By Tony Abboud, Strategic Government Solutions Inc.
NAELA had another successful legislative session, tracking hundreds of bills affecting our practices and clients, passing important solutions and preventing bad laws from being enacted. Here are some highlights in this first of our two-part post-session update.
ABLE Accounts Enhanced & Protected! Illinois NAELA played a significant role in drafting the Illinois ABLE Act. This year, NAELA worked with Illinois State Treasurer Michael Frerichs to both enhance and protect assets in ABLE accounts. Thanks to Sen. Scott Bennett (D-Champaign) and Rep. Kelly Burke (D-Oak Lawn) for sponsoring the bills which have now become law as Public Act 100-0713 that clarifies Illinois law to expressly permit the irrevocable assignment of additional resources into ABLE accounts and discretionary trusts including, without limitation, interests in real or personal property, judgment, settlement, annuity, maintenance, minor child support, and support for non-minor children. In addition, the law protects private assets that have been deposited into ABLE accounts by prohibiting state agencies from making a claim on these assets upon the death of a designated beneficiary.
New Tool for Securing Financial Records for Medicaid Applications.
Once again this year, the nursing home association sought to push a bill that would have allowed nursing homes to secure 5 years of financial records for long term care applications. Once again, NAELA objected to the nursing homes unfettered access to an applicant’s financial information. NAELA and the various financial institution interest groups worked cooperatively to create a solution that establishes a mechanism by which the applicant’s financial institution can provide financial records directly to the Department for purposes of expediting long term care applications. The new law includes a Consent Form that an applicant may present to his/her financial institution authorizing them to deliver to the Illinois Department of Human Services and Illinois Department of Health and Family Services financial records needed for evaluating Medicaid and long term care Medicaid applications. The new law does not in any way impair the rights or ability of an applicant to have their attorney seek the same records on their behalf. Thanks to Sen. John Mulroe (D-Chicago) and Rep. Lou Lang (D-Skokie) for sponsoring and passing SB2385, which was signed into law by Governor Rauner as Public Act 100-0664
Bona Fide Purchasers of Real Estate Exempt from Presumptively Void Transfers.
For the past two years, NAELA has defended the important Presumptively Void Transfers law that we passed in 2016 to protect seniors from unscrupulous third-party caregivers. This year, NAELA was able to work with stakeholders -- Illinois Land Title Insurers Association, the Illinois Bankers Association, Illinois State Bar Association, and the Illinois Credit Union League – who were interested in protecting bona fide purchasers of real estate to insure they are insulated from disputes under the Presumptively Void Transfers Article of the Probate Act (755 ILCS 5/4a-5, et seq.). This year’s effort brought to conclusion a heavily negotiated amendment to our law which remains strong. Thanks to Rep. Emanuel Chris Welch (D-Westchester) and Sen. Don Harmon (D-Oak Park) for sponsoring HB 5047 and carrying this bill which passed out of both the House and Senate unanimously. The bill is currently on the Governor’s desk awaiting signature.
New Act: the Kasem/Baksys Visitation Law.
This bill would create the “Frail Individual Family Visitation Protection Act”, aka the Kasem/Baksys Visitation Law. It defines a "frail individual" and permits family members of a frail individual to petition the court for visitation if a caregiver is unreasonably preventing visitation. NAELA originally opposed the bill as it lacked many important limiting provisions. Through the legislative process, the bill was amended to exclude guardianships and POAs and to include other procedural protections to ensure that the “frail individual’s” rights and interests were protected. Moreover, we sought to ensure that a proper legal process was articulated to address any such actions. HB4039 passed unanimously out of the House and Senate and is now on Governor Rauner’s desk awaiting signature. Thank you to Rep. Sara Wojiecki-Jimenez (D-Springfield) and Sen. Melinda Bush (D-Grayslake) for their hard work on this bill.
An Advanced Directives Registry for Illinois?
It’s not soup yet. SB2296 was introduced by Sen. Julie Morrison (D-Deerfield) to create in Illinois an electronic advanced directives registry within the Illinois Department of Public Health into which residents could submit specified advance directive forms. The registry would have been made available only to hospitals licensed under the Hospital Licensing Act or organized under the University of Illinois Hospital Act. The bill was drafted by the Health Law Section Council of the ISBA. While NAELA agreed with the concept of a registry, NAELA identified and raised a significant number of concerns and problems about the bill’s lack of definition, guidelines and penalties, among others, and raised significant questions on how an individual’s true advanced directives would be honored and protected. NAELA participated in stakeholder meetings with the drafters of the bill and other stakeholders including the Illinois Hospital Association, Illinois State Medical Society, Illinois Department of Public Health and the Illinois Palliative Care Society. Based on the concerns raised by NAELA, which were agreed to by the other stakeholders who also raised additional concerns, Sen Morrison agreed to continued dialogue on what an advanced directives registry should look like in Illinois.
Legislative Session Nearing Spring Break. The first active month of the Illinois legislature saw thousands of bills filed. Of those, NAELA is tracking more than 600 bills which either amend the various acts about which our membership is concerned or would create new acts impacting our areas of practice. Since there is no shortage of bills, the Legislative Committee has been meeting on a weekly basis to review bills, identify positions and priorities, and discuss strategies. In addition to the weekly meetings, Legislative Committee members have been participating in stakeholder calls with the various interested groups and have spent considerable time commenting on proposed legislation or drafting amendments that would improve the bills proposed. After this week, the General Assembly takes a two week break and will resume activities after the upcoming primary election.
Enhancing and Protecting ABLE Accounts. Illinois NAELA played a significant role in drafting the Illinois ABLE Act. This year, NAELA is working with Illinois State Treasurer Michael Frerichs to both enhance and protect assets in ABLE accounts. Thanks to Sen. Scott Bennett (D-Champaign) and Rep. Kelly Burke (D-Oak Lawn) for sponsoring SB2660 and HB4754 which will clarify Illinois law to expressly permit the irrevocable assignment of additional resources into ABLE accounts and discretionary trusts. In addition, the bill would protect private assets that have been deposited into ABLE accounts by prohibiting state agencies from making a claim on these assets upon the death of a designated beneficiary.
Presumptively Void Transfers Update. As we last reported, NAELA has been working with stakeholders interested in protecting bona fide purchases of real estate insulated from disputes under the Presumptively Void Transfers Article of the Probate Act (755 ILCS 5/4a-5, et seq.). NAELA has worked collaboratively with the Illinois Land Title Insurers Association, the Illinois Bankers Association, Illinois State Bar Association, and the Illinois Credit Union League, amongst numerous other stakeholders representing the interests of the senior and aging communities. That work has resulted in HB5047 being introduced by Rep. Emanuel Chris Welch (D-Westchester). Rep. Welch was the champion that led the effort to protect the most vulnerable in our society from being taken advantage of by unscrupulous caregivers. The negotiated bill protects the important caregiver legislation that we passed with Rep. Welch in 2016.
Casey Kasem Visitation Law. This bill would create the Frail Individual Family Visitation Protection Act, aka the Casey Kasem Visitation Law. It would define a "frail individual" and permit family members of a frail individual to petition the court for visitation. NAELA opposed the original version of the bill as it lacked important limiting provisions. Amendments are being drafted that would exclude guardianships and POAs. The bill passed out of the House Judiciary Committee with the understanding that an amended bill addressing the problems would go back to the committee for consideration.
Advanced Directives Registry. SB2296 was introduced by Sen. Julie Morrison (D-Deerfield) to create in Illinois an electronic advanced directives registry within the Illinois Department of Public Health into which residents could submit specified advance directive forms. The registry would have been made available only to hospitals licensed under the Hospital Licensing Act or organized under the University of Illinois Hospital Act. The bill was drafted by the Health Law Section Council of the ISBA. While NAELA agreed with the concept of a registry, NAELA identified and raised a number of concerns about the bill’s lack of definitions, guidelines and penalties, among others. NAELA participated in stakeholder meetings with ISBA, the Illinois Hospital Association, Illinois State Medical Society, Illinois Department of Public Health and the Illinois Palliative Care Society. Based on the concerns raised by NAELA and others, dialogue will continue on what an advanced directives registry should look like in Illinois.
For more information on these bills and many others that NAELA’s Legislative Committee is tracking, click here and you can review the full bill report.
By Tony Abboud, Strategic Government
Two years ago, NAELA was instrumental in the drafting and passage of the Presumptively Void Transfers law, Article IVA of the Probate Act, that limits the ability of third-party, non-familial caregivers to use their power of position and leverage to alter a will, trust or other testamentary transfer. The law simply says that, if and only when a testamentary instrument is challenged in probate court, then a rebuttable presumption will arise that a testamentary transfer in excess of $20,000 to a third-party, non-familial caregiver is void and the caregiver is required to overcome the presumption through clear standards set forth in the law. Certain opponents of the law are circulating misinformation claiming that third-party, non-familial caregivers are somehow being wronged, when elder lawyers and elder advocates know that caregiver abuse is rampant and that those non-familial caregivers who have modified wills, estate plans, and trusts then get to dissipate the assets of the deceased's estate in fighting back against the family challenging their testamentary "gifts." NAELA has agreed to appropriate changes to the law that are consistent with its purpose, such as protecting transactions to bona fide purchasers for value who purchase from the caregiver without knowledge. But, on behalf of our membership, senior citizens and their families, NAELA will aggressively defend the law to prevent the inclusion of any proposed exceptions that would undermine the entire act or give power back to unscrupulous non-family caregivers. Keep an eye out for more information and how you can help protect the law from being watered-down.
On October 25, 2017, the Illinois Senate passed HB 1424 by 36-15-6 vote. HB 1424, if enacted, would have preserved the DON score at 29 for those seeking institutional, home, and community-based LTC services until the State receives federal approval and implements an updated assessment tool for the Community Care Program. The bill also would have eliminated the delay in CCP services while applicant eligibility is determined, and required the administration to promulgate rules but prohibited the use of emergency or peremptory rule making authority regarding the updated assessment tool. Moreover, the bill provided that even after the Administration's updated assessment tool was in place, any benefit recipient would have been entitled to a 12-month holdover and would have received a mandatory redetermination at 11 months. Finally, the bill would have capped the loss of eligible recipients, under the new assessment tool, at a maximum of 1%, and it would have barred the involuntary discharge of residents due to the updated DON assessment. The bill was sent to Governor Rauner's desk on November 21, 2017. Then, on December 29, 2017, the Governor vetoed HB1424 offering the following veto message
You will recall that we reported that the Illinois Department of Health and Family Services and the Office of the Inspector General removed the attorney trigger from their Medicaid applications. What this means is that the fact that an applicant consults with an attorney no longer acts as a trigger sending the application to the OIG for a "fraud" investigation. Late last year, the head of the Illinois Department of Human Services, Secretary James Dimas, spoke at NAELA's UnProgram and one of the issues he was asked about was the attorney trigger. Hence, we were pleased that in late December 2017, DHS and HFS published their new procedures for person moving into nursing homes and supportive living programs who also seek long term services and supports. Read the new policy here and note that the Form HFS 3654 Revised no longer asks whether the applicant has met with a lawyer.
After the December 2017 veto session and holiday break, the Illinois House and Senate will kick off their 2018 legislative sessions on January 30. As this is the carry-over year of the two-year 100thGeneral Assembly, new bill filings should begin in earnest within the coming weeks. Also, given that we are in an election year, it will be interesting to see how much legislative activity takes place before the March primaries. If history is our guide, there will be some but not a lot of bill movement until after the primary election on March 20, 2018.