In the Supreme Court of Georgia



                                                      Decided: July 11, 2014


                         S13G1127. COOK et al. v. GLOVER.

       THOMPSON, Chief Justice.

       We granted certiorari in Cook v. Bottesch, 320 Ga. App. 796 (740 SE2d

752) (2013) to consider whether the Court of Appeals properly interpreted 42

U.S.C. § 1396p with respect to whether a Medicaid applicant’s purchase of an

annuity was subject to an asset transfer penalty. In this case, the Georgia

Department of Human Services, Family and Children Services (“DFCS”)

granted appellee Jerry L. Glover’s application for Medicaid benefits but

imposed a multi-month asset transfer penalty on him pursuant to § 2339 of

DFCS’s Georgia Economic Support Services Manual (the “Eligibility Manual”)

due to his refusal to name the State as the remainder beneficiary on an annuity.1


       1
          Glover, an 82-year-old man residing in a Gainesville, Georgia, nursing home purchased
an irrevocable, non-assignable, and actuarially sound annuity for himself shortly before applying for
Medicaid benefits. In connection with processing his application, DFCS asked Glover to verify that
he had named the State of Georgia as the remainder beneficiary on the annuity and Glover refused,
claiming that § 2339 was inapplicable to his annuity and in contravention of other provisions of
federal law. Thereafter, DFCS approved Glover’s application for benefits, but assessed a seven-
month transfer of asset penalty against him. The penalty imposed precluded the payment of benefits
on Glover’s behalf to the nursing home during the penalty period.
Glover appealed the penalty to an Office of State Administrative Hearings

Administrative Law Judge (“ALJ”) who issued an initial decision reversing the

penalty. DFCS thereafter filed a request for agency review by the Georgia

Department of Community Health (“DCH”), the state agency responsible for

administering Georgia’s Medicaid program, and DCH issued a final decision

upholding the penalty. Pursuant to OCGA § 50-13-19 of the Administrative

Procedures Act, Glover then sought judicial review from the Superior Court of

Hall County which affirmed the final agency decision. The Court of Appeals

granted Glover’s application for discretionary appeal and reversed the superior

court, concluding that § 2339 of the Eligibility Manual as applied to Glover was

inconsistent with the plain language of the federal Medicaid statute and that

pursuant to 42 U. S. C. §§ 1396p (c) (1) (F) and (G), Glover’s annuity was not

an asset to which the asset transfer penalty would apply. See Cook v. Bottesch,

supra. In holding that the penalty did not apply, the Court of Appeals found the

federal statutory language was unambiguous and refused to defer to DCH’s

decision which was based on a contrary interpretation of the statute provided by

the United States Department of Health and Human Services, Centers for

Medicare and Medicaid Services (“CMS”), the federal agency charged with

                                       2
administering the Medicaid program.

       Appellants, David Cook in his official capacity as Commissioner of DCH

and Clyde L. Reese in his official capacity as Commissioner of DFCS, appealed

to this Court arguing that the Court of Appeals improperly interpreted the

annuity section of the Medicaid Act and erred in holding that §2339 as applied

to Glover violated federal law. Asserting that the statutory provisions at issue

are ambiguous, appellants contend that the Court of Appeals was required to

defer to CMS’s interpretation of the federal statute. See Chevron U. S. A. v.

Natural Resources Defense Council, 467 U. S. 837, 843, n. 9 (104 SCt 2778, 81

LEd2d 694) (1984) (reviewing court must give effect to an agency’s regulation

containing a reasonable interpretation of an ambiguous statute). Because we

find that the federal statutory provisions at issue are ambiguous and the relevant

administrative agencies’ interpretations thereof are based on a permissible

construction of the statutory language,2 we reverse the Court of Appeals’

decision in this case.

       1. Medicaid is a joint federal-state program that provides medical care to

       2
          This case involves the judicial review of the state administrative agency’s decision as well
as the federal administrative agency’s interpretation of a federal statute upon which the state agency
relied.

                                                  3
needy individuals. See Douglas v. Independent Living Center of Southern

California, Inc., ___ U. S. ___ (132 SCt 1204, 182 LE2d 101) (2012). As a

participant in the Medicaid program, the State of Georgia is required to have an

approved state plan for medical assistance which complies with certain

requirements imposed by the Medicaid Act as well as with regulations

promulgated by the Secretary of Health and Human Services. See Wilder v.

Virginia Hosp. Ass’n, 496 U. S. 498, 502 (110 SCt 2510, 110 LEd2d 455)

(1990); 42 U. S. C. §1396a (a). As federal administrator of the Medicaid

program, CMS is responsible for the approval of state Medicaid plans and for

providing statutory interpretation and guidance with respect to Medicaid

eligibility and the penalties for noncompliance with Medicaid rules.3 See

Douglas, supra, 132 SCt at 1208.

       In Georgia, DCH is the state agency responsible for administering the

Medicaid program and is statutorily authorized by the State “to establish such

rules and regulations as may be necessary or desirable in order to execute the



       3
        CMS’s interpretations of the Medicaid law and regulations are binding on State Medicaid
agencies. See CMS State Medicaid Manual, a copy of which can be accessed on the internet at
http://www.cms.gov/Regulations-and-Guidance/guidance/Manuals/Paper-Based-Manuals-
Items/CMS021927.html.

                                              4
state plan and to receive the maximum amount of federal financial participation

available.” OCGA § 49-4-142 (a). See also 42 C. F. R. § 431.10. DCH, which

issues policies and procedures governing the state’s Medicaid program,

contracts with DFCS to make Medicaid eligibility determinations. Relevant to

this case, federal law requires Georgia’s plan for medical assistance to comply

with the provisions of 42 U. S. C. § 1396p with respect to the transfer of assets

by Medicaid applicants. See 42 U. S. C. § 1396a (a) (18). Specifically, in

assessing an applicant’s eligibility for medical assistance under the plan,

subsection 1396p (c) requires that the state provide a penalty for the disposal of

assets for less than fair market value during a five-year, look-back period. This

subsection additionally sets forth rules regarding the assessment of penalties for

the transfer of various types of assets, as well as provisions for protecting certain

transfers from the penalty. With respect to the treatment of annuities, subsection

1396p (c) (1) (F) specifically requires:

      For purposes of this paragraph, the purchase of an annuity shall be
      treated as the disposal of an asset for less than fair market value
      unless –

             (i) 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 institutionalized

                                           5
           individual under this subchapter; or

           (ii) the State is named as such a beneficiary in the
           second position after the community spouse or minor or
           disabled child and is named in the first position if such
           spouse or a representative of such child disposes of any
           such remainder for less than fair market value.


Next, subsection 1396p (c) (1) (G) provides:

     For purposes of this paragraph with respect to a transfer of assets,
     the term “assets” includes an annuity purchased by or on behalf of
     an annuitant who has applied for medical assistance with respect to
     nursing facility services or other long-term care services under this
     subchapter unless . . .

                 (ii) the annuity –

                       (I) is irrevocable and nonassignable;

                       (II) is actuarially sound (as
                       determined in accordance with
                       actuarial publications of the
                       Office of the Chief Actuary of
                       the Social Security
                       Administration); and

                       (III) provides for payments in
                       equal amounts during the term
                       of the annuity, with no deferral
                       and no balloon payments
                       made.

     CMS has interpreted the interplay between these subsections as requiring

                                      6
that all annuities comply with both (F) and (G) in order to avoid the imposition

of a penalty. See CMS, Changes in Medicaid Annuity Rules under the Deficit

Reduction Act of 2005, § II.B (July 27,2006) Letter Enclosure § 6012.4 See also

Hutcherson v. Arizona Health Care Cost Containment Sys. Admin., 667 F3d

1066, 1069-70 (9th Cir. Ariz. 2012). DCH Policy § 2339, which comports with

the guidance set forth by CMS for determining whether the purchase of an

annuity will be treated as the disposal of an asset for less than fair market value,

thus first requires that the state be named a remainder beneficiary in accordance

with 42 U.S.C. § 1396p (c) (1) (F), before examining the annuity to determine

whether it additionally meets the requirements of subsection (G) that it be

actuarially sound. In this case, Glover disclosed his annuity, which met the

requirements of subsection (G); however, because it did not comply with the

requirement of subsection (F) that the state be named a remainder beneficiary,

he was assessed a transfer penalty.

      In reversing DCH’s decision upholding the penalty, the Court of Appeals

noted that the CMS interpretation on which it was based, requiring an annuitant


      4
        A copy of this letter is available at http://downloads.cms.gov/cmsgov/archived-
downloads/SMDL/downloads/TOAEnclosure.pdf.

                                          7
applicant to comply with both 42 U. S. C. §§1396p (c) (1) (F) and (G) to avoid

the asset transfer penalty, was partly inconsistent with the court’s own reading

of the federal statute. See Bottesch, 320 Ga. App. at 802-803. Although

agreeing that a plain reading of subsection (F) standing alone clearly required

that the state be named a remainder beneficiary of any annuity, the Court of

Appeals interpreted subsection (G) to unambiguously remove actuarially sound

annuities benefitting Medicaid applicants from the requirements of subsection

(F) by removing them altogether from the definition of “assets” with respect to

a transfer of assets. Id. Concluding that the statutory language was plain and

unambiguous and that the intent of Congress with respect to the treatment of

annuities under subsections (F) and (G) was thus clear, the Court of Appeals

determined that the judicial deference generally afforded an agency’s

interpretation of a statute under its purview was not warranted with respect to

that portion of CMS’s interpretation with which the court disagreed. See

Chevron U. S. A. v. Natural Resources Defense Council, 467 U. S. 837, 843, n.

9 (104 SCt 2778, 81 LEd2d 694) (1984) (“The judiciary is the final authority

on issues of statutory construction and must reject administrative constructions

which are contrary to clear congressional intent.”); Christensen v. Harris

                                       8
County, 529 U. S. 576, 588 (120 SCt 1655, 146 LEd2d 621) (2000) (where

language is not ambiguous deference to agency interpretation is unwarranted).

See also Handel v. Powell, 284 Ga. 550, 553 (2008) (“While judicial deference

is afforded an agency’s interpretation of statutes it is charged with enforcing or

administering, the agency’s interpretation is not binding on the courts, which

have the ultimate authority to construe statutes.”).

       In reviewing the provisions of the federal Medicaid statute at issue, we

disagree with the Court of Appeals’ conclusion that the statutory language is

plain and unambiguous and the congressional intent clear. Here, 42 U. S. C.

§1396p (c) (1) does not indicate whether subsections (F) and (G) are

independent requirements each of which must be satisfied to exempt an annuity

from the penalty or, alternatively, if the requirement provided in (F) only applies

to an annuity when the annuity fails the exception provided in (G). Nor do we

find corresponding language in other provisions of the statute to be especially

illuminating.5 As the statute is silent with respect to the relationship between (F)

and (G) and Congress has not otherwise directly addressed the precise question

       5
          We note that in reaching different conclusions with respect to the meaning of the statutory
sections at issue, both the Court of Appeals and the superior court relied on 42 U. S. C. § 1396p (e)
as support for their opposing interpretations.

                                                 9
at issue, we find the intended relationship between these provisions to be

ambiguous, at best.6

       Thus, it is necessary for this Court to determine what deference, if any,

should be accorded DCH’s decision, and concomitantly, the deference due the

CMS statutory interpretation on which DCH’s decision was based. “Where

statutory provisions are ambiguous, courts should give great weight to the

interpretation adopted by the administrative agency charged with enforcing the

statute.” Schrenko v. DeKalb County School Dist., 276 Ga. 786, 791 (582 SE2d

109) (2003). As the Georgia legislature has charged DCH with developing and

implementing the policies necessary to meet Medicaid requirements, we will

defer to that agency’s interpretation so long as it comports with legislative intent

and is reasonable. See Center For a Sustainable Coast v. Coastal Marshlands

Protection Committee, 284 Ga. 736, 741 (670 SE2d 429) (2008); Georgia Real

Estate Commission v. Accelerated Courses in Real Estate, Inc., 234 Ga. 30, 32-

33 (214 SE2d 495) (1975). See also Georgia Dept. of Community Health v.


       6
          While CMS’s interpretation that the requirements of subsection (F) apply to all annuities
has been adopted by at least one federal appellate court, see Hutcherson, 667 F3d at 1069-1070;
another has found its guidance on this issue not “entitled to respect” under Skidmore v. Swift & Co.,
323 U. S. 134, 140 (65 SCt 161, 89 LEd 124) (1944). See Hughes v. McCarthy, 734 F3d 473, 485
(6th Cir. Ohio 2013).

                                                 10
Medders, 292 Ga. App. 439 (664 SE2d 832) (2008) (in case involving Medicaid

claimant’s appeal of DCH decision imposing transfer of asset penalty, Court of

Appeals determined it was required to defer to the agency’s reasonable

conclusion that, under applicable Medicaid regulations, a renounced inheritance

constituted the disposal of an asset). Moreover, the level of deference this Court

gives state administrative agency decisions interpreting ambiguous statutes is

in accord with that identified by the United States Supreme Court in Chevron

as appropriate for the judicial review of a federal administrative agency’s

statutory interpretation. See Chevron, supra at 844 (when reviewing an

agency’s construction of a statute it administers, the court must give effect to the

unambiguously expressed intent of congress; however, if the statute is silent or

ambiguous with respect to the specific issue, the question for the court is

whether the agency’s answer is based on a permissible construction of the

statute).7 Although not directly confronted with a challenge to the validity of

       7
         “If a statute is ambiguous, and if the implementing agency’s construction is reasonable,
Chevron requires a federal court to accept the agency’s construction of the statute, even if the
agency’s reading differs from what the court believes is the best statutory interpretation. [Cit.]”
National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U. S. 967, 980 (125
SCt 2688, 162 LEd2d 820) (2005). “Chevron established a ‘presumption that Congress, when it left
ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would
be resolved, first and foremost, by the agency and desired the agency (rather than the courts) to
possess whatever degree of discretion the ambiguity allows.” Id. at 982 (quoting Smiley v. Citibank

                                                11
CMS’s interpretation of the relevant statutory provisions in this case, we

nonetheless will consider the reasonableness of CMS’s interpretation as adopted

by DCH and incorporated in DCH’s policy § 2339. Given that the deference

Georgia courts accord state administrative agency interpretations is comparable

to Chevron-style deference, we find no reason to accord a lesser level of

deference to DCH’s interpretation.8

       The Court of Appeals’ opinion sets forth a plausible interpretation of

subsections (F) and (G) of 42 U. S. C. §§ 1396p (c) (1). However, based on our

review of the statutory provisions, we find DCH’s interpretation of §2339,

(South Dakota), N.A., 517 U. S. 735, 740-741 (116 SCt 1730, 135 LE2d 25) (1996)).
       8
         There is some question as to whether the CMS opinion letter in this case actually is entitled
to Chevron-style deference or only “entitled to respect” if it has the power to persuade. Skidmore,
supra, 323 U. S. at 140 (“We consider that the rulings, interpretations and opinions of the [agency],
while not controlling upon the courts by reason of their authority, do constitute a body of experience
and informed judgment to which courts and litigants may properly resort for guidance. The weight
of such judgment in a particular case will depend upon the thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control.”); United States v. Mead Corp.,
533 U. S. 218, 228 (121 S Ct 2164, 150 LE2d 292) (2001) (explaining the Skidmore principle that
“[t]he fair measure of deference to an agency . . . has been understood to vary with circumstances,
and courts have looked to the degree of the agency’s care, its consistency, formality, and relative
expertness, and to the persuasiveness of the agency’s position.” (footnotes omitted)). Although the
United States Supreme Court refused to extend Chevron deference to “opinion letters” in
Christensen, supra, 529 U. S. 576, and federal district courts since have interpreted this to include
CMS opinion letters, see Hughes, supra, 734 F3d at 485; Estate of Landers v. Leavitt, 545 F3d 98,
107 (2nd Cir. 2008), we note that in NationsBank of N. C., N.A. v. Variable Annuity Life Ins. Co.,
513 U. S. 251 (115 SCt. 810, 130 LE2d 740) (1995) the Supreme Court applied Chevron deference
to an interpretive letter issued by the Comptroller of the Currency interpreting the National Bank
Act.

                                                 12
which is consistent with CMS’s interpretation of the statute, to be reasonable

and entitled to deference. Accordingly, we hold the Court of Appeals erred in

finding the language of 42 U. S. C. § 1396p (c) (1) to be plain and unambiguous

and erred in failing to defer to DCH’s decision upholding the transfer of asset

penalty in this case. See Pruitt Corp. v. Ga. Dept. of Community Health, 284

Ga. 158, 160 (664 SE2d 223) (2008) (“When an administrative agency decision

is the subject of judicial review, judicial deference is to be afforded the agency’s

interpretation of statutes it is charged with enforcing or administering and the

agency’s interpretation of rules and regulations it has enacted to fulfill the

function given it by the legislative branch.”).9

        Judgment reversed.             All the Justices concur, except Nahmias and

Blackwell, JJ., who concur specially.


        9
           The decision in Pruitt, supra, is not inconsistent with the holding in this case as alleged in
the concurrence. The issue in Pruitt involved DCH’s interpretation of the phrase “last approved cost
report” as used by, but not defined in, its manual on nursing facility policies. 284 Ga. at 158. Unlike
the issue in this case which involves a claim that a DCH policy is based on an erroneous
interpretation of the federal Medicaid statute, the issue in Pruitt only involved a dispute over the
common meaning of words used in a DCH manual. See id. Moreover, in Pruitt this Court
specifically declined to decide the issue of whether a DCH decision based on a policy reflected in
its manual would be entitled to judicial deference. See id. at 160. As the propriety of a policy
adopted by DCH based on an interpretation of the Medicaid statute is at issue in this case, under this
Court’s precedent, including that recognized in Pruitt, DCH’s decision with respect to that policy
is entitled to the judicial deference generally given an agency’s interpretation of statutes it is charged
with enforcing and administering.

                                                   13
                     S13G1127. COOK et al. v. GLOVER.

      NAHMIAS, Justice, concurring specially.

      Although I believe the majority opinion reaches the right result, I am

dubious of its conclusion that the interpretation of the federal Medicaid statute

at issue, 42 USC § 1396p, by the United States Department of Health and

Human Services, Centers for Medicare and Medicaid Services (CMS), and by

the Georgia Department of Community Health (DCH) is entitled to the full

measure of judicial deference required by Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (104 SCt 2778, 81 LE2d 694)

(1984). The CMS interpretation is “contained in an opinion letter, not one

arrived at after, for example, a formal adjudication or notice-and-comment

rulemaking,” and the United States Supreme Court has said that, normally,

“[i]nterpretations such as those in opinion letters – like interpretations contained

in policy statements, agency manuals, and enforcement guidelines, all of which

lack the force of law – do not warrant Chevron-style deference.” Christensen

v. Harris County, 529 U.S. 576, 587 (120 SCt 1655, 146 LE2d 621) (2000).

Instead, an interpretation contained in an opinion letter is generally entitled only
to so-called Skidmore deference, meaning that the agency’s position is “‘entitled

to respect’” to the extent that it has the “‘power to persuade’” the reviewing

court. Christensen, 529 U.S. at 587 (quoting Skidmore v. Swift & Co., 323 U.S.

134, 140 (65 SCt 161, 89 LE 124 (1944)).

      Similarly, the DCH interpretation here is contained not in a formal rule but

rather in the department’s Medicaid policy manual, and this Court has held,

consistent with the approach taken federally in Christensen, that it is erroneous

for a Georgia court to give the full “deference due a [state] statute, rule or

regulation to a term in a departmental manual, the terms of which ha[ve] not

undergone the scrutiny afforded a statute during the legislative process or the

adoption process through which all rules and regulations must pass.” Pruitt

Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 159-160 (664 SE2d 223)

(2008). As under federal law, however, under state law an administrative

agency’s policy reflected in a manual may still be entitled to some degree of

judicial deference. See id. at 160 (reserving this question).

      It also should be noted that Congress delegated the authority to interpret

the federal Medicaid statute only to the federal Department of Health and

Human Services. See 42 USC §§ 1302 (a), 1396a (a)(17). It is therefore clear

                                        2
that the Georgia DCH has no authority to contradict any regulations that CMS

promulgates. See Wilder v. Virginia Hosp. Assn., 496 U.S. 498, 502 (110 SCt

2510, 110 LE2d 455) (1990). But it is not clear whether our General Assembly

can give DCH the authority to fill silences and resolve ambiguities left by the

federal statute and CMS’s formal regulations with interpretations to which state

courts must defer, particularly where DCH does so in a manual rather than in a

rule adopted after notice and comment. See OCGA § 49-4-142 (a) (saying that

“[DCH] is authorized to establish such rules and regulations as may be

necessary or desirable in order to execute the state plan and to receive the

maximum amount of federal financial participation available in expenditures

made pursuant to the state plan; provided, however, the department shall

establish reasonable procedures for notice to interested parties and an

opportunity to be heard prior to the adoption, amendment, or repeal of any such

rule or regulation”). I note on this point that all of the decisions of this Court

that the majority opinion cites for the proposition that state courts must give

“great weight” to state agency interpretations involved interpretations of state

rather than federal statutes. See e.g., Center for a Sustainable Coast v. Coastal

Marshlands Protection Committee, 284 Ga. 735, 742 (670 SE2d 429) (2008).

                                        3
The only case apparently giving such weight to the interpretation of federal law

provided in the DCH Medicaid policy manual was decided by our Court of

Appeals before this Court decided Pruitt and cited no state or federal

administrative law authority whatsoever. See Ga. Dept. of Community Health

v. Medders, 292 Ga. App. 439, 442 (664 SE2d 832) (2008).

      I see no need to resolve these complex administrative law questions in this

case. In my view, the better reading of 42 USC § 1396p – the whole of the

statute, including subsection (e) as well as subsections (c) (1) (F) and (G) –

accords with the reading expressed by CMS in its opinion letter and by DCH in

its manual that an annuity which complies with (c) (1) (F) must also comply

with (c) (1) (G) to avoid an asset transfer penalty. To the extent that ordinary

statutory construction leaves any doubt, even applying just Skidmore-type

deference, I would resolve the doubt in favor of the interpretation provided by

these expert agencies administering this highly complex regulatory scheme. See

Estate of Landers v. Leavitt, 545 F3d 98, 107 (2d Cir. 2008) (explaining that,

“in cases such as those involving Medicare or Medicaid, in which CMS, ‘a

highly expert agency[,] administers a large complex regulatory scheme in

cooperation with many other institutional actors, the various possible standards

                                       4
a large complex regulatory scheme in cooperation with many other institutional

actors, the various possible standards for deference’ – namely, Chevron and

Skidmore – ‘begin to converge,’” and noting “the Supreme Court’s repeated

suggestion that [CMS] interpretations, in particular, should receive more respect

than the mine-run of agency interpretations” (citations omitted)).

      For these reasons, I concur in the result reached by the majority opinion,

but I do not join all of its reasoning. I am authorized to state that Justice

Blackwell joins in this special concurrence.




                                        5
