Inaccessible resources ALJ decision & memo

Attached is a legal memo by Rachel Brown at CLA and the resulting favorable ALJ decision in a 2017 SSI case finding that the applicant's half interest in a house co-owned with an abusive partner and located outside of Massachusetts where the abuser still lived was not an accessible resource because the applicant would have to initiate legal proceedings in the other jurisdiction in order to sell her interest in the house. The decision was based on a provision in the SSI, Program Operations Manual System, (POMS)  SI 01120.010(C)(2)  that the SSA does not “require an individual to undertake litigation” in order to sell property; rather, the “property is not a resource under such circumstances in a month if a legal bar exists as of the first moment of that month.”

Why are we posting this in the Health Section? Because for MassHealth applicants subject to an asset test, the financial methodology for counting income and resources cannot be more restrictive than the SSI rules. 42 CFR 435.601. Therefore, the rules for determining when an asset is inaccessible for SSI purposes, also govern MassHealth. MassHealth rules recognize that a resource may be inaccessible if someone lacks "legal entitlement" (130 CMR 520.006), but doesn't specify that an asset that requires litigation in order to sell the applicant's interest is not an accessible resource. However, because SSI policy provides that clarification, it should apply in MassHealth too.