I had hoped this would not become a snowballing trend because in many ways it is truly horrible. Unfortunately here I am writing about it again because Wal-Mart recently won an appeal to recover an entire settlement from one of their health insurance customers.

The customer suffered the injury and went through the process and expense to get the settlement, then Wal-Mart comes in after the customer did all the work and makes a claim for reimbursement of medical costs they paid. And to make it worse, they made the claim and were successful against the funds that went into a special needs trust.

Wal-Mart was paid, the attorneys were paid, and the injured person received nothing. If you ever pursue an injury lawsuit be sure your attorney has a plan for how to handle an ERISA reimbursement claim from your health insurer or you could end up with nothing to show for your time and effort at the end of the day.

You can read the full story here.

Related posts:

1. ERISA Reimbursement v. Special Needs Trust
2. The Special Needs Trust – How to Secure the Future for Your Disabled Child
3. Medicaid Recovery Law More Aggressive Than Ever

I am afraid the discussion of providing a secure future in case things do not go according to everyone’s own life plan happens all too infrequently based on the number of conversations I have had myself recently with families unaware of how critical it is to implement a plan to provide quality of life to a special needs child if the unexpected should happen.

What is the plan for educational needs?

Who will pay the medical bills if your child is no longer on your health insurance?

Will your child only survive with the bare minimum from government benefits programs or will you put in place a plan for the same quality of life you would provide?

Update: The original article “Providing for a Special Needs Child” is no longer available from the original site.

Related posts:

1. Critical Medicaid Mistake #2
2. ERISA Reimbursement v. Special Needs Trust
3. Estate Planning For Title 19

Families with special needs children often face difficult decisions about education. In many cases, public schools are either not equipped or trained to provide a satisfactory educational experience for special needs children. Where can you go to get the best for your child?

The Individuals with Disabilities Education Act (IDEA) was originally enacted in Congress in 1975. Significant amendments were added to the law in 1997, including tuition reimbursement provisions for special needs families that can not find a suitable educational experience in their public school system. Over the years there have been numerous cases across the country that have attempted to clarify the parameters of when a family is entitled to reimbursement under the 1997 amendments. As you can imagine, different courts came to different conclusions and interpretations.

Just last week the U.S. Supreme Court jumped into the fray showing an interest in establishing some uniform guidelines. The specific case was an appeal from the federal 2nd Circuit, which includes Connecticut, so the decision is binding for Connecticut cases.

The case (Board of Education v. Tom Freston, 06-637) centers on a 1997 amendment to the Individuals with Disabilities Education Act (IDEA), which requires states provide “free appropriate” public education for students with disabilities. The specific issue is whether that law requires children to first receive “special education and related services” from a public agency before their families pursue reimbursement.

An independent hearing officer ruled in favor of the Frestons, but Southern District of New York Judge George Daniels sided with the city. In a summary order in August 2006, the 2nd Circuit reversed Daniels’ decision, saying it would lead to absurd results.

In the 2nd Circuit opinion, Judge Edward R. Korman, the chief judge of the Eastern District of New York, said the city’s view of the statute would “place the parents of children with disabilities in the untenable position of acquiescing to an inappropriate placement in order to preserve their right to seek reimbursement from the public agency that devised the inappropriate placement.”

Nine days after hearing oral arguments in Board of Education v. Tom F., 06-637, the Court split 4-4, thereby affirming the 2nd U.S. Circuit Court of Appeals’ finding in favor of Mr. Freston — the boy’s father.

In its two-sentence opinion, the Court did not reveal the judges’ individual votes, stating only, “The judgment is affirmed by an equally divided Court. Justice Kennedy took no part in the decision of this case.”

It is a split decision and not a loud endorsement, but if you are a family with a special needs child in Connecticut your case for tuition reimbursement just got stronger.

This issue may be considered again by the U.S. Supreme Court as the split decision did nothing to resolve a split in authority with the 1st Circuit, where an appellate panel ruled that students must first avail themselves of the public school system before their parents seek reimbursement.

Related posts:

1. ERISA Reimbursement v. Special Needs Trust
2. Think Twice Before Giving Away Your Home

Related posts:

1. Shifting Perspectives – Special Needs Planning
2. How Good is Connecticut Medicaid?
3. You’re Giving Me What?!

Recently, U.S. District Judge John P. Fullam made an interesting decision in Mills v. London Grove Township. Judge Fullam strictly interpreted the insurance company’s claim for reimbursement to only exist against the ERISA beneficiary which in this case was the child’s father. The litigation on behalf of the child, Grace, was settled by placing the funds directly into a Special Needs Trust to provide ongoing care. Judge Fullam relied partially on this fact to deny the insurance company’s claim for reimbursement against the funds allocated to Grace’s Special Needs Trust.

This is an important decision for parents with children that have been injured and that use a Special Needs Trust to provide for their child. If the decision stands on appeal, parents can hope to preserve more of their child’s funds for their own care without reduction by insurance reimbursement claims.

You can read the full opinion here.

Related posts:

1. Wal-Mart’s ERISA Insurer Strikes A Special Needs Trust
2. School Choice and Reimbursement for Special Needs Families
3. The Special Needs Trust – How to Secure the Future for Your Disabled Child

Let me share the story of a client of mine. This client one day mentioned that her mother “Helen” resided in an assisted living facility. Helen was doing well with no chronic health issues, although naturally she was getting older and her risk for Alzheimer’s and other chronic health issues increased every year. Like many people, Helen preferred the majority of her life savings pass on to her family rather than be consumed or at risk for possible nursing home costs that exceed $90,000 per year in Connecticut.

After reviewing the situation with Helen and her family to gain a better understanding of her wishes and the financial realities of the situation, I put together a plan to accomplish Helen’s goals of keeping her life savings within the family without jeopardizing her own eligibility for Title 19 Medicaid benefits. Helen’s family promptly reviewed and acted on my recommendations. We did not give everything away and leave Helen at risk to her family’s desire to pay for expenses nor did we assume any risks without a thorough discussion of those risks and careful hedging against the unavoidable risks. Helen was my client and she was protected throughout the entire plan.

The reason I bring this up now is to remind everyone about time. My work with Helen began approximately three years ago. Back in 2004, I completed the initial analysis for Helen’s family which was the foundation for evaluating asset protection and Title 19 eligibility strategies. A critical portion of that analysis was making a reasonable, realistic, and informed estimate for how the next three to five years would unfold in terms of health and finances. I am proud to say Helen and her family have been exceedingly pleased with results. As we approach the third anniversary of Helen’s planning, her goals have been accomplished and the critical three year look-back window (this was before the DRA of 2005) is going to close in the very near future. The plan was carefully thought out and it was successful. I helped Helen and her family protect over $900,000.

Let’s consider an alternative for a moment. What if Helen’s daughter mentioned her mother’s situation to me back in 2004 and I told her that since everything was fine right now they should not consider any additional planning until it became obviously necessary? Well, as you may know the Deficit Reduction Act of 2005 was enacted which extended the look-back period to five years. This change alone would have had a significant impact on Helen’s ability to achieve her goals. There were additional restrictions on Title 19 eligibility included in the Deficit Reduction Act of 2005 that would have also had adverse effects on Helen’s options.

It is an unfortunate fact that Connecticut nursing homes are expensive. They average over $9,000 per month. It is also an unfortunate fact that none of us know who is going to need nursing home care and who will not need nursing home care. For many people, nursing home costs are the single greatest threat to their life savings and their estate plan. An annual bill of more than $90,000 can devastate a modest family.

What’s the difference between protecting over $900,000 and risking over $900,000? As we can see, in many cases it is a matter of time and getting the right legal help. I don’t know when the next wave of regulations or case law that further restrict Title 19 Medicaid eligibility in Connecticut will come along and in general I don’t recommend my clients wait to find out either. I do know what I can do today to secure my client’s estate plan and life savings. Medicaid planning and protection does not happen overnight. In Helen’s case, it took three years; and she is in a much better position than if she waited until the last minute.

Do you have a plan?

Are you protected? Do you want to be in charge of what happens to you, or are you content to hope for the best? Speak with a Connecticut Medicaid Attorney today and take the first step to protecting your family.

Related posts:

1. Doing Nothing Just Cost You $9,464 (and counting)
2. Title 19 Medicaid Protection Workshop
3. How To Decipher Your Estate Plan – Introduction

• The average monthly cost of care has surpassed $9k and is set at $9,096.00.
• The minimum MMNA is now $1,711.25.
• The shelter adjustment is $513.37.
• The monthly personal allowance jumped an awe inspiring $2 to reach $63.00.

Related posts:

1. Key Numbers 7/1/09 – 6/30/10
2. Medicaid Eligibility Numbers 2008-2009
3. Connecticut Medicaid (Title 19): MMNA

• Nancy Banks called her mother’s hospital room in Tampa Bay, FL and heard screaming, yelling, and crying. When Nancy tried to find out what was going on from hospital representatives, they refused to discuss it with her because they believed they were prevented from doing do by HIPAA. She drove over twenty hours to the hospital to get some answers and was told the same thing. The best she was offered was being able to speak with the doctor in the morning. Unfortunately, the next morning she learned her mother had heart failure and her kidneys were shutting down after many hours of having no idea what was going on.
• An emergency room nurse in Palos Heights, IL threatened Gerard Nussbaum with arrest for scanning his father-in-law’s medical chart following admission for a stroke. Luckily Gerard is a HIPAA consultant and did not back down. Mr. Nussbaum discovered the nurse was about to administer a dangerous round of sedatives to his father-in-law by reviewing his chart. Who knows what could have happened if he followed the nurse’s orders and did not act to protect his father-in-law?
• Nurses in an emergency room at St. Elizabeth Health Center in Youngstown, Ohio, refused to telephone parents of ailing students themselves, insisting a friend do it, for fear of passing out confidential information.

The article does a good job in pointing out that many of these roadblocks people run into are not intentional roadblocks. They are health care professionals taking a very conservative and cautious approach in interpreting an at times vague regulation to avoid getting into trouble. So, even though there is no legal obstacle in a family member’s right to be involved in many cases, everyone runs the risk of encountering an overzealous nurse and there is no way to avoid that risk.

What can you do to protect yourself? Prepare a HIPAA authorization release and give it to your family members that are likely to be involved with your treatment at a hospital. It may not be legally necessary, but in many cases this is the best way to placate the overzealous nurse that they will not get into trouble by speaking with you.

You can read the full New York Times article here.

You can find another story of one mother’s encounter with HIPAA when trying to help her son here.

Related posts:

1. HIPAA Rules Leave Mother in the Dark
2. Estate Planning For Title 19
3. 9 Questions You Must Ask If You or a Loved One is Going Into a Nursing Home

As mentioned in other posts, Connecticut recently issued their new regulations to be consistent with the statutory changes incorporated in the Deficit Reduction Act of 2005. An important portion of these regulations concerns annuities and how they will be handled by the Department of Social Services.

Straight from Policy Transmittal 07-02:

Annuities purchased on or after February 8, 2006 will now be subject to other considerations. First, the department will now automatically become a remainder beneficiary under the annuity [...] by the provision of LTC Medicaid benefits to an individual.

Second, the purchase of annuity will automatically be considered to be a transfer of assets unless: the department is named as the remainder beneficiary in the first position for at least the total amount of Medicaid paid on behalf of the annuitant; or, the department is named as such a beneficiary in the second position after the community spouse or minor or disabled child, and is named in the first position if the spouse or representative of the child disposes of any such remainder for less than fair market value. In addition, the annuity must meet all of the following criteria: it must be irrevocable and nonassignable; it must be actuarially sound; and it must provide for payments in equal amounts during the term of the annuity with no deferral and no balloon payments.

I am not a psychic, but I think we can reasonably expect to see many conflicts in the future surrounding these provisions that seek to alter the terms of an annuity contract by law.

What else do the new annuity rules mean? Well, if you are purchasing an annuity or you own an annuity you should certainly be aware that Connecticut is making a new claim to recover from them Medicaid benefits paid to an individual. If you are a financial professional engaged in the selling of annuities, make sure you are familiar with these new regulations in order to minimize any professional risk on your part.

Related posts:

1. Estate Planning Beyond the Documents – Annuities
2. Medicaid Recovery Law More Aggressive Than Ever
3. Estate Planning For Title 19

This question comes up fairly often as an attorney. The medical profession has an extensive established and well-defined structure for specialization. It is natural to assume and hope that a similar structure would be implemented in the legal profession. Unfortunately in Connecticut, there are some big gaps in legal specialization.

As of today, the Connecticut Bar has only completed recognition of five areas of law. These areas are:

Civil Trial practice;
Criminal practice;
Business bankruptcy;
Consumer bankruptcy;
Worker’s Compensation.

Obviously, that only scratches the surface of the many areas that attorneys concentrate their careers in. You’ll notice Elder Law and Estate Planning are nowhere to be found on the list of recognized specializations.

Since the Connecticut Bar does not recognize many specializations, the question “are you an elder law or estate planning specialist?” becomes something of a loaded question. As defined by the Connecticut Bar, no I am not an estate planning or elder law specialist and neither is any other attorney in Connecticut.

From a client’s perspective it is natural to expect a yes or no answer to this simple question. It is also natural to seek out an attorney that can answer “yes” to the specialization question. Unfortunately, the Connecticut Bar has put many attorneys in the position of trying to explain to potential clients why they must answer “no” to this seemingly simple question and immediately create doubt in the potential client’s mind.

If you are reading this as a consumer of legal services, certainly ask this question to the attorney you are considering working with but I encourage you to take this information into account when you receive your answer. If an attorney is not a specialist because the Bar does not recognize a particular specialization, consider the attorneys experience and knowledge with your type of matter. If you now know the Bar does not recognize a particular specialization and an attorney does claim to be a specialist in that field, ask yourself if they are being candid with you.

For additional information on Connecticut’s recognized legal specializations, click here.

Related posts:

1. Estate Planning For Title 19
2. Medicaid Asset Protection Questions