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AARP Asks Court to Reject Medicaid Eligibility Changes

AARP's "friend of the court" brief asks a federal appeals court to strike down South Dakota Medicaid eligibility changes on the grounds that the Department of Human Services did not follow federal law that is designed to provide opportunity to comment on proposed changes.


In 2007, Allen Kemmet, a 78-year-old resident of a long term care facility, placed some of his assets in a pooled trust, as had long been permitted under Medicaid law, and applied for Medicaid. He was denied eligibility on the grounds that the rules for pooled trusts did not apply to people over age 65. He sued.

A federal district court dismissed his lawsuit, basing much of its decision on a 2008 letter written by a regional officer for the Centers for Medicare and Medicaid Services (CMS), the branch of the Department of Human Services that oversees Medicaid. That letter, Kemmet argues, was not an appropriate vehicle for changing policy and should not have been relied upon by the court.

Under the constitutionally directed separation of powers, Congress enacts laws, but the executive branch (the president and the federal agencies under his control) implement them. Recognizing that, as the saying goes, "the devil is in the details," Congress enacted federal procedures in an effort to ensure that implementing regulations were open to public scrutiny and afforded the opportunity for public participation.

AARP's brief on behalf of Kemmet, filed by attorneys with AARP Foundation Litigation and the National Senior Citizen Law Center, argues that (1) the CMS letter did not meet the legal procedural requirements allowing a change in policy, (2) even if it had, the agency would have exceeded its authority under the law (3) and even if the first two points were invalid, the letter itself contradicted other policies and could not stand on its own merit.

"If CMS seeks to reverse its position on the age limit for these particular trusts, it should conduct a transparent process through notice and comment rulemaking to develop the appropriate regulation. That would permit the relevant stakeholders, including beneficiaries, to present comments on the issue … the 2008 letter is not a substitute for an open and inclusive regulatory process," argues the brief.

What's at Stake

Open and fair proceedings are key to a participatory democracy, and those principles have been embodied in enacted statutes and in judicial precedents. Allowing a significant policy change to be effected by letter guts those protections and erodes the democratic process. Moreover, in this particular case the issue is especially important for people over age 65 because it seriously limits their access to health care services to which they are entitled by law.

Case Status

Ctr. for Special Needs Trust Admin., Inc. v. Olson is before the U.S. Court of Appeals for the 8th Circuit.

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