The Task Force is a significant help to our practices as elder law attorneys, and without it, many of the programs and laws benefiting our clients and loved ones would be in jeopardy. As part of its mission to keep you, a Task Force contributor informed, here is a current update:
ELS Legislative Committee:
Chair: Debra Slater
Vice-Chairs: Travis Finchum and Grady Williams.
While it may be two months before Florida House and Senate members receive committee assignments, bills were already filed for the next legislative session. There are currently no bills pending on matters affecting our practices.
The Task Force is currently examining the proposed federal Better Care Better Jobs Act which combines increased federal funding with requirements for greater access to home and community-based services (HCBS). This Act is a well-considered positive step toward ending Medicaid institutional bias and would correct many HCBS issues our clients currently face. Under the Act, “access” is broadly defined as enhancing transparency, eliminating or reducing long waiting lists, competitive pay for direct care workers, and expanding eligibility, coverage, and support.
While the Act is not mandatory for all HCBS Medicaid programs, states that submit a comprehensive HCBS improvement plan can receive a 10% to 12% bump in FMAP (Federal Medical Assistance Percentage) for up to 10 years. (In Florida, that would mean that the federal government would pay 77% to 79% of Medicaid costs rather than the current 67%.) This financial support requires continuing compliance with reporting and maintenance of effort criteria. The Act also provides states with funding for direct reimbursement of administrative expenses to achieve some of these goals.
States spending more than 50% of their LTSS dollars on HCBS at the time of their improvement plan must maintain it. If a state spends less than 50% of its long-term services and supports dollars (LTSS) dollars on HCBS at the time of its improvement plan, the state must increase its HCBS spending to at least 50%. For example, Florida spent less than 40 % of total Medicaid LTSS expenditures on HCBS in both fiscal years.
Florida has rejected Medicaid expansion in years past despite offers of additional federal funding, including Money Follows the Person and the Medicaid expansion. However, in July, Florida submitted an application to CMS seeking more than $1 billion in extra Medicaid funding to improve HCBS for the elderly and disabled. This funding was made available through the American Rescue Plan Act and provided a 10% increase in federal matching funds for HCBS from 4/1/21 through 3/31/22. States must use increased funds to supplement services, not supplant state HCBS spending.
The Task Force is examining which modifications would be most helpful to our clients AND most likely to entice current State leadership. Briefly, the suggested priorities to enhance Florida HCBS include:
- increasing wages for direct care workers;
- decreasing waiting lists;
- decreasing barriers to housing in homes and assisted living facilities; and
- providing accountability of HCBS programs, including implementing a state ombudsman program for HCBS.
The Act also would require participating states to:
- cover personal care services through Medicaid, not just Medicaid Waiver populations;
- expand access to behavioral health services as an HCBS service;
- adopt, expand eligibility for, or improve coverage provided under a Medicaid buy-in program (now only offered to young children in Florida);
- increase self-directed Waiver programs and support, like the Participant Directed Option for the Long-Term Care Waiver; and
- meet benchmarks for quality assurance and access.
NAELA/AFELA: NAELA is seeking AFELA input on the Better Care Better Jobs Legislation. Nancy Wright is serving as AFELA’s point person for this project.
Is Your Client Too Old to Use a Pooled Trust?
ELS Medicaid/Government Benefits Committee:
Chair: Heidi Brown.
Twyla Sketchley received feedback from a number of stakeholders, including from Richard Labelle, CEO of Family Network on Disabilities, that ACHA is leaning toward another workshop based on input and comments at the last workshop. But, for now, applicants are not being denied Medicaid if they contributed to a pooled trust when 65+ years of age.
ELS Guardianship Committee:
Chair: Twyla Sketchley.
Florida Guardianship Improvement Task Force
The California conservatorship of Brittney Spears continues to garner national attention, and the Task Force is monitoring legislative responses at the federal and state level. For example, on June 30, 2021, the Florida Court Clerks & Comptrollers (FCCC) announced the formation of the Guardianship Improvement Task Force. The group’s goal is to examine the status of current guardianships in Florida and make legislative recommendations leading up to the 2022 Legislative Session. Shannon Miller received and accepted an invitation to be a part of this workgroup. This is separate from the RPPTL Section’s 745 guardianship re-write committee, which is monitored by guardianship committee member, Michelle Kenney.
Coming to a Screen Near You!
Finishing touches are being added to a video that summarizes the guardianship process in Florida. The goal is to dispel myths about the guardianship process and help educate the public about the positive aspects of guardianship that members may post on their websites.
The guardianship committee is working on “advice/guidance” to provide to ELS membership when faced with outside groups who lack standing yet attempt to insert themselves into guardianship cases. For example, multiple Florida elder law attorneys have experienced this issue with members of the Center for Estate Administration Reform (CEAR).
Sam Boone is requesting you contact him if you know of any instance where an attorney of record is denied access to an open probate case. He is collecting this information after reports that attorneys of record in two Florida counties were denied electronic access to their own cases.
Contributions to The Florida Joint Public Policy Task Force are used to pay the costs of public records requests, filing fees, a government relations professional who lobbies the legislature and administrative agencies on issues like those outlined above, a public relations professional who works to educate the public on the importance of elder law attorneys and these issues, and a legislative consultant that monitors and analyzes legislation of importance to elder law attorneys and Florida’s elderly and citizens with disabilities. The rest of The Task Force accomplishments are provided by volunteers who not only contribute financially, but also provide time, expertise, and office resources.
The Florida Joint Public Policy Task Force for the Elderly and Disabled is a combined effort of the Academy of Florida Elder Law Attorneys and the Florida Bar’s Elder Law Section.