Bill Tracking feature on WV Legislature site up and running

The West Virginia Legislature's website keeps on improving. Though there have been links to "bill tracking" on the site for quite a while, the function is just recently accessible. See it here.

It's pretty simple to use, you create a username/password combination, log-in, and choose bills you wish to track. You can keep and name different lists of bills you are tracking.

The report you get when you check in on the bills you track is a little bit difficult to understand. You first have to know the vocabulary of bills moving through the legislative process, for example the difference between an enrolled bill and an engrossed bill. There is a "date" field, but it's not obvious to what that refers.

Even though the results report is a little difficult to understand, it is useful for seeing whether action is getting taken on any tracked bill, and can alert users to investigate the specifics of the actions taken on bills that interest them.

Update on Budget Digest

The House and Senate Budget Conferees of the West Virginia Legislature have decided to work on drafting the 2006 Budget Digest in hopes that the West Virginia Supreme Court of Appeals will lift its stay, according to an article in today's Charleston Gazette. On December 1, 2004 the state's high Court issued the stay specifically preventing approval or adoption of a Budget Digest for 2006 by the Legislature.

The pending lawsuit was filed on behalf of a West Virginian who lost her home to a predatory lender. The suit alleges that the foreclosure resulted from state funds diverted through the Budget Digest which should have gone to the State Ethics Commission for cracking down on predatory lenders.

The Budget Digest is technically a list of recommendations for the spending of state funds. Opponents claim it has the force of more than just suggestion, because state agencies fear fiscal retaliation if they choose not to follow the Digest's recommendations. For more information about the Budget Digest and this lawsuit see the West Virginia Elder Advocacy article about it from Winter 2004.

The Budget Digest traditionally provides some funds for aging programs across the state each year, so the outcome of the lawsuit will have an impact on West Virginia seniors.

Case of the Week: 4/4/05

County: Barbour
Age: 64

Our client is a 64-year-old elderly lady who receives Social Security benefits. She contacted us because she was concerned about an organization being appointed as her representative payee. She contends she is able to manage her finances and if she needs someone to do it for her, she'd like to have someone else appointed. After reviewing her case, I was able to determine that she is still within her time to appeal. I explained when her deadline is to appeal the Social Security Administration's decision, outlined the appeal process for her, forwarded her a copy of a SSA-561 Request for Reconsideration form, and consulted with her regarding possible legal strategies in her appeal.

Terri Schiavo dies 13 days after feeding tube removed

This morning Theresa "Terri" Schiavo died in hospice in Pinellas Park, FL, at age 41. See Bloomberg report.

WV Legislature considering bill to permit physicians to refuse to provide medical treatment in certain cases

The Terri Schiavo case has brought the bioethical considerations of medical decisionmaking for incapacitated people out into public discussion. For this reason, perhaps more than just aging and disability advocates will be interested in SB 399 currently under consideration in the West Virginia Legislature.

SB 399 adds medical futility concepts to West Virginia's Healthcare Decisions Act. See the text of the bill here [Please note that as the bill moves through the legislature and changes are made, this link will not necessarily lead to the most current version of the bill. See the legislature's main page for information on how to get the most current version of a bill.] As is noted at the bottom of the text of this bill, "The purpose of this bill is to provide that a physician, in certain circumstances, may refuse medical treatment where within a degree of medical certainty the treatment would be ineffective."

In addition to amending the language of the current Healthcare Decisions Act language, this bill would add an entirely new section:

§16-30-26. Medically ineffective treatment.
(a) Once the attending physician has determined that a person's expressed directive or health care decision made by a person's appropriate decisionmaker requests treatment that is medically ineffective or that is contrary to accepted health care guidelines, the attending physician, other health care provider, or health care facility may decline to comply with the person's expressed directive or health care decision made by a person's appropriate decisionmaker: Provided, That a second licensed physician who has examined the person concurs with the determination of the attending physician and documents this finding in the person's medical record.
(b) An attending physician, other health care provider, or health care facility that declines to comply with a person's expressed directive or health care decision pursuant to subsection (a) shall:

(1) Promptly so inform the person, if possible, and the appropriate decisionmaker, explain other options for treatment of the person's condition and record an entry in the person's medical record indicating the basis for the determination that the requested medical treatment will be medically ineffective or health care contrary to accepted guidelines and their unwillingness to comply. If transfer of the person to another attending physician is desired, the person or the person's appropriate decisionmaker shall have responsibility for arranging the transfer of the person to another health care provider;
(2) Provide continuing care, including continuing life- prolonging intervention, to the person until a transfer can be effected, if desired and feasible, except as provided in subsection (c) of this section; and
(3) Cooperate with and not impede the transfer of the person to another health care provider and health care facility identified by the person, or the person's appropriate decisionmaker; a transfer under these circumstances shall not constitute abandonment.
(c) If the person or the person's appropriate decisionmaker requests a transfer pursuant to subsection (b) of this section, but after a period of seven days from the date of the health care provider's entry in the person's medical record described in subdivision (1), subsection (b) of this section no health care provider and health care facility can be found who is willing to comply with the request for medically ineffective treatment or treatment contrary to accepted health care guidelines, then the health care provider and health care facility shall no longer be obligated to provide the life-prolonging intervention.
(d) If the attending physician and health care facility decide to withhold or withdraw the requested treatment after a willing health care provider and health care facility has not been found pursuant to subsection (c) of this section, then the attending physician and health care facility shall so inform the person, if possible, and any person then authorized to make health care decisions for the person and withhold or withdraw the treatment following a period of not less than seventy-two hours.
(e) Nothing in this section is intended to interfere with the authority of a person, or the person's appropriate decisionmaker as appropriate, to decline or withdraw consent for any unwanted medical treatment or procedure.

Some advocates are concerned that "degree of medical certainty" can never be defined clearly enough to avoid significant discretion in the hands of physicians. And significant discretion usually means the least powerful among us get the short end of the stick, which may mean no longer keeping you alive.

Under current West Virginia law, there appears to be no requirement that physicians provide treatment that they believe to be medically futile. This bill includes affirmative protection from liability to physicians who refuse to provide such treatment.

Proponents of the bill cite, among other things, that the changes would address the most common reason for ethics consultations in West Virginia hospitals, preserves health care provider and health care facility integrity, and reduces medically inappropriate health care costs (see rationale from WVU's Center for Health Ethics and Law).

Current status of the bill: The measure has passed the full Senate and is currently in the House Judiciary committee.

This bill seems to be passing through the legislature largely below the radar of various interested groups. Because all pending legislation is likely to start moving quickly as the regular session nears its end, interested individuals and groups have little time left to have an impact on their legislators.

Aged and Disabled Medicaid Waiver class action settles

Cyrus et al v. Nusbaum, case number 3:04cv00892 in U.S. District Court in Huntington, has settled. The case presented due process challenges to the initial medical eligibility and periodic re-evaluation processes beneficiaries must go through to receive home and community-based care under the waiver. Early in the litigation the court had issued a temporary restraining order requiring the state to reinstate services for beneficiaries who had been terminated following re-evaluations done since November 2003 (when WVMI's contract to complete the PAS 2000 forms became effective).

The settlement provides for several improvements in evaluation, re-evaluation, and notice of denial. Specifically:

• regular annual re-evaluations must include input from the beneficiary's treating physician


• home visits require at least 2 weeks advance notice


• though nurses can still fill out the PAS they cannot make medical diagnoses, diagnostic information must come from a physician


• more complete information must be provided with denials of medical eligibility, including a copy of the PAS and explanation of denial including discussion of the deficits and relevant medical standards


• before final denial can be issued there will be notice of a Potential Denial including the information above and providing a two-week opportunity for the beneficiary to submit supplemental information to be considered

Case of the Week: 3/1/05

County: Mineral
Age: 83

Our client is an 83-year-old lady who is finding it more difficult to live in her current apartment complex. She contacted West Virginia Senior Legal Aid to see what her rights are under her lease and if she could break it without a penalty. I reviewed her lease and contacted management. Although not included in the lease terms, management informed me that it is their policy that when tenants leave due to medical necessity they will be released from the lease without penalty. The reason being is that the management understands that sometimes tenants need to move to apartment complexes more suitable to their needs. My client was prepared to forfeit her security deposit, but is happy that that will no longer be the case as she is moving due to medical necessity.

Case of the Week: 2/21/05

County: Marshall
Age: 91

Our client is a 91 year old man who recently moved to West Virginia from Florida. He had a valid driver’s license from Florida that would expire because he changed his residency. After unsuccessfully attempting to have a new WV License issued, he contacted us. Under the newer rules, applicants are required to prove United States Citizenship via a birth certificate. My client was born in in another state before 1920, and there was no record of my client’s birth. He has a social security number, voter registration, and a valid driver’s license from another state, but that was not enough. After reviewing the CSR, I discovered that the Commission has the discretion to issue licenses even when certain required documentation is not available. After several contacts with the Commissioner, General Counselor, and Manager of Drivers Licensing, the DMV has decided to issue my client a new driver’s license. However, it should be noted that legislation at the federal level, if enacted, will require states to verify all documentation. This will make it more difficult for applicants who fail to provide the required documentation.

Links to info and regs for Medicare Part D and Medicare Advantage Programs

Medicare Modernization Act

Prescription Drug Benefit / Medicare Advantage Programs

General Information

· Press Release (PDF, 45 KB)

· Technical Fact Sheets

o Medicare Fact Sheet: Final Rules Implementing the New Medicare Law: A New Prescription Drug Benefit for All Medicare Beneficiaries, Improvements to Medicare Health Plans and Establishing Options for Retirees (PDF, 113 KB)

o Medicare Fact Sheet: PRINCIPAL CHANGES IN NEW MEDICARE FROM PROPOSED RULES TO FINAL RULES

o New Rules Establish New Prescription Drug Benefit, Improvements to Medicare Health Plans and Options for Retirees (PDF, 93 KB)

· Timelines

o General Timeline (PDF, 226 KB)

o Beneficiary Calendar (PDF, 105 KB)

o State Timeline (PDF, 31 KB)

o Plan Timeline (PDF, 47 KB)

o Employer Dates (PDF, 12 KB)

· Index of the Regulation

o Title I - Prescription Drug Benefit (PDF, 66 KB)

o Title II - Medicare Advantage Plans (PDF, 32 KB)

· Technical Issue Papers

· Prescription Drug Plan - Title I (CMS 4068-F)

o Regulation (PDF, 2 MB) (1,162 pages) (Also available from the Federal Register)

o Title I Summary (PDF, 91 KB)

o Basic Summary of What's Changed Since NPRM (PDF, 93 KB)

o Technical Summary of What's Changed Since NPRM (PDF, 75 KB)

o Retiree Options (PDF, 31 KB)

o Implementation Materials, Including Applications and Formulary Guidance

· Medicare Advantage Plans - Title II (CMS 4069-F)

o Regulation (PDF, 1 MB) (445 pages) (Also available from the Federal Register)

o Title II Summary (PDF, 46 KB)

o Basic Summary of What's Changed Since NPRM (PDF, 93 KB)

o Technical Summary of What's Changed Since NPRM (PDF, 206 KB)

o Implementation Materials

Ed Dale
Edward Dale
Senior Legislative Representative
Health and Long-Term Care Team
State Affairs Department
AARP

Changes in Leadership

Clarice Hausch has been named Executive Director of the West Virginia Advocates, our state's protection and advocacy organization for people with disabilities. Paul Nusbaum has resigned his position as Secretary of the state Department of Health and Human Resources.

At the national level, Senator Gordon Smith (R-OR) has been appointed to chair the Senate Special Committee on Aging.

Case of the Week: 12/20/04

County: Jackson
Age: 72

Our client is a 72-year-old lady who purchased a vehicle that was recently repossessed. She simply could not keep up with the payments. She was not disputing the debt; however, given her limited income, she was concerned about her rights. Our client rents an apartment and her income is derived from Social Security and a federal pension. When she contacted us, the bank had threatened to take legal action to collect on the debt. I explained that she is probably judgment proof and there are a number of exemptions under state law that she can use to preserve her personal belongings. I also explained that the exemptions are not automatic and she will have to take certain steps to claim the exemptions. I informed her that the clerk of the court will provide her with an Exemption Form upon request. She will need to file the original with the court and provide copies for her creditors.

Case of the Week: 12/13/04

County: Jefferson
Age: 65

This 65-year-old lady contacted us after she learned from her bank that her CD had a hold on it. Apparently, her son was delinquent on child support payments and the state was trying to find any source of money to attach. When I spoke with her, she said that her son was listed as a secondary person on the title; however, she was sure that when she put her son's name on the CD it was POD. After some investigation, we learned that the bank had made an error. Our client has indeed structured the CD to be POD to her son; however, the bank worded the title wrong. After reviewing some documents my client forwarded to me, it appeared as though the bank needed to amend its answer to the attachment. My client immediately contacted her bank and now informs me that the issue has been resolved and the bank has corrected the title. Her CD is safe.

Olmstead's plaintiff dies

The "E.W." of the landmark disability civil rights case L.C. & E.W. v. Olmstead died Sunday, December 5 at age 53. Elaine Beverly Wilson fought for her independence through periods of homelessness and 36 mental institution stays. Advocates for her at Atlanta Legal Aid Society say that her life took an amazingly positive turn after she received support and independence in the Olmstead settlement.

The Olmstead decision challenges federal, state, and local governments to develop more opportunities for individuals with disabilities through accessible systems of cost-effective community-based services. The Olmstead decision interpreted Title II of the Americans with Disabilities Act (ADA) and its implementing regulation, requiring states to administer their services, programs, and activities "in the most integrated setting appropriate to the needs of qualified individuals with disabilities." The ADA and the Olmstead decision apply to all qualified individuals with disabilities regardless of age.

Case of the Week: 11/22/2004

County: Mon
Age: 81

Our client is an 81-year-old woman who derives her income entirely from Social Security. She is on a fixed budget and tries hard to make ends meet. Over the summer she had encountered some trouble meeting all her expenses. One expense she was worried about was her pharmacy bill. She sent a letter explaining her situation and asking that the pharmacy be patient. She would make the payment when she could. She heard nothing, until a collection agency sent her a bill, to be paid in full, for $200. She was worried that she was about to be sued. Although she was fully aware of her responsibility to pay the bill, she was unable to pay the entire amount. I contacted the pharmacy on her behalf, explained her position, and asked that we work out an arrangement for the client to make payments. The pharmacy, after considering my client's position, accepted a payment arrangement of $10, $30, to $50 per month until the bill is paid in full. They made the arrangements through the collection agency. My client is happy that she is able to avoid a bad credit report and possible litigation.

Federal Budget for Aging FY05

According to the National Association of State Units on Aging (NASUA) , both House and Senate have passed omnibus spending bills covering all the remaining federal budgets for FY2005. The final conference report includes a cut of .8% for all non-defense non-security spending, so OAA funding will be subject to that reduction. After the cut $1,393,396,928 will be allocated for OAA, a small increase over last year's appropriation of $1,373,917,000.

Case of the Week: 11/15/04

County: Monongalia
Age: 79

Our client was approached earlier this year by the adverse party requesting that she sell her home. Our client felt pressured by the adverse party to sell her home, even though she never put it on the market. The adverse party had her to sign an Offer to Purchase and accepted $1,000 as earnest money. The next day, after considerable thought, she decided not to sell. Pursuant to the Agreement, my client returned the earnest money and told the adverse party that she no longer wished to sell. Shortly thereafter she received a letter in the mail from the adverse party's attorney stating that she was obligated under the Agreement to sell her home and if she failed to establish a closing date he would sue for specific performance. He kindly enclosed a proposed complaint. After reviewing the complaint, contract in question, and the facts, I surmised that she acted accordingly under the Agreement by returning the earnest money and notifying the adverse party of her intentions not to sell. I drafted a letter to the adverse party's attorney stating the client's defense, noting the specific provisions under the Agreement that applied. Since that time, the attorney has not filed the proposed complaint. My client is relieved that she can keep her home.

Case of the Week: 11/08/04

County: Gilmer
Age: 65

Our client is a 65-year-old lady who has gone through a chapter 13 bankruptcy. Our client faithfully made the required payments to the bankruptcy trustee as ordered by the court. She looked forward to the day that she would make that final payment. When that day came, she proudly wrote "Paid in Full" on her check and thought that she was finally free from the whole ordeal. Four months later, however, she received a notice that she was behind on her payments and that she needed to make 15 more installments. She was surprised, because she knew she had paid all the installments. Moreover, she received a check from one of her creditors for an overpayment. Not knowing what to do she called us. I contacted the bankruptcy court and spoke with their staff attorney. After reviewing her bankruptcy file, and speaking with the trustee, we surmised that only one more $50 payment needed to be made for her case to be closed. I advised the client to send her $50 payment to the trustee with "Paid in Full."

New state ADA office website

Our state ADA coordinator has a new website. It has a notably nice web feature that enables the surfer to choose the size and face of the font for the text on the pages. Substantively, the site has some pretty easily-understood explanations of various aspects of the ADA, and how it can apply. There are also links to several disability-related state laws in WV and other resources for information and adjudication of complaints.

Case of the Week: 11/01/2004

County: Monongalia
Age of client: 88

Our client is an elderly lady on a fixed income. She owns two houses. She has been renting one of the homes to a relative and her boyfriend for $150/mo. She agreed to rent the house during the summer of 2003 and did so to help her relative out. When our client contacted me, the "renters" were eight months behind on the agreed upon rent. On several occasions she contacted the adverse party and requested payment. She also notified the adverse party of her intent to sell the house and requested that they leave. The adverse party never responded to her requests and she felt thoroughly taken advantage of. I sent a letter on our client's behalf asking the adverse party to leave the house by November 1, 2004. If they failed to do so, I would then advise the client to take appropriate legal action. The adverse party responded immediately and have since vacated the house. My client can now proceed with selling the house.

Older Americans Act Reauthorization

The Older Americans Act is up for reauthorization in 2005. The Act is the organic legislation for the aging network in each state, the web of services to seniors that includes the county senior providers, the Area Agencies on Aging, and each state's unit on aging such as the West Virginia Bureau of Senior Services. The last time this important piece of legislation sunsetted it took 5 years to get it reauthorized (completed in 2000). There was a real danger of losing legal as a priority service under the Act last time, so this time we are marshalling our forces early to keep legal services and advocacy a vital part of aging services nationwide.

Last time the Act was reauthorized a new section was created for serving caregivers. Recently at the National Aging and Law Conference in DC there was discussion of what, if any, new things might be created in the reauthorization process. Most of the participating aging and law professionals concluded that the Act will not be high on most Congresspeople's and Senators' agendas because of the dominating issues of war and the economy. However, some surmised that perhaps legislators will create a new area dealing specifically with preparation for the demographic slug of aging Baby Boomers.

The Center for Social Gerontology will continue to keep up-to-date news on the reauthorization process, including a focus on legal services, on their website, as they did during the last reauthorization. Click on the Law and Aging tab at the bottom of their homepage to get to those pages.

One way people can participate in the reauthorization process is to contact their federal legislators. There are a variety of ways to connect with Senators and Congresspeople, and electronic communications are available to anyone with internet access. The Electronic Frontier Foundation's website provides easy access to folks who want to identify their legislators and contact them.