David L. Orosz Firm Profile: We will provide a FREE initial Medicaid eligibility consultation. Our services are available to anyone who needs help with Florida Medicaid, whether you live in Florida or have relatives living in Florida. We will: Prepare and file your Medicaid application Schedule the Medicaid interview Prepare all documents required in your case. Attend the Medicaid interview and present the documents supporting eligibility on your behalf. Follow up the application and assist you with providing the required documents until we obtain a decision. Remain available, at no additional fee, to answer your questions on an ongoing basis both during and after Medicaid approval.   Background: B.S. (Magna cum Laude) John Carroll University, Cleveland Ohio. 1958 J.D. Case-Western Reserve University School of Law Cleveland, Ohio, 1961 Member of the Florida Bar             Services Offered: Medicaid Pre-Planning - Asset Protection Medicaid Crisis Planning - Asset Protection Medicaid Applications Medicaid Hearings and Appeals Qualified Income Trusts Planning for Disability and Incapacity of Adults Special Needs Planning for Disabled Children and Grandchildren Special Needs Trust Planning for Personal Injury Settlements and Inheritances Probate/Estate Settlement and Trust Administration

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There are financial predators in this same area of Medicaid Planning ready to sell to you products or investments with the promise of "guaranteed" eligibility for Medicaid and/or VA eligibility.​ BEWARE: The Supreme Court of Florida, in an effort to protect the elder public against these predators, has recently ruled that it is ...
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January 2006

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Monday, January 30, 2006

Vote on Budget Set for Feb. 1; Group Seek to Sway GOP Moderates

 
Vote on Budget Set for Feb. 1; Groups Seek to Sway GOP Moderates

Last Updated: 1/13/2006
Topic: Medicaid

House Speaker Dennis Hastert (R-Ill.) has tentatively scheduled a re-vote on the 2006 budget reconciliation bill (S 1932) for February 1, the day after the House reconvenes following its winter recess. Moderate Republicans are feeling mounting pressure from groups like AARP to change their votes.

Among other provisions in a bill that cuts back federal entitlement programs for the first time in a decade, the legislation would impose punitive new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care. (Click here to read these provisions.)

The Senate passed the bill before Christmas, with Vice President Dick Cheney casting the tie-breaking vote. However, procedural moves by Senate Democrats require the House to vote on the bill a second time after having passed it by a 212-206 margin at the end of an all-night session.

Although House Republicans "expect to narrowly approve the bill again, boosted by President Bush's State of the Union speech the night before," according to CongressDaily, groups opposed to the bill's cuts are working hard to convince moderate Republicans to vote against it. Brian Riedl, a budget analyst for the Heritage Foundation, says, "[N]othing is guaranteed over a six-week break."

Leading the fight against the bill is AARP, which strongly opposes the transfer restrictions and has vowed to make lawmakers who vote for them pay a political price. "This budget represents bad policy and AARP will now work to explain the full impact of this vote to its more than 36 million members," said AARP's CEO William D. Novelli.

Joining AARP is a temporary umbrella group, the Emergency Campaign for America's Priorities (ECAP). Spokesperson Brad Woodhouse said, "If they win, and we're not convinced they will, we want to spill blood in the process so that they are gun-shy about turning around and doing this again in the next budget." ECAP has targeted some moderate Republicans at local vigils and is organizing phone blitzes in advance of the vote.

"Clearly, moderate Republicans in the House were reluctant to vote in favor of these drastic changes to Medicaid," reports theNational Senior Citizens Law Center (NSCLC). According to NSCLC, several Republicans who did not vote against the bill the first time around delivered a letter in December to the congressional leadership expressing objections to the scope of the Medicaid cuts.

Meanwhile, in his weekly radio address Saturday, January 7, President Bush said Congress should "finish its work" and pass the budget bill. Bush said that passage would show that the "people's representatives can be good stewards of the people's money." Bush also urged Congress to make all his tax cuts permanent. In an opinion piece in the San Jose Mercury, Sen. Barbara Boxer (D-CA) said that House Republicans should "scrap this poor excuse for a budget" and "instead cancel some of the tax cuts for millionaires," which "would accomplish the same thing -- deficit reduction -- but without harming our kids, our elderly and the middle class."

 

Monday, January 23, 2006

 
Democrats Split on Medicaid Changes

Last Updated: 12/12/2005

The National Governors Association, whose membership includes both Republican and Democratic governors, sent a letter to Congress on Monday mostly endorsing the House's budget reconciliation package that contains changes to Medicaid transfer rules. The endorsement of the House bill by Democratic governors is a split with Democratic members of Congress. Every Democratic member of Congress voted against the bill when it passed by a slim 217 to 215 vote in November.

Among other things, the House bill includes a measure that would extend Medicaid's "lookback" period for all asset transfers from three to five years and change the start of the penalty period for transferred assets from the date of transfer to the date of Medicaid application. In addition, the House version allows states to increase co-payment increases on Medicaid beneficiaries with incomes above the federal poverty level. The House version differs from the Senate budget bill, which makes only modest changes in the asset transfer rules and doesn't include an increase in co-payments. The two bills now have to be hashed out in a joint House-Senate conference committee.

The NGA's letter specifically approved of the changes to transfer penalties in the House bill, saying the final bill should "include critical House provisions that would increase the look-back period and begin the penalty period at the time of application for services." The letter also endorsed the co-payments provision and a provision in the house bill making any individual with home equity above $750,000 ineligible for Medicaid nursing home care.

For the full letter, click here. An article in the Dec. 12, 2005, New York Times reports that "Medicaid is a flash point" as House and Senate conferees sit down to reconcile the two budget bills. The article focuses on provisions in the House bill that would allow states, for the first time, to deny care or services because of a person's inability to pay premiums or co-payments.

 

Monday, January 16, 2006

 
House GOP Leaders Fail to Muster Majority for Bill Containing Medicaid Transfer Changes

Last Updated: 1/11/2006

Topic: Medicaid

Facing a revolt among Republican moderates, House GOP leaders pulled their budget-cutting bill containing $9.5 billion in Medicaid cuts off the House floor on Thursday rather than put it to a vote.

The bill, the House version of fiscal year 2006 budget reconciliation legislation, would impose harsh new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care. The asset-transfer changes are reportedly among the provisions that may be adjusted as the House leadership scrambles to forge a compromise that could win the support of both moderate and conservative party members.

The bill's withdrawal signals that GOP leaders could not muster the 218 votes needed to pass the budget measure. Republicans said they would try again after the Veterans Day weekend to find a bare majority for more than $50 billion in spending cuts and policy changes.

On Nov. 3, the House Energy and Commerce Committee approved the budget reconciliation package that includes restrictions on asset transfer rules. It would extend the "lookback" period for all transfers from three to five years and change the start of the penalty period for transferred assets from the date of transfer to the date of Medicaid application. It also would make anyone with more than $500,000 in home equity ineligible for Medicaid-funded long-term care. TheSenate's version of the budget bill does not include these provisions.

In an effort to win passage of the bill on the House floor, Republicans dropped a controversial provision that would allow oil drilling in the Arctic National Wildlife Refuge, but even this failed to win enough votes for the bill's approval.

Reps. Sherwood Boehlert (R-N.Y.), Michael Castle (R-Del.) and Vernon Ehlers (R-Mich.) said they want some of the Medicaid cuts to be removed from the bill. According to CongressDaily, the House leadership was discussing Medicaid with Republican moderates, focusing on provisions that would tighten restrictions on asset transfers and increase copayments for Medicaid recipients.

Stunning Reversal The vote cancellation was a stunning reversal for a Republican majority that heretofore has maintained iron discipline among its members. But that was before President Bush's plummeting poll numbers, last Tuesday's election results, and the electorate's growing discomfort with Republican budget priorities.

"The fractures were always there. The difference was the White House was always able to hold them in line because of perceived power," Tony Fabrizio, a Republican pollster, told theWashington Post. "After Tuesday's election, it's 'Why are we following these guys? They're taking us off the cliff.' "

Opponents of the Medicaid asset transfer changes have a formidable ally in AARP. In a statement, AARP said it could not support the House bill because of the asset transfer provisions. These provisions, the senior advocacy group said, would penalize people who have simply helped family members or given to charity.

"We agree that steps should be taken to close real loopholes that allow people to improperly qualify for Medicaid," AARP said. "However, the extended look-back period and the change in the penalty date would deny coverage to those eligible for Medicaid at precisely the time they need assistance and have no remaining assets, leaving them no other way to pay for needed long-term care."

AARP also said that the provision denying Medicaid nursing home coverage to those with substantial home equity will force the elderly "to either take an expensive reverse mortgage or sell the home in order to get long term care coverage."

Meanwhile, the Congressional Budget Office estimates that the provisions in the House bill changing the treatment of asset transfers and home equity would reduce Medicaid outlays by about $2.5 billion over the next five years. In its report on the bill's budgetary impact, the CBO notes that under the current law, "very few of the applicants for Medicaid incur penalties for prohibited asset transfers."

Even if House Republicans are able to pass the budget cuts, the bill could be doomed by the determination of some House and Senate Republicans to add drilling for oil in the Arctic to any final bill. Some GOP moderates have said they will oppose any bill that permits Arctic drilling.
For an article in the Chicago Tribune on the politics of the House reconciliation measure, click here

 

Monday, January 09, 2006

 
New Study Finds That Few Nursing Home Residents Transferred Assets

Last Updated: 1/09/2006

Agreeing with earlier results, a study by the Kaiser Commission on Medicaid and the Uninsured finds that asset transfers by individuals entering nursing homes are relatively small.
The study found that 9.2 percent of Medicaid recipients entering a nursing home had transferred assets within two years of admission. The mean amount transferred was $5,380 and the median was $1,400. Researchers also discovered that 18.7 percent of Medicaid nursing home patients had transferred assets more than two years before they entered a facility. The mean amount transferred by this group was $8,202 and the median was $3,000.

The study also found that Medicaid nursing home residents had minimal assets before entering the nursing home. For example, half of unmarried residents had less than $4,000 of non-housing assets before entering nursing homes as Medicaid patients.

The study confirmed the findings of earlier studies on the impact of asset transfers. The Government Accountability Office (GAO)released a study in October that reported the level of assets being transferred by the elderly were relatively insignificant. The Georgetown University Long-Term Care Financing Projectreached a similar conclusion in May.

These studies indicate that changes to asset transfer rules proposed by the Medicaid Commission may not save much money. The commission, which was established to advise Congress on how to cut $10 billion from Medicaid, proposed rules that would extend the "lookback" period for all transfers from three to five years and change the start of the penalty period for transferred assets from the date of transfer to the date of Medicaid application. These changes in the law have been incorporated into the House version of the 2006 budget bill.

The Kaiser study on asset transfers is part of a group of studies on Medicaid released by the Kaiser Commission. Other studies look at the distribution of assets in the elderly population and strategies for keeping individuals out of nursing homes, among other topics. For a full list of all the reports, click here.

 
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December 2005

 

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Monday, December 26, 2005

 
Bush Administration Reportedly Endorses House Transfer Changes

Last Updated: 12/24/2005

Topic: Medicaid

The Bush administration has given its blessing to provisions in the House budget reconciliation bill (H.R. 4241) that would make it far more difficult for the middle-class elderly to gain Medicaid coverage of nursing home care, according to McKnight's Long-Term Care News. Such support, says McKnight's, "increases the likelihood these provisions will remain in the final budget."

McNight's source is a Nov. 23 Bureau of National Affairs article stating that "The Bush administration has announced support for most of the key Medicaid elements in the House fiscal year 2006 reconciliation bill (H.R. 4241), particularly the provisions to tighten rules regarding asset transfers and to give states greater flexibility to administer Medicaid programs."

The House measure would extend Medicaid's "lookback" period for all asset transfers from three to five years and change the start of the penalty period for transferred assets from the date of transfer to the date of Medicaid application. The bill also would make any individual with home equity above $750,000 ineligible for Medicaid nursing home care.

Speaking to the National Association of State Medicaid Directors on Nov. 8, Centers for Medicaid & Medicare Services Administrator Mark McClellan said that as the bill goes to conference committee with a Senate budget bill (S. 1932) that makes only modest changes in the asset transfer rules, the administration will continue to work closely with legislators. Congress is expected to begin work on resolving the starkly different proposals in early December.

Meanwhile, the Washington Post is reporting that while Democratic lawmakers in Washington are united in their opposition to the Medicaid cutbacks in the House bill, "Democratic governors are quietly supporting the provisions and questioning the party's reflexive denunciations." The Congressional Research Service (CRS), the public policy research arm of Congress, has produced a 192-page side-by-side comparison of the Medicaid and Medicare provisions of S. 1932 and H.R. 4241. Although the CRS does not distribute its reports to the public, the National Senior Citizens Law Center says the report is or will be available on its Web site. Go tohttp://www.nsclc.org/

Monday, December 19, 2005

 
House Approves Bill Substantially Changing Asset Transfer Rules

Last Updated: 11/21/2005

Topic: Medicaid

By the narrowest of margins, the House has voted to approve a budget plan that cuts about $12 billion from Medicaid, including imposing harsh new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care.

The Deficit Reduction Act of 2005 (HR 4241) was approved by a 217 to 215 vote in the early hours of Friday, November 18. The bill maintains provisions aimed at making it even more difficult for the middle-class elderly to receive long-term care coverage. The measure would extend Medicaid's "lookback" period for all asset transfers from three to five years and change the start of the penalty period for transferred assets from the date of transfer to the date of Medicaid application. The bill also would make any individual with home equity above a certain limit ineligible for Medicaid nursing home care, although in a concession to Republican moderates that limit was raised from $500,000 to $750,000. The final measure retains a provision imposing co-payment increases on Medicaid beneficiaries with incomes above the federal poverty level.

The bill now must be reconciled in conference committee with aSenate budget bill that makes only modest changes in the asset transfer rules. (For an ElderLawAnswers article explaining the effects on America's elderly of the two competing proposals,click here.)

Last week, Republican leaders were forced to pull the bill from the floor because of a lack of support. In the final vote, after some of the bill's cuts had been softened, 14 House Republicans and all House Democrats opposed the bill. (For a tally of votes on the bill, click here.) The Center on Budget and Policy Priorities estimates that the eleventh-hour changes only eased the cuts aimed at the poor by 2 percent from the original version.

The House bill would also:

Codify the income-first rule.

Establish new rules for the treatment of annuities, including a requirement that the state be named as the remainder beneficiary.

Require Medicaid applicants to provide "full information . . . concerning any transaction involving the transfer or disposal of assets during the previous period of 60 months, if the transaction exceeded $100,000, without regard to whether the transfer or disposal was for fair market value."

Allow Continuing Care Retirement Communities (CCRCs) to require residents to spend down their declared resources before applying for medical assistance. Set forth rules under which an individual's CCRC entrance fee is considered an available resource. Extend long-term care partnership programs to any state.

The Associated Press predicts that the upcoming conference committee negotiations with the Senate will be "arduous." The negotiations, writes the Los Angeles Times, "are likely to test [President] Bush's ability to work his will in Congress when his approval ratings are at an all-time low." The conference committee has not yet been named and no timetable for its deliberations has been set.

The final version of HR 4241 is still unavailable. For a version of the bill that does not reflect last-minute changes (such as the shift from $500,000 to $750,000 in home equity), click here. Scroll down to Title III, Chapter 2 for the asset transfer rule changes. Meanwhile, a survey for the National Academy of Social Insurance finds that 7 in 10 Americans age 40 and over think the federal government should do more to help people meet the cost of long-term care.

Monday, December 12, 2005

 
State Budget Pressures Easing, But Medicaid Still Faces Long-Term Challenges, Surveys Show

Topic Medicaid
[Oct 20, 2005]

Sustained state cost-containment actions and a stronger economy have improved the outlook for Medicaid and SCHIP, but factors contributing to Medicaid's cost growth continue to present long-term challenges, according to a new state surveys released Wednesday by the Kaiser Commission on Medicaid and the Uninsured. According to the survey, state Medicaid officials say that rising health costs, declining employer-based coverage, demographic trends and other factors raise concerns about future Medicaid cost growth.

Budget In a survey of state officials, KCMU and Health Management Associates found that growth in Medicaid spending slowed to an average of 7.5% in fiscal year 2005, the third year of decreased growth. The survey indicates that a decline in enrollment growth in fiscal year 2005 to 4% combined with spending reduction measures taken at the state level contributed to the slowdown in spending growth. Enrollment growth is expected to slow for the fourth consecutive year to 3.1% in fiscal year 2006 (KCMU release, 10/19). The gap between Medicaid spending increases and state tax revenue growth fell to 2.6%, the lowest level since 1999. According to the survey, despite the improved fiscal outlook, states are planning new cost-control measures, such as provider rate reductions or freezes, the Washington Post reports (Washington Post, 10/20).

In addition, many states are expanding coverage (CQ HealthBeat, 10/19).
Drug Benefit In addition, KCMU and Georgetown University'sHealth Policy Institute surveyed state officials regarding the outpatient prescription drug benefit, finding that all surveyed states actively managed their benefits and imposed a variety of cost-control mechanisms. More than two-thirds of responding states use preferred drug lists. Sixteen of 37 states surveyed placed limits on prescription refills, but only two states automatically denied refills that surpassed limits.

Enrollment Procedures KCMU and the Center on Budget and Policy Priorities conducted a survey that focuses on state actions regarding Medicaid and SCHIP eligibility, enrollment and renewal procedures, as well as cost-sharing requirements for low-income families (KCMU release, 10/19). According to the survey, Missouri and Tennessee have made large cuts in eligibility. The survey also found that 20 states reported taking actions expand coverage by simplifying procedures and requirements for beneficiaries, expanding eligibility or reducing premiums for children's coverage (CQ HealthBeat, 10/19). However, 10 states either increased premiums or lowered the level at which they begin charging premiums for children's coverage, according to the survey.

Reaction Diane Rowland, executive director of KCMU and executive vice president of the Kaiser Family Foundation, said, "These studies affirm the basic countercyclical nature of Medicaid. Its costs increase most rapidly when it is most in demand -- in a sluggish economy," adding, "While the fiscal crisis has subsided, state budget pressure remains because the nation relies on Medicaid to forgive the failures of our larger health system." (KCMU release, 10/19). Alan Weil, executive director of the National Academy for State Health Policy, said, "We are at a turning point in how much with think of (Medicaid) as a national program," adding, "There is tension between state and federal government, ... we need to think about who the burden is going to fall upon" (CQ HealthBeat, 10/19).

Monday, December 05, 2005

 
20 Common Nursing Home Problems ? Can You Help?

Last Updated: 11/25/2005

Topic: Nursing Home Issues

In December, the National Senior Citizens Law Center (NSCLC) will publish a new guide to nursing home laws, entitled 20 Common Nursing Home Problems, and How to Resolve Them. The guide is an adaptation and expansion of NSCLC attorney Eric Carlsons Fifteen Falsehoods presentation.

In order to publicize the guide, NSCLC would like to be able to quote nursing home residents, family members, or advocates who have encountered any one (or more) of the Twenty Problems. If you or your client has heard any one of the nursing home falsehoods listed below, please contact Eric at (213) 639-0930, ext. 313, or This email address is being protected from spambots. You need JavaScript enabled to view it.. NSCLC will not mention you or your client without express permission.

1. Medicaid does not pay for the service that you want.
2. The nursing staff will determine the care that you receive.
3. We dont have enough staff to accommodate individual schedules. You will be woken up every morning at six a.m.
4. We dont have enough staff. You should hire your own private-duty aide.
5. If we dont tie your father into his chair he may fall or wander away from the nursing home. Theres just no way we can always be watching him.
6. Your mother needs medication in order to make her more manageable.
7. We must insert a feeding tube into your father because he is taking too long to eat.
8. Your children can visit you only during visiting hours.
9. We cant admit your mother unless you sign the admission agreement as a Responsible Party.
10. Please sign this arbitration agreement. Its no big deal. Arbitration allows disputes to be resolved quickly.
11. Medicare cant pay for your nursing home care because we have determined that you need custodial care only.
12. We must discontinue therapy services because you arent making progress.
13. We cant give you therapy services because your Medicare reimbursement has expired, and Medicaid doesnt pay for therapy.
14. Because you are no longer eligible for Medicare reimbursement, you must leave this Medicare-certified bed.
15. Even though youre now financially eligible for Medicaid payment, we dont have an available Medicaid bed for you.
16. We dont have to readmit you from the hospital because your bed-hold period has expired.
17. You must pay any amount set by the nursing home for extra charges.
18. We have no available space in which residents or family members could meet.?
19. You must leave the nursing home because you are a difficult resident.?
20. You must leave the nursing home because you are refusing medical treatment.?

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November 2005

 

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Monday, November 28, 2005

 
U.S. Gives Florida a Sweeping Right to Curb Medicaid

Bottom of Form
By ROBERT PEAR

Published: October 20, 2005
WASHINGTON, Oct. 19 - The Bush administration approved a sweeping Medicaid plan for Florida on Wednesday that limits spending for many of the 2.2 million beneficiaries there and gives private health plans new freedom to limit benefits.

The Florida program, likely to be a model for many other states, shifts from the traditional Medicaid "defined benefit" plan to a "defined contribution" plan, under which the state sets a ceiling on spending for each recipient.

Children under the age of 21 and pregnant women will be exempt from the limits.
The Florida plan says, "The state will set aside a specific amount of money for each person enrolled in Medicaid," based on the person's medical condition and historic use of health care.
Michael O. Leavitt, secretary of health and human services, approved the proposal 16 days after it was formally submitted to him, with strong support from Gov. Jeb Bush.

After meeting here on Wednesday afternoon with Governor Bush, Mr. Leavitt said: "Today will be remembered as a day of transformation for the Florida Medicaid program. Florida's framework will be helpful to other states."

Joan C. Alker, a senior researcher at the Health Policy Institute of Georgetown University, said: "Florida's proposal is one of the most far-reaching and radical proposals we've seen to restructure Medicaid. The federal government and the states now decide which benefits people get. Under the Florida plan, many of those decisions will be made by private health plans, out of public view."

Vernon K. Smith, a former Medicaid director in Michigan who is now a consultant to many states, said: "Florida's program is groundbreaking. Every other state will be watching Florida's experience. South Carolina has developed a similar proposal.Georgia and Kentucky are waiting in the wings." In his state of the state speech to the Florida Legislature in March, Mr. Bush called for transforming Medicaid, saying it was unsustainable in its current form. "Over the last six years," he said, "Medicaid costs have increased an average of more than 13 percent annually. State revenues grew an average of 6 percent a year." The plan, to be put into effect over five years, will significantly increase the use of managed care. Questions and answers prepared by federal officials say that a principal aim of the Florida program is "to bring predictability to Medicaid spending and to reduce Medicaid's rate of growth." President Bush has proposed similar changes at the federal level for several years, but Congress has not accepted those ideas. In Congress, Democrats and some moderate Republicans resisted the president's proposals on the ground that they would have allowed states to reduce coverage for very poor and very sick people. On Wednesday, Mr. Leavitt waived many provisions of federal law, letting Florida make the changes in a demonstration project.

Under the waiver, Florida will establish "a maximum per year benefit limit" for each recipient and fundamentally change its role. The state will largely be a buyer rather than a manager of health care.

In an interview, Alan M. Levine, secretary of the Florida Agency for Health Care Administration, estimated that no more than 5 percent of Medicaid recipients would hit their annual limits. At that point, Mr. Levine said, "the health plan will still be responsible for providing services to the consumer, but the state's reimbursement would be limited to that amount." Asked whether the beneficiary would be responsible for paying costs beyond the limit, he said: "That can happen today. There are arbitrary limits and caps embedded in the state Medicaid program, limits on home health services, doctors' visits, prescription drugs."

For each beneficiary, Florida will pay a monthly premium to a private plan. Insurance plans will be allowed to limit "the amount, duration and scope" of services in ways that current law does not permit.

The Florida Medicaid director, Thomas W. Arnold, said he believed that insurers would tailor benefits for different groups like people with AIDS and children with chronic illnesses. About half of Medicaid recipients in Florida are children, but they account for less than 20 percent of the costs.

The Florida program includes these features, approved Wednesday by the federal government:
If a recipient does not choose a private plan, the person will be automatically enrolled in one that the state selects.

Medicaid recipients can "opt out" of Medicaid altogether and receive subsidies to help pay the employee's share of the premium for employer-sponsored health insurance. Those beneficiaries will have to pay co-payments and deductibles like other employees in the same plan, even if the charges exceed normal Medicaid limits.

The state will deposit money into individual accounts for recipients who enroll in programs to help lose weight, stop smoking and lead healthier lives. Florida and the federal government will establish a pool of money providing up to $1 billion a year to help hospitals and other health care providers who treat large numbers of uninsured people.

A spokeswoman for Mr. Leavitt, Christina Pearson, said the decision on the Florida plan was not influenced by the fact that Governor Bush is the president's brother. Federal officials are prepared to approve similar innovative solutions from other states, Ms. Pearson said.
Medicaid provides health insurance to more than 50 million low-income people. The states and federal government jointly finance it.

 
Lawsuit Filed to Protect Poor From Losing Drug Coverage Jan. 1

Last Updated: 11/15/2005

Organizations representing the interests of impoverished older and disabled Americans with Medicare filed suit November. 14 in federal district court in Manhattan seeking an order assuring that people do not lose access to life-preserving medication when the Medicare drug benefit takes effect on January 1.

Under Bush Administration plans, 6.4 million people enrolled in both Medicare and Medicaid will be denied their existing Medicaid drug coverage on January 1. The Bush Administration is then required to provide coverage to these men and women through the new Medicare Part D program.

The lawsuit seeks protections for people who are not seamlessly and immediately switched to the Medicare drug program.

The poorest, sickest, and oldest Americans face grave risk of losing their life-saving medications once the clock strikes twelve on New Years, said Robert M. Hayes, president of the Medicare Rights Center, a national consumer service group. This lawsuit seeks to force creation of an essential safety net to protect the health and lives of the frailest Americans.
The suit warns that countless numbers of poor men and women will fall through the cracks of this massive program transition,? and that these impoverished people will face the loss of medicines needed ?to function or survive.

It also says that the characteristics of the people at risk  nearly 40 percent are cognitively impaired and only 39 percent have a high school diploma will prevent up to a million poor seniors from immediately mastering the complexity of the new Medicare drug benefit so they can maintain their access to needed medicine.

Protecting the oldest, poorest and sickest Americans through this transition is a legal and moral imperative, Hayes said. If the government transitions 99 percent of these men and women flawlessly, there will still be 64,000 people without their medicine come January. That cannot be allowed.

Among the organizations that have filed the suit are: Action Alliance of Senior Citizens of Greater Philadelphia, Congress of California Seniors, Massachusetts Senior Action Council, National Alliance for the Mentally Ill: Maine, New York Statewide Senior Action Council, The Coalition of Voluntary Mental Health Agencies, Inc., United Senior Action of Indiana and the Medicare Rights Center. The organizations are being represented by volunteer attorneys with the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, and the Medicare Rights Center.
A copy of the complaint filed in federal district court in Manhattan is available athttp://www.medicarerights.org/complaint.pdf; also online is the Medicare Rights Centers report Protecting the Poorest Americans During the Medicare Drug Transition.

To read a Cleveland Plain Dealer article on the suit, click here.

Monday, November 21, 2005

 
Major Asset Transfer Restrictions Dropped From Senate Bill

Last Updated: 10/24/2005

Topic: Medicaid

Republican members of the Senate Finance Committee have reached an agreement on Medicaid and other health care budget cuts that does not include an extension of the "lookback" period for asset transfers or a change in the start of the penalty period for transferred assets.
The transfer-of-asset proposals, which many elder law attorneys viewed as harmful to their clients, were among the recommendations of the Medicaid Commission which was established to advise Congress on how to cut $10 billion from Medicaid, as called for in the 2006 budget reconciliation bill approved earlier this year.

The agreement, released by Senate Finance Committee Chair Charles Grassley (R-Iowa), does attempt to close a number of "loopholes" in Medicaid transfer rules, changes that taken together would save Medicaid an estimated $305 million over five years. Among the changes:
The purchase of a life state would be included in the definition of "assets" unless the purchaser resides in the home for at least one year after the date of purchase.

Annuities purchased by a Medicaid applicant would be subject to transfer penalties unless they are irrevocable, non-assignable, actuarially sound and provide for equal payments. Also to avoid being classed as an improper transfer, the annuity must name the state as the remainder beneficiary for at least the total amount of Medicaid expenditures or the state must be named as beneficiary after the community spouse, providing the spouse does not dispose of any of the remainder for less than fair market value.

Annuities would be Included in the definition of assets that are subject to estate recovery unless the annuity was purchased from a business that regularly sells annuities.
Funds to purchase a promissory note, loan or mortgage would be included among assets unless the repayment terms are actuarially sound, provide for equal payments and prohibit the cancellation of the balance upon the death of the lender.
States would be barred from "rounding down" fractional periods of ineligibility when determining ineligibility periods resulting from asset transfers.
States would be permitted to treat multiple transfers of assets as a single transfer and begin any penalty period on the earliest date that would apply to such transfers.

The proposed bill would also require states to give more information about undue hardship exceptions, including notice and appeal rights, and it would exempt from estate recovery individuals enrolled in either an existing or future Long-Term Care Insurance Partnership plan.
Grassley's plan cuts Medicaid by $7.6 billion over five years but adds $3.3 billion, including $1.9 billion for Medicaid coverage for hurricane victims. About $5 billion of the Medicaid savings would come from changing the payment formula for pharmacies. The plan also would provide new savings of $5.76 billion in Medicare costs, although the bill does away with a scheduled 4.4 percent cut in Medicare payments to doctors and instead gives them a 1 percent raise for a year.

The Finance Committee must vote on the plan on Monday, Oct. 24. The plan is expected to become part of a $35 billion measure of spending cuts that will be debated in the full Senate next month. The House Energy and Commerce Committee takes up similar legislation later this month. The committees cuts are expected to predominantly come from Medicaid instead of Medicare.

Capitol Hill Watch Senate Conservatives, Moderates Still Divided on Medicare, Medicaid Cuts in Reconciliation Package
[Oct 24, 2005]

The Los Angeles Times on Monday examined support and opposition among Senate Finance Committee members for committee Chair Chuck Grassley's (R-Iowa) budget reconciliation package to cut $10 billion over five years from Medicaid and Medicare (Havemann/Simon, Los Angeles Times, 10/24). The plan includes $25.1 billion in proposed spending reductions and about $15 billion in spending increases for Medicaid and Medicare. It would provide a net savings of $4.26 billion in Medicaid costs and a new savings of $5.76 billion in Medicare costs (Kaiser Daily Health Policy Report, 10/21). Committee members are scheduled to vote on the package Tuesday, a move that "could be crucial to this year's effort to rein in federal spending," the Times reports. Some conservative Republicans "are reportedly upset that the [Hurricane] Katrina aid is too generous," according to the Times. Democrats are unified in opposition to the package, meaning that Grassley must win support from all finance committee Republicans (Los Angeles Times, 10/24).

Republican Opposition Sen. Craig Thomas (R-Wyo.) is said to be "balking" over additional spending outlined in the package, CongressDaily reports. A Thomas spokesperson said he did not know how the senator will vote but indicated that Thomas has serious reservations. In addition, Sen. Jim Bunning (R-Ky.) reportedly wants the bill to include language barring specific types of intergovernmental transfers of Medicaid funds, which states sometimes use to increase federal contributions. A Bunning spokesperson said, "As it stands, he would vote against it. But we're working with the committee to try to get his concerns addressed." Finance committee moderates "insist" that language on intergovernmental transfers should not be included in the reconciliation package, CongressDaily reports. A spokesperson for Sen. Gordon Smith (R-Ore.), a committee moderate, said, "If you put language [on intergovernmental transfers] in the statute, CMS loses flexibility, states lose out and it ultimately harms beneficiaries" (Heil, CongressDaily, 10/21). Smith and Sen. Olympia Snowe (R-Maine), a fellow moderate, favor Grassley's package, according to the Times (Los Angeles Times, 10/24).

House Leaders 'Struggling' In related news, House leaders are "struggling" in their attempt to increase budget reconciliation savings from $35 billion to $50 billion, CQ Today reports. The targeted cuts include an additional $7 billion from the House Ways and Means Committee, which has some oversight of Medicare (Dennis/Higa, CQ Today, 10/21). Rep. Jeff Flake (R-Ariz.) said, "The leadership is saying they will only go to the floor if they know they have the votes. They don't have the votes" (Los Angeles Times, 10/24). Analysts from the Center on Budget and Policy Priorities on Friday in a conference call with reporters said the committee likely will look for cuts in programs other than Medicare. Robert Greenstein, executive director for CBPP, said, "There are clear indications that the House Republican leadership is reluctant to have any cuts in Medicare in reconciliation." A spokesperson for the committee on Friday said no final decisions had been made on which programs will be targeted (CQ HealthBeat, 10/21). "Even if both chambers can settle on their own totals [for cuts], they may have difficulty compromising on a package that is neither too robust for the Senate nor too anemic for the House," the Times reports (Los Angeles Times, 10/24).

Monday, November 14, 2005

 
Asset Transfer Limits Reportedly Part of Finance Committee's Latest Medicaid Proposal

Last Updated: 10/14/2005Topic: Medicaid

Senate Finance Committee Chair Chuck Grassley (R-Iowa) has presented to Republican committee members a proposal to reduce mandatory health care spending by $12 billion over five years, while making only minor cuts to the Medicaid program. Although this is $2 billion more in cuts than Congress called for, Grassley would reportedly still further tighten Medicaid's asset transfer rules.

According to CQ Today, Grassley is considering a spending package that would achieve most of its savings by shrinking Medicare payments to private insurance plans and home health agencies. For example, $6.8 billion would be saved by eliminating an incentive fund for insurers to participate in the new Medicare prescription drug benefit program. Another $5.4 billion would be saved by giving higher Medicare payments to insurers covering sicker patients and lower payments to insurers that enroll healthier patients.

But among his Medicaid reductions, Grassley would save a projected $1.5 billion to $2 billion by making it more difficult for the elderly to transfer assets and qualify for Medicaid. His proposals would presumably follow the recommendations of theMedicaid Commission, which was established to advise Congress on how to cut $10 billion from Medicaid, as called for in the fiscal year 2006 budget resolution agreement earlier this year. The Commission proposed moving the start date of any penalty period from the date of the transfer to the date of application for Medicaid or the nursing home admission date, whichever is later, and increasing the "lookback" period for all transfers to five years. (The Senate Finance Committee had not replied to inquiries at press time.)

In an October 7 letter to Grassley, AARP CEO William Novelli said that while AARP could accept steps to encourage people to save money for long-term care, changing asset transfer rules could result in the denial of care.

The budget resolution agreement also requires $70 billion in tax cuts.
The House Energy and Commerce Committee also is reportedly considering an adjustment to Medicaid prescription drug payments that is similar to what the Senate Finance Committee is proposing. House leaders delayed the fiscal year 2006 budget reconciliation deadline until October 28 to give authorizing committees time to reach a new target of $50 billion in cuts (up from $35 million) from mandatory programs, including Medicaid. The Senate so far has no plans to amend the budget resolution and is scheduling an October 26 markup by the Senate Budget Committee.

According to the National Senior Citizens Law Center's Oct. 14 Washington Weekly, an unsigned document titled "21st Century Medicaid Reforms" circulating through Capital Hill was identified as the Republicans? Medicaid-cutting blueprint. Among other provisions, the document proposes to strengthen the penalties for asset transfers and grant states the flexibility to narrow the package of Medicaid benefits.

Monday, November 07, 2005

 
A 'Low-Frills' Long-Term Care Insurance Policy May Be Better Bet

Last Updated: 11/7/2005

Topic: Long-Term Care Insurance

When it comes to long-term care insurance, many people are intimidated by high costs and the bewildering array of benefit levels, deductible periods and other features, according to a recent article in The New York Times that examines the low popularity of this insurance.

In fact, only 10 percent of people over 65 own policies. Long-term care coverage often requires a lifetime commitment to one insurer; premiums can rise sharply if the policyholder switches, and policyholders can pay premiums for decades with no way to predict if their coverage is what they will need.

The article suggests that a lesser-frills policy, though still costly, may provide a more attractive safety net for many risk-averse elderly people.

For example, a new study shows that only a small percentage of policyholders need long-term care for long periods -- four years or more. The study, released in April, found that only 3.6 percent of claims filed for nursing home, assisted living and home services were for care that lasted four to five years, and 4.3 percent were for care lasting more than five years. In 76.7 percent of claims, care lasted less than two years.

So a growing number of specialists recommend more modest policies for which the policyholder pays a bigger share of the costs.

"Some insurance agents still strongly believe that people should buy the maximum possible for a policy to be worthwhile," said Dawn Helwig, a principal of Milliman Inc., and co-author of the study on insurance claims. "But those policies are very expensive. It puts you into the Cadillac market all the time, and a lot of Chevy owners are missed."

"I would go for four or five years of coverage, but for someone who has limited income and assets, three years should be satisfactory," Helwig said. Also, the article points out that not everyone needs long-term-care insurance. People with a net worth of $1 million to $1.5 million, not including the family home, could pay the cost out of their pocket, said John E. Ryan of Ryan Insurance Strategy Consultants in Greenwood Village, Colorado.

At the other extreme, those with a net worth of less than $250,000 may not have enough liquid assets to warrant paying premiums for years, Ryan said. They may be better off receiving benefits from state Medicaid programs.

To read the full New York Times article, click here or here.

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Monday, October 31, 2005

Medicaid Commission Submits Propodals for Program Cuts

 Medicaid Commission Submits Proposals for Program Cuts

Last Updated: 10/31/2005

Topic: Medicaid

Charged with the task of finding ways to trim $10 billion from the Medicaid program over five years, the federal Medicaid commission has submitted a report to Congress that it says will reduce Medicaid spending by $11 billion.

To no one's surprise, among the commission's recommendations are proposals to delay Medicaid eligibility for individuals who transfer assets for less than fair market value. Taken together, the transfer rule changes would allegedly save about $1.5 billion over five years.

The commission would save $1.4 billion of this by "moving the start date of penalty period from the date of the transfer to the date of application for Medicaid or the nursing home admission date, whichever is later." The panel also recommends increasing the "lookback" period for all transfers from 36 months to 5 years. This would save "less than $100 million" over five years, according to the commission.

The lion's share of Medicaid savings -- $4.3 billion over five years ? would come from changing the way state programs buy drugs and how pharmaceutical companies report data. Also, Medicaid beneficiaries above the federal poverty level would be required to contribute more to the cost of prescription drugs not on a state's preferred list, a change anticipated to save another $2 billion.

The Medicaid cuts were called for in the 2006 budget resolution agreed to by the House and Senate earlier this year. In addition to the Medicaid spending reduction the first sustained by the program since 1997 the budget resolution called for the creation of a study commission to recommend where the cuts should be made and offer advice on longer-term changes to the Medicaid program.

The commission, appointed by Health and Human Services Secretary Michael Leavitt, took a little more than a month to study the Medicaid program and issue its recommendations. The commission held two meetings over three days and heard presentations from a total of five individuals, according to the Centers for Medicare & Medicaid Services' Web site. A second commission report, focusing on recommendations for stabilizing Medicaid over the long term, is due Dec. 31, 2006.

Senate Finance Committee Chair Chuck Grassley (R-Iowa) called the commission's recommendations "constructive" and said his committee would consider them as it explores ways to reduce Medicaid's growth by $10 billion over five years. As previously reported, Republican members of the Senate Finance Committee appear headed for a fight over whether to spare the Medicaid program drastic cuts by trimming the growth of Medicare.

See GOP Senators Split on Whether to Cut Medicaid By $10 Billion.

For the full commission report, click here.

Two days before the commission issued its recommendations, The National Governors Association (NGA) weighed in with its own guidance for Congress on how to secure the $10 billion in Medicaid savings. The NGA recommendations include the following:

"Asset Transfer. States should have increased ability to prevent inappropriate transfer of assets by seniors to qualify for Medicaid. To that end, 1) the look-back period should be increased from 3 to 5 years; 2) penalty periods should begin at the time of application; and 3) the sheltering of excess resources in annuities, trusts or promissory notes must be prevented."

The report goes on to state that "Home equity should be considered a countable asset in order to require individuals to use home equity to off-set long-term and other medical expenses that would otherwise be paid by Medicaid." It also calls for reforms to facilitate the use of reverse mortgages to convert home equity into cash, as well as the expansion of Long-Term Care Insurance Partnership programs.

For the NGA's recommendations, click here.

Monday, October 24, 2005

Homestead Property Not Specifically Devised in Will Passes To Residuary Devisees

Last Updated: 10/16/2005


The Florida Supreme Court rules that if a decedent does not have a surviving spouse or child, homestead property that is not specifically devised passes to the residuary devisees, not the general estate. McKean v. Warburton (Fl., No. SC04-1243, September 8, 2005).

Henry Pratt McKean II had a will leaving a specific cash bequest of $150,000 to Peter Warburton and the remainder to his brothers. When he died, he had only a homestead property valued at $140,000 and nominal assets. Without the homestead property, the estate's assets did not satisfy creditor's claims and the specific bequest.

Mr. Warburton argued that the homestead property should be used to fund his specific bequest. Mr. McKean's brothers argued that it should pass to them through the residuary clause.

The court of appeals ruled that Mr. Warburton was entitled to the property (Warburton v. McKean, January 19, 2004). It held that because a homestead can be freely devised if there is no surviving spouse or minor child, the homestead becomes property of the estate and is subject to division in accordance with the established classifications giving some gifts priority over others.

The Supreme Court of Florida reverses, holding that if a decedent is not survived by a spouse or minor child, the decedent's homestead property passes to the residuary devisees, unless the testator specifically orders the property to be sold and the proceeds made a part of the general estate. According to the court, "while it is true that a decedent may devise protected homestead property in his or her will if there is no surviving spouse or minor child, the property may only pass as a general asset of the estate by a specific devise."

To download the full text of this decision in PDF format, go to: http://www.floridasupremecourt.org/decisions/2005/sc04-1243.pdf and click on "Opinions." (If you do not have the free PDF reader installed on your computer, download it here.)

Monday, October 17, 2005

Hurricane Katrina Now Affecting Medicaid, Medicare and Social Security Legislation

Last Updated: 10/17/2005

Senate Majority Leader, Bill Frist (R-Tenn.), says that $10 billion in cuts to Medicaid requested by the Bush administration will have to be weighed against the need to provide health care to victims of Hurricane Katrina. Thousands of people have lost health insurance through their employer, so the demand on Medicaid may grow, according to an article in the Palm Beach Post. In May, the House and Senate passed a budget resolutionto reduce Medicaid spending by $10 billion over five years. Frist said that Congress should still look at reducing Medicaid costs by considering changes that would eliminate waste, fraud, and abuse, but not by cutting back on care.

While cuts to Medicaid may not be made, the costs associated with Hurricane Katrina are having the opposite effect on efforts to reverse a scheduled 4.3 percent reduction in Medicare physician payments. According to the Kaiser Daily Health Policy Report, several Senate staffers have questioned whether Congress will be willing or able to reverse the payment reduction because reversing the pay reduction would cost between $153 billion and $183 billion over 10 years. However, many doctors have said they will no longer treat Medicare recipients if the cuts go through.

Hurricane Katrina is also having an effect on proposed reforms to Social Security. According to an article in the Washington Post, Republican Congressional Committee Chairman, Thomas Reynolds (R-N.Y.), will recommend that the party drop efforts to restructure Social Security. He told a group of Republicans that now that Congress had Hurricane Katrina legislation to deal with, it would be difficult to mount an effective public relations campaign to restructure Social Security.

Meanwhile, the Senate is moving to provide Medicaid coverage to survivors of Hurricane Katrina. Senate Finance Committee Chair Chuck Grassley (R-Iowa) and Senator Max Baucus (D-Mont.) have introduced a bill to temporarily extend Medicaid coverage to displaced residents of Louisiana, Mississippi, and parts of Alabama. According to the Kaiser Daily Health Policy Report, the bill would require the federal government to pay 100 percent of Medicaid costs for five months, with an option to extend coverage for an additional five months.

In addition, the federal government would pay through 2006 100 percent of the costs for Medicaid beneficiaries in the affected states. Other provisions in the bill would eliminate asset tests, establish a fund to help survivors with private health insurance bills, and eliminate penalties for missed application deadlines for survivors.

Monday, October 10, 2005

Opinion Piece Calls for Full Federal Coverage of Long-Term Care

Last Updated: 9/2/2005

Topic: Medicaid

Medicaid "has become a lifeline for millions of people who require nursing home care," and "simply cutting the program won't work," two professors write in a Los Angeles Times opinion piece that has been widely reprinted around the nation.

Jacob Hacker, a professor of political science at Yale University, and Harold Pollack, faculty chair of the University of Chicago's Center for Health Administration Studies, write that the real problem with Medicaid "isn't well-off senior citizens gaming the system" but rather that "few Americans have reliable and effective private alternatives that can protect them if they require long-term care." The authors say that long-term care insurance, touted as an alternative to Medicaid, "will never work for millions of Americans." Insurers themselves cannot reliably price such insurance due to uncertainties about the future costs of care, they contend.

Rather than pursuing the home equity of widows with Alzheimer's disease, "the federal government should pay for long-term care through Medicare, openly, for every American," Hacker and Pollack say. Doing so would give the elderly and disabled through the front door what they are now gaining through the backdoor under Medicaid, and would "protect everyone from one of life's most frightening risks."

To read the full Los Angeles Times article, "Health cuts are the real 'death tax'," click here.

Monday, October 03, 2005

GOP Senators Split on Whether to Cut Medicaid By $10 Billion

GOP Senators Split on Whether to Cut Medicaid By $10 Billion

Last Updated: 10/3/2005 Topic: Medicaid

Republican members of the Senate Finance Committee appear headed for a fight over whether to trim the growth of Medicare in order to spare the Medicaid program from drastic cuts. Congress's fiscal year 2006 budget resolution calls for cutting Medicaid by $10 billion over the next five years, but the resolution left open where the reductions should be made. Among the proposals is to tighten restrictions on the ability of the elderly to qualify for Medicaid coverage of nursing home care by transferring assets. The Finance Committee must submit a final proposal by September 16.

Committee Chair Chuck Grassley (R-Iowa) favors a proposal that would reduce Medicaid spending only, while Sens. Olympia Snowe (R-Maine) and Gordon Smith (R-Ore.) "have been working on ways to reduce the Medicaid cuts," such as finding ways to trim Medicare spending, according to CQ Today.

Demetrios Karoutsos, a spokesperson for Sen. Smith, said, "We certainly think there is room to reduce Medicare," adding, "Smith's goal throughout this entire process is to find ways that don't impact beneficiaries." A spokesperson for Sen. Snowe, Antonia Ferrier, said, "Taking $10 billion from Medicaid would be a wrong-headed approach. There are a lot of other things that we are open to exploring. That could very well be savings from Medicare as well."

AARP is urging lawmakers not to slash $10 billion from Medicaid, arguing that seniors will have more difficulty qualifying for nursing home care if the funds are cut. The organization suggests that savings can be realized through more efficient prescription drug spending by Medicaid.
In a letter to Congress, AARP and close to 40 other members of the Leadership Council of Aging Organizations (LCAO) opposed the proposals to further restrict the ability of the elderly to transfer assets, stating in part that the proposals "will create unacceptable new obstacles to nursing home admission for vulnerable, frail elderly and disabled persons" Other signatories to the letter included the National Senior Citizens Law Center, Families USA, the National Academy of Elder Law Attorneys, the AFL-CIO, AARP, and the National Citizens Coalition for Nursing Home Reform.

New Hampshire Seeks to Restrict Transfers on Its Own While Congress considers changing the asset transfer rules for the entire country, New Hampshire will soon be asking the federal Centers for Medicare and Medicaid Services for permission to impose on its residents the same restrictions. The New Hampshire Medicaid agencys proposal, among other things, increases the "lookback" period for all transfers from 36 months to 60 months and begins the Medicaid penalty period on the date on which an applicant applies for coverage or meets all eligibility requirements, whichever is later. (Currently, the penalty period begins on the first day of the month of the transfer.)

To review the New Hampshire draft waiver request, go to:http://www.dhhs.nh.gov/DHHS/OCOM/GraniteCare/HB691-waiver-assets.htmsee

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Monday, September 26, 2005

Nursing Home May Recover Unpaid Bills From Transfer Recipients

 
Nursing Home May Recover Unpaid Bills From Transfer Recipients

Last Updated: 9/26/2005 Topic: Medicaid

A nursing home may recover a judgment for amounts owed from the daughters of a former resident. The daughters were the recipients of asset transfers that rendered the resident no longer eligible for Medicaid. Beverly Healthcare v. Gammon(Tenn. Ct. App., No. M2003-03117-COA-R3-CV, Aug. 18, 2005). unpublished opinion

Charles Leath was admitted to a nursing home facility operated by Beverly Healthcare on February 28, 1997, and began receiving Medicaid benefits that April. Mr. Leath's home was exempted from the asset calculation because of his intention to return to it. On September 30, 1999, on the advice of elder law attorney Tim Takacs (erroneously spelled "Tackus" in the opinion), Mr. Leath sold his home to his daughter Betty Gammon for its fair market value. Shortly after the sale, Ms. Gammon, who handled her father's financial affairs under a power of attorney, distributed part of the proceeds from the sale to herself and Mr. Leath's other two daughters. In addition, the three daughters entered into a "Service and Life Care Agreement" drafted by Mr. Takacs whereby they agreed to perform certain services for their father for payment of $5,000 each.

In February of 2000, Mr. Leath was found ineligible for Medicaid benefits because the transfers to the daughters were determined to be improper, a decision that was affirmed by a trial court. Mr. Leath remained at the facility until June 25, 2001. Beverly Healthcare obtained a judgment against Mr. Leath for $16,972.45 some two weeks before his death on August 14, 2001.

Unable to collect the judgment from Mr. Leath or his estate, Beverly sought to recover the amount from Mr. Leath's daughters on the basis that the transfers to them were fraudulent because Mr. Leath allegedly intended or believed that debts would accrue beyond his ability to pay. The trial court agreed that the transfers constituted fraudulent conveyances. "The only apparent purpose for the transfers," the court wrote, "was to somehow have Medicare [sic] pay for all of their father's care without having to consume any of their father's assets." The court found the daughters liable for three months of unpaid bills totaling $9,891.92, plus $7,670 in attorney's fees and costs. Two of the sisters appealed.

The Court of Appeals of Tennessee affirms. "The sale of his house," the court writes, "made [Mr. Leath] ineligible for Medicaid and increased his monthly obligation to [the facility]. In that situation, it was to be anticipated that the amounts owed [the facility] would exceed Mr. Leath's assets . . . " The court also rules that the provision governing attorney's fees in Beverly's admission agreement allows the facility to recover attorney's fees not just in litigation against Mr. Leath but also in litigation to collect the judgment.

To download the full text of this decision in WordPerfect format, go to:
http://www.tsc.state.tn.us/opinions/tca/053/BeverlyOpn.wpd.

Monday, September 19, 2005

Opinion Piece Calls for Full Federal Coverage of Long-Term Care

Opinion Piece Calls for Full Federal Coverage of Long-Term Care

Last Updated: 9/19/2005 Topic: Medicaid

Medicaid "has become a lifeline for millions of people who require nursing home care," and "simply cutting the program won't work," two professors write in a Los Angeles Times opinion piece.

Jacob Hacker, a professor of political science at Yale University, and Harold Pollack, faculty chair of the University of Chicago's Center for Health Administration Studies, write that the real problem with Medicaid "isn't well-off senior citizens gaming the system" but rather that "few Americans have reliable and effective private alternatives that can protect them if they require long-term care."

The authors say that long-term care insurance, touted as an alternative to Medicaid, "will never work for millions of Americans." Insurers themselves cannot reliably price such insurance due to uncertainties about the future costs of care, they contend.

Rather than pursuing the home equity of widows with Alzheimer's disease, "the federal government should pay for long-term care through Medicare, openly, for every American," Hacker and Pollack say. Doing so would give the elderly and disabled through the front door what they are now gaining through the backdoor under Medicaid, and would "protect everyone from one of life's most frightening risks."

To read the full Los Angeles Times article, "Health cuts are the real 'death tax'," click here.

Monday, September 12, 2005

Nursing Homes Must Give Flu Shots, Medicare, Medicaid Say

Nursing Homes Must Give Flu Shots: Medicare, Medicaid Say

Sep. 12, 2005 - Nursing homes serving Medicare and Medicaid patients would have to provide immunizations against influenza and pneumococcal disease to all residents if they want to continue in the programs, according to a proposed rule to be released by CMS in the August 15 Federal Register.

Unless refused by the patient or patients family or for medical reasons, nursing homes would be required to ensure that each resident received the immunizations as a condition of participation in the two programs.

About two million Americans, most senior citizens age 65 years or older, live in long-term care facilities. People aged 65 years and older account for more than 90 percent of influenza-related deaths in the United States and elderly nursing home residents are particularly vulnerable to influenza-related complications. In addition, the elderly are more likely than younger individuals to die from pneumonia.
In light of these statistics and in line with the agencys Nursing Home Quality Initiative, CMS received input from the Centers for Disease Control and Prevention (CDC) and two of the nations largest nursing home industry trade groups, the American Association of Homes and Services for the Aging and the American Health Care Association, in developing the proposed rule.

?Improving immunization is a key element of our quality improvement strategy a strategy that is focused on preventing illnesses and complications in the first place, said Mark B. McClellan, M.D., Ph.D., administrator of CMS. The outstanding commitment of the nursing home industry, caregivers and other stakeholders makes clear that his commitment to better quality through more effective immunization is shared and achievable.

?As a physician, I know the impact that influenza and pneumococcal infections can have on the elderly, particularly those in nursing homes, he added. Greater use of flu shots and pneumococcal vaccine in nursing homes is a proven approach to better health and fewer costly complications for one of our most vulnerable groups of beneficiaries.

In its collaborative effort to improve quality of care, CMS is also encouraging nursing homes to provide influenza vaccine to their healthcare workers. Although the vaccine for these workers will not be required in the proposed regulation, immunizing nursing home workers has been shown to reduce mortality rates among residents of long-term care facilities. Research from last years flu season revealed that only 36 percent of all healthcare workers were vaccinated against the illness.

?Healthcare workers play a vital role in protecting the health of one of our nations most vulnerable populations the elderly and disabled who live in nursing facilities, said Julie Gerberding, M.D., director of the Centers for Disease Control and Prevention. ?This initiative is critical to ensuring they receive the best quality healthcare.

A 1999 national nursing home survey showed that 65 percent of residents had documented influenza shots and only 38 percent had been inoculated against bacterial pneumonia. A goal of this proposed rule is to attain a target rate of 90 percent for both vaccinations. As an added incentive to increase immunization rates, in January, CMS increased the average Medicare payment rate for administering each shot from $8 to $18, in addition to a separate payment for the cost of the vaccine. Medicaid payment rates are set independently by each state.
As a Medicare condition of participation, the rule proposes that long-term care facilities ensure that each resident is: offered influenza immunization annually; immunized against influenza unless medically contraindicated or when the resident or the residents legal representative refuses immunization; offered pneumococcal immunization once if there is no history of immunization; and immunized against pneumococcal disease unless medically contraindicated or when the resident or the residents legal representative refuses immunization. In the case of a vaccine shortage as declared by CDC, state survey agencies would have the discretion not cite facilities for being out‑of?‑compliance with this requirement. ?Vaccines against these diseases are effective in preventing hospitalizations and death,? said Dr. McClellan. ?However, many at-risk people are not getting the vaccines they need. This initiative will be critical to maintaining high-quality care in the nations long-term care facilities.? Because of the impending influenza season, this expedited proposed rule will have a 15-day comment period.

To review the proposal, go to the Federal Register Web site athttp://www.gpo.gov/.

Monday, September 05, 2005

Parol Evidence From Drafting Attorney Needed to Clear Up Ambiguous Will

A Florida appeals court rules that an affidavit from the attorney who drew up a will may be used to clear up an ambiguity in the will. Harbie v. Falk (Fla. Dist. Ct. App., No. 3D04-3041, July 6, 2005).

Youssef Harbie was married with a daughter. He also had a son from a previous marriage. Mr. Harbie executed a will that left his estate to his "children." The will also stated that Mr. Harbie's daughter was his only child. When Mr. Harbie died, his son claimed a share of the estate as one of his children.

The estate argued Mr. Harbie's son was not a beneficiary under the will. In support of this position, it filed an affidavit by the attorney who drew up the will. The attorney said he used the term "children" only to refer to future children and that he had no knowledge of another son when he drafted the will. The trial court found for the estate, and Mr. Harbie's son appealed.
The District Court of Appeal of Florida, Third District, affirms. The court holds that because the will was ambiguous, the court could look at parol evidence to determine the meaning of the will, and the attorney's affidavit cleared up the ambiguity.

To download the full text of this decision in PDF format, go to:http://www.3dca.flcourts.org/ and click on "Opinions."

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Monday, August 29, 2005

Alzheimer's Victim May Have Had Capacity to Execute Deedslast

 
Alzheimer's Victim May Have Had Capacity to Execute DeedsLast Updated: 8/28/2005

Reversing lower courts, the Alabama Supreme Court rules that an elderly man's diagnosis of Alzheimer's disease and severe short-term memory loss do not necessarily mean he lacked the capacity to execute a deed. Ex parte Chris Langley Timber & Management, Inc.(Ala., No. 1031478, July 22, 2005.

Two days after being released from a long-term-care hospital to recover from heart surgery, Clayton M. Reynolds was evaluated by a clinical psychologist, who concluded that Mr. Reynolds was suffering from Alzheimer's disease. The psychologist administered a memory test that revealed that Mr. Reynolds could not retain new information for 30 minutes. Some months later, Mr. Reynolds contacted Chris Langley Timber & Management, Inc., about harvesting timber from land he owned. Mr. Reynolds provided Mr. Langley with copies a power of attorney held by one of his daughters and the psychologist's report, but assured Mr. Langley that he owned the timber and that he wanted to sell it.

After Mr. Reynolds executed the timber deeds, his two daughters sought to have them set aside on the ground that he lacked capacity. Mr. Reynolds died while the case was pending and a special administrator for his estate was substituted. Finding that Mr. Reynolds was mentally incompetent when he executed the deeds, the trial court entered a summary judgment in favor of the estate and set aside the deeds. The Court of Civil Appeals affirmed and Langley appealed.
The Supreme Court of Alabama reverses and remands. "It is not clear how severe short-term memory loss, which is all that [the psychologist's] testimony appears to establish Reynolds suffered from," the court writes, "demonstrates that Reynolds was unable to 'understand in a reasonable manner the nature and effect of' executing the timber deeds." The court rules that the estate failed to prove that a diagnosis of Alzheimer's disease equals permanent insanity, and that therefore the appellate court erred in shifting to the timber company the burden of proof of Mr. Reynolds's capacity to execute the deeds.

 

New Study Questions Benefit of Estate Recovery Programs Last

 
Updated: 8/29/2005 Topic: Medicaid

In 1993, Congress passed a law requiring that states try to recover from the estates of deceased Medicaid recipients whatever benefits they paid for the recipient's care. In recent years, states have been stepping up their estate recovery efforts in an attempt to bolster distressed Medicaid budgets.

But a new study reveals that estate recovery programs have so far collected at most only pennies on the Medicaid long-term care dollar and in most cases, less than a penny. The nationwide study of state Medicaid estate recovery practices by the American Bar Associations Commission on Law and Aging questions whether, given the small amount of money recouped, estate recovery is worth the human cost.

The study, conducted in 2004 and supported by AARP, found that estate recovery revenues as a percentage of state Medicaid long-term care expenses ranged from .01 percent (Louisiana) to 2.2 percent (Oregon), with only eight states above 1 percent. The average amount of Medicaid costs that states recovered per estate in 2003 was $8,116 nationwide and ranged from a low of $93 per estate in Louisiana to $25,139 in Hawaii.

In addition, investigators found that a number of states appear to be violating federal Medicaid law in trying to raise even these modest amounts.

The authors note that their survey focused on the dollars and cents impact of estate recovery, and did not seek to answer the human questions that arise in connection with estate recovery, such as whether it keeps people from applying for Medicaid benefits when they need them or impoverishes the spouses of nursing home residents. These, the authors maintain, are questions that must be answered.

"It is still an open question whether the costs justify the financial benefit to the states," they conclude.

To download the full report, "Medicaid Estate Recovery: A 2004 Survey of State Programs and Practices," or read a summary of it, click here.

The study was featured in a front-page article on estate recovery in the June 24 edition of The Wall Street Journal. To read the article reprinted in the Pittsburgh Post-Gazette, "Some Heirs Find A Costly Surprise: Medicaid Bill," click here.

 

Monday, August 22, 2005

Bitamin B Rich Folates Significantly Reduce Alzheimer's Disease Risk

 
Vitamin B Rich Folates Significantly Reduce Alzheimers Disease Risk
Beats antioxidants, like vitamin E, and other nutrients for health of aging brain in study of senior citizens

Aug. 12, 2005- A study of senior citizens says those who eat the daily recommended allowance of folates B vitamin nutrients found in oranges, legumes, leafy green vegetables and folic acid supplements significantly reduce their risk of developing Alzheimers disease.

The study, a long-term look at diet and brain aging by the National Institute on Aging, also found that folates appear to have more impact on reducing Alzheimer's risk than vitamin E, a noted antioxidant, and other nutrients considered for their effect as a brain-aging deterrent.
Ultimately, 57 of the original 579 participants in the study developed Alzheimer's disease. But the researchers found that those with higher intake of folates, vitamin E and vitamin B6 shared lower comparative rates of the disease. And when the three vitamins were analyzed together, only folates were associated with a significantly decreased risk.

In turn, no association was found between vitamin C, carotenoids (such as beta-carotene) or vitamin B-12 intake and decreased Alzheimer's risk.

Maria Corrada and Dr. Claudia Kawas of UC Irvine's Institute for Brain Aging and Dementia led the effort, which analyzed the diets of non-demented men and women age 60 and older.
"Although folates appear to be more beneficial than other nutrients, the primary message should be that overall healthy diets seem to have an impact on limiting Alzheimer's disease risk," said Corrada, who like Kawas started with the study while at Johns Hopkins University in Baltimore.

They compared the food nutrient and supplement intake of those who later developed Alzheimer's disease to the intake of those who did not develop the disease. It is the largest study to date to report on the association between folate intake and Alzheimer's risk and to analyze antioxidants and B vitamins simultaneously.

Results appear in the inaugural issue of the quarterly peer-reviewed research journal, Alzheimer's & Dementia: The Journal of the Alzheimer's Association.

The researchers used data from the Baltimore Longitudinal Study of Aging to identify the relationship between dietary factors and Alzheimer's disease risk. Between 1984 and 1991, study volunteers provided detailed dietary diaries, which included supplement intake and calorie amounts, for a typical seven-day period.

"The participants who had intakes at or above the 400-microgram recommended dietary allowance of folates had a 55-percent reduction in risk of developing Alzheimer's," said Corrada, an assistant professor of neurology. "But most people who reached that level did so by taking folic acid supplements, which suggests that many people do not get the recommended amounts of folates in their diets."

Folates have already been proven to reduce birth defects, and research suggests that they are beneficial to warding off heart disease and strokes.

Although folates are abundant in foods such as liver, kidneys, yeast, fruits (like bananas and oranges), leafy vegetables, whole-wheat bread, lima beans, eggs and milk, they are often destroyed by cooking or processing. Because of their link to reducing birth defects, folates have been added to grain products sold in the U.S. since 1998. But even with this supplement, it is thought that many Americans have folate-deficient diets.

Recent research is beginning to show relationships between folates and brain aging.
Earlier this year, Dutch scientists showed that adults who took 800 micrograms of folic acid daily had significant improved memory test scores, giving evidence that folates can slow cognitive decline.

"Given the observational nature of this study, it is still possible that other unmeasured factors also may be responsible for this reduction in risk," said Kawas, the Al and Trish Nichols Chair in Clinical Neuroscience. "People with a high intake of one nutrient are likely to have a high intake of several other nutrients and may generally have a healthy lifestyle. But further research and clinical studies on this subject will be necessary."

Judith Hallfrisch of the U.S. Department of Agriculture, Denis Muller with the National Institute on Aging and Ron Brookmeyer with Johns Hopkins collaborated on the study, which was originally undertaken at the Gerontology Research Center of the NIA and the Department of Neurology at Johns Hopkins. Study funding came from the Extramural Programs of the NIA.
Begun in 1958 by the NIA, the Baltimore Longitudinal Study of Aging is America's longest-running scientific study of human aging. BLSA scientists are learning what happens as people age and how to sort out changes due to aging from those due to disease or other causes. More than 1,400 men and women are study volunteers. For more information, see: www.grc.nia.nih.gov/branches/blsa/blsa.htm.

 

Monday, August 15, 2005

 
A new Pennsylvania law places new restrictions on the rules governing qualification for Medicaid-financed long-term care services in the state. "Act 42," as it is now known, was proposed by Gov. Edward Rendell as part of his 2005-2006 fiscal year budget was enacted July 7, 2005.

The new law: Imposes fractional penalties for asset transfers. Long-term care services applicants or recipients will now be ineligible based on any partial months resulting from transfers, rather than the previous practice of rounding down to the nearest whole month.
Limits the use of the "resource-first" approach in boosting a community spouse's income. Under the new law the community spouse will be allowed to keep only enough additional resources to purchase an immediate annuity that names the state as a beneficiary.

Attempts to deal with Life Estate with Retained Powers (LERP) arrangements. Under Pennsylvania's current law, estate recovery is limited to the probate estate of the deceased recipient of Medical Assistance benefits. The new law allows the state to require applicants to exercise any powers they retain in life estate ownership arrangements in order to limit Medicaid costs, such as exercising a power to revoke a remainder interest and return a home to the sole ownership of the applicant, where it could later be subject to estate recovery.

Restricts the use of annuities. The new law voids restrictions on the marketability of immediate annuities so that the payment stream can be sold by the owner and thus converted from income into a lump sum resource available to pay for care. These marketability rules will not apply to commercial annuities that meet certain safe harbor provisions, including that the state be named as the residual beneficiary of any remaining funds.

Requires that Medicaid's spousal resource attribution and impoverishment rules be applied to Medicaid-funded home care. Previously, the assets of the community spouse were disregarded in determining qualification for Medicaid-financed home care.

Places new limits on the deductibility of unpaid medical expenses. Only medical expenses incurred on or after the first day of the third month before the month of application may be deducted from countable income, and the law places a $10,000 lifetime limit on the deduction of medical expenses not paid by Medicaid from a recipients income.

Creates new rules for special needs trusts, including that the state be reimbursed from any remaining funds.

"Act 42 places complicated new restrictions on eligibility for Medicaid financed long-term care services," says Williamsport, Pa., Jeffrey Marshall. "It reduces the resources that can be protected by low-income community spouses, and will make it much more difficult for married seniors to qualify for Medicaid-funded home care benefits."

"The act's changes are complex and ambiguous," Marshall adds. "They will raise administrative and legal barriers and costs for seniors who are seeking Medicaid. Some of the new provisions appear to conflict with federal law."

Here is a link to the new provisions:

http://www2.legis.state.pa.us/WU01/LI/BI/BT/2005/0/HB1168P2560.pdf

 

Monday, August 08, 2005

Group Claims Filial Responsibility Laws Will Save On Medicaid Costs

 
Group Claims Filial Responsibility Laws Will Save on Medicaid Costs Last Updated: 8/29/2005

A conservative policy group has released an issue brief proposing that states begin enforcing filial responsibility laws in order to reduce long-term care costs. Thirty states have filial responsibility laws that require adult children to care for their indigent parents. The National Center for Policy Analysis claims that if these statutes are enforced, adult children would have to reimburse the state programs that provided care for their indigent parents.

Filial responsibility laws have traditionally not been enforced, possibly because federal law prohibits state Medicaid programs from looking at the finances of anyone other than the applicant or the applicant's spouse. The NCPA, a group whose goal is to develop and promote private alternatives to government regulation and control, cites a 1983 report by the Health Care Financing Administration that says enforcing these statutes would have reduced Medicaid long-term care spending by $25 million, and argues that today the figure would be much higher.
To read the full brief, click here.

 

Monday, August 01, 2005

CCRC Provision Prohibiting Medicaid Spend Down Is Unenforceable

 
Maryland's highest court rules that a continuing care retirement community's (CCRC) requirement that residents not spend down assets to qualify for Medicaid without the CCRC's prior approval violates state Medicaid law, at least in cases where residents are admitted directly into the CCRC's nursing unit. Oak Crest Village, Inc., v. Murphy (Md., No. 27/03, Feb. 9, 2004).

In November 2001, Ruth and Sherwood Murphy moved to Oak Crest Village, a CCRC. Mrs. Murphy, then 81, moved into an independent living apartment, while her husband, then 94, was admitted directly into a Medicaid-certified nursing facility that is part of the CCRC. As a condition of their acceptance into the CCRC, the Murphys had to sign a Residence and Care Agreement that included an anti-alienation provision requiring the Murphys not to sell or transfer, without prior consent of Oak Crest, any assets if the sale or transfer would result in their net worth falling below the minimum necessary to become an Oak Crest resident.
Shortly after their move to Oak Crest, Mrs. Murphy used nearly $300,000 of the couple's assets to purchase annuities payable to her. Mr. Murphy subsequently applied for and became eligible for Medicaid benefits. Oak Crest sued the Murphys, alleging a violation of the anti-alienation provision of its Residence and Care Agreement. Mr. Murphy moved to dismiss the complaint, asserting that Oak Crest's agreement violated state and federal statutes precluding a Medicaid-certified facility from requiring residents to pay the private pay rate when they are eligible for Medicaid benefits. The circuit court agreed with Mr. Murphy and held that the agreement's anti-alienation provision was invalid.

The Court of Appeals of Maryland, the state's highest court, affirms. The anti-alienation provision, the court writes, "effectively requires that [Mr. Murphy] continue to pay at the private pay rate even when he would be or could lawfully become eligible for Medicaid benefits, contrary to [the relevant state Medicaid statute], and permits him to be discharged from a Medicaid certified nursing facility because he is a Medicaid recipient, contrary to [the relevant state statute]." The court rejects Oak Crest's argument that the relevant statute applies only to nursing facilities and that Oak Crest, as a continuing care community, is not a nursing facility. However, the court holds that the anti-alienation provision is permissible in a contract for independent or assisted living. The court does not address whether a resident's move from a CCRC's independent or assisted living unit to its nursing unit would require temporary suspension of the anti-alienation provision.

To download the full text of this decision in PDF format, go to:http://www.courts.state.md.us/opinions/coa/2004/27a03.pdf.

 
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July 2005

Monday, July 25, 2005

Nursing Home Violated resident's Rights

 A California appeals court rules that a nursing home violated transfer and discharge requirements when it discharged an allegedly aggressive resident without prior notice and without providing notice of bed hold policies. Kindred Nursing Centers West v. Cal. Health and Human Services Agency (Cal. Ct. App., 4th, Div. 1, No. D044215, June 22, 2005). unpublished opinion

On January 8, 2004, at 1:40 a.m., Kindred Nursing Centers West, LLC, dba Village Square Nursing and Rehabilitation Center, transferred Morteza Kashaninia to a hospital emergency room, claiming the immediate cause of the transfer was Mr. Kashaninia's recent attempt to wrap his call button cord around a caregiver's neck. That same day, Village Square sent a letter to Mr. Kashaninia's son notifying him that his father was being discharged from the nursing home. Mr. Kashaninia was not issued a bed hold notice. The hospital twice attempted to discharge Mr. Kashaninia back to the nursing home, unsuccessfully. On January 12, 2004, Mr. Kashaninia's family contested Village Square's decision to deny him readmission.
A hearing officer found Village Square had failed to comply with state and federal transfer and discharge requirements and ordered his immediate readmission. Village Square refused, arguing that Mr. Kashaninia continued to pose a danger to residents and staff, and sought an immediate stay, alleging that the administrative process had not provided due process because it had received less than 24 hours? notice of the hearing. Mr. Kashaninia subsequently dropped his effort to enforce the readmission order, but Village Square continued its appeal. The trial court denied the writ and Village Square appealed again.

In an unpublished opinion, the California Court of Appeal affirms, finding that Village Square failed to grant Mr. Kashaninia statutory and regulatory rights owed to transferees, including adequate notice and issuing him a bed hold notice upon transfer. Although the notice period may be shortened by a facility's inability to care for a resident or when the safety of other residents is endangered, the court rules, "there is no provision for contemporaneous notice." The court also finds that Village Square failed to provide sufficient preparation and orientation to ensure Mr. Kashaninia's safe and orderly discharge from the facility. It rules that Village Square's claim about the danger Mr. Kashaninia posed to others was insufficient justification for failing to offer him a bed hold. The facility, the court notes, had ?failed to account for the possibility that [the residents] hospital treatment was effective and he might have returned to the facility with no further unmanageable problems. The court goes on to rule that given the time-sensitive nature of Mr. Kashaninias situation, Village Square's due process rights were not violated by the short notice of the hearing.

An amicus brief in support of Mr. Kashaninia was filed by AARP and the National Citizens? Coalition for Nursing Home Reform, which was represented by the National Senior Citizens Law Center (NSCLC).

The full text of this decision in PDF format may be downloaded from the NSCLC's Web site. Go to: http://www.nsclc.org/news/05/06/Kindred_opinion.pdf.

State cannot recover payments from spouces estate

 
The Appellate Court of Illinois rules that a state law authorizing the state to recover Medicaid payments from the estate of a surviving spouse violates federal law. Hines v. Department of Public Aid (Ill. App. Ct., No. 3-04-0162, May 20, 2005).

Beverly and Julius Tutinas were married, and they jointly owned a house and a car. Mr. Tutinas entered a nursing home and received Medicaid until his death. No probate estate was created when he died. Mrs. Tutinas died four years later. Her estate consisted of the home and the car.
The Illinois Department of Public Aid filed a claim for repayment of the Medicaid it paid to Mr. Tutinas. The Department claimed that under state law (305 ILCS 5/5-13), it had the right to recover from the estate of a Medicaid recipient's spouse. The trial court agreed, holding that state law did not conflict with federal law (42 U.S.C. 1396p(b)) because the definition of "estate" in 42 U.S.C. 1396p(b) included any real property that the deceased had title to at the time of death, including through joint tenancy.

The Appellate Court of Illinois reverses, holding that the state statute authorizing the Department to recover from the estate of a surviving spouse exceeded the authority granted by 42 U.S.C. 1396p(b). According to the court, 42 U.S.C. 1396p(b) expressly prohibits recovery of medical assistance except in three specific circumstances. Because recovery against the estate of spouse is not one of those circumstances, 42 U.S.C. 1396p(b) prohibits the state from recovering from a surviving spouse's estate.

To download the full text of this decision, go to:

http://www.state.il.us/court/Opinions/

AppellateCourt/2005/3rdDistrict/May/Html/3040162.htm.

NPR Series Focuses on Financial Abuse of the Elderly

 
National Public Radio (NPR) recently featured a two-part series on financial abuse of the elderly. Such financial abuse involves the illegal or improper use of an elder's funds, property or assets. It can include cashing an elderly person's checks without their permission; forging their signature; stealing or misusing their money or possessions; or abusing a power of attorney.
There are up to 5 million instances of financial abuse of the elderly each year, according to NPR, but many incidents go unreported because the perpetrator is usually a trusted relative or friend whom elders are reluctant to turn over to the authorities.

NPR's first report focuses on the case of a mentally impaired senior who lost nearly $700,000 to his closest friend. In gaining a conviction against the man, prosecutors charged the abuser with using undue influence, a concept that has been used in civil cases like disputes over wills, but not in criminal cases before now. The case, which is on appeal, is being closely followed in legal circles.

Part two looks at the challenges authorities face in rooting out elder abuse, including the case of a 91-year-old woman who is unlikely to press charges against her 52-year-old son, despite indications of exploitation.

To listen to the NPR reports and read a list of signs of elder financial abuse, go to:http://www.npr.org/templates/story/story.php?storyId=4667720

Monday, July 18, 2005

Medicaid

The U.S. Court of Appeals for the Second Circuit affirms a district court ruling upholding the right of a Connecticut nursing home resident applying for Medicaid to assign support rights to the state and of his wife to exercise her right of spousal refusal. Morenz v. Wilson-Coker (2nd Cir., No. 04-4107-cv, July 14, 2005).

Robert Morenz, a Connecticut nursing home resident, applied for Medicaid coverage on November 1, 2003. In support of Mr. Morenz's application, his wife, Clara, also filed a written assignment of Mr. Morenz's support rights to the State of Connecticut, and a document entitled "Spousal Refusal Statement," in which Mrs. Morenz disclaimed any intention to provide her husband with financial assistance. In the 36 months prior to applying for Medicaid, Mr. Morenz had transferred title to $323,131 in assets to Mrs. Morenz using a durable power of attorney her husband had executed. Mr. Morenz's application for Medicaid was denied on the basis of excess resources. Both the Morenzes and Patricia Wilson-Coker, Commissioner of the Connecticut Department of Social Services, moved for summary judgment.

Ms. Wilson-Coker argued that Connecticut law grants acceptance of spousal support rights only when the community spouse cannot or will not provide eligibility information. She further claimed that Mrs. Morenz's power of attorney did not authorize the assignment, and that Mrs. Morenz violated her fiduciary duty to her spouse by assigning support rights. Finally, Ms. Wilson-Coker contended that permitting Medicaid eligibility in cases like those of the Morenzes would undermine the intent of the program.

The U.S. District Court for the District of Connecticut rejected these arguments and enjoined Ms. Wilson-Coker from denying Mr. Morenz's Medicaid application. Morenz v. Wilson-Coker, 321 F. Supp. 2d 398 (D. Conn. 2004). The court also ordered that Mr. Morenz's eligibility become effective three months prior to the court's decision. Ms. Wilson-Coker appealed, arguing in addition that the district court's order as to the effective date of Mr. Morenz's eligibility violated the Eleventh Amendment.

The United States Court of Appeals, Second Circuit, affirms. "[A]s the district court noted," the court writes, "the language of the [federal Medicaid] statute could not be less ambiguous. A community spouse's resources cannot be included in making an institutionalized spouse's initial eligibility determination if the institutionalized spouse has assigned support rights to the state or undue hardship is present." [emphasis in original] The court also rules that the district court correctly held that neither the statute nor Connecticut's own published regulations support Ms. Wilson-Coker's interpretation of the assignment statute. Finally, the court rules that the district court's order does not run afoul of the Eleventh Amendment.

Solve Disputes Between Families With Mediation

The stress of taking care of an elderly family member can tear families apart. Conflict can erupt between siblings or between an adult child and his or her parent. Siblings may disagree on who should have power of attorney, one sibling may feel that he or she is doing all the caregiving, or a parent and child may disagree about the best living situation for the parent. In these situations, mediation may be the solution.

Mediation allows all the parties to sit down and discuss the issues and try to come up with a solution that everyone can agree on. A mediator is a neutral third party who can help families come to a consensus on a number of family issues from estate planning to guardianship decisions to living arrangements.

Mediation is completely voluntary. For it to be effective, all relevant family members should be involved. You can also involve other professionals, such as a geriatric care manager, a family lawyer, or a financial planner. The mediator doesn't make any decisions and doesn't take sides. Instead, the mediator listens to the issues, keeps the family focused on the goals, encourages consideration of all the options, and helps clear up misunderstandings and address hurt feelings. Through this process, the family can come up with answers to problems or ways of solving conflicts. The idea is not to have a winner or loser, but to have a solution everyone is happy with.

To find a mediator, look in your local phone book or get a referral from the Association for Conflict Resolution.

Report Explodes Myth That Medicaid Transfers Are a Problem

A new report concludes that the practice among the elderly of transferring assets in order to qualify for Medicaid coverage of nursing home care is uncommon and that efforts to further restrict such transfers will have little effect on Medicaid spending.

The report, by the Georgetown University Long-Term Care Financing Project, comes at a time when the Bush administration and many governors and state legislators are calling for the tightening or elimination of rules that permit asset transfers by the elderly in order to qualify for Medicaid. Proponents of these changes claim that asset transfers are widespread and costly to Medicaid.

But the May 2005 Issue Brief, which reviews empirical evidence on asset transfers, finds no support for such claims. "The argument that something needs to be done about abuses of theMedicaid eligibility rules is not supported by the facts," concludes the paper's author Ellen OBrien, who is a Research Associate Professor at the Georgetown University Health Policy Institute.

Contrary to critics? portrayal of the elderly as hiring estate planning lawyers to artificially impoverish themselves to qualify for Medicaid, the report finds "little evidence that large numbers of the elderly are planning their estates for the purpose of gaining easy access to Medicaid in the event they need nursing home care."

The report cites one study that found that less than a third of the middle-class elderly gave gifts to children or grandchildren of $500 or more, and that the typical gift was $2,000. The largest transfers were made by those who believed they had a low probability of entering a nursing home in the next five years.

"Audits of Medicaid applications," the paper goes on, "also reveal that only a small fraction of individuals who applied for Medicaid, and an even smaller share of those found eligible for Medicaid, transfer assets for the purpose of qualifying for free care under Medicaid."
Most of the elderly who may require nursing home care have too little wealth to warrant hiring an attorney to arrange an asset transfer, O'Brien says. Most would qualify for Medicaid at admission to a nursing home, although she notes that in part because of an aversion to "welfare," the elderly shoulder more of the costs of nursing home care than they have to.
While acknowledging that "some families try to protect modest assets (and, very infrequently, substantial assets) for future needs or for inheritances," O'Brien found that the overwhelming majority do not.

"The fact is," the report concludes, "that Medicaid is what it was intended to be, a safety net for those who cannot afford to pay for long-term care."

Tuesday, July 05, 2005

Doubt on the Need to Tighten Medicaid Transfer Laws

A new issue paper by the Kaiser Family Foundation finds that most elderly people do not have assets sufficient to finance a nursing home stay of one year or more. Furthermore, the paper reports that 84 percent of the elderly most likely to need nursing home care would exhaust their assets within one year in a nursing home.
The paper is noteworthy because it calls into question the assertion that Medicaid spending will be significantly reduced by lengthening Medicaid's look-back period for transfers beyond three years or otherwise tightening transfer rules. The Bush administration and many governors and state legislators are calling for such restrictions on rules that permit asset transfers by the elderly in order to qualify for Medicaid, claiming that large savings would result.
Under current Medicaid law, state Medicaid agencies may look only at transfers made during the three years preceding an application for Medicaid (or five years if the transfer was made to certain trusts). The Kaiser study finds that two-thirds of elderly people living in the community lack assets excluding the equity in their homes -- that would cover even the cost of one year of nursing home care (currently $70,000). Moreover, elderly individuals most at risk of entering a nursing home those who have no spouse and are older and have functional or cognitive limitations are even less likely to be able to afford a year of nursing home care. Among the few elderly who could cover three or more years of nursing home care and so presumably could take full advantage of Medicaid's asset transfer rules -- only 1 percent are at high risk of needing nursing home care.
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May 2005

 

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 Tuesday, May 31, 2005

Unprecedented Florida Medicaid Changes Risks Patients' Health, APA Says

 
In response to Florida's enactment of new Medicaid legislation, the American Psychiatric Association (APA) released a statement that "new Medicaid legislation puts people with mental illness at serious risk. The unprecedented and most harmful aspect of the law is a requirement that -- each year -- a patient must first fail on the cheapest mandated medications before the patient is given access to the medication his or her physician believes is optimal, even where the patient has been successfully treated with the physician-chosen medication ...."
 

Monday, May 30, 2005

Elderly soldiers face shortage of nursing homes

 
Gainesville.com webpage: "Old soldiers never die in the history books or monuments to their deeds, but far less certain is where they'll go to fade "
 

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November 2004

 

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 Monday, November 29, 2004

Governor Bush to take on Medicaid reform: South Florida Sun-Sentinel

 
Under pressure to stem soaring costs for treating poor and sick Floridians, Gov. Jeb Bush will ask state legislators and federal officials early next year to authorize the biggest changes ever made to the state's $14 billion Medicaid program.
 

Friday, November 12, 2004

DCF scraps deal for computer job; seeks new bids

 
For the second time in three months, the Department of Children & Families has announced that it will rebid a major contract. In August, DCF said multimillion-dollar training contracts with three universities were so flawed they must be rebid. . See Full Story
 


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October 2004

 

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 Tuesday, October 19, 2004

2005 Social Security Changes

 
The Social Security cost-of-living (COLA) increases for 2005 were announced on October 19, 2004.
 

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February 2006

 

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Monday, February 06, 2006

 
Congress Passes Bill Containing Punitive New Medicaid Transfer RulesLast

Updated: 2/2/2006

Topic: Medicaid

By a vote of 216-214, the U.S. House of Representatives has passed budget legislation that will impose punitive new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care. The Deficit Reduction Act of 2005 now goes to President Bush for his promised signature.

Several Republican moderates who had supported the bill when it was voted on in December changed their votes after learning details of the legislation and under intense pressure from groups like AARP, but in the end the vote switches were not enough to defeat a bill that the Congressional Budget Office says will reduce or bar benefits for millions of Medicaid recipients. The measure is estimated to save $39 billion over five years.

Rep. Frank LoBiondo (R-NJ) cast the deciding vote, breaking a 214-214 tie. All House Democrats and 13 Republicans voted against the bill. Republicans who voted yes in December but no in the final vote included Reps. Jim Gerlach (PA), Jim Ramstad (MN), Rob Simmons (CT) and John Sweeney (NY). (Click here to see the full vote.)

Democrats attacked the measure as an assault on Medicaid patients and other vulnerable groups, and said it was a prime example of the powerful influence of lobbyists for corporate interests like drug manufacturers and health insurers, who got much of what they wanted in closed-door negotiations with Republican lawmakers.

"This is a product of special interest lobbying and the stench of special interests hangs over the chamber," said Rep. John Dingell (D-MI).

The Impact on the Elderly

The legislation will extend Medicaid's "lookback" period for all asset transfers from three to five years and change the start of the penalty period for transferred assets from the date of transfer to the date when the individual transferring the assets enters a nursing home and would otherwise be eligible for Medicaid coverage. In other words, the penalty period does not begin until the nursing home resident is out of funds, meaning she cannot afford to pay the nursing home.

Because the change in the penalty period start date will likely leave nursing homes on the hook for the care of residents waiting out extended penalty periods, ElderLawAnswers has dubbed the bill The Nursing Home Bankruptcy Act of 2005. Nursing homes will likely be flooded with residents who need care but have no way to pay for it. In states that have so-called "filial responsibility laws," the nursing homes may seek reimbursement from the residents? children.

The bill also will make any individual with home equity above $500,000 ineligible for Medicaid nursing home care, although states may raise this threshold as high as $750,000.
The legislation also:

Establishes new rules for the treatment of annuities, including a requirement that the state be named as the remainder beneficiary.

Allows Continuing Care Retirement Communities (CCRCs) to require residents to spend down their declared resources before applying for medical assistance.

Sets forth rules under which an individual's CCRC entrance fee is considered an available resource.

Requires all states to apply the so-called income-first rule to community spouses who appeal for an increased resource allowance based on their need for more funds invested to meet their minimum income requirements.

Extends long-term care partnership programs to any state.In addition, the legislation incorporates provisions in the original budget bill passed by the Senate closing certain asset transfer "loopholes," among them:

The purchase of a life estate will be included in the definition of "assets" unless the purchaser resides in the home for at least one year after the date of purchase.

Funds to purchase a promissory note, loan or mortgage will be included among assets unless the repayment terms are actuarially sound, provide for equal payments and prohibit the cancellation of the balance upon the death of the lender.

States will be barred from "rounding down" fractional periods of ineligibility when determining ineligibility periods resulting from asset transfers.

States will be permitted to treat multiple transfers of assets as a single transfer and begin any penalty period on the earliest date that would apply to such transfers.

While the federal law applies to all transfers made on or after February 1, it also gives the states time to come into compliance. This gives many people in most states a little time to plan. The deadline for states to enact their own laws varies from state to state, but generally is the first day of the first calendar quarter beginning after the end of the next full legislative session.
The bottom line is if you have been hesitating about seeing an attorney about long-term care planning, hesitate no longer. If you have considered protecting some assets for your loved ones in case you later require long-term care, you should contact a qualified elder law attorney now.

Monday, January 30, 2006

Vote on Budget Set for Feb. 1; Group Seek to Sway GOP Moderates

 
Vote on Budget Set for Feb. 1; Groups Seek to Sway GOP Moderates

Last Updated: 1/13/2006
Topic: Medicaid

House Speaker Dennis Hastert (R-Ill.) has tentatively scheduled a re-vote on the 2006 budget reconciliation bill (S 1932) for February 1, the day after the House reconvenes following its winter recess. Moderate Republicans are feeling mounting pressure from groups like AARP to change their votes.

Among other provisions in a bill that cuts back federal entitlement programs for the first time in a decade, the legislation would impose punitive new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care. (Click here to read these provisions.)

The Senate passed the bill before Christmas, with Vice President Dick Cheney casting the tie-breaking vote. However, procedural moves by Senate Democrats require the House to vote on the bill a second time after having passed it by a 212-206 margin at the end of an all-night session.

Although House Republicans "expect to narrowly approve the bill again, boosted by President Bush's State of the Union speech the night before," according to CongressDaily, groups opposed to the bill's cuts are working hard to convince moderate Republicans to vote against it. Brian Riedl, a budget analyst for the Heritage Foundation, says, "[N]othing is guaranteed over a six-week break."

Leading the fight against the bill is AARP, which strongly opposes the transfer restrictions and has vowed to make lawmakers who vote for them pay a political price. "This budget represents bad policy and AARP will now work to explain the full impact of this vote to its more than 36 million members," said AARP's CEO William D. Novelli.

Joining AARP is a temporary umbrella group, the Emergency Campaign for America's Priorities (ECAP). Spokesperson Brad Woodhouse said, "If they win, and we're not convinced they will, we want to spill blood in the process so that they are gun-shy about turning around and doing this again in the next budget." ECAP has targeted some moderate Republicans at local vigils and is organizing phone blitzes in advance of the vote.

"Clearly, moderate Republicans in the House were reluctant to vote in favor of these drastic changes to Medicaid," reports theNational Senior Citizens Law Center (NSCLC). According to NSCLC, several Republicans who did not vote against the bill the first time around delivered a letter in December to the congressional leadership expressing objections to the scope of the Medicaid cuts.

Meanwhile, in his weekly radio address Saturday, January 7, President Bush said Congress should "finish its work" and pass the budget bill. Bush said that passage would show that the "people's representatives can be good stewards of the people's money." Bush also urged Congress to make all his tax cuts permanent. In an opinion piece in the San Jose Mercury, Sen. Barbara Boxer (D-CA) said that House Republicans should "scrap this poor excuse for a budget" and "instead cancel some of the tax cuts for millionaires," which "would accomplish the same thing -- deficit reduction -- but without harming our kids, our elderly and the middle class."

Monday, January 23, 2006

 

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David L. Orosz
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