The New Special Needs Trust Fairness Act

The Special Needs Trust Fairness Act, federal legislation that allows people with disabilities to create their own special needs trusts instead of having to rely on others, is now law.  The measure was included in the 21st Century Cures Act, a $6.3 billion package of health-related initiatives signed by President Obama on December 13, 2016. 

The National Academy of Elder Law Attorneys (NAELA)  press release announcing the Fairness Act’s clearing its final legislative hurdle, explains that the measure “corrects a patently false and degrading error in the law that presumed all individuals with disabilities lacked the capacity to handle their own affairs.”  The legislation, which Rep. Glenn Thompson (R-Pa.) introduced in 2013, will finally allow beneficiaries with capacity to create and fund their own special needs trusts with the same treatment and protections available for trusts created by others on behalf of the beneficiaries. 

In addition to Rep. Thompson, NAELA applauded Frank Pallone (D-N.J.) along with Sens. Chuck Grassley (R-Ia.) and Bill Nelson (D-Fl.) “for their bipartisan dedication to ensuring this common sense fix became law.”

The Fairness Act will apply to trusts established on or after the date that the Cures Act was enacted.  

The Social Security Administration has published an emergency memorandum incorporating the change into the Program Operations Manual System (POMS) ( with thanks to Attorney Donald D. Vanarelli, whose blog post can be found here).

The SNT Fairness Act can be found in Title V, Section 5007 (page 440), of the Cures Act.  To read the 21st Century Cures Act, click here.

Antipsychotics and Psychotropic Drugs Increase Fall Risks in Nursing Homes

McKnight's Long Term Care News reports that psychotropic drugs, including antipsychotics and antidepressants, increase the risk of falls among nursing home residents, according to a recently published study.

Previous research suggested a link between psychotropic prescriptions and falls in nursing home residents, but little was known of how "as-needed" prescriptions impacted fall rates. The study, published in the December issue of JAMDA - The Journal of Post-Acute and Long-Term Care Medicine by Dutch researchers, not only backed up earlier research, but found a relationship between falls and drugs taken on an as-needed basis as well.

Of the 2,368 nursing home residents in the study, nearly 70% had a prescription for at least one psychotropic drug per day. An additional 8.8% had an as-needed psychotropic prescription. The study's authors found that 33.5% of residents had at least one fall, which most often occurred on days when a psychotropic drug was prescribed on a scheduled basis.

Residents receiving the drugs on a scheduled basis had a nearly threefold increase in falls. An increase in fall incidence also was noted in residents prescribed the drugs on an as-needed basis. Results of the study also showed that male residents had a fall risk nearly two times higher than female residents.

Study results showed no link between fall incidence and the prescription of benzodiazepines, drugs commonly used to treat anxiety and insomnia.

An Ohio appeals court has ruled that a Medicaid applicant did not transfer assets for less than fair market value even though he sold property at below the appraised price because the sale was an arms-length transaction. Lawrence v. Ohio Department of Job and Family Services (Ohio Ct. App., 6th Dist., No. H-15-020, Sept. 2, 2016).

Eugene Lawrence owned a rental property that he could no longer maintain, so he sold it in 2011 for $22,720, which was the remaining balance on the mortgage. The auditor had appraised the property at $66,800. In 2014, he entered a nursing home and applied for Medicaid. The state determined that because Mr. Lawrence sold the property for less than the fair market value, it was an improper transfer, and it imposed a penalty period.

Mr. Lawrence appealed the decision. After a hearing, the state upheld the penalty period, and Mr. Lawrence appealed to court. The trial court found that Mr. Lawrence sold the property in an arms-length transaction, so the state should not have imposed a penalty period. The state appealed.

The Ohio Court of Appeals, Sixth District, affirmed, holding that Mr. Lawrence did not transfer assets for less than market value. According to the court, "the market conditions at the time of the sale combined with the condition of the property and circumstances of the sale demonstrated an arms-length transaction for fair market value."

Although the result is comforting for those who must plan for Medicaid eligibility, the case is instructive of the difficulties applicants may face.  The state upheld the decision on appeal to an Administrative Law Judge, but the Common Please Court held in favor of the applicant.  The applicant then was forced to defend the decision in the Court of Appeals.  Proceeding through the court system is not easy, or inexpensive.  

For the full text of this decision, go here.

ACLU Takes On Nursing Homes

McKnight's has published an excellent and illuminating editorial regarding how some seniors who need institutional care are routinely frustrated in seeking and obtaining care by the very institutions themselves.  The editorial explains, using a specific example, how the ACLU has finally involved itself in skilled nursing home placement decisions or refusals.  The editorial reads: 

As in all cases involving a resident who wasn't accepted at a nursing home, each side has a different take on what happened.

According to the Lincoln Star-Journal, Nebraska resident Courtney Shelor says her father wasn't accepted at six nursing homes because he had HIV. A statement from the ACLU followed this week, via a letter to the homes in question reminding them of state and federal law.If you missed the basic tenants around the Americans with Disabilities Act (or Section 504 of the Rehabilitation Act of 1973), it's here.  

Accepting a person with a terminal illness into your nursing home also would hopefully be found within your own moral code.While it was 68 miles away from his family, Shelor was finally accepted at Golden Living Center in Broken Bow. I suspect that administrator or admissions director was simply doing her job, but let me say publicly: Good for you for making his last days good ones. Shelor writes that this facility “welcomed us with open arms!” While the center had never had anyone with HIV, it was able to make it work, including helping the elder Shelor be approved for Medicaid.You can read the rest of the younger Shelor's letter here, in which she talks about her father being her hero. He died at the end of July.

Go here to read the rest of the article.

Bill Offers Tax Credit for Aging In Place Improvements

Making your home more accessible for your long term care needs may soon be incentivized by a $30,000 tax credit.

Rep. Patrick Murphy, D-Fla., recently introduced H.R. 5254, entitled, “Senior Accessible Housing Act,” which would incentivize individuals 60 years of age and older to “age in place” by way of a $30,000 tax credit for home modifications. Potential modifications include the widening of doorways and the installation of ramps, handrails, grab bars and non-slip flooring.

The Congressional Research Service (CRS) summary of the Bill reads as follows:

This bill amends the Internal Revenue Code to create a nonrefundable personal tax credit for senior citizens who modify their residences to enhance their ability to remain living safely, independently, and comfortably in the residences.  

The credit applies to up to $30,000 of the expenses that individuals who are at least 60 years old incur over their lifetime to make modifications to their residences, including: 

•  the installation of entrance and exit ramps;

• the widening of doorways;

• the installation of handrails or grab bars

• the installation of non-slip flooring, and;

• other modifications that the Internal Revenue Service (IRS) includes on a list of modifications that would enhance the ability of the individuals to remain living safely, independently, and comfortably in their residences.

The IRS must establish and maintain the list of acceptable modifications after consulting with the Department of Health and Human Services (HHS) and receiving input from the public. 

The Bill and credit would certainly be more meaningful if current HHS policy was not hostile to home bound health care or home bound hospice care.  For more information regarding HHS policy of actively discouraging use of the Medicare home health care and hospice benefits, go here and here.  Regardless, the Bill currently has 19 co-sponsors.

To follow activity on the bill, go here.

To read the text of the bill, go here.