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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.
