This is something that I run into a lot as well. In order to protect the cash value of an IRA for long-term care planning purposes, it must be cashed out and a tax will have to be paid on that withdrawal. However, for most clients, the cost of long-term care will be far greater than any tax consequences of cashing out an IRA. And keep in mind, the tax will have to be paid on that IRA at some point in the future.
http://protectingseniorsnews.com/2011/10/03/dont-let-your-ira-keep-you-from-protecting-your-life-savings-against-long-term-care-costs/
Discussion of Elder Law and Estate Planning and Missouri Medicaid eligibility.
Thursday, November 17, 2011
Friday, November 4, 2011
November Veteran's Benefits Seminar!
Veteran's Benefits Seminar
November 17, 2011
6:00 PM
Heisinger Bluffs
1002 West Main Street Jefferson City, MO 65109
Jefferson City, MO 65109
(573) 636-6288
November 17, 2011
6:00 PM
Heisinger Bluffs
1002 West Main Street Jefferson City, MO 65109
Jefferson City, MO 65109
(573) 636-6288
Wednesday, October 12, 2011
Tuesday, September 20, 2011
I sat behind the Westboro Baptist Church
members that were attending yesterday's hearing in the Eighth Circuit in St. Louis. They were the first ones to be heard, of course, and it looked like the Westboro Baptist Church was challenging the constitutionality of a Missouri statute that was apparently enjoined by the district court. Apparently, the statute requires protesters at a funeral to stay a certain distance away from the funeral. At any rate, it was a nice palate cleanser before my oral argument.
After the Westboro Baptist Church oral argument concluded, about 75% of the courtroom cleared out. Hey, I thought you guys were here to hear my Missouri Medicaid case?
After the Westboro Baptist Church oral argument concluded, about 75% of the courtroom cleared out. Hey, I thought you guys were here to hear my Missouri Medicaid case?
Monday, September 19, 2011
Monday, September 12, 2011
Transfer of Medicaid Applicant's House to Son Falls Within Caregiver Child Exception
A New Jersey appeals court rules that the transfer of a Medicaid applicant's house to her caregiver son is not subject to a Medicaid penalty period because it falls within the caregiver child exception. V.P. v. Dept. of Human Services (N.J. Sup. Ct., App. Div., No. A-2362-09T1, Sept. 2, 2011).
V.P. lived with her son, R.P. Following a stroke, she entered a nursing home, transferred her house to her son and applied for Medicaid benefits. The state determined V.P. impermissibly transferred her home and was subject to a penalty period.
V.P. appealed, arguing her house was not a countable asset because the transfer fell within the caregiver child exception. At a hearing, several family members and V.P.'s doctor testified that R.P. helped V.P. walk, bathe, and cook, among other things. The administrative law judge (ALJ) found the witnesses credible and determined the caregiver child exception applied. However, the state's Medicaid director rejected the ALJ's decision and concluded V.P. needed only normal support services, so the transfer was not eligible for the caregiver child exception. V.P. appealed.
The New Jersey Superior Court, Appellate Division, reverses, holding that V.P. is entitled to Medicaid benefits with no penalty period. The court rules that the director did not demonstrate that the ALJ's findings were arbitrary and capricious. According to the court, "the credible evidence in the record supports the ALJ's finding that V.P needed, and R.P. provided, special care and attention essential to her health and safety."
For the full text of this decision in PDF, go to: http://www.judiciary.state.nj.us/opinions/a2362-09.pdf
V.P. lived with her son, R.P. Following a stroke, she entered a nursing home, transferred her house to her son and applied for Medicaid benefits. The state determined V.P. impermissibly transferred her home and was subject to a penalty period.
V.P. appealed, arguing her house was not a countable asset because the transfer fell within the caregiver child exception. At a hearing, several family members and V.P.'s doctor testified that R.P. helped V.P. walk, bathe, and cook, among other things. The administrative law judge (ALJ) found the witnesses credible and determined the caregiver child exception applied. However, the state's Medicaid director rejected the ALJ's decision and concluded V.P. needed only normal support services, so the transfer was not eligible for the caregiver child exception. V.P. appealed.
The New Jersey Superior Court, Appellate Division, reverses, holding that V.P. is entitled to Medicaid benefits with no penalty period. The court rules that the director did not demonstrate that the ALJ's findings were arbitrary and capricious. According to the court, "the credible evidence in the record supports the ALJ's finding that V.P needed, and R.P. provided, special care and attention essential to her health and safety."
For the full text of this decision in PDF, go to: http://www.judiciary.state.nj.us/opinions/a2362-09.pdf
Tuesday, September 6, 2011
Medicaid Applicant Who Successfully Argued Trust Was Not Countable Is Entitled to Attorneys' Fees
A U.S. district court in Oklahoma grants attorneys' fees to woman who received Medicaid benefits after successfully arguing in court that her trust was not a countable resource. Hauenstein v. State (U.S. Dist. Ct., W.D. Okla., No. CIV-10-940-M, Aug. 26, 2011).
Marcia Hauenstein applied for Medicaid benefits, but the state imposed a penalty period due to a trust established by her father. Ms. Hauenstein sued the state in federal court, arguing the trust was not a countable resource. Following motions for summary judgment, the court found for Ms. Hauenstein (Hauenstein v. State ex rel. Oklahoma Department of Human Services, W.D. Okla., No. CIV-10-940-M, May 19, 2011) and the state granted her Medicaid benefits.
Ms. Hauenstein filed a claim for attorneys' fees. The state argued that Ms. Hauenstein is not entitled to attorneys' fees because she did not receive judgment under 42 U.S.C. § 1983 and she was certified for Medicaid before the judgment was granted. The state also argued that the judgment was granted on facts and legal theories that were not asserted by Ms. Hauenstein until a week before the hearing, therefore the majority of time that Ms. Hauenstein was seeking payment for was unnecessary and unreasonable.
The U.S. District Court for the Western District of Oklahoma grants attorneys' fees. The court rules that the court's order clearly granted judgment under 42 U.S.C. § 1983 and that the state provided no evidence Ms. Hauenstein received Medicaid benefits before the judgment. In addition, the court concludes that the basis for the court's decision was consistent with the facts and allegations set forth in Ms. Hauenstein's complaint, so the attorneys' fees were not unnecessary or unreasonable.
Marcia Hauenstein applied for Medicaid benefits, but the state imposed a penalty period due to a trust established by her father. Ms. Hauenstein sued the state in federal court, arguing the trust was not a countable resource. Following motions for summary judgment, the court found for Ms. Hauenstein (Hauenstein v. State ex rel. Oklahoma Department of Human Services, W.D. Okla., No. CIV-10-940-M, May 19, 2011) and the state granted her Medicaid benefits.
Ms. Hauenstein filed a claim for attorneys' fees. The state argued that Ms. Hauenstein is not entitled to attorneys' fees because she did not receive judgment under 42 U.S.C. § 1983 and she was certified for Medicaid before the judgment was granted. The state also argued that the judgment was granted on facts and legal theories that were not asserted by Ms. Hauenstein until a week before the hearing, therefore the majority of time that Ms. Hauenstein was seeking payment for was unnecessary and unreasonable.
The U.S. District Court for the Western District of Oklahoma grants attorneys' fees. The court rules that the court's order clearly granted judgment under 42 U.S.C. § 1983 and that the state provided no evidence Ms. Hauenstein received Medicaid benefits before the judgment. In addition, the court concludes that the basis for the court's decision was consistent with the facts and allegations set forth in Ms. Hauenstein's complaint, so the attorneys' fees were not unnecessary or unreasonable.
Settlement Reached in Missouri Lawsuit Against LegalZoom
From www.elderlawanswers.com
A preliminary settlement has been reached in a Missouri class action lawsuit against the legal document preparation service LegalZoom.
The lawsuit was filed by several LegalZoom customers in Missouri who alleged the company was engaging in the unauthorized practice of law. LegalZoom is one of the largest legal document preparation services on the Web, providing consumers a variety of legal documents, including estate planning instruments.
At the beginning of August, a federal court denied LegalZoom summary judgment in the lawsuit (Janson v. LegalZoom.com, Inc., U.S. Dist. Ct., W.D. Mo., No. 2:10-CV-04018-NKL, Aug. 2, 2011). The parties have agreed to settle in principal, but the final details of the settlement are still being worked out. The settlement provides that LegalZoom will make certain business modifications in order to keep operating in Missouri. There are no details on the business modifications LegalZoom will make, but in a settlement with the Washington Attorney General's office reached last year, the company agreed to not to compare its costs to attorneys' fees unless the company clearly discloses that its service isn’t a substitute for a law firm. It also agreed not to provide individualized legal advice about self-help forms.
According to plaintiff's attorneys, the settlement will also include compensation for LegalZoom customers. The settlement contains no admission of wrongdoing. According to an article in the Kansas City Star, the plaintiffs are supposed to file a motion for preliminary approval of the settlement by September 23.
In June, LegalZoom also reached a settlement in principal with plaintiffs in a California lawsuit. For more information on the California lawsuit, click here.
A preliminary settlement has been reached in a Missouri class action lawsuit against the legal document preparation service LegalZoom.
The lawsuit was filed by several LegalZoom customers in Missouri who alleged the company was engaging in the unauthorized practice of law. LegalZoom is one of the largest legal document preparation services on the Web, providing consumers a variety of legal documents, including estate planning instruments.
At the beginning of August, a federal court denied LegalZoom summary judgment in the lawsuit (Janson v. LegalZoom.com, Inc., U.S. Dist. Ct., W.D. Mo., No. 2:10-CV-04018-NKL, Aug. 2, 2011). The parties have agreed to settle in principal, but the final details of the settlement are still being worked out. The settlement provides that LegalZoom will make certain business modifications in order to keep operating in Missouri. There are no details on the business modifications LegalZoom will make, but in a settlement with the Washington Attorney General's office reached last year, the company agreed to not to compare its costs to attorneys' fees unless the company clearly discloses that its service isn’t a substitute for a law firm. It also agreed not to provide individualized legal advice about self-help forms.
According to plaintiff's attorneys, the settlement will also include compensation for LegalZoom customers. The settlement contains no admission of wrongdoing. According to an article in the Kansas City Star, the plaintiffs are supposed to file a motion for preliminary approval of the settlement by September 23.
In June, LegalZoom also reached a settlement in principal with plaintiffs in a California lawsuit. For more information on the California lawsuit, click here.
Thursday, August 25, 2011
Thursday, August 18, 2011
Our Office Has Moved!
I will apologize for the lack of posts to my 2-3 readers, but we have been busy moving to 2701 W. Main Street, Jefferson City, MO 65109. The old phone numbers are still being forwarded, but the new main number is (573) 635-3436.
I hope to get some new posts up here in the next week or so, once things have settled down.
I hope to get some new posts up here in the next week or so, once things have settled down.
Monday, August 8, 2011
How Will the Debt-Limit Deal Affect Seniors?
Congress has agreed to allow the President to raise the debt ceiling in exchange for $2.4 trillion in budget cuts over 10 years. How this deal will affect the three major programs crucial to the elderly -- Medicare, Medicaid and Social Security -- may not be known until almost year's end, but the impact could be significant.
The agreement calls for two stages of spending reductions. In the first stage, which will pare $917 billion from the budget, "entitlement" programs like Medicare, Social Security and Medicaid are spared. Instead, the cuts are evenly divided between defense and non-defense "discretionary" programs. Some aging and poverty programs that the elderly rely on, such as heating assistance, could be hit with budget reductions, but so will defense programs.
In the second stage, a 12-member Congressional committee - six members from each party -- must agree on an additional $1.5 trillion in cuts by Thanksgiving, and Congress must vote on their proposal (with no modifications) by December 23. Here, Medicare, Medicaid, and Social Security will all be back on the table. In the case of Medicare, the powerful panel will be looking at changes like raising the eligibility age, increasing premiums for wealthy recipients, hiking deductibles and co-pays, and slashing payments to providers and drug companies.
To cut Medicaid, this joint committee will consider giving states more flexibility to reduce eligibility and benefits, meaning that it might become even tougher for elderly nursing home residents to qualify for Medicaid. The committee will also be looking at cutting payments to nursing homes, which just got hit with a more than 11 percent reduction. Nursing home residents could feel the impact in the form of reduced services and compromised care.
For Social Security, one thing the panel will undoubtedly consider changing is how the program's cost of living increase is calculated, which will result in lower benefits. Pushing back the eligibility age for future retirees could also be on the table.
Although President Obama will be pressing the joint committee to not just cut programs but to increase revenues by raising taxes on the wealthy and corporations, it is anybody's guess whether the panel's Republican members will agree to this.
"The future of the programs really hangs in the balance," said Joe Baker, president of the Medicare Rights Center, an advocacy group. "It could lead to deep cuts and irreversible changes to Medicare and Medicaid that shift costs to beneficiaries."
If the 12-member panel can't agree on a plan to pare at least $1.2 trillion from the budget -- or Congress votes down its proposal or President Obama vetoes it -- automatic spending cuts totaling that amount would kick in beginning in 2013. Medicaid, Social Security and veterans programs are among the programs that will be exempt from these mandatory cuts, but Medicare is not exempt. There would be a 2 percent cut to Medicare, although the savings would have to come from payments to providers like doctors and hospitals, not from beneficiaries. Such a reduction to providers would be on top of a 6 percent drop in provider payments already enacted to help finance health care reform. Doctors and hospitals would feel the impact initially, but Medicare beneficiaries would experience it soon enough as more providers refuse to treat Medicare patients, reduce services or go out of business.
There is, however, a strong incentive for the joint committee to avoid these automatic cuts and instead agree on a plan that Congress can pass and the President can sign: Along with the 2 percent automatic Medicare cut would be an automatic 8 percent reduction in defense spending, or nearly $500 billion. The thinking is that both Democrats and Republicans would view defense cuts of this magnitude as too damaging to their parties to contemplate.
Further reading:
"Five cuts the debt commission might make to Medicare, Medicaid" (Washington Post blog)
"FAQ: Debt Deal 'Super' Committee's Impact On Health Spending Explained" (Kaiser Family Foundation Health News)
"Tea Party groups see Medicare overhaul chance" (Reuters)
"Social Security, Medicare dodge bullet, but cuts loom" (Reuters blog)
"Debt Deal Triggers Nerves In Health Industry; Providers Brace For Cuts" (Kaiser Family Foundation Health News)
"What Does the Debt Ceiling Agreement Mean for Medicare?" (Center for Medicare Advocacy, Inc.)
The agreement calls for two stages of spending reductions. In the first stage, which will pare $917 billion from the budget, "entitlement" programs like Medicare, Social Security and Medicaid are spared. Instead, the cuts are evenly divided between defense and non-defense "discretionary" programs. Some aging and poverty programs that the elderly rely on, such as heating assistance, could be hit with budget reductions, but so will defense programs.
In the second stage, a 12-member Congressional committee - six members from each party -- must agree on an additional $1.5 trillion in cuts by Thanksgiving, and Congress must vote on their proposal (with no modifications) by December 23. Here, Medicare, Medicaid, and Social Security will all be back on the table. In the case of Medicare, the powerful panel will be looking at changes like raising the eligibility age, increasing premiums for wealthy recipients, hiking deductibles and co-pays, and slashing payments to providers and drug companies.
To cut Medicaid, this joint committee will consider giving states more flexibility to reduce eligibility and benefits, meaning that it might become even tougher for elderly nursing home residents to qualify for Medicaid. The committee will also be looking at cutting payments to nursing homes, which just got hit with a more than 11 percent reduction. Nursing home residents could feel the impact in the form of reduced services and compromised care.
For Social Security, one thing the panel will undoubtedly consider changing is how the program's cost of living increase is calculated, which will result in lower benefits. Pushing back the eligibility age for future retirees could also be on the table.
Although President Obama will be pressing the joint committee to not just cut programs but to increase revenues by raising taxes on the wealthy and corporations, it is anybody's guess whether the panel's Republican members will agree to this.
"The future of the programs really hangs in the balance," said Joe Baker, president of the Medicare Rights Center, an advocacy group. "It could lead to deep cuts and irreversible changes to Medicare and Medicaid that shift costs to beneficiaries."
If the 12-member panel can't agree on a plan to pare at least $1.2 trillion from the budget -- or Congress votes down its proposal or President Obama vetoes it -- automatic spending cuts totaling that amount would kick in beginning in 2013. Medicaid, Social Security and veterans programs are among the programs that will be exempt from these mandatory cuts, but Medicare is not exempt. There would be a 2 percent cut to Medicare, although the savings would have to come from payments to providers like doctors and hospitals, not from beneficiaries. Such a reduction to providers would be on top of a 6 percent drop in provider payments already enacted to help finance health care reform. Doctors and hospitals would feel the impact initially, but Medicare beneficiaries would experience it soon enough as more providers refuse to treat Medicare patients, reduce services or go out of business.
There is, however, a strong incentive for the joint committee to avoid these automatic cuts and instead agree on a plan that Congress can pass and the President can sign: Along with the 2 percent automatic Medicare cut would be an automatic 8 percent reduction in defense spending, or nearly $500 billion. The thinking is that both Democrats and Republicans would view defense cuts of this magnitude as too damaging to their parties to contemplate.
Further reading:
"Five cuts the debt commission might make to Medicare, Medicaid" (Washington Post blog)
"FAQ: Debt Deal 'Super' Committee's Impact On Health Spending Explained" (Kaiser Family Foundation Health News)
"Tea Party groups see Medicare overhaul chance" (Reuters)
"Social Security, Medicare dodge bullet, but cuts loom" (Reuters blog)
"Debt Deal Triggers Nerves In Health Industry; Providers Brace For Cuts" (Kaiser Family Foundation Health News)
"What Does the Debt Ceiling Agreement Mean for Medicare?" (Center for Medicare Advocacy, Inc.)
Thursday, July 21, 2011
Updated Long-Term Care Planning Video
Please check out our Long-Term Care Planning VIDEO on youtube. Discusses long-term care planning options and basics of Medicaid eligibility.
Wednesday, July 20, 2011
Medicaid Sting
James O'Keefe Unveils His Latest Sting
I am unaware of a cap on the value of a vehicle for Medicaid eligibility.
I am unaware of a cap on the value of a vehicle for Medicaid eligibility.
Thursday, July 14, 2011
Wednesday, July 13, 2011
Third Circuit Affirms That N.J. May Count Promissory Notes As Available Resources
In a long-running case that has bounced back and forth between two federal courts, the Third Circuit Court of Appeals rules that New Jersey's Medicaid agency may analyze promissory notes as trust-like devices and count the notes as available resources. Sable v. Velez (U.S. Ct. App., 3rd Cir., No. 10-4647, July 12, 2011).
A group of New Jersey residents lent money to close relatives in return for promissory notes. After the individuals applied for Medicaid, the state denied their applications, claiming that the promissory notes were trust-like instruments that qualified as available resources.
The residents filed suit in federal district court seeking to enjoin the state from counting the notes as available resources. The district court denied the request for preliminary injunction, holding that there was nothing in the Medicaid Act or the POMS that prevented the state from analyzing promissory notes as a trust-like device if the situation warranted it. The residents appealed to the U.S. Court of Appeals for the Third Circuit, which vacated and remanded, holding the district court committed legal error when it analyzed the notes as trust-like devices without first determining whether they would be counted as resources under the regular resource-counting rules. The court agreed with the plaintiffs' argument, which was based on the federal statutory requirement that the Medicaid program may not use eligibility rules that are more restrictive than those used by the SSI program (see 42 U.S.C. 1396a(a)(10)(c)(i)(III)).
The district court again denied the preliminary injunction, holding that the relationship of the parties and the terms, amount and timing of the loans indicated that the loans were not bona fide cash loans or promissory notes. The residents appealed.
In a ruling that is "not precedential," the U.S. Court of Appeals for the Third Circuit affirms, holding that the Medicaid applicants are not entitled to a preliminary injunction because they "failed to show that it was more likely than not that their notes would be considered cash loans or promissory notes under the regular SSI resource-counting rules or that their notes should not be considered trust-like devices."
The Medicaid applicants were represented by New Jersey elder law attorney John Callinan and New York elder law attorney Rene H. Reixach, Jr..
For the full text of this decision, go to: http://www.ca3.uscourts.gov/opinarch/104647np.pdf
A group of New Jersey residents lent money to close relatives in return for promissory notes. After the individuals applied for Medicaid, the state denied their applications, claiming that the promissory notes were trust-like instruments that qualified as available resources.
The residents filed suit in federal district court seeking to enjoin the state from counting the notes as available resources. The district court denied the request for preliminary injunction, holding that there was nothing in the Medicaid Act or the POMS that prevented the state from analyzing promissory notes as a trust-like device if the situation warranted it. The residents appealed to the U.S. Court of Appeals for the Third Circuit, which vacated and remanded, holding the district court committed legal error when it analyzed the notes as trust-like devices without first determining whether they would be counted as resources under the regular resource-counting rules. The court agreed with the plaintiffs' argument, which was based on the federal statutory requirement that the Medicaid program may not use eligibility rules that are more restrictive than those used by the SSI program (see 42 U.S.C. 1396a(a)(10)(c)(i)(III)).
The district court again denied the preliminary injunction, holding that the relationship of the parties and the terms, amount and timing of the loans indicated that the loans were not bona fide cash loans or promissory notes. The residents appealed.
In a ruling that is "not precedential," the U.S. Court of Appeals for the Third Circuit affirms, holding that the Medicaid applicants are not entitled to a preliminary injunction because they "failed to show that it was more likely than not that their notes would be considered cash loans or promissory notes under the regular SSI resource-counting rules or that their notes should not be considered trust-like devices."
The Medicaid applicants were represented by New Jersey elder law attorney John Callinan and New York elder law attorney Rene H. Reixach, Jr..
For the full text of this decision, go to: http://www.ca3.uscourts.gov/opinarch/104647np.pdf
Monday, July 11, 2011
The Elder Firm, LLC first youtube video!
Consider this as a primer to the more in-depth look that we will take at the various Medicaid eligibility requirements.
Nathan Forck
Connecticut Adopting 'Full Return' of Transferred Assets Policy
FROM: http://www.elderlawanswers.com/
Last Updated: 7/7/2011 4:01:49 PM
Connecticut reportedly will soon issue a policy directive implementing a "full return" rule regarding transferred assets. Elder law attorneys in the state, spearheaded by Whitney M. Lewendon of the New Haven firm Coan, Lewendon, Gulliver and Miltenberger LLC, had been trying to persuade lawmakers and Governor Dannel Malloy that the move would be bad public policy that will actually result in fewer private funds being used to pay for long-term care services. ( Click here for ElderLawAnswers' earlier article on these efforts.)
But elder law attorneys in the state report that their labors in the past legislative session have been for naught. "Right now our state budget and potential state employee layoffs are the only issues any policy maker wants to consider," Lewendon said. But he said attorneys intend to continue to press for a change.
It has been the former practice in Connecticut, as in most states, that if a penalty period is imposed due to an asset transfer, the state will shorten the length of the penalty period by the amount of returned funds, even if only a portion of the funds are returned. Under the forthcoming policy, there will be no reduction at all in the length of the penalty for partial returns -- the penalty will be reduced only if there is a full return of the transferred assets.
The Connecticut attorneys are wondering what have been the experiences in other states that have a full-return rule. Their argument in opposing the rule is that people who received gifts that have caused the donor to be denied Medicaid are unlikely to make a partial return if it has no effect on the penalty. They wonder whether their colleagues in other states have any experience that could be used to support this theory.
Lewendon added that he and his colleagues are challenging another state practice related to the full-return rule, one that rests on a theory that Connecticut couldn't persuade the Centers for Medicare and Medicaid services to approve but that the state employs nonetheless. This is the theory that returned gifts can be counted as having been available to a Medicaid applicant from the date of gift to the date of return. Connecticut uses this theory to justify a delay in the start date of the penalty for the gift.
To contact Lewendon, e-mail: mailto:%20wlewendon@coanlewendon.com
But elder law attorneys in the state report that their labors in the past legislative session have been for naught. "Right now our state budget and potential state employee layoffs are the only issues any policy maker wants to consider," Lewendon said. But he said attorneys intend to continue to press for a change.
It has been the former practice in Connecticut, as in most states, that if a penalty period is imposed due to an asset transfer, the state will shorten the length of the penalty period by the amount of returned funds, even if only a portion of the funds are returned. Under the forthcoming policy, there will be no reduction at all in the length of the penalty for partial returns -- the penalty will be reduced only if there is a full return of the transferred assets.
The Connecticut attorneys are wondering what have been the experiences in other states that have a full-return rule. Their argument in opposing the rule is that people who received gifts that have caused the donor to be denied Medicaid are unlikely to make a partial return if it has no effect on the penalty. They wonder whether their colleagues in other states have any experience that could be used to support this theory.
Lewendon added that he and his colleagues are challenging another state practice related to the full-return rule, one that rests on a theory that Connecticut couldn't persuade the Centers for Medicare and Medicaid services to approve but that the state employs nonetheless. This is the theory that returned gifts can be counted as having been available to a Medicaid applicant from the date of gift to the date of return. Connecticut uses this theory to justify a delay in the start date of the penalty for the gift.
To contact Lewendon, e-mail: mailto:%20wlewendon@coanlewendon.com
Thursday, July 7, 2011
KMIZ "Ask the Expert" - The Elder Firm, LLC
Our "Ask the Expert" page is up on the KMIZ website to respond to questions about elder law and estate planning. Please check us out! (Link below)
Ask the Expert
Ask the Expert
Estate Planning class at Columbia Area Career Center
Set the date: 6-9PM October 24, 2011 at Columbia Area Career Center, Room 100
Estate Planning
Instructor: Nathan Forck
Columbia Area Career Center, Rm 100
10/24 M 6-9 PM $29 11FB684
Be well-informed! Whether you are planning for yourself or assisting a loved one, you will want to become knowledgeable about the choices available for planning an estate. Understand the procedures and the legal documents involved in estate planning, wills, trusts, probate, powers of attorney and Medicaid and veteran's benefits. Presented by Nathan Forck, Attorney at Law. (3 Hours)
Saturday, July 2, 2011
Stay tuned for weekly series on Medicaid
As an Missouri elder law and estate planning attorney, I am constantly amazed at the misconceptions and bad information that people have regarding the requirements for Medicaid eligibility to help pay for their nursing care. Consequently, I have decided to start this weekly series covering a wide range of topics related to Medicaid nursing home benefits. It is my goal that this series will provide individuals andtheir families with a sufficent base of knowledge to properly plan for how to pay for long-term care. Stay tuned!
Thursday, June 30, 2011
Wednesday, June 29, 2011
LinkedIn Profile
http://www.linkedin.com/pub/nathan-forck/2/796/3b7
More information about Nathan Forck, Columbia, MO attorney.
More information about Nathan Forck, Columbia, MO attorney.
Tuesday, June 28, 2011
Justia Listing
http://lawyers.justia.com/lawyer/nathan-j-forck-1490147
Nathan Forck
The Elder Firm, LLC
Medicaid and Estate Planning
Nathan Forck
The Elder Firm, LLC
Medicaid and Estate Planning
More pictures from KMIZ
Monday, June 27, 2011
Friday, June 24, 2011
Medicaid Appeals and Younger Abstention Doctrine
A Missouri ElderLawAnswers member attorney is pursuing an important Medicaid case, currently before the 8th Circuit, that will decide Medicaid applicants' right to appeal certain cases to federal district court. The case, Hudson v. Campbell, involves a nursing home resident in Missouri, Greta Hudson, who applied for Medicaid, but was rejected due to transfers made during the look-back period. Ms. Hudson appealed, and on the day before the hearing the state notified her that it was withdrawing the original denial notice and substituting a new one, albeit apparently based on a new reason. Because of the new denial decision, the hearing officer cancelled the pending hearing and advised Ms. Hudson that she needed to request a new hearing to appeal the new grounds for denial. Ms. Hudson sued in federal court, but the U.S. District Court for the Western District of Missouri dismissed her claims. The court relied on the U.S. Supreme Court's decision in Younger v. Harris, 401 U.S. 37 (1971), holding that because Ms. Hudson had not exhausted her state remedies, the federal court must abstain. Ms. Hudson appealed this ruling to the 8th Circuit. The case could have big implications for Medicaid applicants. Ms. Hudson's estate (she died while the appeal to the 8th Circuit was pending) is represented by Columbia, Missouri, ElderLawAnswers member attorney Nathan Forck (photo). According to Forck, "If the 8th Circuit rules against us, it would essentially foreclose Medicaid applicants'/beneficiaries' right to appeal procedural due process violations that occur within the context of a state fair hearing to a federal district court." Forck also noted that a negative decision in this case "would put the 8th Circuit directly at odds with the 10th Circuit's 2010 ruling in Brown ex. rel Brown v. Day on facts almost identical to the ones here. There would be a split in the circuits that would necessitate an appeal to the Supreme Court to resolve the issue at that point." Forck added that because the district court substantially modified its original order in almost every respect except for the issue of abstention, "if this case makes it back to the district court, my client should be in very good shape with respect to the court's view on her right to a remedy." For a copy of the appellant's brief to the 8th Circuit, click here. For the appellant's reply brief, click here.
Wednesday, April 27, 2011
Computerized Records Alone Were Insufficient to Prove Estate Recovery Claim (Mo. App.)
FROM NAELA (http://www.naela.org/):
After Joann Strayer died in 2005, the State filed an estate recovery claim in the amount of $52,931.33. The only evidence it offered in support of its claim were computerized records and a business records affidavit. The records, however, referred to "Ann Staryer." Nowhere in the records did the State identify Ann as Joann. The estate at no time stipulated to the amount owed and the State failed to offer any other evidence that its records were for the same individual. The State argued that a Social Security number on the records proved they related to the same person, but the State failed to present any evidence of what Joann Social Security Number was, so it was impossible to link up the records. When the trial court ruled that the evidence was insufficient, the State appealed. On appeal, the judgment was affirmed. The State's computerized records—without testimony as to the meaning of the data contained therein or other evidence certifying that payment was made on Strayer's behalf—did not constitute competent and substantial evidence of payment.
Declue v. State, 2011 Mo. App. LEXIS 531 (April 19, 2011)
Full case:
Wright v. State, 2011 Mo. App. LEXIS 533 (April 19, 2011)
Full case
After Joann Strayer died in 2005, the State filed an estate recovery claim in the amount of $52,931.33. The only evidence it offered in support of its claim were computerized records and a business records affidavit. The records, however, referred to "Ann Staryer." Nowhere in the records did the State identify Ann as Joann. The estate at no time stipulated to the amount owed and the State failed to offer any other evidence that its records were for the same individual. The State argued that a Social Security number on the records proved they related to the same person, but the State failed to present any evidence of what Joann Social Security Number was, so it was impossible to link up the records. When the trial court ruled that the evidence was insufficient, the State appealed. On appeal, the judgment was affirmed. The State's computerized records—without testimony as to the meaning of the data contained therein or other evidence certifying that payment was made on Strayer's behalf—did not constitute competent and substantial evidence of payment.
Declue v. State, 2011 Mo. App. LEXIS 531 (April 19, 2011)
Full case:
Wright v. State, 2011 Mo. App. LEXIS 533 (April 19, 2011)
Full case
Wednesday, April 13, 2011
Lump Sum Personal Care Contract Is Transfer for Less Than Fair Market Value
From www.elderlawanswers.com
A Massachusetts appeals court upholds the imposition of a transfer-of-assets penalty assessed against a Medicaid applicant who entered into a lump sum personal care contract with her daughter, determining that the contract's value cannot be ascertained. Forman v. Director of the Office of Medicaid (Mass.App.Ct., No. 10-P-728, April 6, 2011).
Janette Forman entered into a lump sum personal care agreement with her daughter, Fran Rachlin, in which Ms. Forman paid Ms. Rachlin $20,000 in exchange for Ms. Rachlin's agreeing to provide her mother with room, board, meal preparation, housekeeping and transportation. The contract allowed Ms. Rachlin to terminate the agreement and keep the entire lump sum payment if her mother engaged in behavior that was a threat to her own mental or physical health or if Ms. Forman was no longer able to assist with her own personal hygiene needs. The contract did not quantify the number of hours to be worked by Ms. Rachlin and it did not have a specific duration.
One year after signing the contract, Ms. Forman moved into a nursing home and filed a Medicaid application. The state Medicaid agency assessed a two-and-a-half-month transfer penalty based on its determination that the contract was a transfer for less than fair market value and that it was not reasonably enforceable by Ms. Forman or her estate. Ms. Forman appealed and a board of hearings and the Superior Court both upheld the state's decision.
The Massachusetts Court of Appeals upholds the imposition of the transfer penalty, ruling that the contract represented a transfer for less than fair market value. The court explains that it "cannot fairly estimate the value of the contract because it was self-contradictory, sketchy, and skewed in favor of the daughter's retention of the upfront payment regardless of the services provided. . . [i]f the daughter elected to terminate the contract . . . or if the mother died at any point in time following the execution of the contract, the daughter was entitled to retain the full $20,000 regardless of services performed to date." The court does temper its decision by pointing out that "we are not in any way suggesting that all lump-sum prepaid contracts or all contracts between family members for personal services are disqualified. Our decision is limited to those contracts in which compensation does not reflect fair market value, as was the case here." The court declines to address whether the contract was legally and reasonably enforceable.
For the full text of this decision, go to: http://www.elderlawanswers.com/Resources/ArticleAtty.asp?id=9075&Section=9&state=
One year after signing the contract, Ms. Forman moved into a nursing home and filed a Medicaid application. The state Medicaid agency assessed a two-and-a-half-month transfer penalty based on its determination that the contract was a transfer for less than fair market value and that it was not reasonably enforceable by Ms. Forman or her estate. Ms. Forman appealed and a board of hearings and the Superior Court both upheld the state's decision.
The Massachusetts Court of Appeals upholds the imposition of the transfer penalty, ruling that the contract represented a transfer for less than fair market value. The court explains that it "cannot fairly estimate the value of the contract because it was self-contradictory, sketchy, and skewed in favor of the daughter's retention of the upfront payment regardless of the services provided. . . [i]f the daughter elected to terminate the contract . . . or if the mother died at any point in time following the execution of the contract, the daughter was entitled to retain the full $20,000 regardless of services performed to date." The court does temper its decision by pointing out that "we are not in any way suggesting that all lump-sum prepaid contracts or all contracts between family members for personal services are disqualified. Our decision is limited to those contracts in which compensation does not reflect fair market value, as was the case here." The court declines to address whether the contract was legally and reasonably enforceable.
For the full text of this decision, go to: http://www.elderlawanswers.com/Resources/ArticleAtty.asp?id=9075&Section=9&state=
Tuesday, April 12, 2011
Quote for the Day
“A successful man is one who can lay a firm foundation with the bricks others have thrown at him.”
David Brinkley
Monday, April 11, 2011
Monday, March 28, 2011
Wednesday, March 23, 2011
Estate recovery prohibited in Community Spouse's estate (Idaho 4th Dist.)
From the NAELA bulletin:
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NAELA Member Peter Sisson represented the Estate of George Perry. George and Martha Perry, were married. Martha had owned land in her own name and, in 2002, quitclaimed it to herself and her husband. After Martha became ill, in 2006, George used a power of attorney to have Martha quitclaim the remaining interest to himself. A few months later, they applied for Medicaid to help Martha. George predeceased Martha in 2009 and the State sought funds from his estate to recover the $108,364.23 it had invested in Martha's care. The magistrate denied the State's claim because Martha had conveyed her interest in the property during her lifetime and she had no interest in the property. The State then appealed. One of the grounds on appeal was that George used a power of attorney that did not include an express power specifically giving him authority to make gifts. Although the statute requires an express power to convey a community property interest, that argument was rejected because the power of attorney pre-dated Idaho's adoption of the Uniform Power of Attorney Act. The State then argued that Idaho law permits recovery of medical assistance from the recipient or the recipient's spouse. The lower court argued that 42 U.S.C. 1396p did not per the State to claw-back assets transferred prior to death. That decision was affirmed on appeal.
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NAELA Member Peter Sisson represented the Estate of George Perry. George and Martha Perry, were married. Martha had owned land in her own name and, in 2002, quitclaimed it to herself and her husband. After Martha became ill, in 2006, George used a power of attorney to have Martha quitclaim the remaining interest to himself. A few months later, they applied for Medicaid to help Martha. George predeceased Martha in 2009 and the State sought funds from his estate to recover the $108,364.23 it had invested in Martha's care. The magistrate denied the State's claim because Martha had conveyed her interest in the property during her lifetime and she had no interest in the property. The State then appealed. One of the grounds on appeal was that George used a power of attorney that did not include an express power specifically giving him authority to make gifts. Although the statute requires an express power to convey a community property interest, that argument was rejected because the power of attorney pre-dated Idaho's adoption of the Uniform Power of Attorney Act. The State then argued that Idaho law permits recovery of medical assistance from the recipient or the recipient's spouse. The lower court argued that 42 U.S.C. 1396p did not per the State to claw-back assets transferred prior to death. That decision was affirmed on appeal.
Medicaid at risk in Missouri?
Link: http://www.columbiatribune.com/news/2011/mar/20/medicare-bill-has-attention-of-lawmakers/?news
I will be absolutely and utterly shocked if funding for Medicaid is not continued. It would be political suicide for all parties involved.
I will be absolutely and utterly shocked if funding for Medicaid is not continued. It would be political suicide for all parties involved.
Monday, March 21, 2011
State Cannot Recover Assets That Were Transferred Before Medicaid Recipient Died
From http://www.elderlawanswers.com/
In a case pursued by ElderLawAnswers member attorney Peter C. Sisson, an Idaho district court rules that the state cannot recover assets from the estate of a Medicaid recipient's spouse that were transferred to the spouse before the Medicaid recipient died. In Re: Estate of Perry (Idaho Dist. Ct., 4th Dist., No. CV-IE-2009-05214, March 16, 2011).
Martha and George Perry owned property together. Mrs. Perry entered a nursing home, and Mr. Perry transferred the property into his name. Mrs. Perry then began receiving Medicaid benefits. Mr. Perry died before Mrs. Perry, and the property was sold. After Mr. Perry's death, the state filed a claim against his estate seeking recovery of more than $100,000 in Medicaid benefits it had so far paid on Mrs. Perry's behalf.
The state asserted that, because Mrs. Perry previously had an interest in the property during the marriage, the state could recover an amount equal to her ownership interest. The estate's personal representative countered that the state was entitled only to recover an amount equal to Mrs. Perry's interest in the home at the time of her death. Because Mrs. Perry was still alive at the time of the transfer, the personal representative argued the state could not recover any amount. The magistrate division of Idaho's fourth judicial district ruled that the state's ability to recover costs was limited to assets that were transferred to the recipient's spouse at death, not to inter vivos transfers. The state appealed. (Mrs. Perry died while the appeal was pending.)
The Idaho District Court affirms, holding the definition of "estate" in federal Medicaid law does not permit the state to recover property interests the Medicaid recipient divested before death. The court determines that there is a conflict between state and federal law because state law would allow the state to recover from the spouse's estate so long as the property was once community property, but the court concludes that federal law preempts state law.
In a case pursued by ElderLawAnswers member attorney Peter C. Sisson, an Idaho district court rules that the state cannot recover assets from the estate of a Medicaid recipient's spouse that were transferred to the spouse before the Medicaid recipient died. In Re: Estate of Perry (Idaho Dist. Ct., 4th Dist., No. CV-IE-2009-05214, March 16, 2011).
Martha and George Perry owned property together. Mrs. Perry entered a nursing home, and Mr. Perry transferred the property into his name. Mrs. Perry then began receiving Medicaid benefits. Mr. Perry died before Mrs. Perry, and the property was sold. After Mr. Perry's death, the state filed a claim against his estate seeking recovery of more than $100,000 in Medicaid benefits it had so far paid on Mrs. Perry's behalf.
The state asserted that, because Mrs. Perry previously had an interest in the property during the marriage, the state could recover an amount equal to her ownership interest. The estate's personal representative countered that the state was entitled only to recover an amount equal to Mrs. Perry's interest in the home at the time of her death. Because Mrs. Perry was still alive at the time of the transfer, the personal representative argued the state could not recover any amount. The magistrate division of Idaho's fourth judicial district ruled that the state's ability to recover costs was limited to assets that were transferred to the recipient's spouse at death, not to inter vivos transfers. The state appealed. (Mrs. Perry died while the appeal was pending.)
The Idaho District Court affirms, holding the definition of "estate" in federal Medicaid law does not permit the state to recover property interests the Medicaid recipient divested before death. The court determines that there is a conflict between state and federal law because state law would allow the state to recover from the spouse's estate so long as the property was once community property, but the court concludes that federal law preempts state law.
This needs to happen in Missouri:
As you all know, the Missouri Family Support Division (FSD) is dreadful at processing applications within the federal guidelines. FSD compounds the situation by playing games with requests for information and rejecting applications from clients for allegedly failing to cooperate with their requests. I have been seriously looking into bringing an action like the one cited below and I will be in contact with the attorneys on this case to seek their guidance on bringing a similar suit in Missouri.
From www.elderlawanswers.com:
A federal court in Ohio rules that a lawsuit by disabled Medicaid applicants against the state for failing to determine their Medicaid eligibility in a timely manner may go forward, holding that most of the recipients' complaints are not moot simply because the state eventually processed their claims. Ability Center of Greater Toledo v. Lumpkin (N.D. Ohio, No. 3:10CV446, Feb. 28, 2011).
Nine individual plaintiffs and a disability rights organization filed suit against the state of Ohio, alleging that it failed to determine their eligibility for Medicaid benefits within 90 days of their applications. Although the circumstances surrounding each application were different, each individual plaintiff waited at least a year (and sometimes more than two years) for an eligibility determination. The plaintiffs claimed that the delay violated their rights under the Medicaid Act and the 14th Amendment of the U.S. Constitution because federal regulations mandate that a "timely" decision on a Medicaid application must take place within 90 days of filing.
The state moved to dismiss the suit on multiple grounds, including mootness, standing, and other arguments relating to the relevance of the Medicaid Act to Ohio law. In support of its mootness argument, the state claimed that since it eventually processed all nine claims, the current lawsuit was irrelevant because the plaintiffs no longer suffered a harm that could be remedied by their lawsuit. The plaintiffs argued that their claims were not moot because there was a reasonable expectation that they would be subject to the same delay at a later date, especially in the cases where the state determined that the plaintiffs were not eligible for benefits. The state also claimed that the disability rights organization lacked standing because it, and its members, did not suffer a cognizable injury.
The U.S. District Court for the Northern District of Ohio grants the state's motion to dismiss the lawsuits of two of the plaintiffs who were determined to be disabled by the Social Security Administration (and thus unlikely to "ever be required to go through the eligibility process again"), but denies the state's motion when it comes to the other seven individual plaintiffs and the rights organization. The court explains that the seven remaining plaintiffs could all be expected to have to apply for benefits again in the future and they would experience similar delays, giving them a cognizable claim for relief. The court also rules that the advocacy group has standing to sue in its own right and on behalf of its members, and that the plaintiffs' constitutional claims are appropriate.
From www.elderlawanswers.com:
A federal court in Ohio rules that a lawsuit by disabled Medicaid applicants against the state for failing to determine their Medicaid eligibility in a timely manner may go forward, holding that most of the recipients' complaints are not moot simply because the state eventually processed their claims. Ability Center of Greater Toledo v. Lumpkin (N.D. Ohio, No. 3:10CV446, Feb. 28, 2011).
Nine individual plaintiffs and a disability rights organization filed suit against the state of Ohio, alleging that it failed to determine their eligibility for Medicaid benefits within 90 days of their applications. Although the circumstances surrounding each application were different, each individual plaintiff waited at least a year (and sometimes more than two years) for an eligibility determination. The plaintiffs claimed that the delay violated their rights under the Medicaid Act and the 14th Amendment of the U.S. Constitution because federal regulations mandate that a "timely" decision on a Medicaid application must take place within 90 days of filing.
The state moved to dismiss the suit on multiple grounds, including mootness, standing, and other arguments relating to the relevance of the Medicaid Act to Ohio law. In support of its mootness argument, the state claimed that since it eventually processed all nine claims, the current lawsuit was irrelevant because the plaintiffs no longer suffered a harm that could be remedied by their lawsuit. The plaintiffs argued that their claims were not moot because there was a reasonable expectation that they would be subject to the same delay at a later date, especially in the cases where the state determined that the plaintiffs were not eligible for benefits. The state also claimed that the disability rights organization lacked standing because it, and its members, did not suffer a cognizable injury.
The U.S. District Court for the Northern District of Ohio grants the state's motion to dismiss the lawsuits of two of the plaintiffs who were determined to be disabled by the Social Security Administration (and thus unlikely to "ever be required to go through the eligibility process again"), but denies the state's motion when it comes to the other seven individual plaintiffs and the rights organization. The court explains that the seven remaining plaintiffs could all be expected to have to apply for benefits again in the future and they would experience similar delays, giving them a cognizable claim for relief. The court also rules that the advocacy group has standing to sue in its own right and on behalf of its members, and that the plaintiffs' constitutional claims are appropriate.
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