Are Lawyers Who Represent the MassHealth Agency Complicit in Hiding Secret Trust Regulations?

The attacks by MassHealth lawyers on irrevocable trusts in recent years have been relentless, yet the united elder law bar has fought back most of the more agonizingly repetitive challenges. The MassHealth lawyers seem to make the same legal arguments over and over at fair hearings in the hope that some hearing officer will eventually buy into the argument, then they hope a Superior Court judge (most of whom were trial lawyers who barely know anything about MassHealth or trust law) will rubberstamp the fair hearing decision. The MassHealth lawyers tend to cite the cases they win, and ignore the ones they lost.

Where MassHealth lawyers claim that fair hearing decisions and Superior Court decisions have no precedential value, they seem to believe they can continue to make the same arguments at future hearings and not even mention those decisions where they were on the losing end. Those actions may well be unethical, as under M.G.L. c. 118E, s. 48, a fair hearing decision is the agency’s final decision, and a MassHealth lawyer cannot withhold that information at future hearings:

If a lawyer deliberately omits adverse authority, there is risk that neither opposing counsel nor the court will discover the governing law and an erroneous decision (that could have been avoided) will result. … Rule 3.3(a)(3) refers to “legal authority,” which should be understood to include not only case law precedents, but also statutes, ordinances, regulations, and administrative rulings.  Indeed, the duty to reveal the latter kinds of authority is of greater practical significance, precisely because they are less likely to be discovered by the tribunal itself.   Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering, s. 29.11, at 29-16 (3rd ed. 2000).

We now have found that the MassHealth lawyers have systematized their trust denial system, and have boiled down their main trust attacks into a checklist. Attached is the Law Review Form for Trusts that MassHealth eligibility workers apparently send to MassHealth lawyers during MassHealth applications and redeterminations to obtain directions on whether a trust should be treated as a countable asset. As you can see, there are some specific issues on the checklist that the MassHealth lawyers don’t seem to want to let go of despite their countless losses (many of which are available at http://www.irrevocabletrust.info).

The existence of this Law Review Form for Trusts suggests that the MassHealth agency has an unpublished intention on going after trusts that have those particular characteristics. That means there effectively are illegal, unwritten trust regulations, and the lawyers through their usage of this Law Review Form for Trusts are therefore complicit in violating Massachusetts General Laws, Chapter 30A, which requires that an agency go through a transparent process in issuing regulations.  If the positions in this Law Review Form for Trusts were in regulation form, as they should be, citizens could challenge them through a declaratory judgment under Massachusetts General Laws, Chapter 30A, Section 7, but where the lawyers are hiding these de facto regulations behind the specious claim of “attorney-client privilege,” many citizens are forced to fight the agency on a case-by-case basis and don’t even have any way to know whether the same argument was struck down in earlier cases.

At some point (if not now), it may be unethical for MassHealth lawyers to continue to “advise” the MassHealth eligibility workers to deny MassHealth applicants through the usage of the Law Review Form for Trusts checklist instead of having the agency officially revise MassHealth regulations to give the agency’s official position to the public on these issues found in the checklist.