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
Discussion of Elder Law and Estate Planning and Missouri Medicaid eligibility.
Monday, September 12, 2011
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.)
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