Welcome to My Blog

Attorney Michael MillonigHi,

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

I have been a certified specialist in elder law since 1998. [see https://www.michaelmillonig.com/cela-certification/ ]. There are frequent changes in elder law, estate planning, trust and probate law. The Ohio Medicaid program is constantly changing even at the county level. It is difficult for me to keep you up to date with my email newsletter, seminars or client appointments. That’s why I’ve started this blog.

I will try to keep you updated on new developments in elder law, estate planning, trust and probate. I will particularly be focusing on local issues in Dayton and Ohio law in general. Some specific topics I will cover are: caring for aging parents, nursing homes, assisted living facilities, home care, independent senior retirement communities, Ohio’s Medicaid program, protecting your estate from nursing home costs, revocable living trusts, avoiding probate, financial powers of attorneys, health care powers of attorney, living wills and other topics related to elder law.

Hopefully you enjoy what you find here and learn some things. 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.

Michael Millonig selected for Best Lawyers in America- Elder Law

Michael J. Millonig has been selected for inclusion in the 27th Edition of The Best Lawyers in America in the practice area of Elder Law. Inclusion in Best Lawyers is based on a rigorous peer-review survey comprising a total of more than 9.4 million confidential evaluations by top attorneys across the nation. This rankling is reserved for the top 5% of private practice attorneys nationwide. For more information see  https://www.bestlawyers.com/ Michael has also been Certified as an Elder Law Attorney by the National Elder Law Foundation since 1998, is an OSBA Board Certified Estate Planning, Trust and Probate Specialist and a member of the National Academy of Elder Law Attorneys since 1991. The practice of elder law includes preparation of wills, trusts, powers of attorney, living wills, probate, guardianships, planning for special needs children, asset protection planning from lawsuits and protecting estates from nursing home costs.

Which Nursing Home Rating System Should You Trust?

Choosing a nursing home for a loved one is a difficult decision and it can only be made more confusing by the various rating systems. A recent study found that using both Medicare’s Nursing Home Compare site and user reviews can help with the decision making.

The official Medicare website includes a nursing home rating system. Nursing Home Compare offers up to five-star ratings of nursing homes based on health inspections, staffing, and quality measures. See https://www.medicare.gov/nursinghomecompare/search.html However, Medicare’s rating system is far from perfect. The staff level and quality statistics ratings are based largely on self-reported data that the government does not verify. The ratings also do not take into account state fines and enforcement data or consumer complaints to state agencies. Nursing homes have learned how to game the system to improve their ratings.

While Nursing Home Compare doesn’t include consumer feedback, Yelp and other online platforms like Facebook, Google, and Caring.com allow users to review individual nursing homes. These user reviews are highly subjective, and it can be difficult to judge their legitimacy. These reviews are not usually taken seriously–for example, consumer guides to finding a nursing home do not usually suggest that consumers consult online reviews. (It should be noted, however, that Caring.com goes to great lengths to ensure the integrity of its reviews, including having senior care experts read every submission before publication.) See https://www.caring.com/about/review_guidelines/

In order to better understand what consumers were saying about nursing homes online, researchers at the University of Southern California evaluated 264 Yelp reviews and grouped them into categories. The researchers found that consumers rate different aspects of nursing home care than does the official rating system. User reviews were more emotional and more likely to focus on staff attitudes and responsiveness rather than on the quality of health care. See https://academic.oup.com/gerontologist/article/58/4/e273/4980329

The researchers concluded that user reviews can be used in conjunction with the Nursing Home Compare site to paint a fuller picture of life at the nursing home because they present complementary information. According to the study, online reviews shouldn’t be dismissed because they “directly capture the voices of residents and family members, precisely the kind of information nursing homes and their consumers need to hear and may want to act on, if resident-directed care is to be achieved.”

Yelp has gone a step further than other consumer review sites and has teamed up with the investigative news organization, ProPublica, to provide users with additional information. ProPublica’s Nursing Home Inspect site, allows users to compare nursing homes based on federal data. Yelp users viewing a nursing home review page see a ProPublica box that provides information on the nursing home’s deficiencies and fines.

To read an article about the study, See
https://www.nytimes.com/2018/05/11/health/nursing-home-ratings-yelp.html

Profile of Older Americans

A report tiled the 2019 Report on Older Americans was just released by the Administration on Aging (AoA), part of the Administration for Community Living, an operating division of the U.S. Department of Health and Human Services. Some of the many interesting facts revealed are:

1. Over the past 10 years, the population age 65 and older increased from 38.8 million in 2008 to 52.4 million in 2018 (a 35% increase) and is projected to reach 94.7 million in 2060.

2. In 2018, older women outnumber older men at 29.1 million older women to 23.3
million older men.

3. A larger percentage of older men (69%) were married as compared to older women (47%). In 2019, 31% of older women were widows.

4. The need for caregiving increases with age. In 2018, the percentage of older adults age 85 and older who needed help with personal care (21%) was more than twice the percentage for adults ages 75–84 (8%) and five times the percentage for adults ages 65–74 (4%).

5. The 85 and older population is projected to more than double from 6.5 million in 2018 to 14.4 million in 2040 (a 123% increase).

6. There were 93,927 persons age 100 and older in 2018 – almost triple the 1980 figure of 32,194.

7. The older population is expected to continue to grow significantly in the future. Growth slowed somewhat during the 1990’s because of the relatively small number of babies born during the Great Depression of the 1930’s. But the older population is beginning to burgeon again as more than one-third (36%) of the “baby boom” generation is now age 65 and older.

8. The population age 65 and older increased from 38.8 million in 2008 to 52.4 million in 2018 (a 35% increase) and is projected to reach 94.7 million in 2060. By 2040, there will be about 80.8 million older persons, more than twice as many as in 2000.

The full report is available at
https://acl.gov/aging-and-disability-in-america/data-and-research/profile-older-americans

How Will the Coronavirus Pandemic Affect Social Security?

The coronavirus pandemic is having a profound effect on the current U.S. economy, and it may have a detrimental effect on Social Security’s long-term financial situation. High unemployment rates mean Social Security shortfalls could begin earlier than projected.

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. This money is put into a trust fund that is used to pay retiree benefits. The most recent report from the trustees of the Social Security trust fund is that 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, unless Congress acts in the interim. According to the trustees’ projections, the fund’s income would be sufficient to pay retirees 77 percent of their total benefit.

With unemployment at record levels due to the pandemic, fewer employers and employees are paying payroll taxes into the trust fund. In addition, more workers may claim benefits early because they lost their jobs. President Trump has also floated a suspension of payroll taxes as a form of economic relief, which could negatively affect Social Security and Medicare funds.

Some experts believe that the pandemic could move up the depletion of the trust fund by two years, to 2033, if the COVID-19 economic collapse causes payroll taxes to drop by 20 percent for two years. Other experts argue that it could have a greater effect and deplete the fund by 2029. However, as the Social Security Administration Chief Actuary morbidly noted to Congress, this pandemic different from most recessions: the increased applications for benefits will be partially offset by increased deaths among seniors who were receiving benefits.

It remains to be seen exactly how much the pandemic affects the Social Security trust fund, but the experts agree that as soon as the pandemic ends, Congress should take steps to shore up the fund.

For more information about the pandemic and Social Security benefits, click here  https://www.nextavenue.org/pandemic-could-shrink-social-security-benefits/

Wife finds loophole to visit husband in nursing home

It has been very difficult for families with a loved one in a nursing home not being able to visit them. One women figured out a creative way to see her husband on a regular basis. She got a job at the nursing home washing dishes.

https://www.foxnews.com/us/wife-dishwashing-job-nursing-home-alzheimers-husband

The CDC and Ohio Dept. of Health are continually revising their guidelines and orders concerning nursing home visitation. I will try to post any new developments in this area on this blog.

Ohio Nursing home visitation amended COVID orders

The Ohio Dept. of Health has issued its fourth amended order concerning Ohio nursing homes. The biggest change is that it now allows residents to have their family and friends visit. However, the visit must be outdoors. Some of the requirements for this visit are:

1. Visitors are screened before admittance with a list of health questions and temperature check.
2. Visitors must wear a mask.
3. No visitors under age 2.
4. No more than 3 visitors per visit.
5. Limit of one hour.

The new rule now allows communal activities, including dining, for residents but with use of safety protocols and social distancing.

This order is effective as of July 20, 2020.

For more information, you can read the order here https://coronavirus.ohio.gov/wps/portal/gov/covid-19/resources/public-health-orders/public-health-orders

Funerals during Covid-19

The coronavirus pandemic has made traditional funeral services very difficult for the family and friends of the deceased. The CDC guidelines for social distancing and state governmental restrictions on gatherings of large groups are major obstacles to a typical funeral service. It is a normal part of the grieving process for us to get together with our family, friends and loved ones to talk, cry, hug each other and seek solace in our loss. Yet all these behaviors could result in a dramatic spread of the coronavirus among those attending the service. One safe option would be to simply have no funeral service.

The CDC has issued a funeral guidance with some information on how to adjust during this time of pandemic.
https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/funeral-guidance.html?deliveryName=USCDC_2067-DM29427

The guidance has a lot of information; perhaps too much. It is worth reading but I think it is still hard to figure out how to plan a service based on that information. A funeral director can provide some more specific consultation to assist with planning a service. I will address a few of these issues below with my thoughts and comments. See the following link for more general checklists on planning for funerals. /practice-areas/funerals-burial/

One of the recommendations is to limit the size of the funeral. It is also suggested to not include persons who are out of town. The guidelines then states that a larger service can be planned at a later time. These are good suggestions although I suspect that putting off the service for later time could result in no service ever being done.

Another suggestion is to hold the service outdoors. The persons attending should then space themselves out keeping a proper social distance, no hugging or handshakes. This is also a good suggestion weather permitting. However, as stated above, social distance is contrary to what many of us need at such a time.

The usual advice concerning face coverings, washing hands and no coughing should also be part of the ceremony.

The guidelines also suggest use of online services, phone communications, virtual tributes online etc. There should also be no sharing of car rides except for members of the same household. A traditional meal or food in buffet format is not a good idea. Use of pre-packaged food would be safer or you could just not offer food as part of the funeral service.

All the above are certainly good guidelines which I cannot argue with. The only problem I have is that human beings are social animals. We need to be with each other physically – not virtually. We all need human contact especially in difficult times. However, we must be aware of the possible consequences of spreading the coronavirus among all our family and friends if we get together at a funeral service. Pandemics, floods, famine, earthquakes, and wars have been part of our history since the beginning of civilization. We will get through this difficult time and I believe everything will return to normal in the near future.

Is It a Good Idea to Bring Your Parent Home from the Nursing Home During the Coronavirus Pandemic?

With the coronavirus pandemic hitting nursing homes and assisted living facilities especially hard, families are wondering whether they should bring their parents or other loved ones home. It is a tough decision with no easy answers.

The number of coronavirus cases in nursing homes and assisted living facilities across the country continues to grow. A Washington state nursing home was one of the first clusters of coronavirus reported in the United States, with at least 37 deaths associated with the facility.  NBC news reported on April 16 that coronavirus deaths in long-term care facilities across 29 states had soared to 5,670.  “In New Jersey,” NBC added, “the virus has spread to more than 95 percent of the state’s 375 long-term care facilities, according to state health officials.”

In an effort to contain the virus’s spread, most long-term care facilities are limiting or excluding outside visitors, making it hard to check on loved ones. Social activities within the facility may also be cancelled, leading to social isolation for residents. In addition, long-term care facilities face staffing shortages even in the best of times. With the virus affecting staff as well as residents, facilities are having trouble providing needed care. Assisted living facilities, which are not heavily regulated, may have greater trouble containing the virus than nursing homes because their staff is not necessarily medically trained.

With this in mind, many families are considering bringing their loved ones home. A Harvard epidemiologist is warning that nursing homes are not the best place to house the vulnerable elderly at this time. And a local judge in Dallas has recommended that families remove their loved ones from infected facilities. Before taking this extreme step, however, you need to consider the following questions:

  • Is your family able to provide the care that your loved one needs? Some patients require help with eating, dressing, medication, and going to the bathroom. You need to consider whether you can adequately provide that care at home. In addition to your loved one’s practical needs, you need to think about your physical and emotional stamina. Also, is your house set up to safely accommodate your family member? Are there a lot of stairs? Does the bathroom have rails? If your loved one has dementia, there may be other considerations to take into account.
  • How well can you prevent infection? Will you be better able to prevent infection than a nursing home? If your entire household is homebound, you may be in a good position to prevent bringing home the virus. However, if one or more members of your household is working outside of the home, you will have to take extra precautions to make sure you don’t bring the virus to your loved one. Are you taking the necessary precautions to keep your house and yourself disinfected?
  • Will the resident be allowed to return to the facility when the threat of the virus has abated? If you take your family member out of the nursing home or assisted living facility, the facility may not let your family member back in right away. You should check with the facility to determine if your loved one will be able to return.

Bringing a family member home is a hard decision and it depends on the individual circumstances of each family. For more on the considerations involved, click here and here.

 

How Your Stimulus Check Affects Medicaid Eligibility

The coronavirus relief bill includes a direct payment to most Americans, but this has Medicaid recipients wondering how the payment will affect them. Because the payment is not income, it should not count against a Medicaid recipient’s eligibility.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act provides a one-time direct payment of $1,200 to individuals earning less than $75,000 per year ($150,000 for couples who file jointly), including Social Security beneficiaries. Individuals earning up to $99,000 ($198,000 for joint filers) will receive smaller stimulus checks. Payments are based on either 2018 or 2019 tax returns.

The basic Medicaid rule for nursing home residents is that they must pay all of their income, minus certain deductions, to the nursing home. If the stimulus payment were considered income, it would likely have to go straight to the nursing home. Since in most states Medicaid recipients cannot have more than $2,000 in assets, there was also concern that the stimulus payments could put many recipients over the asset limit.

In a blog post, the commissioner of the Social Security Administration (SSA) has clarified that the SSA will not consider stimulus payments as income for Supplemental Security Insurance (SSI) recipients, and the payments will be excluded from resources for 12 months. Because state Medicaid programs cannot impose eligibility requirements that are stricter than SSI requirements, the payments should not affect Medicaid eligibility.

 

Coronavirus Relief Funds Paid to Deceased Americans Must Be Returned

The federal coronavirus relief bill has sent direct emergency payments to some 150 million Americans in the wake of the pandemic. Among the recipients are possibly millions of deceased individuals, raising questions about what their survivors should do with the money. After weeks of silence, the IRS has finally confirmed that the money should be returned and explained how to do it.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law March 27, 2020, included one-time payments of up to $1,200 to millions of eligible individuals, based on their income. To determine who was eligible, the IRS looked at 2018 and 2019 tax returns, without first cross-checking with the Social Security Administration’s master file of U.S. deaths, which apparently would have taken weeks.

As a result, some individuals who passed away after filing 2018 or 2019 taxes have been receiving relief payments, causing confusion for their families. According to the Centers for Disease Control and Prevention, 2.8 million people died in 2018, which means the IRS potentially could have sent out millions of checks to deceased individuals. Although Treasury Secretary Steven Mnuchin said in an interview that the money had to be returned, the IRS was slow to explain how exactly to go about doing that. 

The IRS has now issued guidance, clarifying that the money must be returned. According to the agency, the full amount of the payment sent to a deceased individual should be returned unless there is a surviving spouse. In that case, only the deceased spouse’s portion should be returned. Checks should be voided and returned by mail to the IRS. If a family member cashed a check or the money was received via direct deposit, the recipient of the funds should send the funds back via a personal check or money order. 

Whether you have to return the money is another question. “There’s no legal interpretation,” Nina Olson, a former IRS official and current executive director of the Center for Taxpayer Rights, told The Wealth Advisor.  “I don’t know how they’re basing their decision” to request the money be returned.  Olson said it is “unlikely” the IRS would sue taxpayers for the erroneously awarded stimulus money.

For further instructions on how to return the payment, click here.