Repealing the Affordable Care Act

Without spin or editorializing on the issue, here are some facts from The Center for Medicare Advocacy, medicareadvocacy.org, about the program Congress plans to repeal:

  • The uninsured percentage of Americans under 65 is the currently the lowest in decades. Beginning in 2014, the rate dropped from 16.6% to 10.5%.
  • As of March 31, 2016, 11.1 million people have coverage through the ACA Marketplace.
  • As of 2015, 11 million people in 31 states and the District of Columbia had coverage through Medicaid expansion under ACA, out of a total of 81 million on Medicaid.
  • There are 19 states that did not expand Medicaid: Alabama, Florida, Georgia, Kansas, Idaho, Maine, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Tennessee, Utah, Virginia, Wisconsin and Wyoming.
  • However, the ACA resulted in 16,748,000 people becoming eligible for Medicaid as of September 2016.

Congress says it will replace the ACA with something better. Dare we hope?

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

Attorney Fee Hazards at Social Security Administration

A colleague posted a question on an elder law listserv about being paid to represent a Supplemental Security Income (SSI) recipient who lost benefits due to assets in a special needs trust (SNT). The SSI program has a $2,000 asset limit and an SNT is designed to protect excess assets. The question was answered by a very knowing Social Security attorney named Avram Sacks. Avram, former editor of the CCH Social Security Law Reporter, and author of CCH Social Security Explained, has agreed to allow his comments to be posted in this blog. He states as follows:

An elder law attorney has a client who the Social Security Administration (SSA) believes has exceeded the asset limit due to the counting of the assets in an SNT. The client wants him to challenge the Administration’s decision. How can he get paid for his efforts? The Administration has a complicated fee approval mechanism, but can that be avoided?

It was suggested that the attorney could be paid by the SSI recipient’s mother because the trust may not permit the payment of attorney fees from the trust and SSA is not lawyer-friendly and its fee approval process is not quick, “especially in overpayment cases.” The unstated (and incorrect) implication is that if the attorney’s fee contract is with the mother, he can bypass the SSA altogether when charging a fee. That would be playing with fire. An attorney who does that may be writing himself or herself a ticket to jail. I kid you not.

An attorney may not bypass the SSA’s fee authorization process by charging the fee to a third party non-claimant for services in connection with a claim before the Commissioner of Social Security. An attorney who does charge a third party and fails to file a Form SSA-1696 to seek authorization of any fee exposes himself to a fine of $500 and a year in the slammer. See SSA §206(a) (42 USCA § 406(a)) for details.  How so? The text of SSA §206(a), states, in part:

The Commissioner of Social Security may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim before the Commissioner of Social Security under this title, and any agreement in violation of such rules and regulations shall be void.

In other words, the Commissioner’s control over the transaction for services is not dependent on who pays the fee, but rather, on whether the representation is “in connection with a claim before the Commissioner of Social Security.”

Now, the attorney may argue that when representing a claimant on an overpayments case that he or she is not actually representing a claimant in connection with a claim before the Commissioner in that the claim has already been awarded; rather, he or she is merely representing the claimant on an ancillary matter, an overpayment. But, that overpayment is connected to an award based on a claim. An attorney who relies on this argument may go to jail if it is one that neither the Administration nor the courts accept.

Here is a scenario: The attorney charges an hourly rate, say $300 per hour, to handle the matter. The attorney files a request for reconsideration, attends a conference or two, then represents the client in a hearing. After 10 or more hours of work the attorney loses again. The client wants to appeal what the attorney now sees as a losing matter. The attorney advises against appeal, but the client insists. The attorney appeals and loses again. Now client wants to go to federal court, but the attorney says, “enough!”

The attorney asks for payment of the fee, which now is $3,000 to $4,000. The mother doesn’t want to pay more than $1500, and the attorney tries to collect. Meantime, the mother complains to the SSA debt collection people that she can’t pay both the attorney and the overpayment at the same time and the debt collection people ask, “What attorney?” So now, the SSA learns about the illegal agreement that the attorney had with the mother. Guess what happens next?

By the way, several things for an attorney to keep in mind:

1. The SSA’s representation authorization form has a specific check off box to mark if the fee is being paid by a “third party entity” or government agency. While the attorney might have thought that the mother would be a “third-party entity” that is NOT what the SSA has in mind. If the attorney reads further on, under the same paragraph for that check-off box, the attorney will learn that the check off box still applies in the case of a “third-party individual.” The attorney will still have to obtain authorization for any fee that the attorney charges.

2. The attorney should not label the fee contract as a “fee agreement.” Although the SSA uses the words “fee agreement” interchangeably in two separate contexts (POMS GN 03930.005, “Selection of the Fee Petition Process,” indeed, states that one should attach a “fee agreement” to the fee petition and then, in the next breath, states “Do not confuse the fee petition with the attached ‘fee agreement’ with the fee agreement described in POMS GN 03940.000 – Fee Authorization Under the Fee Agreement Process.”), colloquially, everyone understands a “fee agreement” to refer to situations that only involve the “fee agreement process.” The better practice is to identify all fee contracts in an SSA matter as just that – a “fee contract.” That way, no one will be confused.

3. The attorney can be assured of being paid by requiring the mother or anyone else who agrees to take responsibility for the fee to pay a retainer that goes into a client trust account. The retainer should be pegged to cover the maximum fee that SSA might authorize. The attorney will have to file a fee petition and can only take money out of the trust account to be paid if and when the SSA authorizes a fee. Anything in excess of what is authorized goes back to the person who paid the retainer.

4. Where there is a representative payee, the client AND the rep payee should sign a Form SSA-1696 and the fee contract along with whoever actually is liable for the fee. The contract may specify that only the third party is liable for the fee, but having the client sign it ensures that the SSA won’t ask any questions about what the client/claimant might want.

5. With regard to the underlying excess assets problem, according to SSA § 1631(b)(1)(B), there is a 10% limit on the amount of the SSI check that can be withheld to recover overpayment, AFTER the excess assets issue is cured. See POMS SI 02220.016 .

I have set forth some essentials on attorneys’ fees, as related to representation of claimants after initial approval. However, before undertaking such cases, the attorney should read SSA § 206 very carefully, along with the related regs and POMS provisions. “Social Security Disability Practice, by Thomas E. Bush, from James Publishing, also covers this topic very well.

Avi

Avram L. Sacks
Attorney at Law
Skokie, IL
avram@asackslaw.com
773-206-0276

A Bureaucratic Absurdity

From time to time, one hears the time to wait for a delivery or answer expressed in “business hours.” What? A nurse recently said, “You will receive the test results in 48 to 72 business hours.” Does this mean two to three days or six to nine days? The latter if one assumes that a “business day” is eight hours. What addle-brained bureaucrat came up with this?bureaucracy-park

If it is an attempt to be more precise, it is horribly misguided. Two to three business days from Thursday is crystal clear. It translates into Monday or Tuesday, unless Friday or Monday is a holiday. If expressed as “48 to 72 business hours,” does that mean two to three days if the business is open 24 hours a day, four to six days if the business is open 12 hours a day, or six to nine days if the business is open 9:00 a.m. to 5:00 p.m? Why don’t they express the waiting period in a measure of time that is precise and readily understandable, such as Jovian lunar months or mayfly generations?

In terms of sheer silliness, this rivals the pointless 67-page Pennsylvania regulation on real estate transfers described in “Pennsylvania Commonwealth Bureaucracy.” It’s the kind of false precision sprouted in the fever dream of a pencil-necked desk jockey that gives bureaucracy a bad name.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2016 John B. Payne, Attorney

Open Letter to Governor Snyder About Email Malfeasance

Dear Governor Snyder:

You campaign on your business acumen, but your business leadership is not reflected in the operation of Department of Human Services.  Medicaid applications for nursing home residents can languish for months, despite the urgency of determining eligibility.  The 45-day standard of promptness is like “fresh fish” in a supermarket.  It is advertised as “fresh fish” and they say that the fish they are selling is fresh, but you sure as Hell don’t see it very often.

When families and facilities have unreasonably long waits for eligibility to be determined, both sides are injured.  Families are traumatized by rejections for residency and eviction threats.  They are often forced into undesirable placements.  Care at the facilities is impaired due to lack of payment for residents.  Facilities try to deal with the problem by illegally turning away “Medicaid-pending” applicants.

DHS is understaffed due to budget cuts, but that only goes so far as an excuse for failing to perform the mission.  Furthermore, there is no uniformity in how various offices handle the workload.  In some offices, cases languish for months, ignored by workers who claim they are unable to get to them.  In other offices workers subject applications to withering examination, demanding five years of bank statements and flyspecking the transactions to punish the applicant for giving her grandchildren birthday presents or tithing.

Department of Human Services workers have no respect for deadlines, but they will deny an application if the applicant misses by a day the due date for submitting a document.  This is especially problematic when a request for verification, which is supposed to have a ten-day window, is not mailed for three or four days after it is dated.  Applicants often have as little as three days to provide a document.

All of the above is “business as usual” at DHS.  If a law firm blew off deadlines and mishandled paperwork they way DHS does, the lawyers would lose their licenses to practice law.  If a hospital operated that way, it would be promptly lose its accreditation.  However, that is not what this letter is about.

This law firm has been handling Medicaid matters for 25 years, but recent problems with emailed and faxed communications set a new standard of bureaucratic malfeasance.  After months of delays, waiting for two particular workers to respond to emailed documents, it was determined that those workers had left the agency months before and nothing was done with their email.  A denial with one worker’s name and contact information on it was mailed out in August, but the worker had left the agency in April.

The email accounts were not even terminated, so there was no notice from the email server to let the sender know the mail was not received.  It was as if the worker had walked off the job and all subsequent mail was shredded.

Email is now official correspondence.  Staff often email requests for verification and other important notices.  For DHS to fail to have a terminated worker’s email forwarded to a successor worker or a clerical worker for forwarding to the proper person is unpardonable.  It especially egregious considering how easy it is to re-route email.

It is also common for email addressed to the wrong person to be ignored.  State employees must be instructed to treat communication from citizens with respect and at least reply with the message that the correspondence was improperly addressed.

The Department should take immediate steps to ensure that correspondence, including email, addressed to a terminated employee or sent to the wrong employee is properly forwarded or the sender advised of the mistake.  Failure to do so is official misconduct.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2014 John B. Payne, Attorney

Stealth Regulations under Pennsylvania Medicaid Program

Pennsylvania Department of Public Welfare issued a “policy clarification” on June 27, 2011 pertaining to the sale of a person’s home when the person has a spouse who is receiving nursing care funded by Medicaid. This policy unfairly restricts the amount of money the person can keep out of the sale and is contrary to federal law. Further, it is not part of the Medicaid policy manual, but must be ferreted out by someone who is looking for it. Intentionally or not, this policy clarification comes as a nasty surprise when a person sells his or her home, expecting to be able to use the funds for financial support.

Medicaid has a complicated financial eligibility structure for nursing home residents and persons who receive nursing care in community settings – such as in their own home or in an assisted living facility. However, once Medicaid is approved for the spouse who is receiving nursing care, called the Institutionalized Spouse, the Community Spouse’s assets should not be considered. This is clearly stated in federal law, which provides, “During the continuous period in which an institutionalized spouse is in an institution and after the month in which an institutionalized spouse is determined to be eligible for benefits under this subchapter, no resources of the community spouse shall be deemed available to the institutionalized spouse.” Compared to the Byzantine regulatory maze of most of the Social Security Act, this sentence is almost absurdly simple. The section of which it is a part is over 3,200 words.

Importantly, the operant language is only 14 words: no resources of the community spouse shall be deemed available to the institutionalized spouse. Unlike most of § 1396r-5, there are no exceptions. It says that “no resources shall be deemed available to the institutionalized spouse,” not “no resources shall be deemed available to the institutionalized spouse, except as provided in sections (a)-(r)(r) of subpart C of part R of chapter XXII,” or an exception to an exception to an exception. No resources means no resources, yet Department of Public Welfare has carved out a major exception when the community spouse sells a home.

Policy Clarification, Medicaid – Long Term Care PMN15842440, provides that if the community spouse (CS) sells his or her home it could affect the eligibility for Medicaid of the institutionalized spouse’s (IS). The directive reads as follows:

If the CS sells the property, the entire value of the property will be counted as a resource for the IS. It does not matter that the property was titled only in the name of the CS. When the property is sold, all of the proceeds are considered available to the IS except for the amount used to purchase a new residence. The purchase of the new residence should be within three months. Proceeds remaining after the purchase of the new residence may be transferred to the CS, but only up to the Community Spouse Resource Allowance figure.
If the residence was transferred, the entire uncompensated value is considered available to the IS (even if the name of the IS was never on title) and an applicable penalty period should be imposed.

It is disturbing and distressing when a government agency deliberately breaks the law. As I observed in “Dreadful Michigan Medicaid Joint Tenancy Rules,” on April 9, 2011, Michigan ignored state property law and the federal Social Security Act to prevent poor Medicaid applicants who are otherwise eligible from qualifying.

Like the Michigan Medicaid rule change, this Pennsylvania policy clarification is a flagrant violation of federal Medicaid law. DPW figures it can get away with it because most Medicaid applicants and recipients do not have legal representation and those who have attorneys will still lack the money and the gall challenge the agency in court. As it has done in the past, DPW issues policy it knows is contrary to federal law because it can get away with it. It can take years to force DPW to stop trying to enforce illegal policy provisions.

Besides being unfair and illegal, the policy clarification is unavailable in the regular Medicaid policy handbooks and manuals. In fact, important parts of the policy handbooks are out of print and not available on the Internet. It is next to impossible for someone outside the agency to determine what Medicaid rules currently apply. As bad as it is to create unfair rules, it is worse to make unfair rules and keep them secret.

Pennsylvania Medicaid owes it to Pennsylvanians to promulgate fair rules that comply with federal law and, furthermore, to make the rules readily available in a comprehensive set of policy handbooks or manuals so those who need Medical Assistance will be able to discern what they need to do to qualify for the program.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2011 John B. Payne, Attorney
 
 

Minnesota: Government by Truculent Four-Year-Olds

Traveling on I-94 near Ann Arbor, Michigan, I pulled into a rest area today. This is a privilege denied to motorists on I-94 in Minnesota, since Gov. Mark Dayton and the Minnesota legislature are acting like truculent four-year-olds. They shut the state down over a budget disagreement. From border to border, I-94 runs 260 miles through Minnesota. That is four hours of driving without a rest area, which is dangerous–not merely unpleasant and uncomfortable.

A political conflict is understandable, but shutting down state parks, highway rest areas, and other state amenities, not to mention really vital services, is unforgivable. Each side is betting that the public will blame its opponents. To a large degree, this is what will happen.

Right-wingers listen to right-wing radio and Fox News. They hear and believe accusations against the left. Liberals do not have left-wing radio or a left-wing network, but they listen to Rachel Maddow and John Stewart and dismiss right-wing radio and Fox News as a pile of bovine manure. They hear and believe blame levied on right-wingers. Those on the right are likely to blame liberals for the shutdown, but liberals are equally likely to blame the right for the shutdown.

That engineering a state shutdown is a sound political strategy does not make it either right or pardonable. Furthermore, these spoiled, immature jerks intentionally made the shutdown as unpleasant for the public as possible. For example, closing facilities like state parks and highway rest areas was unnecessary. Various nonprofits, such as service clubs, churches, and support groups, could have been recruited to maintain services at such state facilities.

We already have an Adopt-A-Highway program, which relies on service clubs and other organizations to keep parts of the freeway system clean. There is no reason that nongovermental groups could not operate highway rest areas, campgrounds, beaches, libraries, and such facilities. This would require a more extensive operation than Adopt-A-Highway, but it would also provide more chances for charities to solicit donations or make money providing services. However, it would require elected government officials to be more concerned with the welfare of the citizens than they are about political advantage. That is why it does not happen.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2011 John B. Payne, Attorney
 
 

It’s Summer: Where are the Summer Jobs?

Here we are, a week away from the solstice. Most of the high schools are out for the summer and where are our young people to find jobs? The parents and grandparents have grabbed the jobs that usually keep high school juniors and seniors off the streets in the summer. The jobs are not there for our teenagers. We have been trying to jumpstart the economy since Bush XLIII, but every time we start to really pump some job juice into the economy, we back off. What we need to do is raise the debt limit, stop worrying about the deficit, and put people to work on infrastructure.

If people started buying new cars and refrigerators and hot tubs and houses, we could turn this recession around. Unfortunately, consumer confidence is not that strong. I would wager that the average age of the cars in people’s garages and the refrigerators in their kitchens is two or three years higher than it was in 1999. When the marketplace falls flat, the government needs to step in. The problem here is that consumers are not consuming so the government must do so.

This solution is intensely disagreeable to fiscal Conservatives. They will decry a “tax-and-spend” mentality and oppose government handouts (unless they are to corporations). However, expanding the welfare system or hiring more regulators or paying unemployment compensation over an extended period is not what I have in mind.

Our roads and bridges are in deplorable shape. Public transportation is unreliable and unsafe. Many of our municipal buildings are rundown and ugly. Spending money on infrastruction is not wasted. When the government fixes a road or builds a levee, the country goes up in value.

When your roof is leaking, you do not ask whether you can afford to fix it. You take out a loan and put a new roof on the house. This protects and improves the value of your house. It is the same with a country. You don’t wait until a Minnsota freeway bridge falls down, you inspect all the essential bridges and fix them as necessary. If a new bridge over the Detroit River is needed, build it now, when the unemployment rate in Detroit is terrible. However, be absolutely certain that the projects are need. Tossing pork around is the last thing you want to do when deficit spending is necessary.

A bi-partisan committee could apportion new stimulus funds where they are most needed and where the investment value would be highest. The only problem is finding senators and representatives who would be willing to put the country’s interests ahead of their party’s.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2011 John B. Payne, Attorney