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By John M. Bigler This month marks official passing of the Kennedy/Kassebaum Crimininalization Act, more commonly known as the "Granny Goes to Jail Act". That law, which became effective January 1, 1997 stated that an individual who was determined to have made transfers for the purpose of Medicaid eligibility could be considered to have committed a crime. Also, anyone assisting that individual could also be faced with criminal charges.
Regular readers will be aware that this law has been the topic for previous articles as I have tried my best to keep readers apprised of the slow and not-painful-enough death of this law. Finally, my premature predictions that the law would be put to rest have come to pass. I think that I can speak for all seniors and their attorneys when I say the death of this law is a tremendous relief. The law profession has enough of an image problem. I believe that attorneys concentrating in the area of elder law have some of the most compassionate and caring lawyers in the profession and should not be portrayed in other than a positive light. The list of honorable attorneys in this field is endless, but could begin with elder law guru, Charles Robert, my mentor. For more than twenty years, Charlie has routinely passed on financial gain preferring to dedicate himself with a passion to protecting the rights of the elderly. One could also point to the founders of the National Academy of Elder Law Attorneys and the New York State Bar Association Elder Law Committee. These attorneys work tirelessly and without compensation to protect the rights of the elderly.
The Federal Government had argued against the injunction, indicating that it would be moot point in light of Attorney General Janet Reno's position, which was that the law was unenforceable as currently worded. The Judge felt that that position left the door open for different interpretations in the future and found justification for the permanent injunction in order to adequately protect first amendment freedom of speech. In his decision, the Judge noted the "chilling effect that unconstitutional burdens on free speech may occasion". The Government filed an appeal of Judge McAvoy's decision and so a final celebration had to be put on hold. However, just recently, the Attorney General entered into a stipulation withdrawing the Government's appeal, so the statute is officially dead. Unfortunately, it will take awhile for the impact of the bill to die. That is the real tragedy of this bill. It was clear to most experts from the beginning that this law was unenforceable. But the damage done from all the publicity about the bill is immeasurable. How many people will still be told by friends, neighbors or even people in the health care or legal profession that they are committing a crime? How much more hard earned money will be lost by middle income people struck down by diseases that not only take a terrible physical and mental toll, but are so financially burdensome? How many will be too frightened to plan the poverty the Government requires so as to be able to obtain the necessary medical treatment? Hopefully, the good news will spread quickly. Good riddance to a very bad law. Reprinted with permission of the Suffolk Times © 1999 [ 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 |
The law was revised in August, 1997 as part of the Balanced Budget Act. The new law no longer made it a crime for the elderly or their family members to make transfers. Now, only a person charging a fee who knowingly or willfully counseled or assisted an individual to dispose of assets would be subject to criminal sanctions. The new modification obviously aimed at attorneys and other financial professionals served to deprive individuals of the right to counsel.
In fact, it is the New York State Bar Association that deserves kudos for the death of the ill- conceived bill. It was the Bar Association that brought the lawsuit that resulted in the end of the Granny Law. The suit challenged the validity of the new law in large part based on a violation of first amendment, freedom of speech protections. Credit also has to be given to United States Judge Thomas McAvoy who first issued a preliminary and then a permanent injunction baring the enforcement of the statute.