Thursday, November 30, 2006

Medicaid Fraud in Employment

The Pennsylvania Attorney General's Office recently initiated a criminal prosecution through its Medicaid Fraud Control Section charging Medicaid fraud in an employment setting.

Medicaid fraud is a crime under Section 17 of the Medicare-Medicaid Anti-Fraud and Abuse Amendments of 1977 (Public Law 95-142), which authorized & funded states' Medicaid Fraud Control Units to investigate and prosecute provider fraud in the Medicaid program. The PA AG's Office formed its Medicaid Fraud Control Section (MFCS) in 1978.

The PA AG's Office issued a press release about its Medicaid fraud prosecution based on employment, entitled "Attorney General Corbett announces Medicaid Fraud and theft charges against York County woman accused of falsifying education credentials for mental health job":

Attorney General Tom Corbett today announced that agents from the Attorney General's Medicaid Fraud Control Section have filed criminal charges against a York County woman who was paid more than $35,000 for mental health services based on falsified information about her education and academic credentials. * * *

According to the criminal charges, MacBeth falsely claimed to have earned a Master's Degree when applying for work as a Behavioral Specialist Consultant and Mobile Therapist for two York County health care organizations. Both of those positions involve working with children who have mental health or behavioral problems and require a Master's Degree as a minimum qualification, according to the PA Department of Public Welfare. * * *

According to the criminal charges, the false educational background MacBeth provided to NHS and PCBHS caused those two agencies to pay MacBeth $35,547 for services she was not qualified to provide. Additionally, MacBeth's actions caused those two agencies to submit fraudulent claims to the PA Medicaid program totaling $49,269. Macbeth is charged with two counts of Medicaid fraud and two counts of theft by deception (creating a false impression). Each count is a third degree felony, carrying a maximum penalty of seven years in prison and a $15,000 fine.
The PA AG's website addresses its investigations into Medicaid fraud, as follows:
The main focus of Medicaid Fraud investigations concerns providers which are usually physicians, dentists, mental health clinics, drug and alcohol clinics, hospitals and health maintenance organizations. Recipient fraud is generally left to local district attorneys to prosecute.
The usual methods of Medicaid fraud are summarized in an article entitled "Investigating Health Care Fraud Within the Medicaid Program":
  • Billing for Services Not Rendered
  • Misrepresentation of Services
  • False Cost Reports
  • Kickbacks
  • Unbundling Supplies and/or Services
  • Medically Unnecessary Services and Substandard Care
  • Drug Diversion
Consistent with these usual forms of fraudulent activity, the MCFS prosecuted Medicaid fraud in 2005-06 by targeting physicians, pharmaceutical companies, and pharmacists, among others, as indicated by that Office's press releases:
However, this recent prosecution demonstrates that Medicaid fraud laws also can be violated by persons making false statements or fraudulent pretenses in their rendering of medical or care services in an employment relationship funded under the Medicaid program. If a person is convicted, the financial and imprisonment penalties are significant.

A list of the four offices (Harrisburg, Lemoyne, Norristown, & North Huntingdon) of the MCFS, with contact information, is found online
here. The AG's Office offers a pamphlet about Medicaid fraud here.

As with any prosecutions brought by the PA AG's Office, we are reminded that "a person charged with a crime is presumed innocent until proven guilty."

Wednesday, November 29, 2006

Gov. Rendell Signs SB 628 into Law!

Late on Wednesday afternoon, November 29, 2006, Governor Rendell signed Senate Bill 628, in its Printer's No. 2117, into law.

I was told this at 6 pm on Wednesday evening by Harriet Withstandley, the Chief Counsel to the
PA Department of Aging, when we met to teach an Elder Law class at Widener Law School (Hbg Campus). She had received an email message from the Governor's Office to this effect just a half hour before our conversation.

The bill had been presented by the Legislature to the Governor on November 22nd, and required action by Saturday.

Interestingly, the Governor's website notes
here, in five press releases, certain other legislation signed or initiatives announced on Wednesday, November 29, 2006, but not SB 628. Perhaps he intends to announce it during his visit tomorrow when he speaks at a University of Pennsylvania School of Nursing event honoring Claire Fagin to be held at the Philadelphia Museum of Art. Given the good effects that SB 628 will bring to caring nursing professionals, that certainly would be appropriate.

I do not know the Act's number yet, but that should be known tomorrow. News stories about the signing should also appear tomorrow. [UPDATE: It was signed as Act 169 of 2006.] And likely the Governor's website will be updated via a press release. [UPDATE: The Governor's Press Release, referencing the signing of SB 628 (among other bills) on November 29, 2006, is found here.]

By virtue of its signing on November 29, 2006,
SB 628 will become law 60 days thereafter. By my strict count, that would be on Sunday, January 28, 2007. But it ain't so.

Since the effective date is stated as a number of days (60, measured from the date of signing), and the date falls on a weekend, the actual effective date will be the next business day, that is, on
Monday, January 29, 2007.

Harriet indicated that the Department of Aging will post the recommended forms suggested by
SB 628 very soon -- within a few days -- on its website.

Harriet has agreed to join me & Bob Wolf, of Pittsburgh, to present a
Pennsylvania Bar Institute "Conference Call Course" about SB 628 in the new format similar to those already scheduled here. Planning is already underway. It is scheduled from 12:30 until 1:30 pm on January 16, 2007 -- just before the new law will take effect.

In connection with this PBI call-in course, we intend to make a "clean" version of the new Act available for participants on a site in an unofficial, but much more readable, form than presented by the final form of the legislation.

For me, Thanksgiving Day came a little late this year -- it fell on a Wednesday evening.

UPDATE 11/30/06:

I found the following confirming Press Release, issued by the Office of the Governor, here:

Governor Rendell Signs Bills
Wednesday November 29, 7:25 pm ET

HARRISBURG, Pa. /PRNewswire/ -- Governor Edward G. Rendell today signed into law the following bills: * * *
Senate Bill 628, sponsored by Sen. Stewart J. Greenleaf (R-Bucks/ Montgomery), amends Title 18 (Crimes & Offenses) and Title 20 (Decedents) related to health care power of attorney, living wills and out-of-hospital do-not-resuscitate orders. The bill re-writes and replaces Chapter 54 of Title 20 to provide a statutory means for competent adults to control their health care through written instructions or by health care agents or representatives and requested orders, for execution and revocation of living wills, for health care power of attorney and for the appointment and revocation of health care agents and selection and duties of health care representatives.

The bill passed the House 191-0 and the Senate 48-0. The bill becomes effective in 60 days.

Tuesday, November 28, 2006

Vatican Favors Living Wills

In an article dated October 19, 2006, entitled "Top Vatican official reiterates opposition to euthanasia, favors 'living will'", the Associated Press reported:

The Vatican's top official for health issues reiterated the Catholic Church's strong opposition to euthanasia in an interview published Thursday, but said it was in favor of allowing terminal patients to opt against aggressive therapeutic treatment.

Cardinal Javier Lozano Barragan's comments came as an Italian Senate committee has been hearing arguments over proposed legislation to approve a living will — allowing people to decide in advance how they want to be treated if they become incapacitated in the last stages of a terminal illness.
The article was made available online here by the International Herald Tribune. It continued:
Barragan spoke in favor of a living will, telling Turin daily La Stampa that the Vatican opposed "those useless and disproportionate treatments before the imminent death of the patient, which have as sole consequence prolonging the agony."

He clarified that hydrating and feeding a terminal patient could not be considered aggressive therapeutic treatment.

"In no way, however, are we in favor of the idea of euthanasia — meaning that action, or omission — destined to cause the death of the patient," Barragan added.
The Catholic News repeated these points & quotes in its online article entitled "Vatican health official backs living wills", dated October 20, 2006, found here.

The website
ABOUT, offers a summary & two good references regarding Catholicism's view of a "living will", as follows:
A living will is very important in Catholicism because it says what you want when you cannot speak for yourself.

This article explains the Catholic living will - Catholic Living Will.

Also read End of Life Decisions on EWTN.
The latter link explains, in a Question & Answer format, the Catholic teaching on "extraordinary means" of preserving life.
Q. What can a person do to ensure that their wishes and their religious beliefs are respected by their family, medical personnel and the courts?

The best way is by means of an Advance Directive which states the patients wishes with respect to aggressive medical treatment. There are two basic kinds, a Living Will by itself or an Advance Directive with a Durable Power of Attorney (or Proxy) for Health Care Decisions. The merits of each are as follows:

1. Living Will. By this document a person decides completely in advance whether they want to be kept alive by technology. It is a "yes" or "no" statement, which then places the matter in the hands of the medical community. Many Catholic bishops and moralists consider this an unsatisfactory approach, as it does not provide for unforeseen circumstances. Despite the enthusiasm of the media, many medical professionals, and sadly even some Catholic institutions, Living Wills are NOT the way to go!

2. Advance Directive with a Durable Power of Attorney or Health Care Proxy. These documents give to a friend or family member the authority to make health care decisions according to one's mind as expressed in an Advance Directive. By appointing an agent, or giving someone durable power of attorney, the patient allows for unforeseen circumstances. By stating in an Advance Directive that one wants Catholic teaching adhered to, one can ensure that neither the agent or the medical institution will disregard that teaching. Together they ensure that a trusted person, rather than strangers, will make circumstantially appropriate decisions, in keeping with the Faith. * * *

That article concludes by suggesting sources for "living will" forms acceptable for use by Catholics, provided through the courtesy of the National Catholic Bioethics Center, of Philadelphia, PA, including:
In an article found online here, the Florida Catholic Conference reviewed the history of Catholic views on "end-of-life" decisions & "living wills", and offered forms acceptable under Florida law for Catholics, based upon the 2001 version of a "Catholic Declaration on Life and Death".

In February, 2001, the Catholic Diocese of Pittsburgh published its pamphlet (see graphic above) entitled
"Difficult Decisions? -- Living Wills & Advance Directives -- A Catholic Perspective", available online here, regarding these end-of-life decisions in Pennsylvania under then-applicable law. But that law soon will change when Governor Rendell will sign Senate Bill 628 into law, as much discussed previously on this blog.

Most recently, on March 20, 2005, the National Catholic Bioethics Center published "A Catholic Guide to End-of-Life Decisions -- An Explanation of Church Teaching on Advance Directives, Euthanasia, and Physician Assisted Suicide", which is available online here. It references the form of an "Advanced Medical Directive and Health Care Proxy", which is only available by order from NCBC's Publications Department. Click here to order this guide on-line.

Senate Bill 628
-- as approved unanimously by the Pennsylvania Legislature and as now awaits signature by the Governor -- will accommodate Catholics who desire to act under the guidance offered by their Church to date. It is sufficiently broad so that persons of other religions or personal beliefs likewise will be able to follow their views in the making or refusing of health care decisions, short of euthanasia.

Note: I am not Catholic. So, if I am incorrect in my analysis, please forgive me, and then correct me.

UPDATE: 01/13/07:

The Associated Press distributed an excellent article entitled "Catholics seek guidance on end-of-life issues" [link expired], published on January 12, 2007, in the Reading Eagle.

Update: 09/24/07:

For the Catholic Church's reaction on a somewhat related issue, see: PA EE&F Law Blog posting, "BODIES" in Pittsburgh, with Reactions (09/24/07).

Update: 02/27/08:

For a further update about the Vatican's stance on end-of-life decisionmaking, see: PA EE&F Law Blog posting "
Catholic Congress Studies End-of-Life Issues" (02/27/08).

Monday, November 27, 2006

Pre-DRA Annuities in PA

The Deficit Reduction Act of 2005, signed by President Bush on February 8, 2006, remains in effect, despite court challenges (See: US Dist Ct Dismisses DRA Challenge). The DRA made sweeping changes affecting state-administered Medicaid programs, and changed the ground rules for long term care financing. Medicaid will no longer be a viable taxpayer-funded strategy for people who fail to anticipate their long term care needs.

A comprehensive, detailed, & scholarly reference (72 pages, PDF format) about the DRA and its effects, dated April 17, 2006, authored by a panel of ten member contributing editors of the
National Academy of Elder Law Attorneys, entitled "Analysis of Changes to Federal Medicaid Laws Under The Deficit Reduction Act of 2005", is available online here.

More specific to Pennsylvania is the excellent review & analysis by Attorney Robert C. Gerhard, III, of the DRA, as enabled in July, 2005, into Pennsylvania law by our Commonwealth's Act 42 of 2005. His article, updated June 6, 2006, entitled "Federal Changes in Medicaid Law and Pennsylvania Act 42", is found here.

Among many other changes, the DRA changed rules about what is considered an asset, or a transfer of an asset, when applying for Medicaid. Prior to the DRA, one often-used asset transfer technique was purchase of an actuarially-sound, commercial annuity, which was deemed made for "fair value" such that no transfer penalty could be applied.

This treatment was altered by
Section 6012 of the DRA. It provides that buying an annuity would be viewed as a transfer of assets unless the state is named the remainder beneficiary of the annuity payments, up to the amount of Medicaid assistance ultimately provided by the state. In his explanation, Attorney Gerhard explained the limitations on annuities as follows:

Moreover, the DRA provides that the purchase of an annuity that fails to name the state as remainder beneficiary “for at least the total amount of medical assistance paid on behalf of the annuitant” is treated as a transfer for less than fair consideration and would therefore be subject to the transfer penalty rules. The law provides that the State must be named as remainder beneficiary in a second position behind the community spouse or minor or disabled child. The DRA exempts certain annuities from these requirements.

Specifically exempted are annuities purchased with the proceeds of certain retirement accounts and annuities that 1) are irrevocable and non-assignable; 2) are actuarially sound, and 3) provide for payments in equal amounts during the term of the annuity, with no deferral and no balloon payments made. Section 6012 applies to annuities purchased on or after the effective date of the Act.
Prior to the federal enactment of the DRA, in July of 2005, the Commonwealth passed Act 42, 62 PA. STAT. ANN. § 441.6, which added restrictions on annuities not then contained in the federal Medicaid Act.

Would Act 42 affect pre-DRA annuities?

On November 21, 2006, a federal court permanently enjoined the Pennsylvania Department of Public Welfare from denying Medicaid to an "Institutional Spouse" due to the purchase by the "Community Spouse" of an annuity. Attorneys Matthew Parker and Kevin Grebas of Marshall, Parker & Associates obtained that permanent injunction.

The Plaintiffs claimed that the Commonwealth enacted legislation – Act 42 -- that is inconsistent with federal law, which was relied upon in denying Medicaid assistance to the Institutional Spouse.

However, the Commonwealth argued that it was not relying upon Act 42 at all, but upon interpretation of regulations about pre-DRA annuities. The court accepted that limiting position:

[T]his case does not present the issue of whether Act 42, 62 PA. STAT. ANN. § 441.6, conflicts or frustrates the purpose of the federal Medicaid Act, and thereby would be preempted. * * *

Instead, this action is based upon Defendant’s alleged misinterpretation of the pertinent federal law regarding irrevocable actuarially sound commercial annuities. As such, this case requires the Court to apply or interpret provisions of the federal Medicaid Act in order to determine whether the remedies sought by Plaintiff are warranted. * * *

[A]s Defendant has disavowed any reliance upon Act 42, 62 PA. STAT. ANN. § 441.6, in denying Plaintiff Medicaid benefits, the Court will decline to issue a declaratory judgment that Act 42, 62 PA. STAT. ANN. §441.6, is preempted by the Supremacy Clause.
In addressing the specific annuity under scrutiny, which was purchased before enactment of the DRA, the court followed a prior federal district court decision in Mertz v. Houstoun, 155 F. Supp. 2d 415, 426-27 (E.D. Pa. 2001). That decision held that "available assets may become unavailable assets and not countable in determining Medicaid eligibility for the institutionalized spouse when an irrevocable actuarially sound commercial annuity is purchased for the sole benefit of the community spouse."

That decision also noted that court's "displeasure with this loophole in federal law, which essentially enables couples to achieve eligibility outcomes inconsistent with the “purpose of the MCCA and indeed the whole thrust of the Medicaid program which is to provide assistance to those truly in need.”

The court then decided as follows:
Consequently, the Court holds that Plaintiff has established actual success on the merits of his claim that he is being denied Medicaid assistance in violation of federal law. * * *

Also, the Court finds that it is in the public interest to grant Plaintiff’s request for a permanent injunction, as Defendant has denied Medicaid assistance to Plaintiff in violation of federal law, notwithstanding the fact that Plaintiff has effectively achieved a Medicaid eligibility outcome inconsistent with the “purpose of the MCCA and indeed the whole thrust of the Medicaid program which is to provide assistance to those truly in need.” Mertz, 155 F. Supp. 2d at 427. However, it is for Congress to close this loophole in federal law. Accordingly, the Court will grant Plaintiff’s request to permanently enjoin Defendant from denying him Medicaid benefits based upon the $250,000 annuity purchased by Mrs. James in September of 2005.
But, perhaps more importantly for the broader public, the court declined to address the viability of Pennsylvania's Act 42, as the Plaintiff had sought:
Consequently, notwithstanding Plaintiff’s contentions, this case does not present the issue of whether Act 42, 62 PA. STAT. ANN. § 441.6, conflicts or frustrates the purpose of the federal Medicaid Act, and thereby would be preempted. As such, declaratory relief is neither useful nor necessary to clarifying the legal relations in issue or affording relief to Plaintiff. Accordingly, the Court will deny Plaintiff’s request for a declaratory judgment.
The Memorandum Decision is found online here.

Thus, Act 42 still remains in effect. And so does the DRA.

Friday, November 24, 2006

PBS Frontline Presents "Living Old"

"A powerful and intimate journey into the uncharted territory of Americans living longer than ever -- and what it means for them, their loved ones and our society."

The Public Broadcasting System (PBS) presented, on Tuesday evening, November 21, 2006, a one-hour Frontline documentary entitled "Living Old", prepared by WGBH public television (Boston, MA).

The "Living Old" project is more than a single television broadcast. PBS & WGBH together offer a complete "Living Old" online resource center, found here, to address the issues, emotions, economics, and societal effects arising from prolonged aging -- a clear trend in America due to lifestyle & health care advances.

The online Introduction for the "Living Old" presentation poses the concerns & challenges:

For the first time in American history, "the old old" -- those over 85 -- are now the fastest growing segment of the U.S. population. Medical advances have enabled an unprecedented number of Americans to live longer, healthier lives. But for millions of elderly, living longer can also mean a debilitating physical decline that often requires an immense amount of care. And just as more care is needed, fewer caregivers are available to provide it. In "Living Old," FRONTLINE investigates this national crisis and explores the new realities of aging in America.

"We're on the threshold of the first-ever mass geriatric society," says Dr. Leon Kass, chairman of the President's Council on Bioethics from 2002 to 2005. "The bad news is that the price that many people are going to be paying for [an] extra decade of healthy longevity is up to another decade of anything but healthy longevity. … We've not yet begun to face up to what this means in human terms."

Vast numbers of our elderly are living lives that neither they nor their families ever prepared for or imagined. Through the perspectives of the elderly, their families and the doctors and nurses who care for them, "Living Old" explores the modern realities of aging in both urban and rural America. The hour-long documentary takes viewers on an intimate and powerful journey that raises new and troubling concerns about what it really means to grow old.

The "Living Old" resources are expansive, comprehensive, & detailed. Frontline may well have assembled the most current, reliable, and focused set of resources made available on the internet for the general public on advanced aging.

Through the PBS "Living Old" webpages, you can:

  • Watch the full program as an online video on your computer, through QuickTime or Windows Media Player software (and a high-speed internet connection)
  • Read the stories of persons & families featured in the documentary, through links in the presentation's Synopsis
  • Read reliable reference materials, on topics of caregiving, end-of-life decisions, long-term care planning & financing, Alzheimer's disease treatment, elder abuse, and pain management
  • Ponder faith & spiritual issues, including: Bereavement, personal purpose, physical versus mental declines, "life review", nature of life, existence & power of God, death, community connections, & the role of religion
  • Order a DVD or a VHS video recording of the "Living Old" presentation
The television broadcast of "Living Old" was noted nationally in press reviews identified here. Typical of the reactions was that of Rob Owen, in his article dated November 21, 2006, found here in the Pittsburgh Post-Gazette:
"The program doesn't offer a cure-all solution, because there isn't one. But it does raise an increasingly important issue, experts share their advice and viewers are left to ponder what living to a ripe old age will mean to them and to their families."

PBS & WGBH have produced a phenomenal effort on a timely topic.

I hope that these organizations continue to maintain & update the "Living Old" website, so that it can remain a reliable resource on these issues far into the future.


After publishing this post, I read the following exchange on the Comments section of the "Living Old" website; and now I am reassured that my wish will come true:

Viewer from NY: I do hope you make the web site resource material available for a long time to come. There's a lot to read and digest. Thank God for public television. You're doing a terrific job. FRONTLINE has always had superior programming. It never lets the viewers down.

FRONTLINE's producers respond: This web site's content - plus the full program in high quality video - will remain available for viewing and reading for years right here on FRONTLINE's site, as part of the public service mission of public broadcasting/media.

Thursday, November 23, 2006

PA Med Society to Gov: Sign SB 628

The Pennsylvania Medical Society publicly supports Senate Bill 628, which was adopted by both the Pennsylvania Senate and House during the 2005-2006 Legislative Session, and which is ready for signature into law by Governor Edward G. Rendell after the Thanksgiving holiday. The Society, on its website here, summarizes SB 628, and reiterates its members' support, as follows:

Health Care Decision-Making Bill Passes House

Senate Bill 628, which provides a comprehensive statutory framework governing health care decision-making for incompetent patients, was adopted unanimously by the House of Representatives on November 20, 2006. Governor Rendell is expected to sign it quickly. The state Senate passed the bill in October.

The Pennsylvania Medical Society supports this legislation because it provides greater clarity and protections for patients and physicians.

SB 628 would create a new law that provides for medical treatment decisions to be made for an adult patient through:
  • Instructions in a living will,
  • Health care agent appointed in a health care power of attorney,
  • Health care representative designated by the patient, or by default, based upon a statutory list of priorities.
The bill incorporates existing law provisions for out-of-hospital DNR orders.

Previously, applicable standards and procedures for health care agents and representatives were not clearly defined. As a result, physicians sometimes were faced with the dilemma of either ignoring patient autonomy or risking adverse legal ramifications. SB 628 provides both greater clarity and protections for patients and physicians.

The bill also requires the Department of Health to consider, in consultation with an advisory committee, adoption of a standardized form for a physicians-order-for-life-sustaining-treatment (POLST), which would provide for continuity of DNR and other life-sustaining treatment orders from one setting to another. The Medical Society has been working for a number of years to obtain a POLST order.

If Gov. Rendell signs SB 628 into law, the Society will provide a summary of the bill and will update its “Advance Directive” brochure and model form.
The Society is one of many organizations that provided input regarding the final form of SB 628, which is the product of compromises allowing a general consensus.

he Legislature, the Governor's Office, and the Department of Aging have also heard, during the past two years of this Legislative Session, from the Pennsylvania Bar Association, the Joint State Government Commission, a coalition of disabled persons advocates lead by the ARC of Pennsylvania, and the Pennsylvania Catholic Conference, among others.

The involvement of the Society, and the basic provisions of SB 628, were noted
here on November 22, 2006, by Medical News Today.

Update on 11/24/06:

An Associated Press news article, dated November 23, 2006, by Martha Raffaele, entitled "Bill aims to end disputes in absence of 'living wills'", was published statewide in Pennsylvania newspapers, including the Philadelphia Daily News and the Centre Daily Times. It stated, in part:

Legislation intended to provide better guidance for families whose loved ones lack either a living will or power of attorney is awaiting Gov. Ed Rendell's signature after being approved unanimously by the House of Representatives on Monday. It had earlier passed the Senate, also unanimously.

The measure, sponsored by Sen. Stewart J. Greenleaf, R-Montgomery, would give decision-making priority to a patient's spouse, unless a divorce is pending. That would be followed by adult children, parents, siblings, adult grandchildren, or another adult familiar with the patient's preferences and religious and moral values.

Greenleaf said the legislation has been several years in the making, long before the bitter end-of-life battle involving Terri Schiavo, a severely brain-damaged woman who formerly lived in Montgomery County, made national news. * * *

In his veto message, Rendell expressed concerns that the earlier bill would prevent families whose relatives suffer from advanced chronic diseases, such as Alzheimer's, but are not considered terminally ill, from seeking comfort care instead of life support for patients without a living will. He also praised the intent of the bill and encouraged the General Assembly to revise it. * * *

Rendell spokeswoman Amy Kelchner said Wednesday that the governor would need to review the bill before deciding whether to sign it.

Update on 11/27/06:

In an editorial, dated November 26, 2006, the Carlisle Sentinel urged Governor Rendell to sign SB 628. That newspaper stated here:

When Gov. Rendell in 2004 vetoed legislation intended to make end-of-life decisions more clear-cut for patients and families, he said that if the Legislature came back with a better bill, he would sign it.

State legislators clearly think they have crafted a bill that overcomes the reservations the governor had then. Last week both the House and Senate unanimously approved a measure now sitting on Rendell's desk awaiting his signature. * * *

This bill, predating [Terry Schiavo's] tragic situation, has been years in the making and involved the thoughtful efforts of advocates for the disabled, associations representing doctors and lawyers and faith-based groups. And as already mentioned, it was sent back once for further work.

It is apparent that Rendell made the right decision then. This new version allows flexibility for families caught in wrenching circumstances and also gives developmentally disabled patients faced with life-threatening illnesses greater say in their medical care.

No one wants government interfering in the most fundamental decisions regarding an individual's life and death. Nor does anyone want to have life-and-death decisions decided in the courts surrounded by a media circus, as was Schiavo's fate.

We urge the governor to study this bill carefully. If it does the job in defining where Pennsylvanians stand in making end-of-life decisions for loved ones without crossing the boundary of government intrusion, he should sign it.

Wednesday, November 22, 2006

Seniors as Criminals & Convicts

National Public Radio (NPR) broadcast a news & analysis story during Morning Edition on Tuesday, November 21, 2006, entitled "Jury Convicts Elderly California Driver of Manslaughter", by Mandalit del Barco, which you can read or hear here. It reports about the sentencing of an elderly man upon ten manslaughter convictions by a jury:
Three years ago, 89-year-old George Weller drove his car through the Santa Monica Farmers Market, killing 10 people and injuring more than 60. Weller's attorneys argued that it was an accident. But the jury still convicted him on 10 counts of manslaughter.
The criminal convictions in October, 2006, were widely publicized. For example, see: "89-Year-Old Found Guilty Of Manslaughter -- Man Killed 10 People And Injured More Than 70 In 2003 Car Crash At Farmer's Market", published October 20, 2006, by CBS News, found here.

The sentence handed down to the defendant (in his absence from the court proceeding) upon his multiple convictions was described by CBS News in its article, dated November 20, 2006, entitled "George Weller Gets Probation in Crash Case", found here:
Superior Court Judge Michael Johnson said he agreed completely with the jury that convicted Weller last month of ten counts of vehicular manslaughter with gross negligence.

But he said Weller's health problems that include severe heart disease would make the 89-year-old a burden on prison authorities and taxpayers, and that imprisonment would most likely kill him.

"Sending Mr. Weller to jail or prison would be a burden on the prison authorities; it would require the taxpayers to pay the substantial costs of Mr. Weller's medical care; and it would most likely kill Mr. Weller. None of that is right, and it makes no sense, so I will place Mr. Weller on probation. I believe it's better to do that, and require him to comply with financial conditions that will assist the victims in recovering their losses," Johnson said
"Aging" is generally discussed by Wikipedia here:
Ageing or aging is the process of becoming older. This traditional definition was recently challenged in the new "Handbook of the Biology of Aging" (Academic Press, 2006), where ageing was specifically defined as the process of system's deterioration with time, thus allowing for existence of non-ageing systems (when "old is as good as new"), and anti-ageing interventions (when accumulated damage is repaired). This article focuses on the social, cognitive, cultural, and economic effects of ageing. The biology of ageing is treated in detail in senescence. Ageing is an important part of all human societies reflecting the biological changes that occur, but also reflecting cultural and societal conventions.
As evidenced by the prosecution of Mr. Weller, the mere act of driving a vehicle becomes affected by aging. Pennsylvania recognizes this, and treats drivers over the age of 50 differently in its periodic license renewal process. See: "Steer Clear"; Steer Clearly, Too.

But even if it is the natural process of aging that causes one to violate a law or to create harm, an elderly person still may be convicted of a crime; and the punishment imposed might be imprisonment.

The National Criminal Justice Reference Center (
NCJRC) is focused on crime & corrections. It is a federally-funded resource, offering justice & substance abuse information to support research, policy, & program development worldwide.

According to its website, found here, NCJRC offers services & resources related to crime, victim assistance, & public safety, to inform policymakers, practitioners, researchers, educators, community leaders, & the general public. It offers a range of services & resources, including:
  • Search Questions & Answers -- Access hundreds of questions related to juvenile and criminal justice, victim assistance, drug policy, & NCJRS services.
  • Register online -- Learn about new publications, grants, & funding opportunities, and other news & announcements.
  • NCJRS Abstracts Database -- Research one of the largest criminal & juvenile justice libraries & databases in the world, hosted by NCJRS.
  • Justice Events -- Search for conferences based on respective focus areas, geographical location, or dates.

Weekly, NCJRC draws national attention to important information on various topic areas. This week, NCJRC lists various articles regarding older offenders & aging prisoners.

NCJRC noted articles that were published in August, 2006, in the United Kingdom, in a compendium entitled "Ageing, Crime and Society", edited by Azrini Wahidin & Maureen Cain, which address issues of crime and the elderly perpetrator or prisoner:

  • "Unregarded Age in Corners Thrown": An Answer to the Issues of Healthcare for Older Prisoners (Pp. 193-209 -- See NCJ-216056) NCJ Number: 216067 Author: Debby Jaques -- Abstract
  • Managing the Special Needs of Ageing Prisoners in the United States (Pp. 210-229 -- See NCJ-216056) NCJ Number: 216068 Author: Ron Aday -- Abstract
  • Older Offenders and Community Penalties: A Framework for Thinking (Pp. 230-247 -- See NCJ-216056) NCJ Number: 216069 Author: Gaynor Bramhall -- Abstract
  • Towards a Better Government for Older People and the Policy Implications in the Criminal Justice System (Pp. 248-263 -- See NCJ-216056) NCJ Number: 216070 Author: Mervyn Eastman -- Abstract

A search of the NCJRC website reveals other resources involving the elderly & crime that focus, instead, on the elderly person as a subject of crime -- not as a perpetrator or prisoner, but as a:

  • Target of "scams" or financial crimes
  • Subject of personal abuse or violent crimes
  • Witness or complaintant in criminal prosecutions
  • Victim needing rehabilitation -- financially, physically & emotionally -- after a crime

Still, as to elderly offenders, at least, "Punishment is the last and the least effective instrument in the hands of the legislator for the prevention of crime.” -- John Ruskin (English Writer, 1819-1900)

Note: Thanks to Leo L. Dunn, Assistant Director, Office of Policy, Legislative Affairs & Communications, of the Pennsylvania Board of Probation and Parole, who suggested this topic.

Tuesday, November 21, 2006

House Passes SB 628!

Our fearful trip is done,
The ship has weather'd every rack,
the prize we sought is won,

The port is near, the bells I hear,
the people all exulting . . .

Late on Monday afternoon, November 20th, just before 5:30 pm, the House approved, by a 191-0, vote Senate Bill 628. The final form of the bill is found here. Hurrah!

Now, SB 628 will be sent to Governor Rendell for his consideration as the Commonwealth's chief executive. If he signs SB 628, as hoped & expected by the various advocacy & professional organizations that support it, the resulting statute would take effect 60 days after the date of his signing.

The only sadness in this process is that some of the legislators who voted for SB 628 did so as one of their final personal acts as elected Senators or Representatives, whether by their retirement or due to election results.

No one was assassinated in the process of the prolonged struggle for change in the law on this subject, as was Lincoln -- the subject of Walt Whitman's "O Captain! my Captain!" -- after the Civil War.

Change, while necessary, is still painful in a matter of degree, depending upon your role. And so, for some in the Legislature during the 2005-2006 Session, there is personal sadness amidst the triumph of a unanimous vote to adopt this legislation.

Pennsylvanians thank all legislators for staying the course, nevertheless, and for giving us your best efforts, together.

As to SB 628, all Pennsylvanians will benefit from your efforts.

The ship is anchor'd safe and sound,
its voyage closed and done,
From fearful trip the victor ship comes in with object won:
Exult O shores, and ring o bells!
But I with mournful tread,
Walk the deck my Captain lies,
Fallen cold and dead.

-- Walt Whitman (1819-1892), from "O Captain! my Captain!", found

Monday, November 20, 2006

SB 628 Supported by PA Bar Assn

Last week, in conjunction with the Legislative Department of the Pennsylvania Bar Association, I prepared a discussion draft of a letter stating the Bar's continued strong support of Senate Bill 628, which is scheduled for final consideration by the Pennsylvania House on the afternoon of Monday, November 20, 2006. This letter restates that Bar's strong advocacy for SB 628 on the eve of the potential final consideration of the bill by the House, which was postponed from Wednesday, November 15th to today. See: PA House to Consider SB 628 on Wed Nov 15th

This is the letter that the PBA President, Kenneth J. Horoho, Jr., sent to State Representatives this morning.

I write to you on behalf of the Pennsylvania Bar Association to reiterate the Bar's strong support for Senate Bill 628 becoming law this session and to ask for your support of the measure. Generally SB 628 would provide a statutory framework for health-care powers of attorney, surrogate health-care decision-making by a patient's representative, and out-of-hospital "do not resuscitate" procedures.

I want to reinforce three compelling points in support of SB 628:

• SB 628 is a workable, needed statutory framework that would provide guidance to millions of Pennsylvanians on health care POAs, health care decision-making by family surrogates, and end-of-life medical decisions. It is consistent with the common law rights recognized by Pennsylvania appellate courts. It preserves personal rights, affirms human dignity, but considers medical realities in the most difficult decisions to be faced by any Pennsylvanian-the preservation or termination of life.

• SB 628 should have a significant positive economic impact on individuals and our society. Individuals need the certainty of a statute-not just basic court-recognized principles-when dealing with personal medical decisions; institutions, medical personnel, and caretakers need the certainty to conduct their activities professionally, effectively, and economically. This certainty should translate into medical dollars better spent, or, in some cases, not spent at all.

• SB 628 is the product of a cooperative discussion and resolution process involving diverse and equally committed organizations: lawyers, doctors, hospital administrators, disabled community advocates, hospice workers, government agencies, and many other organizations provided input and agreed upon a solution. The Governor's Office (through its enabling of the discussion), appreciated the common need and urged this discussion to produce a statutory framework that would address the range of concerns.

On behalf of the PBA, I thank you for your attention to this matter.


Kenneth J. Horoho, Jr.
President, Pennsylvania Bar Association
The House is now in session.

No riders or amendments yet have altered SB 628. So it can be passed by the House in the form capable of being forwarded to the Governor for signing into law.

Stand by . . .

UPDATE ON 11/20/06:

SB 628 was adopted by the House 191-0. See: House Passes SB 628!

Friday, November 17, 2006

Repeal PA Inheritance Tax?

The Pittsburgh Post-Gazette published an article on November 14, 2006, by Tracie Mauriello of its Harrisburg Bureau, found online here, entitled "House votes to remove inheritance property tax". What are the prospects for repeal of the Pennsylvania Inheritance Tax?

The article reported the passage of a bill by the PA House of Representatives on Monday evening, November 13, 2006, as follows: "In a 163-29 vote, House members agreed to phase out the tax over four years. The legislation now heads to the Senate."

The particular bill is House Bill 906, Printer's No. 4917, found here. Its history during the 2005-2006 Legislative Session is found here.

The article reports the reaction of opponents to the bill:

Opponents say the measure is irresponsible because it includes no provision to make up for lost tax revenue, which would amount to about $635 million annually when the phase-out is complete in 2010.

"The Republicans want to cut something without having the money to pay for it," said Minority Leader Bill DeWeese.

"This just doesn't make good sense, especially when my honorable colleagues on the Republican side want to cap state spending. ... You can't have it both ways."

Repeal of the PA Inheritance Tax was raised during the recent campaigns for election as Pennsylvania Governor. Republican challenger Lynn Swann lost to Democratic Governor Edward G. Rendell in the election held November 7, 2006.

One of Swann's advocated positions was repeal of the PA Inheritance Tax, which I described in a prior posting entitled "
Gubinatorial Candidate Swann vs. PA Inheritance Tax". Governor Rendell remained quiet in his response, as indicated in my prior posting.

The PPG article notes the position of the advocates of the current bill, which clearly echoes the arguments previously made by Candidate Swann: "Supporters of the phase-out plan have said that lower taxes would stimulate the economy and help keep family businesses in operation."

On the other hand, the responsive comments made by the Minority Leader in opposition to the bill reflect Governor Rendell's previous consistent position on the reduction or abolition of any state tax, including the inheritance tax.

For example, in November, 2004, the Governor vetoed legislation passed by both the PA House & Senate that would have increased the amounts of certain permitted deductions or exemptions from PA Inheritance Tax.

In his veto message, found here, Governor Rendell explained his refusal to sign the bill presented for his
signature into law:
I am returning herewith, without my approval, Senate Bill 304, Printer’s Number 1983, entitled “An Act amending Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes, providing for payments to family and funeral directors, for allowable family exemption and for classification and order of payment of claims against the estate of a decedent.” * * *

My opposition to Senate Bill 304, however, is with the language added to this bill, which provides increases in the family exemption and expansion of the categories as to who is eligible to receive these exemptions, and the funeral expense provisions. These provisions result in significant revenue losses that could expand in the future. The General Fund cannot absorb this magnitude of loss in isolation – either other revenue sources or reductions in service must be identified to offset these losses.

Provisions in Senate Bill 304 to increase the family exemption from $3,500 to $5,000 and permit persons not residing in the decedent’s residence to receive monies is projected to result in a decrease in anticipated Inheritance Tax revenues of $2.5 million for the remainder of fiscal year 2004-05 and $5 million annually thereafter.

This is based on the current number of estates claiming the family exemption, 9,000, increasing to 30,000 with the elimination of the “residing in the same household” standard. In addition, there will be some revenue loss to the Department of Public Welfare in its estate recovery program. Estimates range from $500,000 to $ 5 million in anticipated Medical Assistance services monies annually that will not be recouped from the estates with the enactment of Senate Bill 304.

All told, the potential total impact to the General Fund could be a loss of as much as $10 million annually. * * *
His veto message concluded with a statement of policy and political intention that likely will seal the fate of the current legislation approved by the House on Monday evening, regardless of its disposition in the Senate:
Though the aim of this legislation is laudable, it has not been coupled with any proposals as to how the Commonwealth would compensate for as much as $10 million in lost revenue – no plans to increase other revenues and no specific, delineated proposed spending cuts.

As a result, I have no choice but to withhold my signature from this bill. As long as I am Governor, I intend to enforce a “pay as you go” budget process for Pennsylvania. There will be no significant increases in spending or reductions in revenue without a specific plan to pay for them.

For the reasons set forth above, I must withhold my signature from Senate Bill 304, Printer’s Number 1983.
The adoption by the House of H.B. 906 was not accomplished in the setting of a budget presentation or debate, and none is underway in the Senate.

Governor Rendell would still be waiting with his question: "Where's the money?"

So, if I were a betting man, and
if I only held H.B. 906 in my hand, I believe that I would fold.

Update: 01/18/08:

The political poker game just reassembled, and repeal of Pennsylvania death taxes -- both the "Inheritance Tax" and the "Estate Tax" -- is on the table.
See: PA EE&F Law Blog posting "
House Passes Bill Abolishing PA Death Taxes" (01/18/08).

Thursday, November 16, 2006

Watch Medicare Part D Video Online

On November 14, 2006, the Henry J. Kaiser Family Foundation, through its Broadcast Studio in Washington, D.C., offered an hour-long video webcast presentation entitled "Ask the Experts: Open Enrollment for Medicare Part D".

Panelists discussed "how plan choices are changing, how the process is going for beneficiaries and what they should think about when making drug coverage decisions." The presentation remains available for multi-media computer viewing at any time via the internet.

The four speakers for this panel discussion included:

The presentation is available online here, both in webcast and podcast downloads. That website promises that a "transcript of this webcast will be available soon."

This presentation is one of various resources that the KFF made available about Medicare drug benefits in advance of the open enrollment period for 2007, which began on November 15, 2006, and will run until December 31, 2006.

According to KFF website, found here, its other current resources include:
Other useful online resources are available on the Medicare website published by the U. S. Department of Health & Human Services, including:
The Family Doctor offers a list of other reliable online resources here.

Still, I think that watching the KFF video would be the most fun. Why not watch it for your "Movie Night" some Friday evening? (yea, right)

Update on 12/20/06:

I found two additional videos that you could select for "movie night" about Medicare Part "D" Prescription Drug Coverage.

Check out these additional selections online:
  • Deadline Looming for Medicare Prescription Drug Benefit -- The deadline is looming for seniors to take action about their Medicare prescription drug plans. Open enrollment for 2007 coverage ends December 31. Medicare beneficiaries who have not yet signed up for the drug benefit can do so, and current enrollees can change to a new drug plan if they find one that better suits their needs.
  • Medicare Part D Sign-Up Deadline -- A public service announcement, featuring former Senator John Breaux, is reminding people to sign up to take advantage of Medicare's Prescription Drug Coverage between now and December 31.