In Lewis v. Alexander, 2012 U.S. App. LEXIS 12546 (3d Cir. 2012), a class action challenging aspects of Pennsylvania’s state law regulating pooled special needs trusts for people with disabilities, the Third Circuit held that federal Medicaid law preempted the more restrictive state law provisions. On the merits, the court cited Professor Joe Rosenberg’s article, “Supplemental Needs Trusts for People with Disabilities: The Development of a Private Trust in the Public Interest,” 10 Boston University Public Interest Law Journal 91 (2000), for its analysis of the legislative intent, scope, and application of the federal Medicaid law that governs pooled special needs trusts. Professor Rosenberg’s article has previously been cited by the N.Y. Court of Appeals and various federal and state courts. Professor Rosenberg co-teaches the Elder Law Clinic with Professor Degna Levister.
Specifically, The Third Circuit’s opinion cites Professor Rosenberg on the following pages:
Page 7: See Joseph A. Rosenberg, Supplemental Needs Trusts for People with Disabilities: The Development of a Private Trust in the Public Interest, 10 B.U. Pub. Int. L.J. 91, 101 (2000) (citing Austin Wakeman Scott, Abridgment of the Law of Trusts 11 (1960)).
Page 47: See Joseph A. Rosenberg, Supplemental Needs Trusts for People with Disabilities: The Development of a Private Trust in the Public Interest, 10 B.U. Pub. Int. L.J. 91, 132 (2000) (“To the extent the remaining balance in an individual trust account is retained by the pooled trust after the death of the beneficiary, the State is not entitled to be paid back. However, any amounts that are not retained by the pooled trust must be used to reimburse the State for the cost of medical assistance provided to the beneficiary during his or her lifetime.”).
Page 53: We note here that Defendants were attempting to protect elderly beneficiaries of special needs trusts from potentially invalidating (at least temporarily) their Medicaid eligibility. Through a quirk of the Medicaid statute, elderly individuals (65 and over) transferring assets into a pooled trust are made ineligible for Medicaid for a period of time. See Rosenberg, supra, 10 B.U. Pub. Int. L.J. at 134-35 & n.234 (discussing operation of the penalty).
with this footnote: Professor Rosenberg’s article notes that advocates who lobbied Congress for the trust exceptions have expressed their belief that the lack of an age restriction was a “technical drafting error, created when the provision was divided into separate sections to accommodate the retention of the remainder by the pooled trust.” Rosenberg, supra, 10 B.U. Pub. Int. L.J. at 129.