The consumer watchdog group Public Citizen has filed suit in federal court charging that the Deficit Reduction Act of 2005 (DRA) signed by President Bush on February 8th is invalid because the president signed a version of the bill that was passed by the U.S. Senate but not the U.S. House of Representatives. Meanwhile, House Democratic Leader Nancy Pelosi and Congressman Henry Waxman, senior Democrat on the House Government Reform Committee, have sent a letter to President Bush requesting clarification on his knowledge of what he was signing.
Among various cuts in social programs, the DRA would place severe new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care. The measure barely passed both houses of Congress. But the Constitution requires that before a bill can be enacted into law by the president, it must pass both the House and Senate in identical form. Due to a clerk’s substantive change as the legislation passed between houses, the president signed legislation that was passed by the Senate but not the House.
Public Citizen’s lawsuit, filed in the U.S. District Court for the District of Columbia, “simply requests the court to uphold the Constitution,” said Adina Rosenbaum, a Public Citizen attorney. “The entire law is invalid because the law the House passed is different from the law the Senate passed and the president signed.”
The Congress and the president have to be brought to account for their rogue actions in moving to enact this very controversial legislation without complying with the Constitution,” said Joan Claybrook, president of Public Citizen. “This time, they will have to answer for their actions.”
Public Citizen attorneys said the suit has been assigned to U.S. District Court Judge John D. Bates, who was appointed by President Bush in December 2001. The consumer group said it does not expect a full hearing until late spring.
Alabama attorney Jim Zeigler earlier filed suit challenging the DRA’s constitutionality.
“I expect dozens of lawsuits against the DRA, because its constitutional flaw is clear and obvious,” Zeigler said in response to the Public Citizen suit. “Millions of citizens and thousands of businesses are adversely affected by the DRA.”
Zeigler said he expects to soon see senior citizens dependent on oxygen joining the suits as plaintiffs. “They are clearly affected,” he said. “Under the old law, they could receive Medicare oxygen for life. Under the new law, they are literally cut off after 13 months.”
Source: www.elderlawanswers.com
Sunday, March 26, 2006
Thursday, March 16, 2006
Deficit Reduction Act Update: Democrats Demand Hearing, Zeigler Fights On
Continuing efforts to achieve a legislative solution to the controversy surrounding enactment of the Deficit Reduction Ace of 2005 (DRA), three Democrats on the House Administration Committee have sent a letter to Committee Vernon Ehlers requesting an oversight hearing on the constitutional and procedural problems with the measure. The letter questions the legitimacy of the bill because on February 8, the President signed a version that was passed by the Senate but was different from one passed by the House. (See past newsletters for details.)
“This incident strikes at the very core of Congress’ law-making powers and the legitimacy of our constitutional system,” according to the March 8 letter.
Democrats in the House of Representatives say the Act is invalid and are calling for a re-vote because, according to the U.S. Constitution, a law must be approved in identical form by both houses of Congress. Republicans are resisting, not wishing to open a fresh debate on the budget measure’s cutbacks on programs for the poor and middle class.
A spokesman for House minority leader Nancy Pelosi (D-CA), reported that the Republican majority is not likely to heed the request for a hearing, “but we want to at least put them on the record and then we may ratchet it up after that – get GAO [the Government Accountability Office] or somebody else to do it as well. There are different strategies.” It was also insinuated that there are other lawsuits being filed in addition to the one lodged by Alabama elder law attorney Jim Zeigler, but no specifics were given.
Meanwhile, Zeigler has announced that he is looking for “a few good plaintiffs” to join him in his suit. Zeigler says the addition of persons affected by specific changes in DRA would help his case in two ways: eliminating the possibility that his own legal standing may be challenged and opening the possibility of injunctive relief.
“An ideal plaintiff would be someone soon to be personally affected by the Feb. 8 changes, “ Zeigler said. “We could then apply for a temporary restraining order or preliminary injunction to enjoin the effective date of the Act pending the outcome of the case.”
“We have just obtained service of process on the local U.S. Attorney and are still awaiting return of service from the U.S. Attorney General,” Zeigler added. “We expect them to take the maximum time to file responsive pleadings.”
Zeigler is not raising funds for the suit on his website www.JimZeigler.com. The Alabama attorney, who was once a member of President Bush’s legal team, now estimates the cost will be $750,000; his earlier estimate of $300,000 did not reflect bond and appeals.
The controversy over the DRA’s constitutionality has caught the notice of Wall Street. The publication TheStreet.com published an article on the dispute’s possible impact on home health care providers.
“This incident strikes at the very core of Congress’ law-making powers and the legitimacy of our constitutional system,” according to the March 8 letter.
Democrats in the House of Representatives say the Act is invalid and are calling for a re-vote because, according to the U.S. Constitution, a law must be approved in identical form by both houses of Congress. Republicans are resisting, not wishing to open a fresh debate on the budget measure’s cutbacks on programs for the poor and middle class.
A spokesman for House minority leader Nancy Pelosi (D-CA), reported that the Republican majority is not likely to heed the request for a hearing, “but we want to at least put them on the record and then we may ratchet it up after that – get GAO [the Government Accountability Office] or somebody else to do it as well. There are different strategies.” It was also insinuated that there are other lawsuits being filed in addition to the one lodged by Alabama elder law attorney Jim Zeigler, but no specifics were given.
Meanwhile, Zeigler has announced that he is looking for “a few good plaintiffs” to join him in his suit. Zeigler says the addition of persons affected by specific changes in DRA would help his case in two ways: eliminating the possibility that his own legal standing may be challenged and opening the possibility of injunctive relief.
“An ideal plaintiff would be someone soon to be personally affected by the Feb. 8 changes, “ Zeigler said. “We could then apply for a temporary restraining order or preliminary injunction to enjoin the effective date of the Act pending the outcome of the case.”
“We have just obtained service of process on the local U.S. Attorney and are still awaiting return of service from the U.S. Attorney General,” Zeigler added. “We expect them to take the maximum time to file responsive pleadings.”
Zeigler is not raising funds for the suit on his website www.JimZeigler.com. The Alabama attorney, who was once a member of President Bush’s legal team, now estimates the cost will be $750,000; his earlier estimate of $300,000 did not reflect bond and appeals.
The controversy over the DRA’s constitutionality has caught the notice of Wall Street. The publication TheStreet.com published an article on the dispute’s possible impact on home health care providers.
Thursday, March 2, 2006
Lawsuit to Invalidate Deficit Reduction Act Pending
An Alabama lawyer has filed a lawsuit seeking to void the $39 billion budget savings act signed into law February 8 by President Bush because of a clerical error that resulted in the House and Senate passing different versions of the bill.
It is said that it is not a valid law because it was not passed in identical form by both chambers. The problem is that at this time it is difficult to represent older folks who are intending to get Medicaid nursing home eligibility because it is unclear on whether to advise them to follow the post-Feb. 8 law that is unconstitutional or the pre-Feb. 8 law that is constitutional.
No hearing date has been set and it is unclear if the case will even be awarded a hearing. Several consitutional law scholars have predicted that if given the chance, the courts could rule that the act violates the bicameral clause of the Constitution, which requires both chambers to pass identical legislation before the president signs it into law.
It is anticipated that elderly people directly affected by the new law will join the suit shortly to enhance the chances that the court will grant standing in the case. The issue arose as a result of an error by a Senate clerk that changed a portion of the bill limiting rentals of durable medical equipment other than oxygen equipment to 36 months instead of the 13 months that was in the measure passed by the Senate. The clerk then changed the number back to 13 after the House voted on the bill.
The Congressional Budget Office, in response to a request by House Democrats, has estimated the difference between a 13-month limit and a 36-month limit on the medical equipment to be $2 billion over five years.
This provisoin in the law will penalize seniors who give money to their church, to their relatives or to charity by totaling those gifts over a five-year period and penalizing them, making them ineligible for Medicaid coverage.
Source: Steven T. Dennis, CQ staff
It is said that it is not a valid law because it was not passed in identical form by both chambers. The problem is that at this time it is difficult to represent older folks who are intending to get Medicaid nursing home eligibility because it is unclear on whether to advise them to follow the post-Feb. 8 law that is unconstitutional or the pre-Feb. 8 law that is constitutional.
No hearing date has been set and it is unclear if the case will even be awarded a hearing. Several consitutional law scholars have predicted that if given the chance, the courts could rule that the act violates the bicameral clause of the Constitution, which requires both chambers to pass identical legislation before the president signs it into law.
It is anticipated that elderly people directly affected by the new law will join the suit shortly to enhance the chances that the court will grant standing in the case. The issue arose as a result of an error by a Senate clerk that changed a portion of the bill limiting rentals of durable medical equipment other than oxygen equipment to 36 months instead of the 13 months that was in the measure passed by the Senate. The clerk then changed the number back to 13 after the House voted on the bill.
The Congressional Budget Office, in response to a request by House Democrats, has estimated the difference between a 13-month limit and a 36-month limit on the medical equipment to be $2 billion over five years.
This provisoin in the law will penalize seniors who give money to their church, to their relatives or to charity by totaling those gifts over a five-year period and penalizing them, making them ineligible for Medicaid coverage.
Source: Steven T. Dennis, CQ staff
Thursday, February 16, 2006
Update on the New Medicaid Law
A mistake on “The Deficit Reduction Act of 2005" which was purportedly signed into law by President George W. Bush on February 8, 2006, could mean that it is not technically a law. But, congressional Republicans said that they have no plans to try to fix the problem, even though a fellow NAELA (National Academy of Elder Law Attorneys) member, Jim Zeigler, has filed a lawsuit charging the $39 billion deficit-cutting legislation Bush signed is unconstitutional because the House and Senate failed to pass identical versions. House GOP leaders insist there’s no problem.
The bill, which Bush signed February 8, tightens rules for Medicaid nursing home eligibility to make it more difficult for those who have transferred their assets to their families or to charities to qualify for Medicaid.
Zeigler, who advises the elderly on eligibility for nursing home care under the Medicaid program for the poor and disabled, filed suit Monday in federal court in Mobile, Ala., naming Attorney General Alberto Gonzales as a defendant. Justice Department spokesman Charles Miller declined comment on the case.
House Democrats, accusing GOP leaders of abusing the legislative process, have asked for another vote. On the last vote February 1, the bill passed by the narrowest of margins, 216-214.
The White House and House and Senate GOP leaders say the matter is settled because the mistake was technical and that top House and Senate leaders certified the bill before transmitting it to the White House.
We urge you to seek the counsel of Davidow, Davidow, Siegel & Stern immediately as we alert you to this new law and its consequences. There is also a possibility that a window of opportunity may exist to plan under the old law before New York implements the new law. We will continue to remain dedicated to preserving the rights and the dignity of senior citizens and those with special needs. We urge you to plan now.
The bill, which Bush signed February 8, tightens rules for Medicaid nursing home eligibility to make it more difficult for those who have transferred their assets to their families or to charities to qualify for Medicaid.
Zeigler, who advises the elderly on eligibility for nursing home care under the Medicaid program for the poor and disabled, filed suit Monday in federal court in Mobile, Ala., naming Attorney General Alberto Gonzales as a defendant. Justice Department spokesman Charles Miller declined comment on the case.
House Democrats, accusing GOP leaders of abusing the legislative process, have asked for another vote. On the last vote February 1, the bill passed by the narrowest of margins, 216-214.
The White House and House and Senate GOP leaders say the matter is settled because the mistake was technical and that top House and Senate leaders certified the bill before transmitting it to the White House.
We urge you to seek the counsel of Davidow, Davidow, Siegel & Stern immediately as we alert you to this new law and its consequences. There is also a possibility that a window of opportunity may exist to plan under the old law before New York implements the new law. We will continue to remain dedicated to preserving the rights and the dignity of senior citizens and those with special needs. We urge you to plan now.
Monday, February 6, 2006
New Law Passed!
On Wednesday, the U.S. House of Representatives passed the Deficit Reduction Act of 2005 (S. 1932) by a vote of 216 to 214. The Senate has already passed the bill by a vote of 51 to 50, with the Vice President breaking the tie. The bill will now be sent to the President for signature.
This is a sad day for older Americans and individuals with disabilities facing long-term care crises. It is a sad day for many of our clients who will face confusing and unfair Medicaid eligibility rules. Transfers made after the date of the President’s signature (or New York State implementation) will be subject to the new law. Importantly, transfers made prior to this new law will not be effected and any advice we gave you on those transfers still holds true.
The new law extends the “look back period” to five (5) years for all transfers (to trusts or otherwise) and starts the Medicaid penalty period from the first day of the month after which you enter a nursing home and apply for Medicaid rather than the first day of the month after which you actually made a transfer. The biggest criticism of this new law is that when you apply for Medicaid, you will have no assets and no ability to pay for your care.
We urge you to seek our counsel immediately as we alert you to this new law and its consequences. There is also a possibility that a window of opportunity may exist to plan under the old law before New York implements the new law. We will continue to remain dedicated to preserving the rights and the dignity of senior citizens and those with special needs. We urge you to plan now.
This is a sad day for older Americans and individuals with disabilities facing long-term care crises. It is a sad day for many of our clients who will face confusing and unfair Medicaid eligibility rules. Transfers made after the date of the President’s signature (or New York State implementation) will be subject to the new law. Importantly, transfers made prior to this new law will not be effected and any advice we gave you on those transfers still holds true.
The new law extends the “look back period” to five (5) years for all transfers (to trusts or otherwise) and starts the Medicaid penalty period from the first day of the month after which you enter a nursing home and apply for Medicaid rather than the first day of the month after which you actually made a transfer. The biggest criticism of this new law is that when you apply for Medicaid, you will have no assets and no ability to pay for your care.
We urge you to seek our counsel immediately as we alert you to this new law and its consequences. There is also a possibility that a window of opportunity may exist to plan under the old law before New York implements the new law. We will continue to remain dedicated to preserving the rights and the dignity of senior citizens and those with special needs. We urge you to plan now.
Thursday, January 19, 2006
Medicaid Alert: Time is Running Out!
Dear Clients and Friends,
A new law is pending that will dramatically alter the “look-back” and “transfer of assets” provisions of the Medicaid law. If you still have assets in your name that you want to protect from a nursing home and Medicaid, it is crucial that you understand this new law and act IMMEDIATELY.
This new law will likely be effective around the beginning of February, 2006, upon the President’s signature, but could be delayed awaiting New York State implementation. This new law is contained in the Deficit Reduction Act of 2005 (“DRA) which passed the House of Representatives (“House”) and the Senate late last year, but with certain technical corrections requiring the House to pass it again (which they are expected to do on February 1, 2006). Transfers made after the date of the President’s signature (or New York State implementation) will be subject to the new law. Importantly, transfers made prior to this new law will not be effected and any advice we gave you on those transfers still holds true.
The new law extends the “look back period” to five (5) years for all transfers (to trusts or otherwise) and starts the Medicaid penalty period from the first day of the month after which you enter a nursing home and apply for Medicaid rather than the first day of the month after which you actually made a transfer.
Example of the new law: On December 31st, 2006 you transferred $30,000 to your granddaughter to help her pay for a semester of college. For Medicaid purposes you will have incurred a 3 month penalty beginning on the first month after you enter a nursing home and apply for Medicaid, if such date should occur within 5 years of the transfer. Here, if you applied for Medicaid on June 1, 2007, you still would not be eligible for 3 more months.
The biggest criticism of this new law is that when you apply for Medicaid you will have no assets and no ability to pay for your care. This law is unfair to any one who gives money to a family member to purchase a home, or an education, or to anyone who gives money to their charity of choice. Will seniors stop making these types of gifts to their family members? Will nursing homes accept you if you have no money and no Medicaid? The law is hurtful to our society and you should make your feelings known to your representatives.
This letter shall serve to alert you to this new law and encourage you to seek our counsel IMMEDIATELY. Furthermore, there is also a possibility that a window of opportunity now exists to plan under the old law before New York implements the new law. We will continue to remain dedicated to preserving the rights and the dignity of senior citizens and those with special needs. We urge you to plan now before time runs out!
Also, please log on to our website, www.Davidowlaw.com, and sign up for our weekly newsletter to obtain other information and updates on this new law as it unfolds. I am,
Very truly yours,
Lawrence Eric Davidow, Managing Partner
A new law is pending that will dramatically alter the “look-back” and “transfer of assets” provisions of the Medicaid law. If you still have assets in your name that you want to protect from a nursing home and Medicaid, it is crucial that you understand this new law and act IMMEDIATELY.
This new law will likely be effective around the beginning of February, 2006, upon the President’s signature, but could be delayed awaiting New York State implementation. This new law is contained in the Deficit Reduction Act of 2005 (“DRA) which passed the House of Representatives (“House”) and the Senate late last year, but with certain technical corrections requiring the House to pass it again (which they are expected to do on February 1, 2006). Transfers made after the date of the President’s signature (or New York State implementation) will be subject to the new law. Importantly, transfers made prior to this new law will not be effected and any advice we gave you on those transfers still holds true.
The new law extends the “look back period” to five (5) years for all transfers (to trusts or otherwise) and starts the Medicaid penalty period from the first day of the month after which you enter a nursing home and apply for Medicaid rather than the first day of the month after which you actually made a transfer.
Example of the new law: On December 31st, 2006 you transferred $30,000 to your granddaughter to help her pay for a semester of college. For Medicaid purposes you will have incurred a 3 month penalty beginning on the first month after you enter a nursing home and apply for Medicaid, if such date should occur within 5 years of the transfer. Here, if you applied for Medicaid on June 1, 2007, you still would not be eligible for 3 more months.
The biggest criticism of this new law is that when you apply for Medicaid you will have no assets and no ability to pay for your care. This law is unfair to any one who gives money to a family member to purchase a home, or an education, or to anyone who gives money to their charity of choice. Will seniors stop making these types of gifts to their family members? Will nursing homes accept you if you have no money and no Medicaid? The law is hurtful to our society and you should make your feelings known to your representatives.
This letter shall serve to alert you to this new law and encourage you to seek our counsel IMMEDIATELY. Furthermore, there is also a possibility that a window of opportunity now exists to plan under the old law before New York implements the new law. We will continue to remain dedicated to preserving the rights and the dignity of senior citizens and those with special needs. We urge you to plan now before time runs out!
Also, please log on to our website, www.Davidowlaw.com, and sign up for our weekly newsletter to obtain other information and updates on this new law as it unfolds. I am,
Very truly yours,
Lawrence Eric Davidow, Managing Partner
Thursday, January 12, 2006
Medicaid Management: 2006 Figures
The Centers for Medicare & Medicaid Services (CMS) has informed the Department that due to an increase in the consumer price index, the federal maximum community spouse resource allowance (CSRA) increases to $99,540 effective January 1, 2006. The State's minimum CSRA will remain unchanged at $74,820. Therefore, in determining the community spouse resource allowance on and after January 1, 2006, the community spouse is permitted to retain resources in an amount equal to the greater of the following amounts:
1. $74,820 (the State minimum community spouse resource allowance); or
2. the amount of the spousal share up to $99,540 (the new federal maximum).
In addition, effective January 1, 2006, the community spouse minimum monthly maintenance needs allowance (MMMNA) increases to $2,489 ($2,488.50 rounded up). The increased MMMNA, family member allowance, federal maximum CSRA, and State minimum CSRA must be used when completing an assessment of a couple's resources and income.
NOTE: For home care, the monthly Medicaid income level for one-person ($692) and two-person ($900) household will also take effect on January 1, 2006.
Any increases in the MMMNA and family member allowance and/or changes in the NAMI of the institutionalized spouse are to be made effective January 1, 2006.
1. $74,820 (the State minimum community spouse resource allowance); or
2. the amount of the spousal share up to $99,540 (the new federal maximum).
In addition, effective January 1, 2006, the community spouse minimum monthly maintenance needs allowance (MMMNA) increases to $2,489 ($2,488.50 rounded up). The increased MMMNA, family member allowance, federal maximum CSRA, and State minimum CSRA must be used when completing an assessment of a couple's resources and income.
NOTE: For home care, the monthly Medicaid income level for one-person ($692) and two-person ($900) household will also take effect on January 1, 2006.
Any increases in the MMMNA and family member allowance and/or changes in the NAMI of the institutionalized spouse are to be made effective January 1, 2006.
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