Pennsylvania Supreme Court Smacks Down Medicaid Agency

Yours Truly scored a victory for community spouses of Pennsylvania nursing home patients on Tuesday, May 29, 2008. On that day the Pennsylvania Supreme Court sent the Department of Public Welfare packing. It denied DPW’s appeal from the decision of the Commonwealth Court that DPW could not refuse to grant Medicaid based on a proper, Medicaid-compliant, immediate annuity purchased by the community spouse.

To start at the beginning, on February 5, 2003, Pauline Ross entered a nursing home. On April 8,
2005, Pauline’s community spouse, Leonard Ross, transferred $418,026.66 in marital assets into a Fidelity & Guarantee “Medicaid Qualified, Single Premium,Immediate Annuity.” Under the annuity contract, F&G pays Leonard $10,211.83 per month from May 15, 2005, to September 15, 2008. Leonard established the F&G Annuity so that Pauline would be eligible for Medical Assistance-Nursing Home Care benefits and to pass the marital assets on to the next generation. Leonard is the owner and sole annuitant of the F&G Annuity, and Leonard’s three children are the beneficiaries if Leonard dies before September 15, 2008. Pauline had no monetary interest in the F&G Annuity, and, after Leonard transferred the marital assets into the F&G Annuity, Pauline had no assets with which to pay for her nursing home care.

Pennsylvania refused to approve Medicaid for Pauline, claiming that the annuity could be sold to J.G. Wentworth at a 40% discount, an immediate payment of $250,000. Pauline, according to the Commonwealth, had that much in available assets.

There were several problems with DPW’s case. First of all this would be a loan, not a sale, and loan proceeds are not considered an asset under Medicaid law. Secondly, there was solid testimony proving that F & G would not permit J.G. Wentworth to purchase the annuity. Finally, federal Medicaid law clearly permits exactly this sort of transaction. Pennsylvania and only four other states try to deny Medicaid in such cases.

An administrative law judge–a DPW employee, of course–ruled against Ms. Ross. She said Mr. Ross would have to dump the annuity on J.G. Wentworth and lost 40% of his investment. On appeal, the Pennsylvania Commonwealth Court pummeled the Department. It ruled that Mr. Ross was within his rights to invest in an annuity and his wife is entitled to Medicaid. Tuesday’s ruling by the supreme court was the final smackdown. Pennsylvania’s highest state court told DPW it could not deny Medicaid based on a properly amortized Medicaid-friendly annuity purchased by the community spouse.

Tuesday’s ruling also completed the tri-fecta. Two federal district courts had already told DPW it was acting illegally. Those cases were Mertz, ex rel. Mertz v. Houstoun, 155 F. Supp. 2d 415 (E.D. Pa., 2001), and James ex rel. James v. Richman, 465 F. Supp. 2d 395 (M.D. Pa., 2006). DPW appealed the James ruling to the federal court of appeals, but has little chance of winning.

This decision means that if your spouse is in a nursing home, you can preserve a substantial amount of money through an annuity, in addition to the 50% or $104,400 the DPW says you can keep. This annuity purchase is done after your spouse is in a nursing home. If an annuity sales person tells you to put your money into an annuity now, in case you or your spouse needs to go into a nursing home, run–do not walk–away. However, if your spouse is in a nursing home in Pennsylvania and your assets, apart from your house and one care, are higher than $25,000, we can help you save the excess. Call us for a consultation.

John B. Payne, Attorney

Dearborn, Michigan & Pittsburgh, Pennsylvania

(800) 220 7200

FAX (313) 562 3340

©2008 John B. Payne, Attorney

www.law-business.com

Sun Life Time Bombs in Your Desk Drawer

Sun Life Assurance Company of Canada demutualized on March 22, 2000. This means that it went from being a mutual company in which each policy owner also owned a piece of the company to being a corporation owned by shareholders.

For lack of a better way to inconvenience its policy owners, Sun Life made them shareholders and sent them stock certificates. Doing so made tens of thousands of unsuspecting survivors of the Depression into corporate investors. For many of them, this will become a catastrophe that Sun Life could have avoided had at least one person in the company’s headquarters given the matter a little thought.

Many of Sun Life’s policy owners bought their insurance in the ‘40s or ‘50s. They are survivors of the Depression and World War II, who would never willingly invest in the stock market. Sending a stock certificate to them was like sending a Rabbit cork extractor to someone who had never pulled a cork out of a wine bottle–with no instruction sheet.

They received an important-looking piece of paper that they did not understand, just as the non-wine drinker would not know the Rabbit from a tire-pressure tester or a meat thermometer. He or she could probably figure from the sharp wire spiral that the Rabbit is not a sex toy, but beyond that would have no clue as to what it is. The Rabbit would be thrown in the junk drawer and eventually discarded. Similarly, the Sun Life stock certificate would be thrown in a desk drawer, soon to be lost forever. The policy owner would be totally unaware of how crucial and troublesome the loss of that pretty certificate would be.

If the problem were only the loss of the value of the stock, that would be a minor inconvenience. However, it is much worse than that. If the policy owner ever needs public benefits, such as Medicaid or housing assistance, the value of the stock can present a formidable obstacle. In the worst case, the policy owner might apply for public benefits without revealing ownership of the stock–after all he or she doesn’t even know what that certificate means–and be charged with fraud. Otherwise, the worker will ask about the stock that accompanies the life insurance and several months of benefits will be lost while the shareholder tries to get a new certificate. Similar problems will arise if the shareholder dies. Many probate estates will be opened for no reason other than to liquidate Sun Life stock.

If you or a family member lost a Sun Life stock certificate, you will find it is almost as hard to replace as your wife’s trust after an Eliot Spitzer incident. Here is a copy of the letter received by one hapless Sun Life policy owner:

Sun Life Assurance of Canada Letter to Policy Holder

The first obstacle in requesting a replacement certificate is that the Affidavit of Loss/Agreement of Indemnity must be filled out in triplicate and each of the three originals must be notarized. This is not too onerous–it only requires a trip to a national bank–but check out the requirements for an agent under a power of attorney to request a replacement certificate.

Many older citizens can no longer handle financial affairs and entrust their business to an agent under a power of attorney. According to the letter, Sun Life requires “the original or Notarial Copy of the Power of Attorney to be presented and must be certified within 6 months of presentation to us by an acceptable guarantor if the original was not issued in the last 6 months.” It goes on to say that certifications are not acceptable from a notary or commissioner for oaths and that there must be a certificate of continued validity attached. U.S. transfers require a Medallion Signature Guarantee on the power of attorney. Unless a very knowledgeable bank officer or stock broker is involved, these documentation requirements cannot be completed without the assistance of an attorney.

Finally, after all this, the stockholder must send a certified cheque, bank draft or money order for 2% of the value of the stock in Canadian funds! Try to find a financial instrument in foreign currency in most parts of the United States if you feel the need to be frustrated for a change. Fortunately for my Michigan clients, Canada is just across the Detroit River. What about people in Nebraska or New Mexico? Are they going to have make a trip to Canada to get a $300 money order?

It doesn’t have to be that difficult. In the first place, it is the stock certificate that is being replaced, not the value of the stock. They do not have to make a federal case out of replacing a stock certificate that is only for a few hundred shares. Secondly, there is no earthly reason why Sun Life could not accept U.S. funds. Finally, there was no reason to issue stock certificates, at all!

When Metropolitan Life Insurance Company demutualized in April 2000, MetLife’s new shareholders were not sent stock certificates. They were informed that their new shares would be held in an account for them. All they need to do to sell their shares is to make a phone call–Ba da Bing, Ring, Ring! They would then get a check–Ba da Boom, Ching, Ching! It is as easy as that.

If you are planning your estate or assisting someone else, take a careful look at the life insurance portfolio. Sun Life Assurance of Canada stock is particularly problematic, but many other mutual companies converted to corporations and issued stock, either on account or in certificate form, to their policy owners. Find those stock certificates now, rather than later. Lost certificates will need to be replaced at some point and the lapse of time will not make replacement any easier.

Once the shares have been found, transfer the shares to the brokerage account where the person’s stock portfolio his held, or liquidate them if they are the only stock holdings. There is little reason for someone who does not regularly invest in stocks to hold a few hundred shares of one insurance company. They just create problems when it comes time to liquidate or manage the estate.

John B. Payne, Attorney
Dearborn, Michigan & Pittsburgh, Pennsylvania
(800) 220 7200
FAX (313) 562 3340
©2008 John B. Payne, Attorney
www.law-business.com 

Staying Put in a Nursing Home

Being in a nursing home is hard enough without being threatened with eviction. That is a problem that faces many of our most vulnerable citizens.

Nursing homes often prefer private-pay residents to Medicaid residents and will threaten to discharge a patient who goes on Medicaid. This is illegal!

Medicare rules are very clear that discrimination based on source of payment is illegal. Ensuring that the patient is in a bed that is eligible for Medicaid reimbursement is an administrative issue for the facility to resolve.

If a person resides in a nursing home that has any Medicare or Medicaid beds, there are only six grounds for eviction: (i) It is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility; (ii) The resident’s health has improved so the services provided by the facility are no longer needed; (iii) The safety of individuals in the facility is endangered; (iv) The health of individuals in the facility would otherwise be endangered; (v) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility; or (vi) The facility ceases to operate.

A resident cannot be transferred for non-payment if he or she has submitted to a third-party payer all the paperwork necessary for the bill to be paid. Non-payment would occur only if a third party payor, including Medicare or Medicaid, denies the claim and the resident refused to pay for his or her stay. A Medicare or Medicaid claim is not considered denied until after an administrative hearing has been requested, held, and decided.

Nursing homes may not put a person who is already in the home on a waiting list for a Medicaid bed. A resident who becomes eligible for Medicaid is entitled to the next available Medicaid bed. Some nursing homes will try to convince the family that the resident must be moved. If that happens, consult a competent Elder Law attorney.

A nursing home may try to claim that the resident’s needs cannot be met when the only problem is that the resident’s care is more expensive or more time-consuming than the facility operator would prefer. This is not grounds for discharge.

Transfers of this sort often stem from the facility’s desire to specialize in a particular type of patient or care–e.g., Alzheimer’s, respite or short-term rehabilitation– to maximize reimbursement or streamline care requirements. Neither the Reform Law nor Medicare or Medicaid law recognizes or supports such distinctions. There is no basis, therefore, for a discharge simply because the resident may now require long-term custodial care rather than rehabilitation, or no longer qualifies for Medicare-covered skilled care. The Nursing Home Reform Law states that every nursing facility “must provide services to attain or maintain the highest practicable physical, mental and psycho-social well-being of each resident” … “in such a manner and in such an environment as will promote maintenance and enhancement of the quality of life of each resident.” This means that care must be individually tailored to best serve each resident, with reasonable accommodation of individual needs and preferences and sufficient staffing (nurses, aides, and speech, occupational and physical therapists) to ensure the health and safety of all residents.

Nursing home residents have many rights under state and federal regulations. There are also state agencies that are directed to enforce those rights. If you think you or someone you care about is being treated badly in a nursing home, call the state nursing home ombudsman or the state agency that licenses nursing homes. Or call an Elder Law attorney if you have trouble finding out how to contact the state enforcement agency.

John B. Payne, Attorney
Dearborn, Michigan & Pittsburgh, Pennsylvania
(800) 220 7200
FAX (313) 562 3340
©2008 John B. Payne, Attorney
www.law-business.com