Welcome to My Blog

Attorney Michael MillonigHi,

I’m Michael Millonig, and you’ve managed to find your way to my blog.

As an attorney who specializes in elder law, I know that there are a lot of elder care issues facing adults with elderly parents that don’t necessarily either require, or get covered by, a lawyer. There are also many changes in elder law, especially Ohio’s Medicaid program, that happen quickly which make it difficult for me to keep you up to date with my email newsletter or seminars. That’s why I’ve started this blog.

Over time, I have no doubt that the topics will evolve, and that we’ll meander a little bit. Occasionally, I’m sure there will be some difficult discussions; but I hope that equally there will be some light-hearted ones. And regardless of the nature or tone of the topics, I’m looking for input from you, my dear readers. So, if there’s something you have a question about, something you’d like to know more about, or simply something you’d like to share, please don’t hesitate to reach out and let me know.

In the meantime, I’m going to get rolling and start writing about things like caring for aging parents, role reversal, supporting siblings with elderly parents, Ohio’s Medicaid program, revocable living trusts, powers of attorney, retirement communities, home-care, elder care and any other topic I can think of that might be useful to you.

Hopefully you enjoy what you find here, learn some things, and join the conversation.

Once again, welcome to my blog.

Michael  J.  Millonig
Certified as an Elder Law Attorney
by the National Elder Law Foundation since 1998
OSBA Board Certified Estate Planning
Trust and Probate Specialist
937-438-3977

Any legal information communicated in this blog is a general statement of the law.  It is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. These communications are not intended to create an attorney-client relationship. Please contact my office for an appointment if you have any legal questions.

Coronavirus and Nursing Home Residents in Ohio

On March 11, 2020, the President addressed the nation and declared a national emergency due to the threat of the coronavirus. He stated various precautionary measures that were to be taken concerning closing of facilities and other restrictions. I will not discuss all of those but rather focus on restrictions related to nursing homes. All of these restrictions being announced at the federal level are permitted under the National Emergencies Act and implemented through the authority of the federal agency, the Department of Health and Human Services- Center for Medicare & Medicaid Services (CMS).

All the information herein is based upon available government pronouncements as of March 18, 2020. This situation changes every day so please check the websites referenced herein for current information.

The first very relevant event is the coronavirus outbreak in January in a nursing home (Life Care Center) in Kirkland, Washington. The virus spread rapidly with at least 27 deaths of residents being linked to the coronavirus. See https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e1.htm?s_cid=mm6912e1_w This event will be foremost in the minds of all nursing home administrators and staff. It is certainly known by the CDC and CMS and strongly influenced their guidelines.

Center for Disease Control
https://www.cdc.gov/coronavirus/2019-ncov/index.html

The Center for Disease Control has specific recommendations for nursing homes. Their recommendations concerning nursing homes and other long-term care facilities state that they are not mandatory requirements or standards. Their recommendations are as follows:
▸ restrict all visitation except for certain compassionate care situations, such as end-of-life situations.
▸ Restrict all volunteers and non-essential health care personnel (e.g. barbers).
▸ Cancel all group activities and communal dining.
▸ Implement active screening of residents and health care personnel for fever and respiratory symptoms.
▸ They state that ill visitors and health care personnel are the most likely sources of introduction of the coronavirus into the facility. They recommend aggressive visitor restrictions and enforcing sick leave policies for ill health care personnel even before the virus is identified in the community or facility.
▸ They also state that these recommendations could be applied in assisted living facilities.

They state that decisions about visitation during an end-of-life situation should be made on a case-by-case basis which should include careful screening of the visitor for fever or respiratory symptoms. Those with symptoms should not be permitted to enter the facility. Those visitors that are permitted must wear a face mask while in the building and restrict their visit to the resident’s room or other location designated by the facility.

Center for Medicare & Medicaid Services (CMS)
https://www.cms.gov/About-CMS/Agency-Information/Emergency/EPRO/Current-Emergencies/Current-Emergencies-page

The CMS guidance states in part as follows:

▸ the nursing home should restrict visitation of all visitors and non-essential health care personnel except for certain compassionate care situations, such as end-of-life situations.
▸ They appear to allow each state to enact more restrictive provisions by stating: “If a state implements actions that exceed CMS requirements, such as a ban on all visitations through a governor’s executive order, a facility would not be out of compliance with CMS requirements.”
▸ It is further stated that residents still have a right to access the ombudsman’s program. This program provides for advocacy for a nursing home resident with any type of complaint or problem.

Prior to the issuance of this guidance, administrator, Seema Verma stated: “I’d like to pause to say a word about nursing homes, which have been top of mind for the task force from the beginning. ….. We fully appreciate that this measure represents a severe trial for residents of nursing homes and those who love them but we are doing what we must to protect our vulnerable elderly. Needless to say, the moment we believe these restrictions can be relaxed, we will do so.”

State of Ohio
https://coronavirus.ohio.gov/wps/portal/gov/covid-19/

The governor of Ohio has issued his own pronouncements concerning nursing homes. This is done through the Ohio Department of Health. The first order provided for restrictions similar to those stated by CMS above. However, the second order provided for a total ban on visitation to nursing home residents. This order filed on March 13 states in part:

▸ “No visitors of residents shall be admitted to any home, except for end-of-life situations.”
▸ The order also provides that a nursing home must allow residents to discharge from the nursing home at any time and, in accordance with applicable state and federal law, understanding that residents that then return to the nursing home while this order is in effect are subject to the directives concerning medical screening. In other words, nursing home residents are allowed to leave and return. However, they will be subject to healthcare screening upon return.

Nursing Home Reform Act (resident’s rights)

Nursing home residents are provided with a legal right to have visitors under the federal Nursing Home Reform Act. Ohio law also provides for a Bill of Rights for nursing home residents to receive visitors. The federal statute states that a nursing facility must permit immediate access to a resident, subject to the resident’s right to deny or withdraw consent at any time, by immediate family or other relatives of the resident. The statute does not state any exception for reasons of health or safety. However, the declaration of a national emergency invoking the National Emergencies Act, permits these rights to be restricted or waived during this emergency. Nursing facilities of course still have all their workers coming and going every day to the facility. Their support services are necessary for the residents. However, visitations by family and other loved ones are just as necessary for the emotional support of the resident.

There are very good reasons for trying to protect nursing home residents who are more vulnerable to this virus than are healthier persons. There have already been at least 27 deaths in a nursing home in Kirkland, Washington as a result of the coronavirus. Although family and friends want to visit their loved one, they certainly don’t want to be responsible for introducing the coronavirus that might start an outbreak in the nursing home. This will be difficult for many residents to be cutoff from their loved ones. Some with dementia may not understand what is happening. Hopefully, nursing homes will be flexible and creative and assist with alternative methods of contact such as phone calls, Skype or other type of face time technology or just a visit to the window. Most aged nursing home residents are not very competent with technology and will need to have the devices supplied to them with assistance. Nursing homes will have to have sufficient supplies of needed technology for Skype or face time. The window visit will not be possible for residents in upper level floors or an interior window with no outside access.

How long will this go on? How long will families patiently wait while they can’t visit their loved one? I suspect that nursing homes may make some exceptions beyond simply the end-of-life situations. The CDC and CMS recognize a broader “compassionate care” exception than the Ohio Governor who has enacted a total ban on visits except if the resident is dying. As this situation continues, I hope our Governor will realize that it is compassionate to allow limited visitation with medical screening so our loved ones are not deprived of the needed love and attention from their family and loved ones. We need to balance these reasonable restrictions to protect the residents with their need for contact with their family and loved ones. This balance will change on a day to day basis as the state of the coronavirus changes in the United States. I hope that the current national and Ohio ban will at an appropriate time be changed as circumstances become more favorable.

Protecting Your Estate from Nursing Home Costs:

Medicaid eligibility for nursing home costs, Trusts, risks of gifting to children and understanding Medicaid’s gift transfer rule. Presentation by Michael J. Millonig, Attorney At Law, Certified as an Elder Law Attorney by the National Elder Law Foundation, Ohio State Bar Association Board Certified Estate Planning, Trust and Probate Specialist. Time & Place: Miamisburg Community Center, 305 East Central Avenue, Miamisburg, OH on Wednesday, March 25, 2020 @ 10:00 AM to 11:30 PM. Please call for reservations 866-8999

Cryonics and Nature

I just saw an interesting episode of the BBC America show, Weird Wonders. Part of the show was about how the arctic ground squirrel managed to survive during the winter by having its blood frozen. It also explained that it did not form damaging ice crystals due to the blood containing no impurities. This was Weird Wonders, season one, episode three with the description: “A man gets drunk without drinking alcohol; molecular music.”

The field of Cryonics, advocated by Alcor and The Cryonics Institute, attempts to accomplish the same thing for human beings. Although this may seem like science fiction, it seems more possible when you consider this has been done by the arctic ground squirrel. For more information on the cryonics and the arctic ground squirrel see the following links:
http://www.bbcamerica.com/shows/weird-wonders/season-1/episode-03-episode-3
https://www.cryonics.org/about-us/faqs/
https://www.alcor.org/

For information on special trusts and other estate planning for cryonics patients, see http://www.michaelmillonig.com/practice-areas/cryonics/

The Trump Administration Allows States to Choose Medicaid Block Grants

The Trump administration has unveiled a plan to allow states the option to cap Medicaid spending using block grants. While this change does not directly affect nursing home residents on Medicaid and is billed as a way to improve state flexibility in running Medicaid programs, it could result in significant service cuts. 

Medicaid is a joint federal-state program that functions as an open-ended entitlement program, meaning it does not include any pre-set funding limits. Each state operates its own Medicaid system, but this system must conform to federal guidelines in order for the state to receive federal money, which pays for about half the state's Medicaid costs. The state picks up the rest of the tab.

Announced on January 30, 2020, the Centers for Medicare and Medicaid Services (CMS) plan, dubbed “Healthy Adult Opportunity,” would allow states to apply for block grant funding instead of receiving unlimited matching funds. States that choose to enter such an arrangement would receive a pre-set amount of money in exchange for increased flexibility in how they administer their programs. 

The new funding option applies mainly to healthy adults under 65 who are covered under Medicaid expansion. People needing long-term care and individuals who are 65 and over would not be included in a potential state block-grant project along with children and individuals with disabilities. States also cannot block grant services that are required under the Medicaid statute, such as emergency and hospital services. 

While long-term care beneficiaries may not be directly affected by this new funding structure, there could be an increase in costs to other Medicaid beneficiaries. States that choose block grant funding can increase prescription drug costs or change which prescription drugs are covered. Medicaid traditionally covers all federal-approved drugs, but the new plan allows states to cover just one drug per class. States can also increase co-pays or cut non-emergency services. If enrollment in Medicaid dramatically increases due to a health crisis or a recession, states that received a pre-set amount of funding may not have enough money to cover everyone, resulting in additional cuts to services. 

Opponents of the block grant concept contend it is illegal because only Congress can make such program changes, and litigation against the proposal is almost certain. In addition, it is unlikely that a state could get a waiver before 2021, when there may be a new federal administration.

For more information about the new plan, click here and here.

How Secure Is Social Security?

For years people have been worried about Social Security’s future, but what is the actual outlook? According to the federal government, unless Congress acts to intervene, Social Security shortfalls are expected beginning in 2035.   

Social Security retirement benefits are financed primarily through dedicated payroll taxes paid by workers and their employers, with employees and employers splitting the tax equally. Employers pay 6.2 percent of an employee's income into the Social Security system, and the employee kicks in the same. Self-employed individuals pay the entire 12.4 percent Social Security payroll tax. This money is put into a trust fund that is used to pay retiree benefits. 

The trustees of the Social Security trust fund have reported that if Congress doesn’t take action, the fund’s balance will reach zero in 2035. This is because more people are retiring than are working, so the program is paying out more in benefits than it is taking in. Additionally, seniors are living longer, so they receive benefits for a longer period of time. 

Once the fund runs out of money, it does not mean that benefits stop altogether. Instead, retirees’ benefits would be cut. According to the trustees’ projections, the fund’s income would be sufficient to pay retirees 77 percent of their total benefit. 

Congress can act to shore up Social Security before this happens. Some ideas include eliminating the cap on benefits. Right now, workers only pay Social Security tax on the first $137,700 of income (in 2020). That amount can be increased, so that higher-earning workers pay more in taxes. The Social Security tax or the retirement age could also be increased.

Social Security is immensely popular and lawmakers are unlikely to allow steep benefit cuts to take place. The last time the program was in financial trouble and received a major overhaul was in 1983, when President Ronald Reagan and congressional Democrats struck a deal to increase taxes and gradually raise the retirement age from 65 to 67.

For more information about a the potential Social Security shortfall, click here and here

Feds Release 2020 Guidelines Used to Protect the Spouses of Medicaid Applicants

The Centers for Medicare & Medicaid Services (CMS) has released the 2020 federal guidelines for how much money the spouses of institutionalized Medicaid recipients may keep, as well as related Medicaid figures.

In 2020, the spouse of a Medicaid recipient living in a nursing home (called the “community spouse”) may keep as much as $128,640 without jeopardizing the Medicaid eligibility of the spouse who is receiving long-term care. Known as the community spouse resource allowance or CSRA, this is the most that a state may allow a community spouse to retain without a hearing or a court order. While some states set a lower maximum, the least that a state may allow a community spouse to retain in 2020 will be $25,728.

Meanwhile, the maximum monthly maintenance needs allowance (MMMNA) for 2020 will be $3,216. This is the most in monthly income that a community spouse is allowed to have if her own income is not enough to live on and she must take some or all of the institutionalized spouse’s income. The minimum monthly maintenance needs allowance for the lower 48 states remains $2,113.75 ($2,641.25 for Alaska and $2,432.50 for Hawaii) until July 1, 2020.

In determining how much income a particular community spouse is allowed to retain, states must abide by this upper and lower range. Bear in mind that these figures apply only if the community spouse needs to take income from the institutionalized spouse. According to Medicaid law, the community spouse may keep all her own income, even if it exceeds the maximum monthly maintenance needs allowance.

The new spousal impoverishment numbers (except for the minimum monthly maintenance needs allowance) take effect on January 1, 2020.

For a more complete explanation of the community spouse resource allowance and the monthly maintenance needs allowance, click here.

Home Equity Limits:

In 2020, a Medicaid applicant’s principal residence will not be counted as an asset by Medicaid if the applicant’s equity interest in the home is less than $595,000, with the states having the option of raising this limit to $893,000.

For more on Medicaid’s home equity limit, click here.

 

Nursing Home Mandatory Binding Arbitration Provisions

Upon admission to a nursing facility, the resident will be required to sign a residency agreement. This agreement will specify all the terms and conditions of the residency concerning fees, the rights and responsibilities of the resident and obligations of the facility. Many facilities have tried to insert mandatory binding arbitration provisions into these agreements so they can avoid lawsuits. Such a clause prohibits the resident from filing a lawsuit in a court of law. These type of arbitration clauses have been the subject of much litigation with some courts upholding them and others holding them to be unenforceable. Thus, you will not have the rights that are provided to you under the law in an arbitration proceeding and you will not be allowed to have a jury trial determination of any dispute with the facility.

Prior to the last presidential election, the federal Medicare and Medicaid agency had issued rules restricting these type of arbitration agreements for long term care facilities. With the new administration, these rules were put on hold. However, new final rules have finally been issued which are somewhat of a compromise between the old and new administration’s policies. Some of the provisions of this new rule are as follows:

The facility may not require a resident or his representative to sign an agreement for binding arbitration as a condition of admission. In other words, they can ask you to sign this voluntarily but not require it. You need to read the agreement carefully to understand this distinction and refuse to sign this portion of the agreement. In general, mandatory arbitration is clearly advantageous for the facility and disadvantageous for the resident.

The agreement must provide for the selection of a neutral arbitrator agreed upon by both parties and a venue convenient to both parties.

The resident must be given a 30 day calendar period during which they can rescind this agreement to arbitrate.

If you are asked to sign a nursing home residency agreement for yourself or another person, you should make sure you understand all provisions before you sign. It is best to have an elder law attorney advise you prior to signing. There is no reason or advantage for the nursing home resident to agree to binding arbitration.

Ohio Medicaid 2020 Miller Trust inflation adjustment

The Ohio Medicaid annual inflation adjustment for income eligibility was just published by the Ohio Department of Medicaid. An applicant with income over the income standard is ineligible for Medicaid even if one dollar over the limit. For residents of skilled nursing facilities, the new income standard for 2020 is $2349 per month. Any current nursing home resident’s on Medicaid should check to verify that their gross monthly income before deductions is less than $2349. If over, you need to immediately set up a special trust called a Qualified Income Trust (aka Miller Trust) which can be used to achieve eligibility.

Tips on Creating an Estate Plan that Benefits a Child with Special Needs

Parents want their children to be taken care of after they die. But children with disabilities have increased financial and care needs, so ensuring their long-term welfare can be tricky. Proper planning by parents is necessary to benefit the child with a disability, including an adult child, as well as assist any siblings who may be left with the caretaking responsibility.

Special Needs Trusts
The best and most comprehensive option to protect a loved one is to set up a special needs trust (also called a supplemental needs trust). These trusts allow beneficiaries to receive inheritances, gifts, lawsuit settlements, or other funds and yet not lose their eligibility for certain government programs, such as Medicaid and Supplemental Security Income (SSI). The trusts are drafted so that the funds will not be considered to belong to the beneficiaries in determining their eligibility for public benefits.

There are three main types of special needs trusts:

  • A first-party trust is designed to hold a beneficiary’s own assets. While the beneficiary is living, the funds in the trust are used for the beneficiary’s benefit, and when the beneficiary dies, any assets remaining in the trust are used to reimburse the government for the cost of medical care. These trusts are especially useful for beneficiaries who are receiving Medicaid, SSI or other needs-based benefits and come into large amounts of money, because the trust allows the beneficiaries to retain their benefits while still being able to use their own funds when necessary.
  • The third-party special needs trust is most often used by parents and other family members to assist a person with special needs. These trusts can hold any kind of asset imaginable belonging to the family member or other individual, including a house, stocks and bonds, and other types of investments. The third-party trust functions like a first-party special needs trust in that the assets held in the trust do not affect a beneficiary’s access to benefits and the funds can be used to pay for the beneficiary’s supplemental needs beyond those covered by government benefits. But a third-party special needs trust does not contain the “payback” provision found in first-party trusts. This means that when the beneficiary with special needs dies, any funds remaining in the trust can pass to other family members, or to charity, without having to be used to reimburse the government.
  • A pooled trust is an alternative to the first-party special needs trust.  Essentially, a charity sets up these trusts that allow beneficiaries to pool their resources with those of other trust beneficiaries for investment purposes, while still maintaining separate accounts for each beneficiary’s needs. When the beneficiary dies, the funds remaining in the account reimburse the government for care, but a portion also goes towards the non-profit organization responsible for managing the trust.

Life Insurance
Not everyone has a large chunk of money that can be left to a special needs trust, so life insurance can be an essential tool. If you’ve established a special needs trust, a life insurance policy can pay directly into it, and it does not have to go through probate or be subject to estate tax. Be sure to review the beneficiary designation to make sure it names the trust, not the child. You should make sure you have enough insurance to pay for your child’s care long after you are gone. Without proper funding, the burden of care may fall on siblings or other family members. Using a life insurance policy will also guarantee future funding for the trust while keeping the parents’ estate intact for other family members. When looking for life insurance, consider a second-to-die policy. This type of policy only pays out after the second parent dies, and it has the benefit of lower premiums than regular life insurance policies.

ABLE Account
An Achieving a Better Life Experience (ABLE) account allows people with disabilities who became disabled before they turned 26 to set aside up to $15,000 a year in tax-free savings accounts without affecting their eligibility for government benefits. This money can come from the individual with the disability or anyone else who may wish to give him money.

Created by Congress in 2014 and modeled on 529 savings plans for higher education, these accounts can be used to pay for qualifying expenses of the account beneficiary, such as the costs of treating the disability or for education, housing and health care, among other things. ABLE account programs have been rolling out on a state-by-state basis, but even if your state does not yet have its own program, many state programs allow out-of-state beneficiaries to open accounts. (For a directory of state programs, click here.)

Although it may be easy to set up an ABLE account, there are many hidden pitfalls associated with spending the funds in the accounts, both for the beneficiary and for her family members. In addition, ABLE accounts cannot hold more than $100,000 without jeopardizing government benefits like Medicaid and SSI. If there are funds remaining in an ABLE account upon the death of the account beneficiary, they must be first used to reimburse the government for Medicaid benefits received by the beneficiary, and then the remaining funds will have to pass through probate in order to be transferred to the beneficiary’s heirs.

Get Help With Your Plan
However you decide to provide for a child with special needs, proper planning is essential. Talk to your attorney to determine the best plan for your family. To find a directory of members of the Academy of Special Needs Planners, visit https://specialneedsanswers.com/USA-special-needs-planners.

How to Get Good Hospice Care: Hard-Won Advice from the Pennsylvania Nurse Prosecuted for Aiding Her Father’s Death

Barbara Mancini, RN, MSN

In February 2013, Barbara Mancini was arrested in Pottsville, Pennsylvania, and charged with aiding the attempted suicide of her dying 93-year-old father, Joseph Yourshaw. Ms. Mancini, a registered nurse in Philadelphia, had handed him his prescribed morphine at his request. After Mr. Yourshaw took the morphine, his hospice nurse called 911. The hospice nurse and the police ignored Mr. Yourshaw’s written advance directives about the kind of care he wanted at the end of his life, and he was hospitalized and treated in defiance of his wishes.  He died at a hospital four days later.

Ms. Mancini’s prosecution lasted a year, during which the case garnered national attention and was roundly criticized in the media. The charges against Ms. Mancini were finally dismissed when a judge ruled that there was insufficient evidence to send the case to jurors.

In the years since, Ms. Mancini has become a vocal advocate for improved end-of-life care.  She believes that one of the main reasons for the ordeal that her father had to endure in his final days was the failure of his hospice provider to deliver the care he was entitled to.

In a podcast conversation with ElderLawAnswers, Ms. Mancini explains how families can advocate for good hospice care for their loved ones and avoid the nightmare that she and her father endured. As she says in the podcast, “My biggest regret is that I didn’t do more to research hospice care. . . . Hospice is a vital end-of-life care option. The problem is that hospices vary greatly in the quality of care that they provide.”

Medicare’s hospice benefit covers any care that is reasonable and necessary for easing the course of a terminal illness. Among the crucial requirements hospices must follow are that a patient has a right to receive effective pain management and symptom control, and that the hospice must provide care that optimizes comfort and dignity, with the patient’s needs and goals as the top priority.

Many people are satisfied with their hospice care. But information has come to light of problems with some hospice providers. The U.S. Department of Health and Human Services Office of Inspector General (OIG) issued a disturbing 41-page report in 2018, finding that hospices do not always provide needed services to beneficiaries and sometimes provide poor quality care. A more recent OIG report highlights hospice deficiencies that pose risks to Medicare beneficiaries.

These revelations underline the importance of carefully selecting a hospice provider. Ms. Mancini suggests asking for recommendations from friends and family members as well as professionals. But she also strongly advises doing your own research to make sure that you are picking the right provider, and she offers a list of questions to ask when interviewing a hospice:

  • Is staff available 24 hours a day, 7 days a week?
  • How do you ensure that patients obtain their desired level of comfort?
  • Who will direct the hospice patient’s care?
  • What education is provided for the patient and caregivers?
  • Will you ever override a patient’s advance directive? Under what circumstances?
  • How many patient and caregiver complaints were received in the last year? How were they resolved?
  • How many patients and caregivers have terminated services? What are the reasons?
  • Is the hospice concerned about opiate addiction in its patients? (“If the answer is yes, run, don’t walk, away from that hospice,” Ms. Mancini counsels.)

The best end-of-life care is based on the individual patient’s values and wishes. For this reason, Ms. Mancini stresses the importance of advance directives, so the patient’s wishes are in writing. She also believes in the importance of individuals being well-informed about the rights of the patient and the responsibilities of hospice providers.

To listen to the full podcast episode, click here.  This is Part 2 of a two-part interview with Ms. Mancini.  For Part 1, in which Ms. Mancini recounts the events that led to her prosecution for her father’s death, click here.

For more on hospice care, click here and here.

For more on end-of-life decision making, click here.