Elder Law Prof Blog

Senate fast tracks Medicaid bill

Senate Majority Leader Harry Reid (D-Nev.) on Thursday granted fast-track status to legislation (HR 5613) that would block for one year seven new Medicaid regulations, the Wall Street Journal reports (Zhang, Wall Street Journal, 4/25). The legislation would delay implementation of the regulations until April 1, 2009. Under the regulations, proposed by the Bush administration, states could not use federal Medicaid funds to help pay for physician training. The regulations also would place new limits on Medicaid reimbursements to hospitals and nursing homes operated by state and local governments and limit coverage of rehabilitation services for individuals with disabilities and mental illnesses. In addition, the bill would provide $25 million annually for efforts to fight Medicaid fraud (Kaiser Daily Health Policy Report, 4/24).  The bill will bypass the Senate Finance Committee and head straight to the Senate floor as early as next week.  The bill passed the House on Wednesday with more than a veto-proof majority. Sen. Charles Schumer (D-N.Y.) said, "These rules are unwise, unvetted and unrealistic," adding, "The Senate is moving closer to joining with the House to make sure these rules never see the light of day." However, some Senate Republicans "are preparing for a fight by circulating a letter to Minority Leader Mitch McConnell (Ky.) to reject" the bill.  Meanwhile, House Democratic leaders also could include language to block the Medicaid regulations in a tentative second economic stimulus package.

NCSL spring forum in DC will focus in part on Medicaid issues

The National Conference of State Legislatures will host its annual Spring Forum where legislators will share ideas, strategies and best practices as well as hear the latest happenings on Capitol Hill.

NCSL's Spring Forum will take place at the Hyatt Regency Capitol Hill, 400 New Jersey Avenue NW from April 24-26. In addition to sessions covering REAL ID, immigration and Medicaid regulations, Sen. Lamar Alexander and Rep. Barney Frank will give key note addresses on the effectiveness of the state-federal partnership and the home mortgage foreclosure situation. Also, European Union's Ambassador to the United States, John Bruton will speak at Saturday's general session breakfast.

More information about the agenda.

CRS report on Medicaid provider taxes now available

Provider-specific taxes have been used by many states over the last two decades to help pay for the costs of the Medicaid program. Such taxes are required to meet a number of federal laws and regulations, some of which have been in flux recently. This report provides background information on provider-specific taxes and describes recent legislative and administrative action on the tax programs.

Get report:  http://assets.opencrs.com/rpts/RS22843_20080321.pdf

US comptroller chides Congress for sticking its head in the sand on unfunded liabilities

  Comptroller General David Walker on Monday "chided" Congress for "ignoring the long-term financial crisis" for entitlement programs such as Medicare and Medicaid, CongressDaily reports.  In an interview with National Journal Group writers and editors, Walker, who will leave his post next week, said that Congress is "doing nothing about the $53 trillion hole" in funds for entitlement programs during the 21st century.   Walker recommended that the next president appoint a bipartisan commission to develop a proposal to address the issue and submit the plan to Congress. In addition, Walker recommended a "mandatory reconsideration trigger" for a reduction in Medicare spending in the event that spending for the program increases at a higher rate.

Under current law, the president must propose legislation to revise Medicare when trustees estimate for two consecutive years that general fund revenue would finance more than 45% of total program costs within seven years. The law does not require a reduction in Medicare spending. Walker said, "We write a blank check for (health care)," adding, "There is no other country in the world dumb enough to do that."

Source/more:  KFF Daily Health Policy Report, http://kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=50917

 

 

CRS report analyzes S. 2499, the Medicare, Medicaid, and SCHIP Extension Act of 2007

On December 29, 2007, the President signed S. 2499, the Medicare, Medicaid, and SCHIP Extension Act of 2007 (P.L. 110-173). This Act was passed by the House on December 19, 2007, and by a voice vote in the Senate on December 18, 2007. The Act makes changes to the nation's three major health programs, Medicare, Medicaid, and the State Children's Health Insurance Program (SCHIP), as well as other federally funded programs. The most prominent provisions in the Act were to (1) suspend the Medicare physician payment cut scheduled to take effect and (2) provide SCHIP funding through March 2009. P.L. 110-173 mandates a 0.5% increase in the Medicare physician fee schedule for the six-month period from January 1, 2008, through June 30, 2008, and provides FY2008 and FY2009 SCHIP funding allotments through March 31, 2009. The Act also extends a number of expiring provisions and programs. These extensions affect Medicare plans and providers and Medicaid payments and programs. The Act also includes funding for some miscellaneous activities. The Act's Medicare extensions include incentive payments for certain physicians, and extensions of current law provisions for Medicare Special Needs Plans and cost-based plans. A variety of extensions also affect how long-term care, rural, and acute care hospitals are paid or classified. Other extensions affect Medicare payments for certain services and providers, outpatient physical therapy services, speech language pathology services, certain pathology laboratories, brachytherapy services, and therapeutic radiopharmaceuticals. The Act also includes Medicaid provisions designed to extend certain payments and programs, such as Medicaid disproportionate hospital share (DSH) allotments for Tennessee and Hawaii, the Transitional Medical Assistance (TMA) program, and the Qualifying Individual (QI) program, among other provisions. Miscellaneous provisions include using Medicare funds to make grants to State Health Insurance Assistance Programs, Area Agencies on Aging, and Aging and Disability Resource Centers. The Act also establishes the Medicare Payment Advisory Commission (MedPAC) as a congressional agency. The Act provides a number of offsets to pay for the spending increases, including a reduction in the Medicare Advantage stabilization fund in 2012. The Act also includes provisions affecting Medicare's responsibility as a secondary payer for covered services, Medicare payments for Inpatient Rehabilitation Facilities (IRFs), payments for most Medicare part B drugs, payments for certain diagnostic laboratory tests, and Medicare Long-Term Care Hospitals. This report provides short descriptions of the provisions contained in P.L. 110173.

Get it from Open CRS, http://opencrs.cdt.org/document/RL34360

NCOA develops fact sheet for low income recipients of stimulus package $$

Source:  National Council on Aging

Fact Sheet: Your Clients Who Are Low-Income Social Security Recipients Must File 2007 Tax Return to Receive Economic Stimulus Check

What is the stimulus package? 

To help spur a slowing economy, the IRS will send tax rebate checks to over 130 million households beginning in May 2007 and continuing through the summer.  Up to 20 million Americans who rely primarily on Social Security income qualify for a rebate check.

How do people qualify for a stimulus tax rebate check? 

Generally a person has to have more than $3,000 in income. Even if a person does not have any earned income they can still qualify for a stimulus tax rebate check if their Social Security benefits, Veteran’s Affairs (VA) benefits, and/or railroad retirement benefits equal at least $3,000 annually. 
To qualify, they must file a 2007 tax return on IRS Forms 1040 or 1040A with the IRS (even if their income is normally low enough that they are not required to file). 

If they file a tax return, how much are they eligible for?

In most cases, they will get payments ranging from $300 to $600.  Payments increase by $300 for families with dependent children under the age of 17. 

By what date does the 2007 tax return have to be filed and when will the checks be received?

The IRS encourages filing a return if possible, by the regular April 15 deadline to get the rebate check in May 2008. Those filing later than April 15, with or without a tax-filing extension, may delay receipt of the rebate check. Those who qualify for a stimulus check will receive one by the end of 2008 if they file by October 15, 2008. No rebate checks will be issued after 2008 ends. 

Will the stimulus payment affect eligibility for needs-based benefits programs? 

No.  Receiving a payment under the stimulus package does not have any effect on eligibility for or amount of needs-based benefits programs (i.e. Food Stamps). 
Do you have questions about the stimulus package?

Contact Hilary Dalin at the National Council on Aging at (202) 479- 6626, http://www.ncoa.org/

Do you know a low-to-moderate income senior who needs help filing a tax return? 

The Tax Counseling for the Elderly (TCE) Program provides free tax help to people age 60 and older. To find an AARP Tax Aide site call 1-888-227-7669 or visit the AARP Web site.

The Volunteer Income Tax Assistance (VITA) program provides help to low- and moderate-income taxpayers. Call 1-800-906-9887 for assistance.

$ 13 billion in improper payments made by Medicaid

In the fourth year of implementation of the Improper Payments Information Act of 20021 (IPIA), major executive branch agencies reported a total improper payment estimate of about $55 billion for fiscal year 2007. This increase from the prior year estimate of $41 billion was primarily attributable to a component of the Medicaid program reporting improper payments for the first time totaling about $13 billion for fiscal year 2007. We view this increased reporting as a positive step to improve transparency over the full magnitude of improper payments across the federal government.

The objective of this report is to provide summary data and preliminary analysis of the improper payment estimates reported by federal executive branch agencies (federal agencies) in their fiscal year 2007 performance and accountability reports (PAR) or annual reports. We obtained this information during our audit of the U.S. Consolidated Financial Statements for the fiscal year ending September 30, 2007.

Source/More:  GAO report D08377r, http://www.gao.gov/new.items/d08377r.pdf?source=ra

Center for Medicare Advocacy alert: new poverty guidelines will affect Medicare/Medicaid eligibility

New federal poverty level (FPL) guidelines published January 23, 2008 will affect eligibility levels for many public benefits, including health benefits for older people and people with disabilities. 73 Fed. Reg. 3971, (January 23, 2008).  The new numbers are effective when published, but each program that relies on them may use a different effective date.

The published poverty levels merely state a dollar figure for different sized family units.  They do not address issues of what income is included, what deductions from income are allowed, who is included in a family unit or other use issues.  These questions are addressed by the individual programs relying on the poverty guidelines.  The amounts given below apply to the 48 contiguous states and Washington, DC.  Rates for Alaska and Hawaii are slightly higher.  A complete list of FPLs is available at <http://aspe.hhs.gov/poverty/08poverty.shtml>

Federal health programs affecting older people and people with disabilities that rely on federal poverty guidelines:

Full Medicaid:

Poverty Level Aged and Disabled (PLAD):  States can choose to provide full Medicaid benefits to aged and disabled individuals with incomes up to 100% of the federal poverty level (FPL).  For states choosing 100% FPL as their ceiling, eligibility levels for 2008 will be $866.67/month ($10,400/year) for an individual; to $1166.67/month ($14,000/year) for a couple.

Amounts protected for the at-home spouse of a Medicaid nursing facility resident:  Medicaid law allows for certain levels of income and resources to be protected for the community spouse of a nursing facility resident whose care is paid for by Medicaid and who otherwise would have to pay most of her/his income to the facility.  The minimum amount of income protected is 150% FPL for two people ($1,750/month); states must use this amount beginning July 1, 2008 and they may use it immediately. If they do not use it immediately, they will continue to use $1,711.25.  Other protected amounts for 2008, not linked to FPL, are maximum monthly protected income, $2,610, minimum resource allowance, $20,880, and maximum resource allowance, $104,400.

Medicare Savings Programs:

Qualified Medicare Beneficiaries (QMBs):  States must be responsible for all Medicare cost-sharing for Medicare Beneficiaries with incomes up to 100% FPL and limited resources.  For this group, the increase will also be to $866.67/month ($10,400/year) for an individual; $1,166.67/month ($14,000) for a couple.

Specified Low-income Medicare Beneficiaries (SLMBs):  States must pay the Medicare Part B premium for Medicare beneficiaries with incomes between 100% FPL and 120% FPL and limited resources. The new limit for this group will be $1,040/month ($12,480/year) for an individual; $1,400/month ($16,800/year) for a couple.

Qualified Individual (QI): States have a limited amount of money from which they must pay, on a first come, first served basis, the Medicare Part B premium for Medicare beneficiaries with incomes between 120% FPL and 135% FPL and limited resources.  The limit for this group is $1,170/month ($14,040/year) for an individual; $1,575/month ($18,900/year) for a couple.

Qualified Disabled and Working Individual (QDWI):  States must pay the Medicare Part A premium for certain working disabled Medicare beneficiaries who have exhausted their entitlement to premium-free Part A benefits and whose incomes do not exceed 200% FPL.  The new limit for this group is $1,733.33/month ($20,800/year) for an individual; $2,333.33/month ($28,000/year) for a couple.

Add $20 to each of the monthly amounts listed above to determine the actual eligibility limit, since applicants are allowed a $20 disregard from any income before their income is measured against the poverty levels.  Couples only get one $20 disregard.

Part D Low-income Subsidies:

Full Subsidy:  Medicare Part D provides a full drug subsidy with low co-payments to Medicare beneficiaries with incomes up to 135% FPL and limited resources.  For those individuals, the 2008 eligibility limit is $1,170/month ($14,040/year) for an individual; $1,575/month ($18,900/year) for a couple. 

Partial Subsidy: Medicare Part D provides a partial subsidy of premium, deductible and co-insurance to Medicare beneficiaries with incomes up to 150% FPL and limited (but higher than allowed for full subsidy) resources.  The income limit for this group is $1,300/month ($15,600/year) for an individual; $1,750/month ($21,000/year) for a couple.

As with the Medicaid and MSP monthly amounts, add $20 to account for the disregard.

Unlike rules for Medicare Savings Programs, which allow for a family unit of only one or two, eligibility rules for  Part D subsidies will recognize larger family units, to the extent that those family members rely on the applicant or her spouse for one half of their financial support.  To calculate the levels for larger family units, start with the yearly amount for one ($10,400), add $3,600 for each additional family member, multiply by the applicable percentage of poverty (135% or 150%) and divide the result by 12 for a monthly amount.

The 2008 poverty guidelines will be used to compute Part D low-income subsidies for the rest of 2008 and for the early months of 2009, until new guidelines are published.  Applications filed in late 2007 that "failed" 2007 income tests have been held by the Social Security Administration for evaluation using the 2008 guidelines.

Source:  Center for Medicare Advocacy, http://medicareadvocacy.org/

GAO says "1000s" of Medicaid providers are tax cheats

A report by the GAO concludes (and is titled) Thousands of Medicaid Providers Abuse the Federal Tax System

Here's s summary:  Over 30,000 Medicaid providers, about 5 percent of those paid in fiscal year 2006, had over $1 billion of unpaid federal taxes. These 30,000 providers were identified from a nonrepresentative selection of providers from seven states: California, Colorado, Florida, Maryland, New York, Pennsylvania, and Texas. This $1 billion estimate is likely understated because some Medicaid providers have understated their income or not filed their tax returns.

We selected 25 Medicaid providers with high federal tax debt as case studies for more in-depth investigation of the extent and nature of abuse and criminal activity. For all 25 cases we found abusive and related criminal activity, including failure to remit individual income taxes or payroll taxes to IRS. Rather than fulfill their role as ‘‘trustees’’ of federal payroll tax funds and forward them to IRS, these providers diverted the money for other purposes. Willful failure to remit payroll taxes is a felony under U.S. law. Individuals associated with some of these providers diverted the payroll tax money for their own benefit or to help fund their businesses. Many of these individuals accumulated substantial assets, including million-dollar houses and luxury vehicles, while failing to pay their federal taxes. In addition, some case studies involved businesses that were sanctioned for substandard care of their patients. Despite their abusive and criminal activity, these 25 providers received Medicaid payments ranging from about $100,000 to about $39 million in fiscal year 2006.

Desperate to know more?  Read the full report at
http://www.gao.gov/new.items/d0817.pdf?source=ra

Meanwhile, estate recovery assures that middles class Medicaid beneficiaries give the state every last bit of what they have...what stinks here? 

KFF releases three new updates on Medicare and Medicaid

Get 'em here:

Kaiser Issues New Resources Examining Medicare Part D Drug Plans

Updated Issue Brief on Medicaid’s Role for Women     
                        
Updated Fact Sheet on State Fiscal Conditions and Medicaid        

Medicaid enrollment declines due to proof-of-citizenship requirement

Medicaid  Citizenship Documentation Rule Cited  As Main Cause of Medicaid Enrollment Drop

Medicaid application processing delays under new citizenship documentation requirements are the main reason for a 0.5 percent decrease in Medicaid enrollment in 2007, the first drop in a decade, according to a Kaiser Commission study released Oct. 10.

Birth certificates and other proof of citizenship documents required under the Deficit Reduction Act of 2005 are largely responsible for the enrollment decline, according to the study, 50-State Medicaid Budget Survey for State Fiscal Years 2007 and 2008.

Lead study author Vernon Smith said the last time the Medicaid program experienced a reduction in enrollment was in 1998, when enrollment declined 1.9 percent.

Three-quarters of the states (37) said the new documentation requirements had a negative impact on enrollment, Smith said. Thirty- five states said the requirements increased the time it took to process Medicaid applications and renewals. The new requirements also increased administrative costs for 45 states, the study found.

More from KFF:  http://kff.org/medicaid/kcmu101007pkg.cfm

National Health Law Program Publishes comments on proposes rehab regs

NHeLP's Final Comments on Proposed Federal Rules governing Rehabilitation Service Coverage (Oct. '07) Date: 10/11/2007

Organization: National Health Law Program Submission Date: 10/11/2007

NHeLP's Final Comments on Proposed Federal Rules governing Rehabilitation Service Coverage. Our comments are attached in Word format.  The proposed rules are attached in PDF format. Deadline for comments Friday Oct. 12, 2007.

See comments or proposed regs:  http://tinyurl.com/2b7xm7 (may require login)

 

Recent scholarship

Fleming, Jennifer Rae.  Student article.  The blurred line between nursing homes & assisted living facilities:  how limited Medicaid funding of assisted living facilities can save tax dollars while improving the quality of life of the elderly.  15 U. Miami Bus. L. Rev. 245-271 (2007).

 

CT Medicaid Fraud Unit will prosecute physician

A physician from Haddam (CT) has been charged with multiple counts of illegally prescribing narcotics and other medications at the a Meriden medical practice where she worked until May of 2005.  Dr. Karen Warner, 52, of 1212 Saybrook Road in Haddam was charged Monday with 10 counts each of: illegally prescribing/sale of narcotics, prescribing/sale of controlled substances and one count each of: failing to keep controlled substance records, first-degree larceny by defrauding a public community and reckless endangerment.  She faces a possible sentence of 300 years in prison, 50 of which would be mandatory under state law, if convicted on all the felony counts.  According to a state Division of Criminal Justice news release, information in the warrant for Warner's arrest describes how some had sold the drugs that were obtained with prescriptions written by Warner while she worked at the Pain & Headache Treatment Center LLC in Meriden. Warner is also accused of prescribing drugs to patients who had been receiving drug rehabilitation treatment for those same substances.

Source:  Hartford (CT) Courant, http://www.courant.com/news/custom/topnews/hcu-doccharged-0716,0,1953735.story

Feb 23 briefing to explore long term sustainability of Medicaid

Briefing to Explore Long-term Sustainability of Medicaid on February 23

A Kaiser study on the long-term sustainability of Medicaid will be released at the Health Affairs sponsored briefing, "The Future of Medicaid: Is It Sustainable, and Should It Be Reformed?" on Friday, February 23, from 9 a.m. to 10:30 a.m. The briefing features Richard Kronick, Professor and Chief, Division of Health Care Sciences, University of California, San Diego and David Rousseau, Principal Policy Analyst, Kaiser Commission on Medicaid and the Uninsured and Director, statehealthfacts.org, authors of the Kaiser study. It also includes John Holahan, Director, Health Policy Center, Urban Institute, and Alan Weil, Executive Director, National Academy for State Health Policy, authors of a second paper assessing reform options, and discussants Jean Lambrew, Senior Fellow, The Center for American Progress and Associate Professor for Health Policy, George Washington University; and Howard Cohen of HC Associates Inc.; with John Iglehart, Founding Editor, Health Affairs.

More info.

Center for Budget and Policy Priorities: No "general entitlement crisis"

THE LONG-TERM FISCAL OUTLOOK IS BLEAK
By Richard Kogan, Matt Fiedler, Aviva Aron-Dine, and James Horney

This analysis finds that restoring fiscal sustainability will require major changes to programs, revenues, and the nation’s health care system.

Press Release:
http://www.cbpp.org/1-29-07bud-pr.pdf        2pp.

Summary:
http://www.cbpp.org/1-29-07bud-summ.pdf        4pp.

Full Report:
http://www.cbpp.org/1-29-07bud.pdf        21pp.

Methodology:
http://www.cbpp.org/1-29-07bud-meth.pdf        27pp.

THERE IS NO GENERAL "ENTITLEMENT CRISIS"
By Richard Kogan and Aviva Aron-Dine
      This report finds that in coming decades, Medicare, Medicaid, and Social Security will grow rapidly, but other entitlements will shrink as a share of the economy.

http://www.cbpp.org/1-29-07bud2.htm
http://www.cbpp.org/1-29-07bud2.pdf        4pp.

Wisconsin LTC groups call for increase in Medicaid reimbursement rates

Local long-term care officials have joined a statewide call to raise Medical Assistance reimbursement rates for nursing homes and other care services by 5 percent in the next state budget.  Members of the Coulee Region Long-Term Care Workforce Coalition in La Crosse met Friday in La Crosse with state Rep. Mike Huebsch, R-West Salem, to push for the increase for personal care, home health and other community services.  Huebsch, the Assembly’s majority leader, said he is aware of the problems with long-term care and would have to look at the proposal’s financial ramifications. Two priorities for the biennial budget, he said, will be public education and taking care of people who can’t provide for themselves.  "€œWe'€™re nearing a crisis again in long-term care, and we need a comprehensive look at the problem and plan for the future, because baby boomers will increase the need for this care," Huebsch said.  Members of the workforce coalition are concerned about the quality and consistency of care when personal and home-care aides make low wages.  They said some workers have trouble paying bills and wind up leaving for higher-paying jobs. That can make home care inconsistent because vacancies are hard to fill.  The average salary is $8 to $9 an hour for staff at Independent Living Resources, which provides personal and home care services in the La Crosse area, said Kathy Noble-Iverson, the agency’s executive director. Staff have not received a raise since 2002, when Medical Assistance rates last were increased, she said.

Read more in the LaCross Tribune.

Proposed Medicaid regulation would hurt rural hospitals and nursing homes

Many rural hospitals and nursing homes would get fewer federal dollars under a proposal to save Medicaid almost $4 billion over the next five years. The change would have "a significant economic impact on a substantial number" of health care providers, the Bush administration acknowledges.At issue are financing arrangements between states and local governments. These deals tend to increase Washington's share of spending in Medicaid, the joint state-federal program covering 55 million poor and disabled people, even when a state's share is unchanged or drops.  The federal share of the program ranges from 50 percent to 76 percent, depending upon the state. Poor states receive a greater federal share.  In many states, financing arrangements between health care providers and the state result in the federal government paying more than the law says it should. Dennis Smith, director of the federal Center for Medicaid and State Operations, said the proposed rule made public late Friday would put a crimp on that practice."This is about the match rate, and states have demonstrated they're willing to fund their share of the program," Smith said in an interview Saturday. "It's just that for many years previous to us, they were not paying their share."The Kaiser Family Foundation, which conducts health care research, said some of these arrangements have helped states maintain important services, such as nursing home care, during tough economic times.

Read more in the SF Chronicle.

Feds award 23 million in LTC Medicaid grants

The U.S. government announced more than $23 million in grants Friday to help 17 states improve their Medicaid long-term-care programs.  The $23 million in fiscal year 2007, which will go to demonstration programs, could increase to as much as $900 million over the next five years if the programs are successful in moving people out of institutions and into the community, said Leslie Norwalk, acting administrator of the Centers for Medicare & Medicaid Services.  The initiative, called This Money Follows the Person, is designed to help financially cushion states' efforts to offer individuals a full range of home and community-based services.  Critics of the current policy say it places too much emphasis on placing elderly and disabled beneficiaries in long-term-care institutions, which is unnecessarily costly and reduces their quality of life.  The program was authorized by language in the Deficit Reduction Act of 2005.  The largest awards will go to Wisconsin, which will receive more than $8 million, and Oklahoma, which will get more than $3.5 million. South Carolina received just over $34,000, the smallest grant.

Read more at UPI Health and Business.

Full CMA press release is HERE.

Upcoming conference: Medicaid IRA Protection Boot Camp

MEDICAID IRA PROTECTION BOOT CAMP
JANUARY 18-19, 2007 • 8 A.M.TO 5:00 P.M.--Las Vegas, NV

Protect IRA’s From Medicaid Without Liquidating Them.

Join WealthCounsel and ElderLawAnswers as they host nationally recognized Medicaid planning expert David J. Zumpano, CPA, ESQ, president of MEDICAID PRACTICE SYSTEMS™, and IRA-expert, Robert Keebler, CPA, MST, as they present the NEW MEDICAID IRA PROTECTION BOOT CAMP.

Get more information. 

Federal court orders Medicaid in spousal annuity case

A Federal District Court has permanently enjoined Pennsylvania from treating an actuarially sound, irrevocable, non-assignable immediate annuity as a resource of the community spouse. Pennsylvania had denied Medicaid eligibility based on the position that the annuity was marketable.  It had offered an affidavit from J.G. Wentworth Company stating that it would buy the community spouse’s rights to the annuity payments for $185,000. The plaintiff, Robert James, was represented by attorneys Matthew Parker and Kevin Grebas of the Elder Law Firm of Marshall, Parker and Associates.  The ruling, based on federal Medicaid law, is significant for the protection of community spouses from financial impoverishment. A copy of the Court’s memorandum and order is available online at www.paelderlaw.com

Article on DRA citizenship documentation requirement as implemented

Jacob Press, COMMENT: POOR LAW: THE DEFICIT REDUCTION ACT'S CITIZENSHIP DOCUMENTATION
REQUIREMENT FOR MEDICAID ELIGIBILITY, 8 U. Pa. J. Const. L. 1033 (2006)

SUMMARY:

Included in the DRA is a new requirement that federal Medicaid funding must be denied to individuals who claim U.S. citizenship but are unable to produce acceptable documentation. ... One may properly infer that other states share Oregon's view that citizenship fraud is a non-phenomenon: they share the burden of Medicaid costs with the federal government, and they are free to impose more burdensome documentation requirements than the federally mandated minimum, but only four have chosen to do so. ... A Minimal Rational Basis Review of Section 6036 ... The government argued that the statute was rationally related to the goal of minimizing fraud: households with unrelated members were more likely than others to contain individuals who misrepresented their income or voluntarily remained poor, and such households were also relatively unstable, making abuses particularly difficult to detect. ... With this provision, the government has limited Medicaid eligibility to the class of U.S. citizens who are not only indigent, but can prove their citizenship by producing a birth certificate. ...

Tennessee Medicaid wants special rights to take homes through estate recovery

To foot the bill for Mary and Lawrence Henkel's nursing home care, her children sold everything their parents owned except for the Donelson home the couple had lived in since 1967."That was my father's dying wish — to hold onto the house, live in it, take care of it," said Nashville resident Judy Clifford, 66, one of three Henkel children. "That's what he told me, and he gave the house to me."

Now TennCare wants to sell the home to help recoup the roughly $288,000 that the state says it paid to take care of Mary Henkel in the nursing home before she died in February 2003 at the age of 81. Her husband had passed away years earlier.  The Henkel children, who value the home at $110,000, aren't alone.

They're among families across the state being asked to give up the family home as TennCare redoubles its efforts to recoup some of the roughly $1 billion a year that the state pays for nursing home and other long-term care. State officials say they're merely doing what is required by the federal government. And they point out that Tennessee isn't nearly as aggressive as some other states in recouping the money spent on long-term care.  It's a common practice for TennCare, the state's expand-ed Medicaid program, to go after the family homes of nursing home patients who have passed away.

Generally, by the time a nursing home or long-term-care recipient gets on TennCare, the patient's family has spent down all of the family assets, except for the home. The state is stepping up its efforts to get properties on at least two fronts. In April, TennCare hired an Atlanta-based outside consulting firm to help find properties that deceased long-term-care recipients passed on to their heirs without going through probate. And when it does find the property, it's going to force open an estate.  Under Tennessee law, the property can pass to the heirs without going through a probate court. But if TennCare finds out about the property, it can petition the court to force open an estate, which is what happened in the Henkel case [even though the statute of limitations had run on its time to enforce its claims]. The Tenncare Bureau also is looking to the state's highest courts to extend the time that it has to petition a court to get the property.  State law says all creditors have 12 months to file a claim on an estate....

Read more here.

Ed:  Get ready, this is only the tip of the iceburg.  Middle class elderly who are unfortunate enough to need long term car can forget about leaving anything of value to their children--including things like the farm that has been in the family for 150 years or the home in which their children were raised.  That's what estate recovery is all about.  Thank the Republican Congress, the long term care insurance industry, and Democrats who haven't been paying

Did you know: Medicaid Waiver Information at CMS

CMS maintains a listing of state Medicaid waiver and waiver applications on its website, at
http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/MWDL/list.asp

A clickable state map that will generate a listing of individual state waivers is accessible at
http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/08_WavMap.asp

NAELA seeks DRA experts for November symposium

The 2006 NAELA Institute Planning Committee is recruiting facilitators from each state to facilitate a discussion on the DRA's implementation the states.  These discussions will take place at the luncheon on Friday, November 3rd following the DRA General Session at the Institute. For some states there will be a need for more than one facilitator. For the less populous states, it will be necessary to combine a few states at the same table.

If you have not already volunteered and are interested in serving as a facilitator, please email Martha Brown at mcbrown@elderlawstlouis.com to express your interest. If you have recommendations for facilitators from your state, please forward their names to Martha as well.

PS -- Don't forget to register for the conference and/or make your hotel reservations - the early bird registration expires this Friday! 

DRA Watch added to Elder Law Answers Site

Harry Margolis' Elder Law Answers site has added a new feather, "DRA Watch", that will collect and organize information on implementation of the DRA in the states.  Preview it out at http://www.elderlawanswers.com/resources/dra_watch.asp.  Unfortunately, the full site is accessible only to members.

KFF Report: Profiles of Nursing Home Residents on Medicaid

This report illustrates through case examples the experiences and challenges of low- and modest-income people who rely on Medicaid to pay for nursing home expenses. These case examples were developed through in-person interviews with nursing home residents and their families in three states: Georgia, Kansas and Virginia. The first section of the report summarizes the themes and issues shared across the interviews Kaiser conducted, while the second section presents the individual stories of a subset of those Kaiser interviewed.

Get it here.

States will delay enforcing proof-of-citizenship requirement for Medicaid

The Cinncinati Enquirer reports:

Ohio will delay enforcing a July 1 deadline for requiring Medicaid recipients to prove their U.S. citizenship because state officials need more time to advise people who might be at risk of losing coverage.

The state does not have an estimate of how many of the 1.7 million people on Medicaid are illegal immigrants.

The requirement is getting criticism from advocates for the poor who say it will cause hardships for the mentally ill, the homeless and victims of natural disaster who do not have their records.

The federal government didn't clarify until last week what documents are acceptable proof of citizenship to receive the health insurance for the poor and disabled, said Jon Allen, a spokesman for the Ohio Department of Job and Family Services. The state needs until Oct. 1 to print new guidelines, advise Medicaid recipients and train workers in 88 counties on the new regulations, he said.

California made a similar announcement earlier this month.

CMS guidance on proof of citizenship is available here.

Millions of Americans will Face Difficulties Getting Medicaid Starting July 1

Guidelines announced yesterday carry new requirements likely to impede Medicaid coverage for millions of the nation's poor and disabled.  Effective July 1, proof of citizenship will be required rather than mere declarations that had been the standard in most states

The regulations, which were authorized by changes in February to the Deficit Reduction Act of 2005, will affect about 50 million Medicaid recipients nationwide and nearly 700,000 in Virginia.

"Self-attestation of citizenship and identity is no longer an acceptable practice," Dennis G. Smith, director of the federal Centers for Medicare & Medicaid Services wrote state Medicaid directors in a 14-page letter spelling out the changes.

Failure to implement the changes could force withdrawal of federal Medicaid funds. The guidelines also carry requirements for extensive cross-checking of Social Security and other records.

Sharply criticized by immigrant advocates for months as a means of achieving tens of millions of dollars in savings by blocking Medicaid payments to illegal immigrants, the regulations set up complex methods of identification and citizenship documentation using birth certificates and other identification papers.

Read more in the Richmond (VA) Times-Dispatch.

A CMS Fact Sheet and other official information about the new proof-of-citizenship requirement is available on the CMS website.

Supreme Court decides Ahlborn

The Supreme Court has ruled unanimously that a state may not assert a Medicaid lien against a damages award in an amount that exceeds the total amount of the award attributed to the Medicaid recipient's medical costs attributable to the accident that caused her injuries.  The case involved Arkansas' attempt to recover in excess of $212,000 from the $550,000 settlement of a permanently brain damaged teen, even though the parties had stipulated that only about $36,000 of that settlement was for medical costs.

The Supreme Court's digest is excerpted below:

Following respondent Ahlborn’s car accident with allegedly negligent third parties, petitioner Arkansas Department of Health Services (ADHS) determined that Ahlborn was eligible for Medicaid and paid providers $215,645.30 on her behalf. She filed a state-court suit against the alleged tortfeasors seeking damages for past medical costs and for other items including pain and suffering, loss of earnings and working time, and permanent impairment of her future earning ability. The case was settled out of court for $550,000, which was not allocated between categories of damages. ADHS did not participate or ask to participate in the settlement negotiations, and did not seek to reopen the judgment after the case was dismissed, but did intervene in the suit and assert a lien against the settlement proceeds for the full amount it had paid for Ahlborn’s care. She filed this action in Federal District Court seeking a declaration that the State’s line violated federal law insofar as its satisfaction would require depletion of compensation for her injuries other than past medical expenses. The parties stipulated, inter alia, that the settlement amounted to approximately one-sixth of the reasonable value of Ahlborn’s claim and that, if her construction of federal law was correct, ADHS would be entitled to only the portion of the settlement($35,581.47) that constituted reimbursement for medical payments made. In granting ADHS summary judgment, the court held that under Arkansas law, which it concluded did not conflict with federal law, Ahlborn had assigned ADHS her right to recover the full amount of Medicaid’s payments for her benefit. The Eighth Circuit reversed,holding that ADHS was entitled only to that portion of the settlement that represented payments for medical care.

Held: Federal Medicaid law does not authorize ADHS to assert a lien on Ahlborn’s settlement in an amount exceeding $35,581.47, and the federal anti-lien provision affirmatively prohibits it from doing so.Arkansas’ third-party liability provisions are unenforceable insofar as they compel a different conclusion. Pp. 9–23.

(a) Arkansas’ statute finds no support in the federal third-party liability provisions. That ADHS cannot claim more than the portion of Ahlborn’s settlement that represents medical expenses is suggested by §1396k(a)(1)(A), which requires that Medicaid recipients, as a condition of eligibility, “assign the State any rights . . . to payment for medical care from any third party” (emphasis added), not their rights to payment for, e.g., lost wages. The other statutory language ADHS relies on is not to the contrary, but reinforces the assignment provision’s implicit limitation. First, statutory context shows that §1396a(a)(25)(B)’s requirement that States “seek reimbursement for[medical] assistance to the extent of such legal liability” refers to “the legal liability of third parties . . . to pay for care and services available under the plan,” §1396a(a)(25)(A) (emphases added). Here, because the tortfeasors accepted liability for only one-sixth of Ahlborn’s overall damages, and ADHS has stipulated that only $35,581.47 of that sum represents compensation for medical expenses, the relevant “liability” extends no further than that amount. Second, §1396a(a)(25)(H)’s requirement that the State enact laws giving it the right to recover from liable third parties “to the extent [it made] payment . . . for medical assistance for health care items or services furnished to an individual” does not limit the State’s recovery only by the amount it paid out on the recipient’s behalf, since the rest of the provision makes clear that the State must be assigned “the rights of [the recipient] to payment by any other party for such health care items or services.” (Emphasis added.) Finally, §1396k(b)’s requirement that, where the State actively pursues recovery from the third party, Medicaid be reimbursed fully from “any amount collected by the State under an assignment” before “the remainder of such amount collected” is remitted to the recipient does not show that the State must be paid in full from any settlement. Rather, because the State’s assigned rights extend only to recovery of medical payments,what §1396k(b) requires is that the State be paid first out of any damages for medical care before the recipient can recover any of her own medical costs. Pp. 9–13.

(b) Arkansas’ statute squarely conflicts with the federal Medicaid law’s anti-lien provision, §1396p(a)(1), which prohibits States from imposing liens “against the property of any individual prior to his death on account of medical assistance paid . . . on his behalf under the State plan.” Even if the State’s lien is assumed to be consistent with federal law insofar as it encumbers proceeds designated as medical payments, the anti-lien provision precludes attachment or encumbrance of the remainder of the settlement. ADHS’ attempt to avoid the anti-lien provision by characterizing the settlement proceeds as not Ahlborn’s “property,” but as the State’s, fails for two reasons. First, because the settlement is not “received from a third party,” as required by the state statute, until Ahlborn’s chose in action has been reduced to proceeds in her possession, the assertion that any of the proceeds belonged to the State all along lacks merit. Second, the State’s argument that Ahlborn lost her property rights in the proceeds the instant she applied for medical assistance is inconsistent with the creation of a statutory lien on those proceeds: ADHS would not need a lien on its own property. Pp. 13–17.
(c) The Court rejects as unpersuasive ADHS’ and the United States’ arguments that a rule permitting a lien on more than medical
damages ought to apply here either because Ahlborn breached her duty to “cooperate” with ADHS or because there is an inherent danger of manipulation in cases where the parties to a tort case settle without judicial oversight or input from the State. As §1396k(a)(1)(C) demonstrates, the duty to cooperate arises principally, if not exclusively, in proceedings initiated by the State to recover from third parties. In any event, the aspersions cast upon Ahlborn are entirely unsupported; all the record reveals is that ADHS neither asked to be nor was involved in the settlement negotiations.Whatever the bounds of the duty to cooperate, there is no evidence that it was breached here. Although more colorable, the alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation also fails. The risk that parties to a tort suit will allocate away the State’s interest can be avoided either by obtaining the State’s advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision. Pp. 17–19.

(d) Also rejected is ADHS’ contention that the Eighth Circuit accorded insufficient weight to two decisions by the Departmental Appeals Board (Board) of the federal Department of Health and Human Services (HHS) rejecting appeals by two States from denial of reimbursement for costs they paid on behalf of Medicaid recipients who had settled tort claims. Although HHS generally has broad regulatory authority in the Medicaid area, the Court declines to treat the Board’s reasoning in those cases as controlling because they address a different question from the one posed here, make no mention of the anti-lien provision, and rest on a questionable construction of the federal third-party liability provisions. Pp. 19–23.

397 F. 3d 620, affirmed.

Get the full opinion at http://www.supremecourtus.gov/opinions/05pdf/04-1506.pdf

Missouri legislature abolishes Medicaid

From the Kansas City Star:

Medicaid, the program that provides medical services for our neediest residents, has been eliminated by the Missouri legislature, effective 2008.

To prevent this from occurring, a petition has been generated to allow Missouri voters in November 2006 to determine whether Medicaid should be reinstated. Therefore, more than 100,000 signatures are needed by Sunday.

On Sunday, many congregations will be providing opportunities to support this initiative. Taking action by signing a petition and circulating it in your place of worship helps fulfill mandates in the Bible and other sacred writings to care for the most vulnerable in society.

The elimination of Medicaid means no provision of health care of any kind for some people with chronic, disabling conditions, including no wheelchairs, no oxygen, no dental or eye care, or no diabetic supplies.

Among the people who would be affected are some children whose parents make minimum wage, who are without means to pay for health care or insurance after paying for other basic needs such as rent and food.

It also would affect nursing home residents, some of whom have zero resources and zero family. Are they to be turned into the streets?

For many working poor, access to medical care and necessities related to disabilities allows them to have health stable enough to allow them to work. Without access to health care, many people with precarious health won’t be well enough to work.

People without resources or access to health care will have no choice but to forgo medical treatment. Without health care, supplies or medication, as health declines, many people will only be able to obtain health care on an emergency basis, at a greater cost to themselves and society.

Read more here.

More on this bill.

Wisconsin seniors air Part D horror stories

From the Green Bay (WI) Press-Gazette:

Teresa Garbrecht says seniors worry about prescription drug costs and which medications Medicare will pay for.

    So she went to a session sponsored by the Coalition of Wisconsin Aging Groups on Monday at the SC Grand Banquet and Convention Center looking for answers.

    She was one of about 25 to attend the forum of District 4 of the coalition, which is held twice a year. The focus of the meetings is to hear what seniors have on their minds in order to form a list of priorities.

    The new Medicare D drug plan is high on the list, said Garbrecht, a senior who lives near Crivitz.

    "There are problems," she said. "I belong to senior citizens groups and I hear people talk about how prices are different, and how certain drugs are not going to be covered, even for things like cancer."

    The new plan confounds many seniors, said Elizabeth Conrad, Medicare Integrity Project director for the coalition's Elder Law Center.

    In one case, a woman waited for up to four hours while on hold with her insurance company, only to be told she could not speak to a supervisor. A Medicare specialist also was unavailable.

    Another client who signed up for another company's stand-alone drug plan was issued a card in which her name was spelled wrong and her pharmacy refused to accept the inaccurate card.

    When she first contacted her insurance company, she was told they couldn't verify either the correct or incorrect spelling. She tried to contact customer service again, and was put on hold for 45 minutes. She tried an enrollment line, and was put on hold for 20 minutes.

    Eventually she was told it was because her name was too long (nine letters.) She also reports being pressured by a representative from the company to buy a more expensive plan.

    "We've heard lots of stories of rudeness, people being cut off or being fed wrong information," Conrad said. "It's getting better, but it's still happening."

    Part of the problem is that with so many people attempting to sign up by a January deadline, customer service lines were overwhelmed, she said.

    "There also were problems with identification theft," Conrad said. "People would call pretending to be from Medicare and people would give them personal information that would be used for fraud."

    Conrad said she worries that people don't know what they're buying.

    Rod Bohn, District 4 chairman, said the coalition hopes to influence legislators about issues like Medicare by banding smaller groups together.

    Advocates for seniors, the disabled and dependent care, as well as individuals are members of the grass-roots and non-partisan coalition, he said. District 4 has about 800 members, he said. Although 25 went to Monday's session, he said the meetings usually attract 50 to 60 guests. A few state legislators also usually attend, he said.

    Ideas are gathered at similar meetings of the coalition's nine districts. Organizers then will put together the group's platform to be used in discussions with state and federal legislators.

    The group supports universal health care, a patient's bill of rights and federal legislation to allow Medicare recipients to receive the same discounts on drug prices as other large purchasers, such as the federal government.

    Such measures will be difficult, said participant Pat Finder-Stone, unless things change on Capitol Hill.

    "The insurance companies and pharmaceutical companies have tremendous lobbyists in Washington, D.C.," she said. "What we need is campaign finance laws. These laws will never get passed until lobbyists have less power."

CBPP Analyzes House Budget Proposal

This analysis finds that the House Budget Committee's budget plan is harsher than the Senate plan in several respects. The House plan would cut funding for domestic “discretionary” (or non-entitlement) programs by $8.8 billion in fiscal year 2007 and $169 billion over five years, relative to CBO's current-services baseline. The plan also would reduce entitlement programs by $5.1 billion over five years. The savings from these program reductions would not, however, be used for deficit reduction. They would instead be used to offset a portion of the cost of the budget plan’s $228 billion in tax cuts, as well as its defense spending increases. The net result would be significant further increases in the deficit. The plan would increase the deficit over the next five years by $256 billion above what deficits would be if current policy was left unchanged.

http://www.cbpp.org/3-29-06bud.htm
http://www.cbpp.org/3-29-06bud.pdf, 7pp.

Ed:  Good going, Congress!  What's another few trillion in debt to leave our children?

KFF State Health Facts Update: 2006 Estimated Clawback payments

Get them here.

Lawsuit filed challenging constitutionality of DRA

From a NAELA press release:

An elder law attorney has filed a challenge to the constitutionality of the Deficit Reduction Act.   Jim Zeigler says Congress violated clear requirements of the U.S. Constitution when it passed S. 1932, which was signed into law by President George W. Bush Feb. 8. He asked the federal court to void the Act because differing versions passed the U.S. House and U.S. Senate. "An eighth-grader in civics class knows that a bill cannot become law unless the identical bill passes the House and Senate and is signed by the President. Congressmen did not read the bill, and they made a serious, foolish mistake," Zeigler said. "Different versions of the bill passed the House and Senate. The bill was not legally enacted into law."

The Senate bill says patients dependent on medical equipment such as oxygen get to live for 13 months. The House bill says they get to live 36 months. The President signed the Senate version, which never passed the House." Legal authorities are already joining in agreement that Congress made a mistake, and the bill was not legally enacted. Zeigler says the Act would penalize church tithes and normal gifting by senior citizens, including presents for Christmas, birthdays, weddings, graduations, and charitable donations. "All gifts by a senior would be totaled for the five years preceding nursinghome admission. He would then have to pay five years of donations back to
Medicaid before becoming eligible for nursing home coverage," Zeigler said."This Act penalizes faithful givers and hurts church budgets. Senior citizens are the lifeblood of many churches."

Zeigler is a long-time conservative activist. He was elected as Bush Delegate to Republican National Conventions in 2000 and 2004. He served on the Bush legal team in Florida in 2004.

A copy of the complaint is available at http://jimzeigler.com/

NAELA Posts Memorandum Explaining the Deficit Reduction Act of 2005 (Medicaid Provisions)

Get it here.

DRA Alert: The bill is now law

Received from NAELA:

The President has signed the Deficit Reduction Act of 2005 (S. 1932) this afternoon.  Should you wish to look at the text of the bill, go to