The long-awaited reintroduction of the bill to terminate Medicaid Estate Recovery was introduced by Chicago area Rep, Jan Schakowsky in March and was met with great encouragement from the press. The New York Times had an excellent article on the evil of Medicaid Estate Recovery. The Bill called Stop Unfair Medicaid Recoveries Act received twice the number of co-sponsors, unfortunately all Democrats again. Then? Nothing. Why? I have no idea.
For readers who are new to getting Medicaid long term care services for in-home or a nursing home for a parent, a relative or themselves the reality is that it is not a true healthcare program. Even though the cause of the need for long term care services and supports may be a medical condition such as Alzheimer’s Dementia, Medicaid is a loan. “Cost Cutting Congress members” consider Medicaid to be a loan to be paid back from whatever property the recipient has left when she or he dies. As I have written before there are exceptions from the Medicaid claim, such as for spouses and disabled dependents, but why should this “Death Tax” be inflicted on hard-working folks who paid taxes all their life?
As I wrote before, in 1993 when when Medicaid Estate Recovery was made mandatory, there was much anger and resistance amongst the Senior community. One would think that everybody would stand up and cheer for the repeal of this evil tax. But. What happened in 2024? Nothing. The media moved on to the political Hot Issue of the day.
What will happen next year? The good Representative Schakowsky will introduce it again next session. And if the Democrats control Congress there is has a chance for repeal of Medicaid Estate Recovery. Why just Democrats? It beats me.
An almost unknown area of long term care Medicaid is that of Court Orders of Support. This is used in the case where the recipient who has a spouse who needs more income for daily needs that the Medicaid Department workers can provide. The case worker must apply a pre-written formula for how much the recipient has to pay and how much he or she may save for his or her “community spouse.” Needless to say this formula does not save enough for the spouse to live a normal lifestyle because it is designed to keep poor people poor. The saving grace of the court order of support was put into the Medicaid program in 1998 in the Medicare Catastrophic Coverage Act known in brief as “MCCA.” This was in response to the national outrage of families being forced into poverty simply because a husband or wife needed long term care assistance. At that time Congress did not trust “bureaucrats” to decide how couples should live. Congress recognized the centuries old experience of the courts in dealing with the difficult issues of spousal separation and support.
Over the years Long Term Care Medicaid applicants and recipients resorted to the courts for a proper determination of the amount of income or property a spouse would need to live. But. As time went on the state Medicaid Departments, ever protective of their budget, fought court orders of support! The result was that courts started deciding that Medicaid recipients and spouses must be reduced to live a poverty life.
A potential breakthrough of this logjam is happening in Michigan. Norm Harrison, a courageous Saginaw Elder Law Attorney, has decided to fight the stingy Michigan Medicaid Department. (It’s name is the Department of Health and Human Services.) He obtained a fair court order of support for his married couple, the Sizick’s. But the Michigan Medicaid Department fought him and appealed his court order of support to the Michigan
Court of Appeals. In keeping with the anti-family trend the Court reversed the Court Order and ordered it back to the Saginaw Probate Court for a determination favored by the Department of Health and Human Services. But courageous Norm Harrison does not give up easily. He appealed the Court of Appeals order to the Michigan Supreme Court. Everybody thought the Supreme Court would quickly reject his appeal and agree with the Court of Appeals. It did not. He appealed in June and the Court has decided it wants to look at the matter further. It is still pending before the Michigan Supreme Court.
Last year the Michigan legislature enacted the new power of attorney act. Over the year and still developing the Act is taking effect. That is both Good News and Bad News. The good news is that given the trouble that all clients have had from time to time is that a power of attorney is not recognized, for example by a bank or a healthcare provider, just when needed. They now have the legislature’s blessing that they are indeed “legal documents” that are legally enforceable. The Bad News comes with the Good in that once front-line employees are trained, too often their managers get an understanding that old ones aren’t good anymore and “we only recognize new ones” that have the statutory format. The Act is found at MCL 556.201. That is not true. power of attorney documents that were in effect before the Uniform Power of Attorney Act are still “legal.” However, if your powers of attorney are more than five years old it is a good idea to see if they still fit your situation and then have them republished. Unless your situation has changed over the years, this should be a simple matter with your attorney.