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By John M. Bigler The Kennedy/Kassebaum Act due to go into effect January 1, 1997, has had an alarming effect on the elderly community. The new law states that a transfer of assets in order to qualify for Medicaid which results in a period of ineligibility for such assistance, may be considered a criminal act.
The National Academy of Elder Law Attorneys, The New York State Bar Association as well as other organizations are helping the elderly community in trying to understand this new legislation which is poorly written and terribly unclear. Although certain transfers are labeled as "criminal" there are no criminal penalties.
In some instances the new Act has not added any changes. For example, when applying for Medicaid through spousal refusal, a transfer from spouse to the other is exempt because it does not result in a period of ineligibility. This is also true of community Medicaid, which is Medicaid outside the nursing home. The new law is also inapplicable in this instance because there are no penalties resulting from a transfer. Therefore in a time where everything seems glum there are alternatives. Some of us believe that the law itself may not endanger our clients unless they "knowingly and willfully make or cause to make any false statements or representation..." as stated in the Act. Since it has always been a crime to willfully withhold or falsify information from Medicaid, what's changed? As a rule, elder law attorneys have always supplied Medicaid with complete and accurate information. Therefore, the new law doesn't imply anything that hasn't already been in effect. What it has managed to do is raise much fear in the minds of concerned seniors. The middle class elderly community deserves better treatment from the government than to be labeled as criminals for simply engaging in preventative financial planning. Hopefully, the new law will not be in effect for long. Already pressure is beginning to mount on Congress both from advocacy groups as well as some Congressmen themselves. Congressman Hoke, a Republican from Ohio, has already submitted legislation to repeal the criminal penalties. Rep. Hoke states that the law is "wrong; it serves no purpose other than to intimidate, confuse , and unjustly punish seniors and make it impossible for them to protect themselves..." I urge all readers to write to their representatives in order to support the repeal of Section 217. Reprinted with permission of the Suffolk Times © 1999 [ Contact Us ] [ Guestbook ] [ Email ]  The Law Offices of John M. Bigler, Attorney At Law 1421 Wantagh Avenue, Wantagh, New York 11793-2206 1-888-ELDER-LAW · 516-409-6565 · Fax: 516-409-6522 E-Mail: info@biglerlaw.com · Web Site: www.biglerlaw.com |
The Act will have its gravest effects on the middle class elderly who cannot afford the steep nursing home fees to begin with. Why? Because if people with significant assets were to apply, the applications would be made more than three years after the transfer and would not result in any period of ineligibility. Those of less significant means will be held liable because they will not be allowed to apply for Medicaid within three years of making a transfer.
For example, it's unknown whether a transfer within the look-back period for which the period of ineligibility has expired would be prohibited; and if it is prohibited, whether or not a criminal penalty is attached to the transfer. Secondly, does a transfer made at a time where there was no intent to apply for Medicaid result in a criminal penalty sometime in the future when Medicaid is applied for? Efforts are also being made to repeal this law which NAELA refers to as "terribly unfair."