A federal appeals court has ruled that while states may consider retirement accounts held by the spouses of nursing home residents as resources in determining Medicaid eligibility, such a rule may violate federal law in specific instances. This is the first federal appeals court ruling on this issue, although it is binding only in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

In 1996, Stepheny Sellers entered a nursing home and began receiving Medicaid benefits. Her husband, Gene, retired four years later and rolled his retirement portfolio into an IRA. On September 1, 2001, Colorado began including self-funded retirement accounts held by the spouses of nursing home residents (called "community spouses") as countable resources in determining an institutionalized spouse's Medicaid eligibility. Colorado applied this new rule both to initial applications for Medicaid benefits and to its annual eligibility redeterminations. On December 18, 2001, Mr. Sellers was notified that, based on Colorado's new rule, the state had determined the Sellers had excess resources of $356,715.93. Mrs. Sellers' Medicaid benefits were terminated and Mr. Sellers was forced to end his retirement and return to work.

The Sellers and three other married couples sued Colorado's Department of Health Policy claiming that Colorado's new rule violated federal Medicaid law. The district court agreed with Colorado on all claims. The Sellers appealed, arguing that federal law does not permit the classification of retirement plans held by community spouses as resources available to the institutionalized spouse; and that the court's decision, as applied to them, violated the Medicaid law's prohibition against states taking resources from the community spouse for the institutionalized spouse's benefit at any time following the eligibility determination.

The U.S. Court of Appeals for the Tenth Circuit agreed with the Sellers and reversed the district court's ruling.

The court went along with the district court in ruling that federal law permits states to classify self-funded retirement accounts as countable resources for Medicaid purposes. However, the court went on to hold that "there will be instances where a rule requiring that retirement accounts be included in assessing a couple's 'resources' has unintended consequences at odds with [the federal law's] purpose", which is to prevent community spouses from becoming impoverished. The court rules that the Sellers' situation, in which Mr. Sellers was forced to end his retirement, represents one such instance.

The court also rules that Colorado's application of its rule to its annual reassessments of whether Medicaid recipients are still eligible for Medicaid clearly violates federal Medicaid law. "Congress," the court writes, "appears to have meant what it said: once the institutionalized spouse's eligibility is determined, the state is not authorized to take any resources belonging to the community spouse and deem them available to the institutionalized spouse." [emphasis in original]

Houghton v. Reinertson (10th Cir., No. 03-1074, Aug. 24, 2004). For the full text of this decision, go to: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=031074.