Six Questions to Ask Before Making Gifts

Many seniors consider transferring assets for estate and long-term care planning purposes, or just to help out children and grandchildren. Gifts and transfers to a planning trust often make a lot of sense. They can save money in taxes and long-term care expenditures, and they can help out family members in need and serve as expressions of love and caring.

But some gifts can cause problems, for both the generous donor and the recipient. 

Following are a few questions to ask yourself before writing the check:

Why are you making the gift? Is it simply an expression of love on a birthday or big event, such as a graduation or wedding? Or is it for tax planning or long-term care planning purposes? If the latter, make sure that there's really a benefit to the transfer. If the value of your assets totals less than the estate tax threshold in your state, your estate will pay no tax in any case. For federal purposes the threshold is $5.34 million (in 2014). Gifts can also cause up to five years of ineligibility for Medicaid, which you may need to help pay long-term care costs.

You should also check with your own elder law attorney or financial planner to make sure that the objective you are seeking can be (or best be) attained through the gift.  For example, some gifts that lay persons believe will help either don't help, or in fact may worsen the situation.  A home is not a countable asset when applying for Medicaid, for example, meaning that the home and its value are protected for a spouse living in the home.

A gift of the home removes the home from protection for the community spouse, and causes what would have been an unnecessary spend-down of other assets.  Gifts with retained life estates, and gifts held for the benefit of, and used for the support of the senior may not accomplish the objective sought.   

Are you keeping enough money? If you're making small gifts, you might not need to worry about this question. But before making any large gifts, it makes sense to do some budgeting to make sure that you will not run short of funds for your basic needs, activities you enjoy -- whether that's traveling, taking courses or going out to eat -- and emergencies such as the need for care for yourself or to assist someone in financial trouble.

Is it really a gift (part one)? Are you expecting the money to be paid back or for the recipient to perform some task for you? In either case, make sure that the beneficiary of your generosity is on the same page as you. The best way to do this is in writing, with a promissory note in the case of a loan or an agreement if you have an expectation that certain tasks will be performed.

Is it really a gift (part two)? Another way a gift may not really be a gift is if you expect the recipient to hold the funds for you (or for someone else, such as a disabled child) or to let you live in or use a house that you have transferred. These are gifts with strings attached, at least in theory. But if you don't use a trust or, in the case of real estate, a life estate, legally there are no strings attached. Your expectations may not pan out if the recipient doesn't do what you want or runs into circumstances -- bankruptcy, a lawsuit, divorce, illness -- that no one anticipated. If the idea is to make the gifts with strings attached, it's best to attach those strings legally through a trust or life estate.

Is the gift good for the recipient? If the recipient has special needs, the funds could make him or her ineligible for various public benefits, such as Medicaid, Supplemental Security Income or subsidized housing. If you make many gifts to the same person, you may help create a dependency that interferes with the recipient learning to stand on his own two feet. If the recipient has issues with drugs or alcohol, he may use the gifted funds to further the habit. You may need to permit the individual to hit bottom in order to learn to live on his own (i.e., don't be an "enabler").

Do you understand the tax consequences of the gift?  Sometimes there are adverse tax consequences in making a gift.  The most commonly misunderstood of these is the loss of the step-in basis of appreciated property to the fair market value on the date of death.  This -step-up in basis means, in essence, that your heirs can sell your assets in which you have capital gains without incurring a capital gains tax.  Donors can sometimes overlook this benefit.   At a minimum, a short conversation with an elder law attorney or tax professional will make clear the consequences and the options available to best accomplish your objectives. 

If after you've answered all of these questions, you still want to make a gift, please go ahead. Unless the gift is for a nominal amount, however, it is advisable to check with your attorney to make sure you are aware of the Medicaid, tax and other possible implications of your generosity.

Five Reasons Why Joint Accounts May Be a Poor Estate Plan

Many people, including seniors, view joint ownership of investment and bank accounts as a cheap and easy way to avoid probate since joint property passes automatically to the joint owner at death. Joint ownership can also be an easy way to plan for incapacity since the joint owner of accounts can pay bills and manage investments if the primary owner falls ill or suffers from dementia. These are all benefits of joint ownership, but three potential drawbacks exist as well:

Risk. Joint owners of accounts have complete access and the ability to use the funds for their own purposes. Many elder law attorneys have seen children who are caring for their parents take money in payment without first making sure the amount is accepted by all the children. In addition, the funds are available to the creditors of all joint owners and could be considered as belonging to all joint owners should they apply for public benefits or financial aid.  Many elder attorneys have seen their clients' accounts embroiled in creditor claims and nasty divorces against their clients' children. 

Inequity. If a senior has one or more children on certain accounts, but not all children, at her death some children may end up inheriting more than the others. While the senior may expect that all of the children will share equally, and sometimes they do in such circumstances, but there's no guarantee. People with several children can maintain accounts with each, but they will have to constantly work to make sure the accounts are all at the same level, and there are no guarantees that this constant attention will work, especially if funds need to be drawn down to pay for care.

The Unexpected. A system based on joint accounts can really fail if a child passes away before the parent. Then it may be necessary to seek guardianship to manage the funds or they may ultimately pass to the surviving siblings with nothing or only a small portion going to the deceased child's family. For example, a mother put her house in joint ownership with her son to avoid probate and Medicaid’s estate recovery claim. When the son died unexpectedly, the daughter-in-law was left high and dry despite having devoted the prior six years to caring for her husband's mother.

Disputes. Planning based upon individual accounts really does nothing to inform your family regarding your ultimate wishes.  Do you ultimately want to prefer one family member over another?  If the effect of planning using individual accounts results in an inequality to family members, was it intended or anticipated?  Of course, the resulting ambiguity is the cause of lawsuits, claims, disagreements, and hard feelings.  

Fraud.  Asset transfers late in life are particularly troubling, if they work to defraud your heirs and/or are not a reflection of your wishes.  A plan based upon individual assets and accounts does little to protect your family.  On the other hand, a comprehensive plan involving a trust or well-drafted will can better protect your family from late-in-life transfers by informing your family and authorities of your estate planning objectives.  

Joint accounts do work well in two situations. First, when a senior has just one child and wants everything to go to him or her, joint accounts can be a simple way to provide for succession and asset management. It has some of the risks described above, but for many clients the risks are outweighed by the convenience of joint accounts.

Second, it can be useful to put one or more children on one's checking account to pay customary bills and to have access to funds in the event of incapacity or death. Since these working accounts usually do not consist of the bulk of a client's estate, the risks listed above are relatively minor.

For the rest of a senior's assets, wills, trusts and durable powers of attorney are much better planning tools. They do not put the senior's assets at risk. They provide that the estate will be distributed as the senior wishes without constantly rejiggering account values or in the event of a child's incapacity or death. And they provide for asset management in the event of the senior's incapacity.

For more information review the previous post regarding direct transfer designations, such as Transfers on Death (TOD) and Payable on Death (POD) designations.  Joint ownership, TODs and PODs share many of the same disadvantages.   

Albert Pujols is a Champion for Kids with Special Needs

Los Angeles Angels of Anaheim designated hitter Albert Pujols is one of the greatest sluggers in baseball. In April, he hit home run number 500, putting him in some elite company. And as the 2014 season has progressed, Pujols has kept hitting home runs — climbing the all-time list (he’s currently at number 21 with 515 dingers) and helping his team reach the top of the American League West.

But Pujols’ accomplishments on the field are nothing compared to what he has done off it. His daughter Isabella has Down syndrome, and since his days as a St. Louis Cardinal Pujols has been an active advocate for kids and adults with special needs. He has partnered with the Down Syndrome Association since 2001, and in 2005 he founded his own non-profit organization, the Pujols Family Foundation, with his wife, Deidre. The foundation promotes awareness of special needs issues and helps kids and families living with Down syndrome both in the US and his native Dominican Republic. 

Pujols’ is also helping raise awareness by being the cover model for Toys “R” Us’ 20th annual Toy Guide for Differently-Abled Kids. The guide launched today, and it’s a resource for anyone looking for a great toy for the special needs kid in their life.

To read the full article posted on SIKids.com, go here. 

Hospitals Referring to Fewer SNF's

According to Jeff Terkowitz, senior manager with Avalere, between 2009 and 2012 – the most recent year for which CMS has released comprehensive Medicare data – there was an increase in the average number of SNFs that received a volume of patient referrals from hospitals. However, that trend may be slowing; the .3% increase in average number of SNFs to which hospitals discharged patients in 2012 came after increases of .7% and .9% per year from 2009-2011.

In 2009, short-term acute care hospitals discharged patients who were admitted on average to just over 37 different SNFs following the hospital stay.  In 2010 and 2011, that number grew, with hospital patients going to just under 38 and just under 39 SNFs, respectively.  By 2012, that number reached 39.14, a slight increase from 2011.

Hospitals, therefore, are still sending patients to many different SNFs, indicating, according to Terkowitz, that referral networks may not be well established.  But, he suspects that even though the total number of SNFs is still going up, there is a higher concentration of patient volume at a smaller number of facilities. He notes, for example, that between 2009 and 2012, there was a slight increase in concentration during which time the average hospital went from having just over nine SNF partners who received 10 or more patients to having 9.54 partners receiving that higher volume. 

He warns that the environment is rapidly changing, though; "there are many examples of hospitals moving towards tighter, more coordinated post-acute care networks." 

Diagnostic Related Group Codes or DRGs

DRGs were first developed at Yale University in 1975 for the purpose of grouping together patients with similar treatments and conditions for comparative studies. On October 1, 1983, DRGs were adopted by Medicare as a basis of payment for inpatient hospital services in order to attempt to control hospital costs. Since then, the original DRG system has been changed and advanced by various companies and agencies.  DRG represents a rather generic term.  

ICD-10 is the 10th revision of the International Statistical Classification of Diseases and Related Health Problems (ICD), a medical classification list by the World Health Organization (WHO). It contains codes for diseases, signs and symptoms, abnormal findings, complaints, social circumstances, and external causes of injury or diseases.   ICD-10-CM contains over 68,000 codes. 

Surprise? Researchers Find that Hospice Use Not Increasing Despite Record Use of Advance Directives

According to an article published in McNight's Long Term Care News, seniors are completing advance directives in record numbers, but this is not having the expected effect of shifting people from hospitals to hospices in their last days, say researchers from the University of Michigan and the Veterans Affairs Ann Arbor Healthcare System. 

About 47% of elderly people had completed a living will as of 2000, and that increased to 72% by 2010, according to data from the Health and Retirement Study, a national survey done by the University of Michigan Institute for Social Research, on behalf of the National Institute of Aging.  During that same period, hospitalization rates increased in the last two years of life, the investigators found. The proportion of people dying in the hospital did decrease from 45% to 35%, but the researchers determined this had little to do with advance directives. This could be because directives focus more on the type of care rather than the setting where it is provided, they surmised.

“These are really devices that ensure people's preferences get respected, not devices that can control whether a person chooses to be hospitalized before death,"  researcher Maria Silveira, M.D., MA, MPH told McNight.

The article reports that among those who have completed a living will, most have both explained their treatment preferences and appointed a surrogate to make care decisions for them, according to the findings in the Journal of the American Geriatrics Society.  Advance directives commonly cover extreme decisions such as use of feeding tubes, but they do not provide much guidance for “gray area” end-of-life choices, such as when to administer antibiotics, another recent study found.

There is, of course, another possible explanation:  hospitals routinely transfer patients from a hospital to a skilled nursing facility at the end of a Medicare benefit, in order to continue Medicare covered treatment. These transfers are often made without advice, or informed consent after exploring alternatives.  Perhaps the disparity is best explained by institutions perpetuating institutional care and treatment.

Empowering Nurse Practitioners Could Reduce Hospitalizations From SNFs

According to an article in McNight's Long Term Care News, granting more authority to nurse practitioners (NPs) can help reduce hospitalization of skilled nursing facility residents.

The article reports the results of studies demonstrating that States that allow NPs to practice to the fullest extent of their training without a supervising physician have lower hospitalization rates across a range of groups in addition to SNF residents. These groups include inpatient rehabilitation patients and dual-eligible Medicare and Medicaid beneficiaries.

The American Association of Nurse Practitioners tracks state laws that allow NPs full, reduced or restricted scope of practice. There were 17 states allowing full practice as of January 2013.

Though there exists a correlation, the findings do not prove that allowing full scope of practice causes SNF hospitalization rates to improve, study authors pointed out. However, previous research also has shown that full scope of practice is associated with fewer hospitalizations, lower healthcare costs and better outcomes, they noted. Their findings contradict the American Medical Association and other physician groups, which have said care quality is likely to decline when a nurse practitioner, rather than a doctor, takes a lead role.

The results of this study should encourage nursing groups and other stakeholders to press for full scope of practice laws, the researchers concluded. They recommended that NPs form coalitions with nursing home associations and other groups to advocate for these policies.

This blog post is dedicated to a client NP who only recently provided me a solution to a persistent eye condition that defied treatment by two other physicians.

   

Ohio Ranks Poorly on Long-Term Care Services Scorecard

A new report ranks states on the quality and accessibility of their long-term care services and concludes there is a lot of room for improvement. The 2014 State Long-Term Services and Supports Scorecard finds that quality of care varies enormously across the states, but affordability is a big issue nationally.

The scorecard, a collaboration between the AARP, The Commonwealth Fund, and The SCAN Foundation, measured states’ long-term care system performance in five areas: affordability and access, choice of setting and provider, quality of life and quality of care, support for family caregivers, and effective transitions between care settings. Minnesota, Washington, Oregon, and Colorado ranked the highest while Kentucky, Alabama, Mississippi, and Tennessee ranked the lowest. The groups conducted a similar study in 2011.

According to the report, even in the highest-ranking states the cost of long-term care is unaffordable for middle-income families. The report notes that "on average, nursing home costs would consume 246 percent of the median annual household income of older adults."

States with a Medicaid system that functioned as an adequate safety net – reaching those with low and moderate incomes -- ranked higher on the scorecard, indicating that state public policy is important to improving care overall. The scorecard concludes that while some progress is being made, it is not enough to meet the needs of the growing elderly population.

The state of Ohio ranked 44th overall, ranking 42nd in affordability and access, but faring slightly better, 39th, in quality of life and quality of care.  Given these poor rankings, it is fortunate, perhaps, that Ohio's highest ranking came in securing effective transitions, which in part, considers the effectiveness of the state in avoiding unnecessary institutionalization.  

To see where each state ranks, click here.

5 Tips on Deciding Whether to Buy Long-Term Care Insurance

Alliance for Health Reform

One of the most difficult decisions in long-term care planning is whether to purchase long-term care insurance (LTCI) and which of the wide variety of products to purchase.

On the one hand LTCI premiums are high, they may be raised in the future, and  if you are purchasing policies in your 50s and 60s, the need is probably many decades in the future. Traditional LTCI also pays nothing to your family if you pass away without needing long term care, and may not even be there when needed if future price increases make keeping the policy impossible. On the other, many are saved by their LTCI, able to choose their own care setting rather than rely on what is covered by Medicaid in their state, more comfortable hiring necessary help if doing so doesn't mean dipping in to their savings, and able to protect an inheritance for their children and grandchildren.

Here are a few tips that should help you make the decision whether to purchase LTCI and what products to consider:

1. Can you afford LTCI? Can you "self-insure"? There are a few rules of thumb that can help determine whether you are in the target market for LTCI. You need to have enough savings and income to afford the premiums but not so much that you can easily pay your costs of care. If you are a couple whose net worth is more than $1 million but less than $3 million, or a single person with half these amounts, you are a candidate for LTCI. (Some LTCI brokers will tell you that there's no upper limit since even wealthy people may prefer to use LTCI rather than dip into their savings.) You could also look at this from the point of view of income. If you can pay the premiums without affecting your style of living or dipping into savings, then you can afford LTCI.
2. Decide now once and for all. Unless your financial situation is likely to change in the future, the best time to purchase LTCI is now. Every year you wait, you will face higher premiums and run the risk that a health care event will make you ineligible for LTCI.
3. Assess your own feelings. First, if you or your spouse were to need care at home, would you be reasonably comfortable using up some of your savings to pay for care? Or would you exhaust yourself providing the care yourself instead, whether due to fear of running out of funds or wanting to leave an inheritance? If you can do this thought experiment, in the end, would you feel worse having paid premiums over the years for insurance you did not use or paying out-of-pocket for care that could have been covered by insurance?
4. Use an LTCI specialist. LTCI is one of the most complicated insurance products available, with policies offering a variety of benefit levels and conditions for payment. Some insurance companies have raised premium rates on existing policies while others have not. Some honor claims readily and others have put up difficult roadblocks. And there is a proliferation of hybrid policies that merge LTCI with life insurance. You need someone who specializes in the field to guide you through all of these options.
5. Read up. You may have noticed that this article hasn't addressed actual insurance policies and benefit choices. In part this is because, as noted above, you need an expert. But before meeting with the expert, do a little of your own research. Start with ElderLawAnswers' collection of articles on LTCI, such as "Questions to Ask Before Buying Long-Term Care Insurance" and "How Much Long-Term Care Insurance Should You Purchase?" 

While these tips won't completely eliminate the difficult decision that all baby boomers are facing, we hope that this framework will help focus its consideration.

Caregiver Weds Man Then Depletes His Estate Leaving His Family Nothing

Proper planning for single seniors includes protecting the estate from control by third parties. A recent case illustrates how difficult it can be to protect a loved one from finacial abuse. Frank Calcaterra was in his 80s in 2008 when his family hired a home care company to help the former metro Detroit funeral home owner look after his ailing wife Jonnie, who had dementia.  Kentucky-based ResCare sent Tangie Coleman, who, at the time, had a warrant out for her arrest, records show.  It was later discovered that she lied on her application with ResCare.

Jonnie’s jewelry soon began to disappear.  When Jonnie Calcaterra died in a nursing home in January 2012, Coleman and her mother were living in Frank Calcaterra’s lakefront home in Waterford and he was sleeping in the basement.

A few months later, Coleman married Calcaterra in Ohio, without his family’s knowledge. Frank Calcaterra’s sizable fortune soon disappeared.  Estimates from court filings put the loss at anywhere from $500,000 to more than $1.5 million.  On Oct. 25, 2012, when Coleman, who was 35, and Frank Calcaterra, who was 86, were married in Ohio, at least two complaints alleging financial exploitation had already been filed against Coleman with the Michigan Department of Human Services’ division of Adult Protective Services.

When Frank Calcaterra’s daughters removed him from his home, less than a year later, he was 10 pounds lighter and destitute. He did not have a single bank account maintaining a positive bank balance or a valid credit card. Coleman was driving him to a check cashing storefront with his monthly Social Security check.

The case highlights what experts say is a significant and growing problem in the U.S. — financial exploitation of elderly people by caregivers. Many cases go unreported and accurate estimates are hard to pin down, but studies suggest there are at least tens of thousands of such cases each year.

In May of this year, a judge appointed a conservator for Calcaterra, citing fraud and financial exploitation, which Coleman denies.  Calcaterra’s court-appointed conservator, is seeking to annul the marriage, alleging it was a fraud Coleman perpetrated “solely for her financial gain.”

Calcaterra’s daughters are looking for answers and accountability, too. They’re unhappy the state failed to act and that it has been difficult to get police agencies to launch criminal investigations, with some officials saying the 2012 marriage mades the case a civil matter.

“Our concern is that no other family ever go through this,” said Calcaterra’s daughter Charlotte Knutson, who lives in Minnesota told a reporter for the Detroit Free Press.

Sgt. Brent Ross of Waterford Police recently closed a criminal investigation.  “There is still no evidence that Tangie ever forged a specific check although it may be inferred,” Ross reportedly explained to the family throught their attorney via email. “Perhaps the checks were forged, but they could have been forged by anyone.”

Coleman, who declined to discuss her history with Calcaterra during a brief encounter with a Free Press reporter, denied wrongdoing in an answer she filed to the annulment/divorce petition.  She claims Calcaterra gave her permission to sign his name to checks and his daughters are biased against her because she is black.  “Frank always gave me stacks of money ... and always promised to take care of me,” said Coleman, whose Facebook page featured photos of her fanning a stack of $100 bills.

“They kidnapped my husband,” Coleman said in a court filing. “I want him back.”

Records show Coleman was married when she was hired to help Calcaterra, but got divorced on Oct. 11, 2012 — two weeks before her marriage to Calcaterra. Of the many checks drawn on Calcaterra’s bank account in 2011, more than 20 totaling more than $10,000 were payable to Coleman’s husband at the time, for services such as painting, lawn care and moving.

Calcaterra, who spoke to a Free Press reporter with his daughters present, said Coleman told him she needed to marry him in order to receive a significant legal settlement resulting from a lawsuit she brought against an Oakland County police department for an alleged police assault against her. Calcaterra had earlier given her money to hire a lawyer.

“They went to court and got a settlement,” Calcaterra said. But Coleman told him officials told her she is a spendthrift, and in order to be paid the settlement she first had to get married so she would have someone to watch over how she handled the money.  “That’s why we got married,” Calcaterra said. “I don’t think there ever was a police report of this ever happening.”

There also is no record of any such lawsuit.

As might be expected, the family has filed a lawsuit against ResCare.

Text messages and handwritten notes exchanged between Calcaterra and Coleman show he was smitten with her. And Calcaterra pushed back hard when his daughters tried to convince him he was being used.

To read the full USA Today article, which includes practical precautions family members can implement, go here.

To read the Detroit Free Press article, go here.

Update: CMS May NOT Force the Dying to Spend Their Final Days Jumping Through Hoops to Get Needed Medications

Following an outcry from patient advocates, the Centers for Medicare and Medicaid Services (CMS) has revised earlier guidance that required hospice patients covered by Medicare Part D plans to get prior authorization of all their drugs.

As previously reported on May 14, 2014, Part D plans sometimes pay for medications that should be covered under Medicare’s hospice benefit.  In an effort to prevent this, in March CMS issued guidance requiring Part D plans to initially deny payment for all prescribed medications for hospice patients, forcing dying patients or their families to appeal the denials in order to get Part D payment for their medications, many of which they were taking before they enrolled in hospice. 

“This burden-shifting to the dying patient is illogical and immoral,” concluded the Center for Medicare Advocacy.  On June 11, the Center joined 26 other organizations in calling on CMS to replace its guidance with a more suitable solution.

Their concerns were heard.  On June 25, 2014, CMS met with a number of these groups to discuss the implementation of the guidance, and on July 18 the agency issued new guidance that supersedes portions of the earlier guidance.  Now, rather than requiring prior authorization for all medications, CMS will only “strongly encourage” Part D programs to place prior authorization requirements on four categories of prescription drugs that are typically used to treat symptoms during the end of life: analgesics, antinauseants, laxatives, and antianxiety drugs.  In making the change, CMS said “we recognize that the operational challenges associated with prior authorizing all drugs for beneficiaries who have elected hospice to determine whether the drug is coverable under Part D have created difficulties for Part D sponsors and hospice providers, and in some cases, barriers to access for beneficiaries."

“This action by CMS will bring marked relief to hospice patients and their providers who have been dealing with the previous policy under which all drugs processed through Part D for hospice patients were subject to prior authorization,” said Andrea Devoti, board chair of the National Association for Home Care & Hospice, said in a press release.

However, the Center for Medicare Advocacy was somewhat more restrained in its praise.  While calling the replacement guidance "significantly better than the original," the Center said CMS still “relies upon the good will and prompt diligence of hospice providers, pharmacies, and Part D Plan Sponsors to ensure Medicare beneficiaries do not lose access to medications necessary to prevent pain, nausea, constipation, and anxiety.”  The Center also expressed concern that there are no time frames to ensure that these players act expeditiously, and there is no real appeal process for terminally ill patients whose medications are not meeting their needs. 

For the CMS memorandum containing the new guidance, click here. 

Ohio Supreme Court Hears Arguments in Medicaid Pre-Eligibility Transfer Case

Does federal Medicaid law allow the unlimited transfer of assets between spouses after one spouse is institutionalized, but before Medicaid eligibility is determined?  The answer to that question will greatly impact planning opportunities for Ohio families.  On Wednesday, August 20, 2014, the Supreme Court of Ohio heard oral arguments in a case that turns on this question.  Estate of Atkinson v. Ohio Department of Job and Family Services, No. 2013-1773.

In 2000 Marcella Atkinson and her husband transferred their home into a revocable living trust. In April 2011, Mrs. Atkinson entered a nursing home and soon applied for Medicaid benefits. In August 2011, the home was removed from the trust and placed in Mrs. Atkinson's name. The next day, Mrs. Atkinson transferred the house to her husband. The state determined an improper transfer had occurred and imposed a penalty period.  Mrs. Atkinson passed away, and her estate appealed to court, losing at both the trial court and the Ohio Court of Appeals. 

During the 40 minutes of oral arguments (available on video here) before the state’s high court, the attorney for the estate, Maura L. Hughes, maintained that both federal and state Medicaid law clearly allow unlimited transfers up to the point of Medicaid’s eligibility determination, and that both the Sixth Circuit Court of Appeals and the Department of Health and Human Services (HHS) support this reading of the statutes.    

Stephen P. Carney, the attorney for the state, told the justices that both the Sixth Circuit and HHS “got it wrong,” and that “the curtain comes down on unlimited transfers at the date of institutionalization.”  If couples are allowed to continue reallocating their assets after the date of institutionalization, he argues, they will be able to easily protect assets through “various tricks,” such as annuities. “If you can still do unlimited spousal transfers even after institutionalization, then you could take 200, 300, $400,000 as in some of our other cases and convert it from what’s a shared resource into this protected income stream for the community spouse.” 

Some justices appeared surprised at Carney’s suggestion that they should second-guess both the Sixth Circuit and HHS (which weighed in on the Sixth Circuit case).  One justice asked attorney Hughes whether the state is bound by the Sixth Circuit’s decision, in which, coincidentally, the appellant’s name was Hughes. 

“I believe they are, your honor,” said Hughes. “My understanding is that they are not actually following it now.  There was a U.S. district court case filed last week alleging that the state has been holding for this case in hopes of getting a second bite at the apple and having you come out in the opposite direction from the Hughes decision.”

For the Supreme Court of Ohio’s oral argument preview on the case, click here.

For detailed case information, click here.

Is Health Care Reform Hazardous To Your Health?

Regardless of your position on the Affordable Health Care Act, it is at one time both fascinating, and troubling, to witness the scope and pace of the major transformations taking place in the medical system. The transition to greater utilization of Skilled Nursing Facilities for rehabilitation following expiration of Medicare Benefits has caused much concern, for example.

Now,  John C. Goodman, one of the nation’s leading thinkers on health policy suggests bluntly that some of these changes are hazardous to your health.  Mr. Goodman's opinions are worthy of consideration. He is a Senior Fellow at the Independent Institute and author of the widely acclaimed book, Priceless: Curing the Healthcare Crisis. The Wall Street Journal calls Dr. Goodman "the father of Health Savings Accounts."

Dr Goodman, in an article entitled, "Is Obamacare Hazardous to Your Health," and published 8/15/2014 in Forbes, writes:

The Obama administration wants to change the practice of medicine.  Marcus Welby is out. Working in teams is in – especially in large practices owned by hospitals. Along the way, doctors are being subjected to pay-for-performance protocols and other forms of managed/integrated/coordinated care. 

How is all that working?  Not well at all.

A new study, which will soon appear in Health Affairs, showed these unexpected results: Practices with 1-2 physicians had 33 percent fewer preventable hospital admissions than practices with 10-19 physicians. 

I say “unexpected” because virtually everyone in the health policy community has bought into the idea that good medicine is medicine practiced in teams – rather than solo – and it is medicine that centers on medical homes  and follows protocols where physicians are rewarded for the “value they create” not the number of things they do. “Value” of course is determined by some bureaucracy somewhere. 

When I say “everybody” has bought into this idea I really mean everybody who is anybody except for … well … except for doctors who actually treat real patients. Whereas two thirds of doctors worked in private practice a few years ago, more than half of all doctors work for hospitals today. Medicare pays doctors more for the same procedures if billed as a hospital employee than if billed directly by a solo practitioner, perhaps to encourage the demise of private practice. 

Yet the Health Affairs study couldn’t be clearer. Practices owned by hospitals had 50 percent more preventable admissions than practices owned by physicians (regardless of size). 

The larger practices as well as hospital-based practices made greater use of medical homes, were more likely to be rewarded by pay-for-performance formulas and did better on performance measures that focused on inputs, not outputs. So why were the results so bad?

For the full article, click here.

Entire Value of Property in Which Medicaid Recipient Had Life Estate is Recoverable in Idaho

The Idaho Supreme Court has ruled that the state may recover Medicaid benefits from the entire value of a property that a Medicaid recipient transferred to his daughter while retaining a life estate for himself. In re Estate of Peterson (Idaho, No. 40615, Aug. 13, 2014).

Melvin Peterson deeded property to his daughter, retaining a life estate for himself. He then applied for Medicaid benefits. When he died, Mr. Peterson had received a total of $171,386.94 in Medicaid benefits.

The state filed a claim against the estate to recover the Medicaid benefits it paid for Mr. Peterson's care. Under Idaho law, the state may recover any property that passes outside of probate, including any property that that the Medicaid recipient had a legal interest in that passes to a survivor through a life estate or "other arrangement." The trial court ruled that the life estate remainder interest, but not the retained life estate, was an estate asset, and the appeals court affirmed. The estate appealed, arguing Mr. Peterson had no interest in the life estate at his death, so it could not be subject to recovery.

The Idaho Supreme Court affirms in part holding that both the life estate and the remainder interest were estate assets subject to Medicaid recovery. The court determines that Mr. Peterson's life estate interest in the property was transferred to his daughter when he died, and under state law "when assets of a Medicaid recipient are conveyed to a survivor, heir or assign by the termination of a 'life estate,' the assets remain part of the recipient’s 'estate'" for purposes of Medicaid recovery. In addition, the court rules that the remainder interest Mr. Peterson's daughter received is also part of Mr. Peterson's estate as an "other arrangement."

For the full text of this decision, go to: http://www.isc.idaho.gov/opinions/40615.pdf

Former Resident Liable to Nursing Home for Unjust Enrichment

A New York trial court has held that a nursing home is entitled to summary judgment on an unjust enrichment claim against a former resident who did not pay for care, but the court denied summary judgment on a breach of contract claim against the resident's daughter.Blossom View Nursing Home v. Denner (N.Y. Sup. Ct., Wayne Cty., No. 76117, July 3, 2014).

Arnold Denner entered a nursing home, but refused to sign the admission agreement. His daughter, Linda Clevenger, eventually signed as the "responsible party." The contract stated that the responsible party was required to use the resident's resources to pay for care. Mr. Denner's co-insurance and Social Security paid for some of his care at the facility, but he left a balance of $31,318.23 when he moved out.

The nursing home sued Mr. Denner and Ms. Clevenger for breach of contract. It also stated a claim for unjust enrichment against Mr. Denner. Ms. Clevenger argued that the nursing home pressured her into signing the agreement and that her father told her not to use his resources to pay for his care. The nursing home asked for summary judgment.

The New York Supreme Court, a trial court, denied the nursing home summary judgment on the breach of contract claim, but granted it on the unjust enrichment claim. According to the court, there are triable issues of fact regarding whether the nursing home used duress in getting Ms. Clevenger to sign the admissions agreement and whether she actually had access to her father's resources. But, the court held that although the nursing home can't state a claim for breach of a contract that Mr. Denner did not sign, he is liable to the nursing home for unjust enrichment because he received and accepted its services. 

For the full text of this decision, go to: http://law.justia.com/cases/new-york/other-courts/2014/2014-ny-slip-op-31734-u.html

A Walk on the Wild Side of Estate Planning

Reed performing at the
Hop Farm Festival in Kent, 2011
http://en.wikipedia.org/wiki/Lou_Reed

Danielle and Andy Mayoras wonder, in an article written for Crain's Wealth, why Lou Reed, late lead singer and guitarist of The Velvet Underground, a musician and songwriter with a successful solo career, "would be so careless with his estate plan."  According to the article, probate filings available to the public paint a vivid picture of Lou Reed's estate:

Recent filings with the Surrogate's Court in Manhattan show that Reed's estate has already earned more than $20 million since he passed away from liver disease at the age of 71, on Oct. 27. This is only the income that Reed's estate has brought in since his death, primarily from royalties.

The executors filed a report recently with the court, listing the income and providing an updated inventory of estate assets. There is other property worth around $10 million in Reed's estate. Reed's wife and his sister are the primary beneficiaries, along with a half million dollars set aside for the care of Reed's 93-year old mother. Reed's widow and his sister receive 75 percent and 25 percent, respectively, of the residue, while all of the personal property and almost $9 million worth of real estate in New York will go to his widow alone.

Reed relied on a 34-page will he signed in April 2012.  Apparently Reed was aware he was suffering from liver disease, and he signed his will a year-and-a-half before he passed. 

The article continues:

Why would someone with assets worth tens of millions rely on a will, instead of a revocable living trust, if not even more sophisticated estate planning?  

That's the question that doesn't appear to have a good answer.  If Reed had used a revocable living trust, and transferred his assets into the trust during his life, then all of this information would have been kept private. That's a key difference between wills and trusts. Wills have to pass through probate court (called Surrogate's Court in New York), which is a public process. Trusts, when used the right way, avoid probate court entirely. 

While most people don't have to worry about the press leaking details of their financial worth, everyone should strive to avoid probate court. On top of being public, it's also expensive, stressful, time-consuming, and more prone to fighting.  

It's much easier for disgruntled family members to file will challenges in probate court, as opposed to a trust that is administered privately, outside of court. In fact, trusts can even help you when you are alive by addressing who and how your assets are managed if you are no longer able to do so. Wills can't help with that.

The The authors conclude that Lou Reed should have updated his plan to include a revocable living trust, thereby protecting his family's privacy, and avoiding the aggravation of probate court:

It's a lesson for everyone … even those who don't have more than $30 million. So let Reed stick to walking on the wild side when it comes to estate planning. Talk to your loved ones about the benefits of a revocable living trust.

To read the whole article, click here.

GAO Report: The Myth of Millionaires on Medicaid

A new U.S. Government Accountability Office (GAO) report examining Medicaid planning strategies finds that that only 14 percent of Medicaid applicants had more than $100,000 in total resources and that only 5 percent transferred assets, adding support to assertions that Medicaid planning has a negligible impact on program outlays. 

The Report means hard evidence to rebut the assertions of some that perpetuate the myth that Medicaid for long term care provides benefits to "Millionaires on Medicaid"  The arguments ordinarily come from academics who have little real experience how Medicaid works, or the wide array of options available to the wealthy, other than reliance upon Medicaid, that better protect assets from long term care costs.  

The GAO reviewed 294 approved Medicaid nursing home applications in three states – Florida, New York and South Carolina -- to study the extent to which individuals are using available methods to qualify for Medicaid coverage. To identify the methods used to reduce countable assets to qualify for Medicaid coverage for nursing home care, the agency spoke with officials from the Centers for Medicare & Medicaid Services (CMS), interviewed nine attorneys recommended to it by the Director of the American Bar Association’s Commission on Law and Aging, and conducted undercover calls with representatives from 17 law offices whose websites indicated that they provided assistance with Medicaid planning.

During the undercover calls, the investigator posed as an adult child seeking advice on obtaining Medicaid coverage for his parent while preserving the parent’s assets. Two scenarios involved a parent with immediate need for care (one married and one widowed) and one scenario involved a parent who would need care in the future.

The following are some of the key findings in the report:

• Applicants most commonly owned financial and investment resources (95 percent), burial contracts and prepaid funeral arrangements (39 percent), life insurance policies (34 percent), their primary residence (31 percent), and vehicles (26 percent). Only nine applicants owned a trust and three applicants owned annuities.
• Sixty-five percent of applicants had annual gross incomes of $20,000 or less.  
• 30 percent had annual gross incomes between $20,001 and $50,000, and 5 percent had annual gross incomes of more than $50,000.Five percent of applicants transferred assets for less than fair market value.
• The median amount of assets transferred was $24,608, and the amounts ranged from $5,780 to $296,221. All but one of the applicants found to have transferred assets were from New York; the remaining applicant was from South Carolina.
• Five percent of applicants had a personal service contract that was determined to be for fair market value. The median value of the personal service contracts was $37,000; the value of the contracts ranged from $4,460 to $250,004.
• Two percent of applicants (5 applicants) used the “reverse half-a-loaf” method of transferring assets (in which the applicant gifts assets, incurs a penalty period, and then either converts other countable assets into an income stream or accepts a partial return of the assets). Four of those applicants transferred money in exchange for a promissory note and gifted between $20,150 and $227,250 worth of resources, resulting in penalty periods of between 2 months and 22 months.
• Thirteen applicants were able to use spousal refusal to allow the community spouse to retain assets. The median value of non-housing assets retained was $291,888, and two spouses were able to retain more than $1 million.
• According to state Medicaid officials, county eligibility workers, and attorneys interviewed, the value of annuities for the community spouse have average values ranging from $50,000 to $300,000.

To read the full report, "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage," click here.

For a National Academy of Elder Law Attorneys' press release responding to the GAO report, click here.