170 Million Pages Why You Should Avoid Probate

"You can learn a lot about people from their wills.

You can see who was happily married and who was disappointed in their families. You can see who prized brevity and who parceled out every item as if handled by a loquacious auctioneer with lambskin gloves. 

Death may come for us all, but it doesn't necessarily still our voices." 

So begins an excellent article by Todd Leopold, writer for CNN, entitled, "Paul Revere, J.P Morgan wills among millions now online." 

The article continues:

"There's always emotion involved when someone's writing a will," said Jennifer Utley, senior manager of research at Ancestry, the genealogy company. "People make really interesting statements on how much they left people."

Ancestry has now made it much easier to research old wills, whether they're from your family or someone of historical import. The company's website, Ancestry.com, has more than 170 million pages of wills and probate records available, legal records that until recently had been accessible only offline.

Historically significant, no doubt.  These records, culled from probate courts and legal archives serve as an important object lesson; your Will is a public record.  Once filed with a probate court, it is available to anyone, and with the movement to online public records, will one day be online. If you value the privacy of your most intimate thoughts, desires, and emotions, plan your estate to avoid probate.

 

Even In Ohio, A Medicare Recipient's 'Family' Includes a Spouse

The State of Ohio Department of Medicaid has a unique arrogance interpreting federal law without regard to its meaning or intent. As a result, the Sixth Circuit Court of Appeals was recently forced to hold that a state's definition of family when determining whether a Medicare recipient is eligible for Medicaid benefits to assist with premiums must include the Medicare recipient's spouse. Wheaton v. McCarthy (6^th Cir., No. 14-4023, Sept. 1, 2015).  Yes, the State of Ohio actually refused to consider a spouse a member of an applicant's family in order to deny the applicant benefits.

Joe Turner is a married Medicare beneficiary whose monthly income is around $1,300. Mr. Turner applied for extra assistance from Medicaid to help pay his Medicare premiums. Under federal law, the state compares the beneficiary's income to the federal poverty line for a family of the size involved to determine whether a beneficiary is eligible for assistance. The larger the size of the "family involved," the greater the income a beneficiary can earn and still be eligible for assistance. The Ohio Department of Medicaid did not count Mr. Turner's spouse as part of his family and denied him benefits.

Mr. Turner sued the state, arguing the state should have included his spouse in the definition of family and that, if it had, he would have been eligible to receive Medicaid benefits. The district court rejected Mr. Turner's claim, holding that because federal Medicaid law did not define "family," the state was free to define the term as it wanted. Mr. Turner appealed.

The United States Court of Appeals for the Sixth Circuit reversed, holding that the state's definition of family should include the beneficiary's spouse. The court looked at the ordinary definition of family and noted that "to ask whether the ordinary meaning of 'family' includes a person’s resident spouse, one might say, is like asking whether our solar system includes the planet Venus."  Fortunately, the reliability and predictability of the science of astronomy doesn't rely upon the State of Ohio to interpret and implement.  The court concluded that federal law requires the state to use a family-need standard, not an individual-need standard, when considering the Mr. Turner's application for Medicaid benefits, as federal law, plainly reads and intends.

For the full text of this decision, go here.

New Controversial Sign-Off Rule Increases Burdens On Skilled Nursing Facilities- Threatens Transfer To Hospitals

Kerry Young, a reporter for Congressional Quarterly Roll Call, penned an article,"Hospital Transfer Review in CMS Nursing Home Rule Draws Flack, that exposes a controversial new rule with far reaching implications for those who hope to return seniors to health, and ultimately to their homes or non-institutional community care.  

The proposed rule, in effect, would prevent the transfer of a nursing home resident from the  nursing home to a hospital in all but emergency life threatening situations, despite the fact that the staff at the nursing home and/or  the resident's family believes transfer is in the best interest of the resident, unless and until a physician personally examines the resident and approves the transfer.  Although the industry is complaining about the burden and additional cost of the regulation, consumers should appreciate that new rule is a new roadblock to transferring a patient out of an institution.  The rule is little comfort to seniors and their families who complain that skilled nursing facilities all too often "feel" like prisons, with too few available alternatives for their beloved residents.  The government asks us to trust skilled nursing facilities with our loved ones, and then prohibits these same institutions from making decisions that they believe are in our loved ones' best interest.  The true villain in the institutional care and treatment of our elderly is revealed (hence the choice of thumbnail artwork for this article).  

To understand and appreciate the risks of institutional care, go here. You can find additional discussion of the risk of institutional care for residents suffering from COPD here, and of the risk of infections here.

 

Mr. Young writes: 

A plan to require a medical signoff before moving nursing home residents to hospitals for routine care has been heavily criticized, making it one of the most controversial items in a proposed sweeping overhaul of federal rules for long-term care organizations.

The Centers for Medicare and Medicaid Services (CMS) intends to mandate an in-person visit by doctors or other specified staff before people residing in nursing homes and similar centers are sent to hospitals, with emergency cases to be exempted from the requirement. Critics say medical evaluations would be costly and impractical.

Many executives and staff workers from nursing homes argue that they will not be able to find doctors and other qualified medical personnel to carry out the requirement due to staffing shortages. They also noted that the required review could prevent staff at nursing homes from honoring the wishes of residents and their families regarding hospital transfers. Veronnica Smith, executive director of a skilled-nursing facility in rural South Dakota, said the CMS plan was not realistic in her region.

"We do not have the luxury of a physician in our community 24/7, let alone physicians that would be willing to come to the facility to assess a resident before a transfer," Smith wrote. "Further, in the event of an emergent need, the time it would take a physician to get to the facility to approve the transfer would be too late."

Stephen Hamlin, a New York-based nursing home administrator, called the proposal "impracticable and likely counterproductive."

"I do not believe that it is appropriate for a resident experiencing an acute episode to have to wait for the arrival of a physician or physician extender before receiving emergency hospital care nor it is reasonable to expect a caregiver to determine whether a resident is at risk or not," he told CMS in a comment.

CMS is accepting public feedback on the long-term care regulation through Sept. 14. CMS has received dozens of comments addressing the mandate, with more than 30 of them referring specifically to the section of a proposed long-term care rule that would create the requirement. Dozens of other people raised objections without citing the provision specifically.

Unveiled in July, CMS' long-term care proposal marks the first attempt at a comprehensive update of the regulations since 1991, the agency said. Many organizations already have said that the expenses for carrying out the new regulations for long-term care would be burdensome. By CMS' estimate, the national cost for implementation of the proposal could be $729 million in the first year, or about $46,491 for each site providing long-term or specialized nursing care. In the second year, the estimated cost would drop to about $40,685.

CMS has worked for some time to prevent unnecessary transfers of residents of nursing homes, which can be "expensive, disruptive, and disorienting for seniors and people with disabilities," the agency says on its website. People transferred from nursing homes may be especially vulnerable to risks of hospital stays, including errors with medication and infections. [blogger's note: Of course, these same arguments by advocates against the transfer of seniors from "expensive" hospitals to "less expensive" skilled nursing facilities have not slowed the pace with which the government has required reliance upon skilled nursing facilities for  care and treatment of the elderly]. 

Current rules already require doctors to document the cause for a transfer when a nursing home or other long-term care center can't meet a person's needs, CMS said in the proposal. Requiring an evaluation by a doctor, physicians assistant, nurse practitioner, or nursing specialist before such a transfer may prevent some unneeded moves from occurring and give information to hospitals in cases when patients are moved, according to the agency.

"The idea is that this would be an opportunity to identify options that would allow the resident to be treated in house, if appropriate," said Sheila Blackstock, a CMS official who is helping create the new regulation, on an Aug. 11 call with nursing home officials. "There is an emergency exemption, and it is intended to prevent this provision from delaying a necessary transfer or putting the resident at increased risk."

For a legal guide regarding a lifetime planning trust used to implement a legal strategy for Aging-in-Place, and to help avoid institutionalization, go here. 

For a comprehensive side-by-side comparison of CMS Proposed and Current Federal Nursing Home Regulations courtesy of the National Consumer Voice for Quality Long Term Care go here.

 

Medicaid Applicant Bears Burden of Proof to Rebut Presumption that Joint Account Is Available Resource

Attorneys so often counsel clients not to maintain and hold joint accounts for convenience with persons other than a spouse.  In another object lesson why joint accounts can create legal problems, a Pennsylvania trial court has ruled that a Medicaid applicant has the burden of proving that money in a joint account was not an available resource. Toney v. Dept. of Human Services (Pa. Commw. Ct., No. 2343 C.D. 2014, June 19, 2015).

The applicant, Samuel Toney, had a joint bank account with his son with $41,510.18 in the account. Mr. Toney entered a nursing home and applied for Medicaid.  The state determined that half of the amount in the joint bank account belonged to Mr. Toney, and on that basis,  denied his application due to excess resources.

Mr. Toney appealed the decision, arguing that the amount in the account belonged to his son; the son claimed that the proceeds in the account came from the sale of the son's house ten years prior. The administrative law judge nonetheless denied the appeal, and Mr. Toney appealed to court.

The Pennsylvania Commonwealth Court affirmed the state's decision, holding that the burden of proof is on the applicant to prove to whom the assets in the account belong. According to the court, "no credible evidence was presented to rebut the presumption that Toney’s share is presumed available to him for purposes of determining the availability of resources for his partial or total support."

In one sense, the applicant's loss in this case might be considered a victory.  In support of the court's decision, the court cited the federal Medicaid regulations at 20 CFR Section 416.1208(c), which provides that "[i]f there is only one [applicant] account holder on a jointly held account, we presume that all of the funds in the account belong to that individual.  In other words, the state could have just as easily presumed that "all of the funds" in the joint account were a resource of the Medicaid applicant.  Hopefully, the object lesson learned, seniors will implement plans for their long-term care, asset management, and estate distribution, thereby avoiding the obvious risks associated with joint accounts for convenience.  

For the full text of this decision, click here.

Appellate Court Rule Approves Short Term Annuities Not Countable Resources For Medicaid

The Third Circuit Court of Appeals has ruled that a Medicaid applicants' short-term annuities are not resources even though the terms of the annuities were less than the annuitants' life expectancies. Zahner v. Secretary Pennsylvania Dept. of Human Services (3^rd Cir., Nos. 14-1328, 14-1406, Sept. 2, 2015).  

In three separate cases, Pennsylvania denied Medicaid applications on the grounds that annuity purchases were unlawful transfers.  Donna Claypoole's husband transferred money to their children and purchased a five-year annuity and a 14-month annuity before applying for Medicaid on Mrs. Claypoole's behalf. Medicaid applicant Connie Sanner also transferred money and purchased a 12-month annuity.  The original plaintiff Anabel Zahner deceased during the case, and was no longer a party  on appeal.

The three applicants filed a case in federal court, arguing that the annuities met the requirements of federal Medicaid law and should not have been considered transfers. All parties asked for summary judgment. The U.S. district court granted the plaintiffs summary judgment with regard to the five-year annuities, but denied summary judgment with regard to the shorter annuities, holding that the term of the annuity had to "bear a reasonable relatedness to the beneficiary's life-expectancy." The court also held that a Pennsylvania statute that purported to make all annuities assignable was preempted by the federal Medicaid law.

The U.S. Court of Appeals for the Third Circuit, affirmed the district court decision that federal law preempts Pennsylvania's law making all annuities assignable, but reversed the decision that the short-term annuities are resources. The court decided that "any attempt to fashion a rule that would create some minimum ratio between duration of an annuity and life expectancy would constitute an improper judicial amendment of the applicable statutes and regulations." The court further held that an annuitant's motive in purchasing an annuity is not dispositive of whether it is a resource.  

The decisions, which are expansive of consumer options in planning for Medicaid eligibility, will likely invite comparison and contrast with the recent Ohio Supreme Court decisions restricting consumer options.  

For the full text of this decision, click here.