Wheaton v. McCarthy: A Hotline Success Story

By Michael Walters, Legal Hotline Managing Attorney, Pro Seniors, Inc. and Project Specialist, CERA

Three prescription medicine bottles with pennies.On September 1, 2015, the Federal Sixth Circuit Court of Appeals issued a decision in Wheaton v. McCarthy, 800 F.3d 282 (6th Cir. 2015).  The Wheaton Court held, in a case of first impression for the Federal courts, that in determining eligibility for Medicare savings programs (MSP), the definition of family must include the non-Medicare eligible resident spouse of the applicant.

Medicare savings programs (such as QMB, SLMB, and QI-1) are federally mandated Medicaid benefits which pay the Part B Medicare premium and, in some cases, the Medicare deductibles and copayments for eligible beneficiaries. Eligibility for the programs is determined by whether the applicant has income which is less than 135 percent of the Federal poverty level. The determination of whether household income meets eligibility standards depends in part of the number of persons in the “family.” Ohio (as with several other states) only counted persons who were eligible for Medicare as part of the “family”. Thus, an applicant for an MSP who had annual income of $16,000 for 2015 and who had a 64-year-old spouse who was not yet entitled to Medicare, would not be eligible for any MSP because Ohio considered the family size of the applicant to be one person, even if no one else in the family had income. This policy resulted in thousands of otherwise eligible Ohio seniors being denied the benefits of these important programs.

Wheaton is groundbreaking law and the decision could potentially benefit hundreds of thousands of seniors if the reasoning of the Sixth Circuit is adopted elsewhere.  But one interesting aspect of the case is the role of the Pro Seniors, Inc. legal hotline in developing the case. Senior legal hotlines are a statewide mechanism that allows issue spotting and development of legal problems affecting seniors throughout the state. Wheaton is an illustration of how hotlines can help develop impact litigation benefiting senior citizens.

Pro Seniors' LogoIn 2011, Tom Bedall, the managing attorney for Pro Seniors, was completing an MSP application for a client. The client had a spouse and dependent children. Unlike the standard Ohio application for Medicaid and food stamps, Tom discovered the MSP application did not provide a way to list children in the “household.”  Further research revealed the problem. Only Medicare beneficiaries were treated as part of the household for purposes of eligibility for MSPs.

Tom met with our staff attorneys to discuss the problem and to seek help identifying affected clients. Our hotline had already participated in a project identifying potentially eligible MSP beneficiaries, and our case management system already included flags to alert the hotline attorney that the client’s income (captured at intake) met MSP eligibility standards. Tom discussed the potential issue with the hotline attorneys and asked the attorneys to help identify potential clients.

Over the next few months, the hotline identified several clients and referred them to staff attorneys to help develop their cases. This allowed Pro Seniors to obtain multiple named plaintiffs across the state. Congress for many years has been concerned at the low enrollment rate in the MSPs.  The Wheaton case has eliminated one of the barriers to enrollment which could benefit senior citizens across the nation.

The existence of our hotline was critical to developing this litigation. Our hotline intake annually captures over 6,000 Ohio seniors calling about a variety of legal problems. The hotline can therefore be an invaluable resource for identifying affected clients and referring those clients to our litigators for representation. The task of identifying potential clients was accomplished in a matter of a few months. The same task would have taken much longer if not for our thousands of existing hotline clients.

The senior hotline in Ohio played an invaluable part in identifying the problem, finding affected clients, and changing the law to help seniors with Medicare costs. Senior hotlines are a unique tool in resolving global legal problems affecting seniors.

Miriam Sheline and William Hambley, staff attorneys at Pro Seniors, litigated the Wheaton case.

Leave a Reply

Your email address will not be published. Required fields are marked *