RESOLUTION OPPOSING CERTAIN CHANGES TO THE PUBLIC WEFARE CODE REGARDING MEDICAL ASSISTANCE ESTATE RECOVERY LIENS


WHEREAS, the Pennsylvania Department of Public Welfare (“DPW”) currently imposes a claim against the probate assets of decedents who had attained the age of 55 and who had been recipients of medical assistance for certain long-term and nursing home care, subject to Pennsylvania regulations which provide specific hardship exceptions;

WHEREAS, on April 28, 2009, an amendment to the Commonwealth’s Public Welfare Code was introduced in the Pennsylvania General Assembly, which would create a new administrative lien process, expand the scope of DPW medical assistance recovery claims to include non-probate assets, and disallow as a deduction long-term care medical expenses incurred six months or more prior to application;

WHEREAS, Section 9 of H.B. 1351 would amend Section 1412 of the Public Welfare Code to empower DPW to impose administrative liens against “[a]ny other real and personal property and other assets in which the deceased individual had any legal title or interest at the time of death, to the extent of such interest, including such assets conveyed to a survivor, heir, or assign, of the deceased individual through joint tenancy, tenancy by the entireties, tenancy in common, survivorship, life estate, living trust or other arrangement.” (Amendment to Public Welfare Code Section 1412; H.B. 1351, page 36, lines 2 14);

WHEREAS, H.B. 1351, also provides that “[w]hen determining a recipient’s payment toward the cost of long-term care services, long-term care medical expenses incurred six months or more prior to application for medical assistance shall be disallowed as a deduction. . . .” (Amendment to Public Welfare Code Section 441.4; H.B. 1351, page 2, lines 10 13);

WHEREAS, the proposed legislation will create complications for estate administration;

WHEREAS, the proposed legislation also will adversely affect ownership and transfer of both real and personal property, including by subjecting property owned by a decedent as a tenant by the entirety, joint tenant, or life tenant to estate recovery, thereby making it very difficult for a surviving co-tenant or remainderman to obtain title to such property, or to retain such real property as their residence after the decedent’s death;

WHEREAS, the proposed legislation violates a fundamental principle of well-established Pennsylvania law that provides creditor protection to jointly-titled property, particularly property held by spouses as tenants by the entireties, and provides DPW with access to such property without due process;

WHEREAS, the legislation further seeks to impose obligations and administrative penalties that will deter individuals from serving as personal representatives of estates, as trustees, and as legal counsel for these fiduciaries;

WHEREAS, the safety of elderly Pennsylvanians will be compromised if they refrain from seeking needed long-term support services because of fear of such liens against their estates for the cost of their care;

WHEREAS, disallowing a deduction for long-term care medical expenses incurred six or more months prior to application for Medical Assistance will preclude nursing home residents from paying such outstanding nursing home bills, putting them at risk for evictions for non-payment; and

WHEREAS, there should be an opportunity for public hearings on the consequences of such charges prior to the enactment of any expansion of DPW’s rights to claim medical assistance recoveries.

NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association Board of Governors opposes legislation, such as the amendment to Public Welfare Code Sections 1412 and 441.4 as contained in House Bill No. 1351, Printer’s No. 1666, that would create a new administrative lien process, expand the scope of claims by the Pennsylvania Department of Public Welfare for recovery of medical assistance against decedents’ estates to include non-probate assets, and disallow deductions for long-term care medical expenses incurred six or more months prior to application for Medical Assistance.

AND BE IT FURTHER RESOLVED that the Philadelphia Bar Association authorizes the Chancellor or his/her designee to communicate in support of this Resolution to elected officials in Pennsylvania and to take such other action as may be appropriate.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: May 28, 2009