Monthly Archives: October 2018

VA Establishes Asset Limits and Transfer Penalties for Needs-Based Benefits

October 8, 2018

The Department of Veterans Affairs (VA) has finalized new rules that establish an asset limit, a look-back period, and asset transfer penalties for claimants applying for VA needs-based benefits. This is a change from current regulations, which do not contain a prohibition on transferring assets prior to applying for benefits such as Aid and Attendance.

As ElderLawAnswers previously reported, the VA proposed the new regulations in January 2015. Three years later, after receiving more than 850 comments, the VA has finally published the final regulations, which are similar, with a couple of exceptions, to the proposed regulations.

In order to qualify for benefits under the new VA regulations, which go into effect October 18, 2018, an applicant for needs-based benefits must have a net worth equal to or less than the prevailing maximum community spouse resource allowance (CSRA) for Medicaid ($123,600 in 2018). Net worth includes the applicant’s assets and income. For example, if an applicant’s assets total $117,000 and annual income is $9,000, the applicant’s net worth is $126,000. The net worth limit will be increased every year by the same percentage that Social Security is increased. The veteran’s primary residence (even if the veteran lives in a nursing home) and the veteran’s personal effects are not considered assets under the new regulations. If the veteran’s residence is sold, the proceeds are considered assets unless a new residence is purchased within the same calendar year.

The VA has also established a 36-month look-back period and a penalty period of up to five years for those who transfer assets for less than market value to qualify for a VA pension. The look-back period means the 36-month period immediately before the date on which the VA receives either an original pension claim or a new pension claim after a period of non-entitlement. There is an exception for transfers made as the result of fraud, misrepresentation, or unfair business practices and transfers to a trust for a child who is not able to self-support.

The penalty period will be calculated based on the total assets transferred during the look-back period if those assets would have put the applicant over the net worth limit. For example, assume the net worth limit is $123,600 and an applicant has a net worth of $115,000. The applicant transferred $30,000 to a friend during the look-back period. If the applicant had not transferred the $30,000, his net worth would have been $145,000, which exceeds the net worth limit. The penalty period will be calculated based on $21,400, the amount the applicant transferred that put his assets over the net worth limit (145,000-123,600).

Any penalty period would begin the first day of the month that follows the last asset transfer, and the divisor would be the applicable maximum annual pension rate for a veteran in need of aid and attendance with one dependent that is in effect as of the date of the pension claim. The penalty period cannot exceed five years, a change from the 10-year maximum in the proposed regulations.

The rules also define and clarify what the VA considers to be a deductible medical expense for all of its needs-based benefits. Medical expenses are defined as payments for items or services that are medically necessary; that improve a disabled individual’s functioning; or that prevent, slow, or ease an individual’s functional decline. Examples of medical expenses include: care by a health care provider, medications and medical equipment, adaptive equipment, transportation expenses, health insurance premiums, products to help quit smoking, and institutional forms of care.

As noted, the rules become effective on October 18, 2018. To read the new regulations, click here.

Special Report: Recent Changes in Law, Regulations and Guidance Relating to Medicare Advantage and the Prescription Drug Benefit Program

October 8, 2018


Numerous changes were made to Medicare law, regulations and guidance during the first half of 2018. The changes are particularly noteworthy regarding Part C, governing private Medicare plans, known as Medicare Advantage (MA), and Part D, the prescription drug benefit.

Click here for the entire article

Assisted Living Kicks Out The Frail ’Cause ‘We Can’t Take Care Of You Any Longer’

October 5, 2018

by Judith Graham – SEPTEMBER 6, 2018

ELA News:

The phone call came as a shock. Your aunt can’t transfer into memory care; we have to discharge her from this facility, a nurse told Jeff Regan. You have 30 days to move her out.

The next day, a legal notice was delivered. Marilou Jones, 94, who has dementia, was being evicted from Atria at Foster Square, an assisted living facility in Foster City, Calif. The reason: “You are non-weight bearing and require the assistance of two staff members for all transfers,” the notice said.

Regan was taken aback: After consulting with Atria staff about his aunt’s deteriorating health, he and Jones’ husband, William, 88, had arranged for her to be transferred to a dementia care unit at the facility. A room had been chosen, and furniture bought. But now, Atria was claiming it couldn’t meet her needs after all.

This action isn’t unusual. Across the country, assisted living facilities are evicting residents who have grown older and frail, essentially saying that “we can’t take care of you any longer.”

Evictions top the list of grievances about assisted living received by long-term care ombudsmen across the U.S. In 2016, the most recent year for which data are available, 2,867 complaints of this kind were recorded — a number that experts believe is almost surely an undercount.

Often, there’s little that residents or their families can do about evictions. Assisted living is governed by states, and regulations tend to be loosely drafted, allowing facilities considerable flexibility in determining whom they admit as residents, the care they’re prepared to give and when an eviction is warranted, said Eric Carlson, directing attorney at Justice in Aging, a legal advocacy organization.

While state regulations vary, evictions are usually allowed when a resident fails to pay facility charges, doesn’t follow a facility’s rules or becomes a danger to self or others; when a facility converts to another use or closes; and when management decides a resident’s needs exceed its ability to provide care — a catchall category that allows for considerable discretion.

Unlike nursing homes, assisted living facilities generally don’t have to document their efforts to provide care or demonstrate why they can’t provide an adequate level of assistance. In most states, there isn’t a clear path to appeal facilities’ decisions or a requirement that a safe discharge to another setting be arranged — rights that nursing home residents have under federal legislation.

It’s very frustrating “because state regulations don’t provide sufficient protections,” said Robyn Grant, director of public policy and advocacy for the National Consumer Voice for Quality Long-Term Care.

Sometimes, evictions are prompted by a change in ownership or management that prompts a re-evaluation of an assisted living center’s policies. In other cases, evictions target residents and family members who complain about not getting adequate assistance.

Amy Delaney, a Chicago elder law attorney, tells of a client in her late 80s with dementia admitted to an upscale assisted living community. When her two daughters noted deficiencies in their mother’s care, managers required them to hire a full-time private caregiver for $10,000 a month, on top of the facility’s fee of $8,000 a month.

One day, a daughter went to visit, saw staff napping and took pictures on her cellphone, which she sent to the facility administrator with a note expressing concern. “A few days later, she got a call telling her that her mom had become combative and needed to be taken to the hospital for psychiatric treatment,” Delaney said.

The daughters went to the facility and took their mother to one of their homes. “They found another assisted living facility for her a few weeks later,” Delaney said, noting that she found no record of behavioral issues in the woman’s record when the daughters contemplated suing.

“We see this regularly: An assisted living [facility] will say your mom isn’t looking well, we’re sending her to the hospital to be re-evaluated, and then, before she can return, they’ll say we’ve determined her care level exceeds what we can provide and we’re terminating her agreement,” said Crystal West Edwards, an elder law attorney in New Jersey.

Assisted living operators argue that transfers are often necessary when residents’ health deteriorates and that good communication about changing needs is essential.

“We believe providers should be upfront with consumers about their care abilities [and limitations] and encourage a robust, ongoing conversation with residents and loved ones about their needs — especially as they evolve,” wrote Rachel Reeves, a spokeswoman for the National Center for Assisted Living, in an email.

Atria Senior Living, which operates assisted living communities in more than 225 locations in 27 states and seven Canadian provinces, declined to comment on the circumstances of Jones’ eviction in keeping with its policy to protect residents’ privacy. In an email, a spokesman explained that “we conduct regular assessments, in accordance with state law, to ensure residents are receiving the appropriate level of care and to determine whether we can continue to meet their needs.”

In Jones’ case, Regan said his uncle William was told by a marketing manager that his wife could “age in place” at Atria at Foster Square since a wide range of services — assisted living, memory care and hospice care — were available there.

The couple was willing to pay a considerable amount for their move to the upscale community in July 2017: an $8,000 one-time entrance fee, $10,000 monthly for a two-bedroom apartment, $500 a month to have medications administered, and extra charges for help with transfers, being escorted to meals and more frequent bathing, among other kinds of assistance, that sometimes totaled $2,300 a month.

But Jones was becoming weaker. “My biggest mistake was not getting her into memory care sooner, where she would have received more attention,” Regan said.

In the weeks before Atria’s eviction decision, Jones had fallen several times, been hospitalized for an irregular heartbeat, and started on a new blood thinner medication.

After Atria’s action, “I lost all confidence in them,” Regan said. Within two weeks, he found another community, Sunrise of Belmont, for his aunt, who moved into memory care, and his uncle, who moved into his own apartment — at a combined cost of nearly $20,000 a month.

While his aunt is now receiving good care, his uncle was shaken by the move and is depressed and having difficulty adjusting, Regan said.

Elder law attorneys and long-term care ombudsmen recommend several strategies. Before moving into an assisted living community, “ask careful questions about what the facility will and won’t do,” said Carlson of Justice in Aging. What will happen if Mom falls or her dementia continues to get worse? What if her incontinence worsens or she needs someone to help her take medication?

Review the facility’s admissions agreement carefully, ideally with the help of an elder law attorney or experienced geriatric care manager. Carefully check the section on involuntary transfers and ask about staffing levels. Have facility managers put any promises they’ve made to you in writing.

If a resident receives an eviction notice — typically 30 days in advance — don’t move out right away. If the facility says it can no longer manage someone’s care needs, bring in a physician to evaluate whether assisted living is still a viable option, said Anthony Chicotel, staff attorney at California Advocates for Nursing Home Reform. Try negotiating with the facility if you can suggest a solution to the concern managers are raising.

File a complaint with your local long-term care ombudsman’s office, which will trigger an investigation and usually slow down the process, said Joseph Rodrigues, the state long-term care ombudsman in California. Ombudsmen represent residents’ interests in disputes and can help advocate on your behalf, he noted.

Consider bringing the matter to landlord-tenant court or civil court in your area — a legal option available when other avenues for appeal are not available. Or ask for a “reasonable accommodation of the resident’s needs under the federal Fair Housing Act.”

Staying in place and waiting for the facility to initiate legal action will buy you time, which should be your goal. Don’t rush to move into another facility without checking and making sure it will be a better fit, now and in the future, Chicotel said.

Also consider whether you want to stay at the current facility. “Do you really want to be someplace that doesn’t want you?” said Jason Frank, a Maryland elder law attorney. For most clients, he said, the answer is no.

Finally, consider adjusting your expectations. “Success for some families is ‘I bought three years of good care for Mom in assisted living’ and now she’s moved along in her illness and it’s time for skilled nursing care,” said Judith Grimaldi, an elder law attorney in New York City.

D.C. and Maryland Lower Estate Tax Exemptions

October 5, 2018

ELA News:

Richard S. Franklin, George Karibjanian, Lester B. Law | Sep 13, 2018

In 2017, both the District of Columbia and Maryland were on track to match the federal estate tax exclusion amount; in 2018 and 2019,D.C. and Maryland, respectively. However, both jurisdictions were apparently caught off guard by the federal government doubling its estate tax exclusion to $11.18 million for 2018. We last reported that both D.C. and Maryland were considering legislation to limit their exclusions to levels consistent to the federal estate tax exclusion in 2017. Now, we confirm that both jurisdictions are breaking away from the federal government with lower estate tax exclusion amounts.


On Feb. 6, 2018, 10 of the 13 D.C. City Council members joined in a bill to change the D.C. estate tax exclusion to $5.6 million for 2018 and have this amount adjusted for inflation in future years. These changes were later added to D.C.’s budget bill as the Budget Support Act, which was enacted on Sept. 5, 2018. Pursuant to this legislation, D.C.’s estate tax exclusion amount is $5.6 million retroactive back to Jan. 1, 2018.


For individuals dying in 2018, the Maryland estate tax exemption is $4 million which is a $1 million increase from 2017. The Maryland increase is part of a 2014 law that gradually increases the Maryland estate tax exemption each year until 2019, when it was on schedule to match the federal basic exclusion amount. Pursuant to legislation passed on April 5, 2018, Maryland will limit its estate tax exclusion to $5 million in 2019. Maryland’s change doesn’t involve any element of retroactivity as does the D.C. legislation.

Congress Weighs Reauthorizing Program That Moves People Out Of Institutions

October 5, 2018


by Courtney Perkes | September 10, 2018

Following an initial vote in Congress, advocates are hopeful that a federal program aimed at helping people with disabilities move from institutions to community living will be renewed.

A health subcommittee in the U.S. House of Representatives advanced legislation late last week reauthorizing the Medicaid Money Follows the Person program for one year with $450 million in funding.

Since its inception more than a decade ago, states have received roughly $3.7 billion through the program to help more than 88,000 people leave nursing homes or other institutions in favor of their own apartment or a small group home.

However, Money Follows the Person expired in September 2016 and states have been running out of funds ever since.

The subcommittee vote Friday approving legislation known as the EMPOWER Care Act, H.R. 5306, was a step toward a full vote on the House floor to renew the program.

“The reason it’s so important we get this passed by the end of the year is that, maybe with the exception of one or two states, every (Money Follows the Person) program will be out of money by the end of this year,” said Nicole Jorwic, director of rights policy for The Arc. “Some states have already started to wind down their program. Hopefully, this momentum will be a good signal to states to stop doing that.”

Money Follows the Person has resulted in government cost savings as people move out of expensive facilities, according to a federal report.

States have used the funds to pay for services not normally covered by Medicaid, such as hiring housing specialists and providing employment assistance.

Sarah Meek, director of legislative affairs at the American Network of Community Options and Resources, or ANCOR, said Money Follows the Person has resulted in better quality of life not only for participants but for people with disabilities who are at risk of institutionalization. She said they also have benefited from housing and job services put in place.

“Access to affordable housing continues to be one of the biggest barriers to transitioning people to the community,” Meek said. “Once (states have) hired a housing counselor, they’re able to work with people who may be looking at a limited number of options.”

Curtis Cunningham, vice president of the National Association of States United for Aging and Disabilities, testified before the House subcommittee last week, saying that states need certainty of the program’s future to test new transition practices that can take several years to evaluate.

“Our members across the country have seen great value from the program, and the interventions have become more effective as states have experimented with and learned from innovative ways to provide these supports,” Cunningham said.

Jorwic from The Arc said people with disabilities across the country are in limbo.

“There are people who are waiting and want to move in every state but because the (Money Follows the Person) program doesn’t have the funding, or in some cases has closed completely, those individuals are languishing in segregated settings outside their communities,” she said. “We’re talking about people’s lives.”

The House legislation was introduced by Reps. Brett Guthrie, R-Ky., and Debbie Dingell, D-Mich. Companion legislation has also been introduced in the Senate.

“We are very pleased with the wide bipartisan support of this bill and working hard to get this passed before the end of the 115th Congress,” said Lauren Gaydos, a spokeswoman for Guthrie.

The bill must now be marked up by the House Energy and Commerce Committee before it can go to a vote in the House.

$100 billion retirement risk: SEC issues new warning about IRA fraud and cryptocurrencies

October 4, 2018

NAELA  News :

  • As more individuals, especially baby boomers, move to self-directed individual retirement accounts to help them build a better nest egg, they could be putting themselves at risk for fraud.
  • These unregistered IRAs, which now represent a $100 billion market, allow people to invest far outside core stock market and bond market holdings.
  • These secondary retirement funds often include real estate, private mortgages, precious metals and private company stock. But the increasing level of investment in cryptocurrencies, from bitcoin to tokens and initial coin offerings, led the SEC to issue a new warning this month about potential IRA fraud.

Click below for the whole article


Here’s What Predicts a Woman’s Odds of Living Till 90

October 4, 2018


Here’s What Predicts a Woman’s Odds of Living Till 90
— Robert Preidt
3-4 minutes

En Español

WEDNESDAY, Aug. 15, 2018 (HealthDay News) — Women whose mothers lived a long and healthy life have a good chance of doing the same, a new study suggests.

A long-term study of about 22,000 postmenopausal women in the United States found that those whose mothers had lived to age 90 were 25 percent more likely to reach that milestone without suffering serious health issues, such as heart disease, stroke, diabetes, cancer and hip fractures.

If both parents reached age 90, women were 38 percent more likely to live a long and healthy life, the findings showed.

The study by researchers at the University of California, San Diego School of Medicine, was published Aug. 15 in the journal Age and Ageing.

“Achieving healthy aging has become a critical public health priority in light of the rapidly growing aging population in the United States. Our results show that — not only did these women live to age 90 — but they also aged well by avoiding major diseases and disabilities,” said first author Aladdin Shadyab. He’s a postdoctoral fellow in the department of family medicine and public health.

“It’s not just about the number of candles on the cake. These women were independent and could do daily activities like bathing, walking, climbing a flight of stairs or participating in hobbies they love, like golf, without limitations,” he added in a university news release.

But Shadyab’s team found no increase in daughters’ longevity or health if only their father lived to 90 or beyond.

“We now have evidence that how long our parents live may predict our long-term outcomes, including whether we will age well, but we need further studies to explore why,” Shadyab said. “We need to clarify how certain factors and behaviors interact with genes to influence aging outcomes.”

Longevity may be influenced by a combination of genetics, environment and behaviors passed from parent to child, according to the researchers.

The women in the study whose mothers lived to at least 90 were more likely to be college graduates and married with high incomes. They were also more likely to be physically active and have good eating habits.

“Although we cannot determine our genes, our study shows the importance of passing on healthy behaviors to our children,” Shadyab said. “Certain lifestyle choices can determine healthy aging from generation to generation.”

More information

The U.S. Office of Disease Prevention and Health Promotion outlines how to protect your health as you age.

SOURCE: University of California, San Diego, news release, Aug. 15, 2018

Last Updated: Aug 15, 2018

Copyright © 2018 HealthDay. All rights reserved.