The Legal Checkup Blog

MASSACHUSETTS CHAPTER OF THE NATIONAL ACADEMY OF ELDER LAW ATTORNEYS (MassNAELA)

CONTACT: Beth Bryant, 508.786.3013

October 31, 2012

MASSACHUSETTS ELDER LAW GROUP’S SEVEN-YEAR DRIVE FOR LONG TERM CARE INSURANCE BILL FINALLY LEADS TO PASSAGE

Governor Deval Patrick Signs Bill Protecting Seniors From Losing Their Homes, Originally Filed by the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA)

BOSTON – October 31, 2012 – The Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA) today announces a legislative victory for seniors, as Governor Deval Patrick has signed into law a bill protecting individuals from losing their homes if they choose to use long-term care insurance for community-based care before entering a nursing home. Bill S.2359 grants an exemption from MassHealth estate recovery claims whether an individual uses their long-term care insurance for at-home or nursing home care. Prior to this bill, the MassHealth estate recovery exemption only applied when long-term care insurance policies were used for nursing home care.

Working with Senator Harriette L. Chandler, MassNAELA advocated for the passage of this bill, part of which was originally filed in 2005. The bill, signed into law by Governor Patrick as “An Act Establishing Standards For Long-Term Care Insurance,” also includes important consumer protection for purchasers of long-term care insurance. The Act enables MassHealth Medicaid recipients who have purchased long-term care insurance policies to use their policies for home care coverage without forfeiting estate recovery protection. This legislation allows seniors and disabled persons to seek care in their home instead of nursing home care and reinforces the incentive to purchase long-term care insurance.

“Before this new law, those who chose to use their long-term care insurance to pay for care in their home rather than a nursing home could lose their estate recovery exemption if their insurance benefits fell below qualifying levels before they entered a nursing home,” states Philip D. Murphy, Esq. President of MassNAELA. “Now, when a person buys a qualifying long-term care insurance policy, his or her home is protected from estate recovery whether the insurance is used to pay for care at home or in a nursing home. The exemption of a person’s home from estate recovery after he or she dies is a strong incentive for a person to buy qualifying long-term care insurance. More people should buy long-term care insurance under the new law, thereby saving MassHealth some long-term care costs. This is a win-win for elders and MassHealth.”

An advocate for quality of life for seniors, MassNAELA has filed several bills and been a significant force behind legislation focused on improving the ability of elders to remain financially independent and in their home while dealing with the cost of long-term care. In 2008, the organization won passage of H.975, a bill exempting MassHealth applicants from paying fees for retroactive bank records, which was signed into law by Governor Patrick as Chapter 125 of the Acts of 2008.

About MassNAELA
The National Academy of Elder Law Attorneys, the premier organization of elder and special needs law attorneys in the country, is dedicated to developing awareness of issues concerning the elderly and those with special needs. Over 500 attorneys are members of the Massachusetts Chapter, which comprises 12% of all NAELA members nationwide. They work directly with the elderly and those with special needs in areas as diverse as planning for catastrophic care costs, disability planning, age discrimination in employment and housing, benefits planning, estate planning, veterans’ benefits and more. For more information about MassNAELA, visit www.massnaela.com.

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I've been following and periodically providing updates on a class action lawsuit known as "Jimmo v. Sebelius" (Kathleen Sebelius, Secretary of Health and Human Services), which was filed in The United States District Court for the District of Vermont.  Plaintiffs include six individual Medicare beneficiaries and seven national organizations (including the National Committee to Preserve Social Security, Parkinson's Action Network, Paralyzed Veterans of America, American Academy of Physical Medicine and Rehabilitation, Alzheimer's Association, and United Cerebral Palsy).

Plaintiffs alleged that the Secretary has adopted an unlawful and clandestine standard to determine whether Medicare beneficiaries are entitled to coverage, resulting in the wrongful termination, reduction, and denial of Medicare coverage for beneficiearies with medical conditions that are not expected to improve. 

Plaintiffs alleged that this unlawful standard is implemented at the lower levels of Medicare's administrative review process, and denies coverage where the beneficiary needs "maintenance services only," has "plateaued," or is "chronic," "medically stable," or not improving.  This "rule of thumb" or clandestine policy is what plaintiffs refer to as the "Improvement Standard."  If you or a loved one has ever been in a rehabilitation facility, you have probably received such a notice.  This Improvement Standard is contrary to the Medicare Act and federal regulations and precludes coverage for beneficiaries with conditions that are not expected to improve or that have not improved over the course of treatment.

Plaintiffs allege that this standard has been implemented without proper rulemaking procedures against beneficiaries that have little or no understanding of its application and no ability or reasonable opportunity to confront it.

Well, we have GREAT NEWS to report!!

The Center for Medicare Advocacy and the Centers for Medicare and Medicaid Services (CMS) have agreed to settle the "Jimmo" case, also known as the “Improvement Standard” case, and have filed a proposed settlement agreement with the Court.  If the judge approves the proposed agreement, a process that could take several months, the Medicare Benefit Policy Manual will be revised to correct any suggestion that continued coverage is dependent on the beneficiary improving.  CMS will undertake an Educational Campaign to inform providers, contractors, and adjudicators that they can not base coverage on the potential for improvement, but on the need for skilled care.

Bravo to the attorneys from the Center for Medicare Advocacy and Vermont Legal Aid, who have undertaken this cause on behalf of the Plaintiffs.  This unlawful "Improvement Standard" is an issue elder law attorneys and their clients face on a daily basis, so this is fantastic news!  If you are interested in viewing the proposed settlement agreement, you may view it here.   

http://www.medicareadvocacy.org/wp-content/uploads/2012/10/Proposed-Settlement-Agreement.101612.pdf

Long-term care planning is a significant part of most elder law practices. While the ideal clients seek counsel long before there is a crisis, the usual clients do not. It is in these crisis situations that clients benefit most from an elder law attorney's knowledge of the resources available in their communities and an understanding of the medical and financial criteria for eligibility.
PACE, the Program for All-Inclusive Care for the Elderly, is a national comprehensive health program created to help elders remain at home as long as possible. While PACE is a valuable resource for many elders, it remains a fuzzy concept for many attorneys and is, thereby, under utilized.

WHERE IS PACE?
Unfortunately, PACE is not available in all cities and towns, but is available in:
Allston, Arlington, Avon, Beverly, Boston, Braintree, Brighton, Brookline, Cambridge, Canton, Charlestown, Chelsea, Danvers, Dedham, Dorchester, East Boston, Essex, Everett, Gloucester, Hamilton,Hudson, Hyde Park, Ipswich, Kenmore, Lynn, Lynnfield, Magnolia, Malden, Manchester, Marblehead, Marlboro, Mattapan, Medford, Middleton, Milton, Nahant, Norwood, Peabody, Quincy, Randolph, Revere, Roslindale, Rockport, Roxbury, Salem, Saugus, Sharon, Somerville, South Boston, South Hamilton, Stoughton, Swampscott, Topsfield, Wakefield, Wenham, West Roxbury, Weymouth, Winthrop, all towns in WorcesterCounty,

WHO IS ELIGIBLE FOR PACE?
In order to be eligible for PACE, applicants must be 55 years of age or older, live in a PACE service area as outlined above, and must be certified by the state as eligible for nursing home care but able to safely remain in the community with the additional supports PACE offers. Members must also agree to receive all health services exclusively through the Elder Service Plan. While many elders are initially hesitant to give up their primary care physicians or other medical professionals, it is the interdisciplinary team model of PACE that allows each member to maximize his or her potential to remain in the community and ensures that nobody falls through the cracks.

HOW IS PACE FUNDED AND WHAT SERVICES DOES PACE COVER?
PACE is jointly funded by Medicaid (2/3) and Medicare (1/3) in a capitated system. In other words, Medicaid and Medicare each pay a set rate per member per month. Medicaid presently pays $3,497 per member per month, with the Medicare rate dependent on the diagnosis codes of each member. Each PACE program must offer a number of Core Services, and may offer elective services based on the various needs of their members. This flexibility allows each program to customize individualized care plans designed to help each member maximize his or her potential.

Interdisciplinary teams of doctors, nurses, social workers, therapists, nutritionists, and other medical staff work together to provide primary medical care, home health, adult day health (recreation), rehabilitation services, transportation, medications, podiatry, optometry, dental, social services, and more. While the majority of PACE services are provided at an adult day center to encourage socialization and activity, services are provided in the home when appropriate. Some PACE programs offer residence in certain Assisted Living Facilities. PACE members never pay more than their income for a PACE apartment in an assisted living facility. If nursing home care becomes necessary, it is paid for by PACE and PACE continues to coordinate the member’s care, so long as the member does not disenroll from the PACE program.

WHAT IS THE FINANCIAL CRITERIA FOR MEMBERSHIP?
PACE accepts Medicare, Medicaid, and private payment. For married couples, only the income and assets of the applicant are countable. For members with monthly income of $2,094 or less per month, there is no monthly spenddown and they can keep the entire $2,094. For members who have income over $2,094, there is a monthly spenddown to $542. Members with monthly income over $4,039 (which represents the MassHealth amount of $3,497 plus the deductible of $542) would pay privately, while members with income below $4,039 would apply for MassHealth in order to keep the $542 monthly. Private pay members pay only the portion that Medicaid would pay, or $3,497 per month.

WHY SHOULD YOU CONSIDER JOINING PACE?
The most significant reason that PACE is appealing is that its primary goal is to provide each member with the individual supports needed to remain in the community as long as possible. Another benefit to consider is that PACE is covered by Community MassHealth, under which transfers of assets are presently not penalized. Therefore, for people who have not done prior planning who are suddenly faced with the need for long-term care services, the option of joining PACE should be explored for 1) quality of life issues and 2) additional planning options. In addition, the application process for Community MassHealth/PACE is far less burdensome than the long-term care MassHealth application, requiring only a few months of financial statements to verify assets (as compared with up to five years of verifications for long-term care MassHealth). Members are free to disenroll from PACE at any time. PACE is not for every body, but if you are fortunate enough to live in a PACE service area, this is an option that warrants consideration.

Call my office at 781-681-6638 if you are interested in exploring the PACE program to help you remain safely in your home.

     Yesterday was such a crisp fall day - a perfect day for a long bike ride.  I set off from my Hingham home, and made my way through Cohasset, Scituate, and Hull.  This course is my favorite as it combines some of the most breathtaking views with the challenges of the road (both the traffic and the hills!).  The ocean views along Jerusalem Road, Cohasset Harbor, and Gunrock Beach always make me forget how hard I'm working.

     The hues of the changing leaves along the way were not yet at peak, but breathtaking nonetheless.  There is one large field along the road from Scituate to Cohasset where I had to stop to take in the beauty of a doe and her two fawns.  They were probably only 20 feet away from the street, which was quite exciting to me as the only other times I have seen deer up close is when they have darted in front of my car!  The fawns were too busy eating to notice, but the doe never took her eyes off me.  She was beautiful and magestic, but she stared me down as if to let me know that those were her "children" and I had better not try to harm them.  The doe was like any other mother - guiding and protecting her young.

     A little farther into my ride I came to a series of long and challenging hills.  Just as I was huffing and puffing and pedaling as hard as I could, I felt someone's hand touch the right side of my back.  I was startled and quickly turned my head around to see who it was.

     There was nobody there.  But, how could that be?  The pressure of the hand on my back was unmistakable...  My mind raced as I tried to explain this to myself.  Could it have been a falling leaf?  A branch?  Did I imagine it? 

     No.  A couple of miles and much self-debate later, I knew in my heart that it was a sign; it was my mother.  Now, you may or may not believe in signs from those who have passed before us, but I am a firm believer.  This is, after all, not the first time that I have had a sign from my parents.  This is, however, definitely the most distinct.  The feeling of that hand on my shoulder, helping me over the hill, was just too distinct to ignore.  Even though my mother has passed, I know that she is still with me, guiding and protecting me like the doe with her fawns.

     So tell me, what is your sign?  Have you had such an experience with a sign from a loved one who has passed?  Please share your experience!

Fraud Schemes Targeted at Senior Citizens

The FBI offers a webpage with a wealth of information and tips on common fraud schemes.  As stated on this wonderful resource page, Senior Citizens should be aware of fraud schemes for the following reasons:

• Senior citizens are most likely to have a “nest egg,” to own their home, and/or to have excellent credit—all of which make them attractive to con artists.

• People who grew up in the 1930s, 1940s, and 1950s were generally raised to be polite and trusting. Con artists exploit these traits, knowing that it is difficult or impossible for these individuals to say “no” or just hang up the telephone.

• Older Americans are less likely to report a fraud because they don’t know who to report it to, are too ashamed at having been scammed, or don’t know they have been scammed. Elderly victims may not report crimes, for example, because they are concerned that relatives may think the victims no longer have the mental capacity to take care of their own financial affairs.

• When an elderly victim does report the crime, they often make poor witnesses. Con artists know the effects of age on memory, and they are counting on elderly victims not being able to supply enough detailed information to investigators. In addition, the victims’ realization that they have been swindled may take weeks—or more likely, months—after contact with the fraudster. This extended time frame makes it even more difficult to remember details from the events.

• Senior citizens are more interested in and susceptible to products promising increased cognitive function, virility, physical conditioning, anti-cancer properties, and so on. In a country where new cures and vaccinations for old diseases have given every American hope for a long and fruitful life, it is not so unbelievable that the con artists’ products can do what they claim. 

• More helpful information can be found on the FBI's website at:  http://www.fbi.gov/scams-safety/fraud/seniors

Note:  Rockland and Mansfield Boot Camps are fully booked!  We are maintaining a wait list and an additional date will be added when filled. 

IT'S BACK BY POPULAR DEMAND AND SURE TO "SELL OUT" QUICKLY ... 

THE LEGAL CHECK UP BOOT CAMP (c)

Families come in all shapes and sizes. Whether you are young, a boomer or a senior, single, married (traditional or same-sex), divorced, have children or not, have a family member with special needs, want to leave your estate to your pets ... whatever your situation, you need a comprehensive assessment and and an Estate Plan that is just right for you. Depending on your goals and your situation, your plan might focus on probate avoidance, tax minimization, asset protection, or special needs planning.

"I don't have enough to worry about" you say?

Well, be aware that whether you are wealthy, barely getting by, or somewhere in the middle -- there are basic documents you need to have in place in the event you become temporarily or permanently unable to act for yourself due to a physical or mental incapacity.

You can't afford not to have these basic documents in place in the event of an emergency.  If you don't have basic disability documents that appoint an agent to act on your behalf in such cases, your loved ones would need to petition the probate court for a guardianship and/or conservatorship to obtain the authority to act on your behalf.  These court processes can cost thousands of dollars.

So, delay no more.    

Come and learn how to protect yourself, your family, and your assets in the event of disability or death.

Not just another boring seminar ... in this free, comprehensive workshop you will learn every thing you need to know about Estate and Long-Term Care Planning.  Part of the workshop will be interactive to allow attendees to discuss particular problems, concerns and situations.

This workshop will cover:

* what estate planning documents you need in the event of disability;

* what estate planning documents you need in order to achieve your goals and objectives;

* how to properly select Agents, Personal Representatives, and Trustees;

* whether you need a Will, a Trust, or both;

* long-term care costs and payment options (Medicare, VA benefits, Long-Term Care Insurance, Private Pay and Medicaid);

* how to protect your home and other assets;

* how to provide for your child with special needs in a way that improves his or her quality of life without disrupting eligibility for public benefits;

Each attendee will receive a workbook and will "graduate" from the Boot Camp with a detailed, comprehensive plan of action.

The Fall workshops will be offered during the day (from 12-3 pm) and in the evening (from 5-8 pm).  Seating is limited to 12 in each session in order to provide individualized guidance to each attendee.  Session dates will be posted soon, but preference will be given to those who pre-register at:

http://www.thelegalcheckup.com/legal-check-up-boot-camp-registration/

Most seniors I speak with feel that they have worked hard their entire lives, and that they should not have to spend all of their hard-earned assets on nursing home care.  They would like to pass some assets on to their children or grandchildren.

The problem with this, however, is that without proper guidance and advocacy, many seniors are often rushed into an Asset Protection plan that “protects the assets from the nursing home" and "protecs the assets for their children or grandchildren" ... and leaves the senior unprotected and vulnerable.  They fall victim to the many misleading ads in print on the radio that make false claims about asset protection, use scare tactics that are simply unconscionable, or offer deep discounts to sign up "today only."  No attorney worth dealing with is going to use any of these tactics to get your business.  Let me explain.

There are THREE FUNDAMENTAL RULES that you must understand about ASSET PROTECTION ...

1) You have not “protected” an asset until you have given it away, either to a person or a trust, with no legal right to change your mind and take the gift back in the future.

2) There is a five-year lookback period, which means that MassHealth can look at all of your financial statements going back five years, and they will impose a penalty for any gifts you made during that five years.  So, the assets are not fully protected until FIVE YEARS after you give them away.

3)  You could unintentionally be forced to a nursing home if you run out of funds to pay for continued care in your home.  If you “protect” assets by giving them away and getting through the five-year lookback period as outlined above, you will have no legal right to get the assets back and you may be left "unprotected" and unable to pay for the care you need to remain in your home.  

Certainly it is not any senior's intent to end up having to move to a nursing home because they "protected" their assets years earlier ... but it happens.  Part of the problem, in my opinion, is the prevalence of misleading ads that serve to scare and confuse seniors.

BEWARE of legal ads that encourage you to “Protect your Assets” while leading you to believe you are protecting yourself in the process … this is one example of an ad that I find to be very misleading, if not absolutely FALSE.

Learn about Asset Protection Trusts that:

      1) allow you to control your assets until death;

      2) allow you to retain all income from your assets

      3) enable you to protect your assets from the nursing home

     4) ensure you qualify for Medicaid in the shortest period of time

Let’s look back at the Fundamental Rules of Asset Protection.

Number 1 is FALSE because, while you may serve as trustee of the asset protection trust, it is not YOUR assets that you are controlling ... you gave the assets to someone else in order to "protect" them!

Number 2 is FALSE because, while you can retain the right to the income generated by the assets in an asset protection trust, the assets in the trust are no longer YOUR assets!  You gave the assets to someone else in order to "protect" them!

Number 3 is TRUE and FALSE - True because after five years the assets will be protected from the cost of your nursing home care, but FALSE because, once again, they are not YOUR assets any more -- you gave them to someone else in order to "protect" them.

Number 4 is FALSE because there is a 5 year lookback.  Assets transferred to an asset protection trust will not be fully protected until 5 years after they are transferred to the trust, and there is no attorney who can make you eligible with this strategy in less than 5 years.  In fact, there may be ways to make you eligible sooner based on your specific situation, but not with an asset protection trust.

Some asset protection strategies may be appropriate for you, but only if you can ensure your own future security in the process.  This is why a comprehensive assessment of your specific family situation, health and care needs, income and assets, and goals is critical to a successful Long-Term Care Plan.  A Legal Check Up will enable you to fully understand the risks and benefits and pros and cons of asset protection strategies, and will enable you to make an informed decision based on your specific situation.  

Remember, if a radio or print ad seems too good to be true, it probably is. And, if an attorney offers a discount on the cost of an asset protection plan, but the price is good "today only ..."  RUN, don't walk, to another elder law attorney.  These pressure and scare tactics are not appropriate and, frankly, offensive to most elder law attorneys. Your future security must be treated with the importance and thoughtful deliberation it deserves, by you and your attorney.

Call us today at 781-681-6638 to schedule a Legal Check Up or to get a schedule of upcoming seminars, or get more information at www.thelegalcheckup.com.

The Massachusetts Bar Association invites you to participate in Court Advocacy Day on Monday, March 19 at the Grand Staircase inside the State House. Beginning at 11 a.m., the event will help reiterate the need for adequate funding to sustain the critical needs of the Massachusetts Court System. The event will open with a brief speaking program, after which attendees will be encouraged to meet with their local legislators.

The event will include speaking remarks from:

•Supreme Judicial Court Chief Justice Roderick L. Ireland;

•Chief Justice for Administration and Management Robert A. Mulligan;

•MBA President Richard P. Campbell; and

•Boston Bar Association President Lisa Goodheart

The MBA would appreciate your signing up in advance at http://www.massbar.org/cle/cle-programs?p=2709

You can sign up in advance to meet with your legislators, or just drop by their offices.  The MBA will provide informational packets at the event that include fact sheets on court funding that you can leave with your legislators.

For your convenience, you can find the list of Senators at:

http://www.malegislature.gov/People/Senate

and the list of Representatives at:

http://www.malegislature.gov/People/House.

Deb Thomson and some members of the MassNAELA Board of Directors will be at the event to offer guidance to MassNAELA members in attendance.  We hope to see many of you there to support funding for the Massachusetts courts!

Follow this link to a video and other resources to learn more about the judicial system's response to the underfunding crisis.   

http://www.massbar.org/about-the-mba/initiatives/court-funding

The Massachusetts Department of Revenue (DOR) allows a refundable tax credit for qualifying home owners and non-subsidized renters aged 65 and over, called the "Circuit Breaker."  This tax credit can be significant and is available to seniors (65+) whose property taxes (or 25% of rent) exceed 10% of their annual income and who meet other criteria for the program.

Seniors do not need to owe income taxes in order to file for this credit, but they must file the required state tax form and Schedule CB to calculate the credit.  Call the Massachusetts DOR at 617-887-6367 for more information, or go to www.gov/dor to download the necessary forms.  Your accountant should also be able to assist you (or, dare I say, you might consider getting a new accountant)!

BEWARE:  Residents of public housing are not eligible for this tax credit.  If you reside in public housing, the DOR warns you not to fall victim to the scam of unscrupulous tax preparers who want to charge you a fee for their assistance in applying for the credit.