Real Estate

Eminent Domain and Just Compensation

By: Zachary H. Brown

How does government acquire the land it uses to install utilities or construct new roads? It exercises an authority that is called eminent domain. Eminent domain allows the government to take private property if it is for a “public use.” The phrase “public use” is contentious since, depending on who is defining it, could greatly limit or increase the government’s authority to take private property. This article gives some background on what eminent domain is, and how property owners can either fight it or at least be fully compensated for it.

The Fifth Amendment to the United States Constitution, in part, reads that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Courts have usually deferred to what the legislature defines as “public use” rather than deciding for themselves. A generic definition of a public use is that the property does not have to be used by the public, but rather the property must be taken for a public purpose. Courts have ruled that this public purpose can be served through a governmental department, or even a private enterprise, and still satisfy the “public use” requirement.

Governments use eminent domain for a number of different reasons. Some are obvious, but others are somewhat surprising. Eminent domain is most commonly used when governments have to do things such as acquire land for roads, or build power lines, where the government is providing an important function to the local community. However, government will, in some cases, acquire downtrodden or “blighted” areas of the community and attempt to redevelop them in order to increase the economic and cultural output of those areas. Governments can do this because positive economic development is a good for the public, therefore the taking of private property is done for a public purpose.

As mentioned, government can only take property using eminent domain when it gives the property owner just compensation. What exactly is just compensation? Most people would say the fair market value of whatever land the government is trying to take. However, the question can be more difficult than that. What if the property has structures on it, connects one piece of the property owner’s land to another, or the taking negatively impacts the use of the remainder of their property? Florida law dictates that the answer to those questions is something that is decided by  a jury selected from citizens in the local community.

If a property owner feels that the compensation offered was not just, challenging the government can get expensive. That’s why the Florida Legislature has enacted a law that states the property owner has a right to reasonable attorney’s fees and appropriate expert costs for eminent domain proceedings in the Circuit Court. There are limits on this right, and courts have held that this right only extends to fees that are “incurred in the defense” of eminent domain proceedings. It is important to consult with an attorney before deciding if an eminent domain case is worth fighting in court.

Eminent domain is a powerful, but very necessary, tool the government uses to provide important functions for its constituents. However, it can be an infringement on private property owner’s rights unlike anything else the government does. If you become aware of or receive notice of an eminent domain action that may impact your property, it is important to consult with a local attorney about the rights and remedies that you may have.

Zach Brown is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Retroactive Medicaid in Florida Has Been Eliminated: Is This Good or Bad?

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Medicaid is a joint federal and state health insurance program that will help many people with limited income and resources pay for their health care. For those with disabilities or illness and no funds available to pay for care, Medicaid health insurance is often the only option available to pay for their medical services.

Since 1972, Retroactive Medicaid Coverage (“RME”) has been available for individuals to receive Medicaid coverage up to three (3) months before they have even submitted an application for Medicaid benefits. The goal of RME was to protect people that were eligible for Medicaid benefits but did not know to apply for assistance until after they had received medical services or because a sudden injury or illness prevented them from applying timely for assistance. RME meant that individuals (that truly had minimal assets or income) who ended up in a health crisis would be able to receive benefits to pay providers for care they had received. However, Florida RME is no more.

The State of Florida requested and received authority from the Centers for Medicare and Medicaid Services to eliminate RME. Effective February 1, 2019 Florida has eliminated RME for most Medicaid programs in the state. RME will only remain in effect for pregnant women or children under age 21. However, everyone else that may need coverage (such as an elderly woman in a nursing home or a 30-year-old in a catastrophic car accident) will not have this option to pay for their medical services. To receive Medicaid benefits, a person must now file for benefits in the month they received medical services.

The goal of cutting RME is to save the state and federal governments substantial funds in their annual budget appropriations. It is estimated that cutting RME in Florida will save the state and federal government footing the bill for Medicaid approximately $98 million per year. However, the government’s savings will result in medical providers almost certainly not receiving any private pay or insurance payment for many services they are providing to these people (as people who need Medicaid have very limited income or resources). In turn, this may lead to higher future costs for medical services to those of us that are able to pay for our medical services.

As an elder law attorney, I often come across seniors (sometimes incapacitated seniors) with minimal or no assets that are not even aware that they need Medicaid to pay for their nursing home care. They might not find out until after their primary insurance benefits (Medicare and/or Tricare) have been fully exhausted and when insurance companies refuse to pay for any further skilled nursing care. RME is vital for these seniors to avoid discharge from the nursing home for non-payment. Only time will tell if the elimination of RME was a good thing that saved our state and federal governments (and us as taxpayers) substantial money or a bad thing that financially harmed our medical service providers (with large accounts receivable from people that cannot afford to pay their medical bills) and those people who already had no means to pay for their own medical services.

It is more imperative now than ever to have a basic understanding of Medicaid programs for senior care so that family can act quickly to gain eligibility for these benefits if they are ever needed in the future. Elder law attorneys typically specialize in this area of the law and can assist in proactive planning to pay for senior care in the future.

Kevin Albaum is a shareholder in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.