THEODORE FOSSA, Guardian v. DIRECTOR OF THE OFFICE OF MEDICAID.

• Court: Massachusetts Appeals Court
• Decided: January 28, 2025
• Docket: 23-P-0708
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-708

THEODORE FOSSA, guardian,1

vs.

DIRECTOR OF THE OFFICE OF MEDICAID.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

David Fossa, through his guardian, brought this action

pursuant to G. L. c. 30A, § 14, after the board of hearings

(board) for the Office of Medicaid for the Executive Office of

Health and Human Services of the Commonwealth of Massachusetts

(MassHealth) upheld MassHealth's decision that Fossa was not

entitled to long-term care benefits for the period from May 2016

to October 2019. On Fossa's motion for judgment on the

pleadings, a judge of the Superior Court affirmed the board's

decision, and this appeal ensued. We affirm.

Background. The following facts are taken from the

administrative record. In July 2015, Fossa was admitted to a

1 Of David Fossa. skilled, long-term medical care facility. He applied for long-

term health benefits and, in March 2016, MassHealth approved his

application, retroactive to July 2015 (2015 application).

Fossa's then wife (the two divorced in October 2019) signed the

application. By spring of 2016, Fossa had been discharged from

that facility and readmitted to the hospital. He subsequently

was admitted to a different long-term care facility in May 2016.

When that second facility sought payment from MassHealth,

MassHealth withheld payment and requested additional information

regarding Fossa's then wife's (hereinafter, wife) assets.2 In

August 2016, Fossa filed a new application seeking benefits

commencing on May 26, 2016 (2016 application). That application

was denied after MassHealth determined that Fossa's wife had not

provided sufficient information about her income and her

interest in six limited liability companies (LLC interests).3

Fossa requested a fair hearing before a hearing officer of the

board, who upheld MassHealth's denial of the 2016 application.

2 The total value of countable assets owned by or available to an individual applying for or receiving benefits may not exceed $2,000. See 130 Code Mass. Regs. § 520.003(A)(1) (2014). In determining whether an institutionalized spouse is eligible for long-term benefits, MassHealth is required to assess the total combined value of the countable assets owned by both spouses and to establish a spousal share. 130 Code Mass. Regs. § 520.002(B)(2)(b) (2014).

3 The LLC interests are Richmond Leb RT 4 LLC, Self Storage FL II LLC, Richmond Woodsville LLC, Mexico 5th Ave LLC, Richmond Franklin Investment LLC, and Richmond Meadows One ACK, LLC.

2 Fossa then sought judicial review under G. L. c. 30A (2018

appeal). The 2018 appeal was settled. The parties agreed that

Fossa would receive long-term care benefits starting on October

23, 2019, which was one day after Fossa and his wife were

divorced, and that MassHealth would reprocess the 2016

application to determine whether Fossa was eligible for long-

term care benefits between May 26, 2016, and October 2019.

During the proceedings that followed the reopening of the

2016 application, Fossa submitted information regarding the

wife's LLC interests, including the LLC's governing operating

agreements. At that time, the parties agreed that the value of

the LLC interests was $387,710.4 After considering these

submissions, MassHealth determined that Fossa was ineligible for

benefits because the assets owned by his wife exceeded the

allowable asset limit for a married couple by $294,670.34.

Consequently, MassHealth denied the 2016 application a second

time. Fossa requested another fair hearing, which was held on

April 16, 2020. The board determined that the LLC interests

were countable and legally accessible assets under the

applicable regulations and upheld MassHealth's decision.5

4 Fossa's attempt to challenge that valuation on appeal is unavailing. The calculations regarding the value of the LLC interests were not in dispute at the fair hearing.

5 MassHealth initially maintained that the assets were countable as securities under 130 Code Mass. Regs. § 520.007(D)

3 Fossa then commenced this action, claiming that the board's

decision was not supported by substantial evidence and was

arbitrary and capricious. He further claimed that MassHealth's

denial of coverage violated his right to due process, thereby

violating 42 U.S.C. § 1983, because MassHealth conducted two

assessments of his eligibility. Fossa subsequently amended his

complaint to claim that 130 Code Mass. Regs. § 520.016(B)(1)

(2014), which provides for the assessment of marital assets when

one spouse is institutionalized, violates Federal Medicaid law

because it does not comport with 42 U.S.C. § 1396r-5(c)

(treatment of income and resources for certain institutionalized

spouses).

As previously noted, Fossa moved for judgment on the

pleadings. Following a hearing, a judge of the Superior Court

denied the motion, affirmed the board's decision, and dismissed

Fossa's amended complaint. The judge rejected Fossa's arguments

that the board's decision was not supported by substantial

evidence or was arbitrary and capricious. The judge also

rejected Fossa's due process claim that MassHealth's assessment

of his 2016 application violated Federal law because he

(2014), or as similar to trusts under 130 Code Mass. Regs. § 520.023 (2014). However, in a post hearing brief, MassHealth asserted, as it does now on appeal, that the LLC interests were countable and accessible because they qualified as personal property.

4 previously had been approved for MassHealth benefits in 2015.

She concluded that this claim lacked merit and had not been

sufficiently developed. In her decision, however, the judge did

not address all of Fossa's claims. Thus, after judgment

entered, Fossa moved for clarification or reconsideration. The

judge then entered an order clarifying that she had dismissed

all claims, including the § 1983 claim and Fossa's requests for

declaratory relief.6

Discussion. "In reviewing administrative agency decisions,

we give due weight to the experience, technical competence, and

specialized knowledge of the agency, as well as to the

discretionary authority conferred upon it" (quotation and

citation omitted). Guilfoil v. Secretary of the Executive

Office of Health & Human Servs., 486 Mass. 788, 793 (2021).

"The burden of proof is on the appealing party to show that the

order appealed from is invalid, and we have observed that this

burden is heavy" (citation omitted). Id. For the reasons

discussed below, we conclude that Fossa has not met his burden.

6 Fossa did not reference this order in his notice of appeal, nor did he file a separate notice of appeal after the order was entered. Consequently, the validity of the ruling is not before us. See, e.g., Robinson v. Boston, 71 Mass. App. Ct. 765, 771 (2008) (where ruling on postjudgment motion to reconsider not referenced in earlier notice of appeal, validity of ruling not properly before court).

5 We first address Fossa's contention that the board

improperly concluded that the LLC interests were countable

assets for the purpose of calculating his eligibility for

benefits. Under MassHealth regulations, "[c]ountable assets are

all assets that must be included in the determination of

eligibility." 130 Code Mass. Regs. § 520.007 (2014). An asset

is "property including, but not limited to, real estate,

personal property, and funds." 130 Code Mass. Regs. § 515.001

(2014). The board concluded that the LLC interests were

countable assets because they qualified as personal property

under the regulations, and as defined by G. L. c. 156C, § 38.7

Contrary to Fossa's assertion, there is nothing arbitrary

or capricious about the board's reasoning. The board applied

the plain meaning of 130 Code Mass. Regs. § 515.001 and G. L.

c. 156C, § 38. When read in combination, these provisions amply

support the board's conclusion. We agree with the board that

the language of the regulation at issue (and the statute) is

clear and unambiguous and, therefore, "should be interpreted

according to its terms." DeCosmo v. Blue Tarp Redev., LLC, 487

Mass. 690, 699 (2021). Furthermore, even if we were to conclude

otherwise, the board's interpretation is entitled to deference

where, as here, that interpretation is reasonable. See Shelales

7 General Law c. 156C, § 38, defines a limited liability company interest as "personal property."

6 v. Director of the Office of Medicaid, 75 Mass. App. Ct. 636,

640 (2009).

We further conclude, as did the judge, that Fossa's claim

that the LLC interests should not be considered countable assets

because they constitute income essential to the wife's own

support is unavailing.8 As the judge observed in her well-

reasoned memorandum of decision and order, Fossa did not provide

any information regarding the wife's expenses. As such, the

record simply did not provide a basis for Fossa's assertion that

the LLC interests were "property essential to self-support"

within the meaning of 130 Code Mass. Regs. § 520.008(D) (2014)

(noncountable assets).

We next address Fossa's contention that even if the LLC

interests were countable, they were not accessible and,

therefore, could not be used to pay for his care. Under

MassHealth regulations, "[a]n inaccessible asset is an asset to

which the [Medicaid] applicant or member has no legal access."

130 Code Mass. Regs. § 520.006(A) (2014). Here, the board

reasonably concluded that the LLC interests were accessible

8 The board argues that this argument is waived because Fossa did not raise it at his fair hearing on April 16, 2020. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006) (arguments that could have been raised before administrative agency, but were not, are waived). We need not address this issue because Fossa presented no evidence to support his claim.

7 based on its review of their operating agreements.

Specifically, the board noted that the operating agreements for

three of the LLCs (Richmond Leb RT 4 LLC, Self Storage FL II

LLC, and Richmond Woodsville LLC) all state that members may

transfer their interest in the LLC with the approval of the

LLC's manager. These agreements also state that members can

sell their interest to a nonmember, subject to review and a

right to purchase by other members or managers of the LLCs. The

operating agreement for the fourth LLC (Richmond Meadows One

ACK, LLC) allows members to transfer their interest to the LLC,

another member, or another entity controlled by the LLC or other

members. With regard to the last two LLCs (Mexico 5th Ave LLC

and Richmond Franklin Investment LLC), which have no operating

agreements, the board correctly observed that they are governed

by the Massachusetts Limited Liability Company Act, G. L.

c. 156C. As such, interests in those LLCs are "assignable in

whole or in part" by default. G. L. c. 156C, § 39 (a).

While it is true that the operating agreements contain

restrictions regarding the manner by which members can transfer

their interests, the controlling question is whether the wife

had legal access to the LLC interests. As noted above, all of

operating agreements permit members to make transfers.

Consequently, all members, including the wife, had legal access

to their interests. To the extent that Fossa claims that the

8 LLC interests were inaccessible because they were not marketable

and therefore were unavailable to him or his wife to cover the

costs of his long-term care, his argument fails for the reason

articulated by the judge, namely, Fossa failed to present

evidence to support this assertion. In any event, the critical

question here is whether the wife had any legal access to the

LLC interests, and the operating agreements provide a sufficient

basis for concluding that she did.

Given our conclusion, it follows that Fossa's assertion

that there was insufficient evidence from which the board could

conclude that the LLC interests were countable and accessible

fails. It matters not, as Fossa claims, that the board did not

make any findings of fact as to the testimony of general counsel

to the wife's employer who stated at the fair hearing that the

LLCs were not accessible. The board expressly considered

Fossa's argument that there were "myriad legal and contractually

enforceable restrictions on the assignment, sale, transfer, and

exchange of the LLC interests," but it ultimately found the LLC

operating agreements established that the LLC interests were

accessible. The board was well within its authority to weigh

the evidence before it and credit the plain language of the LLC

operating agreements rather than the general counsel's testimony

regarding accessibility.

9 We are not persuaded that the board's decision was

arbitrary or capricious. A decision is arbitrary and capricious

if it "lacks any rational explanation that reasonable persons

might support," Cambridge v. Civil Serv. Comm'n, 43 Mass. App.

Ct. 300, 303 (1997), or "is willful and unreasoning action

without consideration and in disregard of facts and

circumstances" (citation omitted). Long v. Commissioner of Pub.

Safety, 26 Mass. App. Ct. 61, 65 (1988). Here, the record

establishes that the board conducted a careful analytical review

of the documentary and testimonial evidence and considered all

arguments impartially.

Finally, we address Fossa's two claims under 42 U.S.C.

§ 1983. Fossa first claims that MassHealth's assessment of his

2016 application violated his right to due process because he

previously had been approved for MassHealth benefits in 2015,

and MassHealth thereafter terminated his benefits without proper

notice and wrongly conducted a new (second) assessment of

eligibility. The judge rejected this argument on the ground

that it was not sufficiently developed before the board. We

conclude that the judge was correct.9

9 As the board rightly asserts in its brief, Fossa has waived any challenge to MassHealth's purported failure to properly "terminate" the benefits approved under his 2015 application because he did not raise that argument to the board during either the 2017 or 2020 fair hearing. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006).

10 Although Fossa has made more fulsome arguments in support

of this position on appeal, we are not required to consider them

as they were not argued to the board. See Smith v. Sex Offender

Registry Bd., 65 Mass. App. Ct. 803, 810 (2006). In any event,

the claim is without merit. The gist of Fossa's claim is that

MassHealth was precluded from reassessing his entitlement to

benefits after he left one facility and thereafter entered

another. This argument is not supported by any authority and if

we were to consider it, we would reject it.10

Fossa also claims that 130 Code Mass. Regs. § 520.016(B)(1)

(assessment of married couple's assets when one spouse

institutionalized) violates Federal law because it allows for

assessment of a couple's total combined assets "as of the date

of the beginning of the most recent continuous period of

institutionalization," 130 Code Mass. Regs. § 520.016(B)(1)(a),

whereas the analogous Federal statute provides for this

assessment "as of the beginning of the first continuous period

of institutionalization." 42 U.S.C. § 1396r-5(c)(1)(A).

10It bears noting that Fossa sought benefits from MassHealth in two distinct periods while living at two separate facilities. For each period of care, Fossa submitted an application to MassHealth, and, consistent with relevant regulations, MassHealth considered the application and sent Fossa a notice of eligibility determination. While MassHealth originally approved Mr. Fossa's eligibility with regard to his 2015 application, that first eligibility determination was not dispositive of the second determination.

11 This argument fails for the simple reason that even

assuming there is a discrepancy between the Massachusetts

regulations and the Federal Medicaid statute, Fossa can show no

harm from it. Any inconsistency between the dates on which

MassHealth and Federal regulations assess spousal assets has no

bearing on Fossa's eligibility because his wife's assets were

the same "as of" the "first" and the "most recent" periods of

institutionalization and exceeded the limit at all relevant

times. Under these circumstances there also would be no basis

for a declaratory judgment.11

Judgment affirmed.

By the Court (Vuono, Englander & Hodgens, JJ.12),

Clerk

Entered: January 28, 2025.

11Fossa's request for appellate attorney's fees and costs is denied.

12 The panelists are listed in order of seniority.