At about 10:30 am on Monday, February 27, 2006, H. David Blair, a self-described "country lawyer" from Batesville, Arkansas (pop. 9,445), stood before the United States Supreme Court to make an oral argument in the landmark Medicaid lien case, Arkansas Department of Health and Human Services, et al. v. Ahlborn, 547 U.S. ____ (2006). Mr. Blair, a litigator by trade, and his co-counsel Phillip Farris, had represented Heidi Ahlborn in her effort to obtain a settlement following a car crash that left her permanently disabled.
The two attorneys continued to represent Ms. Ahlborn when the Arkansas Department of Human Services Arkansas asserted a Medicaid lien against nearly half of her $550,000 settlement -- far more than the portion of the settlement allocated for past medical expenses. The Eighth Circuit found in Ms. Ahlborn's favor and the Supreme Court granted certiorari, at which point Mr. Blair, a man in his mid-60s whose relaxed drawl conceals a zest for courtroom jousting, began preparing for his first appearance before the Court. He was up against not just Arkansas, but 38 other states that had joined in the petitioner's brief, as well as the United States Solicitor General. On May 1, the Court ruled unanimously in his favor. ElderLawAnswers recently interviewed Mr. Blair about his experience and the implications of the case.
Once you settled the case and the state wanted a good chunk of it to cover its lien, did you consult with a Medicaid specialist?
Hell, I barely even knew about Medicaid before this case, and for damned sure had never heard of the anti-lien statute, nor had any other attorney. I really used the Martin case as a blueprint and basically followed it. [Martin, et al v. City of Rochester, et al (Minn., C3-00-398, March 21, 2002).]
So you didn't get any help from a Medicaid expert in preparing your case?
Oh, not as such. Some of these special interest groups around Washington called and made some suggestions, and one of them [the National Senior Citizens Law Center] suggested one question I should be prepared to answer which had never been raised by anybody on briefs, but sure enough it was raised by the Chief Justice [Roberts].
What was the question?
Whether preemption alone is a basis for federal jurisdiction. And amazingly that's always been assumed to be the case and a lot of preemption cases have been decided without expressly addressing that issue.
What was your response to the Chief Justice?
That it hadn't been raised and I wasn't really prepared to answer it fully. But I did admit that I was unaware of where there had ever been an express holding of the Supreme Court that preemption alone was a basis for federal jurisdiction. They didn't address it in the opinion, but this apparently is an idea that some members of the court '“ Scalia and Thomas '“ have raised in the past. There are some members of the court who seem to believe that preemption does not provide a basis for federal jurisdiction.
Did you make any special preparations for your oral argument before the Court?
No. After as many years as I've been practicing, I just show up and argue. A court's a court to me, although I found it very pleasant to argue the Supreme Court. To me it's always a pleasure to argue before judges who are well prepared and have good, challenging questions.
Were any of the justices particularly tough?
Oh, I guess of course Justice Scalia is the most combative. He's a feisty, lot-of-fun guy, I think. I enjoy people who want to fight. His nature is such that he enjoys the verbal combat of the oral argument.
How do you think the other side did?
They [petitioner and the Solicitor General, who divided the case] did a good job. I thought I had the better end of the argument. Our whole theory throughout the case, our whole approach, was to try to keep the focus on the statutory language. Of course, the petitioners wanted to talk about the policy implications, how it was going to ruin Medicaid, and that sort of thing. I tried to avoid any kind of policy arguments. I didn't argue what was fair or not fair to my client because my position was Congress had made that determination and expressed it in very clear language in the statute.
I really think that this case is one of several that signals that the present Court is not going to delve into legislative history and these fuzzy, soft matters as much as Courts in the past have been willing to do. I think this Court is going to place more emphasis on the plain meaning of statutory language. As one of them has remarked in an opinion, interpreting statutes by reading committee reports is like trying to read tea leaves. So I think the deference to administrative determinations, for example in the Chevron case, is diminishing relative to the meaning of the statutory language.
How do you see the ruling changing state practices with regard to lien recoveries?
It's going to make the state now bargain with us, whereas heretofore they refused to bargain at all. In Arkansas they absolutely would not consider any compromise or adjustment in the amount of their lien, even if the client got nothing.
Do you think the case will result in more litigation with the states over reimbursement claims?
It will no doubt necessitate additional litigation with Medicaid over the apportionment of tort recoveries between what is, and is not, subject to its lien.
How will the decision change how attorneys posture cases when they bring them? When they settle them?
I'm not sure how the decision with affect litigation where Medicaid recipients are parties other than I think it makes it advisable to give notice to Medicaid when a claim is made and to join it as a party if it does not intervene.
Do you have any advice for elder law attorneys who might be arguing cases before the Supreme Court (or special needs attorneys)?
I know the elder law people were all interested in this. I never really saw this as an elder law case. In Arkansas we've got a whole lot of people on Medicaid that are not elderly. In fact, I think there's a lot less elderly people on Medicaid than non-elderly, since most of the elderly people are on Medicare. It [the case] is only tangentially an "elder law" case, whatever "elder law" is. This is more a poverty case. . . I do not think that Ahlborn has any real significance as regards special needs trusts, since the law is clear that whatever Medicaid is entitled to receive, it is entitled to this before a special needs trust is funded.
Has your life changed at all as a result of this?
No, just 15 minutes of fame. Like Andy Warhol said, it's fleeting. You're only as famous as your last case.
You got some local coverage?
Yes, the local paper and the state paper wrote about it. It's a little unusual to have an Arkansas case in the U.S. Supreme Court. In fact, when the state filed the petition, my co-counsel was not a member of the Supreme Court bar and we needed two signatures on the application for admission. We had to scurry around town, and we found that there was only one other attorney here who was even a member of the Supreme Court bar, and he's on the bench now. So it's very unusual for a country lawyer to wind up in the U.S. Supreme Court.
A transcript of the oral arguments in the case can be found at: https://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1506.pdf
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