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Davidow, Davidow, Siegel & Stern, LLP
Long Island's Elder Law, Special Needs & Estate Planning Firm

Tuesday, December 20, 2005

AARP Letter to the U.S. Senate

The following is a letter drafted by AARP in response to a report that the House approved the revision of asset transfer rules, making it much more difficult to obtain Medicaid. We urge you to copy this letter, sign and send it off in an attempt to ask the Senate to oppose this proposal.

December 19, 2005
The Honorable Bill Frist
Majority Leader
U.S. Senate
Washington, D.C. 20510
Dear Majority Leader Frist:
AARP strongly opposes the budget reconciliation conference agreement
scheduled to come before the Senate for a vote today. Rather than reflecting the
rational provisions of the Senate reconciliation bill, the final conference
agreement is irresponsible policy.
The final conference agreement does not ask for shared sacrifice to achieve
budgetary savings. Rather it protects the pharmaceutical industry, the managed
care industry, and other providers at the expense of low-income Medicaid
beneficiaries and Medicare beneficiaries who will foot the bill.
AARP members and your other constituents will question why members of the
Senate would vote for a bill that would:
• Make it harder for Americans needing long-term care to qualify for
• Force some Americans to forfeit their homes in order to pay for long-term
care services;
• Require all Medicare Part B beneficiaries to pay higher premiums;
• Reopen the MMA, not to make improvements in the new drug benefit, but
to require those with more income to pay higher Part B premiums sooner;
• Force low-income Medicaid recipients to pay more for their care – and if
they cannot afford to do so – to potentially be denied care entirely.
The conference agreement systematically undermines the critical protections
built into both the Medicaid and Medicare programs. If the conference
agreement becomes law, then over the course of the next few weeks and months
we will make sure that our members across the country fully understand the
impact of this conference agreement on them and on their families.
Page 2
We urge the Senate to oppose the reconciliation conference package and urge
Congress to instead return to the fair and responsible policies of the original
Senate package.
William D. Novelli
Cc: All members of U.S. Senate

Spousal Medicaid Rules: The 2006 Community Spouse Resource Allowance has been raised to $99,540. More figures will be reported as they are released. a

Thursday, December 8, 2005

Trusts for Disabled Children: How to Choose which trust is right for your child's future

You already know you have to plan your estate carefully to provide the best quality of life for your child. But did you know there are several types of trusts to care for special needs children? The most common types are Support Trusts and Special Needs Trusts.

Support Trusts

A Support Trust mandates that the trustee make distributions for the child's support of such basics as food, shelter, clothing, medical care, and educational services. Beneficiaries of Support Trusts are ineligible to receive financial assistance through Supplemental Security Income (SSI) or Medicaid . Therefore, if your child will require SSI or Medicaid, you should avoid a Support Trust.

Special Needs Trusts

For many parents with a special needs child, the use of a Special Needs Trust is the most effective way to help the child. It manages resources while maintaining the child's eligibility for public assistance benefits. There are two types of Special Needs Trusts: Third-Party and Self-Settled.

Third-Party Special Needs Trust – Created using the parent's assets as part of an estate plan – distributed either by will or living trust.

Self-Settled Special Needs Trust – Generally created by a parent, grandparent or legal guardian using the child's assets to fund the trust – when the child receives a settlement from a personal injury lawsuit and will require lifelong care. If any assets remain in the trust after the beneficiary's death, a payback to the state is required.

Either type of Special Needs Trust helps provide a desirable quality of life for the disabled child while maintaining public assistance benefits.

Resource: www.specialneedsalliance.com

Lawrence Eric Davidow is a founding member and the Treasurer of this premier alliance of leading law firms throughout the country who are dedicated to the area of planning for those with Special Needs.

Monday, November 21, 2005

2006 Medicare Premiums, Deductibles, and Co-Pays Announced

The U.S. Centers for Medicare and Medicaid Services has announced the 2006 Medicare deductibles, premiums, and co-pay amounts. The following was published in the Federal Register:

Medicare Hospital Insurance (Part A):
Deductible - $952 per Benefit Period ($912 in 2005)
Co-insurance - $238 a day for the 61st through the 90th day ($228 in 2005), per Benefit Period; $476 a day for each “nonrenewable, lifetime reserve day” ($456 in 2005)
Skilled Nursing Facility Co-insurance - $119 a day for the 21st through the 100th day per Benefit Period ($114 in 2005)
Hospital Insurance Premium - $393 ($375 in 2005)
Reduced Hospital Insurance Premium - $216 ($206 in 2005)

Medicare Medical Insurance (Part B):
Deductible - $124 per year ($110 in 2005)
Monthly Premium - $88.50 ($78.20 in 2005)

For more details, log on to http://www.access.gpo.gov/su_docs/fedreg/a050923c.html
and scroll down to Centers for Medicare & Medicaid Services.

Wednesday, November 16, 2005

Social Security Announces 4.1 Percent Benefit Increase for 2006

Monthly Social Security and Supplemental Security Income benefits for more than 52 million Americans will increase 4.1 percent in 2006, the Social Security Administration announced today.

Social Security and Supplemental Security Income benefits increase automatically each year based on the rise in the Bureau of Labor Statistics' Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), from the third quarter of the prior year to the corresponding period of the current year. This year's increase in the CPI-W was 4.1 percent.

The 4.1 percent Cost-of-Living Adjustment (COLA) will begin with benefits that more than 48 million Social Security beneficiaries receive in January 2006. Increased payments to 7 million supplemental Security Income beneficiaries will begin on December 30.

Some other changes that take effect in January of each year are based on the increase in average wages. Based on that increase, the maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $94,200 from $90,000. Of the estimated 161 million workers who will pay Social Security taxes in 2006, about 11.3 million will pay higher taxes as a result of the increase in the taxable maximum in 2006.

It is important to note that no one's Social Security benefit will decrease as a result of the 2006 Medicare Part B premium increase, announced last month. By law, the Part B premium increase cannot be larger than a beneficiary's COLA increase. More information about Medicare can be found at www.cms.hhs.gov.

Thursday, November 3, 2005

Tips on Providing for Children with Disabilities

One of the major concerns for parents with children with disabilities is how to provide for their financial future. Here are some tips:
Buy enough life insurance. A parent is irreplaceable, but someone will have to fill in. In all likelihood, that person or family will have to pay for at least some services the parent or parents had provided when able. If the estate is not large enough for this purpose, it can be made large enough through life insurance proceeds. Premiums for second-to-die insurance (which pays off only when the second of two parents passes away) can be surprisingly low.

Set up a trust. Any funds left for a disabled child, whether from an estate or the proceeds of a life insurance policy, should be held in trust for his or her benefit. Leaving money for anyone with a disability jeopardizes public benefits. Many people with disabilities cannot manage funds especially large amounts. Some families disinherit disabled children, relying on their siblings to care for them. This approach is fraught with potential problems. Siblings can be sued, get divorced, disagree on their responsibilities, or run off with the funds. It can also cause tax problems for siblings.

Will/appointment of guardian. While a will and the appointment of a guardian is important for anyone with minor children, it is doubly so if the child is disabled. Finding the right guardian can be difficult. In some cases, the care needs of the child may be so demanding that he or she will need a different guardian from his or her siblings. The will is the vehicle for the appointment of the guardian.

Care plan. All parents caring for disabled children should write down what any successor caregiver would need to know about the child and what the parents wishes are for his or her care. For example, should the child be in a group home, live with a parent, be on his or her own? Usually, the parent knows best, but needs to pass on the information.

Coordination with other family members. Even a carefully developed plan can be sabotaged by a well-meaning relative who leaves money directly to the child with a disability. If a trust is created for the benefit of the child, grandparents and other family members should be told about it so that they can direct any bequest they may life to leave to that child through the trust.

Wednesday, October 5, 2005

Gift Tax Exemption Should Increase to $12,000 in 2006

There is good news next year for those who are wealthy, or just plain generous. The gift tax exemption, now set at $11,000 (per donor, per recipient, per year) will increase to $12,000 on January 1, 2006.
The gift tax exemption amount was stuck at $10,000 for years until it was indexed to inflation in 1998. That number rose by $1,000 in 2002, and next year another similiar increase will be mandated. That means those individuals who have been giving $11,000 per year to each child, for example, should now consider whether to increase that amount. Married couples will be able to give away $24,000 without paying tax.
Note that the gift tax exclusion amount is calculated for each recipient. Thus, if a particularly generous parent wanted to give $55,000 to her five children this year, she would be able to make a total of $60,000 in gifts in 2006. In fact, she could give another $12,000 to each of the children's spouses, and another $12,000 to each grandchild.
Several other aspects of the gift tax exclusion are often misunderstood. First of all, the exclusion is not the government's way of saying you are not permitted to make larger gifts. In fact, if over your lifetime the amount you give in excess of the exemption amount does not add up to another $1,000,000 you will not pay any gift tax at all. You will have reduced your estate tax exemption amount, and you will have had to file a gift tax return, but you will not have incurred any additional tax.
Another common misunderstanding: your gifts (of any amount) will not have any direct effect on either your or the recipients' income taxes. Gifts are not deductible to you, and they are not taxable income to the recipient (not that this generalization may not be exactly accurate if you pay more than half of the expenses of your recipient; you may be able to at least claim the recipient as a dependent).
Another little-known quirk in the gift tax law: direct payment of medical or educational expenses will not get calculated as part of the $12,000 limit. In other words, you can pay a grandhild's private school tuition, or college expenses, and still make another $12,000 gift (after the first of the year, of course). You can pay your father's nursing home expenses without having to worry about gift tax consequences. But this rule does require that you make the payments directly; you should not give your grandson $40,000 and make him promise to use it for tuition - you need to write the check directly to the college he will be attending.
Another common confusion: the gift tax and the estate tax are no longer closely coupled. While lifetime gifts of over $1,000,000 will be taxed, an estate of $2,000,000 can be passed to heirs without taxation beginning in 2006.

Source: Elder Law Issues, Volume 13, Issue 14.

Thursday, September 29, 2005

Durable Powers of Attorney: One Size Does NOT Fit All

For most people, the durable power of attorney is the most important estate planning instrument available, even more useful than a will. A power of attorney allows a person you appoint, your "attorney-in-fact: to act in your place for financial purposes when and if you ever become incapacitated.
However, instead of the one-size-fits-all powers that many lawyers prepare (and that are found in office supply store forms), each document should be custom-drafted to fit your particular needs, according to an article on the MSN Money web site.
For guidance on ensuring that powers of attorney are properly crafted, MSN Money consulted ElderLaw attorneys and they suggest asking your lawyer point blank whether your durable power will be like every other one he or she drafts. If the answer is yes, he advises, find another lawyer. Likewise, they recommend asking, "What information do you need from me to draft my power of attorney?" "I(f he says he doesn't need anything, you don't want that lawyer."
A good power of attorney might contain many pages spelling out the things the agent can and cannot do on your behalf, such as make deposits, write checks from your accounts, sell real estate, sue someone who owes you money, make chartiable gifts, draw down your 401(k) plan in specific circumstances, or receive compensation for his or her work. Making your intentions clear is the key.

Source: MSN Money Article, www.msn.com

Thursday, September 22, 2005

Planning for unmarried and same-sex couples

New York is only one of four states that still has not defined what marriage consists of, leaving many couples confused and unprepared for the future. The majority of the other states define marriage as a union between one man and one woman. This issue may not seem important, but there are over fifteen hundred federal and state laws (including child visitation rights, power of attorney, and tax benefits) in which benefits, rights and privileges are contingent on marital status.
New York has made the news recently because of the landmark decision of Hernandez v. Robles which holds that denying marriage to same-sex couples violates New York’s constitutional guarantees of equality, liberty and privacy for all New Yorkers. The trial court decided the case in February 2005 and the case was appealed to the appeals court with oral arguments scheduled to start in the fall. The trial court decision means that the New York City clerk may no longer deny marriage licenses to same-sex couples. Since the case was appealed, the judge’s decision is not yet valid.
State Supreme Court Justice Doris Ling reasoned it unfair that in New York the "plaintiffs couples may not own property by their entireties; file joint state income tax returns; obtain health insurance through a partner's coverage; obtain joint liability or homeowner's insurance; collect from a partner's pension benefits; have one partner of the two-women couples be the legal parent of the other partner's artificially inseminated child, without the expense of an adoption proceeding; invoke the spousal evidentiary privilege; recover damages for an injury to, or the wrongful death of, a partner; have the right to make important medical decisions for a partner in emergencies; inherit from a deceased partner's intestate estate; or determine a partner's funeral and burial arrangements."
In addition to marriage, New York has no laws either allowing or prohibiting domestic relation agreements or civil unions between same-sex couples. Unlike marriage, civil unions and domestic partnerships are invalid outside the state in which they occur and do not provide any federal marriage benefits. Because New York does not have any civil union laws giving certain rights to gay and lesbian couples, it is important to create a domestic relationship agreement with the help of a knowledgeable estate planning attorney.
It is crucial to plan ahead because unmarried partners face a lot more obstacles than their married counterparts. Issues that affect domestic partners such as power of attorney have recently surfaced in the wake of Terri Schiavo case. In addition, if you plan on sharing all or even a part of your estate with your partner, it is critical that the details are recorded in a written document. If you are currently living together with a partner, it may be necessary and surely advisable to speak to a specialized estate planning attorney to help create a domestic relationship agreement to ensure that you and your loved ones are protected.

Wednesday, September 14, 2005

Family Health Care Decisions Act - Part 2

Surrogates can make decisions to withhold or withdraw life-sustaining treatment if treatment would be an excessive burden to the patient and the patient is terminally or permanently unconscious, or if the patient has an irreversible or incurable condition and that treatment would involve such pain and suffering that it would reasonably be deemed inhume or “excessively burdensome” under the circumstances. The determination of terminal illness, permanent unconsciousness, or irreversible or incurable condition must be made by two physicians in accord with accepted medical practice. It is important to note that at any time, a patient, surrogate, or parent of a minor child may revoke consent to withhold or withdraw life-sustaining treatment by notifying a physician or member of the nursing staff.
Hospitals and nursing homes must also adopt written policies requiring implementation and regular review of decisions to withhold or withdraw life-sustaining treatment, in accord with accepted medical standards. In addition to adopting written policies, hospitals and nursing homes must also establish ethics review committees. Committees must be interdisciplinary and include at least two individuals who have demonstrated an interest in or commitment to patients’ rights. In a nursing home, committees must include a member of the resident’s council or someone who is not affiliated with the facility but who has or had a family member as a resident.

Because more people, including surrogates, professionals, and committee members, are now involved in the decision making process, liability issues naturally arise. An important provision of proposed Article 29-D is that it protects surrogates, health care professionals, and committee members from both civil and criminal liability. As long as a member acts in good faith, he or she is protected from civil and criminal liability as well as charges of professional misconduct.
Even though our current law does not explicitly recognize the authority of family members to consent to treatment of an incapacitated patient, health care providers usually turn to family members for consent. So in that regard, the proposed bill codifies an already accepted practice. However, the New York Court of Appeals has ruled that family members or others close to patients cannot decide about life-sustaining treatment in the absence of a healthcare proxy. The Family Health Care Decisions Act will finally allow for a family member to decide to forego or continue life-sustaining treatment for a patient. This proposed change in the law will add New York to the majority of states that already permit family members to make life-sustaining treatment decisions. More importantly, this proposal would minimize disputes over decision making authority and would keep decisions at a informal personal level with minimal court involvement. Families will finally have access to incapacitated patients’ medical records allowing them to decide what treatment is in their loved one’s best interests.
It is critical to understand that although Family Health Care Decisions Act is an important and necessary step for New York, it does not replace the need for a health care proxy. The purpose of this legislation is to provide an acceptable substitute process in the event there is no health care proxy. Everyone over 18 years of age, regardless of health condition should have a health care proxy as it will always remain the preferred method of planning for incapacity.

Thursday, September 8, 2005

Family Health Care Decisions Act - Part I

Family Health Care Decisions Act

Under current New York law, if one becomes incapacitated, and is no longer able to make health care decisions, there is no person (spouse, child, or otherwise) who can legally make those decisions. In order to have someone make medical decisions for another in New York, a person must have a health care proxy. A health care proxy allows adults to delegate authority to another adult to decide about all health care treatment, including life-sustaining measures in the event patients are unable to decide about treatment for themselves. If there is no health care proxy, only a court-appointed guardian can make health care decisions for an incapacitated individual. Court proceedings are usually burdensome, lengthy, and expensive. Few families have the emotional or financial resources to pursue judicial relief in these unfortunate situations. And we are all too familiar with cases spiraling out of control such as the case of Terry Schiavo. The end result in many cases is that some incapacitated individuals are denied specific treatment, while others may receive treatment that violates their wishes along with their religious and moral beliefs. Proposed legislation would help to avoid future situations like the Schiavos’ by filling the void in the law regarding the authority to make health care decisions for a family member without a health care proxy.
Our current law is at odds with at least 26 other states, where either statutes or court decisions expressly permit family members to decide about life-sustaining treatment. Along with Missouri, New York is the only state that explicitly denies family members this authority. The proposal would amend the Public Health Law and bring New York up to date with the majority of other states. The new proposed Family Health Care Decisions Act (article 29-D of the Public Health Law), would finally grant family members and close friends the authority to make health care decisions in the event a loved one becomes incapacitated.
The proposed legislation has three main sections in which it outlines the proper procedures to use in event someone close to you becomes incapacitated. First, it creates a process for determining incapacity. Second, it establishes a priority list of people who may act as surrogate. Third, the proposed legislation sets specific standards for surrogates’ decisions.
Under the proposed bill, there would be a presumption that every adult has the capacity to decide about treatment unless otherwise determined pursuant to the procedures set forth in the bill, or pursuant to a court order. An attending physician must determine that a patient lacks capacity to make health care decisions. In a residential health care facility, at least one other health care professional must concur. In a general hospital, the concurrence is only necessary for a decision to forgo life-sustaining treatment. Hospitals must draft and adopt written policies identifying professionals qualified to provide the concurring opinion.
The bill proposes that patients remain empowered and make a final decision regarding their capacity, surrogates, and health care options. If a patient is declared incapacitated, health care professionals must inform the patient of the determination of the incapacity. If the patient objects to the determination of incapacity, the appointment of a surrogate, or to a surrogate’s decision, the patient’s objection prevails, unless a court determines otherwise.
The bill creates a list of possible surrogates and their order in making decisions. A surrogate is defined as a person selected to make a health care decision for a patient. The order of authority is as follows:

1. court-appointed guardian
2. spouse
3. adult son or daughter
4. a parent
5. an adult brother or sister
6. a close adult friend or relative familiar with the patient’s personal, religious, and moral views regarding health care.

It is important to note that courts can appoint any person from the surrogate list to act as surrogate, regardless of that person’s priority on the list if the court determines that such appointment would best accord with the patient’s wishes.
The surrogate will be able to make all the health care decisions for the patient that the adult patient could make for himself or herself. A decision by a surrogate cannot supercede or override prior decisions or wishes, whether orally or written, by a competent patient. Surrogates must decide about treatment based on the patient’s wishes, including the patient’s religious and moral beliefs. If a patient’s wishes are not known, the surrogate must try to make a decision that would be in the patient’s best wishes. Also, Surrogates have a right and duty to obtain any information regarding a patient’s condition. In addition, health care providers have a duty to give the surrogate medical information and clinical records necessary to make informed decisions for the patient. Presumably, this language should allow a Surrogate to obtain medical information and/or documentation notwithstanding HIPAA confidentiality rules.
Health care providers are not at the mercy of the surrogates, however. The bill grants surrogates the authority to consent to and to refuse treatment, but does not obligate health care providers to offer or provide treatment that they would have no duty to offer or provide to a competent patient because the treatment is medically futile or inappropriate. Health care providers are able to support their conclusion by referring to its ethics committee guidelines. However, if any hospital or attending physician refuses to honor a health care decision made by a Surrogate, the hospital will not be entitled to compensation for treatment or services provided without the Surrogate’s consent.

Thursday, September 1, 2005

Estate Planning for Unmarried Couples Can Be More Complex

The American legal system makes assumptions about married couples. For example, default provisions give a husband or wife the power to make at least some medical decisions for a spouse who is no longer competent to direct his or her own treatment. The surviving spouse usually has first priority to administer a deceased spouse's estate, and will usually inherit most of the estate if the deceased spouse did not sign a will.
None of those automatic protections apply to unmarried couples, regardlesss of the strength or duration of their commitment. Many heterosexual couples chose not to marry for one reason or another, and thereby forgo the protections and benefits of marriage laws. Gay and lesbian couples, of course, are not provided an opportunity to duplicate the marriage relationship except in narrow circumstances.
That makes estate planning much more important for couples who are committed to one another but unmarried - for whatever reason. A sampling of the issues faced by such couples:
Powers of Attorney. Neither partner will have any automatic right to make decisions for the other in the event of a medical catastrophe. In fact, neither partner will have any right to visit the other in the hospital setting, to talk to doctors or even to get status reports.
Living Wills. Without clear instructions (and a health care proxy), each partner runs the risk of leaving family members in charge of their medical decisions. That may be fine for some, but terrifying for others.
Wills and Trusts. Assuming that each paratner wants to share a part of his or her estate with the survivor, it is essential that those provisions be reduced to writing. Relying on the goodwill of family members, or spoken (even clearly spoken) instructions, is simply begging for legal trouble, expense and personal devastation for the survivor.
Partnership agreements. If partners have any desire to protect one another (and, not incidentally, to minimize legal costs and acrimony) in the event that the relationship should end, then a written agreement is a necessity. Simply placing assets in joint names may not be sufficient, and may even be dangerous in ways not experienced by married couples. The partnership agreement may resemble a prenuptial agreement often signed by married couples.
Joint parenting agreement. Family realtionships are much more complicated today than the legal system is prepared to address. Unmarried couples, even same-sex couples, may have adopted one another's children, or jointly adolpted a child not biologically related to either of them. If one partner dies or the couple splits up, parenting and even visitation rights may be difficult to address. A written agreement may help ease the transition.

Source: Elder Law Issues, Volume 12, Issue 51.

Thursday, August 25, 2005

New Bill Affecting Disposition of Remains

A new bill has passed through both houses of the New York State legislature last week relating to the rights of certain individuals of a decedent to control the disposition of such decedent's remains regardless of whether of a written document exists. The bill creates a priority list of those persons who may have the right to control the disposition of the decedent's remains if no written instrument specifies. In other words, the bill creates a list of people who can carry out their loved ones' burial wishes, whether it be a cemetery burial, cremation, or even donating the body and organs to medical school.

One major part of the bill gives domestic partners the same priority status as surviving spouses. The bill defines domestic partnerships using three categories. First, a domestic partner is anyone who is formally a party in a domestic partnership under the laws of the United States or of any state, local, or foreign jurisdiction. Second, if there is no formal domestic partnership, then the surviving partner must be formally recognized as a beneficiary or covered person under the other partner's employment benefits or health insurance. Lastly, if the partners do not meet either of the previous two requirements, they would have to provide documentation for proof of six months of cohabitation to show dependence or mutual independence on the other partner for support, indicating a mutual intent to be domestic partners.

The proposed order of people who will have the right to control the disposition and the costs associated are (l) the person designated in a will or other written instrument (such as a proxy); (2) the decedent's surviving spouse or domestic partner; (3) any surviving children over 18 years old; (4) either of the decedent's surviving parents; (5) any of the decedent's surviving siblings; (6) a guardian; or (7) a fiduciary of the deceased's estate.

The bill also creates a standard proxy form authorizing the appointment of an agent along with a space with special directions. The proxy is important because although a person can specify her wishes in a will, wills are not generally probated until long after death wheras disposition normally happens within a week after death. Overall, this bill fills an important gap in health law by allowing people to plan ahead to ensure their wishes are carried out at their time of death without any confusion and court proceedings over the very private matter of disposition of their remains.

Thursday, August 18, 2005

Medicare Part D - Part 2

What happens if I have Medicaid?
If you currently have Medicaid, you will lose your Medicaid prescription drug coverage on January 1, 2006 and will automatically be enrolled in a new plan through Medicare. In October 2005, letters will be mailed out to Medicaid recipients alerting them which plan they will be enrolled in if they do not choose one by December 31, 2005. In order to make sure that your drugs will be covered, you should select a plan that suits your needs.

What about my Medigap plan?
Starting January 1, 2006, any person enrolled in Part D cannot buy or renew Medigap plans H, I, and J. If you have a Medigap H, I, or J plan and want to keep its prescription drug coverage, you cannot enroll in Part D. But, if you choose to later enroll in a Part D plan and lose your Medigap drug coverage, you will be charged a penalty premium. If you want to keep your Medigap plan and enroll in Part D, your Medigap plan will be modified to exclude prescription drug coverage after Part D becomes effective and your premium will be modified accordingly.

Can I supplement my Part D drug coverage at all?
Yes, individuals who enroll in Part D prescription drug coverage can still supplement their coverage from other sources. Supplemental coverage can either offer more comprehensive coverage than Medicare or it may choose to wrap around the Medicaid Part D benefit and help with cost sharing. One option is help through a state pharmacy assistance program (such as EPIC in New York). Employers and unions can also choose to help with supplemental coverage as well.

What about my Medicare discount prescription drug card I have?
The Medicare discount card program will be phased out once the Part D prescription drug benefits begin. The program will be discontinued either when your Part D plan takes effect or at the end of the initial enrollment period on May 15, 2006, whichever comes first.

When and how can I sign up?
There is a six month initial enrollment period starting on November 15, 2005 and continuing until May 15, 2006. If you enroll before or on December 31, 2005, your new plan will start on January 1, 2006 and you will see no lapse in coverage. If you choose to enroll after January 1, 2006, your plan will start on the 1st of the following month. You can currently apply for low income assistance either through Social Security (www.ssa.gov) or through your state Medicaid office. To enroll in a Part D plan, you will apply directly to Medicare (www.cms.gov) but can only apply once the enrollment period begins.

What should I do?
Since Medicare Part D is new, there are still many uncertainties regarding changes in coverage. It is advisable to speak to a knowledgeable Elder Law attorney aware of all the intricacies of Medicare law in order take full advantage of the new Medicare drug coverage.

Thursday, August 11, 2005

What is Medicare Part D? - Part 1

What is Medicare Part D?
Starting January 1, 2006, Medicare will begin to offer prescription drug plans to help with paying rising drug costs. To be eligible for Medicare Part D, you must be enrolled in either Medicare Part A or B. It is important that you understand the changes affecting your prescription drug coverage choices. If you currently have Medicaid drug coverage, you will lose it and automatically be enrolled in a new plan through Medicare. You will still have your other Medicaid benefits. There are a number of different prescription drug plans (called “PDPs”) available through Medicare Part D that are offered by private companies. Some plans will offer drugs that other plans do not so it is important to carefully select the right PDP for you to make sure that your medication is included under the plan. Information about specific PDPs will be made available starting in October 2005.

Do I have to have Medicare Part D? And if so, what will it cost me?
No, you do not have to enroll in Part D. It is completely voluntary and you may continue to keep your current prescription drug coverage (either through your employer, union, etc) if you wish. If you later decide to enroll in Part D, however, you may be faced with a late enrollment penalty.
If you decide to enroll in the basic benefit plan, there will be an approximate drug coverage premium of $37 a month. You also have to pay a $250 deductible and then 25% co-insurance for drug costs. If your drugs cost more than $2,250 for the year, you will have to pay 100% of the cost until the cost of covered drugs reaches $5,100 (called a “doughnut hole”). Therefore, beneficiaries will have to pay a total of $3600 of out of pocket costs before Medicare will begin to pay 95% of the formulary drug prices.
Only out of pocket costs for formulary drugs that are paid for by you, a family member, or another person acting on your behalf, or a state pharmacy assistance program count toward your annual out of pocket limit of $3600. Payments by other insurance (such as employer or union plans) do not count. After $5,100 in total expenses, you will receive catastrophic coverage and will only have a 5% coinsurance or a co-payment of $2 for generic drugs or $5 for brand name drugs, whichever is greater.
If you qualify for low income assistance, costs will decrease dramatically. People currently receiving Medicaid, MSP, or SSI will automatically receive low income assistance and will only pay a small co-payment for prescription drugs. Other people will be eligible for low income assistance if their income is less than 150% of the federal poverty level ($14,595/year or $19,485 for a couple) and have limited resources($10,000 or $20,00 for a couple).

What should I think about when selecting a Part D plan?
It is important to realize that all plans are not created equal. Plans are likely to vary not only in the cost but also in the type of drugs offered. PDPs are given flexibility as long as the total value of their plan is the same as the basic benefit. Therefore some plans may have higher co-payments than others while others have lower premiums.
In addition, PDPs have considerable discretion to decide which specific drugs to include on their formularies. Therefore, PDPs do not necessarily have to pay for all the drugs that are covered by Medicare Part D. If you need a drug that is not on your plan’s formulary, you will have to pay full price for the drug. Additionally, payments for non-formulary drugs will not count toward your out of pocket expenses. Each PDP also gets to decide which pharmacies to use. It is possible that a nursing home will no longer be able to receive residents’ drugs from a single pharmacy but will have to deal with a number of pharmacies since residents are likely to have different PDPs.
Plans can vary on a wide array of matters. Some plans might also include options for mail-order drugs. Additionally, plans may place limitations on the number of prescriptions per month or the number of pills allowed per prescription. Each plan may have a different procedure and steps to go through for an appeal to get your medicine because the plans are offered by a multitude of private companies rather than a single entity. Because of all the variations in Medicare Part D plans, it is extremely important to carefully choose and select a plan that meets your needs.

Monday, July 25, 2005

Time is Running Out! Seminar Invitation

Medicaid has long served as a safety net for middle class seniors faced with the catastrophic cost of a nursing home. This program is currently under attack and likely to change. Learn how to PLAN NOW before the window closes forever. Don't limit your options and jeopardize everything you've worked a lifetime to acquire.

NOW, more than ever, it's important to learn the answers to these crucial and timely questions:

If I put together a plan right now to protect my assets from a nursing home, will I be grandfathered in?

What will Medicare cover?

If I can't rely on Medicaid in the future to pay for long term care costs, what exactly should I be doing now?

I want to learn from the Terri Schiavo case...Do I need a Health Care Proxy or a Living Will or both?

What exactly is a Living Trust?

If I become incapacitated, how will my finances and medical decisions be handled?

Do I really need a will?

I have a disabled child. How can I protect and provide for that child when I can no longer do it myself?

What is the difference between Revocable and Irrevocable Trusts?

Join Long Island's Elder Law, Special Needs and Estate Planning Firm for the one FREE seminar you can't wait to attend! Discover why planning NOW is more important than ever.

Presentation and Luncheon
The Islandia Marriott
3635 Express Drive North

Seminar and Lunch are FREE, but reservations are required. Call today to reserve your place...bring a friend. Call 631-234-3030 or email JGrisolia@Davidowlaw.com.

Thursday, July 14, 2005

Things to Think About Before You Relocate Your Elderly Parent

Your home is now miles and hours away from your parent. The best thing would be to move Mom or Dad closer…or would it? There are a lot of reasons why it might make sense to relocate an aging parent closer to the rest of the family.

But, before you suggest a move, give it some serious thought. Be sure that this move would really be the best thing for all of you. Once you have made the commitment to relocate, it will be next to impossible to undo.

Following are some important things to think about before you make the decision to relocate an older person:

1. Can my elder get along without me (at least for a while?)

If my elderly parents don’t depend on me for regular assistance now, can the move wait until I have had a chance to learn about local elder resources here?

If I am working long hours, how much will I be able to assist my parent after the move?

Who will select, pack, or sell possessions? Will a house have to be sold?

2. Social Life

Is my elder confident enough to venture out and to make new friends in a strange place? Will he/she be leaving a good network of supportive friends?

If my aging parent is driving on familiar streets now, will he/she be able and safe to do so on unfamiliar territory, where the traffic may be much heavier? Is transportation available, or will I have to be the chauffeur?

3. Important Medical Questions

Does my elder have a long and close relationship with current physicians? Can we find equivalent physicians who will treat an elderly person? Many specialists, in particular, have reduced or closed their Medicare practices.

Will health insurance transfer to this area? HMOs are geographically limited.

Will the climate be a concern?

4. Financial Issues

Is the new cost of living affordable? Social Security and retirement income will not be adjusted if your parent moves to a place with a higher cost of living.

If he/she is currently receiving state benefits or assistance, what will the requirements be to qualify in the new location? Even within the same state, there is often a wait before services resume at a new address.

If a house must be sold, what are the financial (tax and other) consequences?

And, this is the most important question of all…What does the elder think? If he is competent and able to make his own decisions, does he want to relocate? Will you spend hours of effort and anxiety trying to find the “perfect” answer, only to be told to mind your own business?

Source: by Molly Shomer of The Eldercare Team. Please visit Molly’s website at http://www.eldercareteam.com for more elder care articles and important resources for those who are caring for aging adults.”

Wednesday, July 6, 2005

Facts About Long-Term Care

Each year, consumers spend about $40 billion out-of-pocket for long-term care services.1 This does not include the cost of informally provided care; about two-thirds of persons with long-term care needs receive services from unpaid help only.2 Advance planning can help consumers age in place and make optimal use of available services.

About 13 million Americans report having long-term care needs; in less than 20 years, this number is expected to increase by 70% to 22 million people.3 Five percent of the elderly are in nursing homes - about 1.4 million people.4 Approximately 43% of those turning age 65 can expect to spend some time in a long-term care facility, about half of them will require care for three years or more, and 20% will spend five years or longer in a nursing home.5 One in five people who reach age 65 will spend more than two years in a nursing home.6 Rates of nursing home use are declining, associated with an increase in the use of home health care services and alternative residential care services such as assisted living.7 The fact is, 60% of people who turn age 65 this year will need long-term care as they grow older.8
1 Feder, H.I. Komisar, and M. Niefeld, "Long-Term Care in the United States: An Overview", Health Affairs 19 (2000): 40-56.
2 R. Stone, Long-Term Care for the Elderly with Disabilities. Current Policy Emerging Trends, and Implications for the Twenty-First Century (Washington, D.C.: Millbank Memorial Fund, 2000).
3 Facts on Long-Term Care, 1997 (Washington, D.D.: National Academy on an Aging Society, 1997); available at http://www.agingsociety.org/aging-society/publications/fact/index.html.
4 National Nursing Home Survey 1999 (Hyattsville, MD: National Center for Health Statistics, 2000).
5 M. Donald Wright, "Looking Toward the Future with Long-Term Care Insurance" (Financial Gerontology), Journal of American Society of CLU & CHFC51 (May 1997).
6 P.Kemper and C.M. Murtagh, "Lifetime Use of Nursing Home Care." New England Journal of Medicine (3424): 595-600.
7 National Nursing Home Survey 1999.
8 K.J. Mahoney, L. Connolly, D. Phillips, and T. Hayaski, "Increasing Awareness of Long-Term Care Costs and Options, the Early Experience of the California Partnership for LTC," prepared for the Gerontological Society of America, Coston, MA, 1996.

Tuesday, June 28, 2005

The Long Island Community Foundation

The Long Island Community Foundation is a part of the nation’s fastest growing form of philanthropy. The LICF is an economic alternative to a private foundation or a commercial gift fund. The Long Island Community Foundation, a division of The New York Community Trust, distributes more than $12 million annually through the 168 charitable funds that Long Island residents and businesses have set up within LICF. If you are thinking about giving, it is an efficient and hassle-free way of giving to a public charity.

The Community Foundation’s mission is to build a permanent source of private funding for Long Island’s charities. Funds can be named for their donors, for their purposes, or as memorials. The two main types of funds are donor-advised and field-of-interest funds. Donor-advised funds allow donors to participate in the selection of the beneficiaries. Field-of-interest funds enable the Community Foundation to support charitable agencies and organizations within a geographic or charitable area (such as child welfare) specified by the donor. Either way, funds are a great way to create a family legacy and to make a real and lasting difference in the daily life of our community.

In addition to the peace of mind and goodwill of charitable donations, there are several advantages and benefits to creating a fund in the Community Foundation. You will recognize greater tax savings by establishing a fund through the LICF rather than through a private foundation. A fund can be established in less than one day, often with a single page document, whereas a private foundation takes months to establish with lots of expensive paperwork. A fund offers donors maximum tax benefits without the bother of administration. The LICF staff performs all of the administrative work (bookkeeping, accounting, and check writing) and assures that only bona fide charities are supported.

A fund in the Community Foundation is a great way to permanently give back to the community in which you live. A LICF fund allows the joy of giving and the recognition donors expect when they are donating to charity. An experienced estate planning attorney, like the ones at Davidow, Davidow, Siegel and Stern can help assist in any charitable contributions you may want to make.

Log on to the Long Island Community Foundation’s website at www.licf.org for more information.

Monday, June 20, 2005

New Technologies Spot Alzheimer's Beginnings

Even without a cure, early detection is important, experts say...

Two high-tech brain scans and a new blood test can identify Alzheiner's linked neurological changes years before actual symptoms arise, researchers report.

Besides allowing individuals to begin drug therapy early and not wait for the future, these early -detection tests might someday help those take full advantage of preventive therapies.

"We already have medications coming down the pike that already change the course of the disease, " explained William Thies, Director of Medical and Scientific Affairs at the Alzheimer's Association. "As those medications become available, there's going to be a tremendous need to identify Alzheiner's disease earlier and earlier".

Three studes outlining the new screening technologies were presented at the Alzheimer's International Conference on Prevention of Dementia, in Washington, D.C.

One study used positron emission tonography (Pet) Scans hooked up to a specially designed, MRI computer program. That program automatically tracks glucose metabolism in an area of the brain called hippocampus, a key memory center.

"If there's reduced [metabolic] activity there, you have cognitive problems, and are at risk of developing Alzheimer's." The technology grew out of the work from a team who first discovered hippocampal shrinkage to be a harmful indicator of Alzheimer's disease.

Using this computerized scanning technology, the NYU researchers followed 53 healthy participants between 54 and 80 years of age for between 10 and 24 years in a first -of-its-kind, long term experiment. Participants received PET scans at the beginning of the study and then at the three-and-six year mark.

Six of the participants did go on to develop Alzheimer's disease.

Before this, we didn't have any idicators or biomarkers, and now we can finally know what to look for and examine this further in clinical research."

Early detection methods are much further advanced than their development than the blood-based screen. "But obviously, the blood screen is much easier and requires less machinery and fits much easier into the physician's routine.

In the absence of effective treatments, however, does early detection really make sense? Studies now believe that it does.

The impact of the current medications we have is likely to be biggest in the scope of the disease. And Alzheiner's disease is so dislocating for families--knowing ahead of time allows you to plan better for the future in a number of ways. Waiting until symptoms appear--and competency is impaired--may be too late, the affected individual is taken out of the mix, and the family is left trying to interpret what they would want.

The decades long push for effective, preventive therapies may produce fruit. The advent of powerful drugs that fight Alzheimer's will make early detection even more important than it is now. At the same time, advances in imaging technology are fueling this research boom, allowing us to locate and target exactly those areas of the brain most affected by the disease.

For much more on Alzheimer's disease, visit the Alzheimer's Association.

Source: 6/19, HealthDay News, E.J. Mundell.

Wednesday, June 1, 2005

Time is Running Out! Seminar Invitation

The one FREE seminar you CAN’ WAIT to attend.

Presented by Davidow, Davidow, Davidow, Siegel and Stern, Long Island’s Elder Law, Special Needs and Estate Planning Firm.

Medicaid has long served as a safety net for middle class seniors faced with the catastrophic cost of a nursing home. This program is currently under attack and likely to change. Learn how to PLAN NOW before the window closes forever. Don’t limit your options and jeopardize everything you’ve worked a lifetime to acquire.

NOW, more than ever, it’s important to learn the answers to these crucial and timely questions:

• If I put together a plan right now to protect my assets from a nursing home, will I be grandfathered in?
• What will Medicare cover?
• If I can’t rely on Medicaid in the future to pay for long term care costs, what exactly should I be doing now?
• I want to learn from the Terri Schiavo case…do I need a Health Care Proxy or a Living Will or both?
• What exactly is a Living Trust?
• If I become incapacitated, how will my finances and medical decisions be handled?
• Do I really need a will?
• I have a disabled child. How can I protect and provide for that child when I can no longer do it myself?
• What is the difference between Revocable and Irrevocable Trusts?

Choose from these two seminars:

Wednesday, June 22nd at 10:00am
Breakfast Buffet and Presentation
Riverhead Polish Hall
214 Marcy Avenue, Riverhead


Tuesday, June 28th at 6:00pm
Dinner Buffet and Presentation
The Milleridge Inn
585 North Broadway, Jericho

Reservations are required. Call 631-234-3030 or email JGrisolia@Davidowlaw.com to reserve your seats. Discover why planning NOW is more important than ever!

Thursday, May 26, 2005

Democrats to Boycott Medicaid Commission

Congressional Democrats have found the details of the Medicaid Commission to be established by the U.S. Department of Health and Human Services (HHS) so objectionable that they have already announced that they will not fill the four seats reserved to them on the 38-member panel.

A Federal Register notice published this week, reveals that the commission will comprise three separate "member groups." The first group, fifteen "voting members," will be the only commission members who can vote on recommendations. This group will be made up of former or current governors, three representatives of public policy organizations "involved in major health care policy issues"; former or current state Medicaid directors; individuals with "expertise in health, finance, or administration"; federal officials who administer programs that serve the Medicaid population; the HHS Secretary or his designee; and ex official members. All fifteen of these voting members will be appointed by HHS Secretary Michael Leavitt.

Leavitt also will have the exclusive authority to appoint the second member group, fifteen "nonvoting" members. These individuals "will include State and local government officials" and "consumer and provider representatives." The third member group, also without voting rights, was to consist of eight individuals currently serving in-an appointed by-Congress. In the Senate, the majority leader, minority leader, and chairman and ranking member of the Senate Finance Committee would appoint one person each. In the House, the speaker, minority leader, and chairman and ranking member of the House Committee on Energy and Commerce would each make an appointment.

However, at least half of the seats designated for congressional representatives will not be filled due to the Democrats' objection over the monopoly Leavitt will have on the commission's voting membership. The Democrat minority leaders in the Senate and House and ranking members of the Senate and House Committees announced that they will not exercise their authority to appoint members to the commission. Senate Minority Leader Harry Reid (D-NV) and House Minority Leader Nancy Pelosi (D-CA) claimed in their statements that "an invitation to Democrats to select four Members of the Senate and House to advisory roles without a vote is wholly inadequate to lend any Commission even the air of bipartisanship."

Democratic criticism of the commission is not limited to its membership but extends to its mission as well. The commission's first order of business will be to recommend to Leavitt by September 1, 2005, where $10 billion should be cut from Medicaid. Reid and Pelosi object to that assignment:

We fundamentally disagree with the premise that this Commission should make recommendations on how to cut Medicaid outlays by $10 billion by September 1...If Congress can decide how much to cut, it does not need a Commission to figure out how to cut the program. To the contrary, it is the responsibility of the elected Congress to make such cuts, and members who support those cuts should be held accountable for those decisions.

After submitting its initial recommendations, the commission will be charged with "making longer-term recommendations on the future of the Medicaid program that ensures the long-term sustainability of the program." The latter recommendations will be due by December 31, 2006.

Source: National Senior Citizens Law Center, Washington Weekly, Vol. XXXI, Issue No. 21.

Wednesday, May 18, 2005

Congress Cuts $10 Billion from Medicaid

The U. S. Congress agreed this week on a $2.56 trillion fiscal year (FY) 2006 budget resolution that includes a $10 billion cut in Medicaid expenditures over the next five years and $106 billion in tax cuts over the same time period. Because the budget resolution only sets the parameters on Congress' spending for the coming fiscal year, no details on the method by which Congress will achieve the Medicaid cuts are included. However, the sheer size of the cuts agreed to for the Medicaid program, which serves more than 50 million U.S. citizens, will undoubtedly translate into substantial reductions in either enrollment or services.

Earlier this month, the Senate and House passed budgets that contained radically competing proposals on Medicaid. While the House decided to cut Medicaid by $14 billion over five years, the Senate's budget omitted any cuts and instead set aside funds for the creation of a Medicaid Commission to consider possible changes to the program. Because of the importance that President Bush and various members of Congress have placed on reducing entitlement spending in order to cut the federal deficit in half by 2010 (a deficit which will exceed $400 billion in FY 2006), the competing Medicaid proposals stood to derail the budget conference at which the respective bodies were to harmonize their differing budget proposals.

The potential for derailment appeared to heighten recently when the 44 House Republicans delivered a letter to House Budget Committee Chairman Jim Nussle (R-La.) requesting that the Medicaid cuts in the House's budget resolution be erased. Then came a Democratic motion at the beginning of this week to instruct the House-Senate budget conferees to eliminate the Medicaid cuts from the FY 2006 budget. This motion, nonbinding and somewhat weak in form, passed the House by a vote of 348-72, and appeared to set the stage for a dramatic conference fight over Medicaid.

However, the budget conferees only needed a day to neotiate the budget and agreed to the $10 billion over-five-years Medicaid cut. The Senate and House immediately thereafter voted in favor of the conference's agreement. News reports indicate that the agreement was reached after Senator Gordon Smith (R-Or.), considered the leader of moderate Republican opposition to Medicaid cuts, was promised that the Medicaid commission he has called for would be created. Details relating to the committee are still being worked out, but initial reports indicate that the committee will be charged with providing recommendations on changes to the program no later than September 1, and that all commission members will be appointed by President Bush. The legislation Senator Smith sponsored earlier this year called for a bipartisan commission that would be allowed an entire year to consider program changes.

Specifics of the cuts will now be left to the Senate Finance Committee and House Energy and Commerce committee to decide on, and their proposals will only require a bare majority of each chamber before being submitted to President Bush. Because the fundamental elements of the president's own FY 2006 budget proposal - large reductions in entitlement spending more than matched with larger tax cuts-have essentially been adopted by Congress, it is likely that the president will sign what Congress presents.

Source: National Senior Citizens Law Center, Washington Weekly, Vol. XXXI, Issue No. 17.

Thursday, May 5, 2005

Capital Gains Laws Changing Soon

A life estate is created when you transfer ownership of your house to someone else (usually your children) but reserve the right to exclusive use and occupancy for the rest of your life. After Medicaid "look-backs" and penalties have run their course, the house is deemed protected from Medicaid, should you need it. After your death, the life estate is extinguished and your children own the house.
How it works: Under current law, when your children sell the house, capital gains tax is assessed only on the increase in the property's value from the date of your death until the sales date, often a relatively short period of time. However, new rules are scheduled to come into effect in 2010 (or sooner) that measure the gain in the property's value from the purchase price, plus capital improvements, to the sales price. So, if you paid $10,000 for the house 40 years ago and added $40,000 in improvements over the years, your "tax basis" would be $50,000. If your heirs sold the property for $300,000, they'd have a $250,000 captial gain on which they would owe taxes.
The Strategy: There are two major Medicaid planning techniques that can be used to save your house: life estates and irrevocable trusts. Each technique carries certain tax consequences, which change often (even the 2010 law might be repealed in 2011). Life estates are common, but limit your ability to sell your home without causing other Medicaid and tax problems. And, if the capital gains tax rules change as anticipated, another benefit of life estates may no longer be available.
Consult with a certified elder law attorney about long-term care financing strategies, including the possibility of an irrevocable trust, which will no limit you from selling the house during your lifetime.

Monday, April 25, 2005

Social Security: Not Just for Retirees

The rate of return debate diverts attention from the fact that Social Security is much more than just a successful retirement program. Retired workers account for only 29,953,000, 62.8 percent of Social Security's 47,688,000 beneficiaries. More than 3 million beneficiaries are spouses and minor or disabled children of retired workers, while almost 7 million are survivors of deceased workers. Close to 8 million are disabled workers and their spouses and children. To put a human face on this, several members of the House of Representatives have disclosed that they lost their parents early in life and were brought up with the assistance of Social Security survivor's benefits. These include two of the five Democrats on the Social Security Subcommittee, Rep. Earl Pomeroy (ND) and REp. Richard Neal (MA). Rep. Barney Frank (D-MA) and Rep. Rush Hold (D-NJ) also received survivors' benefits.
Since retirees account for only 62.8 percent of Social Security beneficiaries, if one were to accept the notion of comparing rates of return between Social Security Retirement and private accounts, the proper comparison would be with a reduced percentage of net earnings on private accounts in order to allow for the Social Security money used to fund non-retirement benefits.

Source: Washington Weekly, Vol. XXXI, Issue 6, February 2005.

Alzheimer's Aid
According to Boston University researchers, brightly colored plates might help Alzheimer's patients finish meals. Patients often have trouble distinguishing objects from backgrounds.

Monday, April 18, 2005

Clothing Gifts No Longer Count as Income Under New SSI Rules

The Social Security Administration (SSA) will no longer count gifts of clothing as part of income or household goods as resouces in deciding whether a person can quality for Supplemental Security Income (SSI) benefits under final rules just issued.
First, the agency is eliminating clothing gifts from the definition of income and from the definition of in-kind support and maintenance. As a result, it says it generally will not count gifts of clothing as income when deciding whether a person can receive SSI benefits or when it computes the amount of the benefits.
Second, SSA is eliminating the dollar value limit (previously $2,000) for the exclusion of household goods and personal effects. As a result, the agency will not count household goods and personal effects as resources in deciding whether a person can receive SSI benefits.
Third, the SSA is changing its rules for excluding an automobile in determining the resouces of an SSI applicant or recipient. It will exclude one automobile (the "first" automobile) from resources if the vehicle is used for transportation for the individual or a member of the individual's household, withouth consideration of its value.
The regulations took effect March 9, 2005.

Source: The ElderLaw Report, Vol. XVI, No. 9, April 2005.

Monday, April 11, 2005

Terri Schiavo: The lesson from the loss

If we can all agree upon one thing, it is that similar situations can be avoided with advance planning and discussion with family members. Elder Law attorneys are uniquely qualified to assist individuals and their families when confronted with difficult decisions regarding medical treatment, or the withholding of medical treatment. Although court-appointed guardians can usually make healthcare decisions, including end-of-life decisions, an individual is far better served by executing an advance directive which can be in the form of a living will, health care proxy or a combination of these documents. A living will is an expression of how the individual wants to be treated during end-of-life care. The health care proxy is a delegation of authority to a third party to make healthcare decisions for the individual when the individual is unable to do so. All 50 states and the District of Columbia impose statutory requirements on the content and execution of health care proxies for them to be valid. However, New York does not have statutory law regarding the creation of a living will.

Should an individual use a Health Care Proxy and/or a living will? Some claim that the use of a living will is a failure because individuals lack the knowledge to make intelligent decisions in advance, and so their preferences are not adequately articulated in the living will. Others note that too often living wills are not accepted by third parties. Since New York does not recognize living wills, they are instead treated as a statement of the individual's values. Davidow, Davidow, Siegel & Stern recommend a combination of a living will and a health care proxy; we call this an advance directive. The living will is needed to state the individual's preferences and the health care proxy is needed to appoint an agent as well as a successor agent, and authorize the agent to implement the individual's preferences.

Davidow, Davidow, Siegel & Stern discuss with all their clients, how to make the existence of the client's advance directive known to the client's family and physicians. At a minimum, the client should have a candid and frank discussion of the advance directive and the client's healthcare preferences with the client's immediate family, healthcare agents and primary care physician, and provide each of them with copies of their advance directives.

Sunday, February 27, 2005

Right to a BedHold During Readmission into a Nursing Facility

If a resident must leave a Nursing Facility to be hospitalized for a specific medical condition, most states will authorize nursing facilities to hold a bed (hereinafter referred to as a bed hold) for a certain period of time. The bed hold can either be privately paid at the Nursing Home's private pay rate, or if the home resident returns to the facility within 15 days or less.

Federal law requires that all nursing facilities notify residents and/or potential residents of their bed hold rights during the admission process. This notification must not only include the facility's bed hold policy but also include Medicaid's payment for bed holds under the applicable state program. Furthermore, when the nursing home resident leaves the faciity due to a period of hospitalization, the facility must again give notification of bed hold policies for both private pay and Medicaid programs. When the resident is to be discharged from a hospital, most residents look to the initial nursing facility they were previously placed for readmittance. Federal law dictates that residents have a right to be readmitted from the hospital to the original nursing facility's next available bed. This is regardless of the length of stay of hospitalization.

Sometimes, on occasion, however, nursing facilities have refused to readmit residents often claiming that the resident is either too difficult or the facility cannot meet the increased needs of the resident. Mostly, these claims are misguided but often succeed because discharge planning from a hospital has to be done on a timely basis. Residents must often find another facility to grant admission before a resolution can be achieved with the initial nursing facility.

If the nursing facility refuses admission, the resident should contact an Elder Law attorney who can either make a complaint with the applicable state agency or file a claim with the local court in order to seek an injunction against the nursing facility. Considering time is often the biggest issue in discharge planning, many residents and their families are forced to accept a "bed" at a new facility rather than wait for readmittance to the original one.

Wednesday, February 16, 2005

Medicare Drug Improvement Act - What's Improving?

Late in 2004, the largest increase in Medicare insurance premiums in 15 years was announced. Most enrollees will pay a Part B premium of $78.20 per month beginning in January 2005, up from $66.60 in 2004. This represents a 17.5% increase in premiums. In addition, the the Part A deductible will increase from $876.00 to $912.00 as will several Medicare co-insurance payments.

Hidden in the Bush administration supported 700+ page Medicare Prescription Drug Improvement and Modernization Act of 2003 were provisions mandating these increased out-of-pocket payments for elderly beneficiaries and those with disabilities. The Act also increased payments to physicians, HMO's (and other managed cost plans now called "Medicare Advantage Plans"), hospitals, pharmaceutical companies and drug distribution companies.

Although the Act provides some coverage for prescription drugs, it prohibits the governement from using its buying power to negotiate drug prices with the manufacturers or from importing less expensive drugs from Canada or Mexico. Robert M. Hayes, president of the Medicare Rights Center, said the increase in out-of-pocket costs will be especially painful to thoe on fixed incomes because Social Security payments are expected to rise only 3%.

"Older Americans already are staggering from the relentless increases in the cost of presciption drugs," he said. "More older Americans will face harsh choices in meeting basic human needs - health, food and housing."

When the Medicare Act's prescription drug plan in implemented in 2006, enrollees in the drug coverage plan will be paying an additional $35 per month in premiums. By then, the typical retiree will be paying more than $115 per month in Medicare premiums in addition to the cost of any Medigap/private supplemental insurance premiums.

There is some good news: low income enrollees who are not on AHCCS, TRICARE for Life, private group or employer group plan with prescription drug coverage or an FEHBP (Federal Employees Health Benefit Plan), may be able to apply for a $600 credit on their Medicare Rx card for 2004 if they applied before 12/31/04 and another $600 credit for 2005.

Source: Never Too Late, November 2004.

Thursday, February 10, 2005

The Top 10 Health Care Mistakes Made by the Elderly

Americans are living longer than ever before, but many older Americans could better deal with their health problems, according to the Institute for Healthcare Advancement (IHA). To help the elderly stay healthier longer, the IHA has identified the 10 most common mistakes older Americans make in caring for their health.

The Institute is a non-profit organization based in La Habra, California, that demonstrates innovative health care practices and educates health care professionals and consumers.

1. Driving when it's no longer safeThe elderly often associate mobility with their independence, but knowing when it is time to stop driving is important for the safety of everyone on the road. Decisions about when to stop driving should be made together with a family physician because chronological age alone does not determine someone's fitness to drive.

2. Fighting the aging process and its appearance
Refusing to wear a hearing aid, eyeglasses or dentures, and reluctance to ask for help or to use walking aids are all examples of this type of denial. This behavior may prevent the senior from obtaining helpful assistance with some of the problems of aging.

3. Reluctance to discuss intimate health problems with the doctor or health care provider Older Americans may not want to bring up sexual or urinary difficulties. Sometimes problems that the individual thinks are trivial, such as stomach upsets, constipation, or jaw pain, may require further evaluation.

4. Not understanding what the doctor told them about their health problem or medical treatment plan "I could not understand the doctor," or "He told me what to do, but you know me, I can't remember what he said" are typical complaints. Reluctance to ask the doctor to repeat information or to admit that they do not understand what is being said can result in serious health consequences.

5. Disregarding the serious potential for a fall Falls result in fractures and painful injuries, which sometimes take months to heal. To help guard against falling, the elderly should remove scatter rugs from the home and have adequate lighting in the home and work areas. They should wear sturdy and well-fitting shoes, and watch for slopes and cracks in sidewalks. Participating in exercise programs to improve muscle tone and strength is also helpful.

6. Failure to have a system or a plan for managing medicines
Missed medication doses can result in inadequate treatment of a medical condition. By using daily schedules, pill box reminders or check-off records, seniors can avoid missing medication doses. Because health care providers need to know all of the medicines that an elderly patient is taking, patients should maintain a complete list of all their prescription and over-the-counter medicines, including dosage and the reason that the medicine is being taken.

7. Not having a single primary care physician who looks at the overall medical plan of treatment Health problems may be overlooked when a senior goes to several different doctors or treatment programs, and multiple treatment regimens may cause adverse responses. The patient may be over or under-treated if a single physician is not evaluating the full medical treatment program.

8. Not seeking medical attention when early possible warning signs occur Reasons for such inaction and denial may include lack of money or reduced self worth due to age. "I am so old it doesn't matter anymore." Of course, such treatment delays can result in a more advanced stage of illness and a poorer prognosis.

9. Failure to participate in prevention programs Flu and pneumonia shots, routine breast and prostate exams are examples of readily available preventive health measures that seniors should utilize to remain healthy.

10. Not asking loved ones for help Many older Americans are simply too stubborn to ask for help, whether due to an understandable need for independence or because of early signs of dementia. It's important that elderly people alert family members or other loved ones to any signs of ill health or unusual feelings so that they can be assessed before the problem advances.

In an effort to help older American become less fearful of medical conditions and more empowered about their health, the IHA has published What to Do For Senior Health, an easy-to-understand, self-help medical book for senior citizens. For more information or to order the book, call (800)434-4633 or go to www.iha4health.org and click on the "Books" and "Bookstore" links.

Thursday, February 3, 2005

Tips on Having "The Talk" with Aging Parents

If you're a baby boomer, you may already have had "the talk" with your growing children. But have you had "the talk" with your aging parents as well?

That talk involves a frank discussion with parents about financial arrangements for the end of life. The discussion should include where the parents want to live, how they want to be cared for, how they want their money managed, and what kinds of burial or funeral arrangements they would prefer.

The start of a new year can be a good time to start thinking about parents' financial affairs, according to an in-depth article in the St. Louis Post-Dispatch on having "the talk".

The hard part about talking with aging parents, according to the article, is that they're used to being in charge, instead of getting advice from their children.

"It's one of the hardest things that we as adult children have to do," says Sandra Timmermann, a gerontologist and director of the MetLife Mature Market Institute. "We have to be brave and take a deep breath and plunge into the cold water."

The article outlines some of the topics that should be covered, including paying for long-term care and setting up powers of attorney, and offers strategies for starting a productive discussion. Some strategies:

*Use your own planning, or a friend's or relative's illness or death, as an opportunity to start a discussion
*Be direct and honest
*If your parents are unwilling to disclose a full list of their assets, perhaps they would be willing to write down account numbers without balances or make a list and tell you where the list is kept
*Meet with a lawyer to review the parents' wills, health care directives and powers of attorney for property and health care
*Don't expect to work out an entire plan for the end of life in one sitting

The full article, appeared in the 1/4/04, St. Louis Post-Dispatch.

Wednesday, January 5, 2005

What is an Elder Law Attorney?

Elder law attorneys are a unique and specialized group of attorneys who focus on the legal needs of the elderly. The concentration of elder law evolved in the mid 80's as the number of elders increased and their legal and financial needs became more complex. An Elder law attorney must consider the ever changing federal, state and local laws affecting such programs as: Medicare, Medicaid, Social Security and SSI when advising the elderly and their families and caregivers. This is an ongoing challenge.

The National Academy of Elder Law Attorneys is the profession association representing the 4,000 elder law attorneys. NAELA offers a special certification for elder law attorneys. A certified Elder Law Attorney(CELA) must meet certain requirements, pass a daylong exam and provide references from their peers. Recertification is required evry five years and to date there are only 300 Certified Elder Law Attorneys nationwide. When selecting an elder law attorney, you may reference The National Academy of Elder Law Attorney's web site, www.naela.com. Under the "Locate an Elder Law Attorney" feature, you will find Davidow, Davidow, Siegel & Stern listed with three CELA's attributed to our firm. In addition, Lawrence Davidow is the President-Elect of this organization for the 2005 term.

Key Questions to Ask the Attorney
*How long have you practiced elder law?
*What percentage of your practice is devoted to elder law?
*Are you a member of the National Academy of Elder Law Attorneys or an elder-law section of the local bar association?
*Are you a Certified Elder Law Attorney (CELA)?
*Do you make "house calls" or visit your clients in a nursing home?

Ways an Elder Law Attorney Can Help You
*Structure your assets to minimize taxes and avoid the inconvenience of probate
*Develop a plan to efficiently use available health insurance options including Medicare and Medicaid
*Establish trust to protect assets and reduce inheritance taxes
*Organize a house transfer to ensure your family keeps your home
*Develop a management plan to handle your finances including using Power of Attorneys, joint accounts and Trusts
*Complete medical advance directives as applicable to your state
*Coordinate your care team to provide home care, assisted living, or nursing home care.
*Advise you of local, state, and federal programs. For example, the New York State Medicaid consumer directed home care program and EPIC, New York State's prescription drug program.

Elder law attorneys, familiar with the medical and psychological issues associated with aging, typically work with other eldercare professionals to help you to access additional services to create a team approach. Included in this "care team" might be the person's doctor, social worker, geriatric case manager, accountant, financial planner and insurance agent. Your elder law attorney can serve as the coordinator of these other professionals all focused on providing you with a personalized plan that best meets your needs.

Source: Current Issues in Elder Law, Vol. 3, Issue 1, Winter 2004