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San Antonio Express-News, February 27, 1997

Time to Repeal Medicaid Criminalization Law


© 1989-2004, Paul Premack

Last year, when Congress passed the Health Insurance Portability & Accountability Act, they made it criminal to give away certain assets when applying for Medicaid. Federal law already contained severe penalties for anyone transferring an asset to get nursing home assistance. The new law, which took effect January 1, 1997 is flawed in many ways, and may be unconstitutional.

Many members of Congress are now saying they don't know how that provision got passed. They weren't aware it was tucked into the voluminous provisions of the Health Insurance Portability & Accountability Act. They weren't aware that it was vague, difficult to enforce and attacked some of society's weakest members.

In fact, it has become known as the "send Granny to jail" law.

Twenty Representatives are now co-sponsoring a bill to revoke these criminal sanctions. The White House has announced that it supports the bill (and wants to revoke the criminal sanctions). The administrator of HCFA (the Health Care Finance Administration) has announced that he supports the bill. HCFA is responsible for overseeing the nation's Medicaid nursing home program.

AARP, the Alzheimer's Association, the American Bar Association, the National Senior Citizens Law Center and the State Bars of New York and Ohio are all supporting the bill. They all recommend repeal of the criminal sanctions.

It is time for you to write Washington to let them know your feelings in this matter. Repeal is contained in House Bill 216. I suggest a short statement to the effect that you "support the passage of HB 216, which would revoke criminal sanctions for making gifts." Congress must hear from a large number of constituents to be sure they act properly.

Passage of HB 216 will take the Medicaid system out of the criminal area, and put it back into civil law. As always, it will still be illegal to give away large amounts of money, expecting to get free tax-sponsored nursing home care. However, instead of threatening to "send granny to jail" the law will simply deny benefits to anyone who illegally manipulates the system.

Manipulation of the Medicaid system has always been risky business. Many people wrongly believe they can give away their savings and immediately qualify for Medicaid. That was never the case. Federal law imposes a disqualification period if assets are given away. But with the new law that took effect January 1st, a criminal penalty was added on top of the disqualification period. Most people agree the new law went too far. If you support its repeal, contact Congress now.

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Homestead 65+ Benefits

Disclaimer: This column answers a specific legal question offered by an individual in the South Texas area. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice that meets your individual needs. It may give you a solid basis for discussion with your own attorney. Also, please be aware that laws change. You should consult with your personal attorney before you take any action on this or any legal issue.


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