Timeline Provides Understanding, Guidance to Complicated Health Care Laws

For those interested in understanding health care reform (in particular, the Affordable Health Care Act), government website Healthcare.gov provides a timeline that is user-friendly and informative. Below, I will highlight some of the more interesting goals and aspirations of the Act.

Discounts and Services Starting January 1, 2011:

50% discounts available for seniors who reach the coverage gap. Savings will be available for those purchasing Medicare Part D brand-name drugs. The gap is expected to close by 2020, and during the interim, seniors will be given additional savings.

Preventative services will be provided to Medicare recipients for free. For instance, annual wellness visits.

Administrative Funding to Become Available October, 2011:

The Medicare Trust Fund will be assessed by The Independent Payment Advisory Board with an aim to extend its life. Plans are expected to be submitted to Congress and the Executive Office.

New “Community First Choice Option” will allow States to provide home and community services through Medicaid (as opposed to traditional nursing home care).

Doctors to Help Each Other to Exchange Information; January, 2012

New laws provide incentives for physicians to assimilate and form “Accountable Care Organizations.” Doctors would be able to exchange information more easily, and costs would be cut by eliminating unnecessary tests.

Going Green and Online: October, 2012

Changes are expected to reduce paper records. By standardizing billing and using electronic storage systems, not only will care be more efficient but also less costly.

Increased Medicaid Payments for Primary Care Doctors: January, 2013

The Act will require states to pay primary care physicians 100% of Medicare payment rates in 2013 and 2014 for primary care services.

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Is Medicaid Too Complex for Americans?

Medicaid complexity is a real problem. For those not familiar with program specifics, Medicaid - not Medicare - is the program Americans rely on to receive their long-term care. Long-term care is extraordinarily expensive – in fact, it is the single most expensive creditor Americans are likely to face.  Unfortunately, understanding the various Medicaid rules is a monumental task for the average layperson, and to properly qualify for the program and protect one's assets, it often it takes an experienced professional and a complicated asset protection plan.


Why is Medicaid so complex?  One reason may be due to the fact that Medicaid is a joint state and federal program, and planning to receive (either for you or for a client) this public benefit often involves tax planning, too.  Proper Medicaid planning requires an understanding of several complex bodies of law. 
While some of these quotes are humorous, it is no laughing matter that Americans, by and large, do not realize that Medicaid is available to the middle class.   Protecting assets from long-term care expenses can enable a family to pass an inheritance on to their children that otherwise would not have been available; it allows for the recipient to enjoy an enhanced qualify of life while alive; and it gives peace of mind and security to the family members.

Here is a glance at what the courts have had to say about Medicaid complexity over the last thirty-five years. 

1976:

The Second Circuit commented the absurdity of any law or regulation 7 subsections deep.  For example:

“As program after program has evolved, there has developed a degree of complexity . . . regulations which makes them almost unintelligible to the uninitiated . . . [a] draftsman who has gotten himself into a position requiring anything like [§139a(a)(10)(A)(ii)(VIII)(cc)] should make a fresh start.” Friedman v. Berger, 547 F.2d 724 (2^nd Cir. 1976).

1981:

The United States Supreme Court has called the Medicaid laws:

“an aggravated assault on the English language, resistant to attempts to understand it.” Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981).

1985:

The Second Circuit calls the Medicaid statute one of:

“unparalleled complexity” in DeJesus v. Perales, 770 F.2d 316, 321 (2^nd Cir. 1985).

1991:

In a case arising out of Maine, the District Court called Section 1396a(a)17) of the Medicaid statute:

“a virtually impenetrable thicket of legalese and gobbledygook.” Lamore v. Ives, 1991 WL 193601 (D.Me.)

1994:

The Fourth Circuit called the Medicaid Act:

“one of the most completely impenetrable texts within human experience” and

“dense reading of the most tortuous kind.” Rehab. Association of Virginia v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994).

Medicaid complexity is a problem for all Americans.  Most Americans will need some form of long-term care, and of those that do, such care may be a nursing home stay.  The average private nursing home room costs nearly six-figures every year, and the average nursing home stay is close to three years.  Medicaid is available to anyone who can qualify; unfortunately, there are many public misperceptions when it comes to Medicaid.  Contrary to public belief, a person does not need to be "poor" to qualify.
At this point in time, the laws are so complex that it is recommended that any person contemplating long-term care speak with an experienced elder law attorney.

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5 Basic Reasons to Consider a Revocable Living Trust

 A revocable living trust can function as a Will, but it also offers other benefits that you should consider. If you pass away without a Will or Trust, the laws of your state will determine who receives your property, and in what amount. Moreover, your heirs will be required to wait a minimum of 1 year in Virginia. Not only can probate be time-consuming, it also can be very expensive. Proper estate planning can allow you to distribute your assets with peace of mind.

#1 - Avoid Expenses and Probate Tax: Probate is a court supervised proceeding that can be expensive and lengthy. How long? Anywhere from one to three years in most cases!

#2 - Enable Your Heirs to Receive Your Property More Quickly: Your loved ones can receive your assets much more quickly than if they are required to go through the probate process.

#3 - Ensure Your Trusted Family Members Oversee Your Estate Distribution, Not the Court: When you plan properly, you can select the persons responsible for overseeing the distribution of your estate. If you leave it up to the court system, there is no guarantee that what you expect to happen, will in fact take place.

#4 - Maintain Your Privacy: The distribution of your estate can be a highly personal matter. If you wish, you can maintain your privacy.

#5 - NO Annual Fee Required: Fees are only associated with amendments to the trust. Although there is no fee associated with maintaining a trust, our firm offers an optional Estate Plan Protection Program. We feel that such an option generates the most peace of mind for clients.

Photo Courtesy healingdream / FreeDigitalPhotos.net

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Estate Planning Attorneys Warn About Matching Beneficiaries to Those Named in Your Will or Trust

As an estate planning attorney in Virginia, I have unfortunately seen many circumstances where a person goes through the time and expense of having an estate plan done, only to fail to update their beneficiaries on their financial or retirement accounts before they pass away.

An example of this would be Mary naming her brother Bill as the beneficiary of her life insurance policy in her trust, but at the time of her death, she had a different beneficiary named on the policy itself.

Just as life changes, so do your relationships, which can affect who you want to receive your assets --especially if you do not have children. Changing the beneficiary on assets such as bank accounts or life insurance policies is not uncommon, but you must remember to make sure that your will or trust reflects that change also.

Keeping your estate planning documents and beneficiaries up-to-date and coordinated is a quick and painless way to prevent legal headaches from occurring after you are gone.

Having two different named beneficiaries on two different documents can result in a lengthy and costly process to fix it – especially if each named person believes that they should be the one to inherit the asset.

The best way to avoid problems like this is to have a lawyer who focuses on wills and trusts handle every aspect of your estate.

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5 Ways to Ease the Burden When Caring for Kids and Aging Parents

5 Ways to Ease the Burden When Caring for Kids and Aging Parents

Did you know we just completed National Sandwich Generation Month? You may have never heard of it before, but if you care for aging parents and young children, you are part of this rapidly growing demographic.  The burden of shouldering so much responsibility can be overwhelming.  

Common struggles include having to pay for mom or dad’s long-term care, shielding mom or dad’s assets from nursing home facilities and cleaning up a financial or legal mess in the absence of proper planning. If you are facing these same struggles right now, there are a number of planning steps you can take to ease the legal and financial pain. Here are 5 suggestions to ease the transition, both for you and your parents:

1. Don’t Wait.  Find out what type of estate planning documents your parents have in place (i.e. will, trust, power of attorney) while there is still time to update them. If their medical directives were created pre-HIPPA, they should be reviewed immediately by an attorney. 

2. Sit Down With Parents Every 2-3 Years to Review their Estate Plan. Make sure their wishes are the same and that they still approve of the people they chose to make important end-of-life decisions on their behalf.  Make sure your parents have an Advance Medical Directive so they may communicate desires to physicians and family members regarding all forms of medical treatment, including preferences as life support, organ donation, funeral arrangements, and disposition of remains.  There has been some concern among attorneys as to whether the public will understand the need to properly plan a will or trust in light of these large exemptions.  On the contrary, the new tax laws that are in-flux should, if anything, prompt families to seek an updated assessment of their existing will or trust documents. 

3. Consider a Trust.  Not a Will.  Consider placing all of mom or dad’s assets into the right kind of trust so they stay protected and out of the equation if your parents ever need to apply for Medicaid benefits or go into a nursing home.  A Certified Elder Law Attorney can help with this and save your family substantial sums of money.  Medicaid is not just for the “poor,” but is a government program meant to pay for the long-term care needs of Middle Class Americans, too.     

4. Locate Existing Documents Immediately.  If your parents expect you to fulfill a particular role or carry out an important task upon their death, the documents giving you these rights should be stored somewhere safe. Taking these steps will help ease the pressure of being “Sandwiched” between caring for young children and aging parents. They will also help to ensure that mom or dad’s assets stay protected and that you are in the best position to honor their wishes during the later stages of life. 

5. Consider Mediation.  Have the tough conversations with mom or dad about their wishes now while they are still active and in good health. Find out what type of long-term care they want (or don’t want) and be sure to document their wishes accordingly.

Sometimes the consequence of dealing with the final years of elderly parents can break families apart and create long-lasting animosity.  Suspicions or distrust often lead to anger and the anger often leads to severing the channels of communication between family members. This can occur between parent and child or between siblings or between all of them.

Mediation allows parents to focus on their abilities rather than their limitations; allows children to come up with and consider options not thought of previously; encourages uninvolved family members to become involved; and allows parents to express wishes and desires that had previously gone unuttered.

Members of the Sandwich Generation have a lot on their plate (no pun intended).  But with proper planning you can give your family and your parents the peace of mind they deserve.  

Unfortunately, true asset protection can only be achieved through complex strategies.  A living trust isn't enough, and a will most definitely isn't either.  A Living Trust Plus™, however, just might be the answer for many Americans.  You see, it's capable of *not just* probate avoidance, but also protection from the biggest creditors most Americans face during their lifetimes - nursing homes. Here is the page if you are interested in asking your attorney if he or she is a part of this network. 

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Advocacy Group on New Medicare Hospice Law: “An Issue that Must be Closely Watched”

Hospice is “a special concept of care designed to provide comfort and support to patients and their families when a life-limiting illness no longer responds to cure-oriented treatments, explains the Hospice Foundation of America.

For families with a loved one currently receiving Hospice care, a new law is under debate and analysis by some advocacy groups. At the very least, they are keeping a close watch on the real-world effect of the law.

The new Medicare Home Health Face-to-Face Requirement is a condition of receiving payment for hospice services. “A physician must order Medicare home health services and must certify a patient’s eligibility for the benefit,” according to Center for Medicare and Medicaid Services (CMS). Moreover, “[before certifying] a patient’s eligibility for the home health benefit . . . [he or she] . . . must document . . . a face-to-face encounter with the patient.”

Why did Congress enact this law? Will the administrative burdens be worthy of debate? The rationale appears to have been; “[to ensure] that the orders and certification for home health services are based on a physician’s current knowledge of the patient’s clinical condition.” What remains unclear is whether Congress is trying to prevent some sort of perceived abuse of the Hospice process, whether Congress perceived physicians as lacking in diligence in this regard, or if it is a means to ensure money is not wasted.

Some groups ARE raising questions. For example, an article recently was published by CMS, entitled, “New Hospice Face-to-Face Requirement: Help or Hindrance?” The group expresses hope that the law will encourage more physician involvement, but also concern that “caring for hospice patients in their third and subsequent certification periods . . . [might become more] . . . difficult and potentially more expensive for providers than caring for patients in their first and second certification periods.” The group ends its article by noting it will continue to watch the issue, so that Medicare beneficiaries who are nearing the end of their lives will not bear any unintended burdens or care shortcomings as a result of this new law.

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