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Update on Daley and Nadeau SJC Cases

April 13, 2017

I’m getting lots of calls and emails about the status of our SJC case, so here’s a quick update.

Given the slim chance of getting the Supreme Judicial Court to take a case on Direct Appellate Review, my co-counsel, Nick Kaltsas, and I were surprised when the Daley case was accepted by the SJC on October 19, 2016.  The Court chose to pull the Nadeau case up from the Massachusetts Appeals Court to be heard along with our case.  The Daley and Nadeau cases were then argued at the Supreme Judicial Court in Boston on January 5, 2017.  The briefs can be found here:  http://www.ma-appellatecourts.org/display_docket.php?dno=SJC-12200 and http://www.ma-appellatecourts.org/display_docket.php?dno=SJC-12205

The SJC has an internal goal of getting decisions out within 130 days of oral argument, so if the Court is on track we may well have a decision by May 15, 2017.

The oral arguments can be seen here: http://www.suffolk.edu/sjc/archive/2017/SJC_12200.html.  What I found troubling about the oral arguments is that we went first and had no opportunity under the Court’s rules to save time for rebuttal.  The Assistant Attorneys General representing the agency, being asked questions that should have been anticipated, and knowing that we wouldn’t have a chance to respond, then started making extreme statements that they didn’t even dare make in their briefs. They had no serious answer to the repeated questions from the SJC justices on how the nursing homes would get paid, so, backed into a corner, they claimed that an irrevocable trust is “no real trust,” that the agency’s interpretation of the 1993 federal Medicaid trust law is not new, and that all trusts allow people to have their cake and eat it too. If you ever harbored the illusion that the Office of the Attorney General cares more about the law than winning a case, I suggest you watch the video.

Hopefully, the SJC will soon put an end to the Office of Medicaid’s flimsy excuses for repeated denials of MassHealth applicants who have legitimate irrevocable trusts.

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