presented by: sponsored by:. thursday, october 8, 2015 elder law for the non-elder law attorney part...

PRESENTED BY:

Sponsored by:

Thursday, October 8, 2015

Elder Law for the Non-Elder Law Attorney

Part I

Copyright © 2015 Weiss Law Group, PLLC

Overview

I. Changing Demographics & The Cost of AgingII. Medicare and MedicaidIII. Power of Attorney / Statutory Gifts RiderIV. Health Care Proxy and Living WillV. Elder Law Case StudyVI. Resources


I. Changing Demographics in America

• Today, about 1 of every 7 Americans is “older” (65+).

• If you’re 65 years old today, your average life expectancy is another 20.5 yrs (F) or 17.9 yrs (M).

• In the next 25 years, the population aged 85+ is projected to triple (from 6 million to 14.6 million).

Source: Aging Statistics, Administration on Aging, Dept. of Health & Human Services, http://www.aoa.gov/Aging_Statistics. (Principal sources of data for the Profile are the U.S. Census Bureau, the National Center for Health Statistics, and the Bureau of Labor Statistics.)


http://www.aoa.gov/Aging_Statistics

Leading Causes of Death (65+)

1. Heart disease 3. Stroke 5. Influenza / pneumonia2. Cancer 4. Respiratory disease 6. Alzheimer’s

Alzheimer’s Disease in 2015: • An estimated 700,000 Americans age 65+ will die.• 5.1 million Americans 65+ have an Alzheimer’s diagnosis (2/3 are women)• In the next 10 years, this is expected to increase by 40% (7.1 million).

Sources: Alzheimer’s Facts and Figures, Alzheimer’s Ass’n, http://www.alz.org/facts/overview.asp#quickFacts. Yelena Gorina, Donna Hoyert, Harold Lentzner, and Margie Goulding, Trends in Causes of Death among Older Persons in the United States, U.S. Dept. of Health and Human Services, Centers for Disease Control and Prevention, http://www.cdc.gov/nchs/data/ahcd/agingtrends/06olderpersons.pdf.


http://www.alz.org/facts/overview.asp#quickFacts

The Cost of AgingOver 70% of the 65+ population will require long term care services (“LTC”).

Median Annual Cost:

Sources: 2015 Cost of Care Survey, Genworth Life Insurance Company, 2015.2015 Medicare & You, National Medicare Handbook, Centers for Medicare & Medicaid Services, September 2014.


Nation-wide N.Y. N.J. Conn. Florida

Home Health Aide Services $45,760 $52,624 $48,506 $50,336 $41,184

Assisted Living Facility $43,200 $49,200 $68,700 $66,900 $37,800

Nursing Home (Semi-Private Room) $80,300 $131,758 $116,800 $146,000 $87,600

Nursing Home (Private Room) $91,250 $136,437 $127,750 $158,775 $96,725

II. Medicare & Medicaid


N.Y. / Region. Medicaid Shift Fuels Rush for Profitable ClientsBy NINA BERNSTEIN MAY 8, 2014

Medicare Defined

Federal program established under Title XVIII of the Social Security Act

Persons 65+Disabled persons under 65 Persons with Ends Stage Renal Disease

Centers for Medicare and Medicaid Services (Dept. Health and Human Services)

What is Medicare?

Who is eligible?

Who administers Medicare?


Medicare Options for SeniorsInpatient hospital and rehabilitation careHospice services

Physician and outpatient medical servicesequipment, supplies

Medicare Advantage (combines Parts A & B)

Prescription drugs

Plan variations

Part A

Part B

Part C

Part D


Other

Medicare Open Enrollment

• Open Enrollment Period: October 15 – December 7, 2015.• Creditable coverage – coordinates with employer coverage


• Medicare health and drug plans can change each year (i.e., cost, coverage, providers in network, etc.) Medicare beneficiaries can change their Medicare health plans and prescription drug coverage for 2016.

• Info about 2016 plans – available beginning of October on www.medicare.gov or calling 1-800-Medicare.

http://www.medicare.gov/

UnitedHealth Culls Doctors From Medicare Advantage PlansPhysicians in 10 States Notified; Insurer Cites 'Funding Pressure' From Federal Government

Medicare Managed Care (MA)

Source: Beck, Melinda. UnitedHealth Culls Doctors From Medicare Advantage Plans, The Wall Street Journal, available at http://www.wsj.com/articles/SB10001424052702303559504579200190614501838 (Nov 16, 2013).


http://www.wsj.com/articles/SB10001424052702303559504579200190614501838

• Medicare Supplement Plans (“Medigap”) are NOT Medicare! They are private insurance! • All Medigap plans are created equal!

• Medicare Advantage Plans• Medicare Supplement Insurance Plans• Medicare Prescription Drug Plans

Medicare Supplement Plans


Medicare and Medicaid Turns 50Patient Protection and Affordable Care Act of 2014:

• Medicare defined as “creditable” coverage

• Federal Medicare tax on investment income

• Created integrated Medicare/Medicaid managed care plans “Fully Integrated Dual Advantage Plan” (“FIDA”)

• Established the Federal Coordinated Health Care Office (“Medicare-Medicaid Coordination Office” - MMCO) (Section 2602 of ACA)

Sources 42 U.S.C. § 18001 (2010) : Patient Protection and Affordable Care ActFida (Fully-Integrated Dual Advantage)” – Managed Care Expansion for Dual Eligible in NYC Metro Area – Delayed Until Jan. 2015, Health Access. Seniors guide to ACA www.medicare.gov/Pubs/pdf10050.pdf


http://www.medicare.gov/Pubs/pdf10050.pdf

Medicaid Regulatory Schematic

Federal

- 42 USC § 1396 et seq. (a/k/a Title XIX of Social Security Act) – established Medicaid program, authorized grants to states [which have discretion in constructing their own Medicaid program].See also 42 CFR § 430 et seq.

State – programs

- Must have 1 agency responsible for administering Medicaid (NY agency: NYS Dept. of Health (NYS DOH))- Must have state-specific plan approved by Fed. Dept. Of Health & Human Services (DHHS) (§1902 of Social Sec. Act).

Managed Long Term Care

- MLTC plans accredited by NYS DOH to coordinate delivery, quality, cost of care.


Researching Medicaid IssuesFederal – Dept. of Health & Human Services• Title XIX Soc. Security Act (42 USC § 1396)• Omnibus Reconciliation Acts • Affordable Care Act• 42 CFR § 430, et seq.• Center for Medicare & Medicaid Services• CMS Rulings (binding administrative

directives that clarify, interpret complex or ambiguous provisions of law/regulations relating to Medicare, Medicaid)

• Approved State Medicaid plan

State – NYS Dept. of Social Services• NYS Dept. of Health • Office of Temporary and Disability

Assistance (“OTDA”) – responsible for Fair Hearings (ALJ rulings)

• Local Medicaid districts (e.g., New York City Human Resources Administration (“HRA”))

• Medical Insurance and Community Services Administration (“MICSA”) – administer medical programs

• Medical Assistance Program (“MAP”) – determine which individuals are eligible for Medicaid; administer Home Care Services Program


Researching Medicaid Issues (Continued)

State Guidance• Administrative Directives (“ADMs”)– binding directives of policy and procedures to

the 58 local Medicaid districts (i.e., 15 OMM/ADM-11) • General Information System Notices (“GIS”) – provide immediate direction about

current OTDA program policy and procedures (i.e., GIS 15 MA/011)• Medicaid Reference Guides (“MRGs”) – DOH’s guide to assist districts in determining

Medicaid eligibility for benefits • NY Health Access: http://wnylc.com/health/


http://wnylc.com/health/



BREAK


Transition Period for Medicaid A Federal / State partnership program providing health and long term care insurance benefits for eligible enrollees.

A health insurance plan or health care system accredited by NYS Dept. of Health to coordinate the delivery, quality and cost of care, also known as an “MLTC”.

Traditional Medicaid

Managed Medicaid


Medicaid DefinedFederal / State partnership program providing medical benefits

Established under 42 USC § 1396 et seq., 42 CFR § 430 et seq.

Eligibility is based upon financial need and medical condition (not age)

As of 2013 Center for Medicare and Medicaid Services (Department of Health and Human Services) and NY Health and Human Resources Administration

What is Medicaid?

Who is eligible?

Who administers Medicaid?

19Copyright © 2015 Weiss Law Group, PLLC

Medicaid Programs for Seniors

Institutional/ Nursing Home Care

Community Based Home Care

Waiver & Other Programs

Long term, nursing home care (medical equip., supplies)Medical services not otherwise covered by insurance (e.g., Medicare)Room and boardNursing care and aides, but not private duty

Home attendant, home health aide, private duty nursing Assisted living, adult day care, meals Medical equipment, supplies, some home modifications Podiatry, audiology, dental, optometry, and others Non-emergency medical transportation

Consumer Directed Personal Assistance Program (“CDPAP”)Nursing Home Transition and Diversion Program (“NHTD”)EPIC (Prescription Drug Benefits) and others


Institutional Medicaid Eligibility: 2015 Medicaid Resource & Income Allowances

Institutional/Nursing Home CareApplicant Resource Allowance $14,850.00Community Spouse Resource Allowance $119,220.00 Applicant Income Allowance $50.00Community Spouse Income Allowance $2,980.50


Community Based Medicaid Eligibility: 2015 Medicaid Resource & Income Allowances

Community Based Care (Home Care, etc.)Applicant Resource Allowance $14,850.00Community Spouse Resource Allowance $21,750.00 Applicant Income Allowance $825.00Community Spouse Income Allowance $1,209.00


Calculating Income


What counts as “Income”?

Includes both “earned” & “unearned” income

SSI, VA, Union (benefits)Disability benefits, unemployment Insurance Pension & retirement fundsDividends & interestAnnuity and trust paymentsRental income Capital gainsEmployment (tips, wages, salary, bonus) In-kind income (goods/services)

Examples

Calculating Resources


What counts as a “Resource”?

Anything of monetary value that can be converted into cash.

Real Estate

Personal property

Cash, money market and bank accounts

Stocks & bonds

Annuities, IRAs, pensions

Life Insurance policies

Burial fund & pre-paid funeral trust

Examples

What resources are disregarded?

Resource Disregards

Primary residence (with exceptions)

Automobile

Life insurance

Burial funds in trust up to $1,500

Holocaust survivor & ghetto pensions

Qualified IRAs (MRD plans)


Budgeting Example• Ms. M, a widow, lives alone in a co-op valued at $700k. Each

month, she receives $1k in Social Security, and $400 from her qualified-IRA (which has $600k remaining). Aside from her home, her only other assets are her IRA (which she earned while working), Checking account with $8k and Savings account with $10k.

• Can Ms. M qualify for Community Medicaid? • Countable Resources: $8k + $10k =$18k ($14,850 limit)

Countable Income: Social Security 1,000.00IRA MRD 400.00

Deductions: - Medicare Part B Premium - 104.90- Income deduction (for aged, blind, disabled) $ - 20.00_____MEDICAID INCOME $1,275.10 ($825 limit)


Medicaid Asset Planning – Hot Topics


Spouse may refuse to pay for the health care needs & support of their legally recognized partner

HHS recently clarified that spousal refusal applies to community Medicaid applicants as well as to institutional Medicaid applicants (GIS 14 MA/025)

Spousal Refusal

NY Rule: Children are not legally obligated to pay for health care expenses of parents! No filial support law, but can apply other theories (see Troy Rehab Ctr. v Naylor 94 AD 3d 1353 (Apr. 26, 2012)).

Reimbursement

Medicaid Asset Planning


Spend DownThe amount that income exceeds eligibility limits after reduction for Medicare Part B and other health insurance premiums & medical care costs

Health care expensesPrepayments of housing expensesLegal fees Burial trusts/prepaid funeral trust Reimbursement

Examples



Asset Transfers Allowed when transfers are for fair market value

Penalty applies to institutional applicants for transfers made within *60 month period prior to date of the filing of an application and the date that the individual otherwise qualifies for Medicaid

Exceptions for transfer penalty if transfer is to spouse, disabled child (directly, or to a SNT)



Account Management

Promissory Note/Loan

Joint accounts, in trust accounts, accounts not for convenience of applicant (bona fide)

Institutional – 5 year (or 61 months*) look back applies

Institutional – used to shelter a percentage of assets and reduce penalty period

Gifting



Real Estate Primary home exempt for community Medicaid, not for institutional Medicaid Exceptions:

• Intent to return home• Dependent with special needs• Child living with parent and

providing support enabling parent to remain at home for a period of no less than 2 years.



Special Needs TrustsSocial Security Act (42 U.S.C. 1396p(d)(4)(A))

Created by parent, grandparent, legal guardian, court order for the benefit of a disabled individual.

Restricted use of funds

Cannot create or fund after admission to nursing home

Special Needs Trust Fairness Act Authorizes creation of self-settled

special needs trusts. (S. 1672, H.R. 2123)



Pooled Income Trusts42 USC §1396(d)(4)(C))

Self-settled trust established by a disabled individual 65 yrs+ (not residing in nursing home)

Funds managed by non-profit (master account) with separate account for each participant (joinder agreement).

Funds cannot be used for purchase of services/ supplies available through public benefits.

Upon death, funds remaining in the trust cannot be withdrawn.

III. Power of Attorney /Statutory Gifts Rider

Legal document used by a person (“Principal”) to delegate authority to another person (“Agent”) to make financial, property, and other legal decisions for the Principal.

Added to a POA and grants agent authority to make gifts on principal’s behalf.

Essential for elder planning, tax planning and protects agent from accusations of self-dealing.

Statutory Gifts Rider (SGR)NY Gen. Ob. Law §5-1514


Power of Attorney (POA)NY Gen. Ob. Law §5-1501, et seq.

Recommendations

• Do not use internet form!

• Not all POAs are alike – customize POA to fit your situation, appoint an agent you trust.

• SGR essential for elder, estate and tax planning.

• Older clients tend to have outdated forms.

• Appointment of agents.


IV. Health Care Proxy and Living Will

Legal document used by a person (“Principal”) to delegate authority to another person (“Agent”) to make health care decisions for the Principal.

Health Care Proxy (HCP)

N.Y. Pub. Health Law §§ 2980, et seq.

Legally recognized expression on intent made by a competent adult stating his/her wishes with respect to future health care decisions, including the use of life sustaining medical treatment, artificial nutrition and hydration, and others.

Living Will10 NYCRR §400.21(b)(3)


V. Elder Law Case Study

• Two family home sold by seasoned real estate attorney.

• Property owned by Mrs. M. who transferred title to self-settled, irrevocable income-only trust (asset management).

• Mrs. M. becomes incapacitated. • Attorney sells property for $650,000. • Client sues attorney for malpractice.

VI. Resources• U.S. Dept. of Health and Human Services – Administration for Community Living: http://

acl.gov/get_help/help_older_adults/index.aspx• NYC Department for the Aging: http://www.nyc.gov/html/dfta/html/home/home.shtml • National Association of Area Agencies on Aging: http://www.n4a.org/• Social Security Administration: http://www.ssa.gov/• New York State Department of Health – Advance Directive: http://

www.health.ny.gov/professionals/patients/health_care_proxy/index.htm • Dept. of Health, Health Care Proxy: https://www.health.ny.gov/forms/doh-1430.pdf • HIPAA on NY Health Access: www.wnylc.com/health/10


http://acl.gov/get_help/help_older_adults/index.aspx

http://acl.gov/get_help/help_older_adults/index.aspx

http://www.nyc.gov/html/dfta/html/home/home.shtml

http://www.nyc.gov/html/dfta/html/home/home.shtml

http://www.n4a.org/

http://www.ssa.gov/

http://www.ssa.gov/

http://www.health.ny.gov/professionals/patients/health_care_proxy/index.htm

http://www.health.ny.gov/professionals/patients/health_care_proxy/index.htm

https://www.health.ny.gov/forms/doh-1430.pdf

http://www.wnylc.com/health/10

Upcoming Presentation – Part II

Join us for Elder Law for the Non-Elder Law Attorney, Part II to learn about:• Guardianship – Article 81 and Article 83• Capacity - Standards of Capacity and Ethics Rules• Combating Fraud & Elder Abuse• Case Study• Practicing Elder Law

Date: Thursday, November 12, 2015

Time: 8:30 AM – 10:30AM

Location: Oppenheimer/Grand Central

Address: 200 Park Avenue, 24th Floor, New York, New York


Mira B. Weiss, Esq. 425 Madison Avenue, Suite 901New York, NY 10017

[email protected](646) 395-3851

Weiss Law Group, PLLC

Chelsey B. Axel, Esq. 425 Madison Avenue, Suite 901New York, NY 10017

[email protected](646) 395-3851


mailto:[email protected]

mailto:[email protected]

presented by: sponsored by:. thursday, october 8, 2015 elder law for the non-elder law attorney part...

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