Elder Law Section Meeting: October 2003 Minutes
ELDER LAW SECTION MEETING
Thursday, October 16, 2003
I. Chuck Connell called the meeting to order at 9:05 a.m.
Introduction of members followed:
R. Eric Solem
Attending by telephone:
Edie Wright, Adams County Adult Services
Debbie Ataya, Adams County – Eligibility Agent
Joe Greeley, Adams County – Eligibility Agent
II. Approval of September Minutes
a. Clean version re: Bill to discuss beneficiary deed
b. Department of Human Services handout re: Medicaid Eligibility
IV. National Medical Directive Day: Report from Melissa Sugar. The program was successful and she has received a lot of positive feedback. Only negative was that there was a very low turnout. Melissa suggests it might be helpful to combine this event with Senior Law Day and she will contact Jean Long at DU College of Law and DRCOG. Melissa Sugar welcomes suggestions and feedback from the Section.
V. Colorado Lawyer: Melissa Sugar asked that members of the Section please consider submitting articles for Colorado Lawyer. An Elder Law article has not been published in the Colorado Lawyer all year. The article can be written jointly or by a sole author. Please contact Melissa Sugar for more information.
VI. Elder Law Handbook: Wayne Stewart asked that everyone take a look at the Elder Law Handbook. If you have suggestions for new sections, or areas that need updated please contact Wayne or Susan Fox Buchanan. If you want to participate in updating this valuable book, please call Wayne or Susan.
VII. PAIR (Protection and Advocacy for Individual Rights) and the HIV Legal Project: Barry Glass from the Legal Center for people with Disabilities updated the Section on recent news from the Legal Center. HIV Legal Center partnering with the Lambda Legal Defense Fund recently won their appeal in a case where Kaiser Permanente denied a kidney transplant to someone because they were HIV positive. Barry encourages members of the Section to call the Legal Center if clients are discriminated against or need help.
VIII. Award: Wayne Steward received a plaque for recognition of serving as the Section Chair from 2001 – 2003. Thank you Wayne!
IX. Legislative Liaison: The Legislative Policy Committee has representatives from each Section and Committee that review bills and report back to the Section. The Elder Law Section needs a representative to receive and review bills and report to the Elder Law Section. Any volunteers for this position should contact Michele at the Bar Association.
X. Committee Reports:
a. Guardianship Standards Committee: Marco Chayet reported to the Section that in the last year the professional fiduciaries in the area have been trying to draft self-created standards. They are currently 70-80% complete and will probably have a draft done by Spring 2004. Carl Glatstein stated that Bradford Publications is working on a volume on guardianship and conservatorships.
b. Upcoming CLE programs: See the flyers in the handouts for the details of upcoming CLE programs.
XI. Transfer of Death Deed, A/K/A Beneficiary Deed: Chuck Connell wants to discuss this proposed legislation to determine what impact it may have on Medicaid planning and Estate Recovery. The language has been amended since the last year. The next step is to meet with the Department of Health Care and Finance to determine their position. Previously the Department wanted a super creditor status to ensure Estate Recovery. David Steinhoff discussed the proposed bill and its history. He stated that the bill would make theses deeds like a transfer on death deed, however the Grantor can easily change them after they are recorded. This is a probate and probate attorney avoidance technique. Sterling Ambler knows all the details. Six to Nine other states have these deeds. Statutory Revisions Committee was working on this bill when a 1 page Arizona reformed bill was introduced to the Colorado Legislature. Therefore the bill got inadvertently fast tracked. Colorado Medicaid came in wanting a lot more language in the bill because it prevents Estate Recovery. They added a lot of verbiage that clouds the title for anyone and non-Medicaid recipients would have to get Medicaid Clarence. Therefore the bill got withdrawn. The bill is back on the table and Medicaid my kill the bill. Since the decedent is the owner of record they can still mortgage the property or revoke the deed. The bill would not damage Medicaid’s right to place lien on property. David Steinhoff thinks the deed is a good idea because it will save money and cut down on probate. This bill was not designed to avoid Medicaid.
XII. Communication with Trust and Estate Section: Chuck Connell suggested that the Elder Law Section increase the communication with the Trust and Estate Section regarding the Beneficiary Deed and other matters. As a Section we need to be more attentive to issues and better communication with other Sections will be helpful. Melissa Sugar stated that since we became a Section we have lost the Committee updates and asked for suggestions for the Section to stay in the loop with the Trust and Estate Section. Paul Mitchell stated that this Section needs to be more involved, however, before we take a position on the Beneficiary Deed we should have a thoughtful review of it first and consider that the Trust and Estate Section has spent 3 years reviewing the deed. We should consider Trust and Estates work first. David Steinhoff suggested that we ask Sterling to address the Section. David Steinhoff will continue to work on the Trust and Estate Beneficiary Deed Committee and report to the Elder Law Section.
XIII. GUEST SPEAKER, ERIC SOLEM – TOPIC ULTC 100 INSTRUMENT AND HOW TO DEFEND A CLIENT THAT HAS BEEN DENIED.
a. This Instrument was designed to eliminate people for budget reasons, not based on eligibility. We need to challenge the way the program is being implemented.
i. What is in the Record to review. By regulation they have to focus on the instrument, however this is based on a limited time. Look for evidence in the file regarding previous evaluations. The new instrument does not use the longitudinal history.
ii. Request all records from the previous evaluations. This is relevant because you have to cross-examine the evaluator.
iii. Argue the record is incomplete and get as much evidence into record as possible.
c. The department’s Responses were revealing and stated as follows:
i. It is a new regulation so the past evaluations have no relevance to the current eligibility.
ii. The past evaluations are not legally significant evidence (even though the ALJ must evaluate all evidence and apply weight because new evaluation may not show full disability.)
iii. The Department followed the new instrument therefore cannot compare to old assessment because it is a different tool.
d. The process is very slow (4-6 months until hearing) and the benefits will continue through the hearing. There is a property interest in the benefits therefore the benefits cannot be taken away without due process of law.
e. Have the evaluator at the hearing. The evaluator is a critical witness. If the evaluator is not present then the case is based on hearsay. Administrative hearing is informal and hearsay is permitted, however, the entire case cannot be based on hearsay. The Department should not be permitted to put evaluation in the record without testimony from evaluator.
f. Get your own witness. A home health evaluator can do an assessment base on several days of observations. Also get the caregiver to provide testimony. Have the client testify. Have rehabilitation providers do an evaluation. Occupational therapists and physical therapists are good sources for evaluation.
g. Attack the training and education of the evaluator. Look at guidelines and ask the evaluator to explain each point. Have them prove a demonstrated functional improvement.
h. At hearing show that the client has not changed functionally or physically. Use the previous assessments for this evidence.
i. The new instrument violates C.R.S. 2 6-4-507(D). The new screening does not comport with the Statute. The Department states that it must only comply with 42 CFR 44.3.100
j. Failure to provide a face-to-face hearing is a violation of due process. Even if the hearing is scheduled as a telephone hearing, take your client to the Judge’s office. Ask for permission to be present in the Judges’ office even if the hearing is by phone. Send a letter stating that the client will appear in the Judge’s office regardless if the Department is participating by telephone. It is very important for the Judge to see your client.
k. Make sure the form is completely filled out. Each section must have been evaluated and recorded.
l. If possible educate your client about the instrument in advance. Tell the client to be honest about their condition even if it is embarrassing. Have the client write out what they can or cannot do. Have a family member present at the evaluation.
m. If possible ask the treating physician to order an OT/PT review prior to the Medicaid re-evaluation. If the OT/PT review is ordered by doctor then Medicaid will pay the cost and the report can be use to defend the denial of benefits.
XIV. The Section Thanked Eric Solem for the presentation and the meeting ended