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We are excited to bring newly renovated and state-of-the-art law offices to our clients and professional colleagues. Please note that while we have remained in the same building, our suite number has changed to Suite 205.
The May issue of The Elder Law Update, a monthly e-newsletter full of the latest legal developments and other trends of vital interest to seniors and their advocates, abounds with compelling information.
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Medicaid Applicant Creates de facto Income Trust Account
 A Florida appeals court finds that an applicant is eligible for Medicaid even though she didn't open an income trust account because her case specialist did not inform her of the need for one. Forman v. State (Fla. App. Ct., 4th Dist., No. 4D06-1770, May 2, 2007).
Sylvia Forman's daughter, Sarah Leftow, applied for Medicaid long-term care benefits on her mother's behalf. Ms. Forman's income was a $1,904 monthly pension. The state Medicaid case specialist assigned to help Ms. Leftow with the application did not tell her she needed to put the income in a Medicaid income trust account (also known as a "Miller" trust). Instead, Ms. Leftow had the pension deposited into a checking account, from which she paid the nursing home.
The state denied Ms. Forman's application because her income is above the state's income cap and she did not open a Medicaid income trust account to receive the excess income. The hearing officer affirmed the state's decision, and Ms. Forman appealed, arguing Medicaid policy required the case specialist to inform her about the requirement for an income trust.
The Florida Court of Appeals reverses, holding that Ms. Leftow created a de facto income trust when she put the money in the checking account. According to the court, Ms. Forman was eligible for benefits because she made a good faith effort to comply with regulations, but the specialist did not fully inform her of eligibility requirements.
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Nursing Home Room Now Averages $75,000 a Year, Survey Finds
 Nursing home costs have increased almost 15 percent since 2004, according to a new survey by Genworth Financial. A private room in a nursing home now averages nearly $75,000 a year.
Genworth Financial's 2007 Cost of Care Survey found the average national cost of care for nursing homes, assisted living facilities, and home care has steadily increased over the past four years. According to the survey, the average national cost in 2007 of a single year in a private nursing home room is $74,806, up 14.8 percent from 2004.
The cost of assisted living facilities rose by more than 13 percent over the same period to an annual average of $32,573 for a one-bedroom unit. The cost of in-home care is up 2 percent from 2004 costs. The average annual cost for a 40-hour per week home health aide is $52,977 a year in 2007.
The study, which was conducted by CareScout on behalf of Genworth, surveyed more than 11,000 nursing homes, assisted living facilities and home care providers in all 50 states and the District of Columbia between January and February 2007. The survey found that costs varied greatly, depending on the region, with the Northeast being the most expensive region and the Midwest the least expensive.
To see the survey, click here. |
Tailoring a Will and Power of Attorney for Multiple States
 If you own property -- whether houses, bank accounts, or vehicles -- in more than one state, do you need estate planning documents for each state? The answer is probably no, but you need to do some planning if you want to avoid going through probates in each of the states.
A lawyer can generally draft a will that is generic enough to be probated in any state except Louisiana, which has very specific rules. However, according to ElderLawAnswers founder Harry Margolis, who is quoted in a recent Wall Street Journal article on the subject, if you aren't careful, you still may have to go through probate in every state you have property in. To avoid this, you have two options.
If your estate is under the estate tax limit and you don't have family complications, you may hold your property jointly with your spouse. Joint property will pass to your spouse without going through probate. If holding property jointly won't work, you can put your property into a revocable trust. Property in a revocable trust will pass to whoever is named in the trust. It does not come under the jurisdiction of the probate court and its distribution won't be held up by the probate process.
A power of attorney - which allows a person you appoint to act in your place for financial purposes if you ever become incapacitated -- is an important estate planning document for anyone, including individuals with property in multiple states. One power of attorney should work in multiple states as long as it is written generally enough. According to Mr. Margolis, there are two exceptions to this rule: Florida requires two witnesses and Illinois requires the use of a specific form. Mr. Margolis cautions, however, that even if the power of attorney complies with state law, a bank may not accept it. He recommends letting the bank know about your power of attorney and making sure there are no specific forms that the bank requires.
For the Wall Street Journal article, click here.
For more information on estate planning, click here. |
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 National Care Planning Council. Veterans Aid and Attendance Benefit: Long Term Care Benefits for Veterans. (National Care Planning Council, 2007). 209 pages.
$43. Click on book to order.
Help is out there for veterans and the surviving spouses of veterans who need long-term care, but it can be hard to find information on the available benefits. In an effort to change that, the National Care Planning Council, an organization dedicated to helping individuals plan for long-term care, has published a book that provides detailed information on long-term care benefits for veterans. The book provides an overview not just of long-term care benefits but of all veterans' benefits, including health care benefits, disability benefits, and state veterans homes. But the focus of the book is pension benefits and the aid and attendance allowance that provides extra money to veterans (or their surviving spouses) who need long-term care. There are detailed sample cases explaining exactly how the pension works and showing how recurring medical expenses can be used to qualify for aid and attendance. In addition, the book offers comprehensive information about filing claims.
The many appendixes provide a glossary, phone numbers and addresses of service providers in every state, as well as Veterans Administration forms.
This is not the book to get if you are looking for a quick, easy-to-read overview of the topic, but it is the book to get if you want an in-depth understanding of how veterans' benefits work, what options are available and how to apply. |
| How to Choose a Nursing Home
 Few things are more stressful than finding a nursing home for a loved one. Everyone has heard nursing home horror stories and no one wants that to happen to their loved ones. While there is no way to guarantee that nothing will go wrong, some careful research and planning can help reassure you.
- Location. No single factor is more important to quality of care and quality of life of a nursing home resident than visits by family members. Care is often better if the facility knows someone's watching and cares. Visits can be the high point of the day or week for the nursing home resident. So, make it as easy as possible for family members and friends to visit.
- Special Needs. Make sure the facility can meet any special needs the resident may have, including a ventilator, psychiatric care, or extra supervision. If the resident has dementia, the facility will need to be one that handles dementia patients. Make sure the staff is properly trained for dementia patients; there is enough staff, especially at night; and staff members are assigned to a particular resident.
- Personal Needs. Can the facility meet personal needs, such as religious or ethnic needs? Also, if the resident speaks a language other than English, are there staff who speak the same language?
- References. Ask the facility to provide the names of family members of residents so you can ask them about the care provided in the facility and the staff's responsiveness when the resident or relatives raise concerns.
- Do research. CareScout is an unbiased source for ratings and reviews of eldercare providers nationwide. Detailed, 7-10 page Nursing Home reports are available for a fee, and include more than 100 pieces of information on quality, resident population profiles, and health violations. Medicare.gov allows you to get three years worth of inspection reports on the nursing homes you are considering. Find out who owns the facility and if they own any other nursing homes, and see if you can get reports for those nursing homes as well. In addition, talk to the long-term care ombudsman in your state to find out if there have been complaints against the nursing homes you are considering. (To locate the ombudsman in your state, click here.)
- Interview the administration and staff. Talk to the nursing home administrator or nursing staff about how care plans are developed for residents and how they respond to concerns expressed by family members. Make sure you are comfortable with the response. It is better that you meet with and ask questions of the people responsible for care and not just the person marketing the facility. For a checklist of questions to ask when interviewing the staff, click here.
- Tour the nursing home. Try not to be impressed by a fancy lobby or depressed by an older, more rundown facility. What matters most is the quality of care and the interactions between staff and residents. See what you pick up about how the staff interacts with the patients, how well residents are attended to and whether they are treated with respect. Also, investigate the quality of the food service. Eating is both a necessity and a pleasure that continues even when we're unable to enjoy much else.
For more on nursing homes, click here.
For Elder Law Associates' comprehensive Nursing Home Checklist to take with you on visits to nursing facilities, click here. |
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Part D Recipients Must Repay Mistaken Refunds, Court Rules
 A federal appeals court has ruled that 230,000 Medicare Part D beneficiaries who were erroneously mailed a premium refund do not have the right to apply for a waiver excusing them from repaying the money. Action Alliance of Senior Citizens, et al. v. Leavitt (D.C. Cir., No. 06-5295, April 17, 2007).
The decision overturns a prior ruling by a federal district court ordering the Centers for Medicare and Medicaid Services (CMS) to halt efforts to collect refunds mistakenly mailed to Medicare drug plan beneficiaries and to inform the beneficiaries that they could apply for a waiver if repaying the money would cause hardship. See "Judge Orders Stop to Medicare Refund Collection Effort."
Because of a computer error, in August 2006 approximately 230,000 people were mistakenly mailed refunds for their Medicare prescription drug benefit premiums. The Bush administration insisted that the money, which averaged $215 a beneficiary, be paid back by the end of September 2006.
In response to the administration's recoupment efforts, the Center for Medicare Advocacy filed suit on behalf of the Gray Panthers and the Action Alliance of Senior Citizens, arguing that Medicare law states that the government cannot recover an overpayment if the beneficiary was not at fault and if such recovery would violate "equity and good conscience."
Last September, Judge Henry H. Kennedy Jr. of the Federal District Court in Washington, D.C., agreed and issued an injunction ordering CMS to immediately send a notice to all 230,000 beneficiaries stating that each has a right under federal law to request a waiver of the obligation to repay the funds. The judge also said that any money already paid to the government "must be immediately returned to the beneficiaries so that they may decide whether to request waiver."
The Department of Health and Human Services, of which CMS is a part, appealed to the U.S. Court of Appeals, District of Columbia Circuit, which halted Judge Kenney's injunction until it could issue a decision.
While calling the government's mistake "a monumental gaffe," the court rules that the right to ask CMS to waive the repayment of an incorrect payment applies only to a "provider of services" for "items or services furnished an individual." "It has nothing to do with erroneous refunds of Medicare premiums," the court concludes.
To read the appeals court's decision, click here. The decision is in PDF format. (If you do not have the free PDF reader installed on your computer, download it here.) |
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We always appreciate referrals from our satisfied clients and business partners to friends, family members or business contacts. We welcome the opportunity to serve the people you care about. Click on the blue Forward Email at the bottom of the page to send this newsletter to someone who will benefit from our insights. | |
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Elder Law Associates PA is a boutique elder law firm
that practices exclusively in Medicaid and long term
care planning; home and community-based waiver
services; Medicaid applications; nursing home
residents' rights litigation; asset preservation
planning with a special focus on planning in light of
the Deficit Reduction Act of 2005, including
promissory notes and personal care agreements;
disability planning, including special needs trusts and
guardianship; estate planning, including wills and
trusts; long term care insurance; advanced
directives; and probate, which encompasses estate
and trust administration. We assist clients in planning
for the possibility of disability, incapacity, home
health care, assisted living and/or nursing home
placement. Our firm enables clients to avoid
impoverishment caused by the escalating cost of
long term care, to maintain their right to make health
care decisions and to avoid unnecessary medical
treatment.
We hope you have enjoyed The Elder Law
Update. If you have questions about something
you read, elder law matters or issues concerning persons with disabilities, we would be delighted to hear from you. We serve as an elder law resource to many professionals and organizations and want to become your elder law resource as well. You can reach us at
Info@ElderLawAssociates.com.
Warm regards,
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Ellen S. Morris, Esq. & Howard S. Krooks, Esq., CELA
Elder Law Associates PA
phone: (561) 750-3850 / (800) 353-3752
fax: (561) 750-4069
This publication is intended for general information purposes only. It is not intended to constitute individual legal advice to any specific client. |
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