Please check out our Long-Term Care Planning VIDEO on youtube. Discusses long-term care planning options and basics of Medicaid eligibility.
Discussion of Elder Law and Estate Planning and Missouri Medicaid eligibility.
Thursday, July 21, 2011
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In a ruling that is "not precedential," the U.S. Court of Appeals for the Third Circuit affirms, holding that the Medicaid applicants are not entitled to a preliminary injunction because they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!
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