Valliere v. Bremby: The DSS' Decision to Ignore a Probate Court Decree Regarding Spousal Support

VALLIERE V. BREMBY, THE DEPARTMENT OF SOCIAL SERVICE’S DECISION TO IGNORE A PROBATE COURT DECREE REGARDING SPOUSAL SUPPORT

By Carmine Perri

CzepigaDalyPope

           The case of Paul Valliere et. al. vs. Roderick Bremby, Commissioner of the State of Connecticut Department of Social Services, both analyzes the Department’s authority regarding determining Medicaid eligibility and critiques the Department’s perception of its authority (specifically, whether its perception is consistent with federal law, state law, and its own policy manual).


The procedural history in the matter of Paul Valliere et. al. vs. Roderick Bremby, Commissioner of the State of Connecticut Department of Social Services, includes: (1) a Department of Social Services (herein either “the Department” or “DSS”) eligibility decision; (2) a probate court order; (3) a superior court order; and (4) a pending appeal in the appellate court.  In short, the Department’s decision to ignore a probate court order regarding spousal support is now pending in the appellate court (Appeal Docket Number- AC-38664).


Marjorie Valliere was institutionalized in a long term care facility.  Her husband, Paul Valliere, was living in the community.   Marjorie’s daughter, Ellen Shea, was appointed Marjorie’s conservator of estate and person.  Ellen applied to the probate court, pursuant to Connecticut General Statute (herein “C.G.S.”) §17b-261b and C.G.S. §45a-655, for an order of spousal support for the community spouse.  Pursuant to C.G.S. §17b-261b, a copy of the application for spousal support was forwarded to the Department.


After notice and hearing, the probate court issued a decree ordering monthly spousal support to be paid to Paul.  Less than one month after the probate court issued its decree, Marjorie applied to the Department for Medicaid assistance.  The Department granted the application but ignored the probate court decree regarding the spousal support order.


On December 8, 2014, Paul and Ellen, in her capacity as conservator of estate and person for Marjorie, brought an appeal through their counsel, Attorney Bruce Fontanella.1


On November 24, 2015, almost a year after the case was initially brought to the superior court, the Honorable Cesar Noble, in his Memorandum of Decision, stated the following:

 

The court concludes that pursuant to 42 U.S.C. §1396r-5(d)(5), relevant Connecticut statutes including General Statutes § 45a-655, as well as the commissioner’s own policy manual, the department is obliged to adopt a Probate Court order awarding a CSA where the order predates an institutionalized person’s application for Medicaid. 


Valliere et al. v. Bremby, 2015 Conn. Super. LEXIS 2938, 28 (November 24, 2015).

 

On December 15, 2015, the Department appealed Judge Noble’s decision.  The Department now seeks a third opinion, obviously not agreeing with the first two.  Upon further consideration, the Department is not actually seeking an opinion but is seeking approval of its already existing opinion that it is the sole, and exclusive, arbiter of Medicaid eligibility.  To the Department’s assertion, Judge Noble stated the following:

The department's argument is essentially an assertion that because the department is the single state agency tasked with the administration of the Medicaid program, it is not bound by the statutes enacted by the Congress, the state legislature, or the rules it adopted for itself.  This is an absurd and untenable position.  The commissioner's stance would permit him to ignore the federal Medicaid statutory framework which he and the department are obliged to follow pursuant to General Statutes §17b-261, which requires the commissioner to administer the Medicaid program in accordance with the requirements of Title XIX which, in turn, explicitly require the CSA to be not less than an amount ordered by a court.  Id. at 18-19.

 

            From a practical standpoint, even if the Department loses on appeal, query whether its appeal is notice to elder law practitioners that questioning the Department will result in years of litigation.  In addition to all the issues that Valliere presents, one overarching theme may be, “the Department believes itself to be the ultimate arbiter of Medicaid eligibility, question it if you wish, however, be prepared for multiple arbiters, on multiple levels, to field your question.”




(1)Attorney Fontanella, who deserves much credit for his efforts both at the administrative level and the superior court level, will be working with this writer to brief and argue this matter at the Appellate Court.