APRIL 13, 1998 VOLUME 5, NUMBER 41
Last summer, in a cynical move to fix blame for the burgeoning cost of long term nursing care on someone, Congress adopted a punitive new measure widely referred to as the "Granny's Lawyer Goes To Jail" law. In essence, the new law decreed that anyone who charged a fee for advising seniors how to plan for government assistance with long-term care costs risked committing a federal crime. As we noted at the time, "the good news, if there is any, is that the new law is probably unconstitutional and almost certainly unenforceable."
Now two important national figures have agreed with that assessment. In December, 1997, the New York State Bar Association filed suit against enforcement of the new law, and asked the judge for an injunction barring the government from taking any steps to implement it. Last month U.S. Attorney General Janet Reno formally agreed that the law was unconstitutional.
In a letter to both houses of Congress, Reno explained that she declined to enforce the Granny's Lawyer Goes To Jail law. She noted that the advice itself might be perfectly legal--in other words, that the person receiving the advice might have every right to follow it without any repercussions whatsoever. The law, she wrote, "would prohibit attorneys and other professional advisors from 'counsel[ing]' their clients to engage in an estate-planning strategy that itself is lawful." Consequently, the attempt to chill lawyers from giving lawful advice violates First Amendment rights to freedom of speech.
Based on her recognition of the unconstitutionality of the new law, Reno wrote, she was required to inform Congress "that the Department of Justice will not defend the constitutionality" of the law. "I also am hereby informing the Congress that the Department of Justice will not bring any criminal prosecutions under the current version of that Section," she added.
Though Reno acknowledged that the new law is unconstitutional, she opposed the entry of an order prohibiting its enforcement. Since she had no intention of enforcing it, and since she is the head of the agency charged with enforcing it, she reasoned, no injunction was necessary. The New York State Bar Association did not agree, arguing that another administration could reinvigorate the law, or that policies within the current administration could change. To protect lawyers who are only trying to give good advice to their clients, said the Bar Association, the law must be struck down.
The Federal Judge assigned to the case apparently agreed with the New York State Bar Association. Late last week, Judge Thomas J. McAvoy barred the government from enforcing the law.
Attorneys who regularly advise seniors (and their families) can breathe a deep sigh of relief, but probably not for long. Attorney General Reno specifically advises Congress in her letter that her office is more than willing to "assist Congress ... in attempting to draft new legislation" that would not be blatantly unconstitutional. Since the cost of long-term care is a large (and growing) part of federal and state budgets, new restrictions on the availability of such care seem likely.
Although Congress can not restrict the ability of lawyers and other advisors to give completely legal advice, it may choose to act directly to limit the usefulness of that advice. In the past, for instance, Congress has considered extending the "look-back" period for gifts made by long-term care applicants from three years (for most purposes) to five or more. Changes might be made in the method of calculating ineligibility periods caused by gifts, as well.
It is too early to predict what changes might be made. It is easy to predict, however, that long-term care eligibility rules will be changed by Congress in the next two years.