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By John M. Bigler Those of you who have read my monthly articles for the last nine years know by now that I am the eternal optimist. You will also note that I am not the greatest when it comes to predicting the future. Having said that I do believe that there are some positive signs for older and disabled people based on recent trends in the law.
The annoying and obviously inaccurate argument made by people proposing these draconian changes is always the same. Wealthy seniors are looking to artificially impoverish themselves so as to make themselves eligible for government benefits. This is absurd! Can you imagine anyone willingly impoverishing themselves? The reason people do Medicaid planning is to protect assets saved over the course of a lifetime from being wiped away because of a single unfortunate illness. The courts have repeatedly held that Medicaid planning is an appropriate tool for people who have no other alternative to avoid financially ruin. The idea of the "wealthy senior citizen" taking advantage of the Medicaid laws is a myth. The clients that come into my office are not wealthy millionaires. They are hard working middle class people who are concerned that they will not have enough money to comfortably live out their lives or to leave any type of inheritance for the next generation. Fortunately, more intelligent heads prevailed in the State Legislature and for the second year in a row the governor's Medicaid proposal was defeated. A good deal of credit also goes to the New York Chapter of the National Academy of Elder Law Attorneys, which went so far as to hire a lobbyist to make the case in Albany for older and disabled.
Harsh proposals for changes to the Medicaid law are not restricted to the state of New York. Connecticut has always been known as a very difficult state when it came to Medicaid planning. In 2002, Connecticut was one of the first states to ask the federal government for a waiver to allow more restrictive Medicaid provisions than found in the federal law. In another bit of recent good news, on May 6, Governor M. Jodi Rell, the new Connecticut governor, withdrew Connecticut's request to the federal government for a waiver to extend the look-back on real estate transfers from 36 months to 60 months. To its credit, the Connecticut government determined that they should not look to solve the budget crisis at the expense of the elderly and the disabled. Of course, there was also a concern raised by the nursing home industry that nursing homes might lose revenue if a resident was denied Medicaid coverage. Not to be cynical, but I am sure that had some influence on the decision to withdraw the waiver request.
Other states still have requests to the federal government for waivers. As well, there is the constant threat from the president and some members of Congress to partially revamp the federal Medicaid law. However, as the eternal optimist, I am hoping that these recent events are a sign of things to come and that our leaders will switch from looking from short term quick fixes to long-term answers.
Reprinted with permission of the Suffolk Times © 2005 [ Contact Us ] [ Guestbook ] [ Email ]  The Law Offices of John M. Bigler, Attorney At Law 1421 Wantagh Avenue, Wantagh, New York 11793-2206 1-888-ELDER-LAW · 516-409-6565 · Fax: 516-409-6522 E-Mail: info@biglerlaw.com · Web Site: www.biglerlaw.com |
As I reported to you in the last two years, Governor Pataki and some senators in the State Senate have tried very hard to push for new and essentially devastating restrictions in Medicaid law. If enacted, these restrictions could have severely curtailed Medicaid planning. Among the governor's proposed changes were: an extension of the look-back period for transfers to individuals - from 36 months to 60 months - and imposition of transfer penalties when applying for Medicaid in the community; the revocation of the right of spousal refusal for an individual caring for his or her spouse at home; and, worst of all, a change in the start of the imposed penalty from the month after the transfer took place to the month of the actual Medicaid application or entrance into the nursing home. In addition, the Governor proposed requesting a waiver from the federal government to allow New York to impose a more restrictive guideline than those of the federal.