Clark Durant: Loser, not Career Politician

Clark Durant is running for Debbie Stabenow’s U.S. Senate seat, representing Michigan. Durant, who ran unsuccessfully for the Senate in 1990 and has held lesser appointive and elective political offices beginning in 1984, says voters should choose him instead of a “career politician.”

If he had gained a Senate seat in 1991, what would that make him? A career politician! So, his message really is, “Vote for me, I’m a loser, not a career politician.”

Incidentally, Stabenow was in the House of Representatives from 1997 to 2001, when she became a senator, for a total of 15 years in Congress. Durant would have been in the Senate for 21 years by now, if he had won. I guess that makes him a career loser.

John Payne, Attorney
1800 Grindley Park Street 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

Ryan Plan to Include “Life Panels”

House Republicans passed congressman Paul Ryan’s deficit-cutting budget plan on Thursday, March 29, 2012, potentially a crucial plank in their election-year campaign platform and a foil for Democratic attacks over the plan’s savings in health care. One little-noticed cost-saving provision establishes an additional hurdle for applicants for Medical Assistance, also known as Medicaid. Under the new requirement, adults must demonstrate a reason to live in order to qualify for Medicaid. Analysts estimate that this could eliminate up to 50% of current and potential adult Medicaid recipients. Savings in federal general fund dollars could exceed $687 billion over 10 years.

Under the proposed policy, individuals must demonstrate a reason to live, by clear and convincing evidence, to be eligible for Medicaid. Acceptable reasons include: a) Objectively measurable artistic ability, b) Ability to engage in aesthetically-pleasing musical, dramatic, or dance performance, c) Significant mathematic, scientific, rhetoric, inventive, religious, or political capacity, or d) Being held in high regard or loved by a significant number of unrelated individuals.

To establish objectively measurable artistic ability, applicants must present critical reviews by three recognized art critics, unless paid by the individual or family members. The reviews do not have to be positive. In the art world negative reviews are considered to be more desirable and reliable than positive reviews.

Ability to engage in aesthetically-pleasing musical, dramatic, or dance performance may be verified by YouTube ratings or participation in juried competition. The individual need not win a competition, but must survive at least first-round elimination for the competition to qualify as clear and convincing evidence of a reason to live. Hip-hop is not considered music under the bill and waiving a sparkler on the Fourth of July is not considered a “dance,” unless the individual is able to wave a flag at the same time, without setting the flag on fire.

To support a finding of a reason to live by reason of mathematic, scientific, rhetoric, or inventive capacity, the individual must demonstrate that he or she is as smart as, but not necessarily smarter than, a fifth-grader. Religious capacity may be shown by a healing or other miracle within the previous 12 months. The individual is considered to have political capacity if supportive of the TEA Party. Liberal political inclinations are automatically disqualifying.

Being held in high regard or loved by a significant number of unrelated individuals may be shown by notarized testimonials of unrelated third parties. Testimonials of relatives are not considered, as relatives are conclusively presumed to be biased in favor of the individual. Paid caregivers, treatment providers, and employees of the institutions where the individual resides are disqualified from attesting to the individual being held in high regard or loved.

The bill would establish a “Life Panel” in each of the 57 states. These life panels would determine whether indigent adults have sufficient reason to live to be granted medical care. According to House Speaker John Boehner, the “life panels” are “totally opposite” to the “death panels” established by Obabamacare. The Speaker stated, “It’s as different as putting your pants on one leg at a time is from putting your legs in your pants one leg at a time. It’s as different as putting your hat on your head is from putting your head in your hat. They are as different as a Xerox machine and a copier.”

Minority Leader Nancy Pelosi responded, “Life panels and death panels are the same thing. The Republicans are imitating us. We call on the President to make them stop imitating us. If they won’t stop imitating us, we will start imitating them. We’ll see how they like it!”

John Payne, Attorney
1800 Grindley Park Street 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

Beware of HMS

Medicaid estate recovery is now the law in Michigan, as previously discussed in “Medicaid Estate Recovery Mystification” in this blog. “.” The families of deceased Medicaid recipients should consult an attorney before opening a probate estate or responding to the demand for information from HMS, Michigan Medicaid’s estate recovery contractor.

When a government hires a for-profit company to handle tasks that would otherwise be handled by its own bureaucracy, protection of the rights of citizens and quality of performance are often ignored in the interest of profits for the government contractor. For example, this is seen with private operation of prisons and private security operators in public places such as courthouses and office buildings. Private companies hired by state Medicaid agencies to pursue estate recovery are typical of government contractors in this respect.

A client died about a year ago, survived by his wife, and with no probate estate. HMS sent their questionnaire and I responded with a letter informing HMS as follows:

I am informed that there are no probate assets and no probate estate will be opened. Under the estate recovery statute and the Estates and Protected Individuals Code, the personal representative is obligated to notify the Medicaid agency if an estate is opened. On opening an estate, the personal representative will provide the statutory notice to the Estate Recovery Program. You should be aware from the Medicaid file that the decedent is survived by his spouse. Therefore, the state is not entitled to pursue estate recovery.

HMS sent another letter demanding that I fill out their “voluntary” questionnaire and provide a copy of the death certificate, which I answered by telling to read my previous letter. Now they are calling and demanding the “voluntary” questionnaire and a copy of the death certificate.

I realize that the course of least resistance is to fill out the questionnaire and return it with the death certificate. However, they have no legal basis for their demand. I am concerned that HMS will harass the families of deceased Medicaid recipients and talk them into payments they are not legally required to make. If these pests are not ashamed to make ultra vires demands of attorneys, what will they tell family members?

Monday’s New York Times had a front-page article about hospitals, including nonprofits, that pursue uninsured patients in violation of their legal obligations not to do so. The hospitals receive millions from the state for indigent care, despite flagrant failure to allow uninsured patients to apply for compassionate exemptions. The hospitals and their attorneys routinely sue impoverished patients by the thousands. They take judgments on the chance that the patients might come into money or get jobs and the judgments will pay off. When there is money to be collected from vulnerable individuals and families, those in collection tend to take what they can get. That is disturbing when the collection agent is acting on behalf of a government or charitable entity required to play by its own rules.

HMS’s questionnaire is signed as an affidavit, so the person who fills it out is putting himself or herself on the line. If it is provided by an unwitting family member, there might be incorrect information, either including assets that are not liable for estate recovery or failing to identify assets that are liable. Both circumstances give rise to problems for individuals who are not obligated to sign any questionnaire. Michigan probate law directs the personal representative to notify the state when a probate estate is opened. It is the personal representative who has the duty to provide information, not miscellaneous family members.

HMS is a for-profit health-care management company that gets a percentage of whatever it pinches from the families of deceased Medicaid recipients. Its motivation is purely rapacious: The more it collects, the more it makes, just like any other collection agency. Lawyers should resist HMS’s illegal demands and direct clients not to “voluntarily” fill out and file the questionnaires unless they decide – after legal consultation – that it is in their best interest because they want to request the elusive and rare hardship exemption.

I filled out and filed two questionnaires indicating that the family was entitled to a hardship exemption. Instead of providing the form to substantiate the hardship, HMS turned the AG’s office loose to pursue the claim. I am litigating those at this time. It appears that HMS and the Michigan Attorney General will be no more respectful of individual rights than collectors working for payday lenders. Beware of Medicaid estate recovery and the private contractors engaged to bag the money.

John Payne, Attorney
1800 Grindley Park Street 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

The Guru’s Secret

As a lawyer with a post-graduate tax degree, I am known in some circles as a tax guru. I am also frequently consulted about Medicare, Medicaid and Social Security questions by other attorneys. One of the secrets to being a guru is knowing where to call to get information. Gurus cannot know everything so they have to know where to go for answers.

Social Security Administration, Medicare and the Internal Revenue Service have surprising good telephone hotlines that are available to answer citizen questions. I find that professionals can also get answers easily by calling the agency directly. Here are the numbers to call:

Social Security Administration 800-772-1213 (24/7)

IRS Individuals 800-829-1040 (M-F 7:00 a.m.-7:00 p.m.)

IRS for Businesses 800-829-4933 (M-F 7:00 a.m.-7:00 p.m.)

IRS for Nonprofits and Trustees 877-829-5500 (M-F 8:00 a.m.-5:00 p.m.)

The hotline for Medicare questions is 800 MEDICAR(e), numerically 800 633 4227. Although it is difficult to speak to someone on the Medicare hotline if you are not already enrolled in Medicare, enrollment questions are generally handled through the Social Security hotline.

There is no national Medicaid hotline and it is difficult to get answers about Medicaid that go beyond basic eligibility criteria. Many Medicaid agencies will only provide answers through local office staff and there is no access to staff for persons who are not applying or already enrolled in Medicaid. Nongovernmental organizations have contracts with Medicaid to answer citizen enquiries in most states, but the quality of the information varies from state to state and from person to person. Elder law attorneys may be able to provide the most helpful answers, but finding a knowledgeable Medicaid attorney can be difficult. Start with the attorney directory on the National Academy of Elder Law Attorneys website, .

There are good times and bad times to call. In general, call early in the day and not on Monday or Friday. I usually call in, put the phone on speaker and wait for someone to pick up. You might have to penetrate several levels of advisors to get an answer to a difficult question, but it is cost-effective and the answer you finally get should be authoritative, if not conclusive. If you have called one of the above hotlines, please take our survey. If you have called more than once, please fill out multiple surveys.

John Payne, Attorney
1800 Grindley Park Street 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

Putting Older Michiganians through the Wringer

Over the past several years, the Michigan Department of Social Services has been ratcheting up the difficulty of applying for long-term care Medicaid. In 2007, diabolical rules about anyone over 65 who gives anything away were put in place. While some states, like Pennsylvania, allow gifts that are within certain limits, Michigan’s rules penalize holiday or birthday gifts to grandkids, church tithes, and even handouts to panhandlers. In practice, eligibility workers try to disqualify applicants who sell their homes at market price, if the sale is below the property tax assessment value. In this real estate market, listing at the assessment value and waiting for a buyer would be like sending Lindsay Lohan a 12-step brochure and waiting for her to sober up.

Earlier this year, an eligibility manual revision included rules on jointly-held property that would be farcical if they were not so unfair to vulnerable adults. Michigan DHS goes to great lengths to make it difficult to qualify and get an application approved. The Department seems to believe that the most cherished goal of anyone over 65 is to get into a nursing home and have the state pay for the care. Since it assumes that older Americans spend all their time devising ways to get rid of their money, the Department devises every trick and hurdle it can think of to thwart anyone qualifying for Medicaid.

Having stuck joint owners of property like lambs at Eid, Michigan Medicaid decided to victimize the dead. It instituted estate recovery to grab the homes of deceased Medicaid recipients. The estate-recovery program initiated this past summer was undesirable, but not unreasonable. There was an exclusion equal to half the average price of a home in the county. Now, Michigan Senator Kahn, from Saginaw, has hatched a plot to suck Medicaid recipients’ estates drier than an appellate brief in a utilities rate case. For details review “Can the Kahn Plan,” June 12, 2011.

That the state is so hostile to people in nursing homes is perplexing. The Engler Administration, from 1991 to 2002, was much more accommodating. It made sense for the state to interpret the rules liberally. While the state is now trying to cut corners, Medicaid is the wrong program to scrimp on because the state gains so much by spending Medicaid dollars.

It only costs the state about a quarter to spend a Medicaid dollar. The federal government covers about 55% of the Medicaid budget. Since medical expenses largely fund payroll and building expenses, the state gets back 10-15% of the Medicaid dollar in payroll, sales, and property taxes. In light of the federal subsidy and recovery through taxes cutting back on Medicaid spending is false economy. The state is hurting itself by being so niggardly, as well as making life difficult for some our least fortunate citizens. Lean on your state legislators to vote against the Kahn Plan, Senate Bills 404, 405, and 406, ant to urge the Department of Human Services to stop stuffing elderly citizens into the wringer.

John Payne, Attorney
1800 Grindley Park Street 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

“Get Your Boot off My Neck” is Class Warfare?

Over the last half century, those who are wealthy by most definitions have doubled their income and net worth over and over, while the rest of us – we ninety-nine percenters – have seen our income and net worth decline. As the fiscal gap between rich and poor has increased, the difference in tax brackets has shrunk. Any talk about increasing the tax rate on the wealthy has been met with porcine squeals about “class warfare.” If there is any class warfare in the United States, it has been going on for 50 years and the poor are losing it. There is a tipping point at which wealth begets greater wealth and poverty begets greater poverty. Conservative talk about “equality of opportunity” is code for the Darwinian model of government – the spoils system. Those with power get what ever they can grab and money is power.

There are many self-made wealthy people in the United States, but stacked against the millions who live and die in poverty, they are very lucky or talented exceptions. The wealthy have an almost insurmountable advantage over the rest of us. When you compare two equally talented children – one from Brentwood and one from Watts – it is easy to see why legal equality of opportunity has little meaning for most of us. Chip, from Brentwood, was raised on the healthiest food, received a superlative education from Montessori at age three through graduate school at an Ivy League university, lacked no dental or medical service that could improve his appearance or health, and left college with a contact list of Fortune 500 CEOs and board members. Jamal, from Watts, lacked no challenge to his very existence. His minimum-wage single parent had a difficult time providing sufficient calories for the family and providing shelter. His education in inner-city schools prepared him for neither an occupation nor college. Barring an exceptional opportunity Jamal has no prospects beyond minimum-wage employment.

This oppression by the wealthy and powerful plays out every day in the corporate sector. Rank-and-file employees, who build the wealth of the company by their work, are either down-sized into the ranks of the unemployed or grossly overworked, performing the tasks of those who are no in the ranks of the unemployed in addition to their own. Meanwhile, those in the upper echelons of management never miss a compensation increase or a bonus.

According to Fortune, the CEOs of the top 500 corporations average $9 million in compensation, bonuses and stock gains. http://www.forbes.com/lists/2011/12/ceo-pay-20-year-historical-chart.html While this is a big drop from the $16 million the CEOs made in 2007, it is much more than they earned. As was explained in “Not All Pirates Are in Somalia,” http://topomyhead.wordpress.com/2011/04/15/not-all-pirates-are-in-somalia/, these CEOs reap such ridiculous compensation through rampant cronyism, but that is not the worst aspect of corporate executive overpayment. It is all deductible to the corporation, so 35% of the $9 million is tax savings. It comes out of the pockets of the very workers who are being so roughly treated.

Federal minimum wage in the United States is approximately $15,000 per year for a full-time worker. If deductible CEO compensation were limited to 100 times minimum wage, or $1.5 million, the Fortune 500 corporations would each pay approximately $2.6 million more in taxes just on their CEO’s compensation. That would be $1.3 billion more in taxes for schools, Veteran programs, road and bridge repair, national parks, student subsidies, and all the other important government functions that are being cut back due to the Bush-era tax cuts. That is $1.3 billion in tax revenues for cutting back the deductibility of the compensation of the CEOs, only. In every corporation there is a whole rat pack of over-compensated vice presidents and directors who contribute nothing to profitability or production. A tax increase would not be necessary; all that would be required is cutting back deductions to what is reasonable.

The compensation deduction for corporate income taxes should be limited to reasonable compensation. It is absurd to suggest that these corporations could not find a competent – even a brilliant – CEO for $1.5 million a year. Corporate boards pretend that they need to give their CEOs and other executives huge compensation packages because they are so valuable, but that is not the case. Corporate CEOs pack their boards with fellow CEOs, who pay them whatever they ask. The fact is that CEO pay is often not in proportion to talent or success.

The Corporate Library’s 2006 report, “Pay for Failure: The Compensation Committees Responsible,” described 11 public corporations that paid their CEOs more than $15 million per year despite five-year track records of shareholder losses. For example, Ivan G. Seidenberg, chief executive of Verizon Communications, received $19.4 million in salary, bonus, restricted stock and other compensation in 2005, half again as much as in 2004. As his compensation increased, the stock fell 26%, bondholders lost value as the company’s debt was downgraded by credit agencies, and 50,000 managers saw their pensions frozen.

Instead of paying additional tax due to the loss of the deductibility of CEO compensation over $1.5 million, the corporations could raise the pay of the employees who actually do the work, or hire more employees. Instead of cutting the workforce to the bone and eliminating fringe benefits, these corporations could reintroduce the type of corporate culture that made it worthwhile to get out of bed and got to work.

A culture of greed and megalomania has taken root among the wealthy and powerful in the United States. Conservative activists and politicians are catering to those who have it all. Anyone who says the “haves” should help the “have-nots” by paying a little more in taxes is accused of class warfare.

This country is being run for the benefit of the plutocrats who comprise the 1%. It is not class warfare for the rest of us to want them to take their boots off our necks. It is time for the 99% to stand up for our rights.

John Payne, Attorney
1800 Grindley Park Street 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

Integrated Care Initiative

Michigan’s Medicaid system is involved in a project to better integrate the care provided to Medicaid recipients who also have Medicare coverage. These recipients are referred to as “dually-eligible.”

In an ideal world, it would not make any difference whether your care were covered by Medicare, Medicaid, or private insurance. If you had an ingrown toenail or a torn ACL, you would go to the same doctors and get the same effective, reasonable treatment. At least that would be my ideal world. Patient Protection and Affordable Care Act (“Obamacare” to the President’s enemies) opponents would define “ideal world” as one in which only those willing and able to pay would get care.

In this world, Medicare and Medicaid are different programs, with different sets of covered services, different financial costs to participants, and different sets of providers – try to find a dentist who accepts Medicaid. One glaring example is long-term care. Medicare covers up to 100 days of rehabilitation or skilled care after a three-day inpatient hospitalization. After that, long-term care in a nursing home is at the patient’s expense unless he or she has long-term care insurance or Medicaid. Basic nursing care is a service that is covered by Medicaid, but not by Medicare. Other services may be covered by both, but there will still be differences in how the services are authorized, provided, and paid.

Think about all the differences between private health insurance plans. What is covered, what the insured pays, and who provides the services can be greatly different depending on whether the patient has a Blue Cross or a Health Alliance Plan card.

The Integrated Care Initiative is an effort by the Centers for Medicare and Medicaid Services (CMS) to integrate care for individuals who have both Medicare and Medicaid. The idea is to provide the full array of Medicare and Medicaid benefits through a single delivery system. CMS hopes that it will be possible to provide quality care to dually eligible beneficiaries, better care coordination and fewer administrative burdens. At least that is the “company line.”

The Initiative may be dismissed as the equivalent of bureaucratic self-abuse by critics who assume that anything the government does will be inefficient, pernicious, misguided, and dysfunctional. Medicare and Medicaid are, by definition, bureaucracies. So are private insurance companies, private telecommunications providers, automobile manufacturers, and banks. Barring a TEA Party sweep of the 2012 elections, Medicare and Medicaid will continue to serve millions of U.S. citizens. The Integrated Care Initiative is an effort at better serving those who are covered by both programs. The Initiative may fail to make any significant improvement, but the fact that CMS is attempting to do its job better should be recognized as a positive development.

John Payne, Attorney
Garrison LawHouse, PC
1800 Grindley Park Street, Suite 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pennsylvania Office:
9853 Old Perry Highway.
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

The Peter Principle: A Lesson for Today

As the stock market picks itself up, staggers to a lamppost where it holds on for a couple of sessions, then collapses again into the gutter, there is no shortage of experts to explain why the DJIA is stuck around 11,000. Hedge fund managers, analysts, market strategists, portfolio managers, economists, and college professors have all kinds of theories about why the market goes up, down, around, or retrograde oblique. Their inane, contradictory or downright nonsensical analyses and recommendations raise the question of how much they really know. Furthermore, the incompetence of hedge fund and portfolio managers who have made news lately by losing millions or billions for their employers call into question the ability of the firms themselves to hire and supervise able staff. The Peter Principle can help explain the chaos in our financial and equities markets.

According to the Peter Principle, “in a hierarchy every employee tends to rise to his level of incompetence.” The 1969 book, “The Peter Principle,” by Dr. Laurence J. Peter and Raymond Hull, explains how employees get promoted until they are in job they cannot perform competently. For a civil servant or a cog in a bureaucratic machine of any type, the Peter Principle is a transcendent revelation. It provides a rationale for all the frustrations of working in an organization that seems like a mental hospital where the patients are in control. It also explains many of the systemic breakdowns we see every day – the Kitchen Aid coffee maker that has to be replaced due to defective warmer pad coating, the $80,000 Lexus recalled for steering problems, the FEMA post-Katrina modular housing debacle, the regional blackout caused by overloaded electrical transmission equipment, or the house fire caused by failure to ground a broad-band cable coming into the attic.

The Principle holds that in a hierarchy, workers get promotions as long as they work competently. When they reach a position that is above their competence, they remain there, being unable to earn further promotions. Peter’s Corollary states that “in time, every post tends to be occupied by an employee who is incompetent to carry out their duties” and adds that “work is accomplished by those employees who have not yet reached their level of incompetence.”

The book is an eye-opener for employees who find themselves stuck in a position where they are surrounded by incompetents. It is also a wake-up call for those who are frustrated in their positions and do not know why. They may have reached their level of incompetence. Knowing this, they can relax and stop striving for a promotion that will never come, or look for an opportunity to move to a different occupation.

Hedge fund managers are assumed to be financial geniuses, when they may be as error-prone and unsophisticated as anyone else hired on the spur of the moment to fill a position. Dana Dealdo may be in charge of a hedge fund as a result of favoritism, nepotism, sexism, cronyism, racism, anti-racism, or blackmailism. Stock brokerages, hedge funds, arbitrage firms, and other market movers and shakers are just as susceptible to the Peter Principle as car companies, fast-food outlets, public utilities, and municipalities. The awe and reverence accorded them by the media may be misplaced.

This is not just a plug for a book, although “The Peter Principle” was one of the most insightful books I have read. It is to urge a recognition that we cannot expect that things will always go right and we cannot rely on the recognized “experts” talking heads on television turn to for commentary. It is necessary to think analytically about every aspect of our lives. Without becoming survivalists, it is important to recognize and prepare for the possibility of a widespread failure of our power grid, communications network, or water supply. The Fukushima nuclear accident shows that there are incompetent executives at the highest levels of government and industry. Without turning our backs on nuclear power, it is necessary to develop idiot-proof policies for the siting of reactors and development of safety protocols. Above all, we need to be realistic about the level of competency we expect, whether it is a cashier in a dollar store or a legislator in Congress.

John Payne, Attorney
1800 Grindley Park Street 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

Stealth Regulations under Pennsylvania Medicaid Program

Pennsylvania Department of Public Welfare issued a “policy clarification” on June 27, 2011 pertaining to the sale of a person’s home when the person has a spouse who is receiving nursing care funded by Medicaid. This policy unfairly restricts the amount of money the person can keep out of the sale and is contrary to federal law. Further, it is not part of the Medicaid policy manual, but must be ferreted out by someone who is looking for it. Intentionally or not, this policy clarification comes as a nasty surprise when a person sells his or her home, expecting to be able to use the funds for financial support.

Medicaid has a complicated financial eligibility structure for nursing home residents and persons who receive nursing care in community settings – such as in their own home or in an assisted living facility. However, once Medicaid is approved for the spouse who is receiving nursing care, called the Institutionalized Spouse, the Community Spouse’s assets should not be considered. This is clearly stated in federal law, which provides, “During the continuous period in which an institutionalized spouse is in an institution and after the month in which an institutionalized spouse is determined to be eligible for benefits under this subchapter, no resources of the community spouse shall be deemed available to the institutionalized spouse.” . Compared to the Byzantine regulatory maze of most of the Social Security Act, this sentence is almost absurdly simple. The section of which it is a part is over 3,200 words.

Importantly, the operant language is only 14 words: no resources of the community spouse shall be deemed available to the institutionalized spouse. Unlike most of § 1396r-5, there are no exceptions. It says that “no resources shall be deemed available to the institutionalized spouse,” not “no resources shall be deemed available to the institutionalized spouse, except as provided in sections (a)-(r)(r) of subpart C of part R of chapter XXII,” or an exception to an exception to an exception. No resources means no resources, yet Department of Public Welfare has carved out a major exception when the community spouse sells a home.

Policy Clarification, Medicaid – Long Term Care PMN15842440, provides that if the community spouse (CS) sells his or her home it could affect the eligibility for Medicaid of the institutionalized spouse’s (IS). The directive reads as follows:

If the CS sells the property, the entire value of the property will be counted as a resource for the IS. It does not matter that the property was titled only in the name of the CS. When the property is sold, all of the proceeds are considered available to the IS except for the amount used to purchase a new residence. The purchase of the new residence should be within three months. Proceeds remaining after the purchase of the new residence may be transferred to the CS, but only up to the Community Spouse Resource Allowance figure.
If the residence was transferred, the entire uncompensated value is considered available to the IS (even if the name of the IS was never on title) and an applicable penalty period should be imposed.

It is disturbing and distressing when a government agency deliberately breaks the law. As I observed in “Dreadful Michigan Medicaid Joint Tenancy Rules,” on April 9, 2011, Michigan ignored state property law and the federal Social Security Act to prevent poor Medicaid applicants who are otherwise eligible from qualifying.

Like the Michigan Medicaid rule change, this Pennsylvania policy clarification is a flagrant violation of federal Medicaid law. DPW figures it can get away with it because most Medicaid applicants and recipients do not have legal representation and those who have attorneys will still lack the money and the gall challenge the agency in court. As it has done in the past, DPW issues policy it knows is contrary to federal law because it can get away with it. It can take years to force DPW to stop trying to enforce illegal policy provisions.

Besides being unfair and illegal, the policy clarification is unavailable in the regular Medicaid policy handbooks and manuals. In fact, important parts of the policy handbooks are out of print and not available on the Internet. It is next to impossible for someone outside the agency to determine what Medicaid rules currently apply. As bad as it is to create unfair rules, it is worse to make unfair rules and keep them secret.

Pennsylvania Medicaid owes it to Pennsylvanians to promulgate fair rules that comply with federal law and, furthermore, to make the rules readily available in a comprehensive set of policy handbooks or manuals so those who need Medical Assistance will be able to discern what they need to do to qualify for the program.

John Payne, Attorney
1800 Grindley Park Street 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

DREAM Act 2011: Amnesthetize the Kids

The Development, Relief, and Education for Alien Minors Act, also known as the DREAM Act by acronym junkies, is pending in both houses of Congress. It is bipartisan legislation to help worthy young people who were brought to the United States as minors by undocumented parents. These young people are in a legal quandary: They are otherwise law-abiding, but have no way to achieve legal residence here. At the same time, they have little or no connection with their so-called national origins. It is unfair to call them illegal immigrants, since they were brought here at an age at which they had no choice in the matter. The DREAM Act would cure the legal status of young adults who have proven their value as potential citizens.

The DREAM Act would create a new status for aliens who qualify, conditional permanent residency. Young adults who came to the United States before age 16, at least five years before the date of enactment of the bill, might qualify. They would need to show that they have maintained good moral character and have a high school diploma or GED or have been accepted for admission by a college. Applicants would not qualify if they had committed crimes, were a security risk, or were removable for grounds other than lack of legal status. Conditional permanent resident status would be similar to lawful permanent resident status, except that it would be limited in duration.

We allow a vigorous underground economy to flourish. We employ low-wage undocumented workers and pay them under the table. We look the other way as unscrupulous employers bait the trap, then screech about how undocumented immigrants are breaking the law. We punish vulnerable workers, while the meat-packers, restaurants, and department stores that employ them barely get a tap on the wrist when they are caught.

Policing borders and building fences do not form an immigration policy. They are knee-jerk reactions to address a legislative need to pass laws, even if ineffectual. Exclusion does not work for drugs and it fails at controlling undocumented immigrants.

One answer is tougher sanctions for employers who flout the law. Another is a reasonable amnesty policy. Let us do something constructive, instead of whining about the problem.

Among other injustices, we punish immigrants from some countries, but welcome them from others. For years, anyone from Cuba who washed up on our shore was welcomed because he or she came from an undemocratic hellhole, but anyone from Haiti was sent back to that undemocratic hellhole. Where is the justice in that? Furthermore, entering the country illegally is not the same as killing a party store cashier or whacking a snitch.

“Illegal” residents who were brought here at an early age and have progressed through our schools successfully are given a raw deal. Despite having a high school diploma, or even a college degree, they are not permitted to seek employment legally. This is a huge waste of resources.

California is moving in the right direction. Governor Jerry Brown signed legislation in July that allows universities to give private financial aid to undocumented students. Another bill that is awaiting the governor’s signature would allow undocumented students access to public financial aid. We need national legislation to give these students legal status so that they can contribute to our national prosperity.

Inhumane and unwise laws against undocumented residents like those of Arizona and Alabama are a travesty. Residents who were brought here as minors are not law-breakers and usually have no ties to the countries from which they were brought. Most of them are fluent in both spoken and written American. They would be excellent workers and citizens. Foreign nationals who entered the country at an early age, who have no criminal history, and who have achieved a high school education should be offered at least a work permit, if not citizenship. That would be a fair policy and it would benefit all concerned. Stop punishing the innocent. Give them status in the country they call home. Amnesthetize the kids. Urge Congress to move forward on the DREAM Act.

John Payne, Attorney
1800 Grindley Park Street 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022