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.

Nursing Homes Grapple with Whether to Force Staff to Get Vaccinated

As COVID-19 cases start to rise again due to the highly contagious Delta variant, nursing homes are considering requiring staff members to be vaccinated. Only 59 percent of nursing home staff are partially or fully vaccinated nationwide, and the percentages are much lower in some states.

While 81 percent of nursing home residents are fully vaccinated, the numbers are much lower for staff. Louisiana and Florida have the lowest percentages of vaccinated staff at 43.17 percent and 44.22 percent vaccinated, respectively. Moreover, staff with the closest contact with residents are the least likely to be vaccinated, according to new research.

All this could leave elderly vulnerable to infection, even if they are vaccinated themselves. While the vaccines are very effective, breakthrough infections are possible. And due to weakened immune systems, some elderly individuals may not respond fully to the vaccine.

According to the Centers for Medicare and Medicaid Services, more than 133,000 nursing home residents and nearly 2,000 staff members have already died of COVID-19, and this is likely an undercount because facilities did not begin reporting data until May 2020. While cases began declining when vaccines became available, they are inching up again due to the Delta variant, which has been found to be more transmissible than the common cold. Unvaccinated staff are being blamed for an outbreak in a Colorado nursing home that led to 16 infections and four deaths. There have been similar outbreaks in other states.

Health care organizations had been resistant to vaccine requirements for fear that they would cause lawsuits and staff defections, but in light of the low vaccination rates among staff and the risks to nursing home residents, some senior living organizations have begun requiring employees to get vaccinated. The number two nonprofit senior living organization in the United States, Good Samaritan Society, is the largest care organization to require a COVID-19 vaccine as a condition of employment.

“Nearly all new COVID-19 cases, hospitalizations and deaths are among unvaccinated people, and the overwhelming data confirms that the vaccines are not only safe, but the best and most reliable way to prevent transmission of the virus,” Jeremy Cauwels, M.D., Chief Physician of Good Samaritan’s parent company, Sanford Health, said in a statement.

According to McKnight’s Long-Term Care News, at least 20 other senior living companies have also instituted vaccine requirements. And more are following suit as health care leaders increase the pressure for vaccine mandates, including a joint statement from the American Medical Association and 54 other health care organizations in support of vaccine requirements for health care and long-term care personnel

Britney Spears Case: A General Explanation of guardianship law

The Britney Spears case has drawn a lot of media attention lately. I’m not going to comment on her situation specifically except to say that the media has done a very poor job of reporting on this case. I have heard none of the so-called experts give any general explanation of the law or procedures relating to conservatorships in California. Most of their commentators have a background in criminal law, civil litigation or constitutional law. The media should be interviewing a California Elder law or probate attorney who actually works in this area of law. I am going to explain a few general principles concerning this area of law. However, my comments are qualified by the fact that I am not a California attorney and not familiar with California conservatorship law and I do not know the facts or evidence in the Britney Spears case.

A conservatorship under California law is in most states referred to as a guardianship for an adult. By way of analogy, I will explain guardianship law and procedure under Ohio law. A person who applies in probate court to be appointed as the guardian of an adult must provide medical evidence that the person (called the ward) is mentally incompetent. The applicant initiating the proceedings is asking to be appointed guardian of the property to manage all assets and guardian of the person to make medical and personal decisions. The proposed ward is given notice and an opportunity to contest the application for guardianship. The proposed ward has a right to hire their own attorney. The court will have a hearing and make a decision on whether a guardianship should be established and whether the person applying is qualified to serve as guardian. The court supervises all the activities of the guardian and must approve all expenditures and other decisions. The court can sanction or remove the guardian if they do anything improper or in violation of the law. It is more appropriate to say that the court is in charge of the Ward than to characterize the guardian as being in control of the Ward’s life. If the Ward at some point believes he/she has recovered and is mentally competent, he/she can petition the court for termination of the guardianship. The Ward will have to provide medical evidence of their competency. The Ward may not be pleased with the court’s ultimate decision to establish or continue the guardianship. This is why we have courts of appeal that can reverse the lower court decision of a judge.

It is important to understand that the purpose of the guardianship is to protect the Ward from unscrupulous persons who may steal their money or from themselves making poor financial decisions. A person who is mentally incompetent obviously is not qualified to manage their money. Without this protection, many incompetent persons can lose much if not all of their money and estate.

As I stated above, I do not know the relevant California law or the facts and evidence in the Britney Spears case and am not in any way expressing an opinion on her case.

Empowering Elders with Tech

any persons in our oldest generation are not very competent with computers and all the other new electronic devices. I think baby boomers are a mixed bag with some very competent and others not so competent. The following two links provide some good information and assistance to help the tech challenged among us learn how to operate in this new electronic commerce and digital world.

Calming Computer Jitters: Help for Seniors Who Aren’t Tech-Savvy

https://www.generationsonline.com/

Medicaid’s Home Care Waivers Can Help You Avoid a Nursing Home, But the Line May Be Long

Medicaid long-term care benefits traditionally pay mainly for nursing home care, but the federal government can grant “waivers” to states allowing them to expand Medicaid to include home and community-based services. The downside is that receiving care in a nursing home is an entitlement, while getting care at home is not.

Medicaid is a joint federal-state program that provides health insurance coverage to low-income children, seniors, and people with disabilities. In addition, it covers care in a nursing home for those who qualify. 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.) A Medicaid waiver allows states to waive some of the federal rules with the intention of providing services to individuals who wouldn’t normally be covered by Medicaid. The waiver must be approved by the federal government.

The most common type of Medicaid waiver expands Medicaid to cover home care to individuals who need a high level of care, but who would like to remain at home rather than enter a nursing home. Care that may be provided by a waiver includes personal attendants, home health aides, medical supplies and equipment, respite care, counseling services, transportation, homemaking services, hot meal delivery, and more.

Each state sets up its own waiver program, so the rules and requirements vary widely. Usually, to qualify an applicant must need a level of care similar to what is needed to qualify for Medicaid coverage in a nursing home. The point of the waiver is to allow an individual who would normally need nursing home care to remain at home, which is typically a far less costly form of care. States may also target different health conditions, such as HIV, Alzheimer’s disease, diabetes, cystic fibrosis, among others. Each state also sets its own income and asset levels for its waiver programs, which may vary from state to state, and may be different from the income and asset levels used for Medicaid coverage of nursing home care.

The downside of state waiver programs is that waivers are not an entitlement, meaning that states are allowed to limit the number of people who qualify for services under a waiver. Just because an applicant meets the criteria for eligibility does not mean the applicant will be approved for the services. As a result, waitlists for filled programs can run for months or years.

To find out your Medicaid home care options, you should check with your elder law attorney. To find an attorney near you, click here.

Estate Planning & Elder Law Overview

June 24, 2021

Topics Covered: Wills, Trusts, Probate, Avoiding Probate, Estate Tax, Powers of Attorney, Health Care Powers of Attorney and Living Wills. Time & Place: RecWest Enrichment Center Dining Room, Washington Township Rec. Center, 965 Miamisburg-Centerville Rd., Centerville Ohio 45459 — June 24, 2021 @ 1:00 P.M. to 2:30 P.M.. Please call (937) 433-0130; select option 1, then select option 2 for reservations or register online https://webtrac.washingtontwp.org/wbwsc/webtrac.wsc/SPLASH.html

How You Can End Up in Medicare’s Donut Hole, and How You Get Out

Medicare prescription drug (Part D) plans can have a coverage gap—called the “donut hole”–which limits how much Medicare will pay for your drugs until you pay a certain amount out of pocket. Although the gap has gotten much smaller since Medicare Part D was introduced in 2006, there still may be a difference in what you pay during your initial coverage compared to what you might pay while caught in the coverage gap.

When you first sign up for a Medicare prescription drug plan, you will have to pay a deductible, which can’t be more than $445 (in 2021). Once you’ve paid the deductible, you still need to cover your co-insurance (also called co-payment) amount (depending on your drug plan), but Medicare will pay the rest. Co-insurance is usually a percentage (for example, 20 percent) of the cost of the drug. If you pay co-insurance, these amounts may vary throughout the year due to changes in the drug’s total cost.

Once you and your plan pay a total of $4,130 (in 2021) in a year, you enter the coverage gap, aka the notorious donut hole. Previously coverage stopped completely at this point until total out-of-pocket spending reached a certain amount. However, the Affordable Care Act has mostly eliminated the donut hole. In 2021, until your total out-of-pocket spending reaches $6,550, you’ll pay 25 percent for brand-name and generic drugs. Once total spending for your covered drugs exceeds $6,550 (the “catastrophic coverage” threshold for 2021), you are out of the coverage gap and you will pay only a small co-insurance amount. For more from Medicare on coinsurance drug payments, click here.

Once you are in the coverage gap, your yearly deductible and co-insurance payments count toward the amount you need to pay to reach catastrophic coverage. The amount of out-of-pocket costs that you have to pay to reach catastrophic coverage will vary, depending on the type of drugs you take. In the case of brand name drugs, you will pay only a certain percentage of the price, but the entire price will count toward the amount you need to qualify for catastrophic coverage. With generic drugs, only the amount you pay will count toward getting you out of the donut hole. For more information about the coverage gap, click here

Bear in mind that only payments for drugs that are covered by your plan count towards the out-of-pocket threshold. Your premium and the portion of the drug cost that Medicare pays do not count toward reaching catastrophic coverage, either. Also, any help with paying for Medicare Part D costs that you receive from an employer health plan or other insurance does not count toward this limit.

For more information about Medicare’s prescription drug benefit, click here.

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, Listed in Best Lawyers in America: Elder 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.

Topics Covered
▸ Review of all new changes resulting from Ohio’s conversion to an SSI/1634 State
▸ New Medicaid income eligibility rule
▸ Miller Trusts (a.k.a. Qualified Income Trusts) now required for many applicants
▸ Medicaid eligibility
▸ Asset protection strategies
▸ Resource exemptions for the community spouse (spouse at home)
▸ Use of Trusts to protect estates
▸ Medicaid Annuities
▸ Risks of gifting to children
▸ Understanding Medicaid’s Gift Transfer rule
▸ New rule for Residence exemption for single persons & our success with exemptions
▸ Insurance for nursing home care
▸ Special Needs Trusts under Medicaid law for children with disabilities

Presented in association with the WashingtonTwp/Centerville Library. Date & online sign up: Wednesday, May 26, 2021 @ 3:00 PM to 4:30 PM. This is not an in-person presentation at the library. To sign up online for this virtual online presentation via Webex go to:

https://wclibrary.evanced.info/signup/EventDetails?EventId=13785&backTo=Calendar&startDate=2021/05/01

Bernie Sanders plan to increase federal estate tax

It has been said that no one is safe when the legislature is in session. Bernie Sanders has introduced a bill in Congress called the “For the 99.5% Act.” It would reduce the federal estate tax exemption amount (now $11,700,000) down to 3.5 million dollars. Rates would also be raised to 50%, 55% & 60%. Family Limited Partnership estate plans would be eliminated or at least made much more difficult. These FLP plans have been popular in the last 30 years to reduce federal estate tax and accomplish other estate planning objectives. The Dynasty Trust exemption from generation skipping tax would also be limited to 50 years. Dynasty trust plans are a great way to protect the estate for children, grandchildren and later generations. For more information of dynasty trusts see  https://www.michaelmillonig.com/practice-areas/trusts/#Dynasty

Medicaid Recipients Have a Little More Time to Spend Down Their Stimulus Money

The one-year deadline for nursing home residents on Medicaid to spend down their first round of stimulus checks is here, but they may have a little extra time.

In March 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act authorized $1,200 stimulus checks to most Americans, including Medicaid recipients. Another round of $600 checks was authorized in December 2020, and $1,400 checks were authorized in February 2021. The stimulus checks are not considered income for Medicaid recipients, and the payments have been excluded from Medicaid’s strict resource limits for 12 months.

While the one-year deadline for spending down the first round of checks is here, another COVID-19 bill gives beneficiaries more time. The Families First Coronavirus Response Act passed in March 2020 provides that if you were enrolled in Medicaid as of March 18, 2020, the state cannot terminate a recipient’s benefits even if there is a change in circumstances that would normally cause the benefits to be stopped. The law states that the recipient’s Medicaid coverage must continue through the end of the month in which the Secretary of Health and Human Services declares that the public health emergency has ended. The public health emergency is set to end April 20, 2021, but it will likely be extended.

While Medicaid recipients may have a little extra time, they shouldn’t delay too long in spending down the money if it has pushed them over the resource limit, which is $2,000 in most states. The following are examples of what a Medicaid recipient may be able to spend the money on without affecting their eligibility:

Make a payment toward paying off debt.
Make small repairs around the house.
Update personal effects. Buy household goods or personal comfort items. Buy a new wardrobe, electronics, or furniture.
Buy needed medical equipment, see a dentist or get eyes checked if those items aren’t covered by insurance.

While Medicaid recipients usually cannot gift money or assets and remain eligible for benefits, recipients in at least some states should be able to make gifts from the stimulus money. If you have questions about how you or a family member in a nursing home can spend the money, contact your elder law attorney. To find an attorney near you, click here.

How the $1.9 Trillion COVID-19 Relief Bill Aids Seniors

President Biden has signed the latest COVID-19 relief bill, which in addition to authorizing stimulus checks, funding vaccine distribution, and extending unemployment benefits, also provides assistance to seniors in a number of ways.

The $1.9 trillion American Rescue Plan Act (ARPA) delivers a broad swath of relief, covering families, employers, health care, education, and housing. The following are the provisions that most directly affect older Americans:

Relief checks. The ARPA provides $1,400 direct payments to individuals earning up to $75,000 in annual income and couples with incomes up to $150,000. The payments phase out for higher earners, and there are no payments for individuals earning more than $80,000 a year or couples making more than $160,000. Eligible dependents, including adult dependents, also receive $1,400. People collecting Social Security, railroad retirement, or VA benefits will automatically receive the payment even if they don’t file a tax return. The checks will not affect eligibility for Medicaid or Supplemental Security Income as long as any amount that pushes recipients above the programs’ asset limits is spent within 12 months.

Medicaid home care. The Act provides more than $12 billion in funding to expand Medicaid home and community-based waivers for one year. This funding will allow states to provide additional home-based long-term care, which could keep people from being forced into a nursing home. The additional money will also allow states to increase caregivers’ pay.

Nursing homes. Nursing homes have been hit hard during the pandemic. The Act supports the deployment of strike teams to help nursing homes that have COVID-19 outbreaks. It also provides funds to improve infection control in nursing homes.

Pensions. Many multi-employer pension plans are on the verge of collapse due to underfunding. The Act creates a system to allow plans that are insolvent to apply for grants in order to keep paying full benefits.

Medical deductions. If you have a large number of medical expenses, you may be able to deduct some of them from your taxes, including long-term care and hospital expenses. The Act permanently lowers the threshold for deducting medical expenses. Taxpayers can deduct unreimbursed medical expenses that exceed 7.5 percent of their income. The threshold was set to increase to 10 percent under the 2017 tax law.

Older Americans Act. The ARPA provides funding to programs authorized under the Older Americans Act, including vaccine outreach, caregiver support, and the long-term care ombudsman program. It also directs funding for the Elder Justice Act and to improve transportation for older Americans and people with disabilities.