Elder Law Section News
Summaries of 2008 Legislation Enacted
2008 Legislation Enacted (.doc)
Elder Law Section takes formal position on SB 1124
SUMMARY GUARDIANSHIP FOR MENTALLY ILL INDIVIDUALS SB 1124 (.doc)
SUMMARY GUARDIANSHIP FOR MENTALLY ILL INDIVIDUALS SB 1124 (.pdf)
The Elder Law Section has voted to support SB 1200 by Senator Wise and the companion bill in the House, HB 665 by Elder Law Section member Elaine Schwartz, dealing with Alzheimer's Memory Screening.
Legislative Request Form
Alzheimer’s Memory Screening Bill
Section Article - Florida Bar News 10/07
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Evaluating Annuities, Letter to Annuity Issuer and other forms...
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State of Florida
Department of Children and Families - Memorandum
October 31, 2007
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Hearing office finds that purchase of financial product creates penalty period. 3/6/2007 :: Elder Law Section Executive Committee
Hearing office finds that purchase of financial product creates penalty period.
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Proposed Revisions to Rule 65A-1.712 Published 2/23/2007
2/23/2007 :: Elder Law Section Executive Committee
Attached is the proposed revisions to Rule 65A-1.712, published 2/23/07, along with the existing rule for full comparison. This starts a 21 day clock to request a public hearing to be held on MARCH 20, 2007. There will be an opportunity to challenge the proposed rule within 10 days after the public hearing or within 20 days after publication of any changes that may occur.
Guardianship Committee Year-End Meeting
12/18/2006 :: Elder Law Section Executive Committee
Monday, December 18, 2006
4:00 p.m. via conference call
Call-in Instructions:
At the specified date and time dial 1-877-394-0659. You will be asked to enter your pin number: 788413# (you will be put on hold if the chair has not yet joined.) If you have any problem dial *(star) 0 and an operator will come on to assist you.
Guardianship Committee Meeting Minutes
September 8, 2006
Congress Passes New Medicaid Eligibility Law
2/27/2006 :: Elder Law Section Executive Committee
On February 1st, the United States House of Representatives took the final step in passing Senate Bill 1932, the Deficit Reduction Act of 2005. On February 8th, President Bush signed the Bill into law. The new law changes Medicaid eligibility rules to make it harder for middle class people to access the Medicaid program to pay for nursing home, assisted living and other long-term care. The bill is effective as of February 8, 2006. The following article describes first the political issues and then the substantive ones.
All legitimate senior and disability advocacy groups took strong positions against this bill and Elder Law Attorneys fought hard. In the end, the vote came down to 2 congressional representatives. The vote was 216 to 214. All Democrats voted against the bill and some of the more moderate Republican members joined the Democrats in opposition. For example, Republican Rob Simmons of Connecticut boldly opposed passage of the bill. The House vote followed on the heels of a tied vote in the United States Senate where Vice President Cheney cast the deciding vote.
"This is a product of special interest lobbying," said Representative John Dingell, a Michigan Democrat, who is the longest-serving member of the House, "and the stench of special interests hangs over the chamber as we consider it today."
Elder Law Attorneys will work with caring legislators in an attempt to fix some of the more egregious
portions of this law.
Among the most egregious new provisions --- People who make gifts, even small ones for birthdays or to pay for a grandchild's college or to make a donation to a charity, will now be made ineligible for Medicaid when they need it. Under the old law, people who made gifts would be penalized but their penalty would begin to run when they made the gift. The new law changes the penalty start-date to the date the person applies for Medicaid. Since you cannot apply for Medicaid until after you have less than $2,000, this means that you (A) need long-term care; (B) have no money and (C) cannot qualify for Medicaid. How these people will pay for nursing home care is unanswered. Nursing homes are unlikely to want to provide free care when an average bill could easily be $6,000/month.
Medicaid is the state and federal program which pays toward the cost of long-term care. With nursing homes costing $4,000.00 to $15,000.00 per month, people who saved for their retirements are often left impoverished. The new law imposes very harsh penalties for people who make gifts of their assets and who then apply for Medicaid. The law also targets the homes of some Medicaid-hopefuls and removes other planning strategies. Some of the changes:
Change in "Look-Back period:" People who gift money will be disqualified from Medicaid for a longer period of time. The new law imposes a five-year "look-back" period on all gifts. This means that if people give money away, even small gifts, the government now can disqualify these applicants for Medicaid if they apply within five years of the last gift. It is also important to know that although the government "looks back" five years, the government will be able to impose an unlmited number of months of penalty during which the person cannot obtain Medicaid.
Change in Penalty Start-Date: Under the old law, if a person did make a gift, that person would be disqualified for Medicaid but this penalty period would start running from the date the gift was made. Under the new law, the penalty will not start, in most cases, until the person applies for Medicaid. This means that if a person gives away $20,000 and then needs Medicaid four years and eleven months later, that person will be disqualified for Medicaid even if they are penniless.
Government becomes beneficiary of annuities: Another change in the law would require the government to be named the beneficiary on some annuities. In many cases when a person applies for Medicaid owning an annuity, the new law requires the applicant to change the beneficiary from children or other people to the government or else the person will be denied Medicaid coverage.
Spouses of Medicaid applicants will not be allowed to keep as much money. The new law imposes the "Income-First Rule" on the wives or husbands of Medicaid applicants. This rule allows the government to count the income of both spouses to justify the spouse having to spend more of the couple's money before either will be eligible for Medicaid.
Mortgages and Promissory Notes to be counted as assets. Under the new law, the government will be able to disqualify people from achieving Medicaid eligibility based on ownership of mortgages or notes.
Homes can now be "taken" by the government. For the first time in the Medicaid program, this new law will make it possible for the government to count homes as an asset for Medicaid eligibility. Homes over $500,000 in value are at risk under the new legislation and this could be expanded.
The law "grandfathers in" certain transactions done prior to February 8th, the effective date of the law.
It is also expected that Florida and other states will need to pass rules to provide the government and the public wth guidance on how the new rules will actually be applied. The Elder Law Bar will be involved in the rule-making process to the extent possible.
There are things that people can do to protect themselves. With proper legal planning, people can still avoid impoverishment at the cost of long-term care. This change in the law represents the most significant change in Medicaid eligibility since 1988. One challenge is just getting the word out so that people do not inadvertently disqualify themselves for Medicaid. Elder Law Attorneys are concerned that many people will make gifts and not understand how to do so correctly and without understanding the new consequences.
People should stop making gifts unless they are making the gifts after receiving advice from their lawyer. The new law will hurt people who lack an understanding of available planning options. Under the new law, if a grandmother gifts $10,000 to a grandchild to go to college, the grandmother will be rendered ineligible for Medicaid even if she applies four years later and is totally out of money. She will regain eligibility after the penalty is over but every month she is not eligible will cost thousands of dollars and may result in a loss of care. For people contemplating long-term care, knowledge of the Medicaid rules and laws is more important now than ever before.
People should also not rely upon IRS rules which allow a certain amount to be gifted per person per year. While the IRS may allow it, Medicaid will penalize people for having made the gifts.
Nursing homes range in cost from $4,000.00 per month for a shared room in a basic facility to upwards of $15,000 per month for a nicer facility with more services. Most people cannot afford to pay for that care for very long without becoming impoverished. People therefore turn to planning strategies that allow a person to preserve some or all of their savings so that they have their own dollars to pay for services and items which Medicaid does not cover. In Florida, Medicaid pays for almost all nursing homes including those that charge the most and are considered among the best. By federal law, people in nursing homes cannot be treated differently whether they are on Medicaid or are paying privately.
To read the text of the new law, CLICK HERE.
To read a news article describing the passage of the Deficit Reduction Act, CLICK HERE.
Copyright 2005, 2006 Solkoff & Associates
