Saturday, August 5, 2017

Aging in Place- Male Family Caregivers are Breaking Stereotypes

There are 40 million family caregivers in the United States helping with everyday activities and personal tasks ranging from bathing, dressing, wound care and medication management to transportation and finance.  The “typical” family caregiver is a 49-year old woman who takes care of a relative.  Men are not traditionally seen as caregivers.

A recent AARP Public Policy Institute  report suggests the the tradition is changing; men are increasingly filling care giving roles.  The report, Caregiving in the U.S., found that men represent 40 percent of all family caregivers.  That means that 6 million males serve as family caregivers.

Jean Accius, a Ph.D. with the AARP Public Policy Institute has penned an article explaining the ramifications gleaned from the pertinent data:
"These husbands, brothers, sons, sons-in-law, partners, friends, and neighbors are joining—either by choice, obligation, or necessity—the army of family caregivers providing care across the country. Male family caregivers are performing medical and nursing tasks as well as a range of personal care activities." 
In many cases, male family caregivers are caring for a spouse or partner. The PPI report shows that spousal caregivers in general face unique challenges, in part because they may lack an adequate support network.

There were notable differences, however, between males caring for a spouse and those caring for a parent.  Male caregivers, according to the report, provide more hours of care, and are more likely to be primary caregivers with little to no support from other family members, compared to male family caregivers taking care of a parent or other relative.
Men caring for a spouse reported having been a caregiver for a longer period of time than other unpaid male family caregivers (5.1 years compared to 3.9).

Dr. Accius reported:
"...the study found that male family caregivers were more likely (66 percent) to be working compared with female caregivers (55 percent). The large majority of employed male caregivers were working 40 or more hours per week at the time of caregiving. 
Regardless of gender, caregiving responsibilities often require family caregivers to make workplace accommodations. The study found that nearly two-thirds (62 percent) of male family caregivers had to make changes in the workplace as a result of their caregiving responsibilities [reference omitted].  Moreover, their caregiving duties affected their work in other significant ways:
  • Nearly half (48 percent) of male family caregivers went in late, left early, or took time off to provide care.
  • About 15 percent of male family caregivers took a leave of absence or went from working full time to part time to provide care.
  • Less than 10 percent of male family caregivers turned down a promotion (8 percent), received a warning about their performance or attendance (7 percent), or retired early or gave up working entirely (6 percent).
  • Nearly two-thirds (62 percent) of male family caregivers indicated that their caregiving experience was moderately to very stressful.
  • Almost half (46 percent) of male family caregivers experienced moderate to severe physical strain due to caregiving responsibilities.
Qualitative studies indicated that younger men had more “difficulties” in the caregiving role and communicated particular “psychological stress” when having to choose between work responsibilities and caregiving responsibilities. [reference omitted].  More than one-third (37 percent) of male family caregivers did not inform their employers about their caregiving responsibilities. The percentage of male family caregivers who did not inform their supervisors was even higher for millennials (45 percent).
Despite this trend, though, considering the aging of the population, increases in life expectancy, and shrinking families, the supply of family caregivers is unlikely to keep pace with future demand.  Aging in place planning, therefore, is extremely important.  The planning shoul consider the unavailability of typical caregivers, and should consider the unavailability of family caregivers. 

Wednesday, July 26, 2017

Half of Most Dangerous Nursing Homes Remain Treacherous for Residents After Homes Are Cleared By Regulators

The Centers for Medicare and Medicaid Services (CMS), sets the federal standards for nursing homes and determines whether they are in compliance based on inspections performed primarily by state health departments. States license facilities and have  authority to revoke the licenses.  CMS designates "special focus status" to the poorest-performing facilities out of more than 15,000 skilled nursing homes. In an arbitrary system befitting government bureaucracy, the federal government assigns each state a set number of special focus status slots, roughly based on the number of nursing homes. Then state health regulators pick which nursing homes to include.
More than 900 facilities have been placed on the watch list since 2005. But the number of nursing homes under special focus at any given time has dropped by nearly half since 2012, primarily because of federal budget cuts negotiated by President Barack Obama and Congress. This year, the $2.6 million budget permits only 88 nursing homes to receive the designation, though regulators identified five times as many facilities, 435, as warranting such scrutiny. California and Texas each has six slots, the most of any state. Twenty-nine states have just one.

Especially troubling is that more than a third of operating nursing facilities that graduated from the watch list before 2014 continue to hold the lowest possible Medicare rating for health and safety, a one of five possible stars, according to an analysis performed by Kaiser Health News (KHN).  But worse, nursing homes that were forced to undergo such scrutiny often slide back into providing dangerous care, according to a KHN analysis of federal health inspection data. According to KHN, of 528 nursing homes that graduated from special focus status before 2014 and are still operating, slightly more than half — 52 percent — have since harmed patients or put patients in serious jeopardy within the past three years.These nursing homes are in 46 states. Some gave patients the wrong medications, failed to protect them from violent or bullying residents and staff members, or neglected to tell families or physicians about injuries. Years after regulators conferred clean bills of health, levels of registered nurses at these facilities tend to remain lower than at other facilities.
Yet, despite recurrences of patient harm, nursing homes are rarely denied Medicare and Medicaid reimbursement. Consequences can be dire for patients  According to a KHN analysis, in 2012, Parkview Healthcare Center’s history of safety violations led California regulators to designated Parkview nursing home, a “special focus facility,” requiring it to either fix lapses in care while under increased inspections or be stripped of federal funding by Medicare and Medicaid — a financial deprivation few homes can survive. After 15 months of scrutiny, the regulators deemed Parkview improved and released it from extra oversight.
But a few months later, Elaine Fisher, a 74-year-old who had lost the use of her legs after a stroke, slid out of her wheelchair at Parkview. Afterward, the nursing home promised to place a nonskid pad on her chair but did not, inspectors later found. Twice more, Fisher slipped from her wheelchair, fracturing her hip the final time. The violation drew a $10,000 penalty for Parkview, one of 10 fines totaling $126,300 incurred by the nursing home since the special focus status was lifted in 2014.
The cost to injured residents is incalculable.  Fisher "used to go to bingo every day and she was very involved in the nursing home,”  her son-in-law, Eric Powers, told KHN. Although Fisher moved to a different nursing home for better care, Powers related that “after this whole thing, she has to be on painkillers. She’s mainly in her room all the time. It’s the saddest thing in the world.”
In 2010, NMS Healthcare of Hagerstown, Md., left the watch list after 10 months.  Last year, Maryland’s attorney general sued the facility and its owner, Neiswanger Management Services (NMS), alleging that they evicted frail, infirm and mentally disabled residents “with brutal indifference” when their health coverage ran out or the facility had the opportunity to get someone with better insurance.

Among those evicted was Andrew Edwards, who was told by NMS that he was being discharged to an assisted-living center, according to the lawsuit. Instead, in January 2016, the staff sent him to a crowded, unlicensed Baltimore City row house where the owner confiscated his bank card and withdrew $966 over his objections, the lawsuit said. Although NMS said it had arranged for his outpatient kidney dialysis, “that was false,” Edwards said in an interview. He ended up in an emergency room after he missed his treatment.

NMS maintains it stopped referring patients to that owner when told of the conditions. This month, CMS expelled the Hagerstown nursing home from Medicare and Medicaid after citing it for more violations. The company is closing the facility. NMS, which still runs other homes in Maryland, has sued state regulators, claiming they are vindictively trying to drive the chain out of business.
Too few nurses, particularly registered nurses, provide care at some of the most troubled homes, KHN’s analysis showed. Registered nurse staffing was still 12 percent lower than at other facilities, even three years after the homes were released from the watch list.
In 2009, Pennsylvania health regulators released Golden LivingCenter-West Shore in Camp Hill after 17 months of supervision. The company said in a recent statement that when a home was put on that list, “we mobilize the resources necessary to help get that LivingCenter back into compliance.”
But data from Medicare’s Nursing Home Compare website show the facility has among the worst nurse-to-patient staffing ratios in the nation, with registered nurses devoting an average of 12 minutes for each patient daily. The state average is 58 minutes daily per patient.
Golden LivingCenter-West Shore was fined $59,150 in 2015 after being cited for, among other violations, "allowing a resident’s feeding tube to become infested with maggots." Also, according yo KHN, Golden Living agreed to pay $750,000 to settle three cases involving patient injuries from falls that occurred after extra oversight ended, court records show.

Last year, Golden Living sold its Pennsylvania homes to Priority Healthcare Group.  Priority is following a common strategy for shedding an unwanted reputation: changing the facility’s name. In California, Parkview — where Fisher slipped out of her wheelchair — is being rebranded too, as Kingston Healthcare Center.

CMS defended the program to KHN, saying that "nursing homes on the watch list showed more improvement than did comparably struggling facilities not selected for enhanced supervision."  In other words, putting 88 facilities on the watch list meant that they showed more improvement than the 435 other facilities deserving special focus status, but which were permitted to continue with no special oversight or ultimatum.  That is a defense of a program that asks advocates and critics to applaud what appears to be a system in failure, if CMS is, as it appears to be, acknowledging that th 435 other facilities aren't improving as a result of a failure by the government to demand that they improve, or implement stricter oversight, or threaten to stop Medicare/Medicaid reimbursement.  
“CMS continues to work to improve oversight to prevent any facility from regressing in performance,” reads a CMS statement to KHN.  
Some nursing homes on the watch list do maintain improvements. After Evergreen Nursing Home in southern Alabama was designated a special focus facility in 2005, the owners brought in new managers and added nursing supervisors.  Medicare now rates Evergreen a five-star facility. 
But even prolonged supervision does not guarantee progress. Poplar Point Health and Rehabilitation in Memphis stayed on the watch list for 2½ years until 2009. federal lawsuit brought last year claims that Poplar and its owner, Vanguard Healthcare, regularly provided “nonexistent, grossly substandard, worthless care” as far back as 2010. Vanguard, now in bankruptcy court, declined to comment to KHN.
Our seniors simply deserve better.  Aging in Place planning is vitally important if you hope to avoid the risks of institutional care.  If you want to learn more about Aging in Place planning, go here.

Tuesday, July 25, 2017

Article: Philip Seymour Hoffman’s $12 Million Estate Planning Mistake

Attorney John M. Goralka has written an excellent article for Kiplinger, entitled, Philip Seymour Hoffman’s $12 Million Estate Planning Mistake.   The article teases, "A few moves could have saved the loved ones of actor Philip Seymour Hoffman a lot of money. Even if you don’t have a $35 million estate, like Hoffman’s, there are some things you could learn from it."  Attorney Goralka is correct.

The article: 

Philip Seymour Hoffman was one of my favorite actors. He starred in Charlie Wilson's War, Hunger Games, Pirate Radio and many more major movies. His roles covered a wide range, from a priest in Doubt to a coach of the Oakland A's in Moneyball, which evidenced his unique ability as an actor.
The lack of planning results in his estate owing estate tax of approximately $12 million. If Philip had married Mimi, his family would have saved approximately $12 million and paid no estate tax whatsoever.
Philip also stipulated that funds were to be used for his kids to visit major metropolitan areas for the express purpose of providing his children with access to the arts. This is an example of an incentive provision or trust to help motivate his kids to become the adults that Philip wanted them to become.
The use of a will requires probate, resulting in delays, additional costs and public proceedings. For example, the probate costs for “ordinary services” in California, where I’m based, amount to largely statutory fees, resulting in approximately $376,000 for the first $25 million in estate value and an additional "reasonable amount" to be determined by the court for the remaining $10 million of estate value if that probate is based in California. Those fees are based upon the gross value of the assets without any reduction for liens, selling costs or mortgages. In addition to the statutory fees for ordinary services, extraordinary fees are paid for services related to the sale of real property or a business, tax matters, debt collection or negotiation.
Additional costs for a "living probate" or guardianship for each of the three children may also be required. In California, this typically would require a court appearance and fees every two years until they each turn 18. Fees can be substantial and will vary based widely upon the circumstances and needs of the minor child and the value, type and number of assets involved. They would receive any share of assets to be distributed to them at that time. Not a good age to receive significant wealth. Complete access to funds may result in his kids becoming the trust fund kids Philip hoped to avoid.
An average probate in California without litigation or other issues takes between nine months and 1.5 years. Philip's probate will almost certainly take longer due to the size and complexity. After the probate is completed, Philip's estate will be at risk after distribution to Mimi if she is sued, challenged by her creditors or even in a later divorce if she remarries. That legacy may also be reduced by a second estate tax on her death.
Philip could have provided for Mimi with a Personal Asset Trust, which would help protect her from divorce, lawsuits by predators or fortune hunters, creditors and even a second estate tax imposed on Mimi when she dies.

The original article is available here.  

Monday, July 24, 2017

Nursing Homes Selling Insurance - What Could Go Wrong?


According to an article by Jordan Rau, writing for Kaiser Health News ("KHN"),nursing home companies have begun selling their own private Medicare insurance policies. Pledging close coordination between caregivers and institutions, and promising to give clinicians more authority to decide what treatments they will cover for each patient, these plans are marketed to seniors likely to or already requiring long term care.  These plans are recent additions to the Medicare Advantage market, where private plans have become an increasingly popular alternative to traditional fee-for-service coverage. There are currently nearly 18 million enrollees in the overall Medicare Advantage market. 


Medicare pays private insurers a set amount to care for each beneficiary. In theory, this payment method gives the insurers motivation to keep patients from needing costly medical services such as hospitalizations.Unlike other plans, these alternate policies offered by long-term care companies often place a nurse in the skilled nursing facility or retirement village, where they can talk directly to staff and assess patients’ conditions. Some provide primary care doctors and nurses to residents in the homes or in affiliated assisted living facilities or retirement villages with the aim of staving off hospitalizations. According to Advantage proponents, this model offers patients a more individualized approach to their care. 

Supporting the use of Advantage plans sold by nursing homes, Angie Tolbert, a vice president of quality at PruittHealth, which began offering its plan to residents in 10 of its nursing homes in Georgia last year, told KHN that:

“[t]he traditional model is making decisions based on paper, and in our model, these decisions are being made by clinicians who are really talking to the staff and seeing the patient. It’s a big shift in mindset.”
“There’s a conflict there,” Toby Edelman, a senior attorney with the Center for Medicare Advocacy told KHN.  Attorney Edelman should know; she has spent a career advocating on behalf of the elderly.  

An insurance agent represents the insurance company.  When disputes arise between the insurance company, the health care provider, and the insured, the agent is typically in the corner of the insured.  At a minimum, the agent's duty is to the insured vis-à-vis the health care provider.  In this most recent development in the insurance market, the agent works for both the insurance company and the health care provider. Where do the loyalties and duties of an agent employed by the health care provider lie in payment and coverage disputes? 

In addition, given that both insurance companies and health care providers may support low cost modalities offered by the provider rather than those offered by others, will these cheap substitutes be provided when they do not necessarily serve the interest of the insured patient?  Collusion between insurance company and health care provider regarding cost can impact quality of care.  If anything, health care providers are accused of recommending expensive unnecessary tests and treatments, but what if they are necessary and unavailable through the provider; will they still be recommended?  Might both collude to provide less expensive alternatives offered by the provider rather than better, more expensive services offered by third parties?    

In the real world, these complexities are causing some to doubt the advantages of the arrangement.  KHN reported regarding some patients who are in disputes with the insurers who have faulted the nursing home staff — who work for the same company — for not helping challenge decisions about coverage:
They complain that the company holds an unfair advantage over Medicare beneficiaries.
In an Erickson Living retirement village in Silver Spring, Md., Faith Daiak signed up for an Erickson Advantage plan sold by a nurse whose office was in the main village building, according to her son, J.J. Daiak. After a bout with the flu last February weakened her enough to need a 10-day hospitalization, she was sent to her village’s skilled nursing facility. There, the insurer repeatedly tried to cut short her stay.
Erickson Advantage first said it would stop paying for Daiak, 88, because she wasn’t getting healthier in the nursing facility. Her son appealed by pointing out that Medicare explicitly said as part of the 2014 settlement of a class-action lawsuit that patients do not have to be improving to qualify for skilled nursing care.
Daiak’s appeal was denied, but the issue was sidelined in March when her rapid weight loss in the nursing home sent her back to the hospital, he said.

After Daiak returned to the nursing home with a feeding tube in her stomach, the insurer again tried to curtail her time there, saying she did not need that level of care. The family successfully appealed that decision after noting that Medicare’s manual said feeding-tube maintenance required the skilled care of a nursing facility.
In April, Erickson Advantage again said it would not continue paying for Daiak’s stay. It reversed that decision after Kaiser Health News asked the company about the case, J.J. Daiak said. He said the plan did not explain its turnaround.

While this Medicare Advantage plan touts its “team that knows you personally and wants to help,” J.J. Daiak said he found the registered nurse at Erickson’s Silver Spring community not helpful. “All I see is her trying to get Erickson out of having to pay for the nursing home,” he said. He subsequently switched his mother to traditional Medicare coverage with a supplemental Medigap policy, which she had until this year.
Erickson Living, the parent company of the nursing home and insurer, declined to discuss individual cases but noted that Medicare has given its insurance plans the best quality rating of five stars. In a written statement, the company said that “medical service determinations for Erickson Advantage members are based on reviews by licensed clinical staff and clinical guideline criteria. Our primary focus is always on ensuring that the healthcare being provided for our residents matches a patient’s needs and established clinical treatment protocols.”
Edelman said the dispute was particularly troubling because Erickson’s retirement villages are marketed on the promise that the company will care for seniors in all stages of aging. “They don’t tell you what they won’t pay for,” she said.
Will nursing homes be able to evaluate properly the competence of  a consumer, or will they sell policies to those too diminished to understand fully the policies or their implications? Will consumers feel pressure to purchase policies, worried that nursing homes mght dump them as residents if the policies are rejected?  Will nursing home agents dissuade patients from superior alternatives that may separate the patient from the nursing home, or from the insurance company?  Will nursing homes seek reimbursement for services based upon profitability rather than necessity?  Why can't nursing homes work with insurance companies for better quality care without demanding the additional compensation that comes from sale of the policies?  

This writer would take more seriously pledges and promises if they were not ransomed for additional profit.  Why should consumers pay nursing homes more for care that they should already be receiving?

Conflicts of interest may not always be improper, and may not lead to improper decisions, but always have at least the appearance of impropriety. Consumers deserve better than the "appearance of impropriety" at the inception of a relationship.   This writer recommends that every consumer reject these arrangements.   

Sunday, July 23, 2017

Trust Can be Reformed to Change Beneficiaries

Can a trust be reformed to add beneficiaries where the trust as originally drafted fails to include beneficiaries?  According to a recent Florida trust case, a  trust can be reformed to add a residual beneficiary clause. 

In Megiel-Rollo v. Megiel, 2015 Fla. App. LEXIS 5601 (Fla. Dist. Ct. App. 2d Dist. Apr. 17, 2015), the decedent had prepared a will naming her three children as equal beneficiaries.  Some years later, the decedent prepared a revocable trust.  She also deeded her real property to the trust.  The trust, however, failed to name any beneficiaries of the trust upon the death of the decedent.  The trust, instead, stated that, upon the death of the settlor, the corpus should pass according to a "Schedule of Beneficial Interests," which was supposed to be prepared and attached to the trust.  At the time of death, no Schedule of Beneficial Interests was located.  

Of course, it not uncommon for documents (wills, trusts, beneficiary designations, and the like) and attachments to come up missing after death.  The case presents an object lesson why one should not rely upon attachments or schedules to nominate fiduciaries or beneficiaries, and should instead incorporate both in the body of the instrument, and further, why it is important to ensure the integrity of the instrument through time.  For more information regarding this aspect of planning, go here (the link will take you to series of articles regaring planning protection or vaulting).  

In this case, a dispute arose among the three children of the decedent, with two claiming that the decedent intended to name the two of them as the sole heirs, with the third child contending that the trust was void and/or could not be reformed.  Under the third child's contention, the trust would be split into three equal shares for the children. In support of the claim of the two, the drafting attorney filed an affidavit admitting that he had made a mistake and should have prepared the Schedule of Beneficial Interest naming only two the decedent's children as the beneficiaries of the trust.  Based on this affidavit and other information, the two children argued for trust reformation.

The Florida Trust Code, as of 2007, contains a trust reformation provision that allows a trust to be reformed to correct a mistake, Section 736.0415:
Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor's original intent, the court may consider evidence relevant to the settlor's intent even though the evidence contradicts an apparent plain meaning of the trust instrument.
The third child argued that the trust itself failed under the "merger" doctrine, which requires that a trust have some separation of interests in the corpus.  The Court rejected this argument (internal citation omitted: 
[t]he failure of the Trust instrument to designate any remainder beneficiaries would ordinarily result in a merger is correct as far as it goes. "In order to sustain a trust entity, there must be a separation between the legal and equitable interests of the trust. If there is no separation of these interests, the doctrine of merger may apply and the trust be terminated." "If the designation of beneficiaries is deemed too indefinite for enforcement of the provisions of a trust, the usual result is that the trust is void and 'the designated trustee holds the corpus under a resulting trust in favor of the estate of the settlor.'" Based on these general principles, we agree with Sharon that--absent reformation--the failure of the Trust to designate any remainder beneficiaries would have the result that upon the Decedent's death, then Denise, as successor trustee, would hold the Trust assets upon a resulting trust for the benefit of the Decedent's estate.
The Court. then permitted the requested reformation of the trust: 
It is beyond argument that the statutory reference to "a mistake of fact or law" is not limited by any qualifiers. The broad scope of the language used in the statute is inconsistent with the notion that reformation is available to correct some mistakes in a trust, i.e., "simple scrivener's error," but not others. "[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, . . . the statute must be given its plain and obvious meaning.
Giving the statutory language of section 736.0415 its plain and ordinary meaning compels the conclusion that the remedy of reformation of the Trust is available to correct the alleged drafting error resulting from the omission to prepare and incorporate into the Trust the contemplated Schedule of Beneficial Interests. The absence of any language of limitation in the statute--other than the requirement of proof by the heightened standard of clear and convincing evidence--is additional evidence that  the legislature did not intend the construction of the statute for which Sharon contends. For this court to read such a limitation into the statute would amount to judicial legislation of the sort in which we will not indulge.
The case should comfort those that worry that their wishes may not be accurately or completely expressed in their estate planning documents.  On the other hand, others may be worried that their expressed wishes may be changed by family, friends, or advisers after their death.  Of course, proper planning, and  continued efforts to support the plan will reduce or eliminate such risks.

Wednesday, July 12, 2017

Woman Posing as Nurse in SNFs Pleads Guilty

McKnight's reports on the case of Leticia Gallarzo, 42, who posed as a registered nurse at three skilled nursing facilities and two hospitals even though she had no medical training, using the name and registered nursing license number from a registered nurse with a name similar to hers in order to obtain employment.  She committed the crimes between March 15 and Oct. 23 in 2015 at three nursing homes and two hospitals in five southern Texas towns. 

She was arrested Oct. 31, 2015, after the fifth facility reported her to authorities.  According to local news reports, she would leave to seek employment elsewhere when an employer would start to realize she was an imposter

Gallarzo pleaded guilty in a federal court case last week to making false statements relating to healthcare.  She faces up to five years in federal prison and a possible $250,000 maximum fine. She was taken into custody upon pleading guilty, and will be held  until her sentencing hearing, which is set for Oct. 3, 2017.

Go here to read the original McKnight's article. 

Sunday, July 9, 2017

Irrevocable "Sole Benefit" Trusts Countable as Medicaid Assets in Michigan

A trio of Michigan cases have invalidated the use of Irrevocable Sole Benefit Trusts in Medicaid planning for marital couples.  A Michigan appeals court has held that assets placed in an irrevocable trust by a Medicaid recipient's spouse are countable assets because the principal in the trust can be paid to or for the benefit of the community (non-institutionalized) spouse.  See,  Hegadorn v. Department of Human Services Director (Mich. Ct. App., No. 329508, June 1, 2017); Lollar v. Department of Human Services Director (Mich. Ct. App., No. 329511, June 1, 2017); and Ford v. Department of Health and Human Services (Mich. Ct. App., No. 331242, June 1, 2017).

Three women entered nursing homes. Their husbands created irrevocable "sole benefit trusts." The trusts allowed the trustee to distribute principal to the husbands as necessary with the expectation that all the resources would be used up during the husbands' lifetimes. The trusts prohibited distribution of assets to the women A few months later, the women applied for Medicaid. The state determined that the trusts were available assets and denied the applications.

The women appealed, arguing that the trusts were not countable assets because they were for the sole benefit of the husbands. After three trials, two trial courts ruled that the assets in the trust were not available, and the state appealed and the Michigan Court of Appeals decided the cases together.

The Michigan Court of Appeals held that the trusts are available assets and reversed the decisions of two trial courts. The court ruled that when states make an initial eligibility determination, "an institutionalized individual’s assets includes not only those that he or she has, but also those that his or her spouse has" (emphasis in the original).  According to the court, because "there was a 'condition under which the principal could be paid to or on behalf of the person from an irrevocable trust,' the assets in the trusts were properly determined to be countable assets."

The cases underscore the challenges consumers and planners face in crafting estate planning documents.  The holdings remind consumers that there are a variety of types and kinds of irrevocable trusts, and that they do not all work the same or accomplish the same objectives.  Competent counsel can and do sometimes misapprehend the planning area and options, particularly when planners rely upon consensus planning, and periodic approval by low level caseworkers.  

The best long term care plans consider and accomplish, if possible, each of the following (in order of priority): 1) adoption of the best available health care plan, including medically necessary home health care in order to avoid unnecessary long term institutional care; 2) adoption of an "Aging in Place" philosophy and incorporation and expression of the philosophy in estate planning documents; 3) adoption and maintenance of a sound financial plan to protect income and ensure available resources to pay for alternatives to long term institutional care;  4) settling a revocable trust to protect against guardianship, protect assets and decision-making from institutional control in order to reduce the risk of unnecessary institutionalization; 5) settling an asset protection trust to shield selected assets  for the benefit of a community (non-institutionalized) spouse and to protect inheritance;and; 6) making the home suitable for long term care needs.  

It is vitally important to begin the planning with consideration of the proper Medicare health care option.  Quite simply, every legal and financial plan is made more capable by proper health care insurance planning, and many may be rendered utterly useless by inadequate health care planning.  Please contact our office if you want or need a referral to competent and capable health care planners.  

To read the full opinion, go here.  If you are interested in the history of the use of Sole Benefit Trusts, particularly in Michigan, go here and here, and for an argument advocating why Sole Benefit Trust assets should be protected from Medicaid spend down, go here.       




   

Thursday, July 6, 2017

Maryland Repeals Filial Responsibility Law

Maryland has repealed its little-used filial responsibility law. Maryland's filial responsibility law provided that adult children are obligated to financially support an indigent parent with basic needs such as food, care, shelter, and clothing. The law was not used much in nursing home cases because Maryland law also prohibits a nursing home from holding adult children responsible for a parent's nursing home bill unless the child consents in writing to be financially responsible. However, the law could have been used when a parent under age 65 was under the care of a psychiatric hospital, or for parents receiving nursing home care paid for by Medicaid in resource recovery after the parent's death.

 Although, like many states, Maryland never used its filial responsibility law to seek repayment of Medicaid benefits, other states have followed the recommendation of the  Centers for Medicare & Medicaid Services (CMS) policy analysts in expanding Medicaid resource recovery efforts to include application of the law.  These states include Pennsylvania, Connecticut and South Dakota.  

  
The repeal saw bipartisan support.  The arguments for repealing the law included that filial responsibility laws were a holdover from Elizabethan times, and that a parent’s failure to exercise sound financial planning should not burden the parent’s adult children.  Of course, one only needs to witness the chaos created by filial responsibility laws in Pennsylvania to justify repeal. 

Idaho repealed its filial responsibility law in 2011.  Only Maryland and Idaho have repealed filial responsibility laws in the modern age, rejecting the havoc that such laws often play play in creating family disputes and  discord, and in potentially negating responsible long term care financial and estate planning.   A host of other states continue to keep and enforce filial responsibility as state law.

 To read the full repeal, go here.

Tuesday, June 20, 2017

CDC Reports that LTC the Overwhelming Source of Legionnaires' in Healthcare Facilities

Legionnaires' disease tends to be more common and deadly within post-acute care facilities than others — and providers need to do more to reduce the risk to residents.

Researchers with the Centers for Disease Control and Prevention recently conducted a study finding that 76% of Legionnaires' cases reported in 2015 could be traced to healthcare facilities. Of those cases, 80% were linked back to long-term care facilities, followed by 18% at hospitals and 2% to both.

Eighty-eight percent of Legionnaires' cases that year were reported in patients older than 60, the CDC said. About 25% of patients in healthcare facilities who contract legionnaires' die from it. That's two-and-a-half times the rate of all who contract the disease, which comes from inhaling water containing Legionella bacteria.

According to an article in McKnight's:

“Legionnaires' disease in healthcare facilities is widespread, deadly and preventable," CDC Acting Director Anne Schuchat, M.D. said during a press conference. “People can inhale the bacteria from small water droplets from showers, water therapy spas, baths, cooling towers, decorative fountains and medical equipment, like respiratory therapy equipment.”
The report comes three days after the Centers for Medicare and Medicaid Services issued a memo to surveyors explaining that healthcare providers soon will be expected to have policies in place to reduce the risk of Legionnaires'.

Marc Siegel, M.D., told providers to monitor patients with pneumonia for Legionnaires', and to keep their facilities sterile, according to MedlinePlus.

“This is all about improper maintenance, improper sanitation and improper sterilization, and a vastly underreported problem,” Siegel reportedly said.

Legionnaires' disease is a severe, often lethal, form of pneumonia.  Like many diseases, it presents greater risk to populations likely to reside in skilled nursing facilities, such as:
  • People 50 years or older;
  • Current or former smokers;
  • People with a chronic lung disease (like chronic obstructive pulmonary disease or emphysema);
  • People with weak immune systems or who take drugs that weaken the immune system (like after a transplant operation or chemotherapy);
  • People with cancer;
  • People with underlying illnesses such as diabetes, kidney failure, or liver failure.
The fatality rate of Legionnaires' disease has ranged from 5% to 30% during various outbreaks, but "Hospital-acquired" Legionnaires' has a fatality rate of 28%.  

Thursday, June 15, 2017

Medical Evidence in VA Claims

Although many factors are considered in the determination of eligibility for Veterans Administration (VA) benefits, one of the most important factors is assembly and production of the medical evidence.  Karen McIntyre, R.N., and a VA Accredited Agent has penned an excellent article regarding the importance of of medical evidence supporting VA claims. She writes:
In both service connected and non-service connected claims, the medical and mental condition of the veteran is crucial in the outcome of the claim. In service connected disability compensation claims, there are two routes to take; i.e. nexus or presumptive.
In nexus claims, the veteran (or survivor) must show a likely connection between the disability (or death) and military service.  In other words, does the disability (or did the death) have a connection in some way to military service and if so, how?  Proof of this rests in the medical evidence.
In presumptive claims, the claimant does not have to prove a nexus between military service and the condition (or death).  In these claims, only proof of the condition (or cause of death) during a statutory time frame and/or place of service must be shown.  These claims are much easier to win than nexus claims.

In both claims, the veteran's condition must be authenticated by a medical professional; ideally, by a private physician since many VA doctors are notorious for their lack of cooperation.  It is true that the VA will want their own doctors to exam the veteran filing a disability compensation claim, but the additional supporting evidence from the private sector can go a long way in winning a claim.
Since there are no official guidelines for doctors, Ms. McIntyre  suggests thati t may be beneficial for the claimant or his/her representative to seek medical assistance from a qualified registered nurse or other medical professional who fully understands not only diseases and conditions, but also the VA's interpretation of its unique and crucial forms.

Monday, June 12, 2017

Do-Not-Hospitalize Orders Underutilized, Could Reduce Hospital Stays

Do-not-hospitalize (DNH) orders help reduce the number of hospital stays and emergency department visits for nursing home residents, but they are used by a relatively small portion of the population, according to a new study reported by McKnight's.
Researchers with Rutgers University and State University of New York at Albany analyzed data for more than 6,000 nursing home residents to determine the impact of DNH orders. Their findings showed 61% of residents had do-not-resuscitate orders and 12% had feeding restrictions, but just 6% had DNH orders.
Residents with DNH orders had significantly fewer unnecessary hospital stays and emergency department visits in their last 90 days of life than residents without them, the researchers reported in the May issue of JAMDA. The orders also helped reduce hospital stays for residents with dementia.
The findings suggest skilled nursing providers should encourage residents to complete DNH orders, researchers said, in order to “promote integration of the resident's values and goals in guiding care provision toward the end of life."

Wednesday, May 10, 2017

"Guardianship: As your Special Needs Child Becomes An Adult:" New Video from Summit County Probate Judge Stormer

Summit County Probate Court Judge Elinore Marsh Stormer has released a new video titled "Guardianship: As your Special Needs Child Becomes An Adult," to help parents of developmentally disabled children make decisions about their child's transition into adulthood.  In the video, parents ask questions about guardianship, and share their hopes and dreams about their developmentally disabled child.  

The video is just another in a series of videos that Judge Stormer has published to help people understand the probate court's role, and facilitate probate and guardianship related decision-making.  All of the videos can be found here

B Cepacia Outbreak at Nursing Homes Traced to Contaminated Medical Products

Researchers have traced an outbreak of Burkholderia cepacia  also called B. cepacia, at skilled nursing facilities (SNFs) spanning five states to contaminated saline flushes. B. cepacia poses little medical risk to healthy people, but poses serious risk to the elderly, young children, cancer patients, pregnant women, and people with chronic health problems like weakened immune systems or chronic lung diseases.  B. cepacia bacteria are often resistant to common antibiotics, and the mortality rate for already compromised patients, for example, those with lung diseases like Cystic Fibrosis, is particularly high. 

The outbreak was discovered on Sept. 22, 2016, when four B. cepacia bloodstream infections were found in patients receiving IV therapy at a Maryland skilled nursing facility. Officials notified colleagues across state lines, and clusters of B. cepacia infection were discovered in other SNFs.  Investigators abstracted patient records and visited SNFs affected by the outbreak in two states in the hope of finding the source. The investigators found that all the infected patients were staying at SNFs supplied by a certain pharmacy that on Sept. 1 began distributing saline flushes from a specific manufacturer. They then focused on SNFs using flushes from that manufacturer.

The investigators found 162 cases of B. cepacia infection at 59 facilities in five states. Epidemiologic and laboratory evidence indicates the contamination of saline flushes produced by the manufacturer was the source of the outbreak, but  investigation and surveillance for more cases of B. cepacia are ongoing.
This is not the only recent outbreak of B. cepacia linked to contaminated medical products. A 2016 multistate B. cepacia outbreak was traced to syringes of liquid docusate, a stool softener. 

Tuesday, May 9, 2017

Universal Life Insurance Policy Holders Face Premium Hikes

Over just the last two years, tens of thousands of universal life policyholders have been hit with double-digit premium increases from companies such as Axa Equitable, Voya Financial, and Transamerica.  

Universal life is a permanent and somewhat flexible hybrid life insurance policy that is intended to combine the reasonably affordable aspects of term insurance with a savings element similar to whole life. Universal life insurance typically offers policyholders a “cash value” savings account that earns tax-exempt interest along with the flexibility to adjust premiums and to increase or decrease death benefits. The policy’s investment account accumulates cash when interest rates are high, but can plummet when rates are low. In the 1980s and ’90s, the most common guaranteed rate in universal life contracts was 4%; some insurers guaranteed more.  Many new policies are tied to the stock market and don’t guarantee returns at all.  

Life insurers blame the economy for the premium increases. Interest rates began to slowly decline in the 1980s, but then plummeted during the 2008 recession as the Federal Reserve tried to improve economic conditions by making money cheap to borrow. But low interest rates are bad for the investment.  Low interest rates mean  lower profits.  In response, life insurers have begun to raise premiums on older universal life policies.

Understandably, universal life policyholders, many of whom were assured by agents that their premiums would never increase, are angry.   There are now a dozen lawsuits against insurers who sold those policies

Of course, regulatory reforms are suggested to help minimize the impact of these premium increases.  The New York Department of Financial Services, for example, proposed a rule that would require insurers to notify the agency at least 120 days before an “adverse change” in “non-guaranteed elements of an in-force life insurance or annuity policy.” This rule would also force insurers to notify consumers at least 60 days before the change. The regulation could be used as a precedent for other state insurance departments.  The Consumer Federation of America last year sent a letter to all state insurance commissioners asking them to study and prohibit any unfair price increases being imposed on consumers owning universal life policies.  Regardless, these reforms don't offer insureds a financial solution- only time to react.

Scott Hanson, a senior partner and founding principal of Hanson McClain,  a financial advisory firm in Sacramento, California,  offers the following advice to insureds holding universal life policies:

  • Get ahead of the curve by contacting your insurer to find out just how much your policy’s cash reserves are worth.  Depending on the amount you have accrued over the years, you might be able to afford future premium hikes.
  • Alternatively, consider working with your insurer to lower the policy’s death benefit, and by extension, your costs.
  • You could also inquire about changing policies. What else does your insurer have to offer you? Fair warning: It can be hard to get approved for a life insurance policy when you’re in your 60s or older.
  • If all else fails, you could look for a life insurance agent or company who would buy the policy from you now in exchange for receiving the death benefit later.

For more information regarding life insurance in estate and financial planning, go here.

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