The Laws and Rules Governing Florida Medicaid and Special Needs Trusts
Florida Medicaid and special needs trusts are governed by a large number of binding and persuasive authorities. Because Medicaid is a cooperative program involving both the federal and state government, both federal and state authorities govern the program. [1] The binding authorities include: federal statutes, [2] federal regulations, [3] Florida Statutes, [4] Florida administrative regulations, [5] and case law. Additionally, three important persuasive authorities exist: the Program Operations Manual System (“POMS”), Health Care Finance Administration (“HCFA”) transmittals, and the ACCESS Florida Program Policy Manual. Most, if not all, practitioners will understand how to interact with the binding authorities. However, the persuasive authorities in this area of law may seem less familiar to most attorneys. This article explores what these persuasive authorities are and how much weight should be given each.
The POMS
The POMS is a set of “publicly available operating instructions for processing Social Security claims” promulgated by the Social Security Administration. [6] The POMS “warrant respect” [7] and ought to be given weight. [8] Additionally, the POMS is detailed and thoroughly explained. Most importantly, the POMS is used by social security employees. [9] Thus, the POMS provides the practitioner with the exact rules and standards followed by the employees processing social security claims. This knowledge can help the practitioner avoid future potential problems. Therefore, despite not being binding authority, the POMS is invaluable to any attorney engaging in the practice of elder law.
HCFA Transmittals
HCFA transmittals advise state agencies about the HCFA’s policies and how the HCFA interprets the statutes and regulations. [10] This is useful when attempting to learn the HCFA’s interpretation of the statutes, and the transmittal interpretations are “accorded deference.” [11] I personally consider them to be required reading for any elder law attorney. However, the transmittals are not treated with the same high regard as the POMS. [12]
Economic Self-Sufficiency Program Policy Manual
The Florida Department of Children & Families, Economic Self-Sufficiency Program Policy Manual (“ESS Manual”) explains the Florida Department of Children and Families’ (“DCF”) interpretation of the federal statutes and Florida Administrative Code rules. [13] Additionally, The ESS Manual is relied upon by the courts to determine the appropriateness of agency action. [14] The ESS Manual is useful in a similar manner to the POMS, as it provides insight into how the DCF staff interprets binding statutes and regulations.
References
[1] See Roberts v. Albertson's Inc., 119 So. 3d 457, 458 (Fla. 4th DCA 2012) (“Even though state participation in the program is voluntary, once a state elects to participate, the state must comply with federal Medicaid statutes”).
[2] 42 U.S.C. § 1396 et seq.
[3] 20 C.F.R. Parts 430-456.
[4] Fla. Stat. § 409.901-9205.
[5] Fla. Admin. Code Subtitle 59g.
[6] Wash. State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385 (2003).
[7] Guardianship Estate of Keffeler, 537 U.S. at 385 (citing Skidmore v. Swift & Co., 323 U.S. 134, 139–140 (1944)).
[8] Alabama Medicaid Agency v. Primo, 579 So. 2d 1355, 1358 (Ala. Civ. App. 1991) (“In our opinion, however, the [POMS] should be given more weight than the [Alabama Medicaid] Agency suggests”).
[9] Stuart Zimring, Rebecca C. Morgan, Bradley J. Frigon & Craig C. Reaves, Fundamentals of Special Needs Trusts, § 6.03[2][c] (Matthew Bender 2014).
[10] Haley v. Commissioner of Pub. Welfare, 476 N.E.2d 572, 577 (1985).
[11] Id.
[12] See Id. (“Courts previously have found such transmittals unpersuasive, especially where the interpretation results in a change from prior practice”).
[13] Winick v. Dep't of Children & Family Servs., 161 So. 3d 464, 466 (Fla. 2d DCA 2014).
[14] Brister v. Dep't of Children & Families, 906 So. 2d 1187, 1189 n.2 (Fla. 4th DCA 2005).