The National Center for Tobacco-Free Older Person

The Center for Social Gerontology
2307 Shelby Avenue, Ann Arbor, MI 48103 tel: 734 665-1126 fax: 734 665-2071

Recent Elder Rights Advocacy
Developments: By State

Updated July 12, 2001

The Center for Social Gerontology, Inc. (TCSG), since its inception in 1972, has been a non-profit research, training and social policy organization dedicated to promoting the individual autonomy of older persons and advancing their well-being in society. TCSG has pursued this goal through a wide variety of projects, including serving since 1985 as an Administration on Aging-funded National Support Center in Law & Aging.

This web site on Recent Elder Rights Advocacy Developments: By State has been created to provide elder rights advocates in all 50 states and the territories with a site on which to post information about significant elder rights activities in their own states. We are defining "elder rights activities" fairly broadly, so the activities may include legislative, litigative or administrative advocacy initiatives and accomplishments, as well as significant legal services delivery systems achievements or elder rights community education projects.

Information posted on this site is to come from you -- elder rights and legal services advocates in the states. To have something posted on this site, simply e-mail what you want posted to, and we will try to have it posted within 24 hours. This is a new site, so we're very flexible about how to use it. Initially, we'd like you to keep your notes to a paragraph in length, but, if you can't do that, send us more, and we'll find a way to deal with it. Also, if you can send us links to relevant newspaper or other articles (with the URL address), that would be great.

Elsewhere on our site are listings of Recent News about Legal Services & Elder Rights Developments and other links to legal services and elder rights contacts and information. You may also want to utilize those links.

This site is new and is currently incomplete. We will be adding to it regularly until there are links to all states.

ITEMS POSTED RECENTLY: 7/12 - Connecticut; 7/8 - Massachusetts, Michigan, Oklahoma; 7/1 - Oregon; 6/30 - Pennsylvania; 6/23 - Michigan; 6/22 - New York; 6/21 - Pennsylvania; 6/17 - California; 6/14 - Michigan; 6/12 - Vermont; 6/11 - Oklahoma; 6/10 - Wisconsin; 6/8 - Michigan; 6/5 - Oklahoma; 6/2 - Massachusetts; 6/1: Michigan; 5/30 - Connecticut, Michigan; 5/29 - Illinois; 5/24 - Illinois; 5/23 - Michigan, Nevada.


Alaska Creates "Family Guardian Coordinator" Service

The State of Alaska has created the position of Family Guardian Coordinator to assist families and others to learn about guardianship and conservatorship, including the process of petitioning for and serving as a guardian or conservator. The service includes telephone assistance, informational meetings, trainings and a web site at


Aging Programs Score Big in Legislative Appropriations Battles; Obtain Over $26 Million in New Funding -- Unfortunately, Legal Assistance Cut

The May, 2001 issue of Aging Arkansas reported that AGING and TOBACCO CONTROL ADVOCATES had achieved major victories in the struggle for tobacco settlement funds. Aging advocates parlayed their multi-year campaign for settlement funds and other state funds into the following: $5 million of settlement funds, matched with $13 million of federal Medicaid funds, for a new $18 million PRESCRIPTION DRUG PROGRAM FOR ELDERS; $1 million in tobacco tax revenues for MEALS-ON-WHEELS FOR ELDERS; $3 million from a new tax on rental cars for TRANSPORTATION SERVICES FOR ELDERS; a total of $4.4 million in capital improvement funds for cities and towns to help build SENIOR CENTERS and COMMUNITY CENTERS FOR ELDERS. The down side was that funding for certain other aging services were cut by $465,000 in 2001-2002 and $609,500 in 2002-2003; among the programs cut were LEGAL ASSISTANCE SERVICES and money for the "Aging Arkansas" newspaper. TOBACCO CONTROL PROGRAMS were funded at $18 million annually, which was a major victory and will enable the state to undertake a significant effort in this area.

Aging Advocates Win Huge Victory in Obtaining Millions in Tobacco Settlement Funds for Aging, Health and Tobacco Prevention & Cessation Programs

Friday, April 13th was a lucky day for AGING ADVOCATES as Governor Huckabee signed the twelve appropriations bills which will implement the tobacco settlement funds initiative approved by the voters in November. Earlier the legislature had passed the bills, which provide funding for a number of AGING programs, including MEDICAID EXPANSION, IN-HOME CARE SERVICES, PRESCRIPTION DRUGS, MEALS-ON-WHEELS etc. News reports did not provide specifics on how much will be available in the coming year or two for these AGING programs, but the figure is in the many millions. Tobacco prevention and cessation programs will also be funded at about $18 million annually with the settlement funds. The end of the session also brings an end to two years of struggle over how to allocate the tobacco settlement funds; a struggle that included the voter ballot initiative. Importantly, when all is done, virtually all the settlement money will go for health-related programs, including AGING and TOBACCO CONTROL. Congratulations to all the advocates who saw this through to a successful conclusion.


Sacramento County, CA Awards $50,000+ in Tobacco Settlement Funds to Northern California Senior Legal Hotline

6/17: TCSG has learned from the Northern California Senior Legal Hotline (NCSLH) that they have just been awarded a contract from Sacramento County for $50,000 over the next three years to provide legal education for older persons on various health subjects. In addition, it appears that NCSLH will also receive $15,500 to pay for an outcomes study of this project. The money for this comes from the tobacco settlement funds that Sacramento County receives each year.

San Jose, CA Gets $10 million in Tobacco Settlement Funds Annually; Votes $4.5 million for Elderly Programs, Including Legal Services

On January 31st, a news report stated that the City Council of Jan Jose, California, had voted to use $4.5 million, of the $10 million in tobacco settlement funds it will receive this year, for programs for older persons. In the seniors category of grants, 14 projects received $4.5 million, with most projects focusing on keeping senior citizens healthy and active. Over the next three years, a $2.1 million grant will go to 11 city centers to fill gaps in nutrition, case management and multicultural services. Also in that category, the Gardner Family Health Network will convert a radiology area to a health education and nutrition services center for seniors and pregnant women. The Mexican American Community Services Agency will help low-income adults cover their share of Medi-Cal costs. Catholic Charities of Santa Clara County will provide support for care-givers to help the elderly stay out of institutions for as long as possible. And SENIOR ADULT LEGAL SERVICES will be able to expand its free counseling service and add a telephone hotline for such issues as elder abuse. This is one of the first times tobacco settlement funds are being used for legal services for the elderly, but it wonąt be the last; and, in fact, Sacramento, CA appears likely to do the same this year.


Advocates for Colorado Elderly Quit Their Posts: Denver Post article

The two top people in the Colorado Long Term Care Ombudsman program announced their resignations on May 11th, saying the state muzzled them in their dealings with the legislature and the news media, according to a Denver Post article. Ginnie Fraser and Jan Meyers both resigned from the Ombudsman program, after having given over 21 and 12 years of service to the program, respectively, and earning national reputations for integrity, leadership and innovation. The head of the Legal Center, which has the Ombudsman contract with the state, said she would be meeting with state officials on May 31st to discuss the issues which prompted the resignations and to possibly determine if the Legal Center will continue to be contracted with by the state to run the program. For the Denver Post article, click here. (Also, see short note below.)

Colorado Long Term Care Ombudsman and Legal Services Developer both Resign

On May 10th, Ginny Fraser, the Colorado Long Term Care Ombudsman for the past 21 years, announced that she is resigning from that position effective June 9th. In her letter announcing she is leaving, she indicated that Jan Meyers, the Legal Services Developer for many years, was also resigning. The reasons for the resignations had to do with program operations, according to Ginny's letter. Both Ginny and Jan have been creative and dynamic leaders in their state and nationally for years. Both will be greatly missed.


Prescription Drug Program for Elders to Increase Income Limits as of April 1, 2002

7/12: According to the Connecticut Elder Law Newsletter of the Elder Law Unit of Connecticut Legal Services, Inc., ConnPACE, Connecticut's prescription drug program for seniors, will be expanding its income limits as a result of action this session by the legislature. Next April 1, 2002, the ConnPACE annual income limits will increase to $20,000 for a single person and $27,100 for a couple. On January 1, 2002, DSS will begin to accept applications from persons who will become eligible to participate under the new income limits. If the State receives a federal waiver for federal financial reimbursement, on July 1, 2002, the annual income limit will increase to $25,800 for a single person and $34,800 for a couple. For additional information on accomplishments in the 2001 legislative session, go to the Connecticut Elder Law Newsletter site by clicking here.

Nursing Home Worker Strike & Governor's Response Show How Tricky These Actions and Responses Can Be

In recent weeks, as a May 29th New York Times article describes, a nursing home worker strike demonstrated the risks of such job actions for workers, as well as for governors. As the Times article sets forth, both the workers and the governor may end up as losers in this case. Did the nursing home residents win? Hard to say, although more money was appropriated by the legislature for nursing home care. Click here. for story.

Legal Assistance to Medicare Patients (LAMP) of Connecticut Legal Services, Inc. to Close After 24 Years

The following is a report from the Connecticut Legal Services "online" news report: After 24 years of serving elderly and disabled Medicare beneficiaries, the Legal Assistance to Medicare Patients (LAMP) unit of Connecticut Legal Services, Inc. will be closing. Starting June 1, 2001, most callers to Connecticut Legal Services who have Medicare-related problems will be referred to the Center for Medicare Advocacy. The CLS Elder Law unit will continue to provide limited Medicare representation in situations where CLS is representing a client based on another area of law and the client also has a Medicare issue. Connecticut Legal Services will use the resources formerly devoted to Medicare work to establish a new program addressing Elder Consumer Rights. Connecticut Legal Services' Elder Law unit will also continue its other services to the elderly, including Medicaid and other public benefits assistance, enforcement of nursing home rights, enforcement of elders' housing rights, and the maintenance of the web site and the Elder Law e-mailed newsletter. For more information about LAMP's closing, contact Attorney Cheryl Diane Feuerman of Connecticut Legal Services at 1-800-413-7796. The Center for Medicare Advocacy can be reached at 1-800-262-4414 or (860) 456-7790. For The Center for Medicare Advocacay web site, click here.


Georgia Advocates Score Big Wins in Appropriations Fight in Legislature, Including for Legal Services & the Senior Legal Hotline

When the Georgia legislature finished with its work for the year on March 21st, Georgia elder rights advocates had scored major victories in obtaining increased funding for a wide variety of programs, as follows: $6,502,923 for the Community Care Services Program; $4,000,000 for the non-Medicaid home and community based services program; $434,455 for LEGAL SERVICES for the ELDERLY including $150,00 for the SENIOR LEGAL HOTLINE; $112,014 for 7 additional surveyors for the Office of Regulatory Services for investigating nursing home complaints; $261,013 for Adult Protective Services; $96,000 for a training program for nursing facility staff that care for residents with dementia; $250,000 for an education effort concerning osteoporosis; and $250,000 to draw down federal funds for the National Family Caregiver Support program. These are enhancements to the base budget. It is not totally clear how much of these increases are paid for with tobacco settlement funds, but some of them definitely are. The Georgia Council on AGING and related advocates did a fantastic job again this year in making a strong case with both the governor and legislature for increasing a variety of IN-HOME CARE PROGRAMS FOR ELDERS. The additional funds for legal services make this a very special victory.


Legislature On Verge of Allocating $106 Million of Tobacco Settlement Funds for Prescription Drug Assistance for Elders

While the legislature and governor have yet to agree on the final appropriations for the fiscal year beginning on July 1, 2001, there appears to be agreement that $106 million of the tobacco settlement funds the state is to receive this year will go for the expanded "circuit breaker" program which helps thousands of older persons pay for PRESCRIPTION DRUGS. Last year, $35 million of tobacco settlement funds also went for this program and $1.8 million for senior in-home health services. The allocation of these funds for aging programs, health programs and tobacco prevention and cessation programs has been a major priority of aging and health groups for the past two years, and the advocacy is paying off. Tobacco prevention & cessation programs are expected to receive $50 million, which is an increase over the $29.5 million obtained last year. Congrats to the advocates in Illinois; we look forward to this being finalized.

Illinois Guardianship Reform Project Report Available Online

The Illinois Guardianship Reform Project on March 23rd issued a detailed report documenting the findings and recommendations of its Task Force for improving the adult guardianship system in the state. Included in the report are plans for implementation of key reforms, including new legislation currently being introduced with bipartisan support. Senator Kathleen Parker (R-29) is the lead sponsor, with Senate co-sponsors Lisa Madigan (D-17) and Barack Obama (D-13). In the House, supporters include Representatives Kevin McCarthy (D-37), Barbara Flynn Currie (D-25) and Patricia Reid Linder (R-65). For the full report, click here.

ADA Lawsuit Against Chicago Transit Authority Succeeds in Federal Court

On May 9th, the Federal District Court of Northern Illinois handed down a decision in Access Living of Metropolitan Chicago v. Chicago Transit Authority in which the court upheld a Title II ADA claim against a unit of local government; for a brief analysis of this case by the National Senior Citizens Law Center (NSCLC),, click here. For the full 17 page decision, in pdf, click here. According to the NSCLC, "this may be the first decision applying the Supreme Court's decision in Alexander v. Sandoval, 2001 WL 408983 (Apr. 24, 2001) [in which] a federal court in Illinois has upheld the enforcement of regulations promulgated under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Access Living of Metropolitan Chicago v. Chicago Transit Authority, No 00 C 0770 (USDC, N.D. Ill., May 9, 2001). The case involved a suit alleging that many aspects of the CTA's public transportation system was not accessible and was in violation of the ADA and 504 statutes and regulations. ... The district court first stated that unlike Title VI, ADA Title II and Section 504 did not require intent to discriminate to make a case of discrimination. Discriminatory intent is required only to recover damages. It then stated that plaintiff must prove intentional discrimination, but that under ADA such discrimination arises not only from animus towards persons with disabilities, but also from failure to take affirmative steps regarding transportation, including reasonable modifications. Further, the regulations at issue do not expand the meaning of discrimination; rather they clarify the definition of discrimination. Accordingly, defendant's motion for summary judgment was denied."


Maine Wins Court Appeal Enabling State to Use Buying Power of State to Get Lower Prescription Drug Prices for Elders & Others

On May 16th, in a big win for consumers, the First U.S. Circuit Court of Appeals upheld the right of the State of Maine to begin a plan, enacted last year by the legislature, to use the buying power of large numbers of elders and others to negotiate lower prescription drug prices from the pharmaceutical industry. The pharmaceutical industry said Thursday that it was weighing its legal options in light of the court ruling that lifted an injunction and allowed Maine's pioneering prescription drug law to take effect. The injunction had been won by Pharmaceutical Research and Manufacturers of America, or PhRMA, which argued that the Maine Rx program would unconstitutionally regulate transactions outside Maine and conflict with federal Medicaid law. Marjorie Powell, a lawyer for PhRMA, expressed disappointment at the decision. She said the trade association may ask the entire 1st U.S. Circuit Court of Appeals to review the decision issued by its three-judge panel. Other options, Powell said, include an appeal to the U.S. Supreme Court or a request that the U.S. District Court take up any issues not addressed in the ruling. At the State House in Augusta, Gov. Angus King, Attorney General Steven Rowe and other defenders of the Maine law staged a rally to celebrate the court victory. King said the law could produce savings of 20 percent to 30 percent for beneficiaries. Rowe predicted that other states would be encouraged by the court ruling to follow Maine's lead. In October, a federal judge in Portland granted an injunction that barred the state from enforcing the law until the industry's constitutional challenge could be heard. The law, the first of its kind in the country, would allow Maine to negotiate with drug companies for lower prices for about 325,000 residents who don't have insurance for prescription drugs. It would also let the state impose price controls in three years if negotiations don't lead to steep price reductions. The Rx law lets the state seek rebates from drug manufacturers and labelers that participate in publicly supported prescription programs. For a news article, click here.


Greater Boston Legal Services Attorney Says Giving Medicare HMOs 11 More Weeks to Submit 2002 Plans to Federal Authorities Will Leave Elderly Less Time to Select Their HMOs

7/8: According to a note from the Brennan Center for Justice, "Diane Paulson, managing lawyer for the Medicare Advocacy Project at Greater Boston Legal Services criticizes U.S Department of Health and Human Services (HHS) Secretary Tommy Thompson for giving Medicare health maintenance organizations (HMO) 11 more weeks to submit details of their 2002 plans to federal authorities. As a result of the extension, the federal government's annual July mailing to elderly and disabled persons eligible for Medicare will not contain comparative health plan information. HHS says it will make the information available on the internet, but Paulson says many elderly people do not have access to the Internet and rely heavily on the government mailing to choose their Medicare HMO. Paulson also expresses concern that the extension may not leave the government enough time to prepare a comparative analysis before the start of the open enrollment period. Bob Kievra, Less Time to Decide on HMOs; Medicare Details Late Getting to Elderly, Sunday Telegram, July 1, 2001, at A1."

John Joseph Moakley -- Southie's & America's Treasure

On June 1st in Boston, poor & rich, downtrodden & powerful, supporters-all of John Joseph Moakley paid their last respects to one of South Boston's and America's finest leaders. Joe Moakley rose from a Southie housing project to become one of the most powerful, and loved, Congressional leaders in the nation. Ever a Democrat, Joe also knew how to work with those across the aisle, and he always did it with honesty, integrity, fairness, firmness, and good humor. Joe personified the leader who never forgot his beginnings, or his friends, among whom there were thousands. So many of those friendships grew out of Joe's willingness to help or advise. I was one of those whom Joe took to his side -- he had to, I spent so much time in his state Senate office lobbying him on elderly legislation (which he invariably supported and helped guide to passage). It was Joe who played a crucial role in convincing me to go to law school, even though I was already directing an elder law project and figured I didn't have the time or need to get the law degree; he just told me simply and directly, and with the personal caring that so characterized him, that I'd be better at doing my work for society if I had the degree. As on so many occasions, Joe's advice was right. At his funeral, everyone there had their own Joe Moakley stories; you couldn't know the man without having special memories of him -- such as watching the tears run down Joe's cheeks, as a tough Boston City Councilor, after hearing elderly Roxbury resident Bessie Bankett make her impassioned case for Model Cities money going to the Council of Elders to help older Roxbury residents, and then Joe slamming down the gavel and saying the vote was unanimous in favor of doing so, and then checking with his colleagues to be sure they agreed, and, of course, they did. Joe's support for the elderly, the poor, and legal services never wavered; he will be missed. For a Boston Globe article on John Joseph Moakley, click here. Jim Bergman, TCSG

Novel Approach by Doctors & Lawyers at Boston Medical Center to Advocate for Patients Rights

A New York Times article describes a novel approach taken by pediatricians at Boston Medical Center to improve the overall health of their young patients -- an approach that could work just as well with older patients. The doctors grew tired of seeing their young patients return again and again with health problems caused by poverty, malnutrition and bureaucratic red tape which denied them needed services. The doctors felt these problems undercut their efforts to cure the health problems of their patients. Their solution was to find $175,000 in funding, largely from the City of Boston, to hire three lawyers who work right in the hospital and fight the legal and administrative battles that the doctors identify as threatening the health of their patients. The approach is highly unusual, but makes great sense, and the doctors and lawyers hope it will become a model for others around the country. A similar program operates in Hartford. Click here for New York Times article.


LSC Agrees to One-Year Delay in Implementation of Michigan Plan

7/8: According to a note from the Brennan Center for Justice, "the Legal Services Corporation (LSC) has agreed to a request made by Michigan bar officials and representatives at the LSC Board meeting on June 29 and 30, 2001 for a one-year extension in the implementation of the Michigan reconfiguration plan to allow Michigan state planners to "review the state plan in light of current and future standards." Michigan representatives have also agreed to "work together and start afresh," involving new stakeholders in the state planning process. The agreement is intended to resolve objections raised by Michigan Bar officials, legal services providers and senators to LSC's April announcement that eight LSC-funded legal services programs in Michigan must merge into four. After that announcement, the State Bar of Michigan had criticized LSC for rejecting a state planning recommendation endorsed by the State Bar, the Michigan Bar Foundation, and others, and for instead adopting recommendations put forward by two legal services program directors. LSC has expressed hope that the additional time will "allow for additional stakeholders to become involved in forging a strong and effective state justice community in Michigan." NLADA Update, LSC Board and Committees Meet in New Hampshire, July 3, 2001, on file with the Brennan Center; Letter from Thomas Ryan and John Berry, State Bar of Michigan, to John McKay, LSC (Apr. 27, 2001) (on file with the Brennan Center)."

Community Foundation for Southeastern Michigan announces Grant Awards of over $868,000 from Tobacco Settlement Funds -- Some for Smoke-Free Legal Program Efforts

6/23: On June 21st, the Community Foundation for Southeastern Michigan (CFSEM) announced over $868,000 in grant awards under the Southast Michigan Healthy Youth & Healthy Seniors Fund which comes from tobacco settlement funds allocated to the foundation for projects to improve and protect the health of older persons and youth. Among the 21 grants awarded were a number that focused on smoke-free environments, smoking cessation and/or anti-smoking campaigns, including an 18-month $100,000 grant to The Center for Social Gerontology and its Smoke-Free Environments Law Project to promote the establishment of smoking cessation programs for older adults and to promote smoke-free environments. Previously, in the first round of funding under this program, the CFSEM had awarded over $743,000 in grants; for press release announcing those grants, click here. For the June 21st press release on the most recent round of grant awards, click here. A new round of grants will be awarded in fall, 2001; the application deadline is August 17th, and aging and tobacco prevention and cessation programs in the 7 county southeastern Michigan area should contact CFSEM to apply; grants are for up to $100,000. For more information on this get the phone number and address for CFSEM off the press releases.

Rights of Employees Who Have Encountered Retaliation by Employers after Requesting Accommodation Under the ADA, Including in Cases Involving Secondhand Smoke

6/14: The Smoke-Free Environments Law Project (SFELP), of The Center for Social Gerontology, has been contacted in the past couple of years by a number of persons who have encountered retaliation in the workplace after they complained about the serious health effects of secondhand smoke which they were suffering. As a result, SFELP has prepared an analysis of the federal, Michigan and common law claims that may be available to an employee of any age, including an older worker, who has suffered various forms of retaliation in the workplace after pursuing his/her rights under the Americans with Disabilities Act (ADA), including in cases involving complaints about secondhand smoke in the workplace. While SFELP is concerned with secondhand smoke issues, this analysis applies more broadly to retaliation of various types under the ADA. We were very fortunate in having University of Michigan law student Julie Rusczek prepare this analysis for SFELP. For the full analysis, in pdf format, click here.

Legislation Introduced to Create a State Guardianship Ombudsman

6/8: On June 6th, Representative John Stewart and others introduced House Bill 4916 to create a new Guardianship Ombudsman to investigate complaints of alleged wrongdoing by guardians and conservators, develop educational materials on guardianship and conservatorship matters, advise the legislature on court rules pertaining to guardianship and conservatorship, explore the development of local guardianship ombudsman and volunteer programs, and research approaches to guardianship and conservatorship in other states, including states that use public guardians. The guardianship ombudsman would be located in the Office of the Governor, and would be appointed by the Governor, with the advice and consent of the state Senate. The legislation would seek to appropriate $197,000 for the program for the fiscal year ending September 30, 2001. The bill has been referred to the Committee on Civil Law and the Judiciary. To view the entire bill, click here and type in the bill number as indicated.

$7 Million of Tobacco Settlement Funds Awarded for 48 Long Term Care Innovation Grants, including a Caregiver Mediation Project to be Operated by TCSG, and an Elder Law Program focusing on Pension Recoveries

On May 31st, Governor Engler announced the awarding of 48 grants totaling more than $7 million to local and statewide groups for Long Term Care Innovation Projects. The funds for these projects come from tobacco settlement funds which were appropriated in the fiscal year 2000 budget. Among the projects funded are two that have an elder rights/legal services focus, as follows: $124,000 to The Center for Social Gerontology (TCSG) to create and operate a new Long Term Care Caregiver Mediation Project, which will build on TCSG's decade-long work on mediation in guardianship cases; and $250,000 to Elder Law of Michigan, Inc. to partner with its Legal Hotline for Michigan Seniors and the Michigan Pension Rights Project to expand resources for long term care statewide via pension recoveries. The funds for these projects are a direct result of the aggressive advocacy of the Michigan aging network in seeking tobacco settlement funds for aging programs, which has resulted in over $110 million in settlement funds being allocated for aging programs in the past two years overall. There were three press releases issued on May 31st which described the LTC grants awarded: for the one which includes a brief description of the TCSG grant, click here; for a brief description of the Elder Law grant, click here; for a description of other grants, click here.

Law Preventing Developmentally Disabled Persons From Marrying Repealed

On May 29th, the governor signed Senate Bill 67 into law, thereby repealing a law that has stood for over a hundred years as a barrier to persons marrying who have certain mental disabilities. Elder law and disabilities advocates had fought for some time to repeal this anachronistic law which to this day stood as a barrier to some persons being able to marry. These types of laws, which were common in many states at one time, often referred to persons who were "insane, feebleminded, idiots," etc., as not being capable of being married. Michigan has now joined the 20th century by repealing this section of its laws; however, the state will only join the 21st century when existing case law recognizes the new law and recognizes the rights of persons under guardianship to marry -- something that only the future will tell. Congrats to the advocates who made this happen. For an analysis of this legislation, click here.

New Legal Services Developer -- Brenda Roberts -- to Join Michigan Office on Aging on May 29th, Replacing Long-time LSD Mark Manrique

On May 29th, Brenda Roberts will assume the role of Legal Services Developer for the Michigan Office of Services to the Aging. Brenda will take over the responsibilities so ably carried out for many years by Mark Manrique. Fortunately for the Aging Network, Mark will be taking on other responsibilities at the Office on Aging, including working on elder abuse and financial exploitation issues; the latter are issues that Mark has devoted increasing time to in recent years, and now the Office on Aging wants to expand the activities in this area. We welcome Brenda and will greatly enjoy working with her, as well as continuing to work with Mark in his new roles.

U.S. District Court Rules in Michigan Medicaid Case that Recipients Cannot Sue State Officials to Force them to Provide Medicaid Benefits Guaranteed by Federal Law; Ruling Threatens Basis of Entire Medicaid Program -- Case Could go to Supreme Court

In an important ruling with potentially grave consequences for the entire federal Medicaid program, on March 26, 2001, U.S. District Court Judge Robert Cleland of Detroit stated that Medicaid recipients may not sue state officials to force them to provide the benefits guaranteed under the federal Medicaid law. The ruling in Westside Mothers v. James K. Haveman, et al threatens the foundations of the federal Medicaid program in that it says that the Medicaid program is a contract between two sovereigns, the federal government and the State of Michigan, and Medicaid recipients are beneficiaries of that contract, but have no right to enforce the contract in court. Judge Cleland also stated that the federal government and Michigan are on an equal footing and neither has the power to compel the other to carry out the terms of the Medicaid law. Further, Cleland said that the Constitution says federal statutes shall be the supreme law of the land, but the supremacy clause does not operate upon a state or its officers when Congress enacts a program such as Medicaid pursuant to the spending power. Cleland said that Michigan's accepting federal Medicaid money does not mean that the state has given its consent to be sued by Medicaid recipients to force it to carry out the Medicaid law. This case will be appealed. The New York Times reported that Sara Rosenbaum, a professor of health law and policy at George Washington University, said: "If the ruling stands, it is the end of the Medicaid program as a source of insurance. It makes Medicaid unenforceable by private individuals. The ability to enforce your right to benefits is the essence of insurance. Without that ability, you no longer have health insurance." For the full 95 page ruling, in a pdf file, click here.

Training June 14th on Involuntary Nursing Home Discharges: Strategies for Defending Residents' Rights

The Michigan Poverty Law Program and the State Long Term Care Ombudsman Program are co-sponsoring an important training entitled Involuntary Nursing Home Discharges: Strategies for Defending Residents' Rights on June 14 at the Library of Michigan in Lansing. We are delighted to advise you that the training will feature Eric Carlson, author of "Long Term Care Advocacy" and a nationally recognized expert on residents' rights from the National Senior Citizens Law Center in Los Angeles; Michael Dankert from the Michigan Department of Consumer and Industry Services; ALJ Ed Rodgers from the Bureau of Hearings; and ombudsman staff and lawyers who have been involved with involuntary discharges. The cost for the day is only $10 which includes lunch and voluminous materials. The training is open to any advocates concerned with the increasingly frequent problem of illegal discharges. To register for this training, please contact Kerri Ferrari at MPLP at 734-998-6100 x24. Registration is open until May 25 but space is very limited so please register as soon as possible if you want to attend. In addition, we are considering adding a second 1/2 day on June 15. We have an excellent AARP training module with a mock case which would allow some hands on experience with issue spotting and defending these cases. Moreover, this second morning would provide an excellent chance to strategize on systemic responses to the discharge problem in a small and informal setting and to create stronger networks among advocates. We must know as soon as possible if advocates are interested in this additional morning program so that we can make the necessary arrangements for Eric Carlson to stay, etc. Please email me or Kerri Ferrari ASAP to let us know if you are interested. THANKS!! Alison Hirschel.


Missouri Legislature & Governor Agree on Distribution of FY'02 Tobacco Settlement Funds; Includes $153 million for Elder Prescription Drug Program & Funds for Tobacco Prevention & Cessation

On May 10th, legislative negotiators agreed to a plan for spending the $374 million in tobacco settlement funds the state expects to receive in the coming year. Among key provisions in the agreement is that $153 million will be dedicated to help ELDERS PAY FOR PRESCRIPTION DRUGS, either through the existing income tax credit program or through a new subsidy program which is still pending in the legislature. In addition, a portion of the funds will go to tobacco prevention & cessation programs, although the news article did not specify how much that will be. Governor Bob Holden has said he finds the legislative agreement one he can live with. The tobacco settlement spending bill must still pass both the House and Senate and be signed by the governor, but that looks very likely shortly. The spending plan is for the fiscal year beginning July 1, 2001 and ending June 30, 2002. This is a huge victory for both AGING and tobacco control advocates.

Missouri Senate Committee & House Agree on $89.3 million of Tobacco Settlement Funds for Prescription Drug Program for Elders for FY'02

On May 7th, the Missouri Senate Appropriations Committee voted on a plan for spending the tobacco settlement money for the coming fiscal year. The plan approved by the Committee would allocate $89.3 million for the PRESCRIPTION DRUG PROGRAM FOR ELDERS. This is the same amount approved earlier by the full House and is supported by Governor Holden. Therefore, prospects of this being appropriated are quite good at this point. The Senate Committee also approved allocating $32 million of the settlement funds for tobacco prevention and cessation programs; the House had approved $14 million, so that is one area where a conference committee may have to work out the differences. For news article, click here.

Prescription Drug Coverage for Elders Gets $127 Million of Tobacco Settlement Funds and May Get More in Coming Year

On May 1st, the Missouri House approved a bill that lays out how the annual tobacco settlement money will be spent. The plan proposes allocating 60 percent of the annual tobacco revenues to health care and PRESCRIPTION DRUG COVERAGE FOR THE ELDERLY, 10 percent to ANTI-SMOKING efforts, 10 percent to early childhood and youth development programs, and 20 percent to sciences and medical research. If approved by the Senate and the Governor, the bill would then be brought to the voters. If passed by the voters, the plan will take effect July 1, 2002 and would guide the spending of the tobacco funds for the next 25 years. Earlier in the session, on April 18th, both the House and the Senate passed a bill that would use $127 million in tobacco settlement revenue to cover the shortfall in the current fiscal year budget. The supplemental budget spending package for the fiscal year that ends June 30, 2001 includes $126.9 million in tobacco revenues to pay off a two-year shortfall that has accumulated because of a costlier-than-expected PRESCRIPTION DRUG tax credit for the ELDERLY. The prescription income tax credit of up to $200 for senior citizens was enacted in 1999 and was expected to cost the state $20 million. Due to faulty calculations and unanticipated costs, the plan ended up costing $89 million. Despite the fact that the House initially rejected Governor Bob Holden's idea back in February, the House passed this bill 87-51 and the Senate passed it 24-6; the Governor will sign it, of course.


Sally Ramm Joins Nevada Division for Aging Services as New Legal Services Developer

In early June, Sally Ramm joined the Nevada Division for Aging Services as the new, full-time Legal Services Developer. Nevada had been without a LSD for a short period of time after Betsy Kolkoski left the position to assume a judgeship. We are delighted that the Aging Network will have an enthusiastic and capable replacement for Betsy. Welcome, Sally.


Empire Blue Cross Blue Shield closer to Converting to For-Profit; Foundation to be Created with close to $1 Billion of Assets to be Used for Health Care-Related Programs

On June 22nd, the New York Times reported that Empire Blue Cross Blue Shield was close to getting the approvals needed to convert from a non-profit corporation to a for-profit. As a condition of doing this, Empire would be required to create a foundation, into which a substantial amount of cash would be poured. According to the Times, "Empire Blue Cross and Blue Shield, which has been seeking permission from New York State to convert to a for-profit company for five years, has made a giant leap toward that goal by striking a deal with the loudest, most powerful opponents of the conversion. The company, which originally said that it would set up a $1 billion charitable foundation to help provide health care for the state's poor, has told hospital leaders that it will now press the State Legislature to give half the money to hospitals. Empire has been consistently rebuffed since it went to the state in 1996 to seek the conversion, first because the company's balance sheet was too weak and later because Attorney General Eliot L. Spitzer insisted that such a conversion be approved by the Legislature." Similar requirements have been placed on BC/BS plans in other states when they have gone to for-profit status, but the big issue is always what the assets will be available to be spent on. The reported allocations raise questions of whether advocates for poor old and young people will challenge giving half the money to hospitals with no strings attached that assure that the money would actually go directly for health care. Advocates might also insist that the money go for services, including legal services, to protect the rights of old and young persons in health care settings. For more on this, click here.


Tribal Lawyers Insist on Role in Any Tobacco Settlement Talks in U.S. Justice Department Lawsuit

7/8: The lawyer representing the Cherokee Nation of Oklahoma has fired a shot at the U.S. Justice Department for refusing to include Native American tribes in any settlement talks which the Justice Department may enter into with the tobacco industry concerning the massive lawsuit filed during the Clinton Administration. Attorney Lloyd Benton Miller, representing the Cherokee tribe and other tribal health care providers, has written Attorney General Ashcroft and made calls to the Justice Department, but is receiving no response. Miller said that "the United States has a legally binding trust responsibility to protect the interests of Native American tribes. No other segment of the American population has been as severely impacted by the health effects of tobacco as Native Americans." For more, click here.

Advocates Question Value of "Continuum of Care Task Force;" Allege that it's purpose is to attack State Nursing Home Ombudsman

In a June 11th article in The Oklahoman, elder rights advocates charged that the goal of the Chairman of the Continuum of Care Task Force was to "publicly embarrass" the State Nursing Home Ombudsman, Esther Houser. The Task Force was created to examine all types of long term care for elderly Oklahomans, but Task Force members allege that the group has become dysfunctional and dominated by nursing home industry representatives who are intent on using the group to "hash out problems in the nursing home industry," not to develop "a vision for the entire continuum of long term care." Some advocates, including the state Legal Services Developer, Richard Ingham, are calling for the Task Force to disband; one member, Dr. Jean Root, is resigning from the 3 year old Task Force because "it's gotten silly," and so rancorous that it is no longer productive. To read the entire news article, click here.

Pilot Public Guardianship Law Enacted; Also, Law Guiding How Tobacco Settlement Funds to be Distributed

6/5: When the legislature adjourned recently, it left a raft of legislative enactments, reports Legal Services Developer Richard Ingham, including HB 1106 which creates a pilot public guardianship program, and HB 1003 which establishes the structure for utilizing the Tobacco Settlement Endowment Trust Fund that was created by State Question 692 which Oklahoma voters approved last November. The Governor signed both bill into law and they are effective immediately. Earlier, as noted below, a major new law was enacted creating an Office of Elder Rights & Legal Services Development. A mighty good year for elder advocates.

Under the pilot public guardianship program the Department of Human Services is directed to establish and operate a public guardianship pilot program if sufficient funds are available. In addition, an Office of Public Guardian will be created within the DHS to "serve as a public guardian for eligible wards." The office "shall be a source of guardians, attorneys for guardians and wards" and ultimately will "be a source of information and assistance on guardianship and alternatives" for needy people, such as nursing home residents who have no surviving family. Richard Ingham says that one of the purposes of the office will be to provide "information regarding less restrictive alternatives" to guardianship, and that the evaluating board will examine a number of matters, such as the role of volunteers. Advocates believe one immediate effect will be to relieve APS workers who now serve as de facto public guardians in some cases. The program will be taken statewide only after evaluation by a board conversant with the needs of aging Oklahomans. Title VII advocates -- the head of APS, the state Ombudsman and the state Legal Services Developer -- each appoint two members to the evaluating board; also, the recently formed Advocacy Partnership for Aging Oklahomans will be represented on the board. The Board is also to consider the role of professional guardians. To access this or other bills, click here. and scroll down to Text of Measures and click on Enrolled under House Measures; then click on the bill number.

House Bill 1003 establishes the structure for utilizing the Tobacco Settlement Endowment Trust Fund that was created by State Question 692 which Oklahoma voters approved last November. HB 1003 is designed to provide a mechanism for the investment and distribution of Oklahoma's share of national tobacco settlement funds -- an estimated $2 billion ultimately. A Board of Investors will be responsible for investment of tobacco settlement funds. Additionally, the board will hire a fund manager who will be responsible for the investment of tobacco settlement funds. A second group, the Board of Directors, will be responsible for the distribution of funds in the form of matching grants. The directors will be required by the measure to develop a "multiyear strategy" in order to guide their funding for programs. The board also is directed by HB 1003 to "develop grant programs for private, nonprofit and public entities." One of the priorities to receive some of these funds is aging services, and, hopefully, aging interests will be represented on the Board.

Nursing Homes: A Culture of Corruption -- Oklahoma's Story

CBS News did a feature on the evening news on May 23rd titled A Culture of Corruption which examined corruption in the regulation of nursing homes in Oklahoma. The story featured an interview with Oklahoma's Nursing Home Ombudsman, Esther Houser, in which Esther made clear that such corruption is serious and life-threatening. The show also made clear how important the Nursing Home Ombudsman program can be in protecting nursing home residents. (It is also worth noting that last year Oklahoma advocates drew strength from the investigation of this nursing home scandal and turned that into an opportunity to strenghten the laws in the state and to obtain a substantial amount of funds to be used to expand the Nursing Home Ombudsman program.) Click here to see the CBS story and related stories.

Oklahoma Enacts New Law Establishing "An Office of Elder Rights & Legal Assistance Services Development;" Governor Signs Law on April 16, 2001, Making Law a Model for other States

On April 16th, Oklahoma Governor Keating signed into law a first-in-the-nation act which establishes "An Office of Elder Rights & Legal Assistance Services Development." Passage of this legislation had been one of the top priorities of the Oklahoma Aging Network, including the Silver-Haired Legislature, this session and reflected the high regard in which the Oklahoma Legal Services Developer is held by all parties, including the legislative and executive branches. The new law sets forth the duties and responsibilities of the new office, which is "to provide leadership for improving the quality and quantity of legal and advocacy assistance as a means of ensuring a comprehensive elder rights system for Oklahoma's vulnerable elderly." The office, located in the Aging Services Division of the Department of Human Services, will be headed by a full-time State Legal Services Developer. The current Developer, Richard Ingham, Esq., will continue to serve in this position -- as he well-deserves to do. The new law is modeled on the Elder Rights & Legal Assistance Development section of Title VII of the federal Older Americans Act as passed in 1992. Oklahoma is the first, but hopefully not the last, state to enact such a law; this will serve as the model for the nation. Click here for the new law.


Senate Rules Committee Approves Plan to Raise Tobacco Tax to Pay for Prescription Drug Program for Older Persons

7/1: On June 29th, the Senate Rules Committee approved an amendment to House Bill 3433 which would raise the cigarette tax by 10˘ a pack to fund a new PRESCRIPTION DRUG PROGRAM FOR LOW-INCOME ELDERS. The amendment was a bit of a surprise and is attached to a bill that has other provisions that legislators want. However, whether it will pass and be signed is another question. While there is widespread support for the prescription drug program, the tobacco lobby is adamantly opposed to the tax increase because it will result in some decrease in sales of cigarettes, and already the RJ Reynolds lobbyist is calling supporters of the tax zealots and threatening a bitter fight. Under the amendment, it would be up to the Department of Human Services to decide how the $15 million in annual tax revenues would be spent on a prescription drug program; it is also clear that the $15 million would be a small amount of what is needed for a comprehensive drug program for low-income elders. This will bear close watching. Click here for news article.


Senior Citizen Judicare Project (Pa.) Launches Project to Help Immigrant Elders

6/30: This note is from the Brennan Center for Justice: The Senior Citizen Judicare Project (SCJP), a non-profit organization established by the Philadelphia Bar Association to protect the legal rights and interests of Philadelphia's indigent, elderly residents through free legal services, community legal education, advocacy, professional training, advice, information and referral services, has launched a new project to help immigrant elders in their own languages, including Spanish, Cantonese and Mandarin. Elderly clients receive assistance from SCJP staff attorneys and a panel of volunteer lawyers. [Karen C. Buck, Judicare Launches New Service for Asian, Latino Elders, The Legal Intelligencer, June 22, 2001, at 5.]

$73 Million in Tobacco Settlement Funds Allocated for Prescription Drugs and In-home Care for Older Persons; $42 Million for Tobacco Prevention & Cessation

6/21: It's been a long wait for the Pennsylvania legislature to finally decide what to do with their tobacco settlement funds; in fact, they are one of the two last states to allocate the funds. For older persons, the wait was well worth it. A total of $73 million is about to be allocated for aging programs for the coming fiscal year: $45 million for HOME AND COMMUNITY-BASED CARE, and $28 million for EXPANSION OF THE PRESCRIPTION DRUG PROGRAM FOR ELDERS. Plus, $42 million will go for TOBACCO PREVENTION AND CESSATION PROGRAMS. Importantly, while the actual dollar amounts will vary somewhat each year based on settlement payments, the percentages going for the various programs will remain the same, with HOME CARE GETTING 13%, PRESCRIPTION DRUGS GETTING 8%, AND TOBACCO CONTROL GETTING 12% of the total. The governor and legislative leaders announced the agreement on the allocations on June 20th, and they are expected to be enacted on June 21st. This is an incredible victory for aging, health and tobacco control advocates who have been fighting this battle for over two years. Aging advocates developed their strategy early on -- and TCSG is pleased to have been a small part of that process -- and they stuck by it, with enormous amounts of local efforts and statewide advocacy. The prescription drug expansion will open the program to an estimated 10,500 more older persons. The in-home services program expansion will virtually double the number of persons covered by this program to keep elders in the community. The tobacco prevention and cessation funding is a dramatic increase over the $2.2 million the state now spends on these efforts and will pay enormous short and long-term benefits for the health of millions of persons, old and young. A GREAT VICTORY!! CONGRATS TO ALL WHO MADE IT POSSIBLE! Click here for press release with accurate dollar figures on the allocations. Click here for news story which has the dollar figure wrong for the prescription drug program, but is otherwise accurate.


Senator Phil Gramm Criticizes LSC Consolidation of Texas Legal Services Programs

According to a May 17th e-mail from the Brennan Justice Center, U.S. Senator Phil Gramm (R-Tex.) has criticized the April announcement by the Legal Services Corporation (LSC) that the ten programs it funds in Texas must be reconfigured into three programs. In a press release, Senator Gramm notes that the new Texas programs would be "the 3rd, 4th and 5th largest legal services programs in the country." He says, "I do not believe that larger programs operated by distant bureaucracies can effectively deliver basic legal services to low-income people. In a June 1999 study, for example, the General Accounting Office found that five of the LSC's largest grantees overstated by one-third the number of cases they closed on behalf of low-income clients." Senator Gramm argues that "the Clinton Administration holdovers running" LSC should wait to implement the reconfiguration until President Bush has appointed new LSC board members and the new members have reviewed the plan. "If the LSC fails to do so," he concludes, "I will seek a legislative remedy as part of LSC's annual appropriation." According to Senator Gramm's press secretary, Larry Neal, a letter jointly authored by Senator Gramm and U.S. Senator Kay Bailey Hutchison (R-Tex.), asks the White House general counsel to consider urging the LSC Board to withhold taking action on the proposed Texas consolidation until the new LSC Board can review the plan.


U.S. Appeals Court Strikes Down Vermont Drug Discount Program; Implications for Other States

On June 8th, the U.S. Court of Appeals for the District of Columbia in Pharmaceutical Research & Manufacturers of America v. Tommy Thompson, HHS struck down a Vermont program, approved by the U.S. Department of Health & Human Services (DHHS), which provided reduced prescription drug prices to enrollees in the program. In its summary of the decision, the court stated as follows: "The Medicaid statute requires pharmaceutical manufacturers to rebate a portion of the price of their drugs as a condition for participating in Medicaid. In this case, pharmaceutical manufacturers challenge the Department of Health and Human Service's approval of a Vermont demonstration project requiring the manufacturers to rebate a portion of the price of drugs purchased directly by certain individuals who are not otherwise covered by the state's Medicaid program. Because Congress imposed the rebate requirement in order to reduce the cost of the Medicaid program, and because no Medicaid funds are expended under the Vermont demonstration project and thus no Medicaid savings produced by the required rebates, we conclude that the Department lacked authority to approve the project. We therefore reverse the district court's decision to the contrary and remand for further proceedings." In its opinion, the court wrote: "For several years, Vermont has administered demonstration projects that extend pharmaceutical benefits to classes of individuals not otherwise covered by Medicaid. By letter dated March 17, 2000, Vermont sought HHS approval to "extend the Medicaid ... rebate structure" to nearly 70,000 new demonstration project beneficiaries, thus requiring pharmaceutical manufacturers to pay rebates on drugs purchased by this group. Known as the Pharmacy Discount Program, or "PDP," the expanded services would be funded as follows: Pharmacies would charge new beneficiaries the Medicaid price of a given drug minus the estimated average rebate Vermont receives for all drugs (approximately eighteen percent in 2000). Vermont would pay the pharmacies the eighteen percent and then bill manufacturers for that amount. As a result, PDP benefits would be paid not with funds appropriated by Congress and the states for Medicaid services, but by beneficiaries (eighty-two percent) and drug manufacturers (eighteen percent). By letter dated November 3, 2000, HHS approved the PDP." The court ruled that, since the Vermont program covered persons not in the Medicaid program, the DHHS lacked the authority to approve the Medicaid Demonstration Program proposed by the State of Vermont. Because this program is one that other states have copied, the decision has potentially much broader implications. DHHS is reviewing the decision to determine whether to appeal it. Click here for the full decision.


Key Legislative Committee Agrees on $44 Million for New Prescription Drug Program for Elders; Made Possible Due to Tobacco Settlement Funds

On June 7th, the Legislature's Joint Finance Committee reached a bipartisan deal to finance the 2001-2003 state budget, and included in that deal is $44 million for a new PRESCRIPTION DRUG PROGRAM FOR ELDERS. While this deal must still be approved by the Assembly and Senate, it appears that the prescription drug program will be accepted by both chambers. The drug program had been pushed vigorously by the Senate Democrats. Wisconsin dumps all its tobacco settlement funds into the overall revenue pot, so it is tough to tell exactly what the settlement money pays for, but it is quite clear the prescription drug program would not have been agreed to without the settlement money this year because the Joint Finance Committee also voted to include $450 million from the settlement in the overall budget, which is $100 milion more than the governor had sought in his budget. The Committee also voted to have the state sell its share of future tobacco settlement funds now so that it can obtain a large payment immediately to help balance the budget and pay for programs such as the prescription drug plan.

The Center for Social Gerontology, Inc.
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Last updated May, 2001