Social Security & Medicare Slipping into the Future

CNN posted an interview headlined "Medicare is the real danger, not social security" on May 13, 2009, that highlighted the significant slippage in sustainability of the present Medicare and Social Security benefit systems.

Unfunded obligations of both Social Security and Medicare are "slipping into the future" faster than previously expected, which demand remedial action now, not later.

Bob Weiner says we should worry about Medicare before we worry about Social Security. The front page of the New York Times [on May 13, 2009] reads: Recession Drains Social Security and Medicare

The latest report card on the social safety net is not encouraging. The officials who oversee the program forecast Tuesday that the Social Security trust fund will be exhausted by 2037 — four years earlier than estimated last year. * * *

The New York Times article, reposted by Ocala.com, identified the problem created by the recession:

The labor secretary, Hilda L. Solis, noted that 5.7 million jobs had been lost since the recession began in December 2007. With fewer people working, the government collects less in payroll taxes, a major source of financing for Medicare and Social Security.

A resumption of economic growth is not expected to close the financing gap. The trustees’ bleak projections already assume that the economy will begin to recover late this year.

The Treasury secretary, Timothy F. Geithner, said the only way to keep Medicare solvent was to “control runaway growth in both public and private health care expenditures.” And he said Mr. Obama intended to do that as part of his plan to guarantee access to health insurance for all Americans.

But if cost controls do not produce the expected savings, Congress is likely to find it so difficult to preserve benefits without increasing taxes. * * *

The Social Security Administration has made periodic Long-Range Solvency Proposals that would address the solvency of the "trust fund."

Trustees Reports issued over the last several years have indicated that Social Security's Old-Age, Survivors, and Disability Insurance (OASDI) Trust Funds would become insolvent sometime in the next 30 to 40 years under the intermediate set of economic and demographic assumptions provided in each report.

Various proposals have addressed this long-range solvency problem. These proposals are generally intended to restore, or largely restore, solvency for the long-range period (the next 75 years).* * *

U.S. News & World Report considered the long-range effects of the Social Security system's underfunding in its consumer-oriented article, "What Social Security's Underfunding Means for Your Retirement" (05/13/09) by Emily Brandon.

After considering the Social Security system's shortfalls, the article addressed Medicare's more pressing situation:

Medicare's funding ailments are expected to occur even sooner than Social Security's.

Projected annual assets for the hospital insurance portion of Medicare are expected to exceed expenditures by 2012. The hospital insurance trust fund is expected to be exhausted by 2017, two years earlier than projected in last year's report.

Medicare Part B, which covers doctors' bills and other outpatient expenses, and Part D prescription drug coverage are more adequately financed in the short term, but increases in healthcare costs over the long term will average 6.4 percent annually and require increases in enrollee premiums and general revenue funding. * * *

The Center on Budget and Policy Priorities analyzed the 2009 annual reports issued regarding both the Social Security system and the Medicare program:

• Trustees’ Report Finds Social Security Is Not in Crisis, But Action Is Needed
  , by Kathy Ruffing and Paul N. Van de Water -- "The trustees’ report shows some deterioration in the program’s long-run outlook, a finding that was widely expected. Nevertheless, the report does not depict a program in crisis. Policymakers should act sooner rather than later to put the program on a sound long-run footing, but today’s beneficiaries and workers approaching retirement need not fear that their Social Security benefits are at risk...."

• 2009 Trustees' Report Underscores Urgency of Health Reform, Medicare Changes, by Paul N. Van de Water -- "The 2009 annual report of Medicare’s trustees underscores the need for system-wide reform of health care financing that will slow the growth of health care costs in both Medicare and the private sector and extend health coverage to the uninsured."

A commentary published in Forbes, entitled "A Medicare Explosion -- How to diffuse a ticking time bomb" (05/19/09), by John C. Goodman, reacted to the projections contained in the Medicare report with some revolutionary proposals:

For some time, Social Security and Medicare combined have been paying out more than they are receiving in dedicated taxes and premiums. To cover that deficit, we have been drawing on the general revenues (mainly income taxes) of the federal government. Currently, we are taking more than 1-in-7 income tax dollars for this purpose. By 2020, it will be 1-in-4, and by 2030, 1-in-2.

Basically, elderly entitlements are on a path that will crowd out spending on every other federal program. Throw in Medicaid, and health care spending alone will crowd out every other thing the federal government is doing by mid-century!

Clearly we are on a path that is unsustainable. How can we get off of it?

First and foremost, we must move from a pay-as-you-go system to a funded system.

Instead of having each generation of retirees look to the next generation of workers to pay for its benefits, each generation must pay its own way. * * *

Mr. Goodman offers three fundamental reforms that could restructure Medicare into a workable system.

• On the funding side: "Suppose we ask workers and their employers to put aside 4% of their wages in savings accounts for post-retirement health care. These balances would grow tax free and would replace taxpayer obligations under traditional Medicare. The result: Instead of growing through time, the taxpayer burden for Medicare would eventually shrink to current levels."

• On the demand side: "[A]ll new Medicare beneficiaries should be able to manage up to one-third of their health care dollars, using a special type of Health Savings Account (HSA). With these accounts they would be able to keep each dollar of wasteful spending they avoid and bear the full cost of each dollar they waste."

• On the supply side: "[P]hysicians should be free to repackage and reprice their services, thus profiting from innovations that lower costs and raise the quality of care. Any health care provider should be able to propose and obtain a different reimbursement arrangement, provided that (1) the total cost to government does not increase, (2) patient quality of care does not decrease and (3) the provider proposes a method of measuring and assuring that (1) and (2) have been satisfied."

He concludes, however, with a warning: "The longer we wait, the more costly and painful reform will be."

Time keeps on slippin, slippin, slippin
Into the future
Time keeps on slippin, slippin, slippin
Into the future

I want to fly like an eagle
To the sea
Fly like an eagle
Let my spirit carry me
I want to fly like an eagle
Till I'm free
Oh, lord, through the revolution

Feed the babies
Who don't have enough to eat
Shoe the children
With no shoes on their feet
House the people
Livin' in the street
Oh, oh, there's a solution
* * *
--"Fly Like an Eagle" (1977 Version)
by The Steve Miller Band

New "Quality Council" to Advise on Independent Living Services

On May 12, 2009, the Pennsylvania Department of Aging and the Pennsylvania Department of Public Welfare, through its Office of Long-Term Living, announced creation of a new advisory council to focus on "quality management of in-home and community services" provided in the Commonwealth.

The DoA's press release, entitled "Council Formed to Advise on Improving Services to Older Adults, People with Disabilities," briefly explained the need and the objectives:

The Pennsylvania Department of Aging and the Office of Long-Term Living today announced the formation of a 15-member Quality Council that will advise on new policies and procedures to ensure quality management of in-home and community services.

“Many older citizens and those with disabilities prefer to live independently and at home -- rather than in a nursing facility -- so we want to make sure that the services we provide are the best that can be offered,” said Secretary of Aging John Michael Hall.

“The new council brings together experts from across Pennsylvania to help us improve on our programs.”

The Office of Long-Term Living will receive the council’s recommendations, based on its surveys, research and reports, to help provide the highest quality of assistance to the thousands of consumers who receive services in their homes. These services include attendant care, transportation, home-delivered meals for older adults, home health and personal assistance services. * * *

The new council is a mix of state employees (six members appointed from the staff of DPW's Office of Long-Term Living) and Pennsylvania citizens (nine members).

The Press release did not identify the staff members, but did identify the public members, four of whom live in Philadelphia:

• Jack Armbruster, Erie
• Carl Bailey, Philadelphia
• Kimberly Byrd, Philadelphia
• Richard Kiel, Fayetteville
• Carol Marfisi, Philadelphia
• German Parodi, Philadelphia
• Kimberly Pirilla-Scalise, Belle Vernon
• Dorothy Robison, Lancaster
• Sue Ellen Stelevich, Kingston

Given the growing need both in rural communities and in western Pennsylvania, I wonder why there is no representative from a sparsely populated county, and no representative from Allegheny County, which have significant senior populations.

Regardless, the announcement of such a "Quality Council" monitor to provide input about independent living regulations on an advisory basis to State Government is a step forward.

As the Commonwealth's population ages (creating demand), as federal funding diminishes (reducing nursing home services), and as new technologies evolve (supporting or monitoring services provided at home or in personal care homes), "quality control" should remain a primary concern.

Blogging on the Bus

I'm riding on a bus as I write this blog entry, which illustrates, in just one trip, a few trends affecting elders (and all of us in America) -- changes in employment patterns, in technology, and in mass transit.

The bus I'm riding is a Setra, Model S-417 Luxury Coach, assembled in North Carolina by Daimler Buses North America. The operator is RDC Bus Lines, LLC, a small business headquartered in western Pennsylvania. The express luxury coach service is operated between Pittsburgh and Harrisburg, PA, daily, via the Pennsylvania Turnpike, as the "Steel City Flyer."

The new service was announced in November, 2008, and was followed thereafter, by newspaper reports. See: "New Steel City Flyer service to Harrisburg begins this month" (11/07/08) by Kim Leonard, published by the Pittsburgh Tribune-Review; "Can a luxury bus fill the gap on a dropped US Airways route?" (11/12/08) by Ben Mutzabaugh published by USA Today's Blog "Today in the Sky";"New bus service to Harrisburg expands" (01/06/09) by Tom Barnes published by the Pittsburgh Post-Gazette; and "Bus line adds Camp Hill stop" (04/09/09) by Erica Dolson published by the Harrisburg Patriot-News (on Penn-Live).

The Steel City Flyer offers service from Harrisburg to Pittsburgh for business and leisure travelers.

One of the goals of this new stop [in Camp Hill] is to make travel more convenient for business people whose firms have a strong presence in both central Pennsylvania and Pittsburgh, Railroad Development Corp. president Bob Pietrandrea said.

The Steel City Flyer has also adjusted its westbound schedule to add an earlier morning departure time.

The driver today is Jim Wade, 64, of Bergholz, Ohio, who has operated or driven buses for 24 years, and who is now officially "retired." He just talked by cell phone with his supervisor, George, who is in his mid-sixties. Jim was talking about people he knew in the business who were "still goin'" in their eighties and nineties.

This is my first point: This is a business largely operated by persons near or over 60 years of age; and it runs smoothly.

This modern bus rides smoothly too while I type on my Asus Eee "netbook" connected continuously (even through the Turnpike's tunnels!) through the on-board wireless router to Verizon's high-speed 3G Wi-Fi service.

Gone are the days when a bus ride promised jolts, noise, stuffy air, and spills, but little time for productive work. Instead, on this luxury coach, I'm researching sources, adding links, and writing text in comfort and without stress, despite the curves and construction on the PA Turnpike.

My experience with this transportation service parallels that of another user (Susan D., of Pittsburgh), who posted her experiences on the Yelp! consumer review web site, rating it four of four stars. See: "Steel City Flyer" Review (02/09/09).

This is my second point: The fact that I am writing this posting enroute while riding at 55 mph (according to Jim when I asked) or higher most times, shows how transportation and technology have combined to allow greater business and personal efficiency, while conserving natural resources.

Clearly mass transportation is a trend that should be supported. Most recently, our federal government appears to favor high-speed train service.

The article "Pennsylvania part of plan for high-speed trains across the nation" (04/17/09) by Jon Schmitz, published by the Pittsburgh Post-Gazette, reported that "President Barack Obama's announcement yesterday of an ambitious plan for high-speed passenger trains connecting American cities puts Pennsylvania into a national competition for billions of dollars in federal aid."

Ten corridors, including one from Pittsburgh to Harrisburg and Philadelphia, were designated as eligible for some of the $13 billion authorized in the economic stimulus legislation or proposed by Mr. Obama for high-speed rail development. * * *

A statement by Gov. Ed Rendell and state Transportation Secretary Allen D. Biehler did not mention the maglev project. Instead it speculated about whether money could be obtained for studies of expanding rail service between Pittsburgh and Harrisburg -- currently served by just one daily Amtrak trip. * * *

"Imagine boarding a train in the center of a city. No racing to an airport and across a terminal, no delays, no sitting on the tarmac, no lost luggage, no taking off your shoes," Mr. Obama said.

"Imagine whisking through towns at speeds over 100 miles an hour, walking only a few steps to public transportation, and ending up just blocks from your destination." * * *

This is my third point: A Change is Gonna Come to long-haul, public transportation. New modes of conveyance will bring greater efficiency, convenience, comfort, and safety, which will empower all travelers, especially those who are older.

But that vision will be some time until full realization. A Steel City Flyer representative was quoted in the article:

"Realistically speaking, it's going to be years before you see anything resembling high-speed rail extended to Pittsburgh," said Mr. Posner, who recently started a luxury bus service to Harrisburg to fill the void in train and airline service to the state capital.

"As a railroad man, I look forward to the day when the Steel City Flyer [bus to Harrisburg] will have outlived its usefulness," he said. * * *

Reading this, I'm pleased that I took the Steel City Flyer today as the best way to travel between these two cities. However, I, too, look forward to the day in Pennsylvania when it "will have outlived its usefulness."

Now, please excuse me. I've got to jaw with our driver, Jim, a bit more before I "de-bus" in Pittsburgh's Center City.

Update: July, 2009:

As of July 16, 2009, the Steel City Flyer service terminated. See: Press Release, "Steel City Flyer to End Service on July 16, 2009" dated July 10, 2009, issued by Railroad Development Corporation (PDF, 1 page). For an intelligent blog commentary and responsive reader comments, see: So Long Steel City Flyer, posted July 10, 2009, on the East Busway Blog.

Update: October, 2009:

Amtrak expressed interest in expanding passenger train service between Pittsburgh and Harrisburg, dependent upon government subsidies. See: Article, "Amtrak recommends new train between Pittsburgh, Harrisburg" dated October 20, 2009, by Matthew Santoni, published by the Pittsburgh Tribune-Review.

Amtrak is recommending that another train be added to the sparse service between Pittsburgh and Harrisburg, if state and federal legislators decide the additional ridership is worth the expense.

In a study mandated by the federal Passenger Rail Investment and Improvement Act of 2008, Amtrak officials looked at passenger service in Pennsylvania and decided that the potential riders and revenue were sufficient to consider increasing the Pennsylvanian route between Pittsburgh and Harrisburg from one train per day in each direction to two, adding a midday departure from Pittsburgh and a late-night arrival that could connect to trains heading west to Chicago.

"The ridership was there, and it would have a minimal impact on operations," said Steve Kulm, Amtrak spokesman. "If this is going to move forward, state and federal legislators will have to make the next step." * * *

PBA's Young Lawyers Sponsor "Wills for Heroes"

In 2009, the Pennsylvania Bar Association, through its Young Lawyers Division, now sponsors a Wills for Heroes program, which "provides no-cost wills, living wills, and health care and financial powers of attorney to first responders and their spouses/partners."

The PBA-YLD web page for its "Wills for Heroes" project explains the new project, in planning since last summer:

A program cosponsored by the Pennsylvania Bar Association Young Lawyers Division, “Wills for Heroes” provides free basic estate planning documents to first responders in Pennsylvania.

“Wills for Heroes” provides police, fire and emergency medical personnel — those on the frontlines for our personal safety — the tools they need to prepare adequately for the future.

Programs are staffed by lawyer volunteers and are conveniently offered to first responders at meeting halls and police and fire stations.

The PBA-YLD web page for its "Wills for Heroes" project provides links for additional information:

• Information for First Responders
• Questionnaire for First Responders
• Information for Lawyer Volunteers
• Online Registration Form for Lawyer Volunteers

The first item presently appearing on the home page of the PBA's web site is an announcement regarding the YLD's Wills for Heroes program, offering "Free Training Session for 'Wills for Heroes' Lawyer Volunteers on May 29."

Lawyers, register now to participate the "Wills for Heroes" training session to help the PBA Young Lawyers Division expand the program across the state.

Co-sponsored by the PBA YLD and Ballard Spahr Andrews & Ingersoll L.L.P., the program provides no-cost wills, living wills, and health care and financial powers of attorney to first responders and their spouses/partners.

Additional lawyer volunteers are needed to staff future programs. Get more information/sign up to volunteer.

The training session will be held May 29, 1 p.m. to 2:30 p.m., live in Philadelphia and simulcast to seven locations across the state. Attendees earn one substantive CLE credit.

Go to the PBI Web site to register.

That training will be conducted through the Pennsylvania Bar Institute, the legal education arm of the PBA, as described for the "Wills for Heroes" course, offered free to attorneys:

On September 11, 2001, 403 first responders paid the ultimate sacrifice. Many of those brave men and women did not have wills in place.

The same is true even closer to home: Pennsylvania has one of the highest amounts of volunteer first responders in the Country and, sadly, one of the highest death rates amongst volunteers.

First responders risk their lives each day to protect our community. While we cannot protect them, the Pennsylvania Bar Association has committed to protecting their families through the Wills for Heroes program.

Wills for Heroes is a free and easy service that provides Wills, Living Wills, Health Care and Financial Powers of Attorney to first responders and their spouses/partners.

Programs are being scheduled all over Pennsylvania. You do not need to practice trusts and estates law to participate. You simply need to have the desire to protect those who protect us. Training for Wills for Heroes programs will be offered by the PBA Young Lawyers Division and the Pennsylvania Bar Institute.

By attending this training, your name will be placed on a volunteer list that will be used to staff upcoming Wills for Heroes programs.

Recent events in Western Pennsylvania highlight the need for estate planning documents by police officers. See: "Three Pittsburgh officers killed in standoff in Stanton Heights" (04/04/09) by Chris Togneri and Michael Hasch published by the Pittsburgh Tribune-Review.

A year ago, I wrote a blog entry about a few local pro bono projects separately initiated by lawyers through their county bar associations to benefit first responders. See: "Firefighters, First Responders, and Free Wills" (05/15/08).

That posting identified the "Wills for Heroes" project sponsored in 2007-2008 by the American Bar Association's Young Lawyers Division, which received a national award from the "Wills for Heroes" Foundation.

Did that blog posting spur interest among Pennsylvania lawyers in conducting such a program on a statewide basis in the Commonwealth? If so, then I am grateful for the response.

The efforts of the Young Lawyers Division of the Pennsylvania Bar Association to honor and assist first responders, by meeting their planning needs, are laudable.

Update: 08/03/10:

See my further post regarding the Wills for Heroes program and workshops held or scheduled in Pennsylvania: "Wills for Heroes" Workshops Multiply in PA & DE (08/03/10).

New Advance Directive Form Released

Recently, Robert B. Wolf, Esq., of Pittsburgh, PA, sent an email alert to his "P & T Hot Tip" recipients and to the Pennsylvania members of the American College of Trust and Estate Counsel regarding a newly-revised Health Care Power of Attorney and Living Will document developed and posted jointly by physicians and lawyers in Western Pennsylvania.

With his permission I repost his message, with links added.

I am pleased to advise that last week the Board of the Allegheny County Medical Society approved a Durable Health Care Power of Attorney and Living Will document and brochure updated for Act 169 and which was already been approved by the Probate & Trust, Elder Law and Health Law Sections and the Board of Governors of the Bar of the Allegheny County Bar Association.

It is available for FREE DOWNLOAD and use by attorneys, physicians, other health care providers and the general public as a public service by the Allegheny County Bar Association and the Allegheny County Medical Society.

It can be found within the ACBA site under "For the Public" [here].

At the present time, the form and brochure is the only one in Pennsylvania jointly endorsed by a Bar Association and a Medical Society. The form and brochure will be copyrighted, so it may not be altered and retain the endorsement logos of the two associations.

Of course, filling it in for an individual client and reproducing it is perfectly fine -- it is the intended use.

In the near future there will be a news release to the media and the general public but not until decisions have been made relative to the availability of hard copies, and likely an electronic fill-in form.

There were a total of close to a quarter of a million copies of the original form endorsed in 1993 distributed in the decade following its endorsement and publication. The surprising thing is that more than half of the total were sent out in individual orders of one or two copies at a time indicating that the promotion efforts successfully reached households in western Pennsylvania (and to some degree across Pennsylvania).

This is an opportunity for attorneys who have not already done so to consider updating or revising their forms to take Act 169 into account and to consider reaching out to their clients to be sure that these important documents are up to date.

The Allegheny County Medical Society recently referenced, under its "News & Events" heading Revised Health Care Power of Attorney and Living Will Available, that there was a development, but the text links to a web page previously posted by ACMS in 2007, not recently updated.

That web page provided an introduction to Pennsylvania's Advance Care Directive law, effective January 29, 2007, which authorized such modern health care decision making documents.

A quick overview of Act 169 which may be helpful for you, as well as a more detailed summary of the Act which may be informative to your physician and helpful to your attorney, are available at the website for the Pennsylvania Medical Society.

Additional more technical legal information can be found at [PA HealthCare DecisionMaking]. * * *

If you have further questions, we suggest that you discuss them with your attorney and your physician. * * *

Interestingly, the Advance Health Care Directive form still linked on that web page on the Allegheny County Medical Society (PDF) is that produced in 1994 by both organizations, not yet the 2009 form already posted by the Allegheny County Bar Association (PDF). Certainly, use the newer form.

[Update: 05/14/09 -- I am pleased that the Allegheny County Medical Society updated its Advance Health Care Directive webpage since my original posting, to accurately reflect the "Revised Advanced Directive and Health Care Power of Attorney now available." See: 2009 form posted by the ACMS, which is identical to that posted by the ACBA. The link to the 1994 form was removed. Unfortunately, so was the text that contained the link mentioned below. C'est la vie! It was nice while it lasted.]

As author of the PA HealthCare DecisionMaking website, I am pleased that it is listed by ACMA as a reliable resource regarding Chapter 54 of Title 20 of PA statutes.

As a patient and as a citizen, I am pleased that the lawyers and physicians in Western Pennsylvania cooperated in producing this updated, reliable document for use by anyone at no cost.

Proposed Expansion of PA Medicaid Recovery

On Friday, May 1, 2009, Katherine Pearson (Professor of Law, Penn State Dickinson School of Law), as Chair of the Pennsylvania Bar Association's Elder Law Section, sent an email message alerting section members that, "[a]s part of a plan to implement Governor Rendell's proposed budget for the Commonwealth, legislation was introduced on April 28 that would significantly affect Medical Assistance (MA) Estate Recovery."

This legislative proposal would create far-reaching changes in the law -- not only for Medicaid recovery, but also for estate planning, real estate ownership & transfer, creditors' rights & lien priority, and fiduciary liability in estate & trust administrations. I hope that it is not reviewed lightly or superficially given these potential effects.

With her permission, I repost her alert.

In the key bill, House Bill 1351, at Section 1412 [See: Footnote 1, below], the proposal expands the ability of the Commonwealth to seek reimbursement of MA monies paid to/for a person 55 or older by giving the Commonwealth the right to make a claim against all real property, personal property and other assets in the deceased's probate estate, including any such property in which the deceased had "any legal title or interest at the time of death . . . including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy by the entireties, tenancy in common, survivorship, life estate, living trust or other arrangement.

Section 1412 further creates a lien on the property, that follows the property into any surviving party's hands, and establishes the Commonwealth's priority rights of repayment, with the potential for penalties on executors or administrators who fail to protect the lien.

Section 1412, subsection 10, seeks to restrict attorneys fees payable from an estate that is subject to the Commonwealth's lien.

HB 1351 also has provisions that affect calculations of eligibility for Medical Assistance because of payment of prior or "other" medical expenses, and that create new definitions.

This bill is likely to come to the floor of both houses very soon as part of the Governor's Omnibus Budget proposal, and will certainly be voted on before the end of the session, June 30.

* * *

Footnote 1:

This is the language of Sections 1412 and 1417 of the bill (HB 1351):

Section 1412. Repayment from Estates.—

(a) Notwithstanding any other provision of this act or any other law, the department shall establish and implement an estate recovery program to recover medical assistance paid with respect to individuals who were fifty-five years of age or older at the time that assistance was received. Under this program, the department shall recover from the estate of an individual the amount of medical assistance paid for all services provided to the individual. For purposes of this section, an individual's estate shall include all of the following:

(1) All real and personal property and other assets subject to inclusion within the deceased individual's estate under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).

(2) Any other real and personal property and other assets in which the deceased individual had any legal title or interest at the time of death, to the extent of such interest, including such assets conveyed to a survivor, heir, or assign, of the deceased individual through joint tenancy, tenancy by the entireties, tenancy in common, survivorship, life estate, living trust or other arrangement.

(a.1) Liability for debt shall be as follows:

(1) If property subject to the department's claim is transferred without the department's claim being satisfied, then the executor or administrator transferring such property, if there is one, shall become liable to pay the department's claim.

(2) If property subject to the department's claim is transferred to the extent that the transfer is made without valuable and adequate consideration in money or something worth money at the time of the transfer and without the department's claim being satisfied, then the executor or administrator transferring such property, if there is one, and the person receiving such property shall become liable to pay the department's claim.

(3) If property subject to the department's claim is held by a person, including a cotenant, remainderman, or trustee, then the person holding such property is liable to pay the department's claim.

(b) The executor or administrator of the estate of a decedent who attained fifty-five years of age shall ascertain whether the decedent received medical assistance during the five years preceding death and, if so, shall give notice to the department to secure from the department a statement of the department's claim for medical assistance consistent with 20 Pa.C.S. § 3392(3) and (6) (relating to classification and order of payment). The department must submit its claim to the executor or administrator within forty-five days of receipt of notice or the claim shall be forfeited.

(c) This section shall apply notwithstanding the provisions of section 447.

(d) The department may administratively assess liability under this section. Any final order of the department determining liability under this section:

(1) Shall be a lien on the real and personal property of the individual in the manner provided by section 1401 of the act of April 9, 1929 (P.L.343, No.176), known as "The Fiscal Code."

(2) May be entered by the department in the manner provided by section 1404 of "The Fiscal Code."

(3) Shall continue and retain priority in the manner provided in section 1404.1 of "The Fiscal Code."

Note that the legislation places personal liability on any person, including a trustee, holding any interest that the Department of Welfare determines is subject to estate recovery. “If property subject to the department's claim is held by a person, including a cotenant, remainderman, or trustee, then the person holding such property is liable to pay the department's claim.” Under the legislation this liability is set by the Department of Public Welfare administratively rather than by a court. This could allow the Department to effectively limit the payment of personal representative, trustee, and attorneys fees payable from a decedent’s estate or trust.

Another section of the Bill also attempts to limit attorneys fees.

Section 1417. Limit on claim reduction.

In any action, claim, or settlement where the department is required to reduce its claim, on account of attorney fees incurred by a recipient in obtaining a recovery of cash or medical assistance for the department, the reduction shall not exceed twenty-five percent of the department's recovery.