Some Senior Living Facilities Discriminating on the Basis of Disability

Continuing Care Retirement Communities (CCRCs) sound like a great idea, and in many ways they are.  They offer residents access to the entire residential continuum -- from independent housing to assisted living to round-the-clock nursing services -- under one "roof."  Residents pay an entry fee and an adjustable monthly rent in return for the guarantee of care for the rest of their life.

But while the transition from one level of care to another may be advertised as seamless, anyone considering a CCRC should be aware that moving to a higher level of care could mean losing access to privileges and amenities they once enjoyed and took for granted.  Depending on its policies, a CCRC may mandate separate facilities and activities for those requiring different levels of care. Although such restrictions may be illegal, they are not uncommon.

For example, the New York Times recently reported on the case of Ann Clinton, a resident of a CCRC in Huntsville, Alabama, who found herself barred from her cherished bingo games when she moved to the facility’s nursing unit while rehabilitating after back surgery. 

Clinton and her husband moved to the CCRC in 2012, paying a deposit of $351,424, and about $4,600 a month in fees.  Mr. Clinton shifted to the assisted facility unit and then to the nursing unit, where he died in September 2014. Through it all, Ms. Clinton, 80, looked forward to her weekly bingo game with friends and other residents of the CCRC’s independent living unit.

After her back surgery, Ms. Clinton was still able to attend the games using her motorized scooter.  But to her shock and surprise, she was eventually barred from them because she was living in the nursing unit.  

This isn’t the first time the Times reported on such a policy. In 2011 it covered the controversy that erupted when a CCRC in Norfolk, Virginia, declared that a popular waterfront dining room was off-limits to those in the assisted living and nursing units, and could be used only by independent living residents.  Suddenly longtime friends and even some married couples could no longer eat together because they lived in separate parts of the facility.  After residents contacted a lawyer and the news media, the CCRC reversed its policy.

The same thing had happened to the Clintons, according to the Times.  After Mr. Clinton moved to the CCRC’s assisted living wing, he was denied admission to the main dining room to eat with his wife, who was still in the independent living section.  The facility eventually changed its policy, allowing assisted living residents to use the dining room if independent living residents invited them.  

The CCRC has since suspended the bingo game that Ms. Clinton was barred from attending.  Ms. Clinton’s son says he plans to file a lawsuit on his mother’s behalf and is looking for a lawyer.

Attorneys who advocate for the elderly believe that excluding residents based on the level of care they require violates anti-discrimination laws like the Fair Housing Act and the Americans With Disabilities Act.  Admittedly, CCRCs may be trying to segregate residents in the belief that some residents would prefer not to have contact with those who are more incapacitated. 

“But that’s why we have anti-discrimination laws,” Eric Carlson, an attorney with the National Senior Citizens Law Center, told the Times. “You don’t want to capitulate to people’s prejudices.”

For more about CCRCs, click here. 

For more about senior living options, click here.

Daughter Who Signed as Trustee Has Authority to Bind Mother to Nursing Home Agreement

A Kentucky appeals court recently held that a daughter who signed a nursing home's financial agreement in her capacity as trustee of her mother's irrevocable trust has authority to bind her mother to the agreement. King v. Butler Rest Home (Ky. Ct. App., No. 2012-CA-000789-MR, March 13, 2015).

When Geneva King entered a nursing home, her daughter, Diana Livengood, signed the financial agreement as trustee of Ms. King's trust. Ms. King initially paid privately for her care, but when she decided to apply for Medicaid, she stopped making payments to the nursing home. The state subsequently denied Ms. King's Medicaid application.

The nursing home sued Ms. King and Ms. Livengood in her representative capacity, seeking payment of the outstanding balance. Ms. Livengood responded that Ms. King hadn’t signed the contract and that Ms. Livengood did not have authority to bind her. The trial court granted summary judgment to the nursing home and ordered Ms. King and Ms. Livengood to pay $87,413.32. 

One of the important aspects of this decision is that Livengood seems to have been arguing that only the trust could be held responsible, and not her mother's larger non-trust estate. The court rejected the argument.

The Kentucky Court of Appeals affirmed, holding that Ms. Livengood has the capacity to bind her mother to the financial agreement. The court notes that the signature line on the financial agreement that Ms. Livengood signed referred to the signer as the responsible party. According to the court, by signing the agreement in this way, "[Ms.] Livengood represented that she had the capacity to bind her mother. [The nursing home] admitted [Ms.] King in reliance upon this signature."

For the full text of this decision, click here. 

Groups Charge That New HUD Policy Gives Little Relief to Surviving Spouses of Reverse Mortgage Holders

Consumer advocacy groups are denouncing the U.S. Department of Housing and Urban Development’s (HUD) latest attempt to protect the spouses of reverse mortgage holders from being forced out of their homes when the mortgage holder dies. 

HUD’s plan, outlined in Mortgagee Letter 2015-03, “will not protect surviving spouses from displacement and will lead to more foreclosures,” the National Consumer Law Center charges in comments on the new policy filed on behalf of its low-income clients and five other advocacy groups.

As I previously reported, couples often fail to put both spouses on the reverse mortgage loan, either because one spouse is under age 62 or they are urged to do so by aggressive lenders in order to get a bigger loan. Few couples are aware of the potentially catastrophic implications.  In the past, if only one spouse's name was on the mortgage and that spouse died, the surviving spouse would be required to either repay the loan in full or face eviction.  

In 2013 a U.S. district court ruled that in not protecting spouses from foreclosure, HUD was violating the reverse mortgage statute, and the court ordered that the agency find a way to shield surviving spouses from foreclosure and eviction.  In response, HUD began by issuing a new rule in 2014 to help protect spouses left off loans written after August 4 of that year.  But the rule did nothing for non-borrowing spouses on loans that had been written before that date.

Mortgagee Letter 2015-03, issued in January 2015, was aimed at this group.  Under the new policy, when the borrowing spouse dies reverse mortgage lenders have the option of assigning the loan to HUD, a move that would allow an eligible surviving spouse to remain in the home.  However, the consumer groups charge that HUD’s guidance is so unclear that most lenders will choose the safer alternative of foreclosure, and that even if lenders do opt for the assignment route, few surviving spouses will qualify for it.  This is because the spouses will have to come up with a large sum of money to quickly pay down the loan in order to pass a HUD-prescribed loan limit test, a feat that will prove “impossible for many newly widowed non-borrowing spouses.”

The National Consumer Law Center and the other groups recommend alternative options that they say will provide true relief to non-borrowing spouses facing foreclosure while protecting the integrity of the insurance funds.

To read the Center's comments on the new HUD policy, click here. 

Inherited IRA Not Part of New Jersey Resident's Bankruptcy Estate

A U.S. bankruptcy court determined recently that, at least under New Jersey law, an inherited IRA is not part of the bankruptcy estate, notwithstanding the recent U.S. Supreme Court ruling in Clark v. Rameker. In re: Andolino, (Bankr. D. N.J., No. 13-17238, Feb. 25, 2015).

Christopher Andolino inherited an IRA worth $120,000 from his mother. He later filed for Chapter 13 bankruptcy, and claimed the IRA was an exempt asset.

The bankruptcy trustee objected to Mr. Andolino's bankruptcy plan, asserting that under the Supreme Court's decision in Clark v. Rameker (U.S., No. 13-299, June 13, 2014), inherited IRAs are property of the estate.  To read my previous article on the decision in Clark v. Rameker, click here.

The U.S. Bankruptcy Court, District of New Jersey, held that the inherited IRA is not property of the estate. According to the court, "whereas the inherited IRA at issue in Clark was determined to be an asset of the bankruptcy estate pursuant to nonbankruptcy law, i.e., Wisconsin law, this Court first must apply relevant New Jersey law to determine whether [Mr. Andolino's] inherited IRA is property of the bankruptcy estate." The court determined that under New Jersey law, an inherited IRA does not lose "qualified trust" status, so it is exempt from the bankruptcy estate under federal bankruptcy law.

For the full text of this decision, click here.

Early Onset Alzheimer's Information and Assistance from the ADEAR Center (Alzheimer’s Disease Education and Referral Center)

Early-onset Alzheimer's disease, occurring in people age 30 to 60, is rare but complicated. People living with early-onset Alzheimer’s (like Julianne Moore’s character in the movie “Still Alice”) may face particular challenges in dealing with work, raising children, and finding the right support groups.

A new online resource list from the National Institute on Aging’s Alzheimer’s Disease Education and Referral Center may assist younger people with Alzheimer’s, their families, and caregivers to find information and help. Topics include:

• Living with early-onset Alzheimer’s
• Legal and financial planning
• Caregiving
• Clinical trials and studies

All of the resources on this list are free and accessible online.

Visit the ADEAR Center website for other resources like free publications, caregiving resources, and more information about Alzheimer’s.

Share this resource via social media with the following message:

New resource list for people living w/ early-onset #Alzheimers & their #caregivers from @Alzheimers_NIH  http://1.usa.gov/1CiQi0Y

Proposed VA Regs Would Create Transfer Penalties for Pension Applicants

The Department of Veterans Affairs (VA) is proposing regulations that would establish an asset limit, a look-back period and asset transfer penalties for claimants applying for VA needs-based benefits.  Currently, there is no prohibition on transferring assets prior to applying for needs-based benefits, such as Aid and Attendance. 

In its explanation of the new regulations in the January 23, 2015 Federal Register, the VA says the changes are a response to a 2012 Government Accountability Office (GAO) report, which it states recommended changes to “to maintain the integrity of VA’s needs-based benefit programs.” The VA also offers as a reason for the new rules to “reduce opportunities for attorneys and financial advisors to take advantage of pension claimants.”

The proposed rules would establish a 36-month look-back period and a penalty period of up to 10 years for those who dispose of assets to qualify for a VA pension. The penalty period would be calculated based on the total assets transferred during the look-back period to the extent they would have exceeded a new net worth limit that the rules also establish.  The proposed net worth limit would be equal to Medicaid’s maximum community spouse resource allowance (CSRA) prevailing at the time the final rule is published and would be indexed for inflation as the CSRA is.

The amount of a claimant’s net worth would be determined by adding the claimant’s annual income to his or her assets. The VA would not consider a claimant’s primary residence, including a residential lot area not to exceed two acres, as an asset.  But if the residence is sold, proceeds from the sale would be assets unless used to purchase another residence within the calendar year of the sale. Any penalty period would begin the first day of the month that follows the last asset transfer, and the divisor would be the applicable maximum annual pension rate in effect as of the date of the pension claim.

The proposed rule also defines and clarifies what the VA considers to be a deductible medical expense for all of its needs-based benefits, and proposes statutory changes pertaining to pension beneficiaries who receive Medicaid-covered nursing home care.

The proposed rules appear to be an effort to circumvent Congress, where legislation similar to that proposed in the new regulations has been languishing for the past two years.

The proposed rules are also quite harsh when compared to the five year look-back used for Medicaid.  Although there is no explanation for the need for a longer look-back period, the fact that there is no resource recovery available to the VA may explain the longer period.  Of course, it is also possible that the government is signalling a willingness to use more strenuous measures in determining eligibility for government benefits generally, which may later translate to a similarly longer look-back for Medicaid purposes.  

Of course, more stringent regulation of eligibility may also serve the interest in the federal government seeing states enforce, and if necessary, adopt filial responsibility laws.  For more information, see my previous articles here, here, here, and here.

To read the proposed rules in 80 Federal Register 3840-3864 (23 Jan 2015), click here.  Comments must be received on or before March 24, 2015.

Value of Assets That Spouses of Medicaid Recipients May Keep Rises for 2015

Medicaid law provides special protections for the spouse of a Medicaid applicant to ensure the spouse has the minimum support needed to continue to live in the community while the the Medicaid recipient receives long-term care benefits, usually in a nursing home.

One of the most important protections is the "community spouse resource allowance" or CSRA. In order to be eligible for Medicaid benefits a nursing home resident may have no more than $2,000 in assets (the amount may be somewhat higher in some states). In general, the community spouse may keep one-half of the couple's total "countable"assets up to a maximum that changes each year. This is the “maximum CSRA,” the most that a state may allow a community spouse to retain without a hearing or a court order. The least that a state may allow a community spouse to retain is called the “minimum CSRA.”

The federal government just announced the new spousal impoverishment figures for 2015, which include the minimum and maximum CSRA:

• Minimum Community Spouse Resource Allowance: $23,844
• Maximum Community Spouse Resource Allowance: $119,220

Here's an example of how the CSRA might work:

If a couple has $100,000 in countable assets on the date the applicant enters a nursing home, he or she will be eligible for Medicaid once the couple's assets have been reduced to a combined figure of $52,000 -- $2,000 for the applicant and $50,000 for the community spouse.

Some states, however, are more generous toward the community spouse. In these states, the community spouse may keep up to $119,220 (in 2015), regardless of whether or not this represents half the couple's assets. For example, if the couple had $100,000 in countable assets, the community spouse could keep the entire amount, instead of being limited to half.

For more about the CSRA, click here.

For more about Medicaid's protections for the healthy spouse, click here.

For more about Medicaid's treatment of assets, including what is "non-countable," click here.

Ohio Forced to Embrace Compliant Annuities in Medicaid Planning

Medicaid compliant annuities are useful tools in long-term care planning for many married clients.  A married couple typically purchases a Medicaid compliant annuity if the two spouses are in unequal health positions to ensure that the healthy spouse—known as the “community” spouse—has sufficient income, while allowing the second, less healthy spouse to qualify for Medicaid assistance in paying for long-term care expenses, typically within a nursing home.  

Because a Medicaid compliant annuity is often the only means by which a healthy client is able to secure a stable income stream once his or her spouse requires state-sponsored Medicaid assistance, state-imposed restrictions in this area can force a Medicaid-reliant client into poverty.  Nonetheless, in recent years, restrictive state and local policies have often prevented clients from fully taking advantage of these federally regulated products.  Historically, Ohio has been peculiarly aggressive, sometimes bending the federal and state rules to erect substantial roadblocks to these planning alternatives.  

Federal law would appear to protect the use of Medicaid compliant annuities.  Rather than treating the purchase of the annuity as an impermissible asset transfer effected in order to meet Medicaid’s means-tested eligibility requirements, if certain requirements are satisfied, the federal Deficit Reduction Act (DRA) treats the purchase as a permissible exempt investment, and the annuity payout stream is shielded as the community spouse’s income.  

In order to qualify as a Medicaid compliant annuity under the DRA, the terms of the annuity contract must satisfy certain criteria. The income from the annuity contract must be payable to the community spouse, the contract must be irrevocable and the payment term must be based on the life expectancy of the community spouse.  Further, the state must be named as the remainder beneficiary on the contract, allowing it to receive up to the amount that it has paid for the institutionalized spouse’s long-term care.
The speed with which Ohio complied with the injunction and reversed the denied applications isa step in the right direction for Medicaid-reliant clients.

Notwithstanding the federal rules, in three separate instances, a community spouse in Ohio had purchased a Medicaid compliant annuity so that his spouse, a nursing home resident, could qualify for Medicaid. Several Ohio counties, however, decided to treat Medicaid compliant annuities as impermissible asset transfers even if those annuities satisfied the strict federally mandated criteria.  he Medicaid applications were denied.

The immediate annuities purchased in the Ohio case satisfied federal criteria, but, because Ohio found that they did not satisfy state standards, the state found that the healthy spouses were required to use those funds to pay for the unhealthy spouses’ nursing home care, despite the fact that the funds were now invested in irrevocable annuities.

A federal court, however, recently stepped in to issue an injunction against Ohio.  The federal judge disagreed with Ohio's interpretation of the rules, and, because the institutionalized spouses were at risk of eviction from the nursing home, issued an injunction ordering the state to reverse its decision and treat the annuities as permissible, or risk disqualifying Ohio from the federal Medicaid program entirely.

The state quickly complied.  

In Ohio, a community spouse is entitled to retain half of the couple’s assets, up to a maximum dollar amount of around $ 119,220 (eff. 1/1/2015). The unhealthy spouse is required to spend down the remainder of the couple’s assets until only $1,500 remains. In order to accomplish this, the couple is permitted to buy certain types of immediate annuities without jeopardizing Medicaid eligibility.

There are Many Life Insurance Options in Estate and Financial Planning

Estate planning will always involve consideration of life insurance.  Life insurance can, among other objectives, create liquidity to pay estate taxes and settlement expenses, replace lost income for spouses and dependents, and protect an estate against loss. There are two main types of insurance: term and permanent. These two main alternatives differ on how long there is coverage and whether or not the policy includes a cash value.

Term Life Insurance

Term life insurance is the simplest, and probably the most common type of insurance. The purchase of insurance is for a set number of years, and the policy owner has coverage only for those years. In general, premiums remain level for the term. If the insured dies during the term, the beneficiaries receive a death benefit. Once the term ends, however, coverage ends. Some policies are "guaranteed renewable,"  meaning the owner can renew the policy for another term without having another medical exam, but premiums typically  increase. Some term policies also allow you to convert a term policy into permanent insurance.

Term insurance is usually purchased to cover a short- to medium-term need, such as a mortgage or a dependent's education costs.  Level term insurance keeps the premiums and death benefit the same over the policy term,  but there are other options. If the need for insurance will decrease over time, deceasing term insurance offers a reducing death benefit  over the term. Most consumers encounter these when buying a home or car, to ensure payment of the debt at death.  Conversely, if your need for insurance will increase over time, you can purchase increasing term insurance in which your premiums and death benefit rise over the term.

Permanent Life Insurance 

There are many different types of permanent life insurance (also called cash value insurance), but the four main types are whole life, universal life, variable life, and universal variable life. All permanent life insurance policies provide coverage for life (or for as long as you pay premiums). The other feature of permanent insurance is that in addition to paying a death benefit, the policy builds a cash value, which can be used as collateral for a loan or withdrawn from the account. A portion of the premium payments goes into a separate cash account that grows over time. Loans or withdrawals reduce the death benefit, but offer liquidity option in estate and financial planning. Many of these policies offer the option to add the cash value to the death benefit upon the death of the insuredfor an additional cost.  Each types of permanent life insurance has its own specific features and variations:

• Whole life insurance. With whole life insurance, the owner pays a set premium and receive a set death benefit. In addition, the cash value is guaranteed. Whole life insurance is a good option if an owner  is seeking stable premium payments, cash value, and a death benefit.

• Universal life insurance. Universal life insurance offers flexible premiums, cash value, and death benefit. The main feature of universal life insurance is the ability to use accumulated cash value to pay premiums. A policy may lapse, however, if the cash value does not grow sufficiently to support premium payments. Universal life also offers the option to change the death benefit, although, depending upon the policy, the insured may have to go through the underwriting process again. Universal life insurance is a good option if an owner is worried about the ability to pay premiums in the future and wants the ability to change premiums and  death benefit amounts as circumstances change.

• Variable life insurance. Variable life insurance offers the ability to invest cash value. The premium payments are usually  level, but an owner can direct the cash value payments into subaccounts that are similar to mutual funds. The cash value and  death benefit will vary depending on the performance of the accounts, although some policies may contain a guaranteed minimum for each. Variable life insurance is appropriate if an owner is using the policy as an investment and wants to control investment options. Variable life is better for younger buyers who can afford to take more risks.

• Variable universal life insurance. As the name suggests, variable universal life insurance combines the flexible premiums of universal life insurance with the investment choices of variable life insurance. There is no guaranteed minimum cash value, but most policies have a minimum guaranteed death benefit provided the premiums are paid for a set number of years. Like universal life insurance, the owner may be able to change the death benefit, but again the insured might have to go through the underwriting process again. Variable universal life insurance is a good option for young purchasers who want an investment option and flexibility with premium payments.

Autism Patients Share Common Pattern Of Brain Inflammation

From Sarah Klein, Senior Editor, Health and Fitness, for the Huffington Post;

While science has yet to pinpoint the exact cause of autism, a new study reveals that the brains of people with the disorder share a common pattern of inflammation from an overactive immune response. 

Johns Hopkins and University of Alabama at Birmingham researchers analyzed data from autopsied brains of 72 people, 32 of whom had autism. In the brains of people with autism, they found genes for inflammation permanently activated in certain cells. The study, published in the online journal Nature Communications on Dec. 10, is the largest so far of gene expression in autism. 

"There are many different ways of getting autism, but we found that they all have the same downstream effect," Dan Arking, Ph.D., an associate professor in the McKusick-Nathans Institute for Genetic Medicine at the Johns Hopkins University School of Medicine said in a statement. "What we don't know is whether this immune response is making things better in the short term and worse in the long term." 

Inflammation is not likely a root cause of autism, but a consequence of a gene mutation, Arking stressed. To better understand inflammation's effects, researchers will want to find out whether treating it makes autism symptoms any better, he said.

Go here to read the rest of the article.