Ebenezer Scrooge lives on ... | Estate Planning and Elder Law Attorney | Dent Coulson Elder Law

Ebenezer Scrooge lives on … in the form of the Illinois Department of Healthcare and Family Services, Office of the Inspector General

I had planned to write a sweet Holiday newsletter, around the message of making sure that you make this Christmas or Hanukkah season special for any elders in your family, realizing that each Holiday season may turn out to be the last one you are able to share with them. Unfortunately, my experience from Friday afternoon is too deeply ingrained in my consciousness for me to not talk about it.

I attended an administrative hearing Friday afternoon, appealing from a decision imposing a “penalty period” (a delay in eligibility during which time my client, who is a nursing home resident and would otherwise be eligible to have Medicaid help pay for the cost of the care she needs, will instead be required to pay the full cost of her care. The penalty was assessed relative to certain transactions which the Illinois Department of Healthcare and Family Services (HFS), upon the recommendation of the Office of the Inspector General (OIG, its audit branch), decided involved gift transfers of assets that needed to be penalized.

I was very disappointed, to begin with, that we even needed to have the hearing. Back on November 4 – a month and a half earlier – we had sent OIG documents providing reasonable explanations for what was done, and that they were not gifts. We followed up several times, asking OIG to take a look at what we sent, believing that if they would do so, that would address their concerns. But, instead, they chose to ignore us. No return call, no reply e-mail, no common courtesy. They stonewalled us, I believe because they didn’t care what sort of explanation we had to offer. So, we proceeded to a hearing – at considerable taxpayer expense, by the way.

Another disappointment, although not a surprise since it is par for the course, was that I had to endure a wait of around an hour and 45 minutes before I was finally called in for the hearing. It doesn’t really matter for the hearing officer or the attorney for OIG if they run way beyond schedule. Neither is required to appear in person at the local Medicaid office for the hearing. Each sits in his or her office and participates by telephone. It is only the applicant and the applicant’s legal representative who are required to appear in person. We must sit in a waiting room in which cell phones must be turned off. Thus, the attorney just basically sits there, for a long time, at the client’s considerable expense, waiting for a hearing that, based on personal experience, never starts on time or anywhere close to it.

The first issue involved money spent for purchasing items for my elderly client’s use as a nursing home resident. By way of background, once a nursing home resident is approved for Medicaid in Illinois, he or she is expected to somehow live on $30.00 per month. That’s supposed to somehow be enough for getting your hair done, and paying for things like toiletries and personal care items, clothes and shoes, vitamins and non-prescription medications, and candy and snacks.

It’s already a shame that the Illinois legislature has not chosen to raise that limit even once in the 50 years since the Medicaid program was enacted into law in 1965. Money just doesn’t go as far today as it used to 50 years ago, back when a candy bar cost a nickel and a loaf of bread cost a dime.

And so, as always, we had recommended to the client’s family that, shortly prior to application, they use part of the nursing home resident’s limited remaining money to buy up a supply of things she would need and use over time as a nursing home resident. They did. They bought things in bulk for her, at Sam’s Club to save some money. They bought her enough vitamins and supplements, enough deodorant and hair and personal care items, enough of her favorite snack foods, to last her a couple of years, along with a few items of clothing.

Frankly, I didn’t expect OIG would have any problem with that. But Ebenezer Scrooge wasn’t having it. OIG’s lawyer argued that the purchases amounted to a “money dump,” that we couldn’t prove that all of the items purchased were for the client’s benefit or that she would live long enough to use them all. Ignoring the $30.00 per month part, he argued that she could just go out and replenish her supplies every month or two. That sort of conduct can’t be condoned, he argued. People can’t be allowed to get away with it.

The other issue involved some payments the elderly client made to her daughter, at $2,000 per month, to care for her so she could stay at home, where she wanted to stay and the family wanted to help enable her to stay, for as long as possible. For a while, her daughter had not been charging her anything, but then they went to an attorney in March 2009, and the lawyer told them it would be entirely reasonable for the daughter to charge the mother $2,000 per month for serving as her full-time caregiver. By the way, that’s much less than a home care agency would have charged. The lawyer would draw up a written contract to memorialize things.

And so, starting in March, mother started paying daughter $2,000 per month, to the extent she could until she ran short of funds, and daughter didn’t want to upset her by making her cash in her investments. But the lawyer was slow in getting the contract prepared, and so it wasn’t signed until October 2009. When the mother cashed in investments in 2013, she paid her daughter the rest of what she owed her — $8,800.00.

At the hearing, we explained that the daughter really had done all of the caregiving work, that it was to be pursuant to the written contract, and the only problem was that it had taken the lawyer a good while to prepare it so they could sign it. There was nothing substantively wrong. It wasn’t a gift; it was a payment for services, money well-earned.

But, again, Ebenezer Scrooge wouldn’t have it. OIG’s lawyer argued that the payment must be treated as a gift, because it wasn’t made at the same time as when the services were provided, and anyway, the mother couldn’t pay the daughter for March through mid-October 2009, because the contract hadn’t been signed yet.

If I were writing about an isolated incident, I wouldn’t be writing this newsletter. Unfortunately, that’s not the case. This was just “typical OIG” for about the past two years. They find or, when necessary they seem to just make up, ways to deny Medicaid applications or impose penalty periods delaying eligibility, causing seniors the terrible choice between either accepting the resulting hardship or spending a bunch of money on legal fees to protect their rights.

Incidentally, we end up winning the great majority of these appeals – eventually. But HFS/OIG has a plan to address that. As of now, the rules mandate that an administrative appeal hearing be held before an “impartial hearing officer.” Incredibly, they have proposed a change in the administrative rules to remove the word “impartial” from that phrase. Right now, Illinois elder law attorneys and other advocates for the elderly and disabled are engaged in a desperate effort to try to stop them from ramrodding that and other rules that are just as unfair, just as Unamerican.

They have managed to change the Medicaid nursing home application process from the neutral administrative process it is intended to be, into something resembling the Spanish Inquisition, in which anyone who applies for benefits, and the attorneys whose calling it is to help seniors and their families, like crooks and liars. And that’s not just my experience; it’s shared by elder law attorneys across the State of Illinois.

And so I have a Christmas wish, and I would appreciate it if any Illinois citizen reading this would help me to fulfill it. My wish is that future Illinois seniors who have already suffered the misfortune of needing nursing home care will no longer be subjected to this awful treatment, and that they (and, yes, their attorneys) will be treated with a measure of respect, courtesy, compassion and basic human decency.

So how can you help me fulfill this wish? Please contact your Illinois legislators – your State Senator and your State Representative – and tell them that they need to investigate and put a stop to OIG’s practices. On behalf of Illinois seniors – the great majority of whom have contributed so much to our society and have always been good citizens and taxpayers – I thank you sincerely.

For more, visit this series on Medicaid Look-Back and Transfer Penalties:

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