The Weight of the Nation

“The Weight of the Nation” is a four-part documentary on the national obesity epidemic that starts May 14, 2012 on HBO. In a May 10, 2012 video editorial, “The Tax Code Diet: The Institute for Medicine gets political on obesity,” Dan Henninger and Joe Rago, of the The Wall Street Journal, mock the documentary and the Institute of Medicine report on which it is based. http://online.wsj.com/article/SB10001424052702304070304577394051312808264.html
Their neo-Con “all government is evil” attitude should be seen as an unqualified endorsement of companies that push unhealthy eating habits to maximize profits with no regard for the health of their consumers.

Henninger and Rago, neither of whom are obese, do not deny that the nation has a problem. However, they ridicule the idea that the government might have a role in encouraging healthy eating. They claim that what one eats is a matter of individual choice and that the government should not attempt to regulate food packaging and advertising. They further argue that unhealthy products like carbonated soft drinks loaded with high-fructose corn syrup and caffeine should not be taxed to subsidize anti-obesity and healthy diet programs and other health costs attributable to those products.

Do the neo-Cons oppose food-safety inspections and regulation to protect us from pathogens like salmonella or mad-cow disease? Some social Darwinists would place all responsibility for food safety on processors and vendors. They would say, “Let the market sort out which manufacturers poison us and should go out of business, but even most neo-Cons would agree that we rely on the government to enforce food safety rules. When we buy beef or carrots at Piggly Wiggly we have confidence that the products are not drenched in E. coli because of government oversight.

Our food supply may be free of disease-causing pathogens, but what about high-fructose corn syrup, salt, and aspartame? What about the absurd mounds of fat, sugar, cheap meat, carbohydrates, and salt that Applebees, Burger King, Cheesecake Factory and other restaurants call “meals.” People tend to be gullible and when the restaurant calls something a “meal,” many customers will assume that what they will be served is a reasonable portion for one person to eat at one sitting. The restaurant is playing on customer’s credulity when it serves an “appetizer” with 1,500 calories or delivers a mass of food that exceeds 2,300 calories and calls it a meal. At the very least, calorie counts should be displayed on the menu or bill of fare.

In the supermarket, trusting consumers are fooled by advertising and packaging into thinking that candy is a healthy breakfast and cookies are nutritious snacks. The frozen-food aisle is crammed with pre-prepared entrees labeled “heart-healthy” or “lean” that barely qualify as “food.” Judging by the ingredient lists, which are often barely legible, a product might be lasagna or animal shampoo. Few shoppers have the time or the ability to really decipher what they are buying. They do not realize that “organic” and “natural” and “fresh” and “heart-healthy” are just advertising gimmicks that have no meaning. Shoppers assume that the government keeps food processors, distributors and retailers honest. That is far from the case, with some reasonable reforms shoppers could have the protection they deserve.

Watch “The Weight of the Nation” with an open mind. There is a crisis of obesity in the United States and we must curb our eating – particularly with regard to children. By allowing our children to overeat we are condemning them to a lifetime of obesity and all of the health problems caused by excess weight. We as a nation must address the problem and the government has an important role to play.

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

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

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

Fleecing the Deceased

Michigan’s Medicaid program has started estate recovery. As of July 1, 2011, on the death of a Medicaid recipient who received Medicaid benefits after age 55, the estate recovery minions will send the family a letter demanding cooperation in recouping the benefits paid by the state. The state contracted with HMS Holdings Corp. (NASDAQ: HMSY) to pursue the estates of Medicaid recipients, presumably for a piece of the estate-recovery pie.

HMS has wasted no time. My clients’ kin and I started receiving letters and questionnaires regarding deceased Medicaid recipients at the beginning of August. It is too soon to tell how aggressive HMS will be, but experience with private collection agencies suggests that they will squeeze as much as possible out families, with little concern for the legal limitations on when, from whom, and how much recovery is legally permissible.

As determined as they are to repeal the estate tax to protect the property of wealthy decedents, TEA Partiers and other conservatives are surprisingly blasé about the state grabbing the homes of poor ones. There are no millionaires on Medicaid. Millionaires do not apply for Medicaid because they do not go in nursing homes. They stay at home and hire caregivers, or they move to comfortable apartments in high-end continuing-care retirement communities.

Estate recovery grabs the homes of persons who die with nothing but their homes. Usually, the homes are very modest, but for a family on the edge of poverty a small legacy could help a son or daughter avoid homelessness or start a grandchild toward a college degree.

The new Medicaid policy was promulgated effective July 1, 2011, but it applies to all Medicaid recipients who were over 55 and received benefits after September 30, 2007. There are many grey areas regarding what estates may have Medicaid claims filed against them and what would be covered by a hardship exemption. Whether an estate that was opened and closed before July 1, 2011 is safe from the state’s Medicaid claim is unclear. It will depend on whether the courts decide that Medicaid was entitled to notice as a “known creditor” before July 1, 2011. It is also unclear whether the personal representative must fill out HMS’s questionnaire and apply for an exemption from Department of Community Health or lose the exemption. Filling out the questionnaire is “voluntary,” but it says in the fine print that failing to send in the questionnaire would cause the loss of the exemption.

There can be no estate recovery if the Medicaid recipient is survived by a spouse. There can also be no estate recovery if the estate consists of the home and a family member who meets certain technical requirements lives in the home. Any survivor of a Medicaid recipient who receives a letter and questionnaire from HMS should consult an attorney to find out whether there is an exemption that can be taken. Do not rely on the advice of HMS agents at the toll-free number on the letter.

Whether HMS will respect the legal boundaries on its collection authority is an open question. At least some HMS representatives will be like the police officer who gives Miranda warnings then says, “The law says I have to read you your rights, but if you ‘lawyer up’ I will not be able to help you.” An amazing number of persons in custody confess to crimes they did not commit because the police convince them it is in their best interests–this is not a joke! At least some HMS agents will do the same. They will say, “Yes, you can claim an exemption, but I can no longer cut you a deal if you do.”

Collection agents have a lot of practice talking people out of money, while the surviving next of kin who are being targeted for collection efforts will have little or no experience dealing with them and often will not know their rights. The agents will have only one objective–getting as much money out of the surviving family as possible, in the shortest time. They are not be paid to be fair; they are paid to bring in money. Trying to deal with HMS without an attorney is like going to a gunfight with a rubber knife.

Medicaid Estate Recovery is a new program in Michigan, with a lot of grey areas that make it difficult to know whether a given estate is vulnerable. Even in Pennsylvania, where estate recovery has been in place for nearly a decade, there are many uncertainties. It is vitally important to consult an Elder Law attorney before responding to a letter from HMS. It is also important to talk to an Elder Law attorney if you or a close relative is nearing the age where long-term care is more likely, or if you have a loved one who already needs long-term care. Nursing care is expensive, whether at home or in a nursing home. An Elder Law attorney can provide valuable advice about how the expense can best be managed.

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

Minnesota: Government by Truculent Four-Year-Olds

Traveling on I-94 near Ann Arbor, Michigan, I pulled into a rest area today. This is a privilege denied to motorists on I-94 in Minnesota, since Gov. Mark Dayton and the Minnesota legislature are acting like truculent four-year-olds. They shut the state down over a budget disagreement. From border to border, I-94 runs 260 miles through Minnesota. That is four hours of driving without a rest area, which is dangerous–not merely unpleasant and uncomfortable.

A political conflict is understandable, but shutting down state parks, highway rest areas, and other state amenities, not to mention really vital services, is unforgivable. Each side is betting that the public will blame its opponents. To a large degree, this is what will happen.

Right-wingers listen to right-wing radio and Fox News. They hear and believe accusations against the left. Liberals do not have left-wing radio or a left-wing network, but they listen to Rachel Maddow and John Stewart and dismiss right-wing radio and Fox News as a pile of bovine manure. They hear and believe blame levied on right-wingers. Those on the right are likely to blame liberals for the shutdown, but liberals are equally likely to blame the right for the shutdown.

That engineering a state shutdown is a sound political strategy does not make it either right or pardonable. Furthermore, these spoiled, immature jerks intentionally made the shutdown as unpleasant for the public as possible. For example, closing facilities like state parks and highway rest areas was unnecessary. Various nonprofits, such as service clubs, churches, and support groups, could have been recruited to maintain services at such state facilities.

We already have an Adopt-A-Highway program, which relies on service clubs and other organizations to keep parts of the freeway system clean. There is no reason that nongovermental groups could not operate highway rest areas, campgrounds, beaches, libraries, and such facilities. This would require a more extensive operation than Adopt-A-Highway, but it would also provide more chances for charities to solicit donations or make money providing services. However, it would require elected government officials to be more concerned with the welfare of the citizens than they are about political advantage. That is why it does not happen.
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

Side Effects May Include Painful Death

Profiling Nora Volkow, the head of the National Institute on Drug Abuse, the New York Times pointed out that abuse of prescription drugs is eclipsing the abuse of illegal drugs. Abigail Zuger, “A General in the Drug War,” The New York Times at D1, June 14, 2011. According to the article, from 2000 to 2010, hospitalizations related to prescription drugs increased by 400% and overdose deaths by 300%. Recreational use of prescription narcotics by high school seniors exceeds the use of heroine and cocaine, combined. It is not just a coincidence that prescription drug abuse has shot up at the same time direct-to-consumer (DTC) commercials for prescription drugs took over the one-eyed babysitter. Consumers are conditioned to resort to prescription drugs for imagined (restless-leg-syndrome) as well as real (arthritis) maladies. The conditioning is not limited to consumers for whom the drugs are intended; it is directed at the public at large. It should be no surprise that abuse of prescription drugs is on the rise.

A commercial in which a pathetic schlub who cannot pull the tab on his beer is transformed by an arthritis medication into an extreme athlete pulling 720s on a skateboard is a powerful incentive for couch potatoes to try some. They will not pay attention to the droning narration of possible side effects: “May cause anorexia, bloating, cardiac arrest, diarrhea, echolalia, flatulence, gonorrhea, hydroencephalism, incontinence, jaundice, kinesia, laryngitis, menopause, nephritis, onychomycosis, psychosis, quadriplegia, rubella, synesthesia, tremors, urethritis, vertigo, warts, xerophthalmia, yawning, and zoonosis. All they see is a lummox like them turning into the jock they want to be.

People should stop believing commercials. If Pfizer® spends 30 Big on a Lipitor® campaign, it is not for the benefit of consumers with cholesterol problems. Pfizer® does not care whether a patient has high cholesterol or not. Pfizer® is trying to convince everyone to hit up a doctor for a Lipitor® prescription. They want the patient to say to the doctor, “I do not have high cholesterol now? I need Lipitor® to keep from getting it.” The commercials are intended to convince every watcher that he or she needs Lipitor®.

You do not believe your brother-in-law when he promises that this time he will pay you back. Not when he has hit you up for loan after loan for crackbrained schemes or to buy things that you cannot afford. You do not believe your neighbor when he promises to get your edger back to you in good shape. Not after he returned your mower with a broken blade, lost your cordless drill, cut the cord on your trimmer and sold your circular saw on craigslist. Do not believe advertising claims–especially DTC advertising for prescription drugs. Let your doctor tell you when you need a drug, not the manufacturer that makes a profit selling it to suckers whether they need it or not.

For a compilation of drug commercials and the side-effects of the products they promote, go to:

http://www.vaughns-1-pagers.com/medicine/prescription-drug-tv-ads.htm

The New York Times has an in-depth examination of prescription drug ads at the following URL:

http://roomfordebate.blogs.nytimes.com/2009/08/04/should-prescription-drug-ads-be-reined-in/

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

A Caution for When Your Kids Go to College

Having two daughters who recently graduated from college, I have a couple of suggestions for parents of college freshmen. After the first couple of semesters, my wife and I learned that we needed to be named as authorized representatives to speak to the college bureaucracy and as joint tenants on our daughters’ bank accounts. We had too many conversations like this:

Parent: My daughter just received a notice that her tuition was not fully paid.

College Functionary: Unless Form 31E, Confusing and Redundant Appointment of Person for Occasional Liaison with Administration has been signed by the student, we can only speak to her.

Parent: But I fully paid the tuition bill you sent me. Why do you now want an additional $250 for Nuclear Physics Laboratory Fees? My daughter is a music major and doesn’t take Nuclear Physics.

College Functionary: Did your daughter sign the CRAPOLA?

Parent: No, but I pay her tuition and it says that if the $250 is not paid by three weeks ago there is an additional $250 late fee.

College Functionary: We can’t talk to you with no CRAPOLA.

Parent: How do I get a CRAPOLA?

College Functionary: If you don’t have a CRAPOLA, we cannot send you a CRAPOLA.

Or this:

Parent: I want to deposit $200 in my daughter’s account, but I do not have the account number.

Bank Teller: Are you on the account?

Parent: No, but I just want to make a deposit.

Bank Teller: We cannot give you any information about the account if you are not on it.

Parent: I do not want any information, I just want to make a deposit. I can give you her name, her address, her Social Security Number, her date of birth, and the fact that she has a birthmark shaped like the state of California on her left butt cheek. It’s an emergency.

Bank Teller: I’m sorry you are having an emergency, but it is not the bank’s emergency and I cannot give you any information, including the account number if you are not on the account.

College students are generally clueless about how to deal with a bureaucracy. Without parental assistance they are likely to take unnecessary classes, miss registration deadlines, sign up for classes at conflicting times, and generally make mistakes. There is much to be said for learning by experience, but if the parents are footing the bill, they are the ones who get the painful lessons.

We also make sure that our daughters’ bank accounts have branches both where they go to school and where we live.

I also advise parents to have their sons and daughters sign powers of attorney. This can be extremely important if there is an accident and the parent has to deal with doctors, hospitals, police, and other third parties.

College students want to be independent and they may not want their parents to have access to their school records. However, this is one time when parents know better and must “parent up.” If your college student is in a hospital 400 miles from home and there are no close relatives near by, what are you going to do if you have no authority to talk to the hospital and school administrators.

Making friends is an important part of college life, but college friends do not pay attention when someone does not show up for class or come out of the dorm room. Furthermore, college friends have no authority to intercede on another student’s behalf with the authorities.

You do not stop being a parent when your son or daughter is at school. Make sure that you have the tools you need to act the part.

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

Can the Kahn Plan

Medicaid is again being staked out, like the goat in “Jurassic Park,” for the Michigan legislature to prey on. However, unlike the T-rex that spurned easy meat, our legislators will chow down on anything that is not protected by special interests. This time it is estate recovery. Families of limited means and communities where they live have no mighty lobbyists, so they lack defenses against the slavering maws of senate budget raptors. Contact your representative and senator to let them know you oppose Senate Bills 404, 405, and 406.

Medicaid pays nearly half of Michigan’s nursing home costs of approximately $2.5 billion. The federal government covers approximately 60% of the $2.5 billion, so the cost to the state is around $1 billion. This is a tempting target for budget hawks, TEA Partiers, and other conservatives who want to cut back social programs. Estate recovery is a well-loved weapon to aim at the Medicaid long-term care program.

The federal Medicaid program requires states to pursue reimbursement from the estates of persons who die receiving Medicaid for long-term care. However, estate recovery only applies to the estates of single persons; and countable assets are limited to $2,000 in the absence of a spouse who is not in a nursing home. This generally limits the reach of estate recovery to the person’s exempt homestead, so what we are talking about is a program to grab the houses of deceased single Medicaid recipients from their families. A 2004 national survey by the ABA Commission on Law and Aging found that the average recovery per estate was only $8,116 and the median $5,081, so a program that concentrates on seizing the homes of nursing home patients when they die will not produce a huge windfall for Medicaid.

Tara Velting, writing for the right-wing Mackinac Center, asserted that the state could recover 5% of $1.7 billion in Medicaid long-term care costs, or $85 million. TaraLynn T. Velting, “Michigan Dithers on Medicaid Estate Recovery,” August 7, 2006, accessed June 12, 2011 at http://www.mackinac.org/7856. This assumes that Michigan will approach Oregon’s 5.8% effectiveness in estate recovery. There are several fallacies in Tara’s calculation.

First of all, Oregon is an anomaly. The estate recovery programs in the other 44 states and four commonwealths recover less than 2%, on average.

Secondly, she is not factoring in program costs. State Medicaid programs are very tightlipped about program costs and every state or commonwealth operates differently, so these costs are hard guage. Some estate recovery programs are entirely operated by state employees, while other programs rely on private collectors who receive a portion of what they bring in, but based on typical bureaucratic inefficiency and the likelihood that private collectors will get to keep at least 20% of what they recoup it is likely that one third of the gross amounts recovered will be consumed by program and collection costs.

Finally, the state would not get to keep all of the funds collected. A pro rata portion of the recouped Medicaid costs would go to the federal government.

A more realistic assessment of the Michigan’s annual net estate recovery receipts would be 1% of $1 billion, or $10 million, beginning in 2014. In the meanwhile, the state would spend upwards of $5 million to put the program in place. Despite this dismal prognosis, the Snyder Administration decided to pursue estate recovery.

Michigan Department of Community Health is in the process of implementing estate recovery, although the program will exempt homes “of modest value” and the policy provisions include several exemptions for “undue hardship.” Republican Senator Roger Kahn, of Saginaw is not satisfied with DCH’s plan. He has introduced a set of bills that would eliminate all exemptions and exceptions and expand estate recovery to go after the decedent’s dentures and spare nightie. The Kahn plan would certainly not exempt homes of modest value, or real estate owned jointly with other family members.

If the upside of estate recovery is $10 million a year against a $2.5 billion program, what is the downside? What is wrong with estate recovery, and if the DCH plan is misguided, why is the Kahn plan a catastrophe?

1) First and foremost, it will be a disaster in older neighborhoods. Most Medicaid estates will be limited to a modest home in an older neighborhood. If the state will be seizing the home on the Medicaid recipient’s death, families will decide not to maintain it. By the time the nursing-home resident dies, the home will already have deteriorated. Once the state gets the property it will probably be sold at auction to a purchaser who is, or aspires to be, a slum landlord.

2) It may deter some older persons from seeking needed long term care. The realization that the state will take their home after their death may deter some older persons from seeking necessary care, which could aggravate their health problems. It is an estate tax on modest estates while multimillion dollar estates are passed on tax-free under federal Estate Tax. Estate recovery will take 100% of a Medicaid recipient’s estate.

3) It will result in the loss of family homes and farms. Unless the heirs are able to reimburse the state for the recipient’s Medicaid costs, the home or farm would have to be sold. This is not too disturbing when the decedent had been living alone and the home or farm was only that person’s property, but that is not always the case.

Families of modest means frequently own property together and family members may have been living with, and caring for, the nursing home resident before long-term care became inevitable. A disabled son or daughter may have nowhere to go if the home is sold. A farm may have been inherited by several sons and daughters, who have all been working the farm and investing in it. There is no exception in the Kahn plan to accommodate such common situations.

4) Estate recovery complicates Medicaid and makes it more arbitrary. Good estate planning advice will allow people to maximize what they can protect, while those with the least to protect will have their estates cleaned out.

5) Estate recovery is used to scare seniors and their families into nefarious estate-planning and investment schemes. Trust mills and unscrupulous insurance agents use seminars to sell overpriced and unnecessary annuities, trust kits, and life insurance. Estate recovery gives them added ammunition to bag their unsuspecting prey.

Senator Kahn’s plan is grossly unfair to seniors and their families. Furthermore, it is unnecessary and premature. DCH already has a plan in place. The legislature should wait to see how effective it is. Please contact your legislator to oppose the Kahn plan, today.

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

Here’s to Jennifer

If you are in the Pittsburgh area, the name Jennifer Antkowiak is a familiar one. She is a morning news co-anchor on Pittsburgh’s premier television channel, KDKA. However, Jennifer is also a strong and forceful advocate for those who provide care to persons with disabilities. Jennifer spoke to the Elder Law Committee of the Allegheny County Bar Association, of which I am a member, on Thursday, May 12, 2011. She described the problems and burdens caregivers face and told us about her books and website. I would not comment about a mere television personality, but Jennifer’s message is much more important than what neighborhood has a ruptured water main or who at city hall has been philandering as well as pandering. We have a crying need to take care of our caregivers and Jennifer devotes considerable time and effort to make us aware of that need.

Jennifer could be described as a high-potential over-achiever. She is one of those who take on difficult roles on top of impossible tasks. She was balancing her career with raising small children and being a wife and homemaker in the early 2000s. That alone would have been too much for most women and nearly every man. However, when her husband’s parents were diagnosed with the cancers that took their lives, Jennifer became first her caregiver, then his, as well.

The experience of being a caregiver for generations on both sides of the age divide at the same time gave Jennifer profound insight into this immensely difficult job. Although there are many rewards in supporting and caring for one’s parents or other relatives who are in need of that care, this taxing role can sap the health and shorten the life of the caregiver.

Jennifer’s experiences prompted her to become a champion for caregivers. She is the author of two books: Take Care Tips: How to Care for Yourself While You’re Taking Care of Others (St.Lynn’s Press, March 2009) and Caring Questions: Fun and Sensitive Conversation Starters (St. Lynn’s Press, October 2009). These thought-provoking, inspirational, and witty books provide vital lessons in both how to be a better caregiver and how to maintain your own mental and physical health in the process. Anyone who has a caregiver role and anyone who is close to a caregiver needs to read these books.

Jennifer also created an informative website, , and formed several organizations to assist caregivers and promote their interests. Please visit her website and order her books. Also, help every caregiver you know with moral support and sincere offers to give them every kind of assistance you can think of. Just knowing that you care enough to offer helps, but if you are able to shoulder some of the responsibility of providing care, you will provide a boon beyond description to someone who truly deserves it.

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