Category Archives: Current Events

IRS alert: Economic Impact Payments belong to recipient, not nursing homes or care facilities

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Economic Impact Payment check from the US Treasury

In a press release this week, the IRS confirmed that the $1,200 pandemic stimulus payments (officially called “Economic Impact Payments” under the CARES Act) received by nursing home residents remain their property. Under long-standing Medicaid law, income tax refunds follow special rules that treat these as an asset that can be spent over the following YEAR by Medicaid recipients without any penalty to their Medicaid benefits. It is not considered income paid as “applied income” to a nursing home and it does not count against the $1,600 resource limit so long as it was spent – but not given away, normally – over the year following receipt.

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BREAKING: Connecticut to Begin Transferring Skilled Nursing Residents for COVID-19 Protection

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March 30, 2020: This Afternoon, the CT Department of Public Health (DPH), in conjunction with the Long-Term Care Ombudsman, announced plans to temporarily designate select nursing homes within the state as COVID-positive and COVID-negative skilled nursing facilities.

This plan will allow facility residents who have tested positive to receive more concentrated skilled care, to have access to more skilled health professionals and equipment at their facility, while maximizing the change that those who have tested negative are at minimal risk of contracting COVID-19 during this wave of infection. However, accomplishing this plan means that many nursing home residents, including those who have not been tested for COVID-19, will be temporarily relocated to other facilities.

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MEDICARE ALERT: Nursing Home Rehabilitation Benefits Expanded for Medicare Recipients in Response to COVID-19

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MEDICARE ALERT: Nursing Home Rehabilitation Benefits Expanded for Medicare Recipients in Response to COVID-19
Medicare Card & Nursing Home

A new cog in the federal response to the Coronavirus outbreak are some changes in how individuals on traditional “straight” Medicare can qualify for nursing home rehabilitation.

Medicare rehab coverage is provided under Part A hospital insurance, with two key provisions being that (1) seniors are only eligible for rehabilitation after a 3-night stay in a hospital as an inpatient, and (2) nursing home rehab is limited to 100 days per hospitalization period.

Federal Medicare administrators recognize that hospital and nursing home beds will likely become limited commodities in the coming weeks. That means some who should have hospital care will be denied in favor of needier patients, and some who would benefit from facility-based rehab will not be able to access it, possibly becoming more infirm due to the lack of intervention. In light of this, the Medicare Administrator issued a “special finding” that waives both of these limitations, in most cases.

SNF [skilled nursing facility] care without a 3-day inpatient hospital stay will be covered for beneficiaries who experience dislocations or are otherwise affected by the emergency, such as those who are (1) evacuated from a nursing home in the emergency area, (2) discharged from a hospital (in the emergency or receiving locations) in order to provide care to more seriously ill patients, or (3) need SNF care as a result of the emergency, regardless of whether that individual was in a hospital or nursing home prior to the emergency.

In addition, we will . . . provide renewed coverage for extended care services which will not first require starting a new spell of illness for such beneficiaries, who can then receive up to an additional 100 days of SNF Part A coverage for care needed as a result of the [COVID-19] emergency.

Seema Varma, Administrator, Centers for Medicare and Medicaid Services

If you are worried about yourself or a loved one having access to services, the situation is highly in flux at the moment, but we stand ready to answer your calls and questions with the latest information at (203) 871-3830 and are available for videoconferencing and teleconferencing on several common platforms.

Nursing Home Visitation Heavily Restricted for COVID-19.

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Nursing Home Visitation Heavily Restricted for COVID-19.
Novel Coronavirus
Simulation of coronavirus particles.

Over the past week, there have been conflicting reports and governmental orders regarding visitation of residents in nursing homes. This was clarified March 13, when CMS (the federal medicare/medicaid regulator) issued new guidance to nursing homes nationwide. Namely, they have ordered that all visitation of nursing home residents is prohibited, with two exceptions: outside health care professionals, and limited visitation for resident’s who are actively dying or receiving hospice/palliative care. Additionally, group activities such as recreation and communal dining have been suspended.

In furtherance of this, the Probate court has suspended all proceedings that require hand-delivered notices or hearings conducted at facilities. Mostly this means new applications for conservatorship for people presently located in nursing homes, and applications to make nursing home care permanent (change of residence). It is still unclear how these will work with respect to deadlines imposed by law.

One important thing to know, however, is that just because you cannot see your loved one does not mean that you are unable to participate in their care. These rules do not change the requirement that facilities provide quality care, or develop a plan of care on a quarterly basis, with your input. It only means that conferences and reviews need to be conducted through telephone and records exchanges, rather than talking and looking in person.

We understand this change is particularly concerning for loved ones of seniors who have recently moved to a facility for rehab purposes. It is tough not being able to see their progress in person, or to know if or how quickly they will return home. You should also expect that, because facilities will have to exclude both personal care and licensed staff as an abundance of caution, and at a minimum it will be even harder than it normally is to get the responsiveness and communication by phone you may desire. But there are certain levers you can pull to get what you need, and my office is ready and able – by phone, paper, and video conference – to answer questions and help those who feel they need an advocate on their side.

AARP’s TaxAide – A Great Cause and a Great Help

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AARP TaxAide Volunteer

AARP volunteers help millions across the U.S. file their taxes each year.

Tax season is coming into full swing shortly, and this will be my third tax season volunteering with AARP’s TaxAide program.  For me, it’s an opportunity to do some good and keep abreast of how all the different tax tweaks congress makes each year find their way into the IRS forms and filing requirements we actually deal with back here on Earth.  For you – or for an elderly friend or loved one – it’s can be an opportunity to get your taxes done for free with friendly, convenient service.  For the benefit of those who might be interested, I’ve reposted this FAQ article with a summary of the services we provide.
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A Few Words on Disinheritance

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Fight Over MoneyAn article last week in the local lawyer’s trade paper, The Connnecticut Law Tribune, discussed the increasing prevalence of wills being delayed in the probate process through complaints, objections, and full-out challenging of wills admitted to probate.

It’s not surprising, given that the economy is at the lowest point most of us have ever and will ever see.  There will always be maligned siblings looking for their fair share and suspicious later-in-life will changes, but in these tight times staying silent to keep the peace may not be the option it normally would be for some left-out relatives.  At the same time, there’s likely a surge in opportunists who suspect (accurately, as it happens) that most legit beneficiaries would rather pay a small, quick settlement than see their own inheritances delayed and diminished by a protracted lawsuit.

It’s an unfortunate situation for those looking to plan for when they are no longer around.  It’s also a good example of why it’s so important to have your will done by an attorney, in particular one who handles a great deal of wills and probate work.

If you’re looking to cut someone off because you question their responsibility or they have significant debts, several different types of trusts can be employed to address those concerns without completely disinheriting the person.  If you just want someone out, the wording must be carefully chosen to meet legal standards.  Depending on the situation, it may be better to employ a “carrot and stick” tactic, where the ousted person is actually given a small legacy under the will, but which is forfeited if he or she challenges the will in court.

Later-in-life will changes are particularly susceptible to challenge in court, as relatives may claim the author was not competent to make the will, or had been subjected to the manipulation and pressure of an overbearing child or confidante.  An experienced estate planning or elder law attorney can take steps to help ensure the will will be upheld in court, such as careful selection of the location and people present at the execution ceremony (will signing), choice of witnesses, and videotaping the ceremony as future evidence.

For more information, feel free to call me at (203) 871-3830 or email scott@scottrosenberglaw.com for a free consultation.

The Mess on Wall Street (or, Five Simple Rules for Finding a Fair Broker)

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When it's time for a new broker...

With the House and Senate banging out the final version of the financial reform bill, it seems a fair guess that many people are wondering how the new law will affect their own investments, and that trustees are likewise concerned about what major consequences such sweeping legislation might have on the assets they are obligated to carefully manage. While a significant part of the bill is still up in the air, all possibilities seems to point to one answer:

None. Nada. Zilch.
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Debunking Wolf Blitzer: The Reality of 2010-2011 Estate Tax Changes

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Wolf and Allan Chernoff discuss the changing estate tax landscape.

Wolf and Allan discuss the changing federal estate tax landscape.

In a December 17th segment on CNN’s The Situation Room, Wolf Blitzer and colleague Allan Chernoff began discussing the upcoming changes changes in the federal estate tax landscape.  They point out that in just a few short days the calendar will turn and the reign of EGTRRA (the Bush tax cuts) over the estate tax comes to a close.  No estate taxes will be owed on deaths occurring in the year 2010, but in 2011 the tax comes back at an even lower threshold, resetting to it’s pre-Bush rate of 41%-50% on assets over $1 Million.  While all of this is perfectly accurate and well worth knowing, much of the commentary surrounding it was murky at best, if not just plain wrong.  After the jump, some of the points that could use some tweaking:

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New Research on Comas, and What It Means for Living Trusts

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An article in Time Magazine this week tells the story of a man who was presumed brain-dead for nearly a quarter century, but as it turned out, had been alert and listening the whole time.

Rom Houben, a Belgian engineering student before his accident, was suffering from total locked-in syndrome, a condition which paralyzes all intentional body movement. His body could breathe, pump blood, and digest; he could watch, listen, and think just fine, but he did not have the ability to respond. It wasn’t until a neurologist on a quest to find misdiagnoses with an experimental new type of brain scan saw Rom that they discovered his mind was intact.

This might seem like a far-fetched aberration, but recent studies in the British Journal of Medicine and elsewhere show that incorrect diagnoses of a persistent vegetative state (or PVS) occur at an alarming rate – about 40-45 percent of the time. The reasons are several. Brain-scanning technology has not reached a level where it can clearly diagnose conscious from unconscious; the methods for diagnosis by observation all have serious flaws, and doctors can’t agree on which is best or how to make a better one; and reviews after an initial diagnoses are often too cursory to notice signs of improvement after the brain has had time to heal.

This reality creates a serious problem for the typical living will. The lion’s share of clients have them drafted to ensure they have a quick and peaceful passing instead of getting “Terry Schiavo’d,” and living wills often mention a PVS diagnosis by name as one of the triggers for the removal of life support. The result is that a person who could live a fulfilling life with quadriplegia (body paralysis) as so many others do may inadvertently be euthanized. Almost all misdiagnosed patients are completely paralyzed, and many suffer some loss of cognitive ability, so it is understandable that these new revelations may not prompt older clients to change their plans. For everyone else, though, it should be an important consideration in laying out your advanced healthcare directives.

Going forward, estate planning attorneys should keeping abreast of new developments in PVS diagnostics, to know the what/how often/for how long combination that best ensures a PVS diagnosis is accurate, and clients should strongly consider having those standards incorporated into the document itself.

CT Revamps Estate Tax Model; Saves Headaches

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Since 2005, one of the more annoying idiosyncracies of CT estate planning law has been the 2 million dollar cliff threshold for CT estate taxes. At the time it matched the federal estate tax exclusion, but that rate was set to rise to $3.5 million at the start of 2009, and was widely expected to stay in that vicinity.*  The end result was that individuals could easily get wallopped over manners of poor planning** (as a “cliff tax”, you’re assessed on the full first $2MM if you’re over by even a dollar), and couples with a net worth over $4 million required multiple, layered trusts to maximize the tax credits offered, such as they were.

However, last month Gov. Rell announced she would allow the proposed 2010-2011 budget to pass into law, which modifies the estate tax to a flat tax of 25% on the value of estates over $3.5MM, similar to the federal taxes. Under this new system, modest individuals estates may no longer be blindsided, and couples with a net worth underneath $7 million can avoid estate taxes altogether with a common arrangement often referred to as an “AB Trust.”  An AB trust simply takes the property from the decedent spouse(let’s say husband’s) estate and splits it into two piles: a “bypass pile” which could be taxed, but is valued to max-out his $3.5 million credit, and a “marital deduction pile,” which gives the property to his widow tax-free, and will fall within her $3.5 million credit when she passes.  The trust allows the piles to be split up in whatever way will save the most taxes, and is now a very effective tool in CT.

*This is still in a state of legislative flux, however. Presently there is no estate tax at all for 2010 and a low $1MM exemption starting in 2011, but these are likely to change and should not be planned around.
**Because of the low threshold, holding a large life insurance policy on yourself, vacation properties, or even part of a small business could make an estate subject to tax. The change in the estate tax does not affect the assessment of probate fees on these assets, so it remains prudent to place substantial investments in trust, outside of your estate.