a sea change in medicaid planning - elder law section · deficit reduction act & medicaid...

The Deficit Reduction Act of 2005: a sea change in Medicaid planningBy Geoff Bernhardt, Attorney at Law

On February 8, 2006, President Bushsigned the Deficit Reduction Act of2005 (DRA 2005), which includes the

most significant changes in Medicaid lawsince the Omnibus Budget Reconciliation Actof 1993. Described below are the changesDRA 2005 makes to 42 USC § 1396p and 42USC § 1396r-5.Start of Medicaid penalty period isdelayed

For the elder law attorney, the most sig-nificant change in DRA 2005 is the change inthe start of the ineligibility period triggeredupon a transfer of assets for less than fairmarket value. Prior to DRA 2005, if an appli-cant transferred assets for less than fair mar-ket value, he or she was ineligible for Medic-aid assistance for a period of time, based onthe amount transferred. Transfers by a mar-ried Medicaid applicant’s spouse or agent

have the same effect. The period of ineligibil-ity or “penalty period” is determined bydividing the amount of the uncompensatedtransfer by the monthly average cost of longterm care as determined by state administra-tive rule. The monthly average cost of care iscalled the “divisor.” In Oregon, the currentdivisor is $4,700. Under this calculation, a$47,000 gift created a ten-month period ofineligibility for Medicaid assistance.

Pre-DRA 2005, the Medicaid penalty peri-od started on the first day of the month inwhich the asset was transferred. This gaverise to the “transfer-and-wait” or “half-a-loaf” strategy. Under this strategy, an appli-cant with $100,000 could transfer $50,000 outof his or her name, and retain the remaining$50,000 to pay for care during the penaltyperiod. At the expiration of the penalty peri-od, the applicant could be eligible for Medic-aid long term care assistance, so long asassets in the applicant’s name were withinMedicaid qualifying limits.

DRA 2005 shifts the start of the penaltyperiod from the first day of the month of thetransfer to the later of that date or the dateon which the individual is eligible for med-ical assistance under the state plan andwould otherwise be receiving institutionallevel care based on an approved applicationfor such care but for the application of thepenalty period.

There are two significant components ofthis rule. First, the period of ineligibility doesnot begin until the individual has movedinto “institutional level care,” which isdefined in the statute to include nursinghome and waivered home or community-

In this issue...

DRA and Medicaid planning . . . . . . . . .1Update on Watson case . . . . . . . . . . . . . . .4Client communication & ADA . . . . . . . . .5Excerpts from ADA manual . . . . . . . . . .7Denial of coverage under LTC policy . .10Authority of conservator . . . . . . . . . . . . .13When to retire from driving . . . . . . . . . .16Elder law unCLE . . . . . . . . . . . . . . . . . . .19Resources for attorneys . . . . . . . . . . . . . .20

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Volume 9

Number 2

Spring 2006

Elder Law SectionExecutive Committee

ChairS. Jane PattersonGresham

Chair-electSteven A. HeinrichCorvallis

Past ChairMark M. WilliamsPortland

SecretaryRyan E. GibbSalem

TreasurerKristianne M. CoxPortland

Members

Susan Ford BurnsPortland

Geoffrey BernhardtPortland

Hon Claudia BurtonSalem

Penny L. DavisPortland

Sam Friedenberg Portland

Brian HaggertyNewport

Leslie KayPortland

Stephen R. OwenClackamas

Alexis PackerAshland

Sylvia SycamoreEugene

Brian ThompsonEugene

Gary L. VignaPortland

Spring 2006 Elder Law Section Newsletter

based services. Second, the period of ineligi-bility does not begin until the applicantwould be eligible for Medicaid assistance,meaning until a person has spent down to$2,000. Example: (Pre-DRA 2005 Transfer): A Medic-aid applicant transfers $112,800 to a child onJanuary 1, 2006. She keeps $100,000 in hername. She goes into care April 1, 2006, andbegins spending down her remaining$100,000. Since Oregon's monthly averagecost of long term care is $4,700, under pre-DRA 2005 law, this applicant would be ineli-gible for Medicaid assistance for 24 months,beginning on the date of the transfer. OnJanuary 1, 2008, the Medicaid penalty periodends and is no longer a factor in determiningher eligibility for benefits.Example: (Post-DRA 2005 Transfer): A Med-icaid applicant transfers $112,800 to a childon March 1, 2006 (post-DRA 2005). She goesinto care shortly after that, and by January 1,2008, she has spent her savings down to$2,000. The 24-month penalty period result-ing from the $112,800 transfer does not evenbegin until January 1, 2008, meaning theapplicant will not be eligible for assistanceuntil January 1, 2010.Look-back period increased from36 to 60 months

States are required to determine if a Med-icaid applicant has transferred assets for lessthan fair market value. Prior to DRA 2005,states had to determine if a Medicaid appli-cant transferred assets to an individual inthe 36 months immediately preceding thedate of the Medicaid application. In the caseof a transfer to or from a trust, the “look-back” period was extended to 60 months.DRA 2005 extends the look-back period forall transfers to 60 months. Medicaid applica-tions may become more burdensome, sinceapplicants may have to provide financialdocuments going back 5 years. In addition,applicants may find themselves being penal-ized for transfers made years before longterm care costs became a concern, such asholiday or graduation gifts, or charitable andreligious contributions.

Deficit Reduction Act & Medicaid planning Continued from page 1

No “rounding down” of transfer penalty periods

Pre-DRA 2005, states could “round” penalty periods to the nearestwhole month. For example, in Oregon, a $49,000 transfer, divided bythe $4,700 divisor, creates a 10.42 month period of ineligibility. Pre-DRA 2005 rules allow Oregon to round the penalty period down to aneven ten months. DRA 2005 forbids the practice. Under DRA 2005, theapplicant making a $49,000 transfer would create a ten-month,twelve-day period of ineligibility. The Oregon Medicaid program islikely to have some difficulty adjusting to this change, because Medic-aid payments to HMOs and other capitated care systems are made ona monthly basis.Effective date of new transfer rules

The transfer rules apply to all transfers of assets made on or afterFebruary 8, 2006. However, states have a grace period to enact newlegislation needed to bring their Medicaid rules into compliance withDRA 2005. Hence, there may be a short window of time in whichtransfers of assets after February 8, 2006, will be considered using pre-DRA 2005 state law and administrative rules. At this point, we do notknow whether Oregon will treat all transfers made after February 8,but before the effective date of the proposed Oregon administrativerules (projected to be July 1, 2006) under the old rules, or whether thestate will use the new rules to analyze those transfers if the Medicaidapplication is made on or after July 1, 2006.Hardship waivers

What options are available to an elder who has created a period ofineligibility, yet lacks the resources to pay for his or her care? Onepossibility is to seek a hardship waiver. DRA 2005 requires each stateto have a process for seeking a hardship waiver when a period of inel-igibility would deprive the individual of medical care that wouldendanger the individual’s life or health, or would deprive the individ-ual of food, clothing, shelter, or other necessities of life. States havethe option of paying for care for up to 30 days while the applicationfor a hardship waiver is being considered. Since a care facility maynot transfer an applicant for nonpayment unless alternative careexists, a care facility may apply for a hardship waiver of the transferpenalty on behalf of a resident if the resident consents.Annuities: state must generally be the first remainderbeneficiary

Pre-DRA 2005, many states allowed an applicant to reduce thevalue of his or her countable assets by purchasing an annuity, therebychanging an asset into a stream of income. Prior rules required thatthe annuity be irrevocable and nonassignable. The annuity also had to“actuarially sound,” meaning the annuity had to provide for paymentof all income and principal to the annuitant within the annuitant’sactuarial life expectancy. Annuities that did not comply with theserequirements were treated as a transfer of resources for less than fair-

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Spring 2006Elder Law Section Newsletter

market value, resulting in a period of ineligi-bility for Medicaid.

DRA 2005 still permits this practice, butimposes some additional conditions. First,the state must be named as the first remain-der beneficiary for at least the total amountof Medicaid assistance paid on behalf of theannuitant, unless the annuitant has a spouseliving in the community, a minor child, or adisabled child. In that case, the spouse,minor child, or disabled child may be namedas the first remainder beneficiary, and thestate must be named as the second remain-der beneficiary.

Second, the annuity must provide for pay-ments in equal amounts during the term ofthe annuity, with no deferred or balloon pay-ments.

Rules similar to the DRA 2005 annuityprovisions are found at OAR 461-145-0020,which took effect on January 1, 2006.Income-first rule is mandated forall states

Under the “income-first” rule, the commu-nity spouse may not retain resources inexcess of the community spouse resourceallowance to generate additional income forhis or her monthly maintenance needsallowance until all available income of the illspouse has first been transferred to him orher. Pre-DRA 2005 rules allowed the states todecide for themselves whether to follow theincome-first rule, or to instead allow assets inexcess of the community spouse resourceallowance be transferred to the communityspouse to generate income to meet themonthly maintenance needs allowance. Ore-gon administrative rules required theincome-first rule to be followed even beforeDRA 2005; now it is mandatory for all states.Substantial home equity may dis-qualify an applicant

Pre-DRA 2005, the equity in an applicant’shome was an exempt resource, so long as theapplicant resided in the home or intended toreturn home after receiving care, or theapplicant’s spouse, minor child, blind child,or disabled child resided in the home. DRA

2005 provides that an applicant with homeequity in excess of $500,000 will not be eligi-ble for assistance even if the home wouldotherwise be exempt. States have the optionto increase this threshold to $750,000.Entrance fees to continuing careretirement communities may betreated as available resources

DRA 2005 provides that entrance fees tocontinuing care retirement communitiesshall be considered an available resource ifthe individual has the ability to use theentrance fee to pay for care, or is eligible fora refund upon the individual’s death or ter-mination of the continuing care retirementcommunity contract.Constitutionality of DRA 2005

DRA 2005, as signed by President Bush,contains a flaw that may make it unconstitu-tional. Due to a clerical error, the version ofthe law that passed the House of Representa-tives had a different time period for reim-bursing medical providers for some medicalequipment than the version that passed theSenate. Democrats in the House and Senateunanimously opposed DRA 2005, and thisclerical error could require another vote onthe measure. In addition, elder law attorneyJim Zeigler has filed an action in the US Dis-trict Court for the Southern District of Alaba-ma for a declaratory judgment holding DRA2005 unconstitutional.Conclusion

DRA 2005 represents the most significantchange in Medicaid planning since 1993.Strategies detailed in CLE materials pub-lished over the last 12 years are affected;these materials should not be relied uponunless read in conjunction with DRA 2005.Elder law attorneys should carefully studythe provisions of DRA 2005 before advisingclients on Medicaid and long term careissues. In particular, elder law attorneysshould familiarize themselves with the newrules regarding transfers of assets, asreliance upon the old rules may result inclients being ineligible for needed Medicaidassistance for long periods of time, withoutassets available to pay for care.

Deficit Reduction Act & Medicaid planning Continued from page 2

Geoff Bernhardt isa Portland attor-ney.He serves onthe board of direc-tors of the OregonGerontologicalAssociation, theprogram committeeof the OregonChapter of theNational Multiple SclerosisSociety, and theExecutive Commit-tee of the ElderLaw Section.


The Court of Appeals held the plaintiffs satisfied the requirementsof the Supreme Court’s § 1983 decisions in Blessing v. Freestone and,more recently, in Gonzaga University v. Doe, and therefore have a pri-vate right of action to enforce their right to nursing facility level ofcare or community-based long term care. The court found this claimhad the requisite focus on the rights of the individuals affected by thestate’s cuts. The court found Congress intended that poor, vulnerablepersons who must rely on the Medicaid program for their health careare entitled to their day in court when federally mandated criticalcare under the Medicaid Act is at stake.

The court held the plaintiffs did not have a private right of actionto enforce another provision of the Medicaid Act which requiresstates to use reasonable standards in determining eligibility. This pro-vision, the court found, did not focus on individuals, but on the state,so that enforcement lies with the federal government, not privateindividuals.

The court’s ruling prohibits Oregon and other states in this circuitfrom cutting required Medicaid services because of budget con-straints, and then trying to prevent the very people who are hurt bythe cuts from coming to court for relief.

Ninth Circuit rules in favor of plaintiffsin Medicaid long term care caseBy Steve Skipton, Lane County Law and Advocacy Center

In the case of Watson v. Weeks, the NinthCircuit Court of Appeals reversed a lowerfederal court decision and ruled in favor

of Medicaid recipients whose long term carebenefits were terminated in 2003 because ofstate budget cuts. The court held that theplaintiffs had an enforceable claim under 42USC § 1983 to nursing facility level of care, amandatory service under the Medicaid Act.

Under Oregon’s Medicaid program, longterm care services are provided to those innursing homes, and through a Medicaidwaiver, to those who live in communitybased settings, such as assisted living facili-ties and their own homes.

Legal Aid Services of Oregon, Lane Coun-ty Law and Advocacy Center, the OregonLaw Center, and the National Senior CitizensLaw Center brought the case. An amicusbrief was filed on behalf of the Elder LawSection.

Supplemental Security Eligible individual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $603/monthIncome (SSI) Benefit Standards Eligible couple . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $904/month

Long term care income cap. . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,809/monthCommunity spouse minimum resource standard. . . . . . . . . . . . . . . $19,908Community spouse maximum resource standard . . . . . . . . . . . . . . $99,540Community Spouse Minimum and Maximum

Medicaid (Oregon) Monthly Allowance Standards . . . . . . . . . $1,604/month; $2,488.50/month Excess shelter allowance . . . . . . . . . . . . . . . . . . Amount above $481/monthFood stamp utility allowance usedto figure excess shelter allowance . . . . . . . . . . . . . . . . . . . . . . . . $292/monthPersonal needs allowance in nursing home . . . . . . . . . . . . . . . . . $30/monthPersonal needs allowance in community-based care . . . . . . . . $136/monthRoom & board rate for community-based care facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $468.70/monthOSIP maintenance standard for person receiving in-home services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $604.70Average private pay rate for calculating ineligibility for applications made on or after October 1, 2004 . . . . . . . . . $4,700/month

Medicare Part B premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $88.50/monthPart B deductible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $124/yearPart A hospital deductible per illness spell . . . . . . . . . . . . . . . . . . . . . . . $952Skilled nursing facility co-insurance for days 21-100. . . . . . . . . . . $119/day

Importantelder lawnumbersas of Jan. 1, 2006

Spring 2006Elder Law Section Newsletter

Client communication and the ADA—a case in pointBy Bob Joondeph, Oregon Advocacy Center

In February 2002, Kathleen Rozanski fileda complaint with the US Department ofJustice against attorney Gregg Tirone of

Rochester, New York, who had representedher in her divorce. Ms. Rozanski, who had ahearing disability and used sign languageand lip reading as her principal means ofcommunicating, alleged that Mr. Tirone hadfailed to provide a qualified sign languageinterpreter during several meetings with her.

Ms. Rozanski stated that in the absence ofa qualified sign language interpreter, Mr.Tirone communicated with her by pen andpaper, fax, lip-reading, and on the telephonethrough the National Relay Service. Sheclaimed that these alternatives took longerthan communications by interpreter andresulted in higher legal fees. She alsoclaimed that the lack of an interpreter result-ed in her not understanding all that was con-veyed.

Mr. Tirone responded that he had ade-quately and professionally represented Ms.Rozanski and had effectively communicatedwith her. He also asserted his belief that Ms.Rozanski understood him at all times.

The Department of Justice investigated thecomplaint (DOJ Complaint # 202-53-20) andultimately entered into a settlement agree-ment with Mr. Tirone. (Seewww.ada.gov/tirone.htm) The agreementincluded a rendition of federal law govern-ing the obligations of an attorney to a deafclient, which is summarized below.

What the federal law says

Title III of the ADA and its implementingregulation prohibit discrimination on thebasis of disability by places of public accom-modation. 42 U.S.C. § 12182 ; 28 C.F.R. §36.201.

Section 36.303 (a) of the ADA regulationprovides that a public accommodation:

(S)hall take those steps that may be necessaryto ensure that no individual with a disabilityis excluded, denied services, segregated orotherwise treated differently than other indi-viduals because of the absence of auxiliary

aids and services, unless the public accommo-dation can demonstrate that taking thosesteps would fundamentally alter the nature ofthe goods, services, facilities, privileges,advantages, or accommodations being offeredor would result in an undue burden, i.e., significant difficulty or expense. Attorneys are considered a public accom-

modation and must provide sign languageinterpreters when necessary to provide effec-tive communication, which is the case whenthe client uses sign language as his or herprimary means of communication. The com-mentary to the Title III regulation points out:

It is not difficult to imagine a wide range ofcommunications involving areas such ashealth, legal matters, and finances that wouldbe sufficiently lengthy or complex to requirean interpreter for effective communication.Commentary § 36.303.The public accommodation (in this case,

the lawyer) must:(F)urnish appropriate auxiliary aids and ser-vices where necessary to ensure effective com-munication with individuals with disabilities.§ 36.303(4)(c).

Auxiliary aids and services include but arenot limited to “qualified interpreters.”§36.303(b)(1). A “qualified interpreter” is onewho:

(I)s able to interpret effectively, accuratelyand impartially both receptively and expressively, using any necessary specializedvocabulary. §36.104.When an interpreter is required, the public

accommodation should provide a qualifiedinterpreter, that is, an interpreter who is ableto sign to the individual who is deaf what isbeing said by the hearing person and whocan voice to the hearing person what is beingsigned by the individual who is deaf. Thiscommunication must be conveyed effectively,accurately, and impartially, through the useof any necessary specialized vocabulary.

Signing and interpreting are not the samething. Being able to sign does not mean that

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Bob Joondeph isExecutive Directorof Oregon Advocacy Center, afederally fundednon-profit providerof free legal services for Oregonians withdisabilities.


Client communication and the ADA Continued from page 5

a person can process spoken communicationinto the proper signs, nor does it mean thathe or she possesses the proper skills toobserve someone signing and change thesigned or finger-spelled communication intospoken words. The interpreter must be ableto interpret both receptively and expressively.

Family members, friends, and close asso-ciates are not qualified interpreters in mostcases, and generally should not be used tointerpret. The commentary to the Title IIIregulation makes clear:

...(P)ublic accommodations have at timesasked persons who are deaf to provide familymembers or friends to interpret. In certaincircumstances, notwithstanding that the fam-ily member or friend is able to interpret or isa certified interpreter, the family member orfriend may not be qualified to render the nec-essary interpretation because of factors suchas emotional or personal involvement or con-siderations of confidentiality that mayadversely affect the ability to interpret “effec-tively, accurately, and impartially.” Com-mentary to §36.303.

How the case was resolved

In applying the legal standards set outabove, the Department of Justice found Ms.Rozanski’s complaint to be meritorious. Mr.Tirone acknowledged a single violation ofthe ADA and agreed to the terms set forthbelow as a resolution of the investigation. Inexchange, the United States agreed to termi-nate the investigation without resorting tolitigation.

Mr. Tirone agreed that it is his obligationto ensure effective communication with hisclients who have hearing disabilities, andthat he cannot charge them for the cost ofthe interpreter services or charge any othersurcharge to recover this cost. He agreed topost a statement to this effect in the localpaper and in his office. He further agreed tocompensate Ms. Rozanski $2,200, and toforgo any money due from her.

The implications of the case

The cost of an interpreter is the key ingre-dient leading to cases such as this. While arequest for service by a hearing-impairedclient may be a rare circumstance for many

attorneys, they should be aware that the responsibility to provideeffective communication lies with the attorney regardless of the feearrangements. A public accommodation (e.g., attorney) may refuse toprovide an auxiliary aid or service (e.g., interpreter) only if it candemonstrate that providing the aid or service would fundamentallyalter the nature of the service, or would constitute an undue burdenor expense. If it can make such a demonstration, it must neverthelessbe prepared to provide an alternative auxiliary aid, where one exists.28 C.F.R. §36.303(f).

There is no bright-line test for whether providing a particular aux-iliary aid would constitute an “undue burden.” Undue burden isdefined as significant difficulty or expense when considered in lightof a variety of factors, including the nature and cost of the auxiliaryaid or service and the overall financial and other resources of thebusiness. 28 C.F.R. §36.104. The undue burden standard is applied ona case-by-case basis. It is not measured by the amount of income thelawyer or other private business is receiving from a deaf client, but bythe financial impact on the entity as a whole. Therefore, it is possiblefor a lawyer to be responsible for providing auxiliary aids for probono clients if the cost of the aid would not be an undue burden onthe operation of the firm.

There are federal tax incentives for businesses that incur expensesfor improving accessibility for people with disabilities. The “TaxDeduction to Remove Architectural and Transportation Barriers toPeople with Disabilities and Elderly Individuals” (Title 26, I.R.C. Sec-tion 190) allows a deduction for barrier-removal expenses not toexceed $1,500 for any taxable year. The “Disabled Access Tax Credit”(Title 26, I.R.C. Section 44) is available to small businesses. It providesa tax credit of 50 per cent of eligible access expenditures that exceed$250 but do not exceed $10,250 made for the purpose of complyingwith the ADA. For more information on these tax provisions, visit theIRS Web site atwww.irs.gov/businesses/small/article/0,,id=113382,00.html.

For more information about a lawyer’s obligations in general, visitthe ADA Title II Technical Assistance Manual atwww.usdoj.gov/crt/ada/taman3.html#III-4.3200.(Excerpts from the manual are found on page 7.)

ResourcesOregon’s Deaf and Hard of Hearing Services (ODHHS) ProgramTechnical Assistance and Information Center:www.oregon.gov/ODC/dhhap/tac.shtml

Access Services Northwest:www.accessservicesnw.com/index2.html

To find an interpreter in your community, look in the Yellow Pagesunder “Translators & Interpreters.”

Elder Law Section Newsletter Spring 2006

tor. Because the pharmacy’s owner hasdetermined that providing physicalaccess to the pharmacy for those unableto climb stairs would not be readilyachievable, she has chosen to providehome delivery as a readily achievablealternative to barrier removal. The pharmacy may not charge an individualwho uses a wheelchair for the cost of providing home delivery. ILLUSTRATION 2: In order to ensureeffective communication with a deafpatient during an office visit, a doctorarranges for the services of a sign language interpreter. The cost of theinterpreter’s services must be absorbedby the doctor.

III-4.3000 Auxiliary aids

III-4.3100 General. A public accommodationis required to provide auxiliary aids and ser-vices that are necessary to ensure equalaccess to the goods, services, facilities, privi-leges, or accommodations that it offers,unless an undue burden or a fundamentalalteration would result.Who is entitled to auxiliary aids? This oblig-ation extends only to individuals with dis-abilities who have physical or mental impair-ments, such as vision, hearing, or speechimpairments, that substantially limit the abil-ity to communicate. Measures taken toaccommodate individuals with other typesof disabilities are covered by other Title IIIrequirements such as “reasonable modifica-tions” and “alternatives to barrier removal.”

ILLUSTRATION: W, an individual whois blind, needs assistance in locating andremoving an item from a grocery storeshelf. A store employee who locates thedesired item for W would be providingan “auxiliary aid or service.” BUT: If G, who uses a wheelchair,receives the same retrieval service, notbecause of a disability related to commu-

Excerpts from Americans with Disabilities ActTitle III Technical Assistance ManualCovering Public Accommodations and Commercial Facilities

III-3.0000 GENERAL REQUIREMENTS

Regulatory references: 28 CFR 36.201-36.213

III-3.1000 General. A public accommodation may not discriminateagainst an individual with a disability in the operation of a place ofpublic accommodation. Individuals with disabilities may not bedenied full and equal enjoyment of the “goods, services, facilities,privileges, advantages, or accommodations” offered by a place ofpublic accommodation. The phrase “goods, services, facilities, privi-leges, advantages, or accommodations” applies to whatever type ofgood or service a public accommodation provides to its customers orclients. In other words, a public accommodation must ensure equalopportunity for individuals with disabilities.

Several broad principles underlie the nondiscrimination require-ments of Title III. These include

1) Equal opportunity to participate; 2) Equal opportunity to benefit; and3) Receipt of benefits in the most integrated setting appropriate.The specific provisions furnish guidance on how a public accom-

modation can meet its obligations in particular situations and estab-lish standards for determining when the general requirement hasbeen violated. Where a specific requirement applies, it controls overthe general requirement.

ILLUSTRATION: Public accommodations are only required toremove architectural barriers in existing facilities if removal is“readily achievable.” If making the main entrance to a place ofpublic accommodation accessible is not readily achievable, the pub-lic accommodation can provide access to the facility through anoth-er entrance, even though use of the alternative entrance for individ-uals with disabilities would not be the most integrated settingappropriate.

III-3.2000 Denial of participation. The ADA prohibits discriminatorydenial of services or benefits to individuals with disabilities. Just asunder the Civil Rights Act of 1964 a restaurant cannot refuse to admitan individual because of his or her race under the ADA, it cannotrefuse to admit an individual merely because he or she has a disability.

ILLUSTRATION: A theater cannot refuse to admit an individualwith mental retardation to a performance merely because of theindividual's mental disability.

III-4.1400 Surcharges. Although compliance may result in some addi-tional cost, a public accommodation may not place a surcharge onlyon particular individuals with disabilities or groups of individualswith disabilities to cover these expenses.

ILLUSTRATION 1: The ABC pharmacy is located on the secondfloor of an older four-story building that does not have an eleva- Continued on Page 8


nication, but rather because of his inabili-ty to physically reach the desired item,the store would be making a required“reasonable modification” in its prac-tices.

III-4.3200 Effective communication. Inorder to provide equal access, a publicaccommodation is required to make avail-able appropriate auxiliary aids and serviceswhere necessary to ensure effective commu-nication. The type of auxiliary aid or servicenecessary to ensure effective communicationwill vary in accordance with the length andcomplexity of the communication involved.

ILLUSTRATION 1: H, an individualwho is deaf, is shopping for film at acamera store. Exchanging written noteswith the sales clerk would be adequate toensure effective communication. ILLUSTRATION 2: H then stops by anew car showroom to look at the latestmodels. The car dealer would be able tocommunicate effectively general informa-tion about the models available by pro-viding brochures and exchanging notesby pen and notepad, or perhaps bymeans of taking turns at a computer ter-minal keyboard. If H becomes seriousabout making a purchase, the services ofa qualified interpreter may be necessarybecause of the complicated nature of thecommunication involved in buying a car.

Who decides what type of auxiliary aidshould be provided? Public accommodationsshould consult with individuals with disabil-ities wherever possible to determine whattype of auxiliary aid is needed to ensureeffective communication. In many cases,more than one type of auxiliary aid or ser-vice may make effective communication pos-sible. While consultation is strongly encour-aged, the ultimate decision as to what mea-sures to take to ensure effective communica-tion rests in the hands of the public accom-modation, provided that the method chosenresults in effective communication.

ILLUSTRATION: A patient who is deafbrings his own sign language interpreterfor an office visit without prior consulta-tion and bills the physician for the cost ofthe interpreter. The physician is not

ADA Manual Continued from page 7

obligated to comply with the unilateral determination by thepatient that an interpreter is necessary. The physician must begiven an opportunity to consult with the patient and make anindependent assessment of what type of auxiliary aid, if any, isnecessary to ensure effective communication. If the patientbelieves that the physician’s decision will not lead to effectivecommunication, then the patient may challenge that decisionunder Title III by initiating litigation or filing a complaint with theDepartment of Justice.

Who is a qualified interpreter? There are a number of sign languagesystems in use by persons who use sign language. (The most commonsystems of sign language are American Sign Language and signedEnglish.) Individuals who use a particular system may not communi-cate effectively through an interpreter who uses another system.When an interpreter is required, the public accommodation shouldprovide a qualified interpreter, that is, an interpreter who is able tosign to the individual who is deaf what is being said by the hearingperson and who can voice to the hearing person what is being signedby the individual who is deaf. This communication must be conveyedeffectively, accurately, and impartially, through the use of any neces-sary specialized vocabulary.

Can a public accommodation use a staff member who signs “prettywell” as an interpreter for meetings with individuals who use signlanguage to communicate? Signing and interpreting are not the samething. Being able to sign does not mean that a person can process spo-ken communication into the proper signs, nor does it mean that he orshe possesses the proper skills to observe someone signing andchange their signed or fingerspelled communication into spokenwords. The interpreter must be able to interpret both receptively andexpressively. If a sign language interpreter is required for effective communication,must only a certified interpreter be provided? No. The key question indetermining whether effective communication will result is whetherthe interpreter is “qualified,” not whether he or she has been actuallycertified by an official licensing body. A qualified interpreter is one“who is able to interpret effectively, accurately and impartially, bothreceptively and expressively, using any necessary specialized vocabu-lary.” An individual does not have to be certified in order to meet thisstandard. A certified interpreter may not meet this standard in all sit-uations, e.g., where the interpreter is not familiar with the specializedvocabulary involved in the communication at issue.

III-4.3300 Examples of auxiliary aids and services. Auxiliary aids andservices include a wide range of services and devices that promoteeffective communication. Examples of auxiliary aids and services forindividuals who are deaf or hard of hearing include qualified inter-preters, notetakers, computer-aided transcription services, writtenmaterials, telephone handset amplifiers, assistive listening systems,telephones compatible with hearing aids, closed caption decoders,open and closed captioning, telecommunications devices for deaf per-sons (TDDs), videotext displays, and exchange of written notes. Examples for individuals with vision impairments include qualified

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ADA Manual Continued from page 8

readers, taped texts, audio recordings, Brailled materials, large printmaterials, and assistance in locating items.

Examples for individuals with speech impairments include TDDs,computer terminals, speech synthesizers, and communication boards.III-4.3400 Telecommunication devices for the deaf (TDDs). In order toensure effective communication by telephone, a public accommoda-tion is required to provide TDDs in certain circumstances. BecauseTDD relay systems required by Title IV of the ADA (which must beoperational by July 26, 1993) will eliminate many telephone systembarriers to TDD users, the auxiliary aids requirements relating toTDDs are limited in nature.

III-4.3410 Calls incident to business operations. A public accommo-dation is not required to have a TDD available for receiving or makingtelephone calls that are part of its business operations. Even duringthe interim period between the effective date of Title III and the datethe TDD relay service becomes available, there is no requirement thatpublic accommodations have TDDs. Of course, the ADA does not pre-vent a public accommodation from obtaining a TDD if, for business orother reasons, it chooses to do so.

III-4.3420 Outgoing calls by customers, clients, patients, or partici-pants. On the other hand, TDDs must be provided when customers,clients, patients, or participants are permitted to make outgoing callson “more than an incidental convenience basis.” For example, TDDsmust be made available on request to hospital patients or hotel guestswhere in-room phone service is provided. A hospital or hotel frontdesk should also be equipped with a TDD so that patients or guestsusing TDDs in their rooms have the same access to in-house servicesas other patients or guests.

III-4.3500 Closed caption decoders. Hospitals that provide televisionsfor use by patients, and hotels, motels, and other places of lodgingthat provide televisions in five or more guest rooms, must provideclosed caption decoder service upon request.

III-4.3600 Limitations and alternatives. A public accommodation isnot required to provide any auxiliary aid or service that would funda-mentally alter the nature of the goods or services offered or thatwould result in an undue burden.

However, the fact that providing a particular auxiliary aid or ser-vice would result in a fundamental alteration or undue burden doesnot necessarily relieve a public accommodation from its obligation toensure effective communication. The public accommodation must stillprovide an alternative auxiliary aid or service that would not result inan undue burden or fundamental alteration but that would ensureeffective communication to the maximum extent possible, if one isavailable.

ILLUSTRATION: It may be an undue burden for a small privatehistoric house museum on a shoestring budget to provide a signlanguage interpreter for a deaf individual wishing to participate ina tour. Providing a written script of the tour, however, would bean alternative that would be unlikely to result in an undue burden.

What is a fundamental alteration? A fundamental alteration is amodification that is so significant that it alters the essential nature of

the goods, services, facilities, privileges,advantages, or accommodations offered.

What is an undue burden? “Undue burden”is defined as “significant difficulty orexpense.” Among the factors to be consid-ered in determining whether an action wouldresult in an undue burden are the following:1) The nature and cost of the action; 2) The overall financial resources of the site

or sites involved; the number of personsemployed at the site; the effect onexpenses and resources; legitimate safetyrequirements necessary for safe opera-tion, including crime prevention mea-sures; or any other impact of the actionon the operation of the site;

3) The geographic separateness, and theadministrative or fiscal relationship ofthe site or sites in question to any parentcorporation or entity;

4) If applicable, the overall financialresources of any parent corporation orentity; the overall size of the parent cor-poration or entity with respect to thenumber of its employees; the number,type, and location of its facilities; and

5) If applicable, the type of operation oroperations of any parent corporation orentity, including the composition, struc-ture, and functions of the workforce ofthe parent corporation or entity.

Does a public accommodation have to domore or less under the “undue burden” standard than under other ADA limitationssuch as “undue hardship” and “readilyachievable”? The definition of undue burdenis identical to the definition of undue hard-ship used in Title I of the ADA as the limita-tion on an employer’s obligation to reason-ably accommodate an applicant or employee.Under both limitations, an action is notrequired if it results in “significant difficultyor expense.” The undue burden standard,however, requires a greater level of effort bya public accommodation in providing auxil-iary aids and services than does the “readilyachievable” standard for removing barriersin existing facilities (see III-4.4200). Although“readily achievable” is therefore a “lesser”standard, the factors to be considered indetermining what is readily achievable areidentical to those listed above for determin-ing undue burden.


How to address denial of coverage under along term care insurance policyBy Peggy Toole, Attorney at Law

Clients and their families often contactelder law attorneys with questionsabout long term care (LTC) insurance

and what it will pay for, particularly whenthe insurance company has refused to payfor care. This article discusses how attorneysshould evaluate LTC insurance contracts, butit does not cover qualified plans and tax ben-efits or LTC insurance policies subject toERISA.

Oregon’s Long Term Care Insurance ActORS 743.650 et seq, 748.603, and 750.055.

Oregon statutes establish standards thatLTC insurance policies delivered or issued inthe state after December 31, 1989, must meet.The statutes apply to individual and groupLTC insurance or nursing home insurancepolicies. Group LTC insurance policiesissued in another state and offered to Oregonresidents must substantially comply withOregon’s requirements. ORS 743.653.

Is there a LTC insurance policy?

You will save yourself and your clienttime if you first determine whether a LTCinsurance policy is actually in effect. ORS743.652(7) defines long term care insuranceas:

“[A]ny insurance advertised, marketed,or offered or designed to provide cover-age for not less than 24 months for eachcovered person on an expense incurred,indemnity, prepaid or other basis; forone or more functionally necessary ormedically necessary services, includingbut not limited to nursing, diagnostic,preventive, therapeutic, rehabilitative,maintenance, or personal care services,provided in a setting other than an acutecare unit of a hospital.”Oregon’s LTC statutes do not apply to

disability income protection coverage andMedicare supplement policies. ORS743.652(7). Clients often mistakenly thinkthat Medicare or a Medicare supplement pol-icy is LTC insurance. Although someMedicare supplement plans include co-insur-

ance for days 21–100 in a skilled nursingfacility, the policies are not LTC insurance.Was coverage denied due to mis-representations on the LTC insur-ance application?

A long term care insurer may refuse toissue a policy or exclude coverage for a“pre-existing condition.” An insurer maynot define “pre-existing condition” morerestrictively than ORS 743.655(3)(a):

“[T]he existence of symptoms whichwould cause an ordinarily prudent per-son to seek diagnosis, care or treatment,or a condition for which medical adviceor treatment was recommended by, orreceived from a provider of health careservices, within six months precedingthe effective date of coverage of aninsured person.”An insurer also may not exclude cover-

age for Alzheimer’s, related dementias,and conditions such as multiple sclerosisand Parkinson’s disease. ORS743.655(2)(d).

Coverage may be denied if the insuredfailed to disclose requested medical informa-tion on the application for long term careinsurance. In this situation, the elder lawattorney should review the LTC insuranceapplication, the policy, and the insured’smedical records. The attorney can then eval-uate his or her client’s medical history vis àvis the medical conditions disclosed on theapplication.

Oregon’s appellate courts have notaddressed “pre-existing condition” in thecontext of LTC insurance. However, twocases from other jurisdictions are instruc-tive: Wickland v. American Travellers LifeInsurance Co., 204 W.Va.,430, 513 S.E. 2d657 (1998) and Smith v. AF&L Insurance,147 S.W.3d 767(2004).

In Wickland, when the insured appliedfor LTC insurance, she indicated no prob-lems with or treatment for vertigo and pro-vided a release for the insurer to obtain

Peggy Toole is anattorney in Hillsboro, Oregon.Her practiceincludes healthinsurance planningand disputes, elderlaw, and civil litigation.

Continued on page 11


Denial of coverage under LTC insurance policyContinued from Page 10

medical records. The insured later fellbecause of vertigo and required long termcare. The insurer denied coverage, sayingthe applicant failed to disclose previousepisodes of dizziness. The court held thatdizziness was a symptom, not necessarilythe same as vertigo, and did not constitutean excluded pre-existing condition.

In Smith, the LTC insurance applicationrequested medical information, includingwhether the applicant had been examinedor treated for stroke, seizures, Alzheimer’sdisease, dementia, senility, forgetfulness,or other such disorders. The applicantanswered “no” and disclosed that she hadbeen treated for depression after her hus-band’s death. She later required long termcare for Alzheimer’s disease. The insurerdenied payment after reviewing medicalrecords, which indicted episodes of forget-fulness that physicians noted could becaused by either depression or Alzheimer’sdisease. The applicant was unaware of themedical record entries. The court held theinsured had not misrepresented her condi-tion.

Have the contract conditions whichtrigger LTC benefits occurred?

LTC benefits start when the person isimpaired or needs assistance with activitiesof daily living and any policy waiting periodhas passed. (The waiting or elimination peri-od is further discussed below.)

Under ORS 743.656(1)(a), an individual iseligible for LTC benefits when he or she isfunctionally impaired and needs assistancein three or more activities of daily living.Under ORS 743.652(5), functionally impairedmeans a person is unable to perform activi-ties of daily living independently because ofeither a physical or a cognitive impairment.Activities of daily living are defined by thestate, not the insurer. ORS 743.565. An insur-er may not define activities of daily livingmore restrictively than set forth in OAR 836-052-0565.

It is helpful to have health care profes-sionals, family, and caregivers document the

insured’s cognitive problems. This is impor-tant because cognitive impairment may bethe only reason a person cannot carry outnecessary daily activities, and thereforeneeds long term care. OAR 836-052-0570(2)lists the documentation needed for cognitiveimpairment and determines eligibility forlong term care:

An insured under a long term careinsurance policy shall be eligible forbenefits if the insured is a danger to theinsured or to others, as caused by anorganic disorder as determined and doc-umented by a physician, by frequentlybeing disruptive or aggressive, orextremely agitated or anxious and,according to a physician’s order, profes-sional medical and nursing judgment isrequired to determine when to adminis-ter prescribed medication or to applyphysical restraints. Oregon prohibits prior hospitalization as

a prerequisite for long term care insurancebenefits. ORS 743.655(4)(a). This is in con-trast to Medicare, which requires three daysof prior hospitalization.

Insurers also cannot condition coverageon a prior higher level of institutional care.For example, an insurer cannot deny pay-ment for long term care at an assisted livingfacility solely because the insured did notfirst require skilled nursing care.

Further, a LTC policy cannot limit cover-age to skilled nursing facilities or offer sig-nificantly more coverage for skilled care in afacility than coverage for lower levels ofcare. ORS 743.656(2) and ORS 743.655(1)(c).

OAR 836-052-0586 sets minimum stan-dards for home healthcare benefits in longterm care policies. Benefits must be paidwhen the insured received services from anyof the providers approved by the insurer,e.g., nursing home, assisted living, homecare, and/or adult foster care. ORS 743.565.

Most LTC insurance policies do not payfor in-home care services provided by familymembers.


A long term carepolicy cannot limitcoverage toskilled nursingfacilities or offersignificantly morecoverage forskilled care in afacility than coverage forlower levels ofcare.


Denial of coverage under LTC insurance policyContinued from Page 11

Determine if the policy includes awaiting or elimination period

A long term care insurance policy mayhave a waiting or elimination period, whichmeans benefits are not paid until a certainperiod of time after the start of long termcare. ORS 743.652(4). Attorneys should beaware that there may be different elimina-tion periods depending on the care setting,i.e., home care or skilled nursing facility.

How is your client supposed to pay forcare during the waiting period? Coordina-tion of benefits is an important considera-tion. For example, limited Medicare benefitsapply when the individual is hospitalizedfor three days and then transferred to askilled nursing facility for necessary care.Medicare benefits may cover a portion or allof the waiting period, followed by the LTCpolicy.

Also, your client’s LTC policy mayinclude a provision waiving premium pay-ments when the insured is receiving bene-fits. The amount usually paid for premiumscan be applied to the cost of care during thewaiting period. There may be coverage even if thepolicy has lapsed

Clients may forget to pay their premiumsor be unable to pay the premiums at thetime they most need LTC insurance. ORS743.655(2)(b) requires the insurer to notifythe insured in writing of non-paymentbefore canceling a policy. Attorneys shouldinquire whether their client had LTC insur-ance in the past, whether it lapsed, andwhether there was written notification. Theoriginal application may contain informa-tion about what happens in the case of alapsed policy.

Some LTC policies include a provision fornonforfeiture of benefits, i.e., the insuredreceives some payment or reduced benefits ifshe or he drops the policy. There also may bea contingent nonforfeiture provision, which

The OregonDepartment Consumer & Business Services,Insurance DivisionWeb site is anexcellent resourcefor attorneys andconsumers.www.cbs.state.or.us/ins

allows for reduced benefits when the policylapses. Finally, if your client has difficultypaying premiums, consider requesting areduced premium with correspondingdecrease in benefits.

Resolving disputes

Policy coverage disputes are oftenresolved short of litigation through the inter-nal appeal process set forth in the policy. Aconcurrent, well-documented complaint tothe Oregon Insurance Division may be help-ful. Before filing an administrative com-plaint, the attorney should have a completecopy of the application for LTC insurance,the actual policy and all addenda, a writtenstatement as to why the insurer is denyingbenefits, and related medical records.

Litigation may be necessary—especiallywhere the disputed policy provision isambiguous. Standard insurance law analysisapplies. However, LTC policies are a rela-tively new insurance product, and the elderlaw attorney may want to review reportedcases from other jurisdictions regardingambiguous provisions specific to LTC. Forexample, in Gillogly v. General Elec. CapitalAssur. Co., 430 F.3d 1284 (10th Cir. 2005), alicensed residential care home did not meetthe policy definition of “nursing home,” andin Gregg ex rel. Gregg v. IDS Life Ins. Co. ofNew York, 178 Misc.2d 895, 681 N.Y.S.2d451(1998), affirmed 261 A.D.2d 799, 692N.Y.S.2d 182 (1999), a residence was not anursing home as defined by the LTC policy.Planning ahead

Elder law attorneys routinely adviseclients about LTC insurance, especially aspart of an estate plan. Attorneys should tellclients who decide to purchase LTC insur-ance to retain copies of their application andthe actual policy. In the event the client does-n’t have a copy of the LTC insurance applica-tion, the insurer will provide a copy, ifrequested.


Authority of conservator and personalrepresentative can conflictBy Warren C. Deras, Attorney at Law

Angelic Daughter called you in extreme dis-tress. Poor Widow Mom had lived independentlyfor many years in her home, with increasingassistance from Angelic and Medicaid. Mom hadrecently inherited $30,000 from Auntie Frugal,and Angelic’s Evil Twin brother immediatelymoved into Mom’s home with his drug-dealinggirlfriend, three irresponsible adult kids, and twopit bulls. Angelic feared Mom’s meager inheri-tance would be squandered and (when she couldtalk to Mom by phone, since she was afraid to go to the house with the pit bulls running loosein the yard) Angelic found Mom was so stressedby the situation that she was behaving verystrangely.

You sprang into action, applying for appoint-ment of Angelic as guardian and conservator forMom. Evil Twin (with Mom’s money, of course)objected, terrified the court visitor with the pitbulls, and forced you to trial. After a long trial,your judgment appointing Angelic guardian andconservator was finally approved by the court.As you consider framing the judgment you arealso contemplating your $15,000 bill and petitionfor approval of attorney fees. Angelic calls to tellyou that Mom just died.

You had in a moment of chivalry assuredAngelic that your fee would be paid from hermother’s inheritance and that Angelic would notbe responsible for it. Now you learn that EvilTwin has filed to probate Mom’s ancient will —the one she signed naming him personal repre-sentative before he dropped out of Harvard Busi-ness School with drug problems. Evil Twin’sattorney (the same one who represented him inthe protective proceeding and his various dealingswith the criminal law) informs you that not onlydoes DHS have a claim for half the value of thehouse on account of care provided Mom, but theyhave a claim for the other half for care providedDad before his death. Mom’s inheritance fromAuntie Frugal is long spent (“protecting Mom’srights” the other attorney says, glibly), and theestate is insolvent.

So what do you do now?

Your first reaction may be to proceedunder Naito v. Naito, 125 Or. App. 231,864 P2d 1346 (1993), rev den 318 Or.

582 (1994), to advise Angelic as conservatorto sell the house and secure court approvalin the protective proceeding to pay a reason-able fee to Angelic and yourself. It is theposition of this article that Naito is no longergood law in Oregon; that Evil Twin, as per-sonal representative, is entitled to immediatepossession of the probate assets; and thatyour fees probably will not be paid.

Naito was part of a long running feud inthe prominent Portland family. After HideNaito’s death, his widow objected to a courtorder retaining assets in the conservatorshipfor use in paying fees and allowing the con-servator to sell the residence. The court ruledagainst the widow, explaining:

“A conservatorship may be terminatedonly by petition and court order. Crofoot v.Oregon State Bar, 54 Or. App. 151, 155 n 3,634 P2d 284 (1981). If the protected persondies, the conservator’s powers and dutiesare those described in ORS 126.337,including the duty to ‘retain the estate fordelivery to the personal representative ofthe decedent or other persons entitledthereto.’ ORS 126.337(1). The conservatorremains subject to the court’s authority sothat the purposes of the conservatorshipare fulfilled. The conservator may deliverassets retained under ORS 126.337(1) onlypursuant to an order terminating the con-servatorship. ORS 126.387(2) provides, asmaterial:

‘The order of termination shall directthe conservator to deliver the assets inthe possession of the conservator to theprotected person or successors:(a) Immediately, to the extent that theyare not required for payment of expens-es of administration and debts incurredby the conservator for the account ofthe estate of the protected person...’

Warren C. Deras isa Portland attorneywhose practicefocuses on estateplanning and probate. He prepared 1999 legislation authorizing theChief Justice toadopt rules foraccounts in probateand protective proceedings andserved on the Uniform Trial CourtRules Committee,which adopted therules. He also prepared the 2003revision of Oregon’s escheatstatutes.


Authority of conservator Continued from Page 13

“ Under the statutory scheme, when theprotected person dies, the conservatorretains the estate for delivery to the per-sonal representative or other proper per-son, ORS 126.337(1), and the court ordersdelivery of the retained assets to the pro-tected person's successors, except forassets required for estate expenses. ORS125.387(2)(a). Assets necessary to payexpenses remain in the conservatorshipestate until the expenses are paid. ORS126.387(2). Those assets remain subject tothe conservator’s power under ORS126.313(7) to ‘dispose of an estate assetincluding land wherever situated for cashor on credit, at public or private sale...’Funds of the estate, including those gener-ated by a sale of estate assets, ‘may beused to pay reasonable compensation toany...attorney...for services rendered...onbehalf of the conservator...’ ORS126.263(1). Such payments must beapproved by the court. ORS 126.263(2).

“ The court’s procedure here follows thestatutory scheme. The court ordered thatdefendants, in accordance with ORS126.337(1), retain estate property and, pur-suant to their authority in ORS 126.313(7),sell the residence to generate funds neces-sary to compensate their attorneys. ORS126.263(2). The court has statutory authori-ty to make those orders. The court did noterr. Because the conservators’ duty to payexpenses of administration is not fulfilled,the court also did not err in denying plain-tiff’s motion to terminate the conservator-ship.”

The Court in Naito expressly relied on ORS126.387 in reaching its conclusion. That isalso true of the court in Crofoot (cited inNaito) and the later decision in Herbuger v.Herbuger, 144 Or. App. 89 (1996). Until 1995that statute provided:

(1) The protected person, the personal repre-sentative of the protected person, the conser-vator or any other interested person maypetition the court to terminate the conser-vatorship. A protected person seeking ter-mination is entitled to the same rights andprocedures as in an original proceeding

for a protective order.(2) The court, upon determining afternotice and hearing that the minority ordisability of the protected person hasceased, may terminate the conservator-ship. The order of termination shall direct theconservator to deliver the assets in the pos-session of the conservator to the protectedperson or successors:

(a) Immediately, to the extent thatthey are not required for payment ofexpenses of administration and debtsincurred by the conservator for theaccount of the estate of the protectedperson; and(b) Upon entry of an order approving

the final account or surcharging theconservator, to the extent of any bal-ance remaining.” [emphasis supplied]

At the time the references to “the personalrepresentative” and “successors” clearly con-templated that the statute applied on thedeath of the protected person. The statuteclearly linked the termination order to deliv-ery of the assets to those entitled to them.

In 1995 the statutes governing protectiveproceedings were completely revised. ORS126.387 was replaced in part by ORS 125.525,which provides:

An order terminating a conservatorshipshall direct the conservator to deliver theassets in the possession of the conservatorto the protected person:

(1) Immediately, to the extent that theassets are not required for payment ofexpenses of administration and debtsincurred by the conservator for theaccount of the estate of the protectedperson; and(2) Upon entry of an order approvingthe final accounting or surcharging theconservator, to the extent of any bal-ance remaining.

The statute clearly now applies only whenthe conservatorship assets are delivered tothe protected person, not to successors. A


In 1995 thestatutes governingprotective proceedings werecompletely revised.The statute clearlynow applies onlywhen the conservatorshipassets are delivered to theprotected person,not to successors.



court order is clearly needed under ORS 125.090(2)(d) to terminate aconservatorship on the death of the protected person. However, noth-ing in ORS Chapter 125 links any order for termination of a protectiveproceeding on death to delivery of assets to those entitled to them.There simply is no basis remaining in ORS Chapter 125 for the con-clusion reached in Naito under old ORS Chapter 126. To the contrary,the statute clearly points to the opposite conclusion.

ORS 125.420 provides in part:The title to all property of the protected person is in the protectedperson and not in the conservator.

It follows from that provision that title to the probate property ondeath is governed by 114.215, which provides:

(1) Upon the death of a decedent, title to the property of the dece-dent vests:

(a) In the absence of testamentary disposition, in the heirs of thedecedent, subject to support of spouse and children, rights ofcreditors, administration and sale by the personal representative;or(b) In the persons to whom it is devised by the will of the dece-dent, subject to support of spouse and children, rights of credi-tors, right of the surviving spouse to elect against the will,administration and sale by the personal representative.

That in turn leads us to ORS 114.225, which provides:A personal representative has a right to and shall take possession

and control of the estate of the decedent, but the personal repre-sentative is not required to take possession of or be accountable forproperty in the possession of an heir or devisee unless in the opin-ion of the personal representative possession by the personal rep-resentative is reasonably required for purposes of administration.

To further confirm the limits of the power of a conservator ondeath of a protected person, ORS 125.230(1) provides in part:

Except as provided in subsection (3) of this section, a fiduciary’sauthority terminates upon the ...protected person’s death.Subsection (3) only gives power to a guardian to control disposi-

tion of the decedent’s remains.Finally, former ORS 126.263 authorized court approval of payment

of fees in the protective proceeding “from the estate.” ORS 125.095now provides that fees are paid from “funds of the protected person.”As is clear under ORS 114.215, quoted above, on death the protectedperson no longer has any funds from which the court may approvepayment.

Against this array of clear direction on what happens to theauthority of a conservator on death of a protected person, the onlyremnant offering any continuing authority is in the last sentence ofORS 125.530, which provides:

Authority of conservator Continued from Page 14

The conservator shall retain and adminis-ter the estate for delivery to the personalrepresentative of the decedent or otherpersons entitled to the estate.

Nothing in that sentence overcomes theexpress statutes governing the effect of deathon title to and possession of property, andnothing in it suggests that a court order isneeded before delivery of the property to thepersonal representative or other persons enti-tled to it. Given the restrictions on the con-servator’s authority imposed by ORS125.230(1) following death of a protected per-son, it is clear that the authority of the con-servator to “retain and administer the estate”is limited to protection of the assets remain-ing in the possession of the conservator.

Once the personal representative replacesthe conservator as the person responsible foran estate, a dramatic change occurs in distri-bution of the estate. Under ORS 125.520 (1),administrative expenses have top priority inthe protective proceeding. Under ORS115.125 governing probate, fees owed to theconservator or the conservator’s attorneyhave the lowest priority, behind support ofthe spouse and children, probate administra-tion expenses, funeral expenses, taxes, med-ical expenses, and the claim of DHS, amongothers.

HB 2314 in the 2005 legislature wouldhave changed the law to allow payment offees in the protective proceedings from avail-able cash after death of the protected person.It also would have moved protective pro-ceeding administration expenses up in theprobate claims priority list in front of DHS.That bill was supported by the Estate Plan-ning and Administration Section, but died inthe Senate primarily because of oppositionby the Elder Law Section. It is likely to be re-introduced in the 2007 session.


Confronting the issue of when to retirefrom driving By Ellen Waldman, M.A., and Linda Bellinson, M.S.W, Senior Options, LLC

Ellen Waldman,MA,(transpersonal psychology andcounseling) andLinda Bellinson,MSW,(social work,specializing in geriatrics) are professional geriatric care managers. They aremembers of theNational Associationof Professional Geriatric Care Managers(www.careman-ager.org). They provide services for caremanagement,guardianships, andconservatorships insouthern Oregonthrough SeniorOptions, LLC. Theycan be reached at541.482.9489.

son enough to allow continued driving bysomeone whose cognitive and/or functionalability is questionable and may be unsafe. When to talk about it

Postponing the conversation about dri-ving and the cessation of driving is detri-mental to older adults, family members, and those who share the roads with unsafe drivers. The ideal time to broach the subjectis long before it becomes an issue. Elder lawattorneys are often involved in discussionsabout planning for incapacity, and are in anexcellent position to point out that incapaci-ty can be gradual, rather than sudden. Aspart of the planning materials you providefor clients, consider including a list of thesigns that indicate it is time to limit or stopdriving. (You can find a list of these warn-ing signs on the AARP Web site.)

Certainly any discussions with clientsabout financial planning should include adiscussion of transportation costs, and amatter-of-fact assumption that at somepoint automobile ownership will no longerbe part of the picture. You can tell themabout the tax advantage of donating theircars to a charity. If a client is talking aboutmoving to a smaller residence, remind himor her to include access to public transporta-tion as an evaluation criterion.

Personal decision-making is key to a per-son maintaining his or her dignity andautonomy. While no one likes to grow old,realistic planning for the changes the yearsbring is always preferable to crisis-modetriage. As an elder law attorney knows, themore you can do to get clients to acknowl-edge inevitable changes and plan for them,the fewer frantic calls you will get later fromtheir families.How to talk about it

Some older drivers will agree to limit orstop driving after caring conversations withfamily members or others they respect and

For many people, driving a car is morethan just a means of transportation. Intheir minds, it represents indepen-

dence, spontaneity, convenience, competen-cy as an adult, and freedom. It’s a link tofriends, social activities, and travel awayfrom home. If they see driving as their pri-mary way to stay active and connected inthe world, giving up driving in old age maycause sorrow, a sense of loss, a decrease inself-esteem and confidence—or even anger,depression, and hostility.

For these reasons, families and friends areoften reluctant to raise the issue with olderadults of when to stop driving. Avoiding theissue, however, can have tragic results.

According to a 1998 Oregon State Univer-sity publication entitled Driving Decisions inLater Life, elders are twice as likely as theaverage driver to be involved in an accident.Older people tend to have more accidents indriving situations that require a high degreeof perception, problem-solving ability,immediate reaction, and decision-making.Elderly drivers are at higher risk of injuryand death because they are less able to with-stand trauma. The legal and financial conse-quences of having an accident can be devas-tating, particularly if the elderly driver is atfault.

While age alone does not determinewhen someone should stop driving, the cog-nitive and functional changes that occurwith age do have an effect on one’s ability todrive safely.

The issue is even more complicated whendementia, Alzheimer’s disease, or strokerenders a person cognitively impaired.Because of the impaired brain function, theindividual often does not recognize his orher deterioration or appreciate the potentialdriving risks. Family members may be indenial about the diagnosis and progressivedeterioration of cognitive functioning. Theymay want to avoid confrontation or damageto the elder’s self-esteem. While these areunderstandable concerns, they are not rea- Continued on page 17


Retiring from driving Continued from Page 16

admire. If an impaired driver refuses to limit or discontinue driving,family members may enlist the support of a doctor, lawyer, or otherprofessional. It is important for any professional who routinelyadvises elders and their families to be familiar with the issues and theoptions.

When speaking with older drivers, it is important to discuss age-related changes, including decreases in vision and hearing, reactiontime, coordination, and ability to make quick decisions. Medical con-ditions and side effects of medications are also important topics ofdiscussion. Staying focused on universal age-related changes makesthe decision to stop driving seem less personal. Avoid sounding criti-cal or demeaning. Stress that these changes are beyond our control.

It is important to stay calm, focused, and professional. This willhelp ensure a productive discussion and defuse negative emotionsabout the topic. Concerns about driving need to be approached withsensitivity to both the symbolic meaning and practical significancedriving has to the individual. It is important to be empathetic,acknowledging the losses that will occur with the cessation of dri-ving, yet emphasizing the positive aspects of this action.

Discussions may also focus on the financial and legal implicationsof being involved in an accident and the medical and emotionalimplications of hurting oneself or others.

Several conversations are likely before an elder agrees to retirefrom driving.

Unless there is an obvious immediate crisis, a good place to beginis to suggest limits—for example, driving only during the day, dri-ving within a 10-mile radius of the house, taking turns driving toevents with friends, carpooling with family and friends, or takingtaxis at night. Familiarize yourself with the transportation optionsavailable in the community, so that you can provide helpful informa-tion.

Let your clients know about the AARP Driver Safety Program. It isan eight-hour classroom refresher that focuses on the effects of agingon driving and how to adjust for them. Most classes are taught intwo, four-hour sessions, and the course costs $10. Classes are taughtfrequently in many locations around the state. Dates and locations ofclasses are available on the AARP Web site or by calling 888.227.7669.Oregon is one of the states that requires insurance companies to pro-vide discounts to older drivers who complete the course. ORS 742.490et seq. Referring an unsafe driver to DMV

If safety is seriously compromised, families or guardians may haveto take unilateral action, such as contacting the motor vehicle licens-ing authority, or having someone else report for them.Voluntary reporting

Family, friends, doctors, law enforcement officers, attorneys, orothers who have concerns about a person’s driving ability can write aletter to Department of Motor Vehicles (DMV) that describes theproblem driver’s unsafe driving situation or they can use the Driver

Evaluation Request form #6066 that can beobtained from a local field office or down-loaded from the DMV Web site at www.ore-gon.gov/ODOT/DMV/driverid/reportprob-driver.shtml. The form requires the name,address, and original signature of the personrequesting the evaluation. Although he orshe can request confidentiality, DMV mayhave to disclose the person’s name if the dri-ver requests a hearing or files a lawsuit. It isimportant to note that requests based onage, diagnosis, and/or general health alonewill not be honored.

Based on the information provided, DMVmay require the person to get a current med-ical exam or be retested. Depending on testresults, DMV will determine whether or notthe person may continue to drive (with orwithout restrictions) or whether the personshould stop driving.Mandatory reporting

Oregon requires physicians and healthcare providers to report patients with func-tional and/or cognitive impairments that areconsidered severe and non-correctable. OAR735-074-0090, OAR 735-074-0110, ORS807.710.

For cognitive impairments, a medical fileand driving record are sent to the StateHealth Office for determination. The statedoes not retain a medical advisory boardand this office makes all licensing decisions.

Physicians and health care providersmust submit reports to the DMV on theMandatory Impairment Referral form #7230,which is available at DMV field offices andonline atwww.odot.state.or.us/forms/dmv/7230.pdf.

Once a report is submitted to DMV, theperson’s driver license will usually be sus-pended. He or she still has the right torequest the opportunity to demonstrate dri-ving ability via knowledge and driving tests.ORS 807.090. Transportation options

In a society that emphasizes private auto-mobiles over public transportation, indepen-



Resources

Alternative transportation providers for elders andpersons with disabilities

Portland metropolitan areaTriMet Lift Service: 503-802-8000 or www.trimet.org/lift/liftguide.htmRide Connection: 503.226.0700 or www.rideconnection.org

Clark County, WashingtonC-VAN Paratransit: (360) 695-8918 or www.c-tran.com

Salem and KeizerCherryLift: 503.763.0953 or www.cherriots.org

Albany Call-A-Ride Service: 541.917.7770 or www.ci.albany.or.us/publicworks/ats/car.php

CorvallisBenton County Special Transportation Program: 541.766.6916 orwww.co.benton.or.us/pw/STFweb

Eugene and Springfield Lane County RideSource: 541.682.5566 or www.ltd.org

Roseburg, Winchester, and Green Umpqua Transit Dial-A-Ride & Senior Services: 541.440.3587 orwww.ur-cog.cog.or.us/dial-a-ride_&_senior_services.htm

Medford and AshlandValley Lift: (operated through local taxi companies). 541-842-2050or www.rvtd.org

Hood River, Odell, Parkdale, and Cascade Locks Columbia Area Transit Dial-A-Ride: 503.386.4202 orcommunity.gorge.net/hrctd/Dial-A-Ride.htm

BendDial-A-Ride: 541.389.7433 or www.ci.bend.or.us/depts/public_works/_dial_a_ride__public_transportation.html

Klamath FallsBasin Transit Service Dial-A-Ride: 541.883.2877 or www.basintran-sit.com/dialaride.shtml

American Public Transportation AssociationA list of all sorts of transportation options, with links to Web sites.www.apta.com/links/state_local/or.cfm#A2

Oregon Safe Mobility Web siteInformation for mature drivers and their families. Includes drivingself-test. www.oregonsafemobility.org

AARP Driver Safety Web siteIncludes list of warning signs that someone should begin to limit dri-ving or stop altogether, locations and dates for driver safety course,and an excellent article “Driver’s Ed for Grownups,” by WilliamJeanes. www.aarp.org/families/driver_safety

Store to Door of OregonLow-cost personalized grocery shopping and prescription deliveryservice for Portland-area residents over 65 and those with disabilities.503.413.8223 or www.storetodooroforegon.org

Retiring from driving

Continued from Page 18

dence and driving often are linked. Mostadults know little or nothing about publictransit, so that when faced with loss of dri-ving privileges, their lack of confidencemakes them reluctant to accept public transitas an option. Obviously, friends and familymembers can help overcome this resis-tance—and in the process educate them-selves—by learning how the transit systemoperates and accompanying elders on theirinitial trips. Those who are unable to useregular public transit due to disability mayuse the services of alternate transportationproviders. A list of many of these is provid-ed in the sidebar to this article.

People who choose to live in areas with-out public transportation have feweroptions. Family members, neighbors, andcaregivers can provide transportation toappointments and errands. The local seniorcenter may offer a shuttle service. Forresources in your community, call the AreaAgencies on Aging (AAA) at 800.282.8096.

Explore options to have groceries or pre-scriptions delivered. Many health plans offerprescriptions by mail—often at a lower price.Oregon Health Plan (OHP) clients who donot belong to a managed health care planmay order prescriptions for home delivery.In the Portland area, the volunteer organiza-tion Store to Door provides grocery shoppingand delivery for elders and persons with dis-abilities.

The decision to retire from driving neednot be traumatic. As in every other aspect ofaging, realistic planning makes a big differ-ence.


Participants should plan to bring 50copies of documents (such as trust amend-ments, powers of attorney, demand letters,conflict disclosure and waiver letters, elderabuse complaints, administrative hearingdecisions, and demand letters—with confi-dential information redacted, of course) andforms (such as intake forms, notices, releas-es, outlines, etc.) that they find useful andshare them at a session or by leaving themon the “Documents and Forms” table.

The registration fee of $95 covers meals(buffet breakfast and lunch, as well as areception following the program) where theinformal information exchange continuesover good food and drink. To register,please call the OSB CLE Service Desk at503.684.7413 or 800.452.8260, ext. 413. To reg-ister through the Bar, please call by or before5:00 p.m. May 1, 2006. You may also registerat the unCLE itself, assuming that there isstill space available. Call the OSB CLE Ser-vice Desk to check on the number of regis-trations and the likelihood of “at the door”registration being available.

Remember, you must be an Elder LawSection Member to register for the unCLE.Annual membership is available for $25, andmay be obtained at the time of registration.

To reserve a room at the Valley River Inn,call 800.543.8266.

Section members are invited to stay forthe Section’s Executive Committee meetingwhich will be held at the Valley River Inn onSaturday, May 6, 2006, at 9:00 a.m.

Since this is an informal program, wemust wait until after the event to apply forOSB MCLE credit. Despite its name, lastyear’s unCLE program was approved for 5hours of general CLE credit.

Don’t miss your chance to be one of the 75 people who learnhow to resolve issues raised by recent legislation, share prac-tice tips (including documents and forms), and get to pick the

brains of some of Oregon’s most experienced elder law attorneys atthe Elder Law Section’s fourth annual unCLE program. This popularprogram will be held Friday, May 5, 2006, from 8:00 a.m. to 4:30 p.m.at the Valley River Inn in Eugene.

Individual sessions are limited to 20 people, and you get to choosethe topics. There are moderators and resource people, but no formalpresentations. Instead, Section members gather around a table toshare practical strategies and come up with answers to some of elderlaw’s persistent questions. Potential topics for 2006 include:

• Medicaid Changes in the Deficit Reduction Act of 2005• Drafting Trusts under the New Oregon Uniform Trust Code

(OUTC)• Notice Requirements and Advising Trustees under OUTC• Surcharging Beneficiaries• Dealing with Problem Beneficiaries• Filing Lawsuits for Elder Abuse (ORS 124.100)• Medicare Part D Issues• Long Term Care Insurance Benefits• Documenting Incapacity After HIPPA• Representing Elders When Adult Children Are Involved• Representing Multiple Generations• Useful Office Technology• Getting PaidThere will be four groups of sessions, with three or four topics

offered at a time. Please e-mail your suggestions for topics (as well asyour reactions to the ideas above) to Steve Heinrich, CLE subcommit-tee chair, at [email protected] or Mark Williams, unCLE organizer, [email protected].

Elder Law unCLE 2006

Answers to elder law’s persistent questions


Newsletter Board

The Elder Law Newsletter is published quarterly by the Oregon State Bar’sElder Law Section, S. Jane Patterson, Chair. Statements of fact are theresponsibility of the authors, and the opinions expressed do not implyendorsement by the Section.Editor:Carole Barkley . . . . . . . . . . . . . . . . . . . . . . . . . [email protected]; 503.224.0098

Advisory Board: Prof. Leslie Harris, Chair . . . . . . . . . . . [email protected]; 541.346.3840Hon. Claudia M. Burton . . . . . [email protected]; 503.378.4621Penny Davis . . . . . . . . . . . . . . . . . . [email protected]; 503.452.5050Brian Haggerty . . . . . . . . . . . . . . . . [email protected]; 541.265.8888Phil Hingson . . . . . . . . . . . . . . . . . [email protected]; 503.639.4800Leslie Kay . . . . . . . . . . . . . . . . . . . . . . . . [email protected]; 503.224.4086Karen Knauerhase . . . . . . . . . . . . . . [email protected]; 503.228.1687 Jim McVittie . . . . . . . . . . . . . . . . . . . . . . . [email protected]; 503.224.6611Alexis Packer . . . . . . . . . . . . . . . . . . . . . . . . . . . [email protected]; 541.482.0570Scott Strahm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [email protected]; 360.834.3502Peggy Toole . . . . . . . . . . . . . . . . . . . . . . . . . . . . [email protected]; 503.924.5779Prof. Bernard F. Vail . . . . . . . . . . . . . . . . . . . . . . . [email protected]; 503.768.6656

Resources for elder law attorneys

EVENTS

Essential Accounting & Finance for LawyersOregon State Bar SeminarFriday, May 19, 2006 • 9 a.m. to 4:30 p.m.Oregon Convention Center, Portland

Mediation and Arbitration in OregonOregon Law Institute Seminar Friday, May 19, 2006 • 8:55 a.m. to 4:00 p.m.Oregon Convention Center, PortlandVideo Replay Dates & Locations:

Bend: 6/2/06; Eugene: 5/26/06Medford: 5/26/06; Portland: 6/7/06

Sixth Annual Oregon Tax InstituteOregon State Bar SeminarJune 2 and 3, 2006Embassy Suites Downtown Portland

Hot Topics in Estate PlanningOregon State Bar SeminarJune 9, 2006 • 8:30 a.m. to NoonOregon Convention Center; Portland

OSB Elder Law Section CLE Seminar Friday, October 6, 2006Save the date!

PUBLICATION

Willamette Law Review is releasing a specialissue with the text of the Oregon UniformTrust Code and the comments. All membersof the Oregon State Bar Trust and EstateSection will be receiving a copy soon. If youare not a member of that section and wouldlike to order a copy, send your name andmailing address with a check for $10 toWillamette Law Review; 245 Winter Street;Salem, OR 97301

INTERNET

Elder Law Section Web sitewww.osbar.org/sections/elder/elderlaw.html

The Web site has useful links for elder lawpractitioners, past issues of the Elder LawNewsletter, and current elder law numbers.

Elder Law Section ElectronicDiscussion List (listserv)

All members of the Elder Law Section areautomatically signed up on the list, but yourparticipation is not mandatory. How to use the discussion list

Send a message to all members of theElder Law Section distribution list byaddressing it to: [email protected].

Replies are directed by default to thesender of the message ONLY. If you wish tosend a reply to the entire list, you mustchange the address to:[email protected], or you can choose“Reply to all.”How to make changes to your subscription

Send a message to [email protected] with the following in thebody of your message for each type ofchange:• To remove yourself from the list: unsub-

scribe eldlaw your name• To receive your message in digest form

(combined into a single message sentonce each day): set eldlaw digest yourname