The Bar Speaks

Dear Editor:

I read with great interest President Copeland’s piece about Missouri’s crisis in public defending and remarked at how little things have changed since I left the Missouri State Public Defender System in 1992. At that time, I ran the 4th largest office in the state and was considered an old-timer having been with the System just short of ten years. Then, as now, our office was plagued with nearly constant turnover as a result of poor pay and harsh working conditions, making it tremendously difficult to deliver adequate representation to our clients.

What held the System together were the efforts of a small but dedicated group of public defenders and administrators who simply would not let the system fail. Sacrificing family, free time, and financial security, these (our) public servants kept at it year after year, working through their weekends and into the wee hours of the night just to make sure that the poor people of our society might not be treated like widgets or second class citizens, and that justice might still be done despite the desperate circumstances of their efforts. They knew that basic human dignity, the kind we want for our own kids and loved ones, is not automatic and that if they didn’t do it, it wouldn’t get done.

I admire the efforts of my many colleagues who have stuck with the task all these years since I’ve been gone. As for me, I went to a different world in Connecticut, where the salaries of public defenders have been equal to those of prosecutors as a matter of law since the Connecticut system was created nearly 30 years ago. The result is no surprise. Connecticut is able to retain experienced lawyers who are able to represent clients with the same skill that is brought to the task by their counterparts in the prosecution. The playing field is equal, which is a pretty important goal if we are to remain confident that the results in our criminal justice system are dictated by what is right rather than by which side has more might.

The differences between the two public defender systems also show up in very practical ways. High turnover in public defenders throws a monkey wrench into the entire system. Judges are placed in a Catch 22. They must either delay trials to allow new lawyers to make adequate preparations, or they can push cases through the system that really aren’t ready to go, a process that pretty well assures that additional litigation will wind up being filed later on should the defendant be convicted. Nobody likes this, including the taxpayers who foot the bill for longer than necessary delays and seemingly endless lawsuits over whether the system is getting things right. The bottom line is that keeping experienced attorneys not only assures better justice but it also keeps courts moving more efficiently, something we can all agree is a very good thing.

I know the solutions aren’t politically easy. Indeed, despite Connecticut’s fair salary structure, it took a lawsuit of several years duration and all the accompanying expense before our legislature finally decided to fund enough positions to keep caseloads manageable. But since that was done, the Connecticut system has been recognized nationally for its excellence and professionalism in making sure that the criminal justice system works.

The truth is, having a good public defender system is something to be proud of, not fought, and I applaud President Copeland and The Missouri Bar for their efforts to “show me” and the rest of the country that we are committed to the task of once and for all assuring that equal justice truly is the law of the land.

James S. McKay, M.S., J.D. is a member of The Missouri Bar and was head of the St. Louis Special Public Defender’s Office of the Missouri State Public Defender System prior to joining the Capital Defense Unit at the Chief Public Defender’s Office in Harford, Connecticut. He is currently a full-time trainer with that office, and visits his relatives and friends in Missouri as often as possible. His views are personal and unsolicited and do not represent the official positions of either the Connecticut or Missouri public defender systems.

Dear Editor:

We were greatly troubled by the article on “The Future of Medicaid Planning” in the March-April 2006 issue. It contains significant errors, misleading statements and outdated information. A practitioner who relies upon it may commit malpractice and cause his or her client to be denied Medicaid benefits.

To be specific:

1. On page 65, Mr. Wilson refers to the transfer penalty period. He uses the actual cost of the applicant’s nursing home care (assuming $3,500 per month is his example) to determine a 12-month penalty period for a $42,000 gift. In fact, the actual cost is irrelevant when computing the penalty. Missouri uses a fixed penalty divisor, determined annually, that represents the average monthly cost of nursing home care on a statewide basis. In 2005 (when the article was evidently written), this divisor was $2,758. For 2006, it is now $2,852. This would result in a 14.73 month penalty period (fractional months are now to be considered, according to new federal legislation not mentioned in the article).

2. Again on page 65, he mentions Senate Bill 539 as it pertains to qualifying annuities. The “actuarially sound” criterion he cites as new, however, has been in effect for years. On the other hand, he overlooks the significant new requirement that such annuities “[p]rovide the state of Missouri secondary or contingent beneficiary status ensuring payment if the individual predeceases the duration of the annuity, in an amount equal to the Medicaid expenditure made by the state on the individual’s behalf”

(§ 208.212.1(3) RSMo Supp. 2005). The remaining tests were already being applied. Furthermore, this new provision has since been trumped by even newer federal legislation, which creates a limited exception in the case of a community spouse or minor or disabled child.

3. On page 66, Mr. Wilson refers to a “Miller’s trust” as a valid Medicaid planning technique. While this is fine for “income cap states,” Missouri is a “209(b) state,” and a Miller trust is inapplicable.

4. Mr. Wilson completely missed the recent, sweeping federal changes of which Medicaid practitioners must be aware. The Deficit Reduction Act of 2005 was under consideration for much of last year, although it was just enacted on February 8, 2006. One of its changes, for instance, invalidated the gifting techniques Mr. Wilson discusses on pages 65-66. Prior to the new act, the transfer penalty started in the month of the gift. Under the new law, it begins to run when the individual would otherwise be eligible for benefits, but for the gift (which will typically mean at the time of application). Hence, the old gifting strategy will no longer work. Furthermore, the DRA changed the look-back period for outright gifts from 36 to 60 months. (For what it’s worth, we note that the DRA is facing a constitutional challenge based on the manner of its enactment.)

5. On page 67, three exceptions to the Medicaid lien are noted for a transfer of the individual’s home. A fourth category, the “caregiver child” exemption, permits a transfer to an adult child who has lived with the individual for at least 2 years prior to his or her move to a skilled nursing facility, while providing care/services to the transferor that permitted him or her to remain at home during that period. (See, 42 U.S.C. § 1396p(c)(2)(B)(iii)).

6. The article does not distinguish between Medical Assistance and Medicaid vendor assistance. The former is the joint federal-state health insurance program for aged and disabled individuals with limited income and assets. The latter is a particular aspect of the Medicaid program that covers services to qualifying nursing home residents. Some eligibility standards and planning strategies for the two programs are common or similar, but others are not. The two programs are distinct, and confusing them might lead one to rely upon the wrong set of rules.

7. The planning differences for single versus married persons was also overlooked. The “Spousal Impoverishment” rules from the 1988 Medicare Catastrophic Coverage Act (42 U.S.C. § 1396(c), as amended by 42 U.S.C. § 1396r-5), are designed to protect the “Community Spouse,” i.e., the spouse not entering a nursing facility, from becoming destitute in order to qualify the Institutionalized Spouse for vendor Medicaid benefits. There is a minimum monthly income allowance for the CS ($1,604 in 2006), which may be increased up to $2,378 upon a showing of additional need. The CS is also allocated one-half (but at least $19,908 and not more than $99,540) of the couple’s assets (for 2006), known as the CSRA (“Community Spouse Resource Allowance”).

Finally, we wish to note that the desire to pass along an inheritance, mentioned by Mr. Wilson three times, and exclusively, as the reason for Medicaid planning, is but one reason for it. Married people want to ensure the at-home spouse’s continued financial viability. Providing for adult, disabled children is another concern. And as for the alternative of long-term care insurance, its high cost, exclusions, and sometimes dubious security in years past often made this option unappealing, if not unavailable.

While Mr. Wilson is to be commended for his industry in writing his article, it demonstrates the difference between “book learning” and the knowledge gained through experience. There is a valuable lesson here. We respectfully urge that, in the future, whenever the Bar Journal is presented with an article not written by a practitioner, it should be thoroughly reviewed by one before publication.

Sincerely,

James R. Stein
Debra K. Schuster