Wednesday, May 4, 2022
Ag Law (and Medicaid Planning) Court Developments of Interest
Agricultural law is a dynamic area of the law. There is always something going on in the courts, with the IRS and in the economy that has relevance to legal issues. With today’s post I look at some recent developments of importance to farmers and ranchers, including an interesting Texas case involving Medicaid planning.
Recent court developments involving agricultural producers and farm/ranch families.
Hog is a “Good” Potentially Subject to State Product Liability Law
Tyson Fresh Meats, Inc. v. Dykhuis Farms, Inc., et al., No. 3:21-CV-90 RLM-MGG, 2022 U.S. Dist. LEXIS 59710 (N.D. Ind. Mar. 31, 2022)
The plaintiff claimed it bought hogs from a company that subcontracted with the defendant to raise the hogs. The defendant delivered 267 hogs to the plaintiff which processed the hogs and commingled the meat with other meat at its plant. Two days later, the defendant told the plaintiff that the hogs hadn’t gone through a required withdrawal period for a certain supplement. As a result, the plaintiff had to dispose more than 1.7 million pounds of “contaminated” fresh meat. The plaintiff sued for negligence and breach of state (Indiana) product liability law. The defendant claimed that it provided a service rather than a product and that hogs were not “products” subject to product liability law. The defendant motioned for dismissal of the case, but the court held that the service-product distinction couldn’t be resolved on a motion to dismiss.
On appeal, the appellate court held that “goods” under the Indiana Product Liability Law covered “all things” that are “movable” when contracted for, including “the unborn young of animals” and adult animals. On the negligence claim, however, the appellate court determined that the plaintiff failed to adequately allege that the defendant owed the plaintiff a duty of care. Thus, the plaintiff was not allowed to proceed with the negligence claim.
No Standing to Challenge Hog Operation Permits
Sierra Club v. Stanek, No. 123,023, 2022 Kan. App. Unpub. LEXIS 193 (Kan. Ct. App. Apr. 1, 2022)
The defendant granted four swine facility permits over the plaintiff’s objection. The plaintiff sought review under the Kansas Judicial Review Act (KJRA), claiming that the defendant misinterpreted the relevant statutes and regulations. The trial court agreed and reversed the defendant’s decision. On appeal, the permittees requested that the defendant grant modified permits so that they could continue operations. The defendant issued modified permits and the plaintiff sued. The appellate court held that the plaintiff lacked standing to petition for judicial review, reversed the trial court’s decision and remanded the case with directions to dismiss the plaintiff’s petition and reinstate the original permits.
Supreme Court Won’t Hear Kansas Case Involving Secret Filming.
Kelly v. Animal Legal Defense Fund, cert. den., No. 21-760, 2022 U.S. LEXIS 2153 (U.S. Sup. Ct. Apr. 25, 2022)
In 2021, the U.S. Court of Appeals for the Tenth Circuit, held that a Kansas law making it a crime to take pictures or record videos at a covered facility (primarily a slaughterhouse) “without the effective consent of the owner and with the intent to damage the enterprise” was unconstitutional. The plaintiffs claimed that the law violated their First Amendment free speech rights. The State claimed that what was being barred was conduct rather than speech and that, therefore, the First Amendment didn’t apply. But the court tied conduct together with speech to find a constitutional violation – it was necessary to lie to gain access to a covered facility and consent to film activities. As such, the law regulated protected speech (lying with intent to cause harm to a business) and was unconstitutional. The court determined that the State failed to prove that the law was narrowly tailored to a compelling state interest in suppressing the “speech” involved. The dissent pointed out (consistent with the Eighth Circuit) that “lies uttered to obtain consent to enter the premises of an agricultural facility are not protected speech.” According to the Eighth Circuit, the First Amendment does not protect a fraudulently obtained consent to enter someone else’s property. The Tenth Circuit disagreed and held the Kansas law unconstitutional. Animal Legal Defense Fund, et al. v. Kelly, 9 F.4th 1219 (10th Cir. 2021). The state of Kansas sought U.S. Supreme Court review. Pet. for cert. filed, (U.S. Sup. Ct. Nov. 17, 2021). On April 25, 2022, the U.S. Supreme Court declined to hear the case.
Prior Occupancy of Home Not Required For Exclusion Under Medicaid Rules
Texas Health & Human Services Commission v. Estate of Burt, No. 03-20-00462-CV, 2022 Tex. App. LEXIS 2556 (Tex. Ct. App. Apr. 21, 2022)
The decedent and his wife bought a home in 1974 and lived there until late 2010 when they sold it to their daughter. They then moved into a rental property that the daughter owned. In early 2017, the couple entered a skilled nursing facility and shortly thereafter bough a one-half interest in their original home to “secure home equity in a home that they could return to if one or both of them should be able to leave the nursing home.” The same day, they filled out the plaintiff’s form designating the home as their place of residence and indicating an intent to return. After the purchase, they had about $2,000 remaining in their bank accounts. They then sought Medicaid benefits, effective immediately.
After both the decedent and his wife died shortly thereafter, the application was denied due to a finding of “resources in excess of program limits” because the plaintiff included the couple’s interest in the home as an available countable resource for Medicaid purposes. After the last of them to die, a debt of $23,479.35 was left owing to the nursing facility. Their daughter appealed the plaintiff’s decision to deny Medicaid benefits, but a hearing officer and the plaintiff’s Legal Services Attorney upheld the denial due to the couple’s inability to establish prior occupancy of the home as a principal place of residence. As such, the plaintiff determined, none of the equity value of the home could be excludible for Medicaid eligibility purposes.
The daughter sought judicial review, claiming that the home should have been excluded from her parent’s countable resources for Medicaid eligibility purposes under 42 U.S.C. §1382b(a)(1). This statute provides that a Medicaid applicant’s home is not an available asset for Medicaid eligibility purposes and is defined as any personal residence in which the applicant has an ownership interest. State (Texas) law contains an identical definition. 1 Tex Admin. Code §§358.103(38), (69). Under federal regulations, “place of residence” is defined as “the dwelling the individual considers his or her established or principal home and to which, if absent, he or she intends to return.” Program Operations Manual System, SI 01130.100A.2. Again, state law on this point is identical, defining a home as the “place of residence of the applicant or applicant’s spouse if the applicant “occupies or intends to return to the home.” 1 Tex. Admin. Code §358.348(a)(1) mirroring 20 C.F.R. §416.1212. The plaintiff adopted an identical regulation requiring prior occupancy consistent with the Texas statutory provision. Accordingly, the plaintiff asserted that because the decedent and wife did not have any ownership interest in a home at the time they entered the nursing home, they had no excludible home to which they could intend to return to at that time. In other words, the plaintiff’s subjective intent was to be ignored and the plaintiff read a “prior occupancy” requirement into the applicable regulations construing 42 U.S.C. §1382b(a)(1) and the comparable Texas provision.
The trial court ruled that the plaintiff’s interpretation was unreasonable and not supported by substantial evidence, reversed the plaintiff’s decision and remanded the case. The plaintiff appealed, but the appellate court determined that the plaintiff’s interpretation requiring prior occupancy of a home was incorrect. While the plaintiff argued that because the couple bought their interest in the home after entering the nursing facility, they could not be viewed as “intending to return” to it and, as a result, it could not be considered their “home.” The appellate court noted that “intent to return” in the federal regulation applied only to the continued exclusion of the home before the time the applicant left the property, and that the federal regulation specified that an applicant’s principal place of residence is the place the person considers to be the person’s established home – the subjective intent of the applicant(s).
While there were no prior Texas appellate decisions directly on point, the appellate court did cite a local county district court opinion in a letter ruling where the court stated, “if Congress had intended to require prior occupancy, it would have been simple to state it.” That appellate court went on to reason the purpose of Medicaid is better served by allowing an applicant to claim the home exemption for a home that a Medicaid recipient buys or inherits while in a nursing facility, as long as the recipient intends (subjectively) to return to the home upon discharge from the facility. The appellate court found this reasoning persuasive, found a contrary Arkansas court opinion on the issue that held the opposite to be unpersuasive (Groce v. Director, Arkansas Department of Human Services, 82 Ark. App. 447, 117 S.W.3d 618 (Ark. Ct. App. 2003)), and concluded that there was no “prior actual residence requirement” under Medicaid. Thus, the plaintiff’s regulatory interpretation was an improper reading of the statute. As a result, the appellate court affirmed the trial court’s decision.
The legal issues keep on rolling involving agriculture. It will be interesting to see if the Texas Medicaid court decision is appealed. As noted, there is a split of authority on that issue that has implications for long-term care planning. I will do another recent development blog soon.
Hi David, Yes, the Texas Medicaid Estate Recovery Program (MERP) does not place liens on assets before or after the death of a Medicaid recipient. MERP only recovers the cost of certain long-term-care services that a Medicaid recipient receives after the age of 55. A MERP claim is classified under Estates Code §355.102 as a Class 7 claim, paid after all other types of claims specifically described in that section, including allowed claims for money secured by a mortgage or other lien on property.
Posted by: Roger McEowen | May 7, 2022 7:34:46 AM
Roger, do you know if Texas has an estate recovery statute? In Iowa, Medicaid administrators would make a claim in the estates of the Medicaid recipients which should include their interests in the residence.
Posted by: David Repp | May 7, 2022 7:02:50 AM