Category: Elder Law

Elder Law

Understanding Medicaid

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Federal and state Medicaid programs offer comprehensive health insurance and financial protection to millions of Americans. The program helps low-income families, individuals, and people with disabilities receive adequate health care and provides nursing home or community long-term care services. As of August 2022, more than 90.5 million individuals were part of the Medicaid and Children’s Health Insurance Programs (CHIP).

States Follow Federal Guidelines But Have Some Autonomy

Although Medicaid funding is a federal-state partnership, states administer the programs and have some flexibility in determining who to cover, delivery models, and payment methods for physicians and hospitals. States may apply for a Section 1115 waiver to experiment with different implementation approaches as federal statutes require; however, the Secretary of the US Department of Health & Human Services (HHS) determines advanced program objectives.

Medicaid entitlement has two basic guarantees. First, all Americans who meet Medicaid eligibility requirements are guaranteed healthcare coverage. Second, states receive guarantees for federally matched funds without a cap for enrollees’ qualified services. Under current law, nearly all Medicaid federal funding is open-ended, but this may change for cost containment.

According to the Congressional Budget Office (CBO), the federal government pays anywhere from 54 percent to 79 percent of each state’s annual Medicaid outlays, with the states’ picking up the remainder. Beyond enrollment expansion due to COVID-19 for the fiscal year 2022, nearly one-third of states saw upward pressure on spending due to increasing costs for managed care and provider rate increases.

Medicaid Coverage Continues to Evolve

Medicaid began in 1965 and was a cash assistance program for qualifying individuals or families. In the following years, Congress expanded federal minimum requirements to provide more new coverage types, particularly for children, pregnant women, and people with disabilities. The broader health care coverage of the Affordable Care Act (ACA) in 2010 expanded Medicaid to non-elderly adults with qualifying low incomes and continues to meet changing needs.

A Broad Range of Health and Long-Term Care Services

In addition to the Medicaid federal law service requirements, many states provide optional services. These services include physical therapy, prescription drugs, eyeglasses, and dental care. Medicaid expansion for adults is part of the ACA’s ten “essential health benefits,” which include the following:

  • Ambulatory patient services
  • Emergency services
  • Hospitalization
  • Pregnancy, maternity, and newborn care
  • Mental health and substance abuse disorders
  • Prescription drugs
  • Rehabilitative and habilitative services and devices
  • Laboratory services
  • Preventative and wellness services
  • Pediatric services

Medicaid covers the cost of long-term care, including nursing homes and many community-based long-term services. Over half of all Medicaid long-term care spending is for home and community-based services (HCBS), enabling seniors and those with disabilities to live more independently. Emphasis is shifting away from institutional settings, although intermediate care facilities for adults with intellectual disabilities remain a priority.

Privately Managed Care Plans for Enrollees

More than two-thirds of Medicaid beneficiaries account for privately managed care plan enrollments contracting with states to provide comprehensive services. Other enrollees receive their care in a fee-for-service system.

Most states cover long-term services through risk-based managed care arrangements to contain costs. These managed care organizations (MCOs) are comprised of various entities, as some involve physicians while others combine physicians, hospitals, and other providers.

The blended approach of public and private partnerships to provide Medicaid care allows each participating group to function at their highest level, integrating efforts instead of trying to solve issues outside their expertise.

Medicaid beneficiaries have far better access to healthcare than the uninsured and seek medical care before health problems become severe and more costly. The satisfaction ratings of Medicaid recipients are comparable to those rates for individuals with private health insurance.

Conclusions

Despite experiencing low income, the rate of Medicaid enrollment is similar to those with private coverage. Medicaid covers preventative, rehabilitative, and acute health care in addition to costly long-term care for millions of Americans.

Medicaid services account for one-fifth of healthcare spending and receive a lot of attention regarding:

  • Capacity expansion to address addictions, in particular opioids
  • Refining payment and delivery systems
  • Lowering prescription drug costs
  • Refining eligibility requirements
  • Increasing community-based long-term care services

Medicaid funding is a major financial support for hospitals, doctors, nursing homes, and many other jobs in the healthcare sector. Federal matching funds guarantee an open-ended basis to provide flexibility in supporting each state’s population’s healthcare needs.

Medicaid is an extensive program and varies by state, making it difficult to know what is available to beneficiaries or potential enrollees. Attorneys specializing in Medicaid and disability can help you understand how to benefit from your state’s programs. They can guide your application process, ensuring you receive the necessary benefits.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law

Ensuring Health and Safety for Nursing Home Residents

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Baby boomers will require more care as they enter their golden years, some will be able to be cared for at home by family members or with hired help. Many will need to move into long-term care facilities, such as nursing homes, to get the level of care they need. This can bring extra costs and concerns. In addition to the growing costs of living in a long-term care facility, there is the concern that your loved one will not get the quality of care you imagined.

Health and Safety

According to a statement released by The White House on February 28, 2022, private equity firms have been buying struggling nursing homes, leading to a general decline in residents’ care. Between 2000 and 2018, investments in nursing homes by private equity firms increased from $5 billion to over $100 billion. Recent research has found that resident care and health are significantly worse in nursing homes owned by private equity firms.

A recent study of nursing homes that private equity firms acquired found that residents were 11.1% more likely to have preventable emergency department visits and 8.7% more likely to experience a preventable hospitalization than residents of for-profit nursing homes not owned by private equity firms. Additionally, COVID-19 infection rates were 30% above statewide averages, and the death rate was 40% above statewide averages in private equity-owned nursing homes.

The Biden-Harris Administration has tasked the Department of Health & Human Services (HHS) through its Centers for Medicarhealthcared Services (CMS) with improving the quality and safety of nursing homes. This effort is directed at protecting vulnerable residents and the health care professionals who care for them and cracking down on bad actors. CMS is launching new initiatives to help ensure nursing home residents get the quality care they need. These initiatives include establishing a minimum nursing home staffing requirement, reducing resident room crowding, and reinforcing safeguards against unnecessary medications and treatments.

Cost of Long-term Care

Baby boomers will start to enter their 80s in 2025, increasing the number of people needing extra support and services, including long-term care. According to estimates from the CMS, the number of people requiring long-term care will double by 2050.

In a 2019 survey, the insurance company Genworth found that the average annual cost of a private room in a nursing home was $102,000. The Insured Retirement Institute has discovered that 45% of baby boomers have no retirement savings, and more than a quarter of those who have some retirement savings have less than $100,000.

These statistics paint a bleak picture for those who are hoping to live their later years in comfort. Due in part to the high cost of professional health care and support services, most long-term care is provided by close family members, such as spouses and children. Often, though, there comes a point when the person being cared for needs a level of care that their family members are unable to provide.

Paying for Long-term Care

Once someone needs professional care, either in their home or at a long-term care facility, the cost of care increases dramatically. Finding a way to pay for this type of long-term care can be a stressful and confusing process. The earlier the process is started, the better chance one has of preserving assets for their loved ones.

Attorneys who are experienced in estate planning and elder law help clients navigate the often complex process of planning for long-term care. There are many ways to adequately prepare for long-term care while saving assets for heirs.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law

2023 Brings Changes to Social Security Benefits

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More than seventy million people who rely on Social Security’s benefit programs will undergo significant changes in the coming year.Inflation continues to increase daily living costs with higher costs for gasoline, food, utility, rent, and mortgages. Yet real wages have been stagnant for decades to all but the highest-earning households, making basic living costs untenable for an increasing number of workers. Additionally, supply chain problems also increase the prices of available goods. The five changes to Social Security benefits in 2023 will relieve some of the current challenges that inflationary pressures present.

Cost of Living Adjustment (COLA)

Before 1975, Social Security benefit increases were set by legislation. In 1972, congress enacted the COLA provision, and automatic annual COLAs began in 1975. Since then, the COLA has set all SS public benefits increases. This adjustment figure is tied to the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). The COLA ensures that the purchasing power of Social Security benefits programs does not erode due to inflation.

The COLA for 2023 is 8.7 percent and will appear as an increase in benefits payments. According to Bankrate, this adjustment will amount to a $146 increase for the average retired worker receiving Social Security benefits, increasing the average check from $1,681 to $1827. Couples, where both partners receive benefits, will receive an estimated payment increase of $238, increasing the average check from $2,734 to $2,972.

Maximum Taxable Earnings Increase

The Contribution and Benefit Base limit changes annually according to the national average wage index. Usually referred to as the taxable maximum for earnings, the base is $160,200 for 2023. This tax is a funding mechanism for Social Security benefits via the Old Age, Survivors, and Disability Insurance (OASDI), more readily known as the Federal Insurance Contributions Act (FICA).

W-2 workers have this tax deducted from their paychecks, and 1099 employees pay through the self-employment tax upon federal tax filing. The tax revenue supports the ASI Trust Fund for retirement and the DI Trust Fund for disability. The tax amount typically increases at a 6.2 percent rate meaning more of a worker’s income is subject to tax.

Maximum Social Security Benefit Increase

The maximum Social Security receivable benefit for workers retiring at full retirement age will increase from $3,345 to $3,627 in 2023. This maximum only applies to those who take their benefit at full retirement age, which is 67 for people born after 1960.

Maximum amounts will vary depending on those who retire before full retirement age as benefits reduce in that situation. The situation also applies to those who retire after the full retirement age, a strategy known as maxing out your benefit check. Bankrate cites three main levers to max out your Social Security income: working longer, earning more, and delaying your benefit. All of these strategies will provide you with the maximum retirement benefits.

Increase in Average Benefit for Spouses and Workers with a Disability

In 2023 beneficiaries’ average benefit amounts will increase across the board. This increase includes benefits for widows and widowers, and people with disabilities. According to Bankrate, the figures break out accordingly:

  • The SSA will increase the average widowed mother with two children from $3,238 to $3,520.
  • Widows and widowers, aged and living alone, will receive an average increase from $1,567 to $1,704.
  • A worker with a disability and a spouse with one or more children will receive an average benefit increase from $2,407 to $2,616.

These increases are averages, and individual circumstances will vary. The SSA has a Fact Sheet that can help narrow down your specific situation and describe your benefit change amounts. The SSA will mail COLA notices throughout December to retirement, survivors, and disability beneficiaries, as well as SSI recipients and representative payees. To learn about your increases online, in early December, you can log into your personal My Social Security account in the Message Center under COLA notices. You can read more about the process here.

Social Security Adjusts Earnings Test Exempt Amounts

If you claim retirement benefits before full retirement age and are still producing income, Social Security will withhold some benefits from your check at a certain earned income threshold. The program calls this the retirement earnings test exempt amount, and it can claim a significant chunk of your benefits if you are still working.

In 2023, if you begin collecting Social Security before full retirement age, it is permissible to earn up to $1,770 per month ($21,240 annually) before the SSA will begin to withhold benefits. This withholding is $1 in benefits for every $2 above the limit. This rule applies even when you reach full retirement age but with much more forgiving terms. In 2023 at full retirement age, you can earn up to $4,710 per month ($56,520 annually) before the SSA withholds benefits at a rate of $1 in benefits for every $3 earned above the limit.

These five Social Security benefit increases for the year 2023 can help all beneficiaries, especially those living on fixed incomes, to combat rising prices brought about by increasing inflation and supply chain problems. The cost of living projections for 2023 may increase 2024’s COLA by around ten percent. Uncertainty in the world and financial markets will continue to affect retirement accounts and the lifestyles of aging Americans. The law enacted by Congress in 1972 for automatic increases to Social Security benefits using a COLA helps retirees, survivors, and people with disabilities live financially better lives.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law

Married Couple’s Medicaid- Compliant Annuity

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In general, an annuity pays a fixed amount annually to the owner for the remainder of his or her life. Most annuities are deferred, meaning the payout doesn’t occur until a later date. However, you can receive immediate payouts if you purchase a Medicaid-Compliant Annuity (MCA). When you buy a Medicaid annuity, you give a company a lump sum of cash in exchange for a guaranteed income stream. While only private insurance companies can issue annuities, you may purchase them through banks, financial planners, insurance agents, and brokerage firms.

The Benefits of a Medicaid Annuity

In what circumstances is a Medicaid annuity beneficial? Many Medicaid applicants are denied coverage for long-term care because they have too much money or too many assets. However, Medicaid applicants applying with insufficient funds to pay their nursing home bills can leave a healthy spouse destitute in the short term if paying out of pocket. A Medicaid-compliant annuity can accelerate eligibility for the joint state and federal Medicaid health insurance program, which pays for a person’s medical bills and nursing home care while providing reliable income for the healthy at-home spouse.

To properly plan for a Medicaid-compliant annuity, seek the advice of an elder law attorney who understands your state’s Medicaid rules. There are ordinary immediate payout annuities that are not Medicaid-compliant, so it is critical to receive the correct advice before your purchase. The goal for married couples is for the healthy spouse (the annuity owner) to collect the annuity income while the spouse needing medical benefits from Medicaid-funded extended care and nursing home benefits remains eligible.

Medicaid-Compliant Annuity Requirements

  • The MCA is for an individual and must be non-assignable and irrevocable
  • The annuity income payout must be based on the life expectancy table equivalent to the Social Security life expectancy tables Medicaid uses
  • The annuity terms can’t extend beyond the annuity owner’s life expectancy
  • All premiums will return to the client by the end of their life expectancy
  • The immediate irrevocable annuity must not have a cash value
  • The restricted annuity may not have balloon payments, and the distribution of annuity payments to the owner must be equal and actuarially sound
  • The Medicaid beneficiary structure must comply with the state’s Medicaid recovery rules
  • Guidelines and recovery rules vary by state law, often asking the State Medicaid Agency to be named as beneficiary

Drawbacks for Medicaid-Compliant Annuities

These Medicaid-compliant annuities are challenging to set up, may not cover all of your assets, and preclude you from accessing them if you require them for future needs. However, because of long-term care’s prohibitive costs, many married couples are willing to accept these potential risks because Medicare does not cover long-term care. The national average for long-term care insurance for a couple both 60 years old is $3,400, and approximately 30 percent of applicants between 60 and 69 are declined coverage.

While that may seem like a lot of money to pay in premiums, if you qualify for the insurance, it pales in comparison to the national estimates of long-term care costs out of pocket. According to Genworth, the cost of long-term care in a 2021 survey cites the following monthly average costs:

annuity.org

Non-Countable Income Stream

Purchasing a Medicaid annuity converts an asset into a monthly income stream for the healthy spouse, and this income does not count toward Medicaid eligibility. Purchasing this annuity type means the couple’s assets do not have to be “spent down” for one to be Medicaid eligible. However, the annuity payments must be completed before the end of the healthy spouse’s life expectancy so that the annuity purchase does not become giftable to heirs.

A Medicaid-compliant annuity will convert liquid assets into a lifelong income stream that helps a healthy spouse maintain their quality of life while the spouse in need of long-term care can still qualify for Medicaid. The Medicaid-friendly annuity requires that it be irrevocable (unchangeable) and non-transferrable to heirs upon your death. Since this purchase must be irrevocable to achieve the goals, it is crucial to meet with an elder law attorney to ensure your selection is the right financial product for your circumstances. A Medicaid-compliant annuity can help both spouses in a marriage to get the resources they need should one require long-term care.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law, Estate Planning

Components of Life Care Planning

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Estate planning and elder law are two terms that get used interchangeably often, however, there are significant differences between the two. While some overlap exists between the two, learning and implementing strategies from both law practice types is crucial to prepare for successful aging and preserving a family legacy. 

Estate planning lets families:

  • Name guardians for minor children
  • Manage and protect valuable assets
  • Distribute property according to specific instructions after you die
  • Minimize potential estate taxes
  • Simplify or avoid probate
  • Distribute property to beneficiaries
  • Create a business succession plan

Younger people tend to focus on asset protection in their earlier years. They are building their legacy.

Elder law primarily deals with later stages in life and an aging individual’s needs while they are still alive, like:

  • Retirement goals 
  • Paying for long-term care 
  • Protecting the family if they become incapacitated due to an accident, severe illness, or reduced cognitive function 
  • Accessing proper health care without depleting a senior’s resources 
  • Protecting the legal rights of aging adults 
  • Address the needs of persons with disabilities and war veterans, including their spouses, children, and caretakers

Seniors worry about protecting their legacy from medical costs, fraud, or abuse. They want to keep the family home for a spouse or the next generation.

What is Estate Planning?

Estate planning is for adults of all ages. An estate plan determines what will happen to assets upon death. An estate planning attorney can use wills and trusts to ensure your wishes are followed. If there are minor children, a will identifies a guardian to guide and protect them through life until they become adults. Naming a guardian for minors is a crucial aspect of a will.

Estate planning lawyers can structure assets and property to help an estate avoid probate. Various revocable and irrevocable trusts can save money on estate taxes, leaving more to beneficiaries. The probate process is slow, can be very costly, and is a public process, so it makes sense to keep as much of your estate out of probate as possible.

Several assets can pass to heirs without being addressed in a will or a trust through beneficiary designations. Insurance plans, IRAs, and 401(k)s are all examples of beneficiary designation account types. Reviewing your designations is crucial upon major life changes, particularly death or divorce. Update your beneficiaries. If they have changed or are deceased, a court will decide the fate of your funds.

If you have a small business, estate planning is also relevant to the business’s future success. A succession plan helps a future business owner or family member to run the business upon your retirement, incapacitation, or death. An estate planning attorney can help structure inheritance using life insurance policies to balance inheritable assets if one adult child is particularly interested in running the business and others are not.

What is Elder Law?

Focused on later stages of life, elder law anticipates future medical needs, including long-term care, to ensure a senior can live a long, healthy, financially secure life. The goal is to develop a plan to pay for future care that meets their comfort level while preserving as many assets as possible. An elder law attorney knows how to help you qualify for Medicaid or other government benefits while keeping a portion of your assets. In addition, they may support you through Medicaid hearings and appeals.

Elder law attorneys can help protect individuals from elder exploitation or abuse as they become older and caring for themselves becomes difficult. Designating a durable power of attorney (DPOA) for property and financial affairs and another for health and well-being permits representatives to oversee and protect seniors when they are no longer able. DPOAs are documents used in estate planning. Without a power of attorney, elder law and estate planning can assist with guardianship and conservatorship.

What is Life Care Planning?

As an estate grows in value and minor children become adults, it is important to revisit and amend your estate planning documents. Review them regularly as your life evolves, particularly after marriages, births, divorces, deaths, and substantial changes in finances. You may find yourself straddling the needs of children and aging parents. Estate planning shifts as estate planning attorneys consult with you on elder law matters.

Life care planning protects your assets, health, and legacy at every stage of life and addresses common concerns to avoid potential problems. Proactive planning is the key to living your best life, from raising a family to fears of declining health.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law

The Right to Appeal Has Been Granted to Medicare Recipients

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As of a recent federal court decision, Medicare beneficiaries can now appeal previous patient status decisions.

The Underlying Issue

When Medicare patients go to a hospital, they often enter through the emergency department. The physician who attends to them must decide whether to admit them into the hospital as an inpatient, discharge them, or keep them in the hospital under observation status. A patient under observation services receives care virtually identical to inpatient care but is classified as an outpatient to qualify for traditional Medicare coverage.

If the patient receiving observation services must go to a nursing home to continue their recovery, traditional Medicare won’t cover the nursing home care because they were not classified as an inpatient for at least three consecutive days when they were in the hospital. This can have a serious financial effect on the patient since they must pay for the services on their own. What made the situation worse is that the Centers for Medicare & Medicaid Services would not allow patients to appeal the decision.

Observation Status

A patient in observation status is in limbo since a physician has determined that they are too sick to go home but not sick enough to be admitted into the hospital as an inpatient. They receive basically the same level of care as a patient who is classified as an inpatient, including mental and physical assessments, diagnostic tests, short-term treatments, medications, and feedings.

In 2015, then-President Barack Obama signed the Notice of Observation Treatment and Implication for Care Eligibility Act, a.k.a. Notice Act. The Notice Act requires hospitals to notify patients if they have been receiving hospital services under observation status for more than 24 hours. Patients must be given both written and oral notifications if their observation status exceeds 36 hours.

The written notice must explain why the patient is not classified as an inpatient. It must explain how their observation status may affect the cost of their hospital care and their eligibility for skilled nursing facility care coverage. The written notice must be signed by the patient or someone acting on the patient’s behalf. If they refuse to sign the notice, then a staff member of the hospital must sign it.

Alexander v. Azar

A recent federal court decision in the Alexander v. Azar case sided with Medicare beneficiaries who had been admitted to hospitals as inpatients but then changed to observation status. If you were a patient in a hospital and switched from inpatient status to observation status, you may have the right to appeal Medicare’s decision. To appeal your observation status decision, you must have been:

  • Hospitalized since January 1, 2009
  • A Medicare beneficiary with traditional Medicare (not Medicare Advantage) during your hospitalization
  • Admitted to the hospital as an inpatient before your status was changed to observation status
  • Notified of Medicare Outpatient Observation status from the hospital or have a Medicare Summary Notice stating that you will, or did, receive observation services that are not covered by Medicare part A
  • Qualified for either both Medicare Part A and Part B or only Medicare Part A
  • Hospitalized for at least three consecutive days but fewer than three days as an inpatient
  • Admitted to a skilled nursing facility within 30 days of discharge from the hospital.

Stay up to date as this situation develops by checking in with the Center for Medicare Advocacy.

Help with Medicare and Medicaid

Navigating the complicated Medicare and Medicaid systems can be difficult and time-consuming. It is all too easy to make mistakes that will cause coverage to be denied. An experienced elder law attorney can guide you through the process to get the benefits you need.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law

Rejection Reasons for SSI and SSDI Claims

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Before spending time and effort on the SSI or SSDI application process, you should consider some of the major disqualifiers. Eligible individuals can benefit from both programs though they have distinct differences. The major difference is SSI eligibility qualification relies on age, disability, and limited resources and income, while SSDI eligibility determination relies on disability and work credits. In most states, SSI recipients automatically qualify for Medicaid health care coverage, which could result in additional supplementary benefits through your state’s Medicaid program. However, both programs have some common reasons that can disqualify your claim. 

Typically most people think about the reasons they should receive benefits without ever considering why they may be denied. Some of the reasons are beyond your control, while other reasons are missteps you can avoid that result in denial. Things to consider include:

Your Income Earnings are Too High 

In the case of SSI, the disability benefit for low-income individuals, you cannot exceed the substantial gainful activity (SGA) threshold. However, it is permissible to earn more money after your approval. Still, there is a limit of about $1,600 a month on all earned and unearned income for SSI. This dollar amount applies to both application for and collection of benefits. Any time your monthly income exceeds $85, your SSI payment will receive a reduction based on a complex formula. Anything over $1650 per month, and you will no longer qualify.

When you apply for SSDI (the benefits program for workers who paid into the Social Security tax base over multiple years), your claim may be denied if you work above the threshold considered substantial gainful activity. Going over this amount means you earn too much money to be considered disabled. It is permissible to earn a small amount during your application and collecting of SSDI but not over the SGA limit. This limit (for non-blind individuals) was $1310 per month in 2021, and the figure is adjusted annually. It is worth noting income from investments does not count toward the SGA; only work income determines your ability to work.

Your Disability is Not Considered Severe or Won’t Last Long Enough 

Qualification for both SSI and SSDI benefits means the Social Security Administration (SSA) must believe your impairment is severe enough to continue for at least 12 months or result in your death. Blind SSI applicants are the only exception to the duration requirement.

Many claims based on bone fractures resulting from acute trauma from accidents are commonly denied since the disability is unlikely to last 12 months. Nearly all bone fractures heal in under a year. If your bone fractures are severe enough and have not healed after six months, you may resubmit your claim as the SSA will likely believe your impairment will last a year. Each case receives an individual evaluation.

If your medical condition is not trauma-related, it must still cause severe limitations of disability to qualify for SSI or SSDI. Most denied claims are due to the applicant’s impairment not being severe enough. You can learn about the disability determination for benefit claims here.

The Social Security Administration Can’t Reach You

Both the SSA and Disability Determination Services (DDS) agencies need to be able to communicate with you regarding your application. If they cannot reach you, schedule examinations, appointments, or communicate about critical matters, you will likely be denied benefits. Every day claimants are denied because the SSA cannot locate them. If you opt to name a representative (such as a disability lawyer) to handle your application, you may not have to contact the SSA. However, you most certainly must maintain contact with your disability attorney.

Your Refusal to Cooperate

The SSA requires medical information about your impairment, and if you refuse to release these records, your claim of disability will likely be denied. If you provide medical records, but the SSA deems them incomplete, or you lack a regular doctor for treatment, they will schedule a consultative examination (CE) with an SSA doctor. Refusal to accept this exam(s) and requesting a determination of eligibility be based on existing medical records may be cause for denial due to inadequate medical data or failure to comply with a CE. Your attorney also helps you gather the correct medical information according to the requirements.

Your Failure to Follow Prescribed Therapy

If you receive medical treatment, failure to adhere to the doctor’s prescribed therapy when you are able to may cause a denial of disability benefits. Some acceptable medical excuses include:

  • The severity of your mental illness precludes your ability to comply with the prescribed therapy.
  • You elicit intense fears regarding surgery, making the procedure inappropriate. Your treating doctor will confirm the severity of your fears to the consulting DDS doctor.
  • You are physically unable to follow the prescribed therapy without assistance due to paralysis, cataracts, or other physical limitation.

Some acceptable non-medical excuses include:

  • You lack the money to pay for the treatment.
  • You have religious beliefs that prohibit receiving the proposed medical therapy.
  • Your doctor prescribes a treatment with which a second opinion doctor disagrees.
  • The proposed therapy will not result in the restoration of your ability to do substantial gainful activity.

Your attorney can review the details of your situation to see if any exclusions apply and collect the necessary documentation.

Your Disability is a Result of a Drug Addiction or Alcoholism (DAA)

If a contributing factor to your disability is DAA, the SSA will deny your claim for benefits. The DDS medical consultant will determine whether you would still be disabled if you ceased using drugs or alcohol. You can read more about DAA determining factors here.

You have a Criminal Conviction

Certain conditions relating to criminal conviction or imprisonment will prevent approval of SSDI.

  • You are in prison after your felony conviction without a court-approved rehabilitation program likely to result in employment upon release. That release expectation is within a reasonable amount of time.
  • You received an injury while committing a felony and are convicted of the crime. The resulting impairment, or worsening of an existing one, suffered during a felony crime is ineligible to use as a basis for disability benefits.
  • You became injured while in prison. The resulting impairment, or worsening of an existing one, suffered while incarcerated can’t be used to get benefits. However, you can likely receive benefits after your prison release.

If these conditions apply to your situation, it is still worth the effort to apply for SSDI benefits. Although you will not receive cash benefits, you may still be granted a benefit-free disability period that freezes your earnings record, preventing the decrease of eventual disability, retirement, or dependents benefits. Talk to a disability attorney if your claim is complicated by these circumstances.

The above conditions do not prevent your receiving SSI disability benefits, although you will be unable to collect them while incarcerated.

You Commit Fraud

Always apply for disability benefits honestly. If you receive them by dishonest means, the SSA may terminate your benefits and choose to prosecute you for fraud. Benefits obtained through fraudulent methods by your representative or someone working for the SSA also may cause the termination of your benefits.

These common reasons stop you from legally obtaining SSI and SSDI benefits. Before you become too involved in applying, be certain you meet the minimum standards for approval. A disability lawyer can help you sort out any issues, avoid missteps, and properly present your case for disability approval.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law, Estate Planning

Medical Advance Directives: Understanding the Different Types

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A trauma or illness could incapacitate anyone, and no one likes to think about it. People experience it every day, unfortunately. With this knowledge, many people like to prepare in advance for the kind of treatment they want in the event of cardiac arrest, respiratory failure, stroke, and brain death. Some people would allow doctors to perform “heroic measures,” and others would rather die without significant medical intervention. Medical advance directives are legal documents that outline the details of your advance healthcare planning.

There are a few types of medical advance directives. A durable power of attorney names a person to act as your healthcare proxy or surrogate who can make medical decisions and follow those outlined in your living will if you are incapacitated. A living will tells medical professionals when they should and should not use certain interventions, like intubation, CPR, and IV nutrition. A living will only pertain to saving a life, but a power of attorney can make any decision. For example, if a person is unconscious but not in peril of death, a power of attorney could consent to minor medical treatment that is not life-threatening.

What Happens without Medical Advance Directives

Of course, many people without advance directives get into car crashes or have other accidents and need someone to make medical decisions for them. Without an advance directive, the state relies on a legal hierarchy of next of kin. Legal guardians make decisions for minors and adults with a conservatorship. The state usually recognizes a spouse or domestic partner as the next of kin for most adults. Without a spouse, the responsibility often goes to an adult child, sibling, or parent. For many people, this system works well.

The legal hierarchy presents major problems for others. Sometimes people remain legally married to someone who no longer represents their best interests. At other times your next of kin does not share the same values and would not make the right choices for you. Sometimes, you feel more aligned with a person who is a friend instead. In all of these situations, having an advance directive helps ensure that the medical decisions made on your behalf are the same or similar to those you would make for yourself if you were able.

Items to include in a Living Will

Your power of attorney can express end-of-life wishes that address the use or withdrawal of specific treatments. Likewise, some people may want to plan certain end-of-life decisions while they are still healthy. You can specify the types of medical treatment desired, such as:

  • Pain relief (analgesia)
  • Antibiotics
  • Intravenous hydration
  • Artificial feeding (feeding tube)
  • Cardiopulmonary resuscitation
  • Ventilators
  • Do not resuscitate orders (DNR)

Of course, addressing every possible scenario is impossible, but try to be explicit about your instructions for common life and death scenarios.

Items to Discuss with your Healthcare Proxy or Surrogate

Your power of attorney for medical advance directives affords the same rights to request or refuse medical treatment to the surrogate as if the individual at risk were capable of making and communicating decisions. With this in mind, you want to choose someone you trust and who shares your values. You also want to make your desires clear to that person so they can carry out your wishes. For example, let them know if you strongly oppose donating organs, having a blood transfusion, or certain hospital visitors. Explain your decision-making process to them so they can use that reasoning to figure out what you would want.

Creating Advance Directives

As advance directives are legal documents, lawyers are most effective at writing and reviewing them to reflect your wishes and hold up in court. Something is always better than nothing, so start with the basics and add details as they arise. An estate planning or elder law attorney can help create and review your advance directives. As experts in this area, we know the right questions to ask. We will listen to your wishes and help guide you in making important decisions about your care. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law

Taking Care of a Loved One’s Finances

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Banking and payment of bills can become more difficult with age, but incapacity by accident or illness can strike anyone at any age, posing the same challenges. Incapacity is not just about mental cognition, accident, or illness. You may have a loved one who cannot drive themselves to the bank or has a distinct visual or hearing impairment. Without a plan, incapacity will jeopardize your loved one’s daily financial activity and preservation of wealth. Some possible solutions for financial oversight include:

  • Having a caregiver provide help
  • Selecting a power of attorney
  • Implementing trusts
  • Retaining a professional fiduciary
  • Combining some of these options

Creating a Financial Plan

Whatever you choose, careful thought and thorough planning are needed for the best outcome. To minimize family conflict, it helps to make plans together before experiencing an illness or accident that makes it impossible to handle financial transactions or decisions. Discussions among siblings, in particular, are important before assigning responsibilities. Openly discuss issues of health and financial oversight with trusted family members to minimize misunderstandings, reduce distrust, and prevent potential legal disputes. If a particular conflict seems unresolvable, a neutral third party, such as trusted clergy, a family therapist, or a mediator, can provide impartial counsel.

Protecting Loved Ones from Creditors and Fraud

A joint checking account may seem like a straightforward solution for a caregiver to write checks, make ATM cash withdrawals, track expenses, and perform other financial duties on behalf of their ward, but there are risks. The second party on the account may use their banking privileges to steal from your loved one. Creditors can seek payment from either individual on this account, so if your secondary party carries debt, your loved one may wind up paying for it. Finally, when either party dies, money in this account will belong to the surviving account holder, which may create conflict among siblings and heirs.

Setting Up a Convenience Account

About half of all US states now permit a “convenience account” where the second account holder only has permission to transact for the benefit of the original account holder. The account type is handy when the only need is to address paying bills and providing nominal amounts of cash. The secondary party will have no permission to use the money for self-interest or inherit the account upon the principal’s death. Financial stewardship on behalf of a loved one in a convenience account should include:

  • Written records of expenses paid from the account
  • Notes with the reason for all checks in the memo field
  • Money in the account is protected against being borrowed or claimed as an asset
  • Purchases can’t be made by the steward or a third party
  • A trusted family member acting as the second party to the account is preferred over a paid primary caregiver 

When financial oversight for your loved one needs to be more comprehensive, other fiduciary categories can address financial stewardship for aging or incapacitated loved ones.

Power of Attorney (POA)

This legal document sometimes referred to as a durable financial power of attorney, designates an individual to make financial decisions on behalf of the principal (the assignor of the POA) if they become incapacitated. The principal must be of sound mind to grant a power of attorney.

Naming a financial POA, also called an agent or attorney-in-fact, will prevent the risk of a family going to court to file for guardianship if their loved one becomes incapacitated. Establishing guardianship can be a lengthy, expensive, and potentially divisive process for family members.

Trusts and Trustees

Your loved one may have their elder law attorney create and transfer assets to a revocable living trust with a named trustee. In the future, if the trust grantor loses their ability to make sound financial decisions, the trustee becomes the responsible party for the management of the trust’s assets. 

A trustee’s functions may include:

  • Maintaining an insurance policy
  • Paying taxes
  • Making investment decisions
  • Putting valuables in a safe deposit box

However, as long as the grantor is capable, they may change or revoke the trust.

Professional Fiduciary

If your loved one’s financial situation is complex, they may prefer to hire a professional money manager to oversee financial decisions. Not every family has a potential candidate that can manage extensive or complicated assets, or even if they can, they may not live close enough for proper oversight.

This professional may be a certified public accountant (CPA), a trust company officer (bank or investment firm) in the business of managing trusts, or your attorney. A professional fiduciary will charge a fee for service yet still permit family members a provision to relieve the fiduciary of their duties if there is dissatisfaction with performance.

Government Fiduciary

These are special fiduciaries appointed by a government agency to manage benefit payments or refunds issued by the agency, generally the Social Security Administration (SSA), the Department of Veterans Affairs (VA), and the Internal Revenue Service (IRS). These agents can be spouses, family members, court-appointed or professional fiduciaries, or another interested party as long as they receive government agency approval. 

A Social Security appointee is a representative payee and can assist with all types of agency benefits, a VA appointee is a VA fiduciary, and an IRS appointee is an IRS fiduciary. These government fiduciaries only have the authority to manage the corresponding agency’s benefits or refund checks. They have no other legal power to manage a loved one’s property, medical matters, or financial affairs.

Court-appointed Guardian

If your loved one took no action to implement a financial oversight strategy while competent and then becomes incapacitated, the court will conduct a hearing to appoint a guardian. A guardianship implies a profound loss of freedom, even dignity, so much so that less restrictive alternatives should be tried and proven ineffective before establishing a guardian. There are instances when guardianship needs implementation, but the court process can be lengthy and expensive when immediate decisions for your loved one are needed.

These wide-ranging options all require the appointed person to act with the utmost fiscal responsibility to properly manage their loved one’s financial well-being and protect them from elder financial abuse. Family conversations and an elder law attorney’s input will help define which options are best for your loved one to implement while they are capable. We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Elder Law

What You Need to Know About Qualifying for SSDI and SSI

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If you are unable to work due to a serious health condition, there is a good chance you can qualify for free health insurance and monthly benefits from the United States government. About twenty million disabled Americans currently receive assistance from the Social Security Administration (SSA) for disability through SSI and SSDI. Although the medical eligibility requirements are the same, the two programs are different. Your medical condition must extend for a minimum of one year or result in death; however, you can also meet non-medical requirements to receive benefits. Before applying, understanding the qualification process for both SSI and SSDI will increase your initial chance of success and get you benefits quicker.

Supplemental Security Income (SSI)

The Supplemental Security Income (SSI) program pays monthly benefits to adults and children with blindness or disability whose resources and income are below a specific financial threshold. SSI also makes payments to those individuals aged 65 or more without disabilities who meet the financial qualifications. SSI disability benefits become available for the first full month after the date of filing your claim. Even if you are receiving SSDI or retirement benefits, you may still be eligible to receive SSI.

Social Security Disability Income (SSDI)

The Social Security Disability Insurance (SSDI) program pays benefits to you and specific family members if you qualify as “insured.” Insured means you have worked recently and long enough to pay Social Security taxes on your earnings. Benefits through SSDI have a five-month waiting period. Therefore your benefit payments do not begin before the sixth full month of disability. This waiting period begins on the first full month after the date the SSA decides your disability began.

Disability Attorneys

Statistical outcomes to receive SSI and SSDI benefits are greatly enhanced if you hire a disability lawyer. Your lawyer will develop a case as to why you meet eligibility criteria under the Social Security disability law.

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Physical conditions will have to meet either one or more of Social Security’s disability listings:

  • Residual Functional Capacity (RFC) precludes you from participating in jobs due to exertion levels
  • Non-Exertional limitations such as difficulty with concentration or memory prevent you from working.
  • Combinations of exertional and non-exertional limitations

Because of the complexity of disability law, rules and regulations, evidence points strongly to better outcomes with a disability attorney handling your application and claim.

Proving You Qualify for Benefits

Even if you have insufficient medical records, your attorney can help you arrange to have medical testing procedures before you apply for benefits to increase your chances of approval during your initial application. Suppose you have poor breathing due to Chronic Obstructive Pulmonary Disease (COPD) with conditions such as emphysema or chronic bronchitis. Your lawyer can arrange for an ejection fraction measurement test to gauge the heart’s blood flow. Your test data helps evaluate whether you meet Social Security’s COPD or the CHF listing criteria.

Filling out your disability application and supporting documentation must clarify to a claims examiner that your conditions meet these medical listings or that limitations preclude you from working. A properly filed application at the outset of your claim for disability benefits greatly enhances your chance of success.

A Disability Case has Minimal Upfront Costs

A disability attorney typically receives payment on contingency. Legally this means payment is due only if you win your case. Your representing disability lawyer is keen on presenting important medical records, test results, doctor evaluations, and proper paperwork to ensure they will be successful for you and thus receive payment. The federal government oversees the fee structures a disability attorney can charge. Federal law typically limits a Social Security disability attorney’s fee to twenty-five percent of your back pay or $6,000, whichever is less. SSDI back pay refers to benefits you would have received from the time of your application to when your claim receives approval, minus a five-month waiting period.

A survey of readers of lawyers.com finds the average fee Social Security lawyers collected was $2,900 for SSI and $3,750 in the case of SSDI. Overall this money is well spent because statistics show the claimant may not have received SSA approval or may have been approved but with a reduced monthly benefit.

Hiring a disability attorney to help you become qualified to receive SSI and SSDI benefits is a smart move. While it is not unheard of that self-representation can meet with success, the intricacies of the qualification process and the information required to become eligible are daunting. There are many great reasons to retain a disability lawyer to protect your disability application claim for SSI and SSDI benefits. We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.