We hope you and your families are safe and well! We would like to welcome our new lobbyist team David Stricklin, Susanne Hack and Norma Fuentes to Illinois NAELA.
Here are five pieces of legislation, among the hundreds that we have examined that the legislative subcommittee of Illinois NAELA are tracking closely and have in some instances even suggested input with the bill sponsors.
Notwithstanding our update to you of this pending legislation, please be aware the legislature has cancelled the next two weeks of session and no legislative activity is scheduled at present. However, when the General Assembly reconvenes, it is our understanding that only the most pressing issues will be considered.
Funerals: House Bill 5158- The Legislative Committee has been working behind the scenes for a several years on this issue. This bill provides that DHS exclude from consideration when determining a person's eligibility for aid, a prepaid guaranteed price funeral or burial contract funded by an irrevocable assignment of a person's life insurance policy to a trust. It also states that the trust/ insurance company must acknowledge the irrevocable assignment of benefits under the insurance policy within 30 days after the insurance company receives irrevocable assignment; it also provides that an applicant with a life insurance policy may still be able to irrevocably assign funeral goods and services or purchase a prepaid burial contract after applying for Medicaid until a final determination of eligibility has been made by HFS.
Illinois Trust Code: Senate Bill 221- this is a trailer bill that will clean up some irregularities that are members of found with various items such as the acknowledgment in the new ITC pertaining to as the creation of special needs trusts through the court system in addition to first and third parties, and several other issues. The legislative committee has been attending meetings regarding the trailer bill.
Electronic Notary: Senate Bill 3639- Illinois Legislative Committee has been closely working with this task force for over a year. As you all know, Temporary Executive Order #14 has addressed this issue, but permanent legislation is still pending. Prior to the proposed executive order there was discussion in our committee that contained provisions for electronic notarization, the committee has raised several concerns and continues to monitor closely.
Attorney Malpractice: Senate Bill 3351 which amends the Code of Civil Procedure and provides that an attorney malpractice action in which the injury did not occur until the death of the person for whom the professional services were rendered (quite often the case for estate planning and Elder law attorneys) may not be commenced in any event more than six years after the date the professional services were performed.
Mandated Reporter: Senate Bill 3852- This amends the Adult Protective Services Act and expands the definition of mandated reporter to include a person who performs the duties of a banker, broker, investor, investment advisor, attorney, financial consultant or financial advisor, broker – dealer, or administrator, regulator, or supervisor of any of the foregoing. Illinois NAELA can support this legislation IF the mandatory reporting requirement pertaining to attorneys is deleted from this legislation. Requiring attorneys to be mandatory reporters flies in the face of our ethical rules relating to confidentiality and violates the provisions under attorney-client privilege.
In addition, these legislative initiatives, we have become aware of 1115 and 1135 waivers issued to the state of Illinois by CMS. More to come on these waivers in a separate email.
1. The new buzz about long-term care insurance and various federal and state initiatives. It is estimated that the number of Americans turning 65 years of age or older will double to 98,000,000 by 2050. The statistics indicate more than half of adults 65 and older will require long term care assistance at some point in their lives. The average duration of long-term care is 2 to 2.5 years. Only 10% - 16%of Americans have long-term care insurance. Presently, Medicaid covers approximately 60% of long-term care costs of nursing home residents.
At the federal level, US representative Frank Colón, from New Jersey released a proposal last May to create a Medicare long-term care benefit plan. The proposal would purportedly establish a public benefit within Medicare that is not dependent on income or assets. Illinois NAELA will continue to monitor this proposal.
At the state level, the State of Washington signed into law in May 2019, a new .58% payroll tax to fund a benefit of $36,500 for individuals to pay for home healthcare as well as some other services such as despite care for family members.
The State of Minnesota is considering allowing individuals to convert their life insurance plans to long-term care insurance.
An initiative in the State of Maine to provide free long-term care to residents funded by a 3.8% income tax on residents making more than $108,400 per year was rejected last year.
Illinois is also studying long-term care proposals. Illinois lawmakers have commissioned a study to make a determination as to how many seniors are likely to need long-term care and the tax implications of a state-run long-term care program.
New York lawmakers have debated a graduated income tax to pay for comprehensive long-term care for its citizens. In 2017, Hawaii initiated a program that is publicly funded and provides up to $210 a week for services when family caregivers work outside of the home for at least 30 hours a week.
2. The Illinois Elder Abuse Task Force. Illinois NAELA member and past chapter president Amy Delaney recently provided public testimony on November 15, 2019 at the elder abuse task force meeting in Chicago, Illinois in conjunction with the Illinois Department on Aging. Amy communicated to the task force that Illinois NAELA would be happy to coordinate efforts to carry out the mutual mission of both the Illinois Department on Aging and Illinois NAELA. We thank Amy for taking the time to provide testimony in representing our members and the clients we serve.
Illinois NAELA has been busy. With feedback from many members, we collected numerous specific examples that demonstrate the concerns that we have about the manner in which Medicaid applications have been processed. “Illinois NAELA Addresses Serious Concerns Regarding Longstanding DHS and HFS Medicaid Application Filings” is a document that summarizes the three key areas of administrative failings and offers potential solutions. Those issues are: (1) Notices of Decisions by the Department are Lacking Procedurally and Substantively; (2) Applicants are Terminated from Benefits without Notice/Due Process; and (3) Communication is Non-Existent. Last week, Illinois NAELA representatives had a productive meeting in Chicago with a dozen representatives of the Department of Health and Family Services (HFS) and the Department of Human Services (DHS) to discuss these issues and offered specific case examples demonstrating the real concerns that our members have, the actual danger to Illinois Medicaid applicants, and potential solutions to these important issues. We were encouraged by the seriousness with which HFS and DHS approached our meeting and are looking forward to a continuing dialogue on these and other critical issues.
Dear Illinois NAELA Members!
It has been a busy and productive Spring Session for Illinois NAELA in Springfield! Tony Abboud has been working tirelessly to advocate on behalf of Illinois NAELA and successfully killed many bills we opposed and advanced many bills we supported.
Below is a summary of some of the more interesting bills that we tracked over the session.
HB 1471 repeals the Trusts and Trustees Act and creates the Illinois Trust Code effective January 1, 2020. This bill has passed both houses and is on the Governor’s desk for signature. More to come on this important issue! Illinois NAELA member Amy Delaney did an excellent job reviewing the bill and multiple amendments over that last two legislative sessions. Amy made sure special needs trusts were included in the new Trust Code. Click here to view the bill http://ilga.gov/legislation/101/HB/10100HB1471lv.htm
SB 1321 – This a huge Medicaid bill that touches on issues such as paystub information to verify eligibility for medical assistance; other acceptable information to verify continued eligibility for medical assistance; a review of the Medicaid redetermination process in order to identify changes that can increase the use of ex parte redetermination processing; reporting requirements; audits for the State's Integrated Eligibility System and provisional eligibility for Medicaid long-term care services. Click here to view the bill http://ilga.gov/legislation/101/SB/10100SB1321lv.htm
SB1387 – ABLE Accounts – This bill allows a guardian without a court order may open or transfer funds to an ABLE Account. Illinois NAELA member Leonard Berg continues to stay involved in legislation involving Illinois ABLE accounts by reviewing all proposed legislation and often working with the Office of Illinois Treasurer to draft language improving the legislation for persons with special needs. Click here to view the bill http://ilga.gov/legislation/101/SB/10100SB1387enr.htm
The Illinois NAELA Legislative Committee has been hard at work reviewing and tracking hundreds of bills during the 2019 Spring Session of the Illinois General Assembly. Below are a few items of particular interest.
Grace B. Hou has been appointed as the new Secretary Designate of the Illinois Department of Human Serviceshttp://www.dhs.state.il.us/page.aspx?item=31249
BILLS OF INTEREST
ABLE Accounts – HB 2837 & SB 1387
This bill makes technical amendments to the State Treasurer Act and it amends the Probate Act. This bill will make it easier for the establishment of ABLE accounts by allowing the guardian of the person for a minor child or the guardian of the person of an adult with disabilities (if there is no guardian of the estate) to not only create an ABLE account, but to also have the authority to transfer funds to an ABLE account.
Advance Directives Registry – SB 182
Illinois NAELA is working with the bill sponsor and other key parties regarding this bill. There are two main parts to this bill. First, it provides for the Illinois Department of Public Health to do a feasibility study regarding the creation of an Illinois registry of advance directives and POLST forms. The second part of the bill provides for the creation of advance directives in an electronic format. Recent amendments have been made to add a national bar association with an Illinois chapter that concentrates on elder law and disability law to be on the registry’s task force, therefore, we hope to have Illinois NAELA appointed in that role.
GAL Fees – HB 2816
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.