PA DPW's New Policies under DRA

Effective on March 3, 2007, the Pennsylvania Department of Public Welfare instituted new policies under the federal Deficit Reduction Act of 2005 (DRA) regarding eligibility for financial assistance in provision of long-term care services.

The new Policies were published in the Pennsylvania Bulletin on March 3, 2007 (37 Pa.B. 1043). This notice was accompanied by DPW's publication of revised "Undue Hardship Waiver Guidelines" under the new Policies (37 Pa.B. 1046).

For background about the DRA & its effects, see: PA EE&F Law Blog, "US Dist Ct Dismisses DRA Challenge" (11/15/06); "DRA to be Effective in PA on Feb 1st ... no ... Mar 1st, 2007" (01/03/07); Robert C. Gerhard, III, Esq., "Federal Changes in Medicaid Law" (12/14/06).

The Medicaid program in Pennsylvania is generally described by the Pennsylvania Medicaid Policy Center in its "Frequently Asked Questions". Other general information about Medicaid eligibility in Pennsylvania had been posted here two years ago by PA DPW, but that information has not yet been altered to reflect the new Policies.

DPW policies are implemented through the various County Assistance Offices, listed here, which administer the Medicaid program locally in Pennsylvania.

The guidelines for the CAO's administration are set forth by DPW in series of Online Manuals:

• Cash Assistance Handbook
• Food Stamp Handbook
• Medicaid Eligibility Handbook
• Supplemental Handbook
• Long Term Care Handbook

These handbooks guide a CAO worker in determining an applicant’s available benefits, considering income, available resources, & non-financial information, measured against current standards in federal & Pennsylvania laws, regulations, & policies (such as those recently changed).

DPW's change in policies implemented new rules federally-mandated by the DRA, which became law on February 8, 2006. These federal changes limited eligibility for services & benefits in the Medicaid Program, as administered in all states, to accomplish overall "cost containment".

DPW's new Policies apply to applicants/recipients in need of payment for long-term care services, including those offered by nursing facility services or their institutional equivalent, and by home & community-based services furnished under a waiver granted by the Centers for Medicare and Medicaid Services (CMS).

DPW's summary of the new Policies (which I labeled below with headers in brackets, & also re-paragraphed for better readability) highlights the changes:

[Five-Year Ineligibilty Period]

The Department's regulations require that a period of ineligibility for payment of LTC services be imposed on an individual applying for or receiving payment for those services when transfers of assets for less than Fair Market Value (FMV) were made by the individual or the individual's spouse during the look-back period.

The DRA of 2005 amended the asset transfer rules regarding eligibility for payment of LTC services under the Medicaid Program. The look-back period has been extended to 60 months for all transfers of assets made on or after the date of enactment.

[Ineligibility Period Commencement]

The DRA of 2005 changes the determination of the period of ineligibility to be imposed on an applicant or recipient when the applicant or recipient or the spouse of the applicant transfers assets for less than FMV.

Formerly, the beginning date of a period of ineligibility for an applicant who transferred assets for less than FMV was the first day of the month in which assets were transferred. For a recipient, the beginning date of the period of ineligibility was the first day of the month following the month of the transfer.

States are now required to impose periods of ineligibility prospectively in those cases where the applicant or recipient or the spouse of the applicant or recipient has transferred assets for less than FMV. The beginning date of a period of ineligibility for payment of LTC services is the date the applicant would be otherwise eligible for Medical Assistance based on an approved application.

For a recipient, the beginning date of a period of ineligibility for payment of LTC services is the first day of a month immediately following proper advance notification provided to the recipient.

[Resource Level Qualifications]

The DRA of 2005 mandated new requirements that must be applied in evaluating certain resources to qualify for payment of LTC services. Resources that fail to meet these new requirements will be treated as transfers of assets for less than FMV.

[Annuity Disclosure & Qualification]

It is a requirement that an applicant or recipient or spouse of an applicant or recipient disclose any ownership interest in an annuity. A nonqualified annuity is one purchased outright by an individual or a couple that is not part of an employer retirement plan or Roth individual retirement plan. The DRA of 2005 mandates that nonqualified annuities name the Department as the beneficiary for at least the total amount of medical services provided by the Department on behalf of the recipient.

[Income Allocation to the Community Spouse]

States are no longer allowed the option of first looking to the couples' resources to address spousal impoverishment. The DRA of 2005 now requires the allocation of available income from the institutionalized spouse to the community spouse (CS) to meet the Community Spouse Monthly Maintenance Needs Allowance (CSMMNA).

If the CS still needs additional income to fully fund the CSMMNA, resources from the nonprotected share of the couples' resources can be allocated to the CS.

[Limitation on Home Equity]

The DRA of 2005 also instituted a new eligibility requirement regarding the equity value of the home owned by the applicant or recipient who is in need of LTC services under the Medicaid Program.

Individuals with equity value in their home in excess of $500,000 are not eligible for payment of LTC services except when there is a spouse, a child under 21 years of age or a blind or permanently and totally disabled child residing in the home.

The excess equity value in the home disqualifies the applicant or recipient for payment of LTC services.

A good, brief summary of the changes in regulations was posted by Elder Law Answers on March 12, 2007, here.

These policy changes were the subject of an article entitled "Rules for nursing home aid tighten -- New federal regulations make it riskier for the elderly to give money to relatives", by Gary Rotstein, published in the Pittsburgh Post-Gazette on April 02, 2007.

The changes published by the state Department of Public Welfare have been little noticed beyond elder law attorneys and nursing home officials, and some of them are concerned that families innocently passing on money as gifts will be forced to regret it later.

If a senior's assets have eroded by the time he needs nursing home care, and he gave away part of his wealth within the prior five years, he could be ineligible for government coverage for weeks or months of costs that typically run more than $200 per day. Before the changes, the "lookback" period was three years.

Lawyers suggest the tightened restrictions create a scenario where an older person may have to ask for money back from a relative who received it a few years earlier, or a nursing home may be uncompensated for weeks of care it gives that person.

"There may be more difficulty getting a loved one into a nursing home if they made gifts," cautioned Robert C. Gerhard III, a Montgomery County attorney who wrote a book on the state's Medical Assistance rules. "It's riskier for seniors to make gifts to kids, even for seemingly acceptable reasons -- say, to help a child going through divorce or help a child buy a house, or a wedding present.

"These are things we typically help family members with, but if you do so now and need nursing home care, you may find yourself denied," he said. * * *

The article is the only newspaper commentary that I have encountered to date in my reading or searches about the new DPW Policies under the DRA. It is well-written with a broad view, citing experts. For those interested in this topic, it should be read.

Another excellent set of resources on these topics was produced & posted by elder law attorney Jeffrey A. Marshall, Esq., founder of Marshall & Associates, for a symposium held March 27, 2007, in Camp Hill, PA. Those materials are found here; and his outline is found here.

Comparison of PA's Old & New Accounting Formats

What are the differences between Pennsylvania's "old" suggested format for fiduciary accounting, versus the "new" (post-Apr. 30, 2007) mandatory model fiduciary accounting formats?

The "old" suggested format was permitted for use in the Commonwealth's courts since January 1, 1974. The "new" model formats, which were announced on March 29, 2007, soon will be mandatory in Pennsylvania to present fund accountings in our courts. Absent specific permission by a court, the new formats must be applied as to filings made on & after April 30, 2007.

For background, see: PA EE&F Law Blog posting "PA's New Orphans' Ct Accounting Forms" (April 2, 2007).

Vincent F. Lackner, Jr., Esq., founder & President of The Lackner Group, Inc., of Pittsburgh, PA, just posted on the Pennsylvania Bar Association's "Probate & Trust" Law Division Listserv, his detailed comparison of the two sets of fiduciary accounting formats.

Vince's analysis can be relied upon. In the mid-1980s, he became nationally prominent for his leadership in the automation of fiduciary administrations, including forms management, "one-write" data entry, template correspondence, death & fiduciary tax preparation, and court accountings. Since 1986 (about the time when I first met him), his company has provided estate & trust software to hundreds of law firms, banks, and accounting firms located in approximately thirteen states, including Pennsylvania, where he began & maintains his efforts.

Vince recently teamed up with another nationally-known Pennsylvania fiduciary expert, Stephen R. Leimberg, Esq., to offer a new software program that calculates the effects of "decoupling" of state death taxes under the revised federal estate tax law, now fully in effect -- a very complicated subject.

They unveiled it at the 41st Annual Heckerling Institute on Estate Planning, in Miami, Florida, which I described previously here. Their presentation on Wednesday, January 10th, 2007, was reported here under the heading "Report on the Vendors":

Vince Lackner and Steve Leimberg, both well-known experts in the estate planning technology field, have created a new tool known as DecoupleCruncher.

DecoupleCruncher will handle a wide range of calculations in order to determine estate or inheritance taxes due in a single state or in multiple states.

The program handles deductions, including an optimized marital deduction (or the option to elect to pay estate taxes if desired), and allows you to reallocate assets among two or more states as well as to "Show or Refine Calculations." Vince and Steve have also included all relevant federal and state tables to assist you in understanding some of these rather odd results under various state regimes.

Vince and Steve held a lunch session to illustrate their new tool, which is based on the solid FileMaker Pro database platform that Vince uses for his 6-in-1 Estate Administration System.

Vince's analysis must be more than a merely academic exercise; it must be a practical implementation into a software product utilized by many professionals.

Following, then, is Vince's detailed comparison of the old suggested format of accounting, versus the new mandated formats of accounting. I appreciate his grant of permission for me to post his comments.

I have compared the revised Model Estate Account and Model Trust Account (released last Thursday, March 29, 2007) with the versions that have been attached to Rule 6.1(g) since January 1, 1974. Note: old Rule 6.1(g) has been re-lettered as 6.1(f).

Some of the changes are pointed out in (a) the Press Release, (b) Order No. 414, and (c) new Rule 6.1. All can be accessed from [this] link. By the way, it appears that the No. 441 on that page (as of [April 2, 2007]) should read No. 414 (this is the actual Order Number).

Note that the new Rule adds a Model Charitable Remainder Unitrust Account (not present in the prior Rule). This e-mail does not address that new format.

I would like to summarize key changes that were made to the Model Estate and Model Trust Account formats:

1) Form Name. As stated in the Order, the one account is now called "Model Estate Account" (instead of Model Executor's Account), and the other is now called "Model Trust Account" (instead of Model Trustee's Account).

2) Now The Only Format Approved for Filing in PA Courts. Unlike the previous rule, which allowed accounts to be filed in substantial conformity with rules prescribed or forms approved by the local Court, the new Model Accounts are now the only formats that may be filed. There is one exception: "Except where otherwise provided by a special order of the local Court in a particular case..." [Rule 6.1(e)].

Rule 6.1 does not apply to Accountings that are not filed with the Court but instead are provided to beneficiaries in connection with Receipt and Release, Family Settlement, or other non-judicial procedures. Thus, while practitioners who have been preparing simplified accountings will need to use the new format for filing with the Court, it appears that they may continue to use the simpler formats for informal (non-judicial) accountings.

3) Changes in Holdings. The new format eliminates the word "Investment" in "Changes in Investment Holdings". This seems appropriate because the word "Investment" unduly narrowed the scope of that section.

This section should include non-commercial real estate, tangible personal property, and other non-investment property that has been acquired, sold, distributed, or otherwise disposed of during the accounting period.

4) Principal and Income. Unlike the formats accepted for years in many counties throughout the Commonwealth, the new format requires that "principal and income shall be accounted for separately within the account" [Rule 6.1(b)]. Thus, principal and income may no longer be collapsed into single categories for receipts, gains/losses, disbursements, and distribution.

Somewhat curiously, the new formats (just like the old formats) don't have lines in the Income section of the Summary Page for "Investments Made" or "Changes in [Investment] Holdings" (as they do in the Principal section).

There is an age-old debate about whether assets purchased with income (through dividend reinvestment plans, etc.) should be tracked separately on the income side of the fence, but that is a topic for another day. I believe that adding distinctions (such as this one) not contained in the new model formats result in accounts that are still in "substantial conformity" with new Rule 6.1.

5) Disbursement Category: Federal, State & Local Taxes. The words "& Local" were added to this category.

6) "Verification" instead of "Affidavit". A notary seal is no longer required on the Affidavit Page, which has been appropriately renamed to "Verification". Instead, the personal representative signs that page "subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities."

This is consistent with the change made by the Court to the form of Inventory (Form RW-09) on October 16, 2006 (the date when standardized probate forms released for use throughout Pennsylvania).

7) Summary of Account: Line for Verification (and page number) added. A reference to the Verification page must now appear at the bottom of the Summary of Account.

The Verification is attached to the end of the Account, and will normally bear the last page number of the entire packet.

8) Combined Balance on Hand. Although there has been no change in this line near the bottom of the Summary of Account, we have been somewhat surprised at the popularity of including (in our software) a schedule that supports this Combined Balance number.

In effect, this Combined Balance on Hand schedule represents a collapsing of the separate schedules for Principal and Income Balances on Hand (which are still included in the Account). This appears to address the slight complexity inherent in the separate tracking of principal and income assets.

9) Proposed Distribution to Beneficiaries. This schedule has been eliminated as an attachment to the Model Accounts and as the first line of the Summary of Account. Apparently, the Court concluded that this information should appear more appropriately with the Petition for Adjudication [Distribution].

Again, on the theory that keeping a schedule that is no longer required still represents "substantial conformity", we still provide users with a checkbox option that will display that line on the Summary of Account and include it among the printed schedules.

10) Starting Point for Pagination. Because the prior Model Accounts attached to Rule 6.1(f) appeared (among other places) in the Pennsylvania Rules of Court, the internal pagination of the Accounts did not match the pages of the larger Pennsylvania Rules of Court book.

In the Model Accounts, however, pagination starts with the Cover Page, so that the Summary Page is page 2, and the schedules start with page 3. For the past 20+ years, our accounting format has left the Cover Page and Summary Page unpaginated, and has numbered the first schedule as page 1. If there is a hue and a cry for numbering the Cover Page as page 1 and the Summary Page as page 2, we will make that change.

11) Certain Liabilities Not Specifically Addressed. There is stated manner to display a mortgage or note liability on the new Model Accounts.

[Update -- 04/04/07: Eugene H. Gillin, Esq., exchanged email with Vince Lackner (with copies to me) about presentation in an accounting of an ongoing liability involving both principal repayments and interest on the obligation. Gene consented for me to post his comments, which I will do later this week.]

[Update -- 04/06/07: For my posting of Mr. Gillin's comments, see: PA EE&F Law Blog, "Clarifications on PA's New Accounting Formats" (04/06/07).]

Vince noted that his company's software was updated online on April 1, 2007, to be compliant with the new rules. Other vendors must do likewise for those accounts to be filed by their users on or after Monday, April 30, 2007, in Pennsylvania.

PA's New Orphans' Ct Accounting Forms

On March 29, 2007, the Pennsylvania Supreme Court issued an Order approving the final form of new model account forms for use by estates, trusts, & charitable unitrusts, and placing the previously-approved Uniform Fiduciary Accounting Principles as an appendix to an applicable Orphans' Court Rule.

For background about the previously-approved Principles, and the then-proposed model forms of accounting, see: PA EE&F Law Blog posting "PA SC OC Rls Cte Proposes Revised Model Fiduciary Accounts" (November 3, 2006).

The PA Supreme Court acted upon the recommendations of its Orphans' Court Procedural Rules Committee, which had "spent the last 18 months reviewing and developing proposed revisions and forms." On October 31, 2006, that Committee had issued a Publication Notice in the Pennsylvania Bulletin, the Commonwealth's official gazette for information and rulemaking. The Committee requested comments about the proposed model forms from interested persons by December 15, 2006.

The Administrative Office of Pennsylvania Courts (AOPC) issued a Press Release, also dated March 29, 2007, announcing the approved new model accounting forms and providing links for reference:

A more uniform and understandable way for people or institutions appointed by a judge to administer a trust fund, or the dealings of someone who's deceased, was put into effect today by the Supreme Court of Pennsylvania.

The Supreme Court amended Orphans' Court Procedural Rule 6.1, revised several existing forms, and created a new one for use by fiduciaries, or those who are required to regularly provide a history of the transactions of a trust or estate.

Though models of such accountings are an integral part of Orphans' Court proceedings and have long been used as guides, today's Supreme Court order requires statewide use of forms of account that are consistent with the model forms - except upon special order of the court. Standardization assists the Orphans' Court when there is a need to review multiple accounts, and it also enhances a beneficiary's understanding of how a fiduciary is handling the affairs of a trust or estate. * * *

The 2-page Court Order provides, as follows:

(1) Pennsylvania Orphans’ Court Rule 6.1 is amended as follows;

(2) The Model Executor’s Account and Model Trustee’s Account previously attached to the Uniform Fiduciary Accounting Principles, approved pursuant to Rule 6.1(g) and included in an Appendix following Rule 6.1 are rescinded and the revised model accounts (renamed “Model Estate Account” and “Model Trust Account” respectively) are approved and included in the Forms Appendix following the Pennsylvania Orphans’ Court Rules;

(3) A Model Charitable Unitrust Account is approved and is set forth in the Forms Appendix following the Pennsylvania Orphans’ Court Rules;

(4) The Uniform Fiduciary Accounting Principles previously approved pursuant to Rule 6.1(g) and included in an Appendix following Rule 6.1(g) are relocated to the Forms Appendix following the Pennsylvania Orphans’ Court Rules; and

(5) The Index to Appendix is amended as follows.

Paragraph 5. of the Order references the Index to Appendix of the Orphans' Court and Administrative Forms, which is now updated. All forms listed in the Index are available online, in a "fill-in" format, under the heading Orphans' Court Forms. On that webpage, these forms are marked "NEW":

Model Forms of Account

National Fiduciary Accounting Standards Project - 1983 Report of Fiduciary Accounting Standards Committee

Model Estate Account

Model Trust Account

Model Charitable Remainder Unitrust Account

The rulemaking actions are reflected in the mark-up of amended Supreme Court Orphans' Court Rule 6.1, which shows additions & deletions.

The Press Release mentioned the recent activity of the Committee and the Supreme Court's reliance upon its work:

Today's action marks the Supreme Court's third significant Orphans' Court rule improvement within a year.

The Supreme Court adopted new rules last fall to ease the burden of people who adopt children from another country by creating a standardized registration process and making those forms available online.

Another enhancement was the approval of new statewide forms - which also are available for the first time online - that fell into four defined categories: audit and administration; guardianship; abortion control act and register of wills. * * *

[See: PA EE&F Law Blog posting New Uniform Orphans' Court Forms in PA (October 18, 2006).]

According to the Supreme Court's Order, these changes "shall become effective thirty days from the date of entry". This Order is unlike some other orders amending procedural rules that state an effective date.

So, we are left, again, to count the days to an effective date, just as for the effective date of the PA UTA in 2006 and the effective date of Act 169 in 2007.

Dan Evans, Esq., of Philadelphia -- who first drew the attention of the Bar to these published changes last Friday -- calculated the effective date as follows: "These changes are effective in 30 days, which should be April 28th (if my calendar math is correct)."

But, April 28th is a Saturday. (Dan told me, he knew that; and he figured that someone who needed to file an account would too.)

Since Monday, April 30th will be the first business day after the weekend, the changes will certainly be in effect by then. So the changes will be effectively "effective" on & after April 30, 2007.

* * *

Update: 04/03/07:

Vince F. Lackner, Jr., Esq. provided a comparison of the old suggested format (1974), to the new mandatory formats (2007). See: PA EE&F Law Blog, "Comparison of PA's Old & New Accounting Formats" (04/03/07).

Update: 04/06/07:

For my posting of Mr. Gillin's comments, see: PA EE&F Law Blog, "Clarifications on PA's New Accounting Formats" (04/06/07).

Tales Told in the Times Leader

Four articles separately appeared earlier this week (March 25-29, 2007) in one newspaper, the Times Leader (Wilkes-Barre, PA) -- a major publication in Northeastern Pennsylvania -- that highlight issues of many Pennsylvania seniors, and that offer an alert to younger residents who will deal with a growing "senior hood".

Read sequentially and considered together, these four separately sourced articles appearing in one newspaper over a short time, spotlight trends facing seniors and our society over the next twenty years.

Whether addressed by revolution or evolution, these situations will have both societal and individual effects that likely will create confusion and spawn creativity similar to the period described by Charles Dickens in A Tale of Two Cities.

The First Article -- "$1 million isn’t what it used to be — but it’s still awfully nice", by Eileen Alt Powell (published Sunday, March 25, 2007):

Renee Weese has reached an enviable goal — she’s become a millionaire. But like many others whose net worth has risen in recent years to seven figures, she doesn’t feel particularly wealthy.

Not that long ago, the word “millionaire” conjured up visions of chauffeured limousines, extravagant shopping trips and elegant yachts.

These days, a millionaire is more likely to be the guy or gal next door who saved carefully — and perhaps benefited from the sharp run-up in housing prices — but still worries about covering the exploding costs of children’s educations, caring for aging parents and funding their own retirements. * * *

The Second Article -- "Health costs strain retirement stash" (Wednesday, March 28, 2007):

Rising health care costs are eating up more of retirees’ savings, with a 65-year-old couple retiring this year needing about $215,000 to cover medical costs over the rest of their lives, Fidelity Investments said Tuesday.

The $215,000 represents a 7.5 percent increase from Fidelity’s estimate last year of the amount a typical U.S. couple would need during retirement to pay for health care, including medical and surgical expenses as well as prescription drugs.

That increase is slightly higher than the average annual increase of 6.1 percent since Fidelity began calculating retiree health care expenses five years ago. Since then, the highest increase came in 2005, when the estimate rose 8.6 percent. * * *

Those costs are rising faster than overall inflation because of increasingly expensive medical technologies, costlier prescription drugs and longer life expectancy. * * *

The Third Article -- "School retirees hear presentation on long-term care" (Wednesday, March 28, 2007, which included the photo above):

Bill Pitzer, long-term care insurance representative with Professional Insurance Services, presented a seminar to the Luzerne/Wyoming counties chapter of the Pennsylvania Association of School Retirees. His topic was on a long-term care program endorsed by the association. * * *

The Fourth Article -- "State lawmakers seek input on health care changes" -- Eachus says new legislation is possible now that Democrats are in the majority", by Rory Sweeney (Thursday, March 29, 2007, with a link to referenced pending legislative Bill):

A new majority in state government has opened legislative opportunities that were blocked during past sessions of the General Assembly, a local lawmaker said.

Health care reform had been “impossible to get” while Democrats were in the minority, state Rep. Todd Eachus, D-Butler Township, said. Eachus, who has been in Harrisburg for 10 years, is the Democratic policy chairman in the state House of Representatives.

Now, legislators are crisscrossing the Commonwealth, soliciting insight from the public on how to improve health care availability in the state.

The meetings have highlighted some key points, such as the fact that health care cost increases are straining the ability of Pennsylvania employers to pay for employees’ coverage, Eachus said.

“They are tired of insurance companies increasing health insurance … every year,” he said.

Ideas gleaned from the talks will figure into what Eachus calls “an aggressive … array” of more than four and fewer than 15 bills developed as a strategic plan by House Democrats.

“ … That’s going to be the framework for discussing health care reform in Pennsylvania,” he said.

The bills will be introduced within the next five weeks, according to Eachus. * * *

On March 28, 2007, the Daily & Sunday Review (Towanda, PA) published an editorial entitled "A long-term repair for long-term care in Pennsylvania". It asks the Legislature to provide effective services, with efficiency, to the aging population in Pennsylvania:

Pennsylvania’s roster of services for older residents is among the most comprehensive of any state. The state has the third-oldest average age among the states, with 20 percent of the population older than 60.

Yet, as the Times-Tribune in Scranton put it, the state is well behind most other states in adapting to financial trends affecting long-term care, a crucial but sometimes forgotten aspect of health care. * * *

Now Democratic Gov. Ed Rendell and two legislative Republicans have proposed changes akin to those in the 37 other states that have reduced their costs. Assisted-living facilities would be defined under state law as institutions that may accept Medicaid patients and be regulated by the state government.

There is a dispute in Pennsylvania between operators of personal care homes and assisted-living centers over legal definitions, Medicaid eligibility and regulation.

But for the state, the objective is to find less costly, alternative forms of care for older residents who need some assistance short of the round-the-clock nursing services provided by nursing homes.

Following the lead of other states by creating more options for older residents, short of the most expensive option, is a good idea that will help stretch reduced federal funding of Medicaid.

We agree with the Times-Tribune [Scranton PA, Editorial, March 27, 2007, "Long-term repair for long-term care"] that the Legislature should seize the opportunity.

"It was the best of times, it was the worst of times; it was the age of wisdom, it was the age of foolishness; it was the epoch of belief, it was the epoch of incredulity; it was the season of Light, it was the season of Darkness; it was the spring of hope, it was the winter of despair; we had everything before us, we had nothing before us; we were all going directly to Heaven, we were all going the other way."

-- Charles Dickens, Opening Lines of A Tale of Two Cities
(published serially, April-November, 1859)

Secretary of Aging on PA's AAA Network

Nora Dowd Eisenhower, as Secretary of the Pennsylvania Department of Aging, offered testimony before the Aging and Youth Committee, of the Pennsylvania State Senate, on March 27, 2007. [Why? See the Update below.]

Secretary Eisenhower reported to that Senate Committee's Chairs -- Patricia H. Vance and Leanna M. Washington -- and to the other members, about local services offered to residents over sixty years old by the statewide network of "Area Agencies on Aging", in conjunction with her Department and other state agencies, such as the Department of Public Welfare.

She distinguished the roles of the Department of Aging from those of the local agencies:

It is the responsibility of the Department to ensure:

• that consumers receive fair and consistent treatment in every county,
• that state and federal funds are used judiciously, and
• that we define our expectations of the network which include issuing clear guidance and direction around performance outcomes, data tracking, cost reporting, and customer service.

The AAA network is equally responsible to assure high-quality, timely services for our seniors. In achieving this, each AAA is accountable:

• to use tax dollars responsibly,
• to have a productive, well-trained staff, and to
• operate in an efficient manner.

It is our collective responsibility to provide the highest quality services to our elders in need and to be accountable to Pennsylvania taxpayers.

Recent discussions between these two levels of government resulted in "our shared commitment to three basic goals":

• Consistency and equity in eligibility determinations across the Commonwealth. In order to gauge consistency, we monitor the number of medical conditions identified and the amount of help (Activities of Daily Living – ADLs) that a senior needs, such as feeding, bathing, dressing and toileting. We want to make sure that similarly situated, clinically comparable consumers can count on similar outcomes – equivalent eligibility determinations – no matter where in the state they reside.
• Consistency in cost. We’re trying to make sure that the cost of performing the eligibility assessments is reasonably consistent and uniform across the Commonwealth so that our resources are fairly distributed among the AAAs and throughout the state.
• Consistency in productivity. Again, I believe our partners at the AAAs share our commitment to prudent use of the Commonwealth’s resources. In this regard, we have pledged to share with the AAAs data on the relative numbers of staff the agencies dedicate to the assessment process, as well as comparative data on the number of assessments completed by the staff over the course of a year. We want to make sure that we are all managing the system effectively and getting the best possible results from our tax dollars.

She acknowledged that "challenges exist at both levels, and that change is needed within the Department, as well as in the network."

She reviewed some of the recently implemented changes that affect seniors in need of services or resources, which are available through the Aging system. She then explained the present steps for a resident to initiate requests, and for the agencies to respond.

She also took note of "some of the concerns I have been hearing from directors, counties, legislators, and other stakeholders":

First, I want to assure county commissioners and workers that the dialogue has just begun. We do not foresee any impact on jobs.

Second, we are committed to spending the time to get this right, to address these important issues.

Third, we will not make any changes that result in a less responsive system for consumers; in fact our goal is the opposite.

She ended her testimony with these assurances:

In closing, I want to assure you that we are committed to a productive process that directly engages the AAA network, and we share the same goals of creating a timely, effective, equitable, and accountable system that allows us to serve the greatest number of older Pennsylvanians.

The text of her complete testimony, as posted by the Department of Aging on March 28, 2007, can be found online here.

Update: 03/30/07:

Do you want to learn the "story behind the story" as to why such testimony was presented before the Senate's Aging & Youth Committee?

Well then, see: "Rendell's elder services plan is raising doubts", by Gary Rotstein, published in the Pittsburgh Post-Gazette on Tuesday, March 27, 2007.

Here are some excerpts:

The Rendell administration wants to centralize the state's system for evaluating older adults who apply for government-funded services, but local aging officials worry the plan will just delay getting help to consumers.

The state Senate Aging and Youth Committee meets in Harrisburg today to hear about the plan from both Pennsylvania Department of Aging officials and representatives of county aging agencies. The agencies would be stripped of one of their primary functions if the plan is implemented in 2008, as the Rendell administration wants.

The proposal calls for a private or public agency to be contracted anew to assess the status of adults seeking aging services, which can include qualifying for in-home assistance, subsidized nursing home care or other help. Fifty-two aging agencies across the state now perform the evaluations and follow up by coordinating services for those who are eligible. * * *

Local aging officials * * * say state officials failed to consult with them about the changes, which they contend would add an extra step and possible confusion for the often-frail individuals seeking help. Two people and agencies, instead of one, would be responsible for evaluating someone's health and resources and arranging help.

Officials from the agencies covering Allegheny, Westmoreland, Fayette, Greene and Washington counties, among others, fail to see any positives from such a move. * * *

After reading the entire newspaper article, go back and reread the Secretary's testimony. It will make more sense in the reported setting.

PA Governor's Six Sweeping Reform Proposals

On March 26, 2007, during a public appearance, Governor Edward G. Rendell announced six major proposals for reform in Pennsylvania that would affect open public records, campaign finances, legislators' term limits, merit selection of judges, reduction in the size of the Legislature, and designation of elective districts.

The Governor's Press Release, dated March 26, 2007, is entitled "To Improve Accountability, Governor Rendell Unveils Historic Reform Proposal". It opens with a statement of the need for reform in six fundamental areas of Pennsylvania government:

Governor Edward G. Rendell today unveiled a six-pronged proposal that would dramatically change the way Pennsylvania government operates and help restore the public’s trust.

The package, unveiled during an appearance before the Pennsylvania Press Club, would give the public and the press a wider look at the business functions of state government, impose limits on campaign contributions and otherwise tighten campaign finance rules, change the constitution to limit lawmakers’ time in office, establish new requirements for legislative redistricting, provide for the merit selection of judges, and have the General Assembly form a commission to make recommendations on how to reduce the size of the legislature.

“Citizens will not rest until there is an end to perks, an end to control by private interests and an end to political rules that shut them out of the process,” the Governor said as he noted the changes the House and Senate are already debating and the media coverage they’re receiving. * * *

The Governor said some of his proposals have been debated – and proposed – before, but he said the time is right to make these changes now.

The Press Release explains the proposed initiatives (some of which would require amendment to the Pennsylvania Constitution) under headings, with longer explanations after the introductions:

Open Records

Governor Rendell said there have been significant changes to the commonwealth’s open records laws, but he said more work remains. More than 5,000 right-to-know requests have been received by his administration since he became Governor in 2003, yet the constraints of current law forced the denial of half of those. * * *

Merit Selection of Judges

The Governor’s proposal for merit selection would replace the current election of state appellate court judges with a system that requires nominations from the Governor based on a list of judges recommended for appointment by an Appellate Court Nominating Commission. Nominees would require Senate confirmation. * * *

Campaign Finance Reform
Governor Rendell’s proposal to change the way candidates can raise money would also restore the public’s faith in the election process. * * *

Legislative Reapportionment

Under his proposal to ensure that State legislative districts are not configured to benefit candidates or political parties, Governor Rendell is calling for the creation of a nine-member citizens’ commission to replace the current method of reapportionment. * * *

Reducing the Size of the Legislature

Governor Rendell said he is proposing an 11-member commission to study the size of the legislature and to make recommendations for an amendment to the Pennsylvania constitution that would reduce the number of members of the General Assembly. * * *

Term Limits

Governor Rendell said his term limits proposal will require an amendment to the state constitution and will be phased in after it is adopted in two sessions of the General Assembly and is approved by voters. Once in place, members of the House of Representatives and the Senate would only be allowed to serve eight years – or four, two-year terms in the House; and two, four-year terms in the Senate. * * *

The Press Release reported Governor Rendell's optimism in proposing such fundamental changes:

“Legislators’ passion for these changes is what makes this state and this nation great and the press’s work to continue to report on the progress and flaws in these efforts is critical to making sure we don’t ever stop moving this work forward.”

Would you be surprised if you read the following reaction by the press?

On first glance, Governor Rendell's Plan for a New Pennsylvania looks like the proverbial kitchen sink. It is crowded with a multitude of proposals. * * * The Plan, by any reckoning, is aggressive, complicated, and not the way Pennsylvania usually does things.

The debate on it hasn't really started. When it does, we can expect that each part of the Plan will generate vocal advocates, critics, and at least 45 alternative proposals. But now is a good time to take a quick look at the issues behind the governor's proposal.

Actually, that is not a reaction to the Governor's present six-pronged proposal.

No, this reaction, as reported in an article entitled "Putting big issues on Pennsylvania's policy table", which was posted online by IssuesPA (an initiative of the Pennsylvania Economy League), had occurred in response to another Press Release issued four years ago -- on March 26, 2003.

That prior proposal related to Governor Rendell's "Plan for a New Pennsylvania", which was not funded by the Legislature thereafter, according to subsequent reports. See: "Killion Releases Statement on House Defeat of Tax Increases" (09/16/03).

Back then, with the Governor's political party in the minority, a compromised, limited property tax reduction enactment eventually resulted from Rendell's initial proposals. This time, the Democrats hold a slight majority in the Legislature.

What will be the outcome of these new proposals? Only the ensuing political debate will tell.

At least in discussions on the "Open Records" aspects of the Governor's six new proposals, I hope that someone will advocate the public's need for online availability of already-enacted Pennsylvania statutes. See: "Sunshine Week" in PA Neglects Statutes" (03/20/07).

But that should not be a political agenda item. It should be an executive implementation of a routine "good government" practice, as already conducted in the other 49 states.

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Update: 03/29/07:

The Philadelphia Bar Association publicly endorsed Governor Rendell's proposal for merit selection of Pennsylvania judges. See: Press Release, dated March 28, 2007, entitled "Bar Association Applauds Governor's Proposal for Merit Selection of Judges":

The 13,000-member Philadelphia Bar Association today applauded Gov. Edward G. Rendell's announcement on Monday proposing an appointment-based system to replace the current system of electing Pennsylvania appellate court judges.

"We commend the Governor for taking this important step and look forward to working with him and the Legislature in finalizing this proposed Constitutional amendment for consideration by the citizens of Pennsylvania," said Association Chancellor Jane Dalton.

Calling the current system "a terrible process" for selecting judges, the Chancellor noted that the state's system of electing judicial candidates is based on an appearance of "pay-to-play" tactics that force those candidates to accept contributions from lawyers and special interest
groups that will, one day, argue cases before them.

"That is the opposite of everything we stand for in a fair justice system," Dalton said. * * *

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Update: 04/13/07:

For a further development, see: " Officials hold 3d hearing on revamping Pa. government", by Vernon Clark, published April 12, 2007, in the Philadelphia Inquirer.

At the University of Pennsylvania Law School, two state senators heard testimony yesterday on the convening of a constitutional convention for the reform of state government.

State Sens. Jeffrey E. Piccola (R., Dauphin) and Michael Folmer (R., Lebanon) held the third hearing on the topic, listening to the views of three speakers: an area lawyer and author, a Rutgers University law school professor, and the president of the local League of Women Voters. Previous hearings were held in Harrisburg and Pittsburgh.

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