the spousal
      impoverishment provisions [states,] “The purpose of these revisions is to assure that
      the community spouse in these circumstances has income and resources sufficient to
      live with independence and dignity.” H.R. REP. No. 100–105(II), at 69 (1988),
      reprinted in 1988 U.S.C.C.A.N. 803, 892.

             Similarly, if we consider the scope and context of the spousal impoverishment
      provisions enacted in 1988, it seems clear that congressional intent was to preserve
      existing exclusions, while increasing the amount of assets a community spouse may
      retain. Except as the new provisions “specifically” provide, the “determination of
      what constitutes . . . resources” was not to change under the spousal impoverishment
      provisions.
      ....

      We fail to see how eliminating the exclusion for a spouse’s pension or IRA, an
      exclusion that was explicitly recognized under SSI/MA eligibility rules prior to
      enactment of the spousal impoverishment provisions, assists in “closing a loophole”
      exploited by asset transfers between spouses. Employee pension funds and IRAs are
      not readily transferable between spouses. They are thus not the type of assets that
      could easily be retitled on the eve of the owning spouse’s institutionalization.

              In summary, we conclude that the more reasonable interpretation of 42 U.S.C.
      § 1396r-5 is that the statute does not remove the exclusion for an IRA held by a
      community spouse when an institutionalized spouse applies for MA. The ineligible
      spouse’s IRA would be excluded in determining whether the applying spouse would
      be eligible for SSI, and Wisconsin’s MA eligibility criteria may not be more restrictive
      than federal SSI eligibility requirements. The spousal impoverishment provisions only
      supersede those SSI eligibility criteria which are inconsistent with the provisions of
      § 1396r-5. In particular, the determination of what constitutes countable resources
      for eligibility purposes is unaffected unless the section “specifically provides” for
      different treatment. Nothing in § 1396r–5 specifically overrides the treatment of
      spousal IRAs for purposes of MA eligibility determinations, and reading in a repeal
      of the exclusion would be contrary to the primary purpose of the spousal
      impoverishment provisions.

Keip, 606 N.W.2d at 549–51 (footnotes omitted).

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        I agree with the analysis in Keip and the resolution of the ambiguity presented in

applying the required federal law for the purposes of determining medicaid eligibility. The

MCCA only supersedes those SSI eligibility criteria that are inconsistent with the provisions

of section 1396r-5, and section 1396r-5 does not specifically override the exclusion of spousal

pensions and IRAs for the purposes of Medicaid eligibility determinations. Furthermore,

because our state program must be “no more restrictive,” Martha’s IRA and 401k accounts

should not have been included as countable resources in determining Gordon’s eligibility.

To hold otherwise, as the majority does, would be inconsistent with the stated legislative

intent for the MCCA’s enactment.

        Additionally, I do not agree with the majority’s conclusion that 20 C.F.R. §

416.1202(a) does not apply because Gordon was not “living with” his or her spouse. This

term is undefined in the regulation. However, it is undisputed that Gordon was married to,

and lived with, Martha for forty-six years, and he was only institutionalized for medical

reasons outside of his control. The majority appears to summarily conclude that “living

together” must require the spouses to physically be located under the same roof at the time

of the application for benefits. Therefore, the fact that Gordon delayed seeking Medicaid

eligibility for seventeen months after his institutionalization in the hopes that he would

recover and return home somehow now renders him ineligible because they were not “living

together” at the time of the application for benefits.

        This literal interpretation, in my opinion, does not give effect to the intent of the

MCCA or the regulation. The consequences of the majority’s interpretation would allow


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an individual who applied for Medicaid eligibility before he or she was institutionalized or

immediately after he or she was institutionalized (thereby fitting under some definition of a

“temporary absence”) to qualify for benefits, but the interpretation would penalize and

exclude from eligibility an individual who waited to apply for the same benefits in the hopes

that he or she may return home and not need the benefits. In the past, this court has said

that it will not engage in interpretations that defy common sense and produce absurd results.

Shipley, Inc. v. Long, 359 Ark. 208, 216, 195 S.W.3d 911, 915 (2004). Rather, I would hold

that Gordon met the requirements of section 416.1202(a), excluding Martha’s retirement

accounts as countable resources, because it is consistent with the legislative intent “to assure

that the community spouse in these circumstances has income and resources sufficient to live

with independence and dignity.” H. R. Rep. No. 100–105(II), at 69 (1988), reprinted in

1988 U.S.C.C.A.N. 803, 892. As such, I would affirm the circuit court’s order reversing and

remanding the hearing officer’s order in this case.

       Erasmo J. Reyes, Office of Policy and Legal Services, for appellant.

       Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for

appellee.




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