Monday, May 15, 2006

NJ EASE - A Clearinghouse for Info on Services available to NJ Seniors

Category: Elder Law

As I was considering the Medicare Part D Prescription Drug Plan debacle, characterized lack of real communication, poor information, or no information, I was wondering what is a GOOD place for seniors to get information about services available to them.

One such excellent source in NJ EASE, self-described as:

What is NJ EASE?
NJ EASE (New Jersey Easy Access, Single Entry) is the easy
way for seniors and their families to get information about and access senior
NJ EASE is one toll-free telephone number to put you in touch with
someone to help you learn about and apply for important programs and benefits.
NJ EASE promotes independence, dignity and choice for New Jersey’s older
When you call NJ EASE a person (yes, a real, live, human) from an agency in your county dealing with seniors will answer the phone and direct you to services available to seniors. They do not give recommendations for certain companies; instead, they act as a clearinghouse to find local companies to assist seniors with things such as:

Healthcare * Insurance * Home Care Services * Long Term Care Options * Transportation * Social Activities * Nutrition * Volunteer Opportunities

Although NJ EASE does have a website, it is a telephone based service, so those seeking more information should call 1-877-222-3737.

Friday, May 05, 2006

Implications of a Life Estate -- A Medicaid Planning Option

Category: Elder Law

From, an excellent outline, not in legalese, of a possible Medicaid Planning technique under the current law where a parent is moving into a child's home.

Implications of a life estate:
"The problem: My 80-year-old mother's health is declining, and she's moving into our home. After selling her house, she'll have about $300,000. Can she purchase a life estate in our home in order to preserve her money if she someday has to enter a nursing home?

The expert: Robert J. Kurre, certified elder law attorney, Robert J. Kurre & Associates, P.C., Great Neck.

The rules: Under the Deficit Reduction Act of 2005, a person who purchases a life estate interest in another's home for fair market value - and then lives there for at least a year - does not face an ineligibility period for Medicaid nursing home benefits. There is pending litigation challenging the constitutionality of the overall federal act, and it has not been implemented in New York. However, it's likely that the law will eventually be enacted, retroactive to Feb. 8, 2006.

The strategy: If she's expected to live in your home for at least a year, your mother could purchase a life estate interest in your home, which gives individuals not considered owners of a property certain rights to that property, including the right to live there. Consult with a qualified elder law attorney to determine whether this is the best strategy for her. The attorney also can help you determine the amount for which the life estate should be purchased, based on your mother's age and your equity interest in the home.

How it works: A life estate has no value for purposes of determining an individual's eligibility for Medicaid. The holder of the life estate (the 'life tenant') has the legal right to live on the property for life without paying rent. Upon the life tenant's death, the life estate is extinguished.

The results: Your mother's purchase of a life estate in your home could protect the proceeds from the sale of her house. But if she purchases the life estate, and you decide to sell your home during her lifetime, your mother would have to sign the new deed and a portion of the sale proceeds would be payable to her as the life tenant. Those proceeds would count as her resources for Medicaid purposes and, depending on the situation, could cause her to incur adverse tax consequences."

Wednesday, May 03, 2006

US Supreme Court - Medicaid May Only Lein against a Settlement to the Exent of Medical Expenses Awarded

Category: Elder and Disability Law

A very important unanimous ruling from the US Supreme Court for disabled persons - in the case of a personal injury settlment or award, a State may only recover payments it has made on a disabled persons behalf (ie: meidical care provided under Medicaid) from that portion of the personal injury settlment or award that was allocated to medical expenses in the award. In other words, if there is a $300,000 personal injury award, and it is allocated $150,000 to medical expenses, and $150,000 to pain and suffering, and the State has expended $200,000 in medical care, then the State may only recover up to $150,000 of costs, the amount of the personal injury settlment or award allocated to medical expenses.

An excellent summary of the new key ruling from - High Court Rules States May Place Lien Only on Medical Portion of Settlement:

The U.S. Supreme Court has unanimously ruled that an Arkansas statute requiring Medicaid applicants to assign to the state the entirety of any settlement violates the federal Medicaid law's "anti-lien statute," and that the state may recover only from those portions of third-party awards allocated for medical expenses. Arkansas Department of Health and Human Services, et al. v. Ahlborn, 547 U.S. ____

Heidi Ahlborn was rendered permanently disabled as the result of a car crash. While being treated for her injuries, Ms. Ahlborn applied for and began receiving Medicaid benefits. In applying for benefits, she assigned to the Arkansas Department of Human Services Arkansas (ADHS) her right to the entirety of any third-party payment — not just that portion made for medical care – as required by Arkansas law. Ms. Ahlborn subsequently received $550,000 in a lump-sum settlement from the tortfeasor. The Director of ADHS asserted a lien against Ahlborn's settlement for the amount of benefits ADHS provided, $215,645.30.

Ms. Ahlborn sued, arguing that ADHS can recover only that portion of her settlement representing payment for past medical expenses, estimated to be $35,581.47. She contended that the Arkansas recovery scheme conflicts with the federal "anti-lien" statute," 42 U.S.C. § 1396p(a)(1). Arkansas countered that the settlement remains property of the tortfeasor until the state is fully reimbursed for all funds expended on Ms. Ahlborn's medical care. Among other cases, the state cited Houghton v. Dep't of Health, 57 P.3d 1067, 1069 (Utah 2002).

The district court ruled that the state may recover from Ms. Ahlborn's settlement the total amount of benefits provided under the Medicaid program, regardless of whether the settlement funds represent payments for the cost of medical services. Ms. Ahlborn appealed.

The U.S. Court of Appeals for the Eighth Circuit reversed, ruling that Ms. Ahlborn's right to a settlement was her "property" and that the state could not "circumvent the restrictions of the federal anti-lien statute simply by requiring an applicant for Medicaid benefits to assign property rights to the State before the applicant liquidates the property to a sum certain." Ahlborn v. Arkansas Dept. of Human Services (8th Cir., No. 03-3377, Feb. 9, 2005).

Arkansas appealed. In a unanimous opinion written by Justice Stevens, the United States Supreme Court affirms, ruling that federal Medicaid law does not authorize the state to assert a lien on Ms. Ahlborn's settlement in an amount greater than the amount allocated for medical expenses, and that "Arkansas' statute finds no support in the federal third-party liability provisions, and in fact squarely conflicts with the anti-lien provision of the federal Medicaid laws." The Court also rejects the argument of the state (and its amici, including the United States) that under its ruling parties to a tort suit will simply "allocate away the State's interest," in the Court's words.

For the full text of this decision, go to:

For an analysis of the Ahlborn case's implications written prior to the Supreme Court's ruling by ElderLawAnswers member John J. Campbell, click here.