FLORIDA: Suit Lashes Out At State Policy - A Sarasota woman says seniors should be able to keep add-on policies when
they enter nursing homes through Medicaid.

By MIKE SAEWITZ  [log in to unmask]

Sunday, November 30

SARASOTA -- When the money ran low and she signed up for Medicaid's Institutional Care Program in June, Helen Shumaker,
86, had to give all but $35 of her monthly Social Security check to a Sarasota nursing home.

The state didn't leave nearly enough to pay the premium for a supplemental insurance program that allowed Shumaker, who
has Parkinson's disease and dementia, to pay expensive deductibles and copayments for doctors she had gotten used to.

Her daughter and guardian, Marilyn Gerkin, was forced to cancel the supplemental insurance and Shumaker had to switch
doctors, a change advocates for the elderly say can be heartbreaking.

Now, Gerkin is the lead plaintiff in a federal lawsuit aimed at making the state leave nursing home residents with
enough money to pay supplemental insurance premiums and other necessary expenses that Shumaker and 16,000 of Florida's
sickest and frailest residents now are forced to pay out of pocket -- or go without.

By leaving the patient more money for these expenses, the state would in essence have to pay more of the patients'
nursing home cost. The state says that could cost $35 million per year.

The lawsuit could make it easier for poor, elderly residents entering nursing homes through Medicaid to hold onto their
doctors, and afford the medical care they need.

"I'm not just doing this for my mom," said Gerkin, a former Sarasota county supervisor of elections. "I tried to look
at the big picture and say, 'Well, it could make a difference for someone else.'"

The state Agency for Health Care Administration admits violating a federal law that requires the state to deduct the
extra insurance premiums and other out-of-pocket medical expenses from a patient's income before calculating how much
of the income should go to a nursing home.

But the agency blames legislators for refusing to allocate the money for the costs.

More than 60 people have challenged the state about its procedure for handling premiums and expenses. And in each case,
they've won in administrative hearings with the state agency. And the state was ordered to leave each person with money
to cover those bills.

In response to the lawsuit, U.S. Sen. Bill Nelson, D-Fla., urged U.S. Health and Human Services Secretary Tommy G.
Thompson to investigate alleged violations of federal law, which could go as far back as 1980.

"People who get injured by this are the most unfortunate people, elderly poor people in need of tremendous medical
services," said Tampa attorney John Yanchunis, who filed the suit earlier this month.

Medicaid problems

Medicaid is a program for the extremely impoverished. But the people most affected by the state's alleged failure to
follow the law are the middle-class elderly used to a high level of care, but forced into nursing homes they can't
afford by debilitating conditions and disease, federal officials and advocates said.

"This is not the typical Medicaid population we're talking about," said Mary Kahn, Medicaid expert for the federal
Centers for Medicare & Medicaid Services, which oversees the state and federally funded programs. "These people have
been carrying health coverage of their own prior to some event that has caused them to be institutionalized."

The seniors are part of Florida Medicaid's Institutional Care Program, a program that splits the cost of a nursing home
between the state and the patient.

Those eligible must earn $1,656 or less per month. Many of the patients likely once had more than that, but saw the
money wash away with rising medical costs.

In Shumaker's case, medical expenses from a broken hip and foot in the past two years put such a heavy financial strain
on her and her family that she could no longer afford to pay nursing home costs on her own.

Yet, even as she entered Medicaid, she wanted to keep her Medigap coverage, insurance sold by private companies to
cover what Medicare doesn't.

She and her daughter, Gerkin, feared that many good, local doctors were not in Medicaid, the program for the poor.

Jane Icely of the Senior Friendship Centers in Sarasota said Shumaker's situation is common, especially in Sarasota,
where many doctors don't accept Medicaid patients.

"Sometimes you cannot find a Medicaid doctor," said Icely, director of healthy aging services for the nonprofit group,
which helps the medically needy. "That's why people don't want to drop their Medicare and their supplement, even when
they're forced into it."

The lawsuit argues that no one should be forced to drop the supplemental insurance and that the state is violating the
federal law that covers the 47,000 seniors in Medicaid's institutional care program.

A large portion of the other expenses is likely dental services not covered by Medicaid, Icely said. The expenses may
include podiatry or special food supplements, she said. And many people having trouble finding a doctor who accepts
Medicaid patients will pay out-of-pocket for a non-Medicaid doctor.

In Shumaker's case, if the state considered the premiums and expenses before determining the nursing home payment, she
could have kept another $220 each month from the Social Security check to pay for Medigap.

Many others in need

Shumaker's predicament is one experienced by many seniors who either drop Medigap or pay what little they have left to
keep it, said Icely, who's seen many such cases in her 18 years at the Senior Friendship Centers.

In one case, an 82-year-old woman Icely cares for was forced by diabetes into a nursing home, and the state directed
all of the woman's $358-per-month Social Security check to the nursing home.

The woman wanted to keep her supplemental insurance for copayments and deductibles.

"When you have a supplement, you very seldom have to pay out of pocket," Icely said. "She had it for years and years."

Like Shumaker, the woman canceled the insurance. Icely paid the premium herself for a few months before the cost became
too much.

"People are generally just forced to drop their supplement," she said.

Kahn, the federal Medicaid expert, said the state may have been violating the law as early as 1980, although some
officials date it to a 1988 amendment to the Social Security Act. The failure to comply appears to be unique in
Florida, she said.

"I'm not aware of this problem existing in other states, though that doesn't mean it's not happening," she said. "This
is the first time (this issue) has crossed my desk."

Gov. Jeb Bush told a WFLA-TV reporter he plans to put enough money in his budget next year to deal with the issue. He
said time will tell if the state violated the law.

"It hasn't been determined by the courts that the practice of the state for the last generation of time, way before I
started as governor, is not the right policy," he said.

The answer's not good enough for many people, including Sen. Nelson, whose letter to Thompson, the secretary of Health
and Human Services, expressed outrage at the situation.

"I believe our seniors and their families shouldn't have to fight tooth and nail to get the benefits they deserve,"
Nelson wrote in a November letter to Thompson.

Tampa attorney Yanchunis and co-counsel Babette Bach of Sarasota will ask a judge next week to order the state to
immediately comply with the federal law. The attorneys are seeking class action status for the lawsuit, and are trying
to find more people who've been unable to pay supplemental insurance premiums or other expenses.

Yanchunis said the suit also seeks financial relief for everyone affected by the state's apparent failure to comply
with the law, though he has no idea the exact number. The situation goes so far back that some people may have died.

The defendants

The suit has two defendants: the Department of Children & Families, which calculates how much a senior entering the
Institutional Care Program owes a nursing home, and the Agency for Health Care Administration, which runs the program.

The Agency for Health Care Administration estimates that about 10 percent, or 4,700, of 47,000 Medicaid seniors paying
to be in nursing homes have supplemental health insurance.

The agency says that 25 percent of Medicaid's nursing home population, or 11,750, have out-of-pocket medical expenses
other than insurance premiums, and the state must leave enough money to cover those, too. But the state can set
reasonable limits on the amount of the expenses.

After losing the first few administrative hearings in 2000, the agency began to request money from the Legislature,
only to be denied three years in a row, said agency spokeswoman Jessica Cary. It will ask for $35 million this year.

"We want to comply with federal law," Cary said. "The Florida Legislature did not allocate funds for the change in
federal policy. We have no authority to allocate funds without legislative action."

Gerkin, who said she has been to every nursing home in Sarasota, wishes her mother had the choice to keep that
insurance.

She insists that her involvement in the lawsuit is more about helping other seniors than helping her mother.

"I just feel really bad when I go into the nursing home, to see how these people have no one to speak out for them,"
she said. "If there's something they're entitled to, they need to be aware of it."

Last modified: November 30. 2003 12:00AM

SOURCE: Sarasota Herald-Tribune, FL
http://tinyurl.com/x6gn

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