Elder Law and Special Needs | Begin the Begin

Notice of Observation Status – Update on Implementation

December 8, 2016

money-2 In August 2015, Congress passed the Notice of Observation Treatment and Implication for Care Eligibility Act (the “Notice Act“). The Notice Act requires hospitals to give individuals who are receiving observation services as an outpatient for more than 24 hours, oral and written notification of observation status within 36 hours of the beginning of such services. This notice is critical for individuals on Medicare because Medicare will only cover nursing home care following a hospitalization if the individual is classified as an inpatient for three (3) days prior to needing nursing home care. If the individual is not classified as an inpatient, Medicare will not cover the hospitalization or subsequent care, such as rehabilitation or skilled nursing, which can be financially devastating to a family.

Implementation of the Notice Act was to have taken effect in August of this year, and the Centers for Medicare and Medicaid Services (“CMS”) indicated that the final rules associated with the Notice Act would be effective October 1st. However, the written notice does not become effective until 90 days following approval of the Medicare Outpatient Observation Notice by the Office of Management and Budget and such written notice does not yet have approval. What this all means is that the Notice Act has not yet been fully implemented and may not be until early next year. In the interim, the Center for Medicare Advocacy has created an infographic to help individuals understand observation status and what it means as it relates to the cost of their care so that families can be engaged in the process. #AskAboutObservation #elderlaw #observationstatus @bgnthebgn

FLASH UPDATE: The Medicare Outpatient Observation Notice and instructions are now available online. The standardized form is giving individuals notice of their ‘observation status.’ Hospitals and critical access hospitals are required to start using this Notice no later than March 8, 2017.

Special Needs Trust Fairness Act – Update

December 1, 2016

open-book An update for those interacting with seniors and disabled individuals as it relates to the creation of special needs trusts. In September, the House of Representatives passed the Special Needs Trust Fairness and Medicaid Improvement Act (the “SNT Fairness Act“), which the Senate had passed last year. The SNT Fairness Act fixes an omission in Section 1917(d)(4)(A) of the Social Security Act where the disabled individual was not listed as someone who could create a first-party or self-settled special needs trust. Under the SNT Fairness Act, the disabled individual will have the authority to create such a special needs trust thereby eliminating the need, in certain circumstances, for court intervention. Unfortunately, the earlier House and Senate bills had some differing provisions and the bills could not be signed into law. Recently the House passed a major health care package known as the 21st Century Cures Act that includes the SNT Fairness Act (buried at Sec. 5007 of the close to 1000 page bill). The SNT Fairness Act will apply to trusts created on or after enactment. Provided the Senate passes this health care package, it is expected that the SNT Fairness Act will be signed into law giving disabled individuals more control in managing their assets and benefits. #SNTFairnessAct #SpecialNeeds #estateplanning

FLASH UPDATE: Senate has passed H.R. 34 in which the SNT Fairness Act was included. The President signed the bill on December 13th.

Injunction Granted Against CMS’ Rule Prohibiting Arbitration Clauses and D.C. Death with Dignity Act Passes

November 17, 2016

law-books An update regarding the Centers for Medicare and Medicaid Services (“CMS”) new rule banning the use of binding pre-dispute arbitration agreement by nursing homes that accept Medicare and Medicaid patients. As was expected, the nursing home industry has fought back and filed suit in the Northern District of Mississippi. In a 40 page Order, a Federal District Court Judge has granted the preliminary injunction requested by the American Health Care Association and several nursing homes. In the opinion, the Judge recognized the position many families find themselves in cases of abuse and neglect when dealing with the nursing home, but indicated that CMS may have overstepped its authority in issuing the rule, and therefore, enjoined CMS from enforcing the rule until the courts could resolve the issue or Congress passed legislation. Therefore, nursing homes will continue to be able to include such provisions in their contracts. Furthermore, with the election in the rear view mirror, only time will tell what will become of this rule. #elderlaw #elderabuse #nursinghome #arbitrationbanned

Also, a brief update that the Death with Dignity Act in the District of Columbia has cleared the last hurdle before going to Mayor Muriel Bowser. The vote of the D.C. Council was again 11-2 and was passed with an amendment requiring some level of annual reporting by the Department of Health. The Act is expected to become law, but Congress still has oversight and the Act may still be overturned. However, at this juncture D.C. joins Oregon, Washington, Vermont, California and Colorado in passing such legislation. As has been expressed before, the passage of this Act is a reminder to get your plan in place. #endoflife #estateplanning #advancedirective #livingwill @deathwdignity @bgnthebgn

District of Columbia Passes Death with Dignity Act

November 10, 2016

flowers-4 As had been previously discussed, the District of Columbia was considering passing its form of the Death with Dignity Act (the “Act”) that is modeled after the Oregon law. The D.C. Council, in a 11 to 2 decision, voted in favor of the bill. A final vote must be held before the end of the year. Mayor Muriel E. Bowser has the ability to veto the bill, but in recent comments she indicated that she would not veto the bill and it would become law. Given D.C.’s status of not being a state, Congress will still have the ability to review and overturn the bill should it become law.

The Act allows a terminally ill individual who has received a prognosis of less than six months to request and receive medication that would end life. The individual must make two oral requests separated by at least 15 days to his or her physician. A written request must also be made before the second oral request is made and at least 48 hours must pass before the medication is received. The written request must be witnessed by two individuals who can attest that the decision to end life is voluntary. One of the witnesses has to be entirely independent, that is, not related or subordinate in some fashion. The individual has to be able to take the medication on their own without any help from medical professionals, caretakers, home healthcare aides, family or friends. Finally, the individual must be a resident of the District of Columbia. If the bill survives the second vote by the D.C. Council and Congressional review, D.C. will join Oregon, Washington, Vermont and California in enacting a death with dignity law. #endoflife #estateplanning #advancedirective #livingwill @deathwidignity @bgnthebgn

2017 Estate and Gift Tax Exemptions

November 3, 2016

money-2 The IRS recently announced the estate and gift exemption levels for 2017 and they continue to increase as per legislation passed in January 2013. The applicable exclusion amount from Federal estate tax will increase to $5.49 million per person allowing a married couple to shelter $10.98 million from Federal estate tax, the rate for which is currently set at 40%. The lifetime exemption from gift tax remains coupled with the exemption from Federal estate tax, and therefore, this exemption will also increase to $5.49 million per person. The annual gift exclusion amount will remain at $14,000 per person. Virginia continues to not impose a state level estate tax. Maryland’s exemption from estate tax will increase to $3 million while the District of Columbia’s exemption will remain at $1 million until certain revenue surplus targets are met, which may not be until 2018, at which point the exemption will increase to $2 million. As a reminder, proposed regulations issued in August will significantly reduce the availability of valuation discounting on certain transfers of interests held in closely held or family owned businesses, and therefore, taking advantage of 2016 exemption levels is critical for some individuals, business owners and families.

For seniors and those with disabilities, a cost-of-living adjustment (COLA) for Social Security and Social Security Income (“SSI”) will increase monthly benefits by 0.3%. In addition, the cap on the amount of earnings subject to payroll tax will increase to $127,200. Finally, the tax brackets, standard deductions, Pease and PEP limitations, kiddie tax and other credit and deduction levels for 2017 were announced. #estateplanning #estatetax #gifttax #annualgift #exemptionlimits #COLA2017 @bgnthebgn

The ABLE Act and Nursing Home Arbitration Provisions – Update

October 27, 2016

A photo by Jonathan Simcoe. unsplash.com/photos/HFug8fv_1jw An earlier article discussed the ABLE Act that was signed into law in 2014, which permits disabled individuals to create savings accounts and set aside monies for their needs without disqualifying them from public benefits. Three different pieces of legislation were then proposed in the House to modify some of the provisions of the ABLE Act. Corresponding legislation was introduced in the Senate and referred to the U.S. Senate Committee on Finance. The Senate Finance Committee has approved two of the bills, but the third bill, which would raise the age of eligibility to 46 from 26, was not discussed. Many groups are upset that the ABLE Age Adjustment Act was omitted and may oppose all of the bills in an effort to have the age limitation bill revisited. The bills still need to wind their way through the procedural process, but certainly there are various negotiations occurring behind the scenes and hopefully resolution is on the horizon. In the meantime, implementation of the ABLE Act is in full force around the country. #specialneeds #ABLEact #estateplanning @bgnthebgn

In addition, as was predicted, a battle has erupted between the nursing home industry and the Centers for Medicare and Medicaid Services (“CMS”) over the final rule issued by CMS that bans the use of binding pre-dispute arbitration agreements by nursing homes that accept Medicare and Medicaid patients. The American Health Care Association along with four long-term care providers filed suit against the Health and Human Services Secretary and CMS arguing that the agencies overstepped their authority in issuing the rule. They are seeking declaratory and injunctive relief to prevent the rule from going into effect on November 28th. Many will follow this case closely as the final rule, as issued, will have quite the impact on the nursing home industry, the patients and their families if it takes effect. Thus, stay tuned for further updates as the lawsuit moves forward. #elderlaw #elderabuse #nursinghome #arbitrationbanned @bgnthebgn

District of Columbia Considers Death with Dignity Act

October 20, 2016

flowers-3 The District of Columbia is considering enacting the Death with Dignity Act (the “Act”) that would allow terminally ill individuals with six months or less to live the ability to receive a lethal dose of medication and end their life. Several procedural steps lie ahead for the Act now that the D.C. Council has voted to place the Act on the legislative agenda for an upcoming meeting. However, it is unclear whether there is sufficient support for the Act to be made into law. Arguments in favor of the Act revolve around giving an individual control over how and when they choose to die, but advocates against the Act are concerned that individuals’ lives will be prematurely terminated.

The issue once again raises the importance of planning. Planning for incapacity and planning for death. Both sides of the death with dignity argument seem to have a common thread involving control, which is exactly what planning gives you. Planning gives you control over who is in charge of your medical decisions when you are not able to make those decisions. Planning gives you control of whether you want life-prolonging procedures when doctors have certified that nothing more can be done except provide comfort care. Planning gives you control of how you want to be remembered in those final moments. Planning gives your family members peace of mind to know that they are truly abiding by your wishes, which in turn may make them feel as if they are in control of the situation. Planning gives your family time to prepare for a life without you in it and to try to control the emotional turmoil that realization creates. Ultimately, planning is a gift to yourself to know that that particular item on a lengthy checklist can be crossed off so that you can enjoy life knowing that your end of life is in the best order you can create. So, regardless of which side of the death with dignity argument you fall, think of the planning that can be done to control your death with dignity. #endoflife #estateplanning #advancedirective #livingwill @deathwdignity @NHDD @bgnthebgn

Use of Pre-Dispute Arbitration Agreements Restricted in Nursing Home Admissions Agreements

October 13, 2016

man-in-coffee-house The Centers for Medicare and Medicaid Services (“CMS”) recently issued a final rule banning the use of binding pre-dispute arbitration agreements by nursing homes that accept Medicare and Medicaid patients. Such arbitration clauses are typically found in the admissions agreements between a new resident (or their family) and the nursing home, but are very often overlooked. The result of this new rule is that families who have an issue with a nursing home regarding care, abuse, and the like, can now sue in court to have their case heard versus having to go through a binding arbitration process.

The original proposed rule only required nursing homes to explain the arbitration agreement to new residents and obtain an acknowledgement that they understood. The final rule is the result of many comments on the proposed rule that favored an outright ban on such arbitration agreements. The nursing home industry has stated that the arbitration agreements have kept costs down and the new rule will undoubtedly increase costs and force closures of some facilities. Moreover, there is an argument that CMS has overstepped its authority in issuing such a rule and we may see the nursing home industry fight the implementation of the rule currently scheduled to take effect on November 28th. The new rule will only apply to future admissions agreements and not to existing contracts, but stay tuned to see whether a battle erupts between the nursing home industry and CMS. #elderlaw #elderabuse #nursinghome #arbitrationbanned @bgnthebgn

October is National Special Needs Law Month

October 6, 2016

children-hug The National Academy of Elder Law Attorneys (“NAELA”) has designated October to be National Special Needs Law Month in an effort to educate individuals with disabilities, families and caregivers about what is encompassed in the realm of special needs. For example, topics such as guardianship, conservatorship, powers of attorney, Medicare, Medicaid and special education will be addressed by professional advisors throughout the country. Local resources such as Commonwealth Community Trust and The Arc of Northern Virginia and more national resources such as Special Needs Alliance may hold special awareness events and have resources available for review. Designating a month is an opportunity for individuals with disabilities, families and caregivers to develop their knowledge of available options and emphasizes the importance of speaking with the appropriate professional advisors. Below is a selection of earlier articles discussing a few topics involving special needs planning. #specialneeds #specialneedsplanning #estateplanning @bgnthebgn

The Able Act – An Additional Resource for Families and Advisors

The Able Act – Proposed Legislation Will Modify Certain Provisions

How Divorce Can Impact Your Estate Plan – Special Needs

Changes to Virginia Laws Impacting Seniors and the Disabled

Changes to Maryland Laws Impacting Seniors and the Disabled

Special Needs Trust Fairness Act

Special Needs Trust Fairness and Medicaid Improvement Act Passes House

September 29, 2016

On September 20, 2016, the Special Needs Trust Fairness and Medicaid Improvement Act (H.R. 670) (the “Act”) passed the House of Representatives. This bill corrects an omission in Section 1917(d)(4)(A) of the Social Security Act created in 1993 when first-party or self-settled special needs trusts were first recognized by Congress. Under 42 U.S.C. 1396p(d)(4)(A), an individual under age 65 who is disabled, may have assets, which are deemed to be theirs (such as assets received from an inheritance or as a result of a personal injury settlement), set aside for their benefit in a trust that is created by a parent, grandparent, legal guardian or the court. Noticeably absent from that list was the disabled individual being permitted to set up the trust themselves. Over time what has been realized is that a disabled individual does not always lack capacity to create a trust, so the Act amends 42 U.S.C. 1396(d)(4)(A) by inserting the words “the individual” into the list of people who can establish this type of trust.

Last year, the Senate passed the Special Needs Trust Fairness Act of 2015 (S. 349), which made the same change. Unfortunately, since these new provisions were part of separate pieces of legislation, the provisions cannot yet be signed into law. Various supporters of the new provisions are now working with the Senate to ensure the provisions ultimately do become law. But what is promising for many is that the provisions of the Act, once signed into law, will do away with the need for court involvement every time a disabled adult wants to create a special needs trust and will instead allow the disabled adult to have some control in his or her public benefits planning. #specialneedstrusts #selfsettledtrusts #estateplanning @bgnthebgn