Florida Medicaid Blog
Subscribe to Feed
Alzheimer's Victim May Have Had Capacity to
Victim May Have Had Capacity to Execute DeedsLast Updated: 8/28/2005
Reversing lower courts, the Alabama Supreme Court rules that an elderly
man's diagnosis of Alzheimer's disease and severe short-term memory loss
do not necessarily mean he lacked the capacity to execute a deed.
Ex parte Chris Langley Timber & Management, Inc. (Ala., No. 1031478,
July 22, 2005.
Two days after being released from a
long-term-care hospital to recover from heart surgery, Clayton M.
Reynolds was evaluated by a clinical psychologist, who concluded that
Mr. Reynolds was suffering from Alzheimer's disease. The psychologist
administered a memory test that revealed that Mr. Reynolds could not
retain new information for 30 minutes. Some months later, Mr. Reynolds
contacted Chris Langley Timber & Management, Inc., about harvesting
timber from land he owned. Mr. Reynolds provided Mr. Langley with copies
a power of attorney held by one of his daughters and the psychologist's
report, but assured Mr. Langley that he owned the timber and that he
wanted to sell it.
After Mr. Reynolds executed the timber
deeds, his two daughters sought to have them set aside on the ground
that he lacked capacity. Mr. Reynolds died while the case was pending
and a special administrator for his estate was substituted. Finding that
Mr. Reynolds was mentally incompetent when he executed the deeds, the
trial court entered a summary judgment in favor of the estate and set
aside the deeds. The Court of Civil Appeals affirmed and Langley
The Supreme Court of Alabama reverses and remands. "It is
not clear how severe short-term memory loss, which is all that [the
psychologist's] testimony appears to establish Reynolds suffered from,"
the court writes, "demonstrates that Reynolds was unable to 'understand
in a reasonable manner the nature and effect of' executing the timber
deeds." The court rules that the estate failed to prove that a diagnosis
of Alzheimer's disease equals permanent insanity, and that therefore the
appellate court erred in shifting to the timber company the burden of
proof of Mr. Reynolds's capacity to execute the deeds.
New Study Questions Benefit of Estate
Recovery Programs Last
8/29/2005 Topic: Medicaid
In 1993, Congress passed a law
requiring that states try to recover from the estates of deceased
Medicaid recipients whatever benefits they paid for the recipient's
care. In recent years, states have been stepping up their estate
recovery efforts in an attempt to bolster distressed Medicaid budgets.
But a new study reveals that estate recovery programs have so far
collected at most only pennies on the Medicaid long-term care dollar and
in most cases, less than a penny. The nationwide study of state Medicaid
estate recovery practices by the American Bar Associations Commission on
Law and Aging questions whether, given the small amount of money
recouped, estate recovery is worth the human cost.
conducted in 2004 and supported by AARP, found that estate recovery
revenues as a percentage of state Medicaid long-term care expenses
ranged from .01 percent (Louisiana) to 2.2 percent (Oregon), with only
eight states above 1 percent. The average amount of Medicaid costs that
states recovered per estate in 2003 was $8,116 nationwide and ranged
from a low of $93 per estate in Louisiana to $25,139 in Hawaii.
In addition, investigators found that a number of states appear to be
violating federal Medicaid law in trying to raise even these modest
The authors note that their survey focused on the
dollars and cents impact of estate recovery, and did not seek to answer
the human questions that arise in connection with estate recovery, such
as whether it keeps people from applying for Medicaid benefits when they
need them or impoverishes the spouses of nursing home residents. These,
the authors maintain, are questions that must be answered.
"It is still an open question whether the costs justify the financial
benefit to the states," they conclude.
To download the full
report, "Medicaid Estate Recovery: A 2004 Survey of State Programs and
Practices," or read a summary of it,
The study was featured in a front-page
article on estate recovery in the June 24 edition of The Wall Street
Journal. To read the article reprinted in the Pittsburgh Post-Gazette,
"Some Heirs Find A Costly Surprise: Medicaid Bill,"
Bitamin B Rich Folates Significantly Reduce
Alzheimer's Disease Risk
Rich Folates Significantly Reduce Alzheimers Disease Risk
antioxidants, like vitamin E, and other nutrients for health of aging
brain in study of senior citizens
Aug. 12, 2005- A study of
senior citizens says those who eat the daily recommended allowance of
folates B vitamin nutrients found in oranges, legumes, leafy green
vegetables and folic acid supplements significantly reduce their risk of
developing Alzheimers disease.
The study, a long-term look at
diet and brain aging by the National Institute on Aging, also found that
folates appear to have more impact on reducing Alzheimer's risk than
vitamin E, a noted antioxidant, and other nutrients considered for their
effect as a brain-aging deterrent.
Ultimately, 57 of the original 579 participants in the study developed
Alzheimer's disease. But the researchers found that those with higher
intake of folates, vitamin E and vitamin B6 shared lower comparative
rates of the disease. And when the three vitamins were analyzed
together, only folates were associated with a significantly decreased
In turn, no association was found between vitamin C,
carotenoids (such as beta-carotene) or vitamin B-12 intake and decreased
Maria Corrada and Dr. Claudia Kawas of UC
Irvine's Institute for Brain Aging and Dementia led the effort, which
analyzed the diets of non-demented men and women age 60 and older.
"Although folates appear to be more beneficial than other nutrients, the
primary message should be that overall healthy diets seem to have an
impact on limiting Alzheimer's disease risk," said Corrada, who like
Kawas started with the study while at Johns Hopkins University in
They compared the food nutrient and supplement
intake of those who later developed Alzheimer's disease to the intake of
those who did not develop the disease. It is the largest study to date
to report on the association between folate intake and Alzheimer's risk
and to analyze antioxidants and B vitamins simultaneously.
Results appear in the inaugural issue of the quarterly peer-reviewed
research journal, Alzheimer's & Dementia: The Journal of the Alzheimer's
The researchers used data from the Baltimore
Longitudinal Study of Aging to identify the relationship between dietary
factors and Alzheimer's disease risk. Between 1984 and 1991, study
volunteers provided detailed dietary diaries, which included supplement
intake and calorie amounts, for a typical seven-day period.
"The participants who had intakes at or above the 400-microgram
recommended dietary allowance of folates had a 55-percent reduction in
risk of developing Alzheimer's," said Corrada, an assistant professor of
neurology. "But most people who reached that level did so by taking
folic acid supplements, which suggests that many people do not get the
recommended amounts of folates in their diets."
already been proven to reduce birth defects, and research suggests that
they are beneficial to warding off heart disease and strokes.
Although folates are abundant in foods such as liver, kidneys, yeast,
fruits (like bananas and oranges), leafy vegetables, whole-wheat bread,
lima beans, eggs and milk, they are often destroyed by cooking or
processing. Because of their link to reducing birth defects, folates
have been added to grain products sold in the U.S. since 1998. But even
with this supplement, it is thought that many Americans have
Recent research is beginning to show
relationships between folates and brain aging.
Earlier this year,
Dutch scientists showed that adults who took 800 micrograms of folic
acid daily had significant improved memory test scores, giving evidence
that folates can slow cognitive decline.
observational nature of this study, it is still possible that other
unmeasured factors also may be responsible for this reduction in risk,"
said Kawas, the Al and Trish Nichols Chair in Clinical Neuroscience.
"People with a high intake of one nutrient are likely to have a high
intake of several other nutrients and may generally have a healthy
lifestyle. But further research and clinical studies on this subject
will be necessary."
Judith Hallfrisch of the U.S. Department
of Agriculture, Denis Muller with the National Institute on Aging and
Ron Brookmeyer with Johns Hopkins collaborated on the study, which was
originally undertaken at the Gerontology Research Center of the NIA and
the Department of Neurology at Johns Hopkins. Study funding came from
the Extramural Programs of the NIA.
Begun in 1958 by the NIA, the
Baltimore Longitudinal Study of Aging is America's longest-running
scientific study of human aging. BLSA scientists are learning what
happens as people age and how to sort out changes due to aging from
those due to disease or other causes. More than 1,400 men and women are
study volunteers. For more information, see:
Pennsylvania law places new restrictions on the rules governing
qualification for Medicaid-financed long-term care services in the
state. "Act 42," as it is now known, was proposed by Gov. Edward Rendell
as part of his 2005-2006 fiscal year budget was enacted July 7, 2005.
The new law: Imposes fractional penalties for asset transfers. Long-term
care services applicants or recipients will now be ineligible based on
any partial months resulting from transfers, rather than the previous
practice of rounding down to the nearest whole month.
use of the "resource-first" approach in boosting a community spouse's
income. Under the new law the community spouse will be allowed to keep
only enough additional resources to purchase an immediate annuity that
names the state as a beneficiary.
Attempts to deal with Life
Estate with Retained Powers (LERP) arrangements. Under Pennsylvania's
current law, estate recovery is limited to the probate estate of the
deceased recipient of Medical Assistance benefits. The new law allows
the state to require applicants to exercise any powers they retain in
life estate ownership arrangements in order to limit Medicaid costs,
such as exercising a power to revoke a remainder interest and return a
home to the sole ownership of the applicant, where it could later be
subject to estate recovery.
Restricts the use of annuities.
The new law voids restrictions on the marketability of immediate
annuities so that the payment stream can be sold by the owner and thus
converted from income into a lump sum resource available to pay for
care. These marketability rules will not apply to commercial annuities
that meet certain safe harbor provisions, including that the state be
named as the residual beneficiary of any remaining funds.
Requires that Medicaid's spousal resource attribution and impoverishment
rules be applied to Medicaid-funded home care. Previously, the assets of
the community spouse were disregarded in determining qualification for
Medicaid-financed home care.
Places new limits on the
deductibility of unpaid medical expenses. Only medical expenses incurred
on or after the first day of the third month before the month of
application may be deducted from countable income, and the law places a
$10,000 lifetime limit on the deduction of medical expenses not paid by
Medicaid from a recipients income.
Creates new rules for
special needs trusts, including that the state be reimbursed from any
"Act 42 places complicated new restrictions
on eligibility for Medicaid financed long-term care services," says
Williamsport, Pa., Jeffrey Marshall. "It reduces the resources that can
be protected by low-income community spouses, and will make it much more
difficult for married seniors to qualify for Medicaid-funded home care
"The act's changes are complex and ambiguous," Marshall adds. "They will
raise administrative and legal barriers and costs for seniors who are
seeking Medicaid. Some of the new provisions appear to conflict with
Here is a link to the new provisions:
Group Claims Filial Responsibility Laws Will
Save On Medicaid Costs
Filial Responsibility Laws Will Save on Medicaid Costs Last Updated:
A conservative policy group has released an issue
brief proposing that states begin enforcing filial responsibility laws
in order to reduce long-term care costs. Thirty states have filial
responsibility laws that require adult children to care for their
indigent parents. The National Center for Policy Analysis claims that if
these statutes are enforced, adult children would have to reimburse the
state programs that provided care for their indigent parents.
Filial responsibility laws have traditionally not been enforced,
possibly because federal law prohibits state Medicaid programs from
looking at the finances of anyone other than the applicant or the
applicant's spouse. The NCPA, a group whose goal is to develop and
promote private alternatives to government regulation and control, cites
a 1983 report by the Health Care Financing Administration that says
enforcing these statutes would have reduced Medicaid long-term care
spending by $25 million, and argues that today the figure would be much
To read the full brief,
CCRC Provision Prohibiting Medicaid Spend
Down Is Unenforceable
highest court rules that a continuing care retirement community's (CCRC)
requirement that residents not spend down assets to qualify for Medicaid
without the CCRC's prior approval violates state Medicaid law, at least
in cases where residents are admitted directly into the CCRC's nursing
Oak Crest Village, Inc., v. Murphy (Md., No. 27/03, Feb. 9, 2004).
In November 2001, Ruth and Sherwood Murphy moved to Oak Crest Village, a
CCRC. Mrs. Murphy, then 81, moved into an independent living apartment,
while her husband, then 94, was admitted directly into a
Medicaid-certified nursing facility that is part of the CCRC. As a
condition of their acceptance into the CCRC, the Murphys had to sign a
Residence and Care Agreement that included an anti-alienation provision
requiring the Murphys not to sell or transfer, without prior consent of
Oak Crest, any assets if the sale or transfer would result in their net
worth falling below the minimum necessary to become an Oak Crest
Shortly after their move to Oak Crest, Mrs. Murphy used
nearly $300,000 of the couple's assets to purchase annuities payable to
her. Mr. Murphy subsequently applied for and became eligible for
Medicaid benefits. Oak Crest sued the Murphys, alleging a violation of
the anti-alienation provision of its Residence and Care Agreement. Mr.
Murphy moved to dismiss the complaint, asserting that Oak Crest's
agreement violated state and federal statutes precluding a
Medicaid-certified facility from requiring residents to pay the private
pay rate when they are eligible for Medicaid benefits. The circuit court
agreed with Mr. Murphy and held that the agreement's anti-alienation
provision was invalid.
The Court of Appeals of Maryland, the
state's highest court, affirms. The anti-alienation provision, the court
writes, "effectively requires that [Mr. Murphy] continue to pay at the
private pay rate even when he would be or could lawfully become eligible
for Medicaid benefits, contrary to [the relevant state Medicaid
statute], and permits him to be discharged from a Medicaid certified
nursing facility because he is a Medicaid recipient, contrary to [the
relevant state statute]." The court rejects Oak Crest's argument that
the relevant statute applies only to nursing facilities and that Oak
Crest, as a continuing care community, is not a nursing facility.
However, the court holds that the anti-alienation provision is
permissible in a contract for independent or assisted living. The court
does not address whether a resident's move from a CCRC's independent or
assisted living unit to its nursing unit would require temporary
suspension of the anti-alienation provision.
To download the
full text of this decision in PDF format, go to: