Several years after the United States Supreme Court's opinion in Ahlborn we are still seeing differing legal decisions across the country that are various interpretations of Ahlborn. In this month's newsletter we share with you yet another court opinion to keep in your armory.
As you all know, the Florida Legislature is in session. This year most of the focus is on Medicaid reform. The proposed Medicaid reform addresses everything from limiting funding, shifting to a managed care program, and restricting planning. This bill is detrimental to clients, your parents and grandparents as it can limit access to proper medical care and reduce the selection of available providers. Please contact your representatives to tell them that the proposed bills will hurt the citizens of Florida and should not be supported.
We are your one stop shop for cutting edge elder law services.
Stephanie L. Schneider, CELA
Stephanie L. Schneider, PA Newsletter
Elder Law News Lawyers Can Use
Another Interpretation of the Ahlborn Decision Limiting the Medicaid Liability Lien
The Arizona Court of Appeals has ruled that the state Medicaid agency can recover no more than the portion of the Plaintiff's settlement that represents recovery of Medicaid payment made less costs of litigation. Southwest Fiduciary v. Willingham. The case consolidated two case.
Rhonda Lundy was injured in a car accident and her conservator filed suit. Damages were estimated between three and four million and past medical bills totalled $920,000.00. The health care agency had paid $268,000.00 toward her medical bills and filed a lien. Case was settled for $842,696.00. Administrative proceedings were held to determine whether the lien should be limited to the actual amount paid or, the amount billed to the Plaintiff for medical expenses. Arizona law allows a Plaintiff to recover the full amount of the billed medical expenses. The hearing officer held that the liens would be reduced by the ratio that the settlement amount bore to the claim for damages.
The appellate court focused on the anti-lien law analysis in the Ahlborn decision to limit the health care agency's recovery to actual payments the plan made on the victim's behalf and not, the amout of medical expenses billed. It agreed with the administrative court's application that Lundy's recovery was 24% of the value of her case and therefore the health care agency should recover 24% of what it paid toward her medical expenses.
"Proper Planning May Create Peace of Mind"
We are your and your clients' partner in the aging process. Let us help you put the pieces of the puzzle together and navigate the elder law maze!
|Welcome to Our Success Corner |
|If you you or a friend has a family member that is a child with a disability you probably know the challenges it presents. When a person with a disability is receiving Medicaid and/or SSI benefits and receives money (from a lawsuit or inheritance) it can unintentionally cause the child to lose government benefits.
We were invited by a trial attorney to participate in a case involving a young man with a developmental disability. We were asked to create a special needs trust for this young man who lost his Medicaid and SSI benefits as a result of receiving the first of several payments from a personal injury settlement. The first settlement was received several years ago. The Mother who was his Guardian did not advise the Court or the attorney that her son received government benefits. Once the government agencies learned of the assets the benefits were terminated.
We successfully obtained court approval to create a special needs trust and transfer the guardianship assets into the trust. The final settlement proceeds were also placed in the trust. Now, the young man's Successor Guardian can re-apply to Social Security for SSI benefits. Once approved he will automatically receive general Medicaid assistance. The special needs trust assets will last longer by having the government pay for certain basic approved items. The special needs trust assets will be used to enhance his life and qualify of care. The first priority of the Successor Guardian will be to have the young man tested so that he can receive appropriate support services including vocational training.
This is just one of many rewarding reasons why we do what we do! Support your clients by consulting with our firm early in the litigation process.
|Florida's Proposed Medicaid Reform: Stop It In Its Tracks!|
There are three bills pending in the Florida Legislature concerning Medicaid reform. Each of them contain flaws and demonstrate that our representatives and the Governor do not understand or appreciate the necessity for an improved health care system or, why families should not be impoverished to provide basic medical care to their loved one.
1. Managed Care (SB 1972): The proposal is to shift senior citizens to managed care in the belief that it will reduce Florida's growing Medicaid budget. Unfortunately, in the counties that have pilot programs people have experienced an inability to find the right provider, obtain necessary medicine, and have had to travel considerable distance for a medical facility. There is a vulnerable population in Florida that cannot obtain or afford private health insurance and don't know how to speak out to help themselves.
2. Personal Care Agreements (SB 1356/HB 1289): Federal and state Medicaid law permits an individual to enter into a written agreement to compensate a family member who serves as a caregiver. Traditionally, children serve as the single largest group of caregivers for aging parents. Many children have had to leave the workforce or, work part-time in order to care for aging parents and prevent them from being institutionalized. Since these children have a reduced source of support, it makes sense for them to be compensated for the benefit their services provide. The value of their services is much less than that provided by a professionally trained caregiver.
These bills seek to make it more difficult for a family member to be paid by imposing the following restrictions: a)services cannot duplicate services otherwise provided by Medicaid, Medicare or private insurance; b) services cannot be those ordinarily provided out of love and affection.
Neither the family caregiver nor the elder should be penalized for preferring to be cared for by a family member.
3. Spousal Refusal (SB 1356/ HB 1289): Federal and state Medicaid law permits spouses to transfer assets between themselves with no penalty; these actions are not subject to the 5 year look back period. Moreover, in order to prevent spousal impoverishment the law allows the well spouse to refuse to make assets available for the care of the ill spouse. The marital relationship has been protected since MCCA. When filing a Medicaid application the ill spouse can assign his/her support rights to the state and be approved for Medicaid.
The bill would create a hardship and encourage divorce because it requires a married couple to be living apart for 3 years before filing an application for nursing home Medicaid. The bill also seeks to penalize the transfer of assets between spouses.
Please contact your state representative to speak out against the proposed Medicaid reform. Additionally, if your clients are in need of expert legal advice please refer them to our office. The Medicaid laws have changed drastically and are a trap for the unwary. Let us create a long term care planning strategy to help your clients achieve their goals. Proper Planning May Create Peace of Mind
Call us to host Advanced Level CLEs
"Preserving the Personal Injury Settlement for the Aged and Disabled Client"
"Medicare Set Arrangements - they're not just for Worker's Compensation Cases anymore"
at your office.
Earn 1 CLE credits or 1 Trial Law certification credits and .25 ethics credit for each program.
|Representative Special Needs Trusts, Asset Protection Planning and Guardianship Clients|
Guardianship & Trust Professionals
Michael Carris, VP, Senior Trust Advisor
Regions Morgan Keegan Trust
Barry Givner, Sr. V.P, Wealth Mgt. Specialist
Coconut Grove Bank
2701 S. Bayshore Dr.305-860-2756
Jean Smith, V. P. Trust Advisor
Sun Trust Bank, N.A.
Registered Professional Guardian Weston, FL
Earl Denney; Bill King; Jack Hill
Searcy Denney, et al
West Palm Beach
Ervin Gonzalez; Patrick Montoya
Colson, Hicks, Eidson
Lytal, Reiter, et al
West Palm Beach
Gloretta Hall; Linnes Finney
Gary, Williams, et al
Leesfield & Parners
Panter, Panter & Sampedro
Vaka Larson Johnson
Lon Worth Crow
Hinkle & Foran
Gerson & Schwartz
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Estate & Incapacity
♦ Probate & Trust
♦ Last Will & Testament
♦ Revocable Trust
♦ Durable Power of Attorney
♦ Designation of Healthcare
♦ Quit Claim Deed
♦ Living Will
♦ Emergency & Standard
Guardianships (adults &
♦ Long Term Care Facility
♦ Medicaid Applications &
♦ Veterans Benfits Planning
♦ Special Needs Trusts
♦ Representation of Trustees
♦ Protecting Lawsuit
Preserving Medicaid &
♦ Exceptions to Medicaid
♦ Reduction of Third
Party Medicaid Liens
Recent & Upcoming Events
April 21, 2011
Medicaid Legislative Update: Propsed changes to Mediciad laws by the Florida Legislature may be deleterious to seniors and special needs families.
Stephanie will discuss highlights of the proposed changes; provide contact information for state legislators. Please contact you representatives and stop these changes from becoming law.
at Leeza''s Place
2261 N. University Dr, Ste 103
Pembroke Pines 33023
Date & Location To Be Announced
Paralegal Seminar: Elder Law Issues in the Personal Injury Case
Stephanie L. Schneider Board Certified Elder Law Attorney and Ann Koerner, RN, National Care Advisors will present an interactive discussion of how to identify and resolve elder law issues that arise in a personal injury or medical malpractice case such as the Medicaid third party lien, guardianship, special needs trust, probate, Medicare set-aside arrangements.
Credits will be available for Florida Registered Paralegals and Certified Legal Assistants through the National Association of Legal Assistants.
We look forward to seeing you at the Breakers during the Florida Justice Association Annual Conference.
The firm congratulates Stephanie L. Schneider for being selected as a
Top Lawyer in Elder Law in the 2011
South Florida Legal Guide
and being named in
Florida SuperLawyers 2010
Stephanie is accredited by the Veterans Administration
to counsel clients about veterans benefits planning.
Stephanie L. Schneider &