Ronald Morton's Elder Law Blog

Medicaid Office in Yazoo City Closed

The Medicaid office in Yazoo City was one of the buildings damaged in Saturday's deadly tornado.  One wonders how many records of ongoing claims for benefits were lost as a result.  Medicaid already has a  reputation for inefficiency in handling claims for initial benefits.  Clients frequently pay us to handle the claims process out of shear frustration with the process.  The twister will likely make an already inefficient system unmanageable.  The state should take note of document security and no down time as one of the the additional benefits of going to a paperless system for claim approval.  Of course the primary benefit of such a system would be efficiency.  Claims could be handled with greater efficiency if all applications and supporting documentation were simply scanned and handled by case workers on a paperless basis.  Such a system would save on storage costs (paper files take up space and must be securely stored), transport costs (as many of these files must be shuffled from office to office during the approval process), saved cost in submitting documentation (currently hard copies of requested documents are faxed or physically delivered, as Medicaid workers will not allow them to be emailed), and increased employee efficiency (as claim files in over-taxed offices could be routed to workers in other offices who had additional capacity at any given moment).  Along with these is the added benefit of protection of records against natural disasters.  All Medicaid workers at a damaged office would need to be back in operation processing claims would be a computer and a network connection.  No doubt if Medicaid were to privatize its claims processing, any vendor would immediately implement these efficiencies.  With Medicaid, despite hundreds of millions of dollars in shortfall, it is likely to be business as usual. 

Family Feud

A recent Sun Herald article points out that thorough estate planning will prevent feuds among family members over sometimes trivial issues like who gets what when a family member dies.  Comprehensive planning will incorporate issues like family heirlooms in addition to the larger financial assets that a family has to divide.  Addressing such issues on the front end will avoid disputes between siblings and ensure that your estate is divided the way that you want.  An experienced estate planning attorney skilled in addressing such issues can be critical to assure that all loose ends are addressed.  Additionally, it is often appropriate and important to build in flexibility into an estate plan so that subsequent changes can be made, such as leaving a memorandum to divide personal property.  Such a memorandum can allow for periodic changes to the plan as the family member needs change, without requiring the involvement of an attorney each time a change is contemplated.  Such memorandum planning is only available as part of a living trust based plan.  

AARP Report Looks at Impact of Health Reform on MS Seniors

A recent article from AARP looks at some of the provisions contained in the recently passed health reform bill, and its impact on Mississippi Seniors.  As the summary points out, many provisions of the reform are good for seniors, including no coverage prohibitions for pre-existing condition and caps on premiums based on age.  What the article fails to point out, however, is that those caps on premiums and widening of the risk pool will be on the backs of younger people.  Insurance is a zero sum game, and if insurance companies must cover people that are high risk and are limited in what they can charge them, they must make up for that revenue somewhere else.  The most likely place to make up for the added cost will be an increase to premiums of younger people.  The equity of this is obviously debatable, but it should not simply go unstated.  What's is good for older adults is likely bad for younger adults. 

US News Survey of Nursing Homes Results

The US News and World Reports has rated nursing homes around the nation.  The results of their survey are here.  Any families looking to place a loved one into a nursing home will no doubt find the guide helpful in evaluating facilities.  While not definitive and certainly no substitute for an in-person evaluation, it is nonetheless a helpful resource from a neutral party. 

Medicaid Suite Against Bayer Continues

The Mississippi Supreme Court has revived a lawsuit against Bayer AG, ruling the state can refile a claim the pharmaceutical giant defrauded its Medicaid program.   The suit accuses Bayer Corp. of inflating the average wholesale price of medications, causing the state to overpay drug providers to patients on its Medicaid program. The false price reports led the Mississippi Medicaid program to spend millions of taxpayers' dollars unnecessarily.  The state supreme court held that a prior settlement did not resolve the issue, and that this suit can continue. 

Can Mississipip Afford Medicaid Expansion?

A big part of the health insurance reform that was passed last month provides coverage through Medicaid by raising the Medicaid qualification limits.  In Mississippi, this means than an additional 500,000 to 600,000 people will be added to the Medicaid rolls. As Gov. Barbour pointed out this weekend in his CNN interview, that requires another $150 to $200 million that the state simply does not have.  Ultimately, this is going to lead to one of two results:  Either the state must increase taxes to pay for the newly insured, but since we were promised that health reform was being accomplished with no tax increases on the middle class, this must be contra to what congress and the president intended.  Or it will lead to reduced pay for services, which are already low compared to Medicare and private pay rates and will lead to all but the most desperate or compassionate of physicians having to pull out of the Medicaid system altogether, which will in turn result in no service providers for these newly insureds, and will likely result in them receiving no primary care and getting crisis care the same place they are getting it now - emergency rooms. So much for bending the cost curve down. 

Nursing Homes Sue to Block Medicaid Cuts

Three different nursing home groups have sued the Division of Medicaid over cuts to the program's reimbursement rate.  The governor claims that the cuts are necessary because the state budget is in a deficit.  However, the cuts will have a significant impact on nursing homes' ability to stay open because almost all nursing home residents are Medicaid recipients.  While the homes will no doubt be able to find some places to cut expenses, most people do not realize the large number of expenses that are simply out of the control of the nursing home operators.  In order to qualify to receive Medicaid funds, a nursing home must meet significant requirements in facilities and staffing at a significant cost.  If homes were given some flexibility in these expenses it would be easier for them to cut costs, but federal and state mandates significantly handcuff these facilities in their ability to cut.  

Funeral Director Convicted in Scam Targeting Seniors

The following was reported in the NAELA news:

A former Murrieta (CA) funeral director accused of targeting the elderly in a pre-paid funeral scam was convicted today of grand theft and financial elder abuse, authorities said.  Lee Ann Wyskiver, 58, faces up to six years in prison at her sentencing scheduled for April 30, said prosecutor Cormac Kehoe. Because Wyskiver suffers from health problems she was not taken into custody after the verdict was read this afternoon in a Riverside courtroom, Kehoe said.  The jury found Wyskiver guilty of three counts each of grand theft and financial elder abuse after about a day of deliberating.  Wyskiver was arrested in 2007 at her Escondido home on suspicion of pocketing some $20,000 in premiums for pre-paid burial insurance between 1998 and 2004 while she was owner of Valley Funeral Home.  Investigators said they identified nearly 20 potential victims but Wyskiver was charged with defrauding three elderly people.  Prosecutors allege Wyskiver had her clients complete insurance application forms but failed to submit them and kept the payments.

Cases such as this illustrate the importance of dealing with someone you know and trust.  While planning one's funeral is an important part of planning one's estate, you are not limited to dealing with funeral homes.  Such planning can be done through a funeral trust, using advisors that you already know and trust to help plan your estate.  If we can help you with planning your estate through a funeral trust, please call for an appointment. 

Mississippi Medicaid Applicants Must Exhaust Administrative Remedies Prior to Seeking Increase in Community Spouseal Resource Allowance

Prior to filing an application for Medicaid, my client, Jo Carol Alford, filed a petition in Chancery Court to increase the CSRA and the MMMNA pursuant to 42 U.S.C. § 1396r-5. Her husband suffered from multiple sclerosis, and residency in a nursing home would have been  immanent had he lived.  The uncontroverted evidence at the hearing showed that, due to her young age, the default CSRA limit of $109,560 was inadequate to provide for Jo Carol's support for the remainder of her life.  The Department argued that the trial court lacked jurisdiction to increase the default allowances for community spouses until Mrs. Alford exhausted her administrative remedies. The Chancery court found that it had authority to grant separate maintenance via a QDRO (conveying $400,000 in retirement assets) under state law, but that it did not have authority to grant relief under 42 USC Section 1396r-5, as I argued to the court.  Mrs. Alford appealed, but while the appeal was pending, Mr. Alford died.  The state argued that his death rendered the issue moot, but the Court found that it nonetheless had jurisdiction  because the issue involved a matter affecting an important public interest that was likely to arise again. After examining other cases from Tennessee, New Jersey, D.C., Arkansas and Missouri, as well as Mississippi law, the court concluded that under Mississippi law, where an administrative remedy exists "relief must be sought by exhausting this remedy before the courts will act." Accordingly, directly opposite to the findings of courts in Tennessee and New Jersey, and rendering moot specific language found in the Federal law, the Supreme Court agreed with the trial court that 42 USC Section 1396r-5 did not create a separate basis for trial court jurisdiction to increase the Medicaid default allowances for community spouses. 

Sadly, this case means that young Mississippi residents with seriously ill spouses like Mrs. Alford, who are faced with the difficult decision of forced impoverishment in order to obtain medical care that their spouse requires, or failing to get the help that their spouse requires in order to protect themselves, will be forced to take drastic measures to protect themselves.  The decision eliminates altogether a remedy that Federal law gives those spouses, because Medicaid admittedly takes the position that increases in the allowances are never allowed - under any circumstance.  Their own manual does not even give their administrative hearing officers authority to grant the relief that the Supreme Court says claimants must first ask them for before taking the matter to real judge.  No spouse will be willing to risk an appeal of such a matter through the Medicaid administrative hearing level, which can take as long as a year, and then to a court of law that may take as long as another year, all the while having to privately pay for their spouses' care.  The practical effect of this decision will be to force such spouses to take drastic steps to protect themselves and their spouse, including precisely the aggressive type of Medicaid planning permitted by Federal and state law but which Medicaid criticizes as an abuse of the system, or sadly in the most extreme of cases, obtaining a Medicaid induced divorce.  If you find yourself in such a circumstance, our firm is skilled in such aggressive planning and I be happy to discuss your case with you.  Please feel free to call for an appointment. 

Alford v. Mississippi Division of Medicaid, 2010 Miss. LEXIS 164 (March 25, 2010)

Witnesses to Wills Must Know What They are Witnessing

The Mississippi Supreme Court recently issued an opinion emphasizing the importance of strict adherence to legal formalities when executing wills. In the case of In re: Griffith, the court upheld a trial court's strike of the will as invalid because the 2 witnesses to the document testified at trial that they did not realize he was a "will" they were witnessing.  Specifically, they did not deny that it was their signature, or even that they signed it under oath, but instead state only that they thought they were signing a power of attorney.  The Mississippi Supreme Court specifically looked at the issue of whether a witness to a will was required to know it was a "will"that they were witnessing, or whether the act of witnessing a non-incapacitated individual signing something was sufficient. The court, looking at both the strict language of the wills statute, together with conflicting decisions in Mississippi law dating back nearly 100 years, concluded that the witnesses' knowledge of what they were witnessing is a prerequisite to the validity of a will. Specifically, the court held:

"We find that Mississippi Code Section 91-5-1 requires that attesting witnesses to a will know the purpose of their attestation, even when the testator signs the will in their presence. As noted in our prior cases, either formal or constructive publication will ensure that this knowledge is imparted to the attesting witnesses."

This case illustrates the importance of strict adherence to formalities when executing wills. Here, the individual testator went to the trouble of drafting a will, which in all ways was apparently a valid instrument under Mississippi law, and further went to the trouble of not only having the document witnessed by the required 2 witnesses, but also had those witnesses signatures notarized, which was a statement under oath that the witnesses acknowledged that the instrument was declared to be a will, and was signed by the testate or in their presence. Nonetheless, despite following all of these formalities, and in the absence of any evidence reported in the case that the testate or lacked capacity to execute a will, the Mississippi Supreme Court struck down an otherwise valid instrument strictly on technical grounds that the witnesses' oral testimony was that they didn't know it was a will that they were witnessing.

One must wonder if the result would have been the same had the instruments been witnessed at a lawyer's office instead of the bank. While the decision does not explicitly state this was a "do-it-yourself" will, the fact that the document was witnessed and notarized at a bank leads one to that conclusion. More frequently than not, the challenges that we seek to these "do-it-yourself" documents is not the language of the documents themselves, which are almost always adequate, but rather the failure to follow a simple formality, such as in this case. The testator in this case may have well saved $500 or more by self drafting his will, and exchanged that savings for invalidating his entire last wishes for  how his estate would be handled. The end result in this case was an equal distribution of his estate to his children under Mississippi's intestacy laws. In his will, he expressed a desire to favor certain individuals over others, but those desires will now be completely moot.  Most would concede that such a trade-off is no bargain.