Comments Off on Announcing the Long Term Care Planning Blog
Counseling clients facing the prospect of $10,000 per month nursing home costs and other costs of long term care is perhaps the most challenging aspect of the practice of Elder Law. For in addition to knowing substantive law in areas ranging from public benefits to tax planning, the Elder Law practitioner must be aware of community resources such as geriatric care managers, client-centered financial advisors, and excellent providers of long term care services.
That is why I am delighted to announce the launch of a new blog devoted to long term care planning, The Long Term Care Planning Blog is hosted on the Law Professor Blogs Network. As an adjunct law professor at Roger Williams University Law School and a certified elder law attorney (CELA) I will be serving as the blog’s editor. The best part is that nationally known practitioners and other professionals whom I am known or admired for decades have agree to serve as contributing editors, including:
Maryland elder law and special needs attorney Morris Klein, CELA
We look forward to covering many more issues related to long term care planning over the coming weeks and months, and invite you to leave feedback and questions using the blog’s comment system, or directly to me or any of our authors via email, which you will find beside our pictures at the bottom of the blog homepage.
You can also sign up to receive new blog posts by email by clicking on “Subscribe” at the top of the blog homepage.
Comments Off on Hospice Care, Funeral Planning, and Learning from Others
I was privileged to participate recently in a program entitled Planning for the Future: Stewardship, Finances, and End-of-Life Decisions sponsored by St. David’s on-the-Hill in Cranston. The program, moderated by St. David’s pastor, Father Peter Lane, was a full afternoon of programming, the final session of which I co-presented with Donna Palumbo and Mary Biello of the VNA of Rhode Island and Craig W. Carpenter of Carpenter-Jencks Funeral Home.
In his remarks, Craig Carpenter noted that Father Lane and the vestry at St. David’s performed a substantial service to its congregation and to the community (to whom the program was also open) by discussing topics which, in Craig’s apt term, take courage for people to discuss. In my presentation, I provided an overview of advanced directives and particularly the importance of having in place durable powers of attorney for healthcare. I stressed the equal importance of selecting the correct agent and successor agent to act as decision-makers in the event one is unable to make healthcare decisions due to incapacity.
I am always delighted to meet people and share information at gatherings such as this. With the St. David’s on-the-Hill program, I also had the added bonus of learning more about two topics of importance to my clients—hospice care and funeral planning—from highly experienced experts.
Donna and Mary, for example, pointed out that much hospice care is delivered in the home. This is in contrast to the perception which many people have who may be familiar with hospice care which a loved one or friend experienced by the extraordinary professionals at the Philip Hulitar Inpatient Center.
Donna and Mary also pointed out a result of hospice care which I have seen with my clients on a number of occasions. That is, when provided with hospice care at home or in a nursing home, the patient’s condition can improve to a point at which he or she is no longer qualifies for hospice care. This, of course, does not mean that the patient is “cured” of the condition that qualified him or her from hospice care initially. Rather, the intervention of the additional care has prolonged the length and most importantly the quality of the patient’s life. More about the services which Donna, Mary and their team at the VNA offer in hospice and palliative care can be found at www.hospicevnari.org.
As to Craig Carpenter’s portion of the program, if you don’t think that hearing about funeral planning and what occurs at funerals is a riveting topic, you haven’t heard Craig speak. Craig, for example, related the story of discussing with his own father—himself a funeral planner for over a half-century—his father’s desires for his own funeral. It was fascinating to hear Craig talk about assumptions that he had understandably made about certain things his father would want which proved to be incorrect.
Craig’s point was that planning in advance removes those uncertainties (to say nothing of potential conflicts among family members) and makes the entire process what it should be – i.e. in keeping with the desires of the individual who has passed away.
Congratulations to Father Lane and the vestry of St David’s on-the-Hill for a terrific program.
Comments Off on Legal and Financial Considerations of Alzheimer’s Disease – Presentation Slides from the Getting Started Education Series
It’s my privilege to be a regular presenter for the Alzheimer’s Association’s Getting Started education series, a set of free workshops held regularly throughout Rhode Island. Over the years I’ve presented Part 3, “Legal and Financial Considerations of Alzheimer’s Disease“, several times, and I thought readers might find my slides useful.
The presentation slides are embedded below. If you have more specific questions about financial or legal planning for a loved one with dementia or Alzheimer’s, or are in need of legal help, please don’t hesitate to contact our offices.
Comments Off on ALS Research Symposium – Presentation on Estate Planning & Public Benefits for Individuals with ALS
Last Sunday, October 19th I was pleased to present at the ALS Research Symposium of the ALS Association, Rhode Island Chapter. The topic of this presentation was Estate Planning & Public Benefits for Individuals with ALS.
As promised on that day, I am now sharing my presentation slides (embedded below). If you have more specific questions on the issues discussed, or are in need of legal help, please don’t hesitate to contact our offices.
Comments Off on Providence Retired Teachers Association Presentation
On October 15th I was privileged to present to a meeting of Providence Retired Teachers Association on the topic of Estate and Medicaid Planning. As Tony Mancini, the long-time President of the Association noted in his introduction, this was my fifth appearance before the PRTA, the first of which was in 2003. As promised during the event, I am now posting a copy of my presentation slides (below).
If you have more specific questions, or are in need of legal help, please don’t hesitate to contact our offices.
Comments Off on The Lady-Bird deed flies away, not to be missed by most Medicaid planning clients.
In the all the breathless hype over the past weeks regarding the demise of enhanced life estate—or so-called “Lady Bird”—deeds was lost a critical fact—that this technique was rarely the best option in Medicaid planning anyway.
First, the story known to some readers. After an unsuccessful attempt last year, this year the State agency which administers the Medicaid program was able to have legislation enacted which banned the future use of enhanced life estate deeds. Specifically, the legislation disallows an exemption of the home of a Medicaid recipient if it is titled to such an enhanced life estate deed recorded after June 30, 2014.
This pending date caused some attorneys to send mailings suggesting that action be taken before this “deadline” came and went.
I met with several of clients who had received these mailings. In each of these instances, I recommended that the clients not execute an enhanced life estate deed, but instead utilize a “traditional” life estate deed.
But how can this be? By definition, if the State is no longer allowing this technique, it must be most desirable, right?
Not necessarily. To understand why, the brief story not known to most readers—that of the approximately fourteen year life cycle of the enhanced life estate deed-will be helpful.
In August, 2000, the Rhode Island Department of Human Services (DHS), the State agency that administers the Medicaid program in Rhode Island, announced its intention to issue regulations which would prohibit the use of revocable living trusts holding title to a principal residence for Medicaid purposes. This was bad news, though expected, as DHS had been considering this for many years.
The reason: holding a principal residence in a revocable trust was a nearly ideal scenario. Since the trust was revocable, and the “settlors” of the trust (the property owners) were the only beneficiaries and were often trustees of the trust during their lifetimes, they essentially lost no control over their principal residence during their lifetimes.
Then why do it? Because it created, through the nomination of successor trustees, a smooth asset management technique in the event that one or both of the settlors/trustees became incapacitated. Even more importantly to clients, assuming proper titling of the property to the trust, it avoided the need for probate administration of the property upon the second of the settlors to die.
Probate in Rhode Island, assuming typical assets and a relatively intact family situation, is not the nightmare that clients have heard (or occasionally experienced as beneficiaries). Nevertheless, it turned out that this use of revocable trusts for holding title to a principal residence also had benefits for Medicaid planning. This is because, in the mid-1990s, the federal government forced Rhode Island and other states to institute so-called “estate recovery” techniques to seek to recover the cost of Medicaid following a Medicaid beneficiary’s death.
Rhode Island, like the majority of other states, opted to comply with the federal government’s requirement by limiting its estate recovery efforts to the probate estate. To expand the estate recovery to non-probate assets, Rhode Island and most states reasoned (and continue to reason), would require substantially greater expenditure of personnel and other state resources for potentially uncertain gains.
Thus, after the mid-1990s in particular, avoiding probate administration for a principal residence of a Medicaid recipient became particularly important. And since the use of revocable living trusts had all these other virtues, it became one more reason to consider their use for clients.
The Rhode Island Department of Human Service, has had been (and continues to be) fair-minded when it comes to considering people who made plans under the rules then in effect. For example, in response to comments by me and others, it “grandfathered” revocable trusts created on or before December 1, 2000, the effective date of its regulation.
Seeking an alternative, a technique known as the Lady Bird deed was imported from Florida. (Ironic, isn’t it, since most Rhode Islanders mostly mitigate in the opposite direction!) It was called a Lady Bird deed because a Florida attorney describing it used Lady Bird Johnson as a character in hypothetical fact situation.
I have always preferred to describe it by its proper name—an enhanced life deed—because it is easier to explain to a client. I find that clients generally can understand the concept of a “life estate deed”—that is, when you transfer property to a third party and reserve the ability to live in, use, enjoy, rent and do pretty much whatever you want to do with the property while you are living. (I generally prefer that the third party to whom the property is transferred is an irrevocable trust, but that’s a topic for another day.)
The modifer “enhanced” means that those rights transferred—to keep a portion of the proceeds of the property if it is sold during the life estate holder’s lifetime, or even requiring the third party’s permission for such a sale—are in fact not given away.
Got it? Well, it’s more complicated and generally took longer for clients to get their minds around than a “traditional” life estate. However, in limited situations–generally crisis planning involving single people–it was an excellent tool and hence we recommended and utilized it on a number of occasions.
However, what made it work in crisis planning—that effectively no transfer for Medicaid purposes occurred—also made it generally ill-suited to non-crisis planning. Take for example a widow—let’s call her Hope–in her early 80s in relatively good health, with no near turn plans to sell her home and with a modest amount of other assets. If Hope transfers title to her home using a traditional life estate, that transfer is subject to a potential five year “lookback period” for Medicaid eligibility should she require nursing home care.
However, if Hope utilized the enhanced life estate deed, that transfer is not subject to any potential penalty period for Medicaid eligibility purposes. That’s better, right?
Well, assume that Hope three years into the five year lookback period sells her home and moves to an assisted living facility for which she is paying privately. And then two years later, Hope suffers a stroke and requires nursing home care.
Had Hope utilized the enhanced life estate deed, 100% of the proceeds of that sale would be exposed to spenddown for nursing home costs. Conversely, had she utilized a traditional life estate—one in which she transferred an interest in the property to an adult child as trustee of an irrevocable trust—a substantial portion of the sale proceeds would be protected in the irrevocable trust from exposure for nursing home costs.
I will miss reaching into my Medicaid planning toolbox and pulling out the enhanced life estate deed to solve a problem created by a single person with little or no chance of making through a five year lookback period, and with limited non-home assets capable of getting him or her through the five year period. However, in many other circumstances—for example, a married couple or a relatively healthy single person like Hope—there were always better alternatives.
Fortunately, those alternatives still exist even after the Lady Bird deed technique flies away. However, the lack of being able to pull this tool out when needed puts more of a premium on clients, particularly single persons, to initiate planning in advance in order to get a jump on the five year lookback period for Medicaid eligibility.
In a previous blog post, I alerted you to the settlement of a federal lawsuit entitled Jimmo v. Sebellius, in which the Center for Medicare and Medicaid Services (CMS) denied that there ever existed a so-called “improvement standard” for the coverage of nursing home under Medicare. Rather, CMS agreed that such coverage would be determined by the resident’s need for skilled services, not on his or her potential for improvement.
As also discussed in that post, the settlement in the Jimmo case was only the beginning of potential relief for nursing home residents in this situation. The problem was—and remains—that this belief that skilled nursing home services under Medicare ceases when a nursing home resident has “plateaued” is deeply ingrained in the practices of nursing homes.
That is why nursing home residents seeking coverage under Medicare welcome news, announced January 14th, that CMS has revised its Medicare Benefit Policy Manual. Quoting from the announcement:
In accordance with the Jimmo v. Sebelius Settlement Agreement, the Centers of Medicare & Medicaid Services (CMS) has agreed to issue revised portions of the relevant program manuals used by Medicare contractors, in order to clarify that coverage of skilled nursing and skilled therapy services “does not turn on the presence or absence of a beneficiary’s potential for improvement, but rather on the beneficiary’s need for skilled care”. Skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.
This is a huge revision to the source of guidance—the Medicare Benefit Policy Manual—actually used by nursing homes. Predictably, since the approval of the Jimmo settlement over a year ago, families continue to report to us that words like “plateaued” and “no further improvement” are used by nursing homes to explain why continued Medicare coverage for skilled nursing services is denied. Now that the Manual actually used by nursing home service providers has been used, nursing home residents will be able to get the full extent of Medicare coverage to which they are entitled.
Comments Off on Rhode Island Alzheimer’s Association Presentation
Last Thursday, October 3rd, I participated in the Rhode Island Alzheimer’s Association’s Getting Started Education Series, presenting on the topic of legal and financial considerations of Alzheimer’s disease. As I promised during the presentation, I am now posting a copy of my presentation slides (below).
If you have more specific questions, or are in need of legal help, please don’t hesitate to contact our offices.
Comments Off on A Nursing Home Myth Exploded: Medicare Can Pay Even After A Resident “Plateaus”
The typical scenario goes like this. Dad is living alone at home, suffering from Alzheimer’s or a related dementia. He falls and fractures a hip. With Daughter’s help, he is admitted to a hospital for three or more days. Dad is then discharged to a nursing home, specifically into its skilled “rehabilitation unit.”
No one at the nursing home says anything to Daughter about payment when Dad is admitted. A few weeks go by, and still no word about payment. Daughter assumes that Medicare will cover the costs, but she’s primarily concerned with Dad’s health and doesn’t give it much thought.
Unexpectedly, after several more days at the nursing home, the charge nurse tells Daughter that Dad has “plateaued” in his rehabilitation. Accordingly, he will be downgraded in a few days and will have to be discharged from the rehabilitation unit. The nursing home suggests Daughter visit other nursing homes in the area with “long-term beds” and select one, since Dad “will not be able to stay here.”
Daughter is confused and alarmed. “Why not?” she asks. The charge nurse patiently explains that because Dad has “plateaued” in his care and is “not improving,” he must be discharged from the skilled unit. She is sympathetic, but explains that those are “just the rules”
However, the charge nurse is wrong. For decades, it has been an article of faith in nursing homes that once a person “plateaus,” he or she can no longer receive benefits under Medicare. This is the basis for the nursing home’s decision to terminate Dad’s Medicare coverage. But in a federal court in January 2013, the government stated that this has, in fact, never been the rule.
The case Jimmo v. Sebelius is a class action suit in which Glenda Jimmo, 76, of Bristol, Vermont and several national groups, including the Alzheimer’s Association and the Parkinson’s Action Network, sued the government challenging the use of this so-called “improvement standard.” The government, rather than litigating the case, settled with Mrs. Jimmo and the other plaintiffs.
In this settlement, approved by the federal judge, the government denies that there ever was any “improvement standard” of the type which was the basis for the nursing home’s decision to terminate Dad’s Medicare coverage.
Moreover, the government agreed to “clarify” the manuals used by nursing homes to determine whether residents are entitled to Medicare benefits. Specifically, the manuals will make it clear that Medicare coverage does not depend on a patient’s potential for improvement from nursing care, but rather on his or her need for skilled care. This is a major change in the procedure around Medicare coverage in nursing homes.
Back to the story. Dad needs the services of a physical therapist and occupational therapist to deal with his hip fracture. So the Jimmo case means that Dad can continue to remain in the skilled rehabilitation unit of the nursing home, right?
Unfortunately, it’s not that simple. The nursing home charge nurse is not in the habit of following federal court decisions in Vermont. She only knows the way things have always been done, and continues to insist that Dad will downgraded in a few days, relying on the manual that the nursing home has used for decades — the same one that the government has agreed to “clarify”.
And since government moves very slowly, it will be many more months, perhaps years, before this “clarification” is finally implemented. So what can Dad do in the meantime to assert his rights to Medicare coverage?
The answer is: he must appeal the denial of Medicare coverage. The rules on how to appeal, and particularly the timing of the filing, are specific and strict. How Dad should proceed with his appeal will be the subject of the next post in this series.
In the meantime, if you find yourself or a loved one faced with this situation, go to www.medicareadvocacy.org, the website for the Center for Medicare Advocacy, which spearheaded the Jimmo case. Among the exceptionally useful aids on this website are self-help packets designed to guide someone faced with this immediate issue.