[Go to Documents] | Filed Dec. 20, 1994 | [See also Opinion of the Court.] |
Herman Hecker, Appellant
v.
Stark County Social Service Board and North Dakota Department of Human Services, Appellees
Civil No. 940180
On Petition for Rehearing.
DENIED.
Gordon W. Schnell of Mackoff, Kellogg, Kirby & Kloster, Dickinson, for appellant and respondent.
Jean R. Mullen, Assistant Attorney General, Bismarck, for appellees and petitioner.
Hecker v. Stark County Social Service Board
On Petition for Rehearing.
On petition for rehearing, the North Dakota Department of Human Services, relying on Mowbray v. Kozlowski, 914 F.2d 593 (4th Cir. 1990), argues that North Dakota, as a 209(b) state, may use eligibility criteria pertaining to "medically needy" applicants for medicaid benefits which are more restrictive than those of the Supplemental Security Income (SSI) program and that the underlined portion of NDAC 75-02-02.1-31(3) is a permissible, more restrictive eligibility requirement. The Department's argument is inconsistent with the position it took in Estate of Krueger v. Richland County Social Services, Civil No. 940128 (N.D. 1994), in which the Department argued that its eligibility criteria for "medically needy" medicaid applicants could not be more restrictive than the eligibility requirments under the federal SSI standards. Nor does the Department demonstrate how its regulation would have been permissible under its regulations in effect on January 1, 1972. See 42 USC 1396a(f).
In any event, we need not decide that issue because North Dakota's 209(b) status does not rescue the underlined portion of the Department's regulation from invalidation. The federal regulations governing state participation in the medicaid program require that states consider only those assets of an applicant which are actually available to the applicant. 42 USC 1396a(a)(17)(B); Himes v. Shalala, 999 F.2d 684 (2d Cir. 1993). In order for an asset to be considered an actually available resource, an applicant must have a legal ability to obtain it. See NDAC 75-02-02.1-25(2). Accord Buckner v. Maher, 424 F.Supp. 366 (D.Conn. 1976); Zeoli v. Comm'r of Soc. Services, 425 A.2d 553 (Conn. 1979). A state's 209(b) status does not insulate it from complying with the federal requirement that assets be actually available to an applicant. Dokos v. Miller, 517 F.Supp. 1039 (N.D.Ill. 1981). Because the Department's regulation treats the assets of a discretionary trust as actually available to a beneficiary-applicant, even though the applicant has no legal right to access those resources, it violates the federal "availability" principle and is invalid. Id.
Full resolution of the effect of North Dakota's 209(b) status on the validity of the Department's medicaid eligibility criteria can await another day when the answer will directly affect the outcome of the parties' dispute.
Petition denied.
Beryl J. Levine
William A. Neumann
Herbert L. Meschke
We adhere to our previous dissent
Gerald W. VandeWalle, C.J.
Dale V. Sandstrom