dissenting: ’
I respectfully dissent in this case as well as in today’s companion case, S.S. v. State.
McNeil, the appellant in this case, asserts that state statutes allowing the State to file liens against a Medicaid recipient for money received from third parties in personal injury suits directly contradict provisions of federal Medicaid law. Therefore, McNeil argues, the federal statutes preempt the state statutes, making the lien against McNeil invalid and requiring summary ' judgment in McNeil’s favor. The majority holds that no such contradiction exists and that no cause for preemption has been raised. I disagree. I would hold that our state statutes do contradict provisions of federal Medicaid law and that federal law controls.
The Utah Code chapter on Medicaid specifically prevents application of any part of the chapter in a manner contrary to federal law. See Utah Code Ann. § 26-19-17. The Utah Code does provide for the State to recover, through a lien on recipients’ property, any payments from liable third parties made to Medicaid recipients. Utah Code Ann. §§ 26-19-5(1) & -7(l)(b). The federal law, however, states clearly that “[n]o lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan, except” when the benefits were incorrectly paid or the property is the real property of specified individuals. 42 U.S.C. § 1396p(a)(l). Furthermore, “[n]o adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the state plan may be made, except” in the situations described above or when the recipient is over 65 and meets certain requirements. 42 U.S.C. § 1396p(b)(l). Both parties agree that the exceptions in these sections do not apply to McNeil and that the State has in fact acquired a lien. Thus, the federal statute conflicts with the state statute and prohibits the State’s actions in this case.
The majority, absent any analysis or justification, holds that “by viewing that part of the insurance proceeds which have been assigned by McNeil’s guardian to the State as not the property of McNeil” it may allow the State to reach what is in actuality McNeil’s property. Federal law expressly prohibits liens being imposed against the property of ■individuals' in McNeil’s situation. . See 42 U.S.C. § 1396p(a). The majority achieves an “end run” around this prohibition through what seems to me the illogical conclusion that the proceeds in dispute ’ are . not really McNeil’s property, but perhaps his grandmother’s or even the State’s. The language of section 1396p clearly states “[n]o lien may be imposed against the ‘property of any individual prior to his death on account of medical assistance paid,” 42 U.S.C. § 1396p(a) (emphasis added). Because the statute expressly applies to any property, the majority’s result arbitrarily deprives McNeil of his property. See generally State v. Murtha, 179 Conn. 463, 427 A.2d 807, 810 (Conn.1980) (holding that “the design of the statute is to prohibit ... efforts by states to recoup from beneficiaries ... amounts paid for medical assistance to those beneficiaries during their lifetimes”).
As indicated above, all Medicaid recipients must, as a condition of eligibility,
assign the State any rights, of the individual or of any other person who is eligible for medial assistance under this subchapter and on whose behalf the individual has the legal authority to execute an assignment of such rights, ... to payment for medical care from any third party.
42 U.S.C. § 1396k(a)(l)(A).
McNeil’s grandmother did assign McNeil’s right to third-party payments to Medicaid, *450but the assignment was not exclusive, as evidenced by Medicaid’s willingness to allow recipients to pursue third-party recovery actions independently, provided they notify Medicaid first. In other words, McNeil still retained the right to sue for and receive third-party payments, notwithstanding the State’s collateral interest in recovering Medicaid benefits. See Utah Code Ann. § 26-19-7. Moreover, McNeil’s injuries in this case— including pain and suffering and lost wages— exceeded the amount Medicaid paid on his behalf for medical care alone. Had Medicaid decided not to sue because the costs of recovery would exceed the recovery itself, see Utah Code Ann. § 26-19-5(4), McNeil could, nevertheless, have pursued the third party for his damages. Thus, both the State and McNeil had causes of action against Allstate. The State did not pursue its claim, however. The settlement made by all liable parties gave McNeil $85,000, and the State cross-claimed only against McNeil for reimbursement. The procedural posture of this case thus illustrates clearly that the State seeks to enforce its lien against McNeil and his property — the settlement amount. The majority’s holding that the lien is against its “own property” is unrealistic. The State sought recovery from McNeil directly, possibly to save itself the expense of litigation with Allstate.1 Although protecting public money is an admirable goal, the State should not be allowed to pursue it at the expense of persons Congress sought to protect in creating prohibition against liens of this kind.
The State argued (and the majority apparently agrees) that the above interpretation makes the third-party liability recovery portions of the statute “meaningless,” and urges us to read the statute to allow liens against personal injury recoveries. The underlying assignment relied on by the State, viewed in isolation, gives Medicaid the right to make a claim either against third parties for such money or against the recipient once he receives the money. However, “a statute should not be construed in a piecemeal fashion but as a comprehensive whole.” Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1045 (Utah 1991). Therefore, because another section of the Medicaid statute prohibits not only liens against Medicaid recipients but also any recovery for medical assistance correctly paid, see 42 U.S.C. § 1396p, the proper conclusion is that the State can enforce the assignment only by instituting claims directly against the liable third parties.
Other parts of the federal statute make the intent of Congress clear. The federal government requires states to
(A) ... take all reasonable measures to ascertain the legal liability of third parties ... to pay for care and services available under the plan, including—
(I) the collection of sufficient information ... to enable the State to pursue claims against such third parties, ...
(B) ... in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual ... the State ... will seek reimbursement for such assistance to the extent of such legal liability.
42 U.S.C. § 1396a(a)(25) (emphasis added).
It is true, as the State argues, that these statutes reflect the legislative intent that Medicaid should recover its health care expenditures where third parties caused a Medicaid recipient to incur them. However, the language of various sections of the statute indicates that Congress anticipated that third-party recovery would come directly from the third parties and not from the recipient. The language in section 1396a(25) states plainly that states should pursue their third-party liability claims against the third parties themselves. See 42 U.S.C. § 1396a(25). It does not mention recovery from the Medicaid recipient. The Utah statute, on the other hand, allows the department “to recover medical assistance provided as a result of the injury, disease, or disability” directly from the Medicaid recipient through a lien. Utah Code Ann. § 26-19-5(1) & -7(2). Congress plainly did not intend to authorize this method of collection.
*451Congress’s understanding of a Medicaid recipient’s plight could rationally have led it' to require Medicaid agencies to proceed against the third party and not against the recipient. People receive Medicaid assistance when they have no other resources to pay for medical care. Requiring such persons to defend against liens is inconsistent with the entire benefit system created by the federal statutes. Congress had good reason to prohibit liens against recipients and to require the agencies to go after the liable third parties directly, thereby possibly reducing the injured party’s burden.2
Moreover, the Department of Health and Human Services has made all state Medicaid directors aware that liens are only appropriate against the third party’s property prior to an award to the injured party and are forbidden against a recipient’s property.
Section 1917(a)[42 U.S.C. § 1396p(a) ] precludes states from placing liens on an individual’s property. However, because a potential personal injury settlement is not yet the plaintiffs property, it can be subject to a TPL [Third Party Liability] lien.... To avoid the lien issue, but protect its rights, a state could ... intervene in the case and represent its own interests directly. Since the individual has assigned to the state his or her rights to recover payment for medical care under section 1912, the state has an interest which it can represent directly.[3]
Memorandum from Sally K. Richardson, Director of the Medicaid Bureau to all state medicaid directors (June 5, 1996), at 3 (emphasis added). A lien on a “potential personal injury settlement” most logically means on the insurance proceeds themselves, or on the assets of the third party.4 The Richardson memo does not contain the option of placing a lien on the recipient’s recovery after the recipient has proven liability and thus established a legal claim to the specific fund, as the State did in this case. The State chose to wait until legal ownership of the property transferred to McNeil before attempting to enforce its claim. That the money is not in McNeil’s physical possession does not matter; it is McNeil’s money. The State should not be permitted to proceed in this manner given the federal statute’s prohibition on liens against recipients’ property.
The Medicaid statute further confirms this interpretation in part C of the assignment section, which mandates recipients to “cooperate with the State in identifying, and providing information to assist the State in pursuing, any third party who may be liable.” 42 U.S.C.. § 1396k(a)(l)(C) (emphasis added). Although this part specifically addresses the duties of a Medicaid recipient, the emphasized language indicates that Congress expected the states to sue the third parties directly rather than waiting for the recipient to collect and then suing him.
Furthermore, the State’s own Medicaid manual requires that States “seek recovery from the third party whenever a claim or claims have been paid for which a third party is liable. (See § 3904.3).” State Medicaid Manual, HCFA Pub. 45-3, § 3902, Transmittal No. 53 (May 1991) (emphasis added). Similarly, another provision states that “[a]n agency must seek reimbursement from a liable third party on all claims for which it determines that the amount it reasonably expects to recover will be greater than the costs of recovery.” 42 C.F.R § 433.140(f)(1). The State has failed to do so in this case.
The State relies on certain letters from the director, of the Medicaid Bureau recognizing the tension in- the statutes and responding with the conclusion that opening the assignment of payments makes any of the recipi*452ent’s proceeds from a personal injury case actually the property of Medicaid. See Letter from Sally K. Richardson, Director Medicaid Bureau, to Sonia Crannage, Sinnreich & Crannage Attorneys at Law (December 20, 1993); Letter from Sally K. Richardson, Director Medicaid Bureau, to Howard K. Gibbs, Assistant General Counsel, Human Resources Administration (December 20, 1993). These communications were apparently drafted without the benefit of any public hearing, and they do not represent an official agency determination on the matter. Therefore, we should not afford them any particular deference. Furthermore, even if they represented official positions, a proper reading of the federal statutes would require us to reject their rationale. See, e.g., Williams v. Mountain States Tel. & Tel. Co., 763 P.2d 796, 799 (Utah 1988) (reversing agency decision that directly contradicts statutory language).
Another aspect of the statutory scheme that supports this reading of the statute is the incentive the federal government gives to the states when they successfully collect third-party liability money: for any successful collection, the federal government returns fifteen percent of the money recovered on its behalf to the collecting agency as an “incentive payment[] for enforcement and collection.” 42 U.S.C. § 1396b(p). This incentive scheme implicitly assumes that the state will incur costs in recovering third-party payments and that the incentives will help to offset such costs. When the State places a lien on money already received by Medicaid recipients, it basically seeks a “free ride”; the recipient bears all of the investigation and litigation costs, and the State has to pay only for the lien. Additionally, if the recipient challenges the lien and loses, the recipient must also pay the State’s attorney fees and costs under Utah law. Allowing the State to operate in this manner, and then collect attorney fees and the federal incentive fee, results in a windfall for the State from the pockets of injured and needy parties. Congress could hardly have intended such a result, especially in light of language elsewhere in the statute.
The State bases its cross-claim against McNeil on Utah Code Ann. §§ 26-19-5(1) & -7(2). Because these sections directly contradict federal law, 42 U.S.C. § 1396p(a), the State’s liens should be declared illegal under Utah Code Ann. § 26-19-17. Therefore, I would reverse the district court’s grant of summary judgment in favor of the State and grant summary judgment to McNeil. The State’s lien is unenforceable.5
Justice STEWART concurs in Associate Chief Justice DURHAM’S dissenting opinion.. The recipient must pay all of the State’s litigation expenses incurred from fighting with the recipient if the agency wins. Utah Code Ann. § 26-19-7(2). The State must bear its own expenses when litigating with a third party.
. When an agency collects more than it has expended on an individual, it must reimburse that individual for the remainder. 42 U.S.C. § 1396k(b).
. This memorandum also suggests that if the court places proceeds in a trust, the proceeds belong to the trust and not the individual, and thus a state can lien the trust. Id. However, the memorandum goes on to say that such liens will not work against special needs trusts, such as the one created for McNeil by the district court. Id. at 3-5; 42 U.S.C. § 1396p(d)(4). Thus the State may not exercise this option in this case.
. The New York Court of Appeals has read this phrase to include the type of lien placed in this case, but that reading is forced in light of the statutes. See Cricchio v. Pennisi, 90 N.Y.2d 296, 660 N.Y.S.2d 679, 683 N.E.2d 301 (N.Y.1997).
. The briefs also raised the important issue of whether the State has a priority lien against the third party and thus recovers 100% of its expenses before anyone else collects anything, or whether it can recover an amount proportional to the expenses of the other claimants. We obviously do not reach this issue in this case.