Old and In The Way

How slow turnings of tiny bureaucratic gears grind up real Texans

Pate entered a nursing home, Pasadena Care Center, last week. But Texas won't allow her to receive Medicaid help because she makes $1,333.88 per month, a grand total of $31.88 over the income cap of $1,302 per month.

Texas has said no to people like 71-year-old Dorothy Pate for years. It doesn't matter whether itÕs a nickel or a thousand bucks, any amount over the state's income cap of $1,302 per month disqualifies an applicant.

What is particularly cruel in Pate's case is that she never sees the $31.88 that disqualifies her for Medicaid. She receives a Social Security check for $891, after $36.60 is deducted for her Medicare premium. She receives a check from her deceased husband's pension fund for $401.28, after $5 is deducted for withholding tax. Her net income is $1,292.28, which falls below the salary cap.

But it's the gross income Austin looks at, and her gross income is $31.88 over the infernal income cap, even though her net income is $4.72 under the cap. So she misses out on any state or federal assistance to pay for nursing-home care, an expense that easily costs $2,000 per month, not counting prescription drugs.

Pate receives enough income to exceed the cap, but falls far short of earning enough to pay the going private rate at a nursing home.

Other states, including California and New York -- but not Texas -- use a "spend down" approach, assisting with nursing-home payments to varying amounts depending on each citizen's monthly income. But Texas is one of 13 states that have rigid income caps -- applicants who are over the cap don't qualify, end of story.

For Pate, Parkinson's disease has limited the choices for her and her family. The speech problems and physical trembling common to the disease began about a year ago, and from there it has been downhill. Her 52-year-old daughter, Sandra, has severe rheumatoid arthritis and has to walk with a cane. Sandra's husband, 58-year-old Tom Farris, has heart problems and has had bypass surgery. The Pasadena couple both qualify for disabled status for their license plates. They are limited in how much they can help Pate, both physically and financially.

Pate can walk to the bathroom and back, but any greater distance requires a wheelchair. She is mentally aware but often unable to communicate by speaking. When her son-in-law kiddingly said to her "she doesn't look bad for 96," Pate turned to him, smiled and managed to reply, "Silly boy." Sandra says that she understands many of the phrases her mother tries to say, but that it's doubtful a stranger would.

Pate has a healthy appetite, but since she recently fell on the way to the bathroom, she needs regular assistance. She has trouble eating with a knife and fork. She can't use a telephone. With the disabilities her daughter and her son-in-law have, a nursing home was the reasonable route.

Sandra says simply, "I have a handicap and she needs to be taken care of," and adds that it was not an easy choice. More bad news came when she found out she couldn't qualify for Medicaid because of her surplus $31.88.

The Farrises couldn't wait, though, so they placed Pate in a nursing home last week. They say they have enough money for two months or so, but after that it will be a scramble.

A glimmer of good news surfaced when Sandra and Tom were told to talk to Piyi Mayo, a Baytown lawyer who specializes in legal matters related to the elderly -- a new legal field called "elder law." Mayo said there might be a way around the income cap.

"So we called him," Tom Farris said. "And he said, "You're in luck -- something wonderful has just happened.'"

3. Same song, same verse
That "something wonderful" has proven less than wonderful, as a legal attempt to escape the income cap has been lost in the midst of congressional intent, federal bureaucratic inertia and Austin indecision.

Back in August, Congress passed the Omnibus Budget Reconciliation Act. Some of that bill tightened the screws on Medicaid qualification, attempting to save dollars on the federal-state program, but one section seemed to provide an escape from the income cap.

That section, titled "Exempt Trust," seemed to set up an apparatus whereby the elderly could funnel pensions, Social Security and other income into an exempt trust and then qualify for Medicaid assistance for nursing-home care. Upon the death of the individual, the state would receive all amounts remaining in the trust up to an amount equal to the total medical assistance the state had paid for the individual.

The move seemed to be patterned after a Colorado law, which in turn was based on Colorado's Miller v. Ibarra state court decision, which allowed such trusts for elderly persons under guardianship care. The exempt trust mentioned in the federal legislation seemed designed to retrieve those unfortunates who had fallen through the cracks in the 13 states with income caps.

Mayo, the Baytown lawyer known for his work in elder law, thought the same thing. He even drafted a prototype exempt trust proposal and sent it to the Department of Human Services in Austin. Help seemed to be on the way.

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