| Bar Bulletin |
May,
2003 |
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Monthly Focus Articles |
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Elder Law Legislative Update
By
Morris Klein
The unusual weather
in early April, when people in Annapolis experienced a 70-degree day
followed by snowfall later in the same week, reflected an equally unusual
legislative session. Governor Ehrlich, the first Republican governor in a
generation, faced a Democrat-majority General Assembly, adding a partisan
edge to the proceedings. Partisanship aside, everyone expressed concern
over unprecedented budget shortfalls. Most bills accompanied with a fiscal
note showing a loss of state revenues were doomed.
The weather became
more reliably spring-like after the legislature adjourned, but as of late
April, as this article is being written, it is still unclear what bills
that passed the General Assembly will become law and what state programs
will lose some or all of their funding. The governor’s threatened veto of
tax increases passed by the legislature is keeping many state-funded
programs in limbo. Also, more than the usual amount of ink may flow from
the veto pen this spring.
One program of
particular interest to elder lawyers is the Medicaid waiver for older
adults. The waiver allows persons with a medical need for nursing home
care to qualify for Medicaid benefits while remaining in less
institutional settings, such as a personal residence or assisted living.
Since its inception three years ago, the program has expanded by 1,000
slots each year, and the Department of Health and Mental Hygiene (DHMH)
currently is authorized to fund the program for up to about 3,135 slots.
Subject to budget limitations, the program may continue to expand up to
1,000 slots each year until it reaches its permitted maximum of 7,500
slots. This is a popular program, and some advocates are concerned that
without continued increases the program will become oversubscribed and
have waiting lists. Governor Ehrlich specifically mentioned this program
in his State of the State speech in January and hoped to fund the
additional slots, provided that the other kind of slots received the
General Assembly’s blessing. Although the legislature did not approve the
gambling slots, the waiver program presently remains in the budget with
funding for an additional 500 waiver slots. Although this is the first
year the full 1,000 slots have not been added, it is hoped the 500
additional slots will avoid the need for waiting lists.
Another bill
affecting the waiver program is HB 478. This bill prohibits DHMH from
denying an individual access to waiver services if the individual is
already receiving Medicaid-funded nursing home care for at least 30
consecutive days immediately prior to applying for the waiver program. The
health department must also report to the legislature on its efforts to
promote waiver services.
As to nursing
homes, HB 149 requires DHMH to develop guidelines for nursing homes that
elect to use electronic monitoring with specific consent and to file a
report on the guidelines to the General Assembly by the end of the year.
HB 1009 clarifies that Medicaid will continue to pay for up to 18 days per
calendar year for the use of a nursing home bed if the patient is away
other than for a hospital stay (the reserved bed period for hospital stays
remains at 15 days). The bill also eliminates the nursing service portion
of the state’s payment to the nursing home during the reserved bed period.
In HB 824, the
legislature gives DHMH the discretion to accept all or a portion of
third-party accreditation reports as a substitute for state inspections to
relicense assisted living facilities. The state remains responsible for
performing the inspections for the initial licensure of a facility. The
American Bar Association’s Commission on Law and Aging has expressed
concerns about such “third-party deeming,” but advocates for the
legislation have argued the state lacks the resources to conduct
relicensure inspections as frequently as desired and that any review is
better than no review at all.
SB 360 allows
certain retirement communities to convert to a continuing care retirement
community, and HB 552 adds protections of the deposits of facility
residents if the community becomes insolvent.
The General
Assembly also approved several amendments to probate procedures. HB
240/SB312 adjusts the rules for a surviving spouse who elects to take the
statutory share of the decedent’s probated estate rather than take under
the will. The bill defines the surviving spouse’s elected share as the net
estate after deductions for the family allowance, funerals and claims
against the estate. The bill also expands the time to make the election
from seven months to the later of nine months after death or six months
after the appointment of a personal representative under a will. The use
of the streamlined modified estate process is expanded under HB 284/SB307
to include legatees who are the personal representative and all entities
exempt from the inheritance tax, as well as trustees of a testamentary
trust if they are the personal representative, surviving spouse and
children. HB 99/SB310 extends the deadline for the final report and
distribution in a modified estate for up to 90 days under certain
circumstances. HB 239/SB368 clarifies that an appeal of the removal of a
personal representative does not stay the appointment of a successor.
Finally, it is
important to remember this is the first year of the four-year legislative
cycle. Bills that do not pass the first time are sometimes reintroduced
and ultimately approved in subsequent sessions. Some of the bills rejected
this year that could reappear next year include: HB 241, dealing with
creditors’ protections for trusts; SB 77, requiring the health department
to notify family members of nursing home patients if a patient is
adversely affected by actions for which the facility was cited by the
department; SB 624, addressing the criteria for the medical level of care
standards for Medicaid eligibility; and SB 469, attempting to exclude
certain small assisted living facilities from regulation.
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