The Latest Position of the Office of Medicaid on Trust Interpretation Is Not Entitled to Deference

Throughout the case of Doherty v. Commissioner, 74 Mass. App. Ct. 439 (2009), it was the official position of the Office of Medicaid that a trust must be read as a whole, but in recent cases, the Office of Medicaid has backed away from that correct legal position, because to do so necessitates an entirely different result from what it is trying to get away with in recent MassHealth trust denial cases. This new position of the Office of Medicaid regarding how a trust should be scrutinized is not entitled to deference. The Supreme Judicial Court, in Cohen v. Commissioner of the Division of Medical Assistance, 423 Mass. 299 (1996), footnote 18, stated why it chose not to give deference to the MassHealth agency’s position in that case, and the same point applies here: “The Commonwealth urges us to give deference to the division’s administrative interpretation of the statute. Although there is some merit to the argument, it is not served up in its most appetizing form in this case. … It is usually the initial not the changed interpretation of a statute that earns the kind of deference the Commonwealth would need here. See Barnett v. Weinberger, 818 F.2d 953, 960-961 n.74 (D.C. Cir. 1987), and cases cited (deference depends on consistency of interpretation).”