Elder Law of Louisville's Blog
Wednesday, March 9, 2011
Gov. Beshear has called a special legislative session, to begin Monday, to deal with problems in the Medicaid budget. He said at a news conference that he would ask lawmakers to fix a problem that “will cause at least 30 percent rate cuts to Medicaid providers such as hospitals, nursing homes, doctors, pharmacists and mental health care providers.”
He also said Senate President David Williams, a candidate for governor who opposed the governor’s Medicaid plan during this year’s regular legislative session, which will conclude later Wednesday, was “putting petty politics and his personal ambition before the needs of Kentucky families.” There was no immediate response from Williams.
The Senate convened late Wednesday morning, using the 30th and final day of the 2011 General Assembly. The House adjourned Tuesday night until March 21 — a day it can no longer use in view of the Senate’s decision to meet. The Senate’s action meant lawmakers will be unable to complete work during the regular session on the Medicaid budget legislation.
Disagreement over filling a shortfall in this year's Medicaid budget has dominated the final days of the session.
Tuesday, March 8, 2011
Two days of House-Senate Medicaid budget negotiations crashed Tuesday night, and it appeared the 2011 General Assembly would end chaotically without an agreement — a prospect that Gov. Steve Beshear warned could have dire consequences.
Senate President David Williams said his chamber would meet Wednesday, using the session’s 30th and final day, and that its leaders would be open to further negotiations with the House. But if the Senate does meet, any negotiations would be aimed at producing an agreement only for a special session. That’s because the House adjourned late Tuesday night until March 21 — the date that was to have been the session’s final day under the original legislative calendar. Thus, with the Senate meeting Wednesday, the House would be unable to approve any agreement in the unlikely event one were reached. House Speaker Greg Stumbo did say House leaders would be available for negotiations Wednesday.
Gov. Steve Beshear warned that if the legislature fails to act he will have to immediately slash Medicaid reimbursement rates paid to health care providers by 30 percent, which he said would result in some hospitals and other providers closing their doors. “This includes all of the small county hospitals, the nursing homes,” he said. “It will cause the closings of some of these small county hospitals, I'm told, and that will rest upon the head of those in the Senate who would not take action.”
Before the Senate announced that it would meet Wednesday, the governor said he opposed the idea of a special session. “There is no reason for a special session,” he said. “They've got plenty of (time) to resolve these issues.”
The Senate’s decision to use the session’s final day on Wednesday means lawmakers will forfeit the chance to override any vetoes by Beshear. That decision, communicated in a phone call from Williams to House Speaker Greg Stumbo, caught leaders of the Democratic-controlled House by surprise and angered them. Stumbo, who called the decision unprecedented, said he expressed concern to Williams that one chamber convening would prevent lawmakers from being able to override vetoes since no session days would remain.
And in a fiery floor speech, House Democratic Leader Rocky Adkins of Sandy Hook said the Senate's proposed action “makes a mockery of the system.” The legislature's business isn't finished, he said, “and when you don't get your way, you don't pick up your ball and go home.”
Senate Republican Floor Leader Robert Stivers said members would return Wednesday and complete whatever business they had left. He said members would be available all day for House leaders to discuss a compromise on the Medicaid issue.
Williams noted that by meeting Wednesday, and adjourning at the end of the day, the legislature is saving taxpayers $68,000 a day for the 12 days lawmakers would be paid if the session didn’t end until March 21. “We have come to the conclusion that if we cannot reach an agreement with them (House leaders), why do we stay here and cause the people to stay here and incur $800,000?” Stivers said.
Williams made it clear that the Senate isn't backing away from its position on the Medicaid issue, and he laid the groundwork for a special session that he said should be called only after the House, Senate and Beshear reach an agreement. “If we reach an accord, with the House and the governor, we can come back in special session for five days,” he said, noting that taxpayers would save money even if Beshear calls them back into session.
But Beshear said that shortly after the session ends, letters would have to go out to Medicaid providers, telling them that their reimbursements will be slashed by 30 percent, which he said could cause layoffs and worse. He stressed that those in his administration “stand ready to work with the Senate.”
During talks near the end of the session's next-to-last day, each side blamed the other for the stalemate.
Six negotiating sessions over two days ended Tuesday evening with the two sides walking away from the table in frustration. “We believe it would be fiscally irresponsible,” Williams, R-Burkesville, said of the budget-balancing proposal by Beshear that is supported by the Democratic-controlled House.
“This should not have elevated to a political discussion. This should have been a discussion based upon the facts,” said Stumbo, D-Prestonsburg. “And the facts are overwhelming” that the Beshear-House plan will work.
At issue are two different approaches to House Bill 305, which would shore up the funding shortfall facing the state’s Medicaid health-care program for the poor and disabled. The Beshear-House plan would solve the problem by moving $166.5 million, appropriated for the program in 2011-12, into the budget for the current fiscal year, which ends June 30. Beshear has said the resulting hole in next year's budget will be filled by savings resulting from an enhanced “managed care” approach to Medicaid.
The Republican-controlled Senate says Beshear cannot — and will not — achieve those savings. The Senate has approved an approach that would cut state spending across the board, beginning in the fourth quarter of this year. To fail to make definite cuts now, the Senate argues, would lead to much more serious budget problems next year.
Through negotiations that sometimes grew heated and often saw long, silent pauses, each side made compromise offers. In general the House proposed to put certain anticipated state surplus funds into a reserve, which could be held to cover any shortfall Beshear fails to achieve next year in Medicaid savings.
The Senate proposed smaller cuts than it originally advocated last week. Williams proposed Tuesday a cut of 0.316 percent to programs except schools and universities this year, and a cut next year of 1.58 percent to all areas except schools, which would be cut by 0.65 percent.
But Stumbo said repeatedly that the House doesn’t believe there's a need to cut spending now. Williams disagreed and pushed unsuccessfully for the House to accept other aspects of the Senate plan, such as reducing how much debt Beshear should be allowed to restructure on grounds that it raises costs in future years even though it saves money in the current budget.
If the legislature takes no action, Williams said Beshear will have to find a way to deal with the Medicaid funding shortage. “The governor still has the budget authority to meet the Medicaid expenditures now, and he'll just have to find that money,” Williams said. But a failure to act causes other problems.
Williams said one non-controversial aspect of the bill would have transferred about $19 million from the 2011-12 fiscal year for universities to the current year to assure additional federal grant money for elementary and secondary education. And Stumbo said the failure to transfer funds from next year to this one will cost the state about $12 million in federal Medicaid revenue because of a higher matching rate paid by the federal government this year.
The constitution requires that this session last no more than 30 days and must adjourn by midnight March 30. If the Senate convenes Wednesday, as planned, it will be the final day of the session. As for the hope of resolving the deadlock by the session's final day, Stumbo said, “I would hope that the Senate would go back and review the evidence ... and would reconsider their position.” Said Williams: “We still hope that they (House members) change their minds.”
Saturday, March 5, 2011
Two measures aimed at protecting elderly and vulnerable adults won final approval Friday from the General Assembly.
But with only three days left in the current legislative session, a bill to create a registry of people who abuse adults — a priority for advocates for the elderly and disabled — remains stalled in the Senate.
House Bill 101, to create a registry similar to the one the state maintains for child abusers, is still before the Senate Judiciary Committee. And Sen. Tom Jensen, the London Republican who is chairman of the committee, said he isn’t sure whether it will pass this session,
He said Senate leaders are still trying to determine which bills to pass in the remaining time available.
Advocates argue that an adult registry would better protect those who, because of age or disability, are especially vulnerable to abuse and exploitation by caregivers. Even though the session is nearly over, they are still working on behalf of HB 101.
“I am always hopeful that people will do the right thing,” said April DuVal, executive director of the Council on Developmental Disabilities, an advocacy group in Louisville. “Politics shouldn’t get in the way of protecting people who are vulnerable.”
The two bills approved Friday are House Bill 164, designed to streamline Kentucky’s guardianship standards, and HB 52, to prevent people convicted of abusing adults from inheriting from their victims or managing their affairs.
HB 164, sponsored by Rep. Mary Lou Marzian, D-Louisville, will allow Kentucky to recognize legal guardians from other states. It also would allow states that have adopted similar reciprocity laws to recognize guardians from Kentucky.
And HB 52, sponsored by Rep. Joni Jenkins, D-Shively, bars anyone convicted of abusing or financially exploiting an adult from serving as a guardian, power of attorney or executor for the victim, as well as from gaining an inheritance.
Gov. Steve Beshear has said he supports and will sign the bills.
Sen. Julie Denton, R-Louisville, who supports the adult abuse registry, said she thinks it remains hung up because of concerns by some lawmakers that people placed on the registry wouldn’t get due process. However, the bill provides for an appeal procedure similar to that of the child abuse registry.
The Courier-Journal reported in a three-day series last year that reports of abuse or neglect involving elderly or disabled adults are rising rapidly and that many alleged perpetrators are not prosecuted for criminal offenses because victims are too elderly or impaired by problems such as dementia to testify.
The registry would list those persons found by Kentucky Adult Protective Services to have abused, neglected or financially exploited adults. Alleged perpetrators would have the right to appeal, and no one would be placed on the registry until appeals are exhausted.
Meanwhile, advocates noted that a recent federal study found 92 percent of nursing homes employed at least one person who has been convicted of a crime. And that, they contend, shows the need for better background checks on people who care for vulnerable adults.
The federal study, released Tuesday by the U.S. Department of Health and Human Services, found that 5 percent of nursing facility employees had at least one criminal conviction.
Lawmakers filed a half-dozen bills this session aimed at better protecting adults, including one by Sen. Tom Buford, R-Nicholasville, to require all nursing home employees — including food service workers and custodial staff — to undergo background checks. Currently only direct care staff, such as nurses, must undergo such checks.
But that bill never got a hearing in the Senate.
DuVal said an adult abuse registry might be a way to catch at least some nursing home workers found to have mistreated adults.
“It’s just a basic protection for older people and disabled people,’’ she said.
The legislature also continues to work on filling a $166.5 million gap in the Medicaid budget. The House and Senate have competing plans. Both sides have vowed to fight each's plan, so a joint committee is expected to be convened. See the 2 previous posts on this blog for more information about this issue.
Saturday, March 5, 2011
Many people heard about the last minute deal struck at the end of 2010 to extend tax cuts created by former President George W. Bush. In my world, the big news was that the $3.5 million estate tax exemption would not only be continued, but actually increased to $5 million. That law also contained several little-noticed provisions that fundamentally alter how the Supplemental Security Income (SSI) and Medicaid programs treat tax refunds and other tax credits, making it easier for elders and people with special needs to maintain their benefits.
Pursuant to the new law, tax refunds are not considered countable income for SSI or Medicaid purposes. Furthermore, any money received through a tax refund will not be a countable resource for 12 months following receipt of the funds, and SSI and Medicaid recipients will be under no obligation to segregate the funds from their other resources. The same rule applies to tax refunds received prior to an application for SSI or Medicaid, which means that so long as an applicant can point to funds in his account that are traceable to a tax refund during the previous year, those funds will not be a countable resource until the year has passed.
The new law also changes the treatment of several other important tax credits. Under previous rules, Making Work Pay, Earned Income, Advanced Earned Income, and Child Tax Credits were all excluded as countable income for SSI and Medicaid purposes, but if the income was retained, it had to be spent within nine months of receipt. Now, the 12-month rule applies to all of these tax credits and, furthermore, First-Time Homebuyer Tax Credits that were previously countable as income and as a resource are now exempt and subject to the same countability rules as the other tax credits.
CMS' Informational Bulletin also addresses what happens when an applicant seeking Medicaid long-term care benefits places her tax refund into a trust. According to the bulletin, the law "effectively precludes applying penalties under section 1917(c) of the Social Security Act to individuals who, in applying for long term care benefits under the Medicaid program during the period in which tax refunds or advance payments are not countable either as income or resources . . . dispose of part or all of the refunds or advance payments in a manner that normally would be considered a transfer of assets for less than fair market value."
In one more piece of good news, the law applies to any refunds or credits received after December 31, 2009, which means that, in limited cases, applicants who were initially denied SSI or Medicaid benefits due to receipt of a tax refund or credit may actually be retroactively eligible for benefits.
Friday, March 4, 2011
As expected, the Kentucky Senate on Friday refused to drop its changes to a bill to shore up the finances of the state’s Medicaid program. That sets the stage for appointment of a conference committee to resolve the differences between the House and Senate.
The House voted to transfer $166.5 million from the 2011-12 Medicaid budget to make up for a shortfall this year. It would then be up to Gov. Steve Beshear to produce savings to plug that hole in 2011-12. The Senate disagreed with this plan and proposed to transfer the money, but make cuts in other areas of state government to shore up the 2011-12 Medicaid budget.
In other action, a bill to streamline state guardianship procedures to conform with those in other states won approval from the Senate Friday. House Bill 164, sponsored by Rep. Mary Lou Marzian, D-Louisville, will allow Kentucky to recognize legal guardians from other states. It now goes to Gov. Steve Beshear.
The Senate also approved a House bill that would bar people who abuse or financially exploit vulnerable adults from inheriting from their victims. HB 52 also would prevent such individuals from serving as guardians, power of attorney or executor for their victims. Because of Senate changes, that bill goes back to the House for final approval.
Thursday, March 3, 2011
Kentucky's House Speaker Greg Stumbo said Thursday that the House would refuse to cut education funding as proposed by the Senate in its plan to balance the state's Medicaid budget. “We're not going to cut education when there's a viable alternative, I'll tell you that,” said Stumbo, D-Prestonsburg. “And there is a viable alternative.
In addition, Chief Justice John Minton said the Senate cuts to the judicial budget would prevent the implementation of the penal reform measures contained in a major bill passed this session and signed into law by Gov. Steve Beshear.
The House voted Thursday to refuse to go along with the Senate Medicaid plan. And the Senate was expected to make the deadlock official by refusing to back off from the cuts it proposed. So a conference committee of House and Senate leaders is expected to begin meeting Friday to resolve the gaping differences in their approaches to balancing the Medicaid budget.
At issue is House Bill 305 which, as passed by the Democrat-controlled House last month, would enact Gov. Steve Beshear's plan to plug a funding hole in the current Medicaid budget with $166.5 million budgeted for the program in the 2011-12 fiscal year, which begins July 1. Beshear promised in turn to find savings of $166.5 million in next year's Medicaid budget by contracting out certain aspects and services of the program.
But Republicans who control the Senate say that they can't accept Beshear's promise of future savings and that the state must cut spending now to be certain budget problems don't grow worse. “You need to take precautionary steps now because we don't believe it is possible to have the savings” that Beshear's plan promises, said Senate Republican Leader Robert Stivers of Manchester.
The Senate plan calls for cutting state funding to all agencies by about one-half of 1 percent in the final quarter of this fiscal year, and by about 2 ¼ percent in 2011-12. Schools and universities would be exempt in the final quarter of this year, and the cut to basic school funding in 2011-12 would be about 1.3 percent.
But Stumbo ruled out cuts to school funding. His office released data showing district-by-district cuts — with the Jefferson County schools losing nearly $4.2 million in 2011-12. Asked if could accept cuts to any agencies, Stumbo noted that Beshear has already overseen eight rounds of spending cuts in three years totaling $1 billion. And he said the House would be willing to consider a list of contingent cuts as a “back-up plan” if it appears Beshear's savings may fall short.
“The obvious question is why would we go to the nuclear option, if you will, of cutting education, before we give the governor the opportunity of doing what we know he's been good at doing over the past three years?” Stumbo said.
Education groups, advocates for the needy and others dependent on state funding say more cuts will affect services and force layoffs. Brad Hughes, spokesman for the Kentucky School Boards Association, said the $38.6 million cut in base funding would deal a serious blow to schools as they prepare to implement the new assessment program known as Senate Bill 1.
The Senate approach gives schools ways to be flexible and stretch their dollars, including permission to exceed maximum class sizes allowed by law. “But the major concern you would hear from superintendents and school board members is raising class sizes,” Hughes said. “Nobody wants to say to a teacher who's got to start a new teaching approach (under Senate Bill 1) that the class size will be larger.”
Mark Hebert, spokesman for the University of Louisville, said U of L “has suffered 11 budget cuts in 11 years and the state Senate's proposal would add another $4 million in cuts on top of the cuts we're already expecting in 2011-12. Obviously, we'll be disappointed if state lawmakers approve more cuts.”
Minton said in his letter to legislative leaders that the proposed cuts, on top of reductions in recent years, would total 28.5 percent for the judicial branch. “The court system cannot absorb further cuts without severely curtailing our daily operations and preventing our ability to implement penal code reform as mandated by House Bill 463,” Minton wrote.
Jefferson County Commonwealth’s Attorney Dave Stengel said, “We've already cut and cut and cut and there's nothing left. This will mean some layoffs and will definitely affect the quality of prosecution and public safety.”
Sheila Schuster, executive director of the Advocacy Action Network, an umbrella organization for groups that advocate for behavioral health and health care reform, said, “Across-the-board cuts will really hurt our already chronically underfunded programs that serve people with a wide range of disabilities who need those services.”
Ellen Kershaw, a spokeswoman for the Alzheimer's Association in Kentucky, said her organization is concerned about the prospect of deeper cuts to state agencies — particularly the state Department of Aging and Independent Living. The agency, which funds services such as senior centers, Meals on Wheels, adult day programs and services at home for the elderly and disabled, has lengthy waiting lists. “At a time when the aging population is growing and the need is growing, it makes to no sense to impose more cuts,” Kershaw said.
But Stivers said that if cuts aren't made now much more painful ones will be required late in the two-year budget cycle when it will be apparent Beshear's approach did not work. “We'll be in tremendously much worse shape. ... We're talking about 4 and 5 (percent) even maybe higher cuts,” he said.
Tuesday, February 22, 2011
Louisville, KY and Lexington, KY made Forbes' list of Top 25 cities for an active retirement. Lexington, KY is ranked #10 very high rates of volunteerism and doctors per capita. Louisville, KY is ranked #23, with good rankings across all four categories, with its strongest category being the strength of the biking community. Forbes ranked the top cities based on four critieria: volunteerism rate, number of doctors per capita, violent crime rate, and strength of the biking community.
For a complete list of the Top 25 cities:
Monday, February 14, 2011
Be a veteran who served at least 90 days of active duty or the surviving spouse of a wartime veteran (married at the time of veteran’s death)
At least one day of active duty had to be during wartime:
WWII – 12/7/41 to 7/25/47
Korea– 6/27/50 to 12/31/55
Vietnam– 8/5/64 to 5/7/75
Does not need to have been in combat
Discharged other than dishonorably
Discharge under honorable conditions
Bad conduct discharge, Discharge under other than honorable conditions, or Undesirable discharge may still be eligible after a "character of service determination" hearing
Income less than $1,800 per month, once out-of-pocket medical expenses are considered (less than $951 per month for a surviving spouse)
Net worth less than approximately $50,000 for singles or $80,000 for couples
Friday, February 11, 2011
A frequent challenge for children of seniors who are beginning to fail is how to help them with their finances without taking away their autonomy or getting into a tug-of-war over the issue. Concerns often arise when visiting children find that bills have not been paid, papers are in disorder, or even that utilities have been cut off. It’s not unusual to find parents defrauded by predators or going on a spree on the Home Shopping Network.
All parents, children and the relationships between them come in different flavors. Some parents freely share financial information with their children and readily let them participate in bill paying and investment decisions. Others hold onto control as if their lives depended upon it — and well it might, to the extent that they would lose their identity along with their checkbook. They may even suspect their children of wanting to take their money.
So there’s no single answer for every situation. Following, however, are approaches that we have worked for many of our clients in the past:
Offer to help with bill paying. Permit the senior to continue to control the checkbook, but schedule a monthly sit-down to go through all of the bills that have accumulated. The child can write out the checks, but permit the parent to sign them.
Use the Internet. With on-line access to accounts, children can monitor them without stepping to take control. If unusual payments or transfers occur, children can step in quickly, rather than waiting to review monthly statements.
Segregate accounts. Leave the senior in charge of the family checking account, but take control of investment accounts. This will leave only smaller amounts at risk, rather than the parent’s entire estate.
Make sure the parent does estate planning while competent. Through properly-executed durable powers of attorney and revocable living trusts, children can step in when needed.
Play on parental responsibility. While it is contrary to the traditional parent-child relationship for the child to take over the parent’s finances, it is consistent with such roles for the parent to take care of the child. Pitch the need to help with finances as a way to put the child’s mind at ease, rather than as a response to the parent’s increasing incapacity. This is something the parent can do for the child, rather than the other way around.
If all else fails, it may be necessary for the child or children to seek court appointment as guardian or conservator over the parent’s finances. While this gives them complete control, it removes the parent’s right to make any financial or legal decisions. In addition, it involves legal costs, periodic reporting to the court and, in some instances, the necessity of seeking court approval for expenditures or estate and long-term care planning steps that could be carried out freely under a durable power of attorney or revocable living trust.
Just as there is no single answer for every family situation, it may be necessary to try various interventions to determine which works best. Or, one may work for a while, and then it may become necessary to take a more drastic step if the situation deteriorates.
Courtesy Elder Law Answers.
Friday, February 11, 2011
A House bill to create a registry of people who abuse adults cleared a committee Thursday, one day after a Senate committee approved a similar bill. House Bill 101 would create a database similar to the child abuse registry. Kentucky currently maintains a registry of those found by state social service officials to have neglected or abused children — and those individuals are barred from jobs caring for children, such as in day care facilities or schools. HB 101 passed the House Health and Welfare Committee unanimously with little discussion. The Senate Health and Welfare Committee approved a similar measure, Senate Bill 38, on Wednesday. The bill now goes to the House.
The committee also approved and sent to the full House several other measures Thursday involving health care and the protection of people with disabilities. This includes approval of a measure meant to protect disabled adults in institutions. HB 132 would allow for immediate dismissal of any worker in a licensed facility for adults with mental disabilities who negligently fails to provide supervision of residents, placing them at risk of death or injury. This bill will also go to the House.
Thursday, February 10, 2011
A 55-year-old individual can expect to pay $1,480 annually for $169,000 in current benefits, which would grow to $354,000 of coverage by age 80, according to the 2011 Long-Term Care Insurance Price Index, an annual report from the American Association for Long-Term Care Insurance, an industry group.
A 55-year-old couple purchasing long-term care insurance protection can expect to pay $2,350 a per year (combined) for about $338,000 of current benefits, which would grow to about $800,000 of combined coverage for the couple when they turn age 80. If the 55-year-old couple did not qualify for preferred health discounts, but rather for standard rates as a result of having one or more health issues, their cost would increase by $325 annually.
The study found that rates for comparable coverage from leading insurers could vary by between 41 and 48 percent.
According to Association research, three-fourths (78 percent) of long-term care insurance policies are bought by couples where either both or just one spouse purchases coverage. The average age for individual purchasers is 57, with some 76.3 percent of purchases made between ages 45 and 64 according to the Association's research.
The 2011 Price Index analyzed costs for couples at ages 55, 60 and 65. In addition, for the first time, the analysis included a 3 percent compound inflation growth factor versus the 5 percent formula that has been used in prior studies. "More purchasers are opting for this formula which significantly reduces the cost of coverage and can be quite adequate in terms of future benefits," said Jesse Slome, the association's executive director. The Price Index also looked at rates for policies including the newer Shared Care option whereby two policyholders can each access a combined pool of benefits.
The full Price Index will be available only in the Association's 2011 Long-Term Care Insurance guide.
Courtesy Elder Law Answers.
The attorneys of Elder Law of Louisville (formerly Walsh & Wilson, PLLC) assist clients in Louisville, Kentucky and surrounding counties of Jefferson, Oldham, Shelby, Spencer, and Bullitt. Our Office also serves Southern Indiana and the towns of New Albany, Jeffersonville, and Clarksville.