Last month, the 3rd U.S. Circuit Court of Appeals issued a decision that ran roughshod over clear congressional intent, ignored without comment its own precedent and exalted form over substance in a manner that permits wealthy families to shift nearly all of their long-term care expenses onto the beleaguered state medical assistance program. In James v. Richman , the court held that the state could not count an annuity purchased by the spouse of a nursing home resident as part of a plan to qualify for medical assistance, or MA, as a "resource" for the purpose of calculating the institutionalized spouse’s eligibility for MA. Under the court’s interpretation of the Medicaid Act and its regulations, it appears that no couple is now too wealthy to elude financial responsibility for their own long-term care.

The Medicaid Act, 42 U.S.C. § 1396 et al., governing federal-state MA programs, has been described by the U.S. Supreme Court as "almost unintelligible to the uninitiated," "Byzantine and among the most intricate [statutes] ever drafted by Congress" and "a morass of bureaucratic complexity." One federal court has analogized Medicaid regulations to "a Serbonian bog" — a mythical quagmire fabled to have swallowed ancient armies whole — "from which the [administering] agencies are unable to extricate themselves."

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