Many thanks to Wellness at Brown for hosting Friday’s program on Elder Care Law. It was an excellent turnout with many astute questions from participants.
As promised, attached are the slides which I presented. In the continuing Q&A after the program, I indicated I would post a link to a blog post which I had written on the myth of the requirement for “improvement” to obtain or continue benefits under Medicare for skilled nursing home care. If you review this post, I encourage you to link through to my earlier post which explains the basics of the issue.
If you and your family are facing these types of issues now or in the future, please don’t hesitate to reach out to us.
And now, on to the main point of today’s post. An expanded, full-length version of that article has now been published in the Summer 2016 issue of the Roger Williams University Law Review.
From the dark period beginning in the 1700s to the present day provisions, the 35-page article provides an in-depth look at the evolution of guardianship laws in our state, and in particular, the grounds for the initiation of a guardianship proceeding and the procedural rights of the individual for whom the guardianship is sought.
1984 doesn’t seem like that long ago. But at that time, only a little over 30 years ago, guardianship laws in this state were stuck in 1905. And in 1905, laws were only a marginal improvement over the colonial era laws first enacted in 1742. It’s hard to fathom, but in 1984, a person in this state could be classified as an “idiot, lunatic, or person of unsound mind” and stripped of his or her personal autonomy.
The evolution of guardianship law in Rhode Island has been equally fascinating and frustrating. The 1992 Act and subsequent updating have brought about significant modernization to the law. Nevertheless, there are those who believe that there remains more to do.
I have written about this topic in an article published in the current issue of the the Rhode Island Bar Journal. If you’d like to read more, see The Evolution of Rhode Island Guardianship Law in the May/June 2016 issue, beginning on page 5.
This post will focus on one of these–Section 6–which seeks to directly affect the limited opportunities for middle-class Rhode Islanders requiring Medicaid long-term care services to preserve some of their assets. The changes in this Section 6are all to Rhode Island General Laws §40-8-15 entitled, “Lien on Deceased Recipient’s Estate for Assistance”.
First, the Governor’s proposal seeks to expand “estate recovery” to assets passing outside the probate estate. Literally twenty years ago, in 1995, the State amended this section of the General Laws to conform with a federal law requiring states to put claims on the probate estates of deceased Medicaid recipients. The federal law, called “OBRA ‘93”, enabled the states to, if they chose, “expand” their estate recovery to non-probate assets.
The large majority of states chose, as Rhode Island did, to limit its estate recovery efforts to probate assets. This was the procedure utilized by the Department of Human Services for the next seventeen years.
In 2012, however, the State sought to expand its estate recovery to include non-probate assets. This would means, for example, that real estate held jointly by a mother in a nursing home on Medicaid with her adult son, which would ordinarily pass without a claim to the adult son, would now be subject to the State’s lien. Due to the dramatically increased efforts which would be required by the Department of Human Services to accomplish this “expansion”, as well as the House Finance Committee’s understandable distaste for adding any additional pain beyond that required by federal law, this proposal was roundly rejected by the House Finance Committee.
Also rejected in 2012 was a proposal by the State to put so-called “lifetime liens” on property of certain Medicaid recipients. Presently, as long as the Medicaid recipient declares an intention to return to his or her home, the home remains an exempt asset. While the home is potentially vulnerable post-death if it passes through probate, there is no impact during the life of the Medicaid recipient (unless the property is sold in which case the Department of Human Services needs to be notified).
In 2012, the House Finance Committee also rejected this effort to impose “lifetime liens”. It did, however, enact two statutes that provided additional protections to the Department of Human Services to prevent properties belonging to current or deceased Medicaid recipients from being sold without the Department’s notice.
Fast forward to May 7, 2015. In Section 6 of “The Reinventing Medicaid Act of 2015”, the current administration “doubles down” on the efforts made in 2012. Apparently unaware of the drubbing these proposals took by the House Finance Committee in 2012, the Raimondo administration has tried them again, adding to them an additional extraordinary provision which would allow the Department to collect interest at the rate of 12% per annum on its claims.
You read that right – 12%. Your CDs are not even getting 1%. The 10-year U.S. Treasury bill is getting slightly more than 2%. But the Governor proposes that the State, unlike any other claimant in a probate estate, receive not only a statutory rate of interest, but a rate equivalent to that which a successful party in civil litigation would enjoy after obtaining a judgment.
But wait – there’s more! Section 6 of “The Reinventing Medicaid Act of 2015” adds an entirely new section which would deal with eligibility for long term care Medicaid, not just estate recoveries. It attempts to graft onto the estate recovery provisions statutes—not regulations as currently exists—regarding asset transfers and eligibility requirements for long-term care Medicaid. And as an added bonus, it is a remarkably poorly written, referring to terms like “annuity”, “penalty period” nowhere defined in the Rhode Island General Laws.
On Tuesday evening, May 19th, I testified (video below) before the House Finance Committee in opposition to Section 6 of the Act. Some of the Committee members were the same Representatives who heard and rejected the previous attempt in 2012.
I am confident that the House Finance Committee and the House the Representatives as a whole will again reject this aggressive and unnecessary attempt by the State to add pain to Rhode Islanders who already have the misfortune of suffering from a chronic illness or condition requiring them to seek long-term care Medicaid benefits.
A recent issue of the New Yorker magazine contained an extended piece about the “Piano Man”, Billy Joel. In the article, the author described Billy Joel’s monthly sojourns from his estate on Long Island to sold-out shows at Madison Square Garden.
After performing for 20,000 enthusiastic fans in New York City, while in the private helicopter on the way home to Long Island, looking down on the views of the New York skyline and Long Island Sound, the writer quotes Billy Joel as saying “I love this job”! (Actually, Billy added an adjective—one not suitable for inclusion on this blog– to his emphasize his gratitude.)
I cannot sing or play a musical instrument. The “venue” in which I primarily work is a small, yet comfortable conference room. I do not have an audience ready to have fun, but instead clients who are often anxious about a situation facing them.
For example, the day after I read the New Yorker article, I met with a woman and her intelligent and devoted daughter. My client was worried about the sudden decline in the condition of her husband and alarmed at the impact of his future illness on their financial well-being. Her daughter was concerned about both of her parents and was there to provide support.
After an initial meeting lasting nearly two hours, the daughter turned her mother and said, “You see, Mom it is not nearly as bad as you thought it was going to be”! The wife then raised her hand to her daughter and they exchanged “high-fives”.
As I was driving myself home that evening, I reflected that despite the vast gap in talent (plus methods of commuting) Billy Joel and I have one thing in common – we both love our jobs.
Yet another thing for which to be grateful on this Thanksgiving weekend.