Romney's Plans for Medicaid

As the presidential campaign unfolds, the differences in approaches to Medicare by President Barack Obama and Republican nominee Mitt Romney have taken center stage. But what is getting far less scrutiny: Romney's plans for Medicaid. He would convert the health care program for the poor, disabled and elderly into a block grant to the states and sharply reduce funding over time. Middle-class Americans should be especially wary, since it's Medicaid, not Medicare, that covers nursing home care for aged and infirm parents and grandparents. Without Medicaid's safety net, it isn't clear what those Americans would do, and Romney doesn't have any good answers.

It's an understandable confusion. People think that since Medicare covers medical services for people over 65, it also pays for nursing home care for elderly people. Medicaid is thought of as a poverty program that provides medical coverage to poor families. But Medicaid is the program that provides long-term care to the elderly and disabled, which accounts for 31 percent of the program's $400 billion annual federal and state spending. Most of the nation's 1.8 million nursing home residents, including more than 77,000 Floridians, rely on Medicaid to pay their bills.

Medicaid's nursing home beneficiaries are not necessarily poor people. During their working years they may have lived productive middle-class lives until becoming infirm and quickly exhausting their assets. No matter how assiduously families save for retirement, there aren't many who could long afford the steep costs of a residential nursing home that can run an average of $80,000 a year. Without Medicaid's essential safety net, members of this vulnerable population would be on their own or might be forced to live with relatives ill equipped to care for their intensive needs.

There is an irony to Romney running mate Paul Ryan's applause line at the Republican National Convention last month that "the truest measure of any society is how it treats those who cannot defend or care for themselves." It was Ryan who authored the plan to convert Medicaid from a strong federal-state entitlement to a block grant program to the states that Romney has incorporated into his campaign. The plan, passed as a budget blueprint by the Republican-controlled House, would gut Medicaid's safety net and focus instead on cutting funds. The nonprofit Center for Budget and Policy Priorities says Medicaid funding would decline by one-third by 2022 under Ryan's plan.

To make up the difference, states that are already struggling under Medicaid's rising costs would have to add substantial state money to the program or - more likely - utilize the new flexibility Romney promises to pare back eligibility, reimbursements and enrollment. Estimates are that states would drop between 14 million and 27 million people from Medicaid by 2021, according to the Urban Institute. In addition, Romney's promise to repeal President Barack Obama's health care reform law would impact Medicaid by eliminating expanded coverage of home and community-based services that help seniors live at home. This fits the you-are-on-your-own agenda of the Republican presidential ticket far more neatly than Ryan's rhetoric about caring for those who can't care for themselves.

Medicaid is a lifeline for poor children and families but also for the nation's middle class whose elderly and disabled loved ones rely on it for long-term care.

  Source:  Tampa Bay Times, September 24, 2012

*This is an editorial piece illustrating one man's opinion.  We thought you might be interested to read his view on this heavily-debated topic.  Keep in mind, while contemplating this issue, that nursing homes in the New York area run about $150,000 per year.

5 Things to Discuss Before Retirement

You may have a vision for your retirement, but does your spouse share that vision? Spouses often disagree about many key retirement details. It is important to work together to come up with a plan you both can accept.

A 2011 study by Fidelity Investments found that many husbands and wives are not in accord about retirement. For example, the study found that one-third of couples disagreed or don’t know where they were going to live in retirement and 62 percent didn't agree on their expected retirement ages.

Here are some important things to discuss with your spouse as you get ready to retire:

1. Timing of retirement. There are many factors that can go into a decision about when to retire, including job enjoyment and financial needs. But couples also need to think about how best to maximize their Social Security benefits. Because Social Security doesn't just pay benefits to a worker but also pays benefits to the worker's spouse, couples need to work together to figure out how to get the most out of their Social Security benefits. For example, a husband can wait until his full retirement age to take benefits on his wife's record. When he does, he can get half of her full benefit. The husband can then wait until age 70 to file on his own work record. At that point, the wife can file a spousal benefit on his record. Each circumstance is different and couples should talk to a financial planner about the best strategy for them.  For more on Social Security’s spousal benefits, click here.
2. Finances. The first hurdle is that both spouses need to understand their financial situation. The Fidelity survey found that wives were much less involved in retirement finances than their husbands. Both spouses need a clear understanding of their finances and whether they are working in sync.
3. Type of lifestyle. What do you expect to get out of retirement? Do you want to travel? Do you want to volunteer? Or do you want to relax on a beach somewhere? It is important to have a conversation about your hopes and dreams for retirement. You can start the process by creating individual wish lists and then comparing them.
4. Health care. Make sure you and your spouse have adequate health care coverage either from Medicare or an employer-based plan. You also need to understand the rules regarding Medicare coverage. For more information about Medicare, click here. For more information about when to sign up for Medicare, click here.
5. Long-term care. Unfortunately, most couples are going to need some type of long-term care for either one spouse or both spouses at some point. There are things you can do to make it easier on yourselves if this need arises. Talk to your elder law attorney about putting a plan together. To find an attorney near you, click here. Doing it early will save lots of headaches and expense later.

Source:  www.elderlawanswers.com, August 24, 2012

Attend our upcoming Elder Law and 

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Listen to Lawrence tell you how a few simple steps NOW can safeguard your family from the debilitating costs of long term care later.  Call 631-234-3030 or email jgrisolia@davidowlaw.com for reservations by September 7th.  

Supreme Court Upholds Health Care Law

In a dramatic victory for President Barack Obama, the Supreme Court upheld the 2010 health care law Thursday, (June 28, 2012) preserving Obama’s landmark legislative achievement.

The majority opinion was written by Chief Justice John Roberts, who held that the law was a valid exercise of Congress’s power to tax.

Roberts re-framed the debate over health care as a debate over increasing taxes.  Congress, he said, is “increasing taxes” on those who choose to go uninsured.

Here is the link to the full text of the ruling: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf    

The 2010 law, the Affordable Care Act, requires non-exempted individuals to maintain a minimum level of health insurance or pay a tax penalty.

The essence of Roberts’ ruling was:

• “The Affordable Care Act is constitutional in part and unconstitutional in part,” Roberts wrote.
• “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause.  That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”
• But “it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but (who) choose to go without health insurance.  Such legislation is within Congress’s power to tax.”

Roberts made a point of noting that he and the other justices “possess neither the expertise nor the prerogative to make policy judgments.  Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.  It is not our job to protect the people from the consequences of their political choices.”

The law, Roberts wrote, “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.  And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”

He said, “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”

He said the Supreme Court precedent is that “every reasonable construction” of a law passed by Congress “must be resorted to, in order to save a statute from unconstitutionality.”

Veteran Supreme Court lawyer Tom Goldstein told NBC’s Pete Williams that “the Affordable Care Act was saved by Chief Justice John Roberts.”  Goldstein said the Obama administration “got the one vote they really needed in Chief Justice John Roberts.”

Obama hailed his victory: “The highest court in the land has now spoken.  We will continue to implement this law and we’ll work together to improve on it where we can.”  But he urged Americans to refrain from re-fighting “the political battles of two years ago” or trying to “go back to the way things were.”

For individuals who choose to not comply with the individual insurance mandate, Congress deliberately chose to make the penalty fairly weak: only $95 for 2014; $325 for 2015; and $695 in 2016.  After 2016, that $695 amount is indexed to the consumer price index.

Congress specifically did not allow the use of liens and seizures of property as methods of enforcing the penalty.  Non-compliance with the mandate is also not subject to criminal or civil penalties under the Tax Code and interest does not accrue for failure to pay the penalty in a timely manner, according to the congressional Joint Committee on Taxation.

NBC’s Pete Williams reported that Roberts reasoned that “there’s no real compulsion here” since those who do not pay the penalty for not having insurance can’t be sent to jail.  “This is one of the scenarios that administration officials had considered that if the court did this they would consider it a big victory.”

In his reaction to the court’s decision, Republican presidential contender Mitt Romney said, “What the court did today was say that Obamacare does not violate the Constitution.  What they did not do was say that Obamacare is good law or that it’s good policy.”  He said the ruling had made it clear “If we want to get rid of Obamacare, we’re going to have to replace President Obama.”

But in a major victory for the states who challenged the law, the court said that the Obama administration cannot coerce states to go along with the Medicaid insurance program for low-income people.  The financial pressure which the federal government puts on the states in the expansion of Medicaid “is a gun to the head,” Roberts wrote.

“A State that opts out of the Affordable Care Act’s expansion in health care coverage thus stands to lose not merely ‘a relatively small percentage’ of its existing Medicaid funding, but all of it.”  Roberts said.  Congress cannot “penalize States that choose not to participate in that new program by taking away their existing Medicaid funding,” Roberts said.

The Medicaid provision is projected to add nearly 30 million more people to the insurance program for low-income Americans – but the court’s decision left states free to opt out of the expansion if they choose.

Source: Tom Curry, msnbc.com National Affairs Writer, June 29, 2012, 7:15am.

Appeals Court: Denying federal benefits to same-sex couples is unconstitutional

A federal appeals court has ruled that the Defense of Marriage Act, a law that denies a host of federal benefits to same-sex married couples, is unconstitutional.

The 1st U.S. Circuit Court of Appeals in Boston ruled Thursday that the act known as DoMA, which defines marriage as a union between a man and a woman, discriminates against gay couples.

The law was passed in 1996 at a time when it appeared Hawaii would legalize gay marriage.  Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004, and followed by Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland, Washington state and the District of Columbia.  Maryland and Washington’s laws are not yet in effect and may be subject to referendums.

The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The 1st Circuit said its ruling wouldn’t be enforced until the U.S. Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by DoMA until the high court rules.

“We are thrilled that another court – this time, the 1st Circuit Court of Appeals – has ruled that it is unconstitutional to deny respect to the marriages of lesbian and gay couples,” said Camilla Taylor, National Marriage Project Director for Lambda Legal.  “We congratulate our colleagues at GLAD (Gay and Lesbian Advocates & Defenders) for achieving this wonderful victory.”

During arguments before the court last month, a lawyer for gay married couples said the law amounts to “across-the-board disrespect.”  The couples argued that the power to define and regulate marriage had been left to the states for more than 200 years before Congress passed DoMA.

An attorney defending the law argued that Congress had a rational basis for passing it in 1996, when opponents worried that states would be forced to recognize gay marriages performed elsewhere.  The group said Congress wanted to preserve a traditional and uniform definition of marriage and has the power to define terms used to federal statutes to distribute federal benefits.

More than 1,000 benefits in question
Two California federal judges earlier said the act violated constitutional standards.

Judge Claudia Wilken of Oakland ruled May 24 that the law legalized bigotry by withholding more than 1,000 federal benefits – such as joint tax filing, Social Security survivor payments and immigration sponsorship – from gays and lesbians legally married under state law.

Judge Jeffrey White of San Francisco also declared DoMA unconstitutional and ordered the government to provide family insurance coverage to the wife of a lesbian court employee.  White’s ruling has been appealed to the Ninth U.S. Circuit Court of Appeals, which will hear the case in September.

President Barack Obama withdrew his administration’s defense of the law in February 2011, saying he considered it unconstitutional, but it is being defended by lawyers hired by House Republican leaders.

On May 9, Obama declared in an interview with ABC News his unequivocal support for gay marriage, becoming the first president to endorse the idea.

Obama said, “I have hesitated on gay marriage in part because I thought that civil unions would be sufficient.”  He added that he “was sensitive to the fact that for a lot of people the word ‘marriage’ was something that invokes very powerful traditions, religious beliefs and so forth.”

Now, he said, “it is important for me personally to go ahead and affirm that same-sex couples should be able to get married.

We here at Davidow, Davidow, Siegel & Stern agree with this decision and will keep you posted on further developments.

Source:   www.msn.com, May 31, 2012, Msnbc.com’s Miranda Leitsinger and Jim Gold and The Associated Press contributed to this report.

What are you waiting for?

Let's say you have a child with "special needs," or a sister, brother, mother or other family member. You have not created a special needs trust as part of your own estate plan. Why not?
We know why not. We have heard pretty much all the explanations and excuses. Here are a few, and some thoughts we would like you to consider:
I don't have enough money to justify a special needs trust. Really? You don't have $2,000? Because that's all you have to leave to your child outside a special needs trust to mess with their SSI and Medicaid eligibility.
I can't afford to pay for the special needs trust. We apologize that it can be expensive to get good legal help. But the cost of preparing a special needs trust for your child is likely to be way, way less than the cost of providing a couple of months of care. That is what is likely to happen if you die without having created a special needs trust, since it will take several months of legal maneuvering to get an alternative plan in place. Even if there is no loss of benefits, the cost of fixing the problem after your death will be several times that of getting a good plan in place now.
I've already named my child as beneficiary on my life insurance/retirement account/annuity. Ah, yes – our favorite alternative to good planning. If your child is named directly as beneficiary, you may have avoided probate but complicated the eligibility picture. Their loss of benefits will occur immediately on your death, rather than waiting the month or two it would have taken to get the probate process underway. This just might be the worst plan of all.
It'll all be found money to my kids. I'll let them take care of it if I die. We have bad news for you: "if" is not the right word here. That aside, you should understand that a failure to plan means you are stuck with what's called the law of "intestate succession." That means that everything will go to some combination of your spouse and children – state rules vary slightly on this subject. If your child on public benefits gets a share of your estate, he will probably need to either (a) spend it all quickly or (b) put it into a "self-settled" special needs trust. That means higher cost to set the trust up, more restrictions on what the money can be used for, and a mandatory provision that the trust pays back Medicaid costs when your child dies. The Medicaid repayment requirement applies to all of the Medicaid benefits your child received during his lifetime, including anything Medicaid has provided before your death. Wouldn't you like to avoid that result? It's simple: just see your special needs planning lawyer about a "third-party" special needs trust. The rules are so much more flexible if you plan in advance.
My child gets Social Security Disability Insurance (or Childhood Disability Benefits) and Medicare. Good argument. Because those programs are not sensitive to assets or income, your child might not need a special needs trust as much as a child who received Supplemental Security Income (SSI) and Medicaid. But keep these four things in mind:

1.     Even someone who gets most of their benefits from SSDI and Medicare might qualify for some Medicaid benefits, like premium assistance and subsidies for deductibles and co-payments. Failure to set up a special needs trust might affect them, even if not as much as another person who receives, say, SSI and Medicaid.

2.     Future changes in both Medicare and Social Security might result in reduced benefits for someone who has assets or income outside a special needs trust.

3.     Your child's living arrangements may change dramatically after your death. Community living arrangements are often paid for or subsidized by Medicaid, and not by Medicare.

4.     If your child has a disability, it might be that some kind of a trust is needed for management of the inheritance you leave him. If he is unable to manage money himself the alternative is a court-controlled conservatorship (or, in some states, guardianship). That can be expensive and constraining. Good trust planning, with a lawyer who can figure out which benefits rules are relevant, is worth the expense.

I'm young. We agree. And we agree that it's not too likely that you will die in the next, say, five years (that's about the useful life of your estate plan, though your special needs trust will probably be fine for longer than that). But "not too likely" is not the same as "it can't happen." You cut down your salt and calories because your doctor told you it'd be a good idea – even though your high blood pressure isn't too likely to kill you in the next five years, either. We're here to tell you that it's time to address the need for a special needs trust.
I'm going to disinherit my child who receives public benefits and leave everything to his older brother. That will probably work. "Probably" is the key word here. Is her older brother married? Does he drive a car? Is he independently wealthy? These questions are important because leaving everything to your older child means you are subjecting the entire inheritance to his spouse, creditors, and whims. And have you thought out what will happen if he dies before his sister, leaving your entire inheritance to his wife or kids? Will they feel the same obligation to take care of your vulnerable child that he does?
I'll get to it. Soon. OK. When?
I don't like lawyers. We do understand this objection. Some days we're not too fond of them, either. But they are in a long list of people we'd rather not have to deal with but do: doctors, auto mechanics, veterinarians, pest control people, parking monitors. We understand, though, that if we avoid our doctor when we are sick the result will not be positive. Same for the auto mechanic when our car needs attention. Also for the vet and all the rest. In fact, the only one we probably could avoid altogether is the barista, and we refuse to stay away on principle.
Seriously – lawyers are like other professionals. We listen to your needs, desires and information, and we give you our best advice about what you should do (and how we can help). Most of us really like people. In fact, all of us involved with the Special Needs Alliance really like people – it's a membership requirement. We want to help, and we have some specialized expertise that we can use to assist you. Give us a chance to show you that is true.


Source:  The Voice, Official Newsletter of Special Needs Alliance, April 2012, Volume 6, Issue 6.

How to Select an In-Home Aide

Studies show that older Americans want to remain in their homes for as long as possible – even when they are struggling. For growing numbers of elders – and concerned family members – the solution to their struggle is a home aide.

If your family is considering hiring an aide, the first decision is what type of aide you need.  There are two basic choices: a home health aide or a home care aide.   Home health care aides provide personal care (bathing, grooming, etc.); assist with range-of-motion exercises and provide some medically-related care (empty colostomy bags, dress dry wounds, check blood pressure, etc.); and provide assistance with housekeeping and errands.  They are often referred to as personal care assistants.  Home care aides provide companionship and socialization and assist with meal preparation, housecleaning, laundry, shopping and errands.  They are also called homemaker or chore aides.
“The level of care the person requires determines who should be providing the home care and what it will cost,” says Mary Hujer, MSN, a gerontological clinical nurse specialist in Cleveland, Ohio.

Getting Started
Before beginning the search for an aide, download the National Caregiver Library’s Needs Assessment Checklist.  Not only will it help you determine the level of care a loved one needs, it will also help you write the aide’s job description.  In addition, it may inform the decision of whether to hire independently or through an agency. 

With an agency, the aide has been screened and trained, and they will be supervised, explains Byron Cordes, LCSW, a certified care manager and the current president of the National Association of Professional Geriatric Care Managers.   But, Cordes adds, there are other benefits of hiring through an agency: “Clients have access to all the resources the agency has.  They have back-up if the scheduled caregiver can’t be there and the agency handles all the administrative responsibilities – reimbursement forms, payroll, taxes, workers’ compensation, insurance, and background checks and bonding of the employee.”
Hiring independently means you will be doing the screening and interviewing, supervision, coordination of care and all administrative paperwork.  But, says Hujer, it also means you are able to hire someone – a friend or relative—who may already know the person, “so the trust factor is higher…and you will usually be paying less, too.”

To locate potential candidates, “cast a wide net,” says Hujer.  Get suggestions from the older person’s primary care physician or nurse; the local hospital’s social work department; local social service and/or disease-specific organizations; your community’s office on aging or senior center; the older person’s minister or rabbi; and/or friends and neighbors who have previously used a home aide.

Source:  www.elderlaw.us, Browning, Meyer & Ball Col, LPA

NEW YORK STATE BAR ASSOCIATION UPDATE - Trusts & Estates Law

On Tuesday, March 27th, the New York State Legislature voted to repeal the regulations utilizing an expanded definition of "estate" for Medicaid recovery purposes.  As a result, the prior definition of estate recovery, which limited estate recovery to only those assets included within the individuals's estate and passing under the terms of a valid will or by intestacy, is back in effect.  


Additionally, the proposed elimination of spousal refusal has been rejected.  This is a major triumph for our client and all who contributed to the effort.

Source:  www.nysba.org