Thursday, July 02, 2009

Proposed DPW Lien Expansion Opposed

Since April, 2009, Pennsylvania lawyers carefully followed proposed state legislation (House Bill 1351) that would significantly expand Medicaid recovery beyond the current target -- a recipient's estate after death -- to more targets in which a recipient has a limited or partial lifetime interest. The effects on such other, remote interests in property would be far reaching.

Recently, Jeffrey A. Marshall, Esq. (a practicing member of Marshall, Parker & Associates, LLC), as a member of the Council of the Elder Law Section of the Pennsylvania Bar Association, circulated an email message on the Elder Law Listserv that updated fellow members about the status of bar association efforts in opposition to the proposed legislation.

Opposition, spearheaded by the Elder Law Section, was joined by the Real Property, Probate & Trust Law Section, the Family Law Section, and the Solo & Small Firm Practice Section of the PBA.

With his consent, I repost his report (with slight editing and links added), with thanks.

Section Chair, Katherine Pearson, has asked me to update members on the Elder Law Section efforts in regard to the proposed expansion of estate recovery.

In April, HB 1351 was introduced as part of the Governor’s Budget proposal. The bill contains a rewrite of Section 1412 of the Welfare Code that will expand Medicaid estate recovery in Pennsylvania to include interests held in joint tenancy, tenancy by the entireties, survivorship, life estate, living trust or other arrangements.

The bill also gives the Department of Public Welfare (DPW) unprecedented collection authority and the power to resolve claims in an autocratic manner which is inconsistent with probate, trust and estate law.

The Elder Law Section moved immediately and forcefully to oppose the expansion of estate recovery. Our actions included:
  1. Submission of a resolution to the PBA Board of Governors and House of Delegates opposing the expansion of estate recovery. Section leaders coordinated this opposition with other PBA groups including the Solo & Small Firm Practice, Family Law, and Real Property, Probate & Trust Law Sections. The resolution was approved by the House of Delegates on June 4th and is now PBA policy.
  2. Section leadership has been working with the PBA Legislative Department to advocate in the state legislature. Letters have been sent by PBA to legislators and the Governor. A PBA Legislative Alert will be coming out soon that will provide the Association’s members with an easy way to contact their legislators to express their concerns. It is vital that legislators hear from their local constituents, especially from the lawyers in their districts who understand the negative impacts of the recovery expansion.
  3. The Section has coordinated our efforts with other non-PBA lawyer groups including the Pennsylvania Association of Elder Law Attorneys (PAELA) and the Section has coordinated our efforts with other non-PBA lawyer groups including the Philadelphia Bar Association.
  4. The Section, in coordination with PAELA, developed materials to inform and advise other affected groups about the proposed expansion. Members then contacted those groups to seek support and build an effective coalition of opponents of the proposal. Section members spent countless hours alerting these other organizations to the effects of the proposal. Our efforts have been remarkably successful and our coalition now includes the following diverse group of organizations: AARP Pennsylvania Chapter; Insurance Federation of Pennsylvania; Pennsylvania Bankers Association; Pennsylvania Land Title Association; Pennsylvania Alzheimer’s Public Policy Coalition; Pennsylvania Home Care Association; Philadelphia Bar Association; PAELA; and many others.
  5. PAELA has developed talking points, a position statement, and sample templates for lawyers to use for letters to be mailed to their legislators.
  6. Many individual members of the Section have already contacted their legislators to alert them to the dangers of expansion of recovery. They have received many positive responses from the legislators.
We have learned that Section 1412 is not the only legislative proposal to expand estate recovery. House Bill 68, while less extreme, also seeks to expand recovery collections by means that will create problems for our clients, as well as for banks and funeral directors.

In a frightening example of how things can slip through unless our section is constantly on alert, HB 68 has already passed the House by unanimous vote. It is now under consideration by the Senate Judiciary Committee.

Much has been accomplished by your Section to defeat the expansion of estate recovery, but much more needs to be done. Please contact your state legislators, in person, by mail, and/or by e-mail. Your support and assistance is greatly appreciated.
The PAELA "talking points" are posted online here (PDF, 2 pages).

This is the position of the PBA in its Legislative Alert, sent June 22, 2009:
The Pennsylvania Bar Association adamantly opposes this section of HB 1351 and any similar legislation being negotiated as part of the 2009-10 state budget as bad public policy and harmful to the Commonwealth’s already vulnerable senior citizen population.

The issues contained in HB 1351 will undoubtedly play a role in the 2009-10 state budget negotiations in the legislature. Any attempt to expand MAER will:
· Create significant complications for estate administration and cause major title and conveyancing problems.
· Deter individuals from serving as executors and trustees and lawyers from representing these fiduciaries.
· Discourage older Pennsylvanians from seeking needed long-term care support services out of fear of new liens asserted by the Commonwealth. * * *
The PBA urges its members to contact legislators: "A]sk them to oppose section 1412 of HB 1351 and any similar attempts to expand estate recovery."