Massachusetts NAELA Publications

Topic

Title (keywords)

Publication

Date

Animals

When it's all Going to the Dogs: Planning Estates with Pets

MassNAELA Newsletter
2008_01_01

Vol. 90
Jan. 22, 2008

Annuities

Estate Planning and Nonqualified Annuities: Navigating the Labyrinth
(client questionnaire non-qualified deferred annuity)

NAELA Journal

Vol. 3 Number 2
2007

Another Option? The Future of Combination Long Term Care Policies Following the Pension Protection Act of 2006
(annuities to fund LTC premiums)

NAELA Journal

Vol. 3 Number 2
2007

Consumer Protection Issues and Public Policy
(understanding annuities)

NAELA Journal

Vol. 3 Number 1
2007

Mass Health Eligibility Ops Memo 06-1 DRA and Long Term Care Eligibility Changes

MassNAELA Newsletter

Vol. 83
Nov. 28, 2006

Tax Free Policy Exchanges

Dinner Meeting Handout

Sep. 2006

Crash Course: Tax and Medicaid aspects of nonqualified annuities

NAELA News

Vol. 18 Issue 2 2006

Fair Hearing Decision substantial delay in issuance of annuity

MassNAELA Newsletter

Vol. 77
Nov. 29, 2005

Annuity Beneficiary considerations, who should be beneficiary, income taxation, Northampton Multi Site.

Multi Site Handout

Feb. 2005

Medicaid Planning with Annuities

Multi Site Handout

Feb. 2005

Suitability of Annuities for Sale to Seniors

NAELA Quarterly

Vol. 16 Issue 1
Winter 2003

Annuities: The Good, the Bad, and the Ugly

NAELA Symposium

Apr. 2002

Assisted Living - CCRCs

Regulations, consumer protection, residents rights

MassNAELA Newsletter

Vol. 79
Apr. 25, 2006

In the Sheep's Clothing of Resident's Rights: Behind the Rhetoric of "Negotiated Risk" in Assisted Living

NAELA Quarterly

Vol. 16 Issue 2
Spring 2003

Enforcement in the Assisted Living Industry: Dispelling the Industry's Myths

NAELA Quarterly

Vol. 16 Issue 2
Spring 2003

Topic

Title (keywords)

Publication

Date

Bankruptcy

Explanation of Bankruptcy Process
(median family income, exemptions)

Dinner Meeting Handout

Jan. 23, 2007

Overview of Bankruptcy Process

MassNAELA Newsletter

Vol. 80
Jun. 8, 2006

Wiping the Slate Clean and Starting Over: Bankruptcy Basics for the Elder Law Practitioner

NAELA QUARTERLY

Vol. 16 Issue 1
Winter 2003

Topic

Title (keywords)

Publication

Date

Caregiver Child

Maguire vs. Director of The Office Of Medicaid
Essex Superior Court reserved decision on applicant's Motion for Judgment on the Pleadings, and Remanded to MassHealth Hearing Officer to develop a more substantial record.

Administrative record was poorly developed by MassHealth and Applicant.

Mailing addresses were the only evidence of daughter's residence, and that  was not substantial evidence to decide whether daughter was Caregiver Child for two years prior to mother's admission to nursing home in 2007.

Fair Hearing Decision
(nursing home attending physical can provide necessary documentation)

MassNAELA Newsletter

Vol. 67
Jun. 8, 2004

Fair Hearing Decision
(child lives in separate apartment of two-family house)

MassNAELA Newsletter

Vol. 64
Jan. 14, 2004

Caregiver Agreement - Caregiver Contract

Creating  Family Care Contracts – The Legal And Care Management Components

Presentation to MassNAELA and Geriatric Caremanagers of New England, November 4, 2009, Framingham, Mass. Family and client options to pay caregivers pursuant to personal service contracts, legal elements of a personal services contract, the supporting assessment and valuation of services, collaborative possibilities for elder law attorneys and GCMs

Weitzel v. Thomas Dehner, Director, Essex Superior Court, No. 08-0627-D (December 30, 2008), J. Merita Hopkins.
Payments To Daughter/POA via Power of Attorney for Caregiving Services: favorable Superior Court decision finding hearing officer's decision to adjust the value of the daughter's services down to zero on the assumption that she was entitled to nothing for the services  she provided her mother was not only arbitrary and capricious, but also  not based on substantial evidence and misapplied the law. The court concluded: that the MassHealth regulations do not forbid children from providing their parents with caretaking services in exchange for monetary compensation; that there was no evidence to support either that the  transfers were for anything other than fair market value, or that they were intended to cause her to qualify for MassHealth benefits.

Hearing decision and memoranda where  payments, made pursuant to a caregiver agreement, were deemed disqualifying transfers

MassHealth Legal's Response to Tewksbury MEC Inquiry 21 2009_01_01

MassHealth Legal's Memorandum in Preparation for Hearing 29 2009_01_02

Fair Hearing Decision 45 2009_01_03

MassNAELA Newsletter
2009_01_01

2009_01_02

2009_01_03

Brewton v. State of Louisiana Department of Health and Hospitals
(Louisiana Ct of Appls: money paid for a lifetime care contract was for fair and valuable consideration. no penalty period; Medicaid applicants were eligible)

MassNAELA Newsletter

Vol. 87
Sep. 5, 2007

Tax Issues for Personal Service Contracts

NAELA News

2007

Taxation of Caregiver Contracts
(independent contractor, employee FUTA, W-2, workers compensation, room and board)

Dinner Meeting Handout

Jun. 4, 2007

Reed v. Missouri Department of Social Services
(lump sum payment for a personal care contract to the Medicaid applicant's daughter was made for fair and valuable consideration. amount paid for the contract not a disqualifying transfer)

MassNAELA Newsletter

Vol. 87
Sep. 5, 2007

Client Capacity

Certificates of Capacity for Physician to Sign Prior to Elder Executing Documents

MassNAELA Newsletter

Vol. 80
Jun. 8, 2006

Aspirational Standards for the Practice of Elder Law
Practical Answers to Ethical Questions Arising in Elder Law (A Quick Reference)

NAELA Journal

Vol. 2 Number 1
2006

Sufficient Capacity: The Contrasting Capacity Requirements for Different Documents
(will, deed, power of attorney, health care proxy)

NAELA Journal

Vol. 2 Number 2
2006

Competence: Is Alcohol Induced Senility Reversible?

NAELA News

Vol. 16 Issue 4
Aug. 2004

Client Confidentiality

To Speak or Not to Speak: Effect of Third Party Presence on Attorney Client Privilege

NAELA Journal

Vol. 2 Number 1
2006

CCRC

Demand letter, Sup Court Complaint for CCRC resident with multiple sclerosis

MassNAELA Newsletter

Vol. 84
Jan. 23, 2007

Topic

Title (keywords) Contributor

Publication

Date

Topic

Title (keywords)

Publication

Date

Elder Abuse - Elder Protection

Isolation as a Domestic Violence Tactic
(The role of an elder law attorney in accessing resources, intervention)

NAELA Journal

Vol. 3 Number 1
2007

Assessing the Needs of Your Older Client

NAELA News

Vol. 18 Issue 3
2006

Ethical Considerations in Potential Elder Abuse Cases

NAELA Quarterly

Vol. 16 Issue 4
Fall, 2003

No Bad Deed Should Go Unpunished: Evaluation and Discovery of Cases of Financial Abuse of Elders attorney
(fees, preliminary investigation discovery remedies)

NAELA Quarterly

Vol. 16 Issue 4
Fall, 2003

Elder Care at Home

Under the Same Roof Rent
(renovate, addition, equity interest, purchase, life estate, gift, testamentary power of appointment, QPRT, family FLP, personal care contract)

MassNAELA Newsletter

Vol. 75
Sep. 13, 2005

The Life Care Plan: Integrating a Healthcare Focused Approach to Meeting the Needs of Your CLients and Families Into Your Elder Law Practice

NAELA Quarterly

Vol. 16 Issue 1
Winter 2003

Eligibility - Medicaid

MassHealth Op memo 07-14
(transfers into or from trusts, personal care contracts, private annuities or Promissory Notes and new process for tracking annuities)

MassNAELA Newsletter

Vol. 88
Oct. 30, 2007

Estate Planning - Petition to Establish - Probate

Complaint in Equity and General Petition to establish estate plan, life estate

MassNAELA Newsletter

Vol. 80
Jun. 8, 2006

Memo in response to GAL objections to Petition for Estate Plan

MassNAELA Newsletter

Vol. 56
Jan. 14, 2003

Estate Recovery

National Perspective on Expanded Estate Recovery: Care Law and Analysis, Emerging Legislative Trends and Responsive Strategies for the Elder Law Attorney (Table of State Medicaid Estate Recovery Programs)

NAELA Journal

Vol. 1 Number 1 Spring 2005

U.S. Department of HHS Medicaid Liens and Estate Recovery in Massachusetts

Online

Apr. 2005

Estate Settlement

NAELA News

Vol. 20 Issue 5
2008

Sullivan v. Rich 07-P-109
Personal injury not actionable against decedent's estate since injury occurred after decedent died, MA Appeals Court Dec. 28, 2007

MassNAELA Newsletter
2008_01_06

Vol. 90
Jan. 22, 2008

Probate Court Forms Petition for Attorney Fees

MassNAELA Newsletter
2008_01_02

Vol. 90
Jan. 22, 2008

MA Assoc. of Insurance Agents
(auto coverage for use of vehicle after death)

MassNAELA Newsletter

Vol. 69
Oct. 26, 2004

Estate Tax - FEDERAL

Funding and Administering Trusts; Marital Deduction Funding Formulas: Fun for the Entire Family

Dinner Meeting Handout

Apr. 30, 2007

Outline of changes in estate tax laws and carryover basis beginning in 2010

MassNAELA Newsletter

Vol. 72
Mar. 3, 2005

Tax Issues in Medicaid Planning special needs trust funding

NAELA Quarterly

Vol. 17 Issue 4
Fall 2004

Estate Tax - Massachusetts

Meet the MAET
(Marital planning; formula clauses)

Dinner Meeting Handout

Jan. 14, 2003

The New Massachusetts Estate Tax Law: Five Myths and Much Muddle

Dinner Meeting Handout

Ethics

Revised ABA Model Rules of Professional Conduct Applied to Elder Law
(Competence, confidentiality, communication, lawyer client)

NAELA Journal

Vol. 1 Number 1 Spring 2005

Legal and Ethical Dilemmas in Religious Estate Planning: The Price of Achieving Heaven on Earth

NAELA Quarterly

Vol. 14 Issue 4
Fall 2001

Topic

Title (keywords)

Publication

Date

Topic

Title (keywords)

Publication

Date

Gift Tax

Tax Issues in Medicaid Planning (special needs trust funding)

NAELA Quarterly

Vol. 17 Issue 4
Fall 2004

Guardianship

Guardianship of Kenneth K. Simon Barnstable Probate Court 05P 1100 GI1

January 14, 2010 Judgment Denying Temporary Guardians First & Final Account and rejecting excessive attorney fees.

Affidavit of Brian E. Barreira, Esq., explaining fiduciary's disregard for ward's preferences and disregard of fiduciary and his counsel for ward's interests

2005 Boston Globe Article explains family background of disputed guardianship

2009 MassNAELA Handouts, Brief Bank
2010_02_05

2010_02_05Affidavit

Guardianship Compensation

MassNAELA Newsletter

Vol. 71
Jan. 12, 2005

Who Guards the Guardians? Restrictions on Compensation Attorneys Who Serve as Guardians

NAELA Journal

Vol. 1 Number 2
2005

Surcharging the Guardian

NAELA News

Vol. 16 Issue 5
Oct. 2004

Standing Order 05-2008 regarding medical certificates

Letter of Paula M. Carey, Chief Justice Probate and Family Court
December 17, 2009, regarding Guardianship Petitions, role of Guardian in financial decision-making, Decree and Order of Appointment, Petition for removal/Resignation/Termination and Petition to Expand/Modify and Limit.

Letter of Adam Nussenbaum, Esq.

2009 MassNAELA Handouts, Brief Bank
2010_02_02

2010_02_02A

Guardianship - Ethics

MBA Opinion - when it would be unethical to represent child of a long time client seeking to become guardian of client

MassNAELA Newsletter

Vol. 74
Jun. 14, 2005

Guardianship - Limited Guardianship

Petition for Limited Guardianship for sole purpose of amending a Durable Power of Attorney, copies of supporting documents

MassNAELA Newsletter

Vol. 76
Oct. 26, 2005

Guardianship - Rudow

Memorandum of Decision regarding Rudow guardianship fees

MassNAELA Newsletter

Vol. 76
Oct. 26, 2005

Fair Hearing Decision multiple Rudow Fees, excess $750

MassNAELA Newsletter

Vol. 68
Sep. 7, 2004

Multiple Rudow Guardianship appointments

MassNAELA Newsletter

Vol. 65
Mar. 8, 2004

Topic

Title (keywords)

Publication

Date

Half a Loaf

Memo and DMA's response to reverse half-loaf approach

MassNAELA Newsletter

Vol. 84
Jan. 23, 2007

Hardship Waiver

Fair Hearings Decisions Concerning Claims of Hardship and Intent 2004 - 2007
(intent gifts fair hearing)

MassNAELA Newsletter

Vol. 89
Nov. 28, 2007

Research memo on Fair Hearing Decisions relative to Hardship Waiver

MassNAELA Newsletter

Vol. 83
Nov. 28, 2006

Health Care Proxy - Medical Treatment - Decision Making

Petition for Affirmation of Validity of Health Care Proxy; Motion for Temporary Order of Affirmation of Validity of HCP; Memorandum of Facts and Law in support of Petition and Motion for Temporary Order of affirmation of Validity of HCP

MassNAELA Newsletter

Vol. 88
Oct. 30, 2007

Health Care Decision Making End of Life Care, Medical Futility

NAELA Institute

Nov. 2000

The Plan of Care When Death is a Blessing

NAELA Symposium

Apr. 2002

Multi Cultural Issues in Advance Directives

NAELA Quarterly

Vol. 13 Issue 3
Summer 2000

Homestead

In Re Carole A. Zmijewski, Debtor US Bankruptcy Court District Of Massachusetts Chapter 7 Case No. 08-40672-Jbr
whether homestead exemption protects both Debtor's life tenancy and her interest in a trust which holds the residual interest

MassNAELA Newsletter
2009_02_05

Vol. 96
Jan. 22, 2009

Protecting the Principal Residence with Homestead and Brief Review of Tax Credits and Exemptions

Dinner Meeting Handout

Jan. 23, 2007

Land Court Guideline multiple homesteads

MassNAELA Newsletter

Vol. 82
Oct. 25, 2006

Housing

MassNAELA Newsletter
2009_01_05

Vol. 96
Jan. 22, 2009

Millbury Housing Authority Letter
(determination of gross household income CMR for subsidized housing)

MassNAELA Newsletter

Vol. 79
Apr. 25, 2006

Section 8 Housing in the 21st Century Age of the Voucher

NAELA News

Vol. 17 Issue 6
Dec. 2005

Fair Housing Protections for Older Clients
(disability discrimination, access, assisted living, ccrc)

NAELA Quarterly

Vol. 17 Issue 2
Spring 2004

Topic

Title (keywords)

Publication

Date

Income Tax

Tax Issues for the Elderly from Multi-site Breakfast meeting Feb 15, 2005
(stepped up basis, property acquired from decedent, joint owners, split interests, transfers between spouses, principal residence)

MassNAELA Newsletter

Vol. 72
Mar. 3, 2005

Changing Trust Situs for Income Tax Savings

NAELA News

Vol. 17 Issue 4
Aug. 2005

About Taxes and Personal Injuries: A Primer for Elder Law Attorneys
(taxation of damages, physical injury, emotional distress, punitive damages, interest on settlement awards, prior medical deductions, timing and receipt, conversion of periodic payments into lump sum, deduction of expenses)

NAELA Quarterly

Vol. 17 Issue 4
Fall, 2004

Another Arrow in the Quiver: Understanding the New Tax Rules That Apply to Capital Gains and Qualifying Dividends
(ordinary income, capital gains, netting rules, collectibles, depreciable real property)

NAELA Quarterly

Vol. 17 Issue 4
Fall, 2004

Analysis of the Tax Aspects of Various Types of Transfers of the Home; NAELA Institute Materials

Dinner Meeting Handout

2003

Highlights of the New Final and Temporary Regulations under IRC §121

Dinner Meeting Handout

2003

Irrevocable Funeral / Burial Trust

Steps to open and fund trust account, tax ID number

MassNAELA Newsletter

Vol. 69
Oct. 26, 2004

Irrevocable Trust

Theresa Ford vs. Commissioner Of The Division Of Medical Assistance.
Massachusetts Appeals Court Unpublished Decision 08-P- 2091

Affirming Superior Court decision that trust that the plaintiff (Medicaid applicant)  and her husband established in 1990 was a self-settled trust giving its trustee discretion to pay trust assets back to the settler. Such assets are countable against the settler. Applicant argued that the family trust was funded when it was formed in 1990, and trust's was given equitable interest in the family home. Under pre-1993 standards of Cohen and Lebow, if there is any way trustee could distribute trust assets to the grantor, those assets count in calculating grantor's Medicaid eligibility.

Also, 2005 sale of the family home was a 'disqualifying transfer' that independently prevented Medicaid eligibility, because applicant sold it to her son for far less than its market value. Applicant's retained life estate in the home suppressed market value, and was a countable asset.

Hearing Decision - Taunton
130 CMR 520.019(D)(4) allows transfers to trusts created for any permanently disabled person under age 65, but trust must  be for sole benefit of disabled person. Further, trust must be actuarially  sound, based on life expectancy of disabled person. $613,900 transfer to  trust and disabled son-in-law were disqualifying.

The Irrevocable Trust  for benefit of son-in-law had Medicaid payback clause covering the  beneficiary (son-in-law), but "Power to Terminate small trusts" clause, "Disclaimers by Beneficiaries" clause, distribution to remainder beneficiaries after disabled person's death, and grantor's retained life estate in house transferred to the trust are deemed disqualifying.

Hearing office rejects MassHealth position that "disabled person" in 520.019(D)(4) = only the applicant.

Clark vs. Director of the Office of Medicaid
Memorandum Of Decision And Order On Plaintiff's Motion For Judgment On Pleadings.

Middlesex superior Court overturns MassHealth's finding of a disqualifying transfer, where the applicant's spouse received fair market value.

The value of the transfer is set by the note obligation that equals or exceeds the fractional property interest transferred. The period allowed to pay for the transfer of the 44% of the property was actuarially sound and the newly structured transaction cured the original disqualifying transfer.

Amended promissory note had an express provision making it not cancelable upon death.

Family members and estate planners can rely on MassHealth regulation as allowing transfers between family members as long as the expressed conditions of the regulation are met.

Nothing in the regulations require a mortgage as security for a promissory note.

The regulation does not make family members ineligible to meet the conditions required for promissory notes. 2009_08_01

Clark v. Denher, Director Of The Office Of Medicaid
Case Commentary Memorandum - October 5, 2009 2009_08_01A

2009 MassNAELA Handouts, Brief Bank
2009_08_01

2009_08_01A

Muriel Doherty vs. Director of the Office of Medicaid
Essex Superior Court and Massachusetts Appeals Court
Restatement of the William A. Doherty and Muriel S. Doherty Family Trust dated April 12, 2000, Promissory Note dated May 18, 2004, Muriel S. Doherty Family Trust 2005 Income Statement, and Amortization Schedule dated May 1, 2006 [from Joint Appendix pages 1 - 23] 2009_07_01

Office of Medicaid Board of Hearings Decision dated December 14, 2006 [from Joint Appendix  pages 24 - 32] 2009_07_02

Essex Superior Court, Notice of Docket Entry, and Judge Richard E. Welch III, Memorandum of Decision and Order on Parties' Cross Motions for Judgment, dated February 29, 2008 Affirming MassHealth decision denying benefits to Doherty for assets in excess of $2000, and Certified Essex County Superior Court Docket, Civil Action No. ESCV2007-00291 [from Joint Appendix pages 33 - 45] 2009_07_03

Table of Contents of the Joint Appendix submitted to the Appeals Court, and the Superior Court Docket 2009_07_04

Brief of Plaintiff / Appellant Muriel Doherty 2009_07_05

Appellant's Addendum containing Federal and State law, MassHealth Regulations, REV. RUL. 2004-44 TABLE 1, and Superior Court Decision 2009_07_06

Appeals Court Decision: Muriel DOHERTY vs. DIRECTOR OF THE OFFICE OF MEDICAID No. 08-P-939 2009_07_07

Complaint pursuant to MGL 30A filed on February 9, 2009 at Essex Superior Court 2009_07_08

Plaintiff's Memorandum of Law in Support of Motion for Judgment on the Pleadings, filed on August 31, 2007 at Essex Superior Court 2009_07_09

Brief of MassHealth, submitted to the Appeals Court on September 19, 2008 on behalf of the Director Of The Office Of Medicaid and The Executive Office Of Health And Human Services, asking the Appeals Court to affirm the decisions of the Superior Court and MassHealth 2009_07_10

Addendum attached to Brief of MassHealth, submitted to Appeals Court, containing photocopies of 42 U.S.C. § 1396p{d), 130 Code Mass. Regs. § 520.023, 42 U.S.C. § 1396a(k) (1988) and H.R. Rep. No. 99-265, pt. 1 (1985) 2009_07_11

2009_07_02

2009_07_03

2009_07_04

2009_07_05

2009_07_06

2009_07_07

2009_07_08

2009_07_09

2009_07_10

2009_07_11

2009_07_12

Nebraska case: Boruch v. Nebraska Dept of Health & Human Services
(applicant for Medicaid benefits had previously transferred his real property to an irrevocable trust under which the applicant was entitled to the use and possession of such real property, as well as the income derived there from. Court held entire value of trust was available resource to the applicant, making him ineligible for Medicaid benefits)

MassNAELA Newsletter

Vol. 76
Oct. 26, 2005

Topic

Title (keywords)

Publication

Date

Joint Ownership

The Four Unities, Straw Deeds, Joint Tenancies

MassNAELA Newsletter

Vol. 70
Nov. 30, 2004

Topic

Title (keywords)

Publication

Date

Topic

Title (keywords)

Publication

Date

Life Estate

Tables for single and joint life estate/remainder factors from age 55 through 100 at the Section 7520 rate  of 2.00%, which is applicable for transfers and sales made during February 2009.

Single Life

Joint Life

IRS Notice  2009-18 Discussing Life Estates

/Mark Worthington,  CELA  

MassNAELA List Serve Posting
2009_02_01

2009_02_02

2009_02_03

Life Estate Value - Remainder Interest Value

Hearing Decision - Revere. December 22, 2009

Applicant and her daughter purchased property for $450.000. Applicant paid $112,500 toward the purchase, and received a life estate interest. The applicant did not live in the property for at least one year after she purchased the life estate (as required by Deficit Reduction Act DRA). MassHealth denied the application due to excess assets of $464,000, the full value of the house. Applicant reapplied. The applicant then changed her interest in the property from a life estate to a joint tenant with rights of survivorship. MassHealth denied eligibility again. The hearing officer agreed that converting the ownership of the property to a joint tenancy cured the original transfer, but remanded to MassHealth to determine the extent to which the appellant's joint interest in the real estate is a countable asset.

Theresa Ford vs. Commissioner Of The Division Of Medical Assistance.
Massachusetts Appeals Court Unpublished Decision 08-P- 2091

Affirming Superior Court decision that trust that the plaintiff (Medicaid applicant) and her husband established in 1990 was a self-settled trust giving its trustee discretion to pay trust assets back to the settler. Such assets are countable against the settler. Applicant argued that the family trust was funded when it was formed in 1990, and trust's was given equitable interest in the family home. Under pre-1993 standards of Cohen and Lebow, if there is any way trustee could distribute trust assets to the grantor, those assets count in calculating grantor's Medicaid eligibility.

Also, 2005 sale of the family home was a 'disqualifying transfer' that independently prevented Medicaid eligibility, because applicant sold it to her son for far less than its market value. Applicant's retained life estate in the home suppressed market value, and was a countable asset.

Wilson vs. Director of the Office of Medicaid
Suffolk Super Court decision affirming MassHealth eligibility denial of applicant who transferred remainder interest in New Hampshire property to children.

Children executed a promissory note for an amount secured by a mortgage in applicant's favor. MassHealth contended that the note has no value, because the children may  not fulfill their obligations to pay, and, in the event that they default, there may not be anyone to bring suit against the children or foreclosure proceedings against the property interest put up as security.

Hearing  officer rejected applicant's valuation expert and determined that the note  has value as between Wilson and her children, but has no fair market value  for MassHealth purposes. Hearing Officer gave applicant 30 days to  respond in writing to MassHealth's valuation evidence and legal arguments,  so decision did not deny due process.

Calculating the Value of a Life Estate or Remainder Interest in Real Estate
(MassHealth Eligibility Operations Memo 07-18 Dec. 1, 2007)

MassNAELA Newsletter
2008_01_03

Vol. 90
Jan. 22, 2008

Complaint for Judicial Review calculation of a life estate -remainder interest by DMA

MassNAELA Newsletter

Vol. 83
Nov. 28, 2006

Fair Hearing Decision, value of life estate when MassHealth recipient sells home

MassNAELA Newsletter

Vol. 77
Nov. 29, 2005

Fair Hearing Decision, Valuation of Life Estate: Taunton

MassNAELA Newsletter

Vol. 74
Jun. 14, 2005

Fair Hearing Decision determination of the value of a life estate interest.

MassNAELA Newsletter

Vol. 73
Apr. 26, 2005

Present Value of Life Estates and Remainder Interest

MassNAELA Newsletter

Vol. 71
Jan. 12, 2005

Fair Hearing Decision value of life estate and remainder

MassNAELA Newsletter

Vol. 68
Sep. 7, 2004

Long Term Care Insurance

1999 LTC References regarding 130 CMR 515.014 - minimum coverage requirements for MassHealth Exemptions:

Version of 211 CMR 65.04 - 65.07 in effect until Sept. 2, 1999

Summary of Significant Provisions of 211 CMR 65.00 for policies in effect prior to March 15, 1999

Notice of when 211 CMR 65.00 was amended

List of LTCI Policies that met the requirements of 211 CMR 65.00 as of 4/13/99

MassNAELA Newsletter
2008_12_01

2008_12_02

2008_12_03

2008_12_04

Another Option? The Future of Combination Long Term Care Policies Following the Pension Protection Act of 2006
(underwriting, adverse selection, tax code LLC annuities, assets to fund LTC premiums)

NAELA Journal

Vol. 3 Number 2
2007

Letter to Elana Margolis, Executive Office Of Elder Affairs, Long Term Care Insurance Partnership

Topic

Title (keywords)

Publication

Date

Marriage - MassHealth

To Marry or Not to Marry (Remarry) Estate Planning
(conflicts of interest, prenuptial agreements)

Dinner Meeting Handout

Jan 22, 2008

MassHealth Eligibility - Assessed Value - Fair Market Value

Middlesex Superior Court case sale of property to family member

MassNAELA Newsletter

Vol. 77
Nov. 29, 2005

Fair Hearing Decision permitting applicant to rely of assessed value

MassNAELA Newsletter

Vol. 65
Mar. 8, 2004

MassHealth Eligibility - Assets

Cuddemi v. Dehner, Director of Office of Medicaid
Essex Superior Court, ESCV 2007-02177 January 20, 2010

Vacating MassHealth decision and entering judgment for the plaintiff, who is executor of his father's estate. Decedent's spouse gave $20,000 business loan to son which was sealed by a promissory note that MassHealth should have included in Community Spouse Resource Allowance of decedent's spouse. She had only $60,000 in other countable assets. MassHealth cannot count the $20,000 loan as a transfer, so decedent has coverage for nursing home care through date of his death.

Victor v. Dehner, Barnstable Superior Court No. 08-386, June 1, 2009

Judgment on the Pleadings, Affirming MassHealth hearing officer who ruled that a trust must be solely funded by a Will in order to be exempt from the definition of a Medicaid Qualifying Trust ("MQT") under 130 CMR §520.022(B)(1) and 42 USC 1396a(k)(2) [which was repealed in 1993]. Therefore, MassHealth can count $163,077 held in a Family Trust that was established in 1981 by applicant's husband. The Trust was funded with $160,000 in cd's passing through husband's will soon after he died in Florida in 1983.

Surviving spouse is denied Medicaid for 2006 nursing home admission, because Family Trust is an MQT: Donor did not fund it solely through his will.

Applicant argued her husband created a valid pour-over trust funded by his will, and commentators are unclear whether pour over trusts will be exempted under the MQT statute.

Court affirmed hearing officer's credibility finding against witnesses who testified that trust funds came only through the will. The Family Trust document required annual accounting, but there were no accounts prior to 2006. The deficient record keeping "undercuts the credibility of the appellant's witnesses," who had testified that no assets were received by the Trust during Donor's lifetime, except for $10.

A – B configuration of trust did not matter, because Trustees had discretion over principal and income, and Cohen requires only a "peppercorn of discretion."

Court rejected characterization that $39,984 in trust distributions during 1989-1999 was a "loan" to surviving spouse, based on document she signed in 2007.

Hearing Decision - Revere. December 22, 2009

Applicant and her daughter purchased property for $450.000. Applicant paid $112,500 toward the purchase, and received a life estate interest. The applicant did not live in the property for at least one year after she purchased the life estate (as required by Deficit Reduction Act DRA). MassHealth denied the application due to excess assets of $464,000, the full value of the house. Applicant reapplied. The applicant then changed her interest in the property from a life estate to a joint tenant with rights of survivorship. MassHealth denied eligibility again. The hearing officer agreed that converting the ownership of the property to a joint tenancy cured the original transfer, but remanded to MassHealth to determine the extent to which the appellant's joint interest in the real estate is a countable asset.

Theresa Ford vs. Commissioner Of The Division Of Medical Assistance.
Massachusetts Appeals Court Unpublished Decision 08-P- 2091

Affirming Superior Court decision that trust that the plaintiff (Medicaid applicant) and her husband established in 1990 was a self-settled trust giving its trustee discretion to pay trust assets back to the settler. Such assets are countable against the settler. Applicant argued that the family trust was funded when it was formed in 1990, and trust's was given equitable interest in the family home. Under pre-1993 standards of Cohen and Lebow, if there is any way trustee could distribute trust assets to the grantor, those assets count in calculating grantor's Medicaid eligibility.

Also, 2005 sale of the family home was a 'disqualifying transfer' that independently prevented Medicaid eligibility, because applicant sold it to her son for far less than its market value. Applicant's retained life estate in the home suppressed market value, and was a countable asset.

Maguire vs. Director of The Office Of Medicaid
Essex Superior Court reserved decision on applicant's Motion for Judgment on the Pleadings, and Remanded to MassHealth Hearing Officer to develop a more substantial record.

Administrative record was poorly developed by MassHealth and Applicant.

Mailing addresses were the only evidence of daughter's residence, and that  was not substantial evidence to decide whether daughter was Caregiver Child for two years prior to mother's admission to nursing home in 2007.

Re-Hearing Decision - Tewksbury
130 CMR 520.019(D)(4) allows transfers to trusts created for any permanently disabled person under age 65, and trust  for the benefit of appellant's daughter's brother-in-law meets this exemption.

Federal law, 42 USC 1396p(c)(2)(B) clearly states "a trust . . . established solely for the benefit of an individual under age 65 years of age who is disabled" and transfer of $263,540 falls within definition of permissible transfer.

Whether the trust meets the "for sole benefit" of the disabled individual was not discussed at rehearing.

Hearing Decision - Taunton
130 CMR 520.019(D)(4) allows transfers to trusts created for any permanently disabled person under age 65, but trust must  be for sole benefit of disabled person. Further, trust must be actuarially sound, based on life expectancy of disabled person. $613,900 transfer to  trust and disabled son-in-law were disqualifying.

The Irrevocable Trust  for benefit of son-in-law had Medicaid payback clause covering the  beneficiary (son-in-law), but "Power to Terminate small trusts" clause, "Disclaimers by Beneficiaries" clause, distribution to remainder beneficiaries after disabled person's death, and grantor's retained life estate in house transferred to the trust are deemed disqualifying.

Hearing office rejects MassHealth position that "disabled person" in 520.019(D)(4) = only the applicant.

Wilson vs. Director of the Office of Medicaid
Suffolk Super Court decision affirming MassHealth eligibility denial of applicant who transferred remainder interest in New Hampshire property to children.

Children executed a promissory note for an amount secured by a mortgage in applicant's favor. MassHealth contended that the note has no value, because the children may not fulfill their obligations to pay, and, in the event that they default, there may not be anyone to bring suit against the children or foreclosure proceedings against the property interest put up as security.

Hearing officer rejected applicant's valuation expert and determined that the note  has value as between Wilson and her children, but has no fair market value  for MassHealth purposes. Hearing Officer gave applicant 30 days to  respond in writing to MassHealth's valuation evidence and legal arguments,  so decision did not deny due process.

Clark vs. Director of the Office of Medicaid
Memorandum Of Decision And Order On Plaintiff's Motion For Judgment On Pleadings.

Middlesex superior Court overturns MassHealth's finding of a disqualifying transfer, where the applicant's spouse received fair market value.

The value of the transfer is set by the note obligation that equals or exceeds the fractional property interest transferred. The period allowed to pay for the transfer of the 44% of the property was actuarially sound and the newly structured transaction cured the original disqualifying transfer.

Amended promissory note had an express provision making it not cancelable upon death.

Family members and estate planners can rely on MassHealth regulation as allowing transfers between family members as long as the expressed conditions of the regulation are met.

Nothing in the regulations require a mortgage as security for a promissory note.

The regulation does not make family members ineligible to meet the conditions required for promissory notes. 2009_08_01

Clark v. Denher, Director Of The Office Of Medicaid
Case Commentary Memorandum - October 5, 2009 2009_08_01A

2009 MassNAELA Handouts, Brief Bank
2009_08_01

2009_08_01A

Muriel Doherty vs. Director of the Office of Medicaid
Essex Superior Court and Massachusetts Appeals Court
Restatement of the William A. Doherty and Muriel S. Doherty Family Trust dated April 12, 2000, Promissory Note dated May 18, 2004, Muriel S. Doherty Family Trust 2005 Income Statement, and Amortization Schedule dated May 1, 2006 [from Joint Appendix pages 1 - 23] 2009_07_01

Office of Medicaid Board of Hearings Decision dated December 14, 2006 [from Joint Appendix  pages 24 - 32] 2009_07_02

Essex Superior Court, Notice of Docket Entry, and Judge Richard E. Welch III, Memorandum of Decision and Order on Parties' Cross Motions for Judgment, dated February 29, 2008 Affirming MassHealth decision denying benefits to Doherty for assets in excess of $2000, and Certified Essex County Superior Court Docket, Civil Action No. ESCV2007-00291 [from Joint Appendix pages 33 - 45] 2009_07_03

Table of Contents of the Joint Appendix submitted to the Appeals Court, and the Superior Court Docket 2009_07_04

Brief of Plaintiff / Appellant Muriel Doherty 2009_07_05

Appellant's Addendum containing Federal and State law, MassHealth Regulations, REV. RUL. 2004-44 TABLE 1, and Superior Court Decision 2009_07_06

Appeals Court Decision: Muriel DOHERTY vs. DIRECTOR OF THE OFFICE OF MEDICAID No. 08-P-939 2009_07_07

Complaint pursuant to MGL 30A filed on February 9, 2009 at Essex Superior Court 2009_07_08

Plaintiff's Memorandum of Law in Support of Motion for Judgment on the Pleadings, filed on August 31, 2007 at Essex Superior Court 2009_07_09

Brief of MassHealth, submitted to the Appeals Court on September 19, 2008 on behalf of the Director Of The Office Of Medicaid and The Executive Office Of Health And Human Services, asking the Appeals Court to affirm the decisions of the Superior Court and MassHealth 2009_07_10

Addendum attached to Brief of MassHealth, submitted to Appeals Court, containing photocopies of 42 U.S.C. § 1396p{d), 130 Code Mass. Regs. § 520.023, 42 U.S.C. § 1396a(k) (1988) and H.R. Rep. No. 99-265, pt. 1 (1985) 2009_07_11

2009_07_02

2009_07_03

2009_07_04

2009_07_05

2009_07_06

2009_07_07

2009_07_08

2009_07_09

2009_07_10

2009_07_11

2009_07_12

MassNAELA Newsletter
2009_06_02

Vol. 98
June 2, 2009

Revisions in Regulations about the Asset Allowance (lower interest rate to be used for calculating CSRA) MassHealth Eligibility Letter 172 Dec. 15, 2007

MassNAELA Newsletter
2008_01_04

Vol. 90
Jan. 22, 2008

Fair Hearing Decision: business asset not actively managed by applicant's spouse is countable

MassNAELA Newsletter

Vol. 89
Nov. 28, 2007

Fair Hearing Decision date of eligibility medical expenses excess assets

MassNAELA Newsletter

Vol. 66
Apr. 27, 2004

Representing the Spouse of Someone Who is About to be admitted to a Nursing Home

Multi Site Handout

Feb. 25, 2003

Superior Court decision finding that the terms of an Irrevocable Trust allowed the trustee enough discretion that the assets were countable for Medicaid eligibility purposes.
County: Essex; Judge: Richard Welch, III

MassHealth Eligibility - Countable Asset - Aid and Attendance

Fair Hearing Decision (1) the countability as an asset of retroactive lump sum Veterans Aid & Attendance benefits and (2) countability as income of the monthly Veterans Aid & Attendance benefits

MassNAELA Newsletter

Vol. 78
Feb. 28, 2006

MassHealth Eligibility - Countable Asset - Family Trust, Promissory Note

Memo from DMA member Services Policy Implementation on treatment of Family Trust, Promissory Note

MassNAELA Newsletter

Vol. 89
Nov. 28, 2007

MassHealth Eligibility - IRA - Retirement Account

Transfer of an IRA pursuant to a legal separation; separate support

MassNAELA Newsletter

Vol. 73
Apr. 26, 2005

MassHealth Eligibility - Countable Asset - Mortgage Payments - Income

Hampden County Superior Court payment on a mortgage note of principal not considered as income

MassNAELA Newsletter

Vol. 78
Feb. 28, 2006

Eligibility Operations Memo 09-09 and a discussion by Tim Loff, Esq., explaining why clinical assessment by ASAPS need to be retroactive to the date of eligibility.

Memo suggests solutions for conflicting eligibility dates entered on the Nursing Facility Clinical Eligibility Form (the "Screening") by the local ASAP and on the SC-1 Clinical Eligibility Date (box #22). The ASAPs are entering the date assessment the assessment was done, rather than the date the Medicaid applicant became clinically eligible (which is typically the day following the last covered Medicare date). The problem is ASAPS do not assess applicants until a Medicaid application has been submitted, and typically not until a case worker has been assigned. By the time an assessment is done, weeks have gone by since the applicant’s last Medicare/skilled date. Meanwhile, the Medicaid application has been submitted, and the eligibility date from that point of view is typically the day following the last covered Medicare date.

2009 MassNAELA Handouts, Brief Bank
2009_12_04

MassHealth Eligibility - Hardship

Fair Hearings Decisions Concerning Claims of Hardship and Intent 2004 - 2007

MassNAELA Newsletter

Vol. 89
Nov. 28, 2007

MassHealth Eligibility - Over Under

Long Term care Cases and Options for Managing
(sample letter to family, client)

MassNAELA Newsletter

Vol. 72
Mar. 3, 2005

MassNAELA Newsletter
2008_06_01

Vol. 92
June 12, 2008

MassHealth Eligibility Supplemental Needs Trust

January 22, 2010 Letter from MassNAELA to Amy Andrade, Director, Policy Implementation and Evaluation Services Unit, Office of Medicaid, Boston

Advocating that NF residents who are 65+ continue to be permitted to transfer assets to pooled trusts. Federal Medicaid law allows the establishment of certain types of trusts for disabled individuals that will not be considered countable resources for MassHealth long term care eligibility. 42 U.S.C. 1396p(d)(4)(C), 130CMR 520.023(D).

Office of Medicaid Board of Hearings Decision, November 17, 2009 - Taunton
Transfer of $207,400.22 into a trust by nursing home resident for the benefit of her daughter-in-law was not a disqualifying transfer.

MassHealth's regulations do not specifically require that the permanently and totally disabled "person" defined in 130 CMR 520.019(D)(4) be the applicant, spouse or child.

There is nothing in federal law or in Transmittal 64 that leads to the interpretation that "a person" in Section 4 or "an individual in 42 U.S.C §1396p (c)(2)(B)(iv) is the applicant, spouse or child.

The transfer to an amended trust which was for the sole benefit of the daughter-in-law, who is a person under age 65 and permanently and totally disabled, qualifies as a permissible transfer (130 CMR 520.019(D)(4)).

Re-Hearing Decision - Tewksbury
130 CMR 520.019(D)(4) allows transfers to trusts created for any permanently disabled person under age 65, and trust  for the benefit of appellant's daughter's brother-in-law meets this exemption.

Federal law, 42 USC 1396p(c)(2)(B) clearly states "a trust . . . established solely for the benefit of an individual under age 65 years  of age who is disabled" and transfer of $263,540 falls within definition of permissible transfer.

Whether the trust meets the "for sole benefit" of the disabled individual was not discussed at rehearing.

Fair Hearing Decision discussing determination of eligibility date when assets used to fund special needs pooled trust post application date

MassNAELA Newsletter
2008_01_05

Vol. 90
Jan. 22, 2008

MassHealth Eligibility - Verifications

Fair Hearing Decision if missing verifications provided by date of hearing, hearing officer uses original application date

MassNAELA Newsletter

Vol. 57
Mar. 6, 2003

MassHealth Penalty Period, Look Back Period

Shelales vs. Director Of The Office Of Medicaid
Massachusetts Appeals Court No. 08-P-2052 - October 30, 2009. 2009_11_01

Affirming Superior Court and MassHealth board of hearings. Asset transfer penalty period begins to run when Medicaid applicant's prepayment runs out. Court affirmed MassHealth interpretation of 130 CMR § 520.019(G)(3): date on which the prepayment is exhausted is "the date on which the individual is otherwise eligible for MassHealth payment of long-term care services."

Timeline:
Dec. 7, 2006 – nursing home admission

Jan. 11, 2007 - $41,993 gift to children, and $50,447 prepayment to nursing home

April 30, 2007 – applicant applied for MassHealth benefits, requesting coverage retroactive to Jan. 11, 2007

Parties agree transfer penalty period is 164 days. Court holds applicant ineligible for benefits for 164 days beginning June 28, 2007, the day after applicant's prepayment was exhausted.

Court rejected applicant argument that penalty period began Jan. 12, 2007, the day following the gift transfer, and that MassHealth's interpretation of regulation is inconsistent with Federal Medicaid law.

Court concluded that applicant's interpretation is not the only reasonable way to construe regulation and governing Federal law. "MassHealth's interpretation of its own regulation is reasonable." "[C]ourt must show deference to the  experience, technical competence, specialized knowledge, and discretionary authority conferred upon the regulatory agency. . . . Nothing in the Federal [DRA] legislation precludes a State plan that commences the ineligibility period for disqualifying transfers by reference to whether  the applicant is "otherwise eligible for [State] payment of long-term care services." § 520.019(G)(3). Indeed, MassHealth's interpretation of its parallel regulation is consonant with the expressed purpose of delaying or even obviating the need for taxpayer- financed care."

2009 MassNAELA Handouts, Brief Bank
2009_11_01

2009_11_01_Appellant_Brief  

Vol. 97 - Apr. 16, 2009

Eligibility Operations Memo 06-1 DRA and Long Term Care Eligibility Changes

MassNAELA Newsletter

Vol. 83
Nov. 28, 2006

Fair hearing Decision post eligibility transfers by a community spouse

MassNAELA Newsletter

Vol. 73
Apr. 26, 2005

In the Matter of KashmiraShah, Respondent, Helen Hayes Hospital, et al., Appellants. In the Matter of Bipin Shah, Respondent, v. Barbara DeBuono, & c., et al., Appellants. (New York - New Jersey Medicaid residency case)

Online Findlaw

Online Cornell

MassHealth Spousal Refusal

Fair hearing decision PPA in a "spousal refusal to Cooperate" case

MassNAELA Newsletter

Vol. 84
Jan. 23, 2007

Case note: Morenz v. Wilson-Coker (2d Cir 2005) Federal law requires states to honor spousal refusal

NAELA Journal

Vol. 1 Number 2
2005

Dinner Meeting Handout
2008_01_10

Jan. 2008

Rosetti v. Waldman Essex Superior Court
Discusses nursing home spouse obligation to disclose information regarding assets, nursing home spouse capacity to provide information

MassNAELA Newsletter
2005_09_01

Vol. 75
Sept. 13, 2005

Rossetti vs. Waldman
Motion for judgment on pleadings and supporting memo

MassNAELA Newsletter
2005_01_01

Vol. 71
Jan. 12, 2005

Rossetti vs. Waldman
Litigation documents

MassNAELA Newsletter
2004_09_01

Vol. 68
Sept. 7, 2004

Wawrzynowicz v. Director of Office of Medicaid
Suffolk Superior Court case; Long-term care eligibility; disqualifying transfer of resources; deficit reduction act challenge

September, 2007 - Administrative Denial 2009_02_06

October, 2007 - Superior Court Complaint 2009_02_07

September, 2008 - Plaintiff's Memo for Judgment on Pleadings 2009_02_08

October, 2008 & January, 2009 - Defendants Opposition and Superior Court Judgment Affirming Denial of Benefits 2009_02_09

MassNAELA Public Policy
Case Bank
2009_02_06

2009_02_07

2009_02_08

2009_02_09

MassHealth - Transfer - Clerical Error - Revocable Trust

Fair Hearing Decision proceeds from sale of real estate mistakenly deposited into accounts in name of a revocable trust
(Caseworker considered correction of error a disqualifying transfer. Hearings Officer held clerical error not disqualifying transfer)

MassNAELA Newsletter

Vol. 76
Oct. 26, 2005

Medicaid Deficit Reduction Act of 2005

Wawrzynowicz v. Director of Office of Medicaid
Suffolk Superior Court case; Long-term care eligibility; disqualifying transfer of resources; deficit reduction act challenge

September, 2007 - Administrative Denial 2009_02_06

October, 2007 - Superior Court Complaint 2009_02_07

September, 2008 - Plaintiff's Memo for Judgment on Pleadings 2009_02_08

October, 2008 & January, 2009 - Defendants Opposition and Superior Court Judgment Affirming Denial of Benefits 2009_02_09

MassNAELA Public Policy
Case Bank
2009_02_06

2009_02_07

2009_02_08

2009_02_09

White Paper: Analysis of Changes

NAELA Journal

Vol. 2 Special
2006

Medicaid Hearings - Due Process

Demanding Due Process from State Medicaid Agencies
(subpoena witnesses, burden, hearing officer, right to record, estate recover, liens)

NAELA Journal

Vol. 3 Number 2
2007

Retirement Plans Threatened by Shift in Medicaid Policy
William Browning, NYU Tax Institute (2005)

Protecting Retirement Benefits from Medicaid
January 2007 Elder Law Report Article from NAELA Institute

POMS section on the treatment of IRA distributions
(SI 01120.210 Retirement Funds)

§416.1202 Deeming of resources
(Treatment of IRA retirement funds)

Houghton v. Reinertson
(10th Cir. No. 03-1074, Aug. 24, 2004) (Colorado treatment of IRA assets)

Keip v. Wisc. Dept. of Health and Family Services
(12/23/99) (Wisconsin treatment of IRA assets)

Medicaid Liens - Personal Injury Settlements

U.S. Supreme Court Case: Arkansas Department of HHServices v. Ahlborn

MassNAELA Newsletter

Vol. 80
Jun. 8, 2006

Medicaid Planning For Married Couples

Medicaid Planning For Married Couples
(checklist, techniques, strategies)

NAELA Quarterly

Vol. 17 Issue 2
Spring 2004

Medicaid Qualifying Trust

Victor v. Dehner, Barnstable Superior Court No. 08-386, June 1, 2009

Judgment on the Pleadings, Affirming MassHealth hearing officer who ruled that a trust must be solely funded by a Will in order to be exempt from the definition of a Medicaid Qualifying Trust ("MQT") under 130 CMR §520.022(B)(1) and 42 USC 1396a(k)(2) [which was repealed in 1993]. Therefore, MassHealth can count $163,077 held in a Family Trust that was established in 1981 by applicant's husband. The Trust was funded with $160,000 in cd's passing through husband's will soon after he died in Florida in 1983.

Surviving spouse is denied Medicaid for 2006 nursing home admission, because Family Trust is an MQT: Donor did not fund it solely through his will.

Applicant argued her husband created a valid pour-over trust funded by his will, and commentators are unclear whether pour over trusts will be exempted under the MQT statute.

Court affirmed hearing officer's credibility finding against witnesses who testified that trust funds came only through the will. The Family Trust document required annual accounting, but there were no accounts prior to 2006. The deficient record keeping "undercuts the credibility of the appellant's witnesses," who had testified that no assets were received by the Trust during Donor's lifetime, except for $10.

A – B configuration of trust did not matter, because Trustees had discretion over principal and income, and Cohen requires only a "peppercorn of discretion."

Court rejected characterization that $39,984 in trust distributions during 1989-1999 was a "loan" to surviving spouse, based on document she signed in 2007.

Fair Hearing Dec Whether or not the trust holding assets of the applicant was a Medicaid Qualifying Trust (MQT) or not
(Had the trust been a MQT, the assets held in trust would have disqualified the applicant on the basis of having excess assets)

MassNAELA Newsletter

Vol. 86
Jun. 4, 2007

Fair Hearing Decision: trust was not a Medicaid Qualifying Trust, and the assets held in trust are not assets available to the MassHealth Applicant.

MassNAELA Newsletter

Vol. 85
Apr. 30, 2007

Medicare

Have Your Clients Been SNP'ed?
(special needs plan SNP)

NAELA News

Vol 19 Issue 4
2007

Medicare Drug Benefit: A Prescription for Confusion
(employer sponsored coverage, medigap managed care plans)

NAELA Journal

Vol 1. Number 2
2005

Understanding the Medicare Secondary Payer Program

NAELA News

Vol. 17 Issue 3
Jun. 2005

Medicare Part D Prescription Coverage NAELA Symposium materials

MassNAELA Newsletter

Vol. 75
Sep. 13, 2005

Maintaining Medicare SNF Eligibility; Physician advisor role

Dinner Meeting Handout

Sep. 10, 2002

Minimum Monthly Maintenance Needs Allowance ("MMNA")

Boleslawa Grant v. Scty of Exec Office of Health & Human Services: Suffolk Cnty Sup Court
(MassHealth Applicant challenged MassHealth on their use of a 5 year CD to calculate the income generated by assets in order to determine the amount of assets allowed the CS)

MassNAELA Newsletter

Vol. 86
Jun. 4, 2007

Fair Hearing Decision favorably interprets regs, assisted living cost increases MMMNA

MassNAELA Newsletter

Oct. 26, 2005

Topic

Title (keywords)

Publication

Date

Nursing Home - Admission

Proposed changes to the Model Nursing Home Admission Agreement

MassNAELA Newsletter

Vol. 84
Jan. 23, 2007

Representing the Spouse of Someone Who is About to be admitted to a Nursing Home

Multi Site Handout

Feb. 25, 2003

Counsel for the Advocate - Empowering Those Who Care (care plan therapy standard of care contract)

NAELA Quarterly

Vol. 16 Issue 2
Spring 2003

Ten Points to Consider When Selecting a Skilled Nursing Facility

NAELA News

Vol. 17 Issue 1
Feb. 2005

Nursing Home - Arbitration

The Rights Of Massachusetts Nursing Home Residents: Legalities Vs. Realities

Advocating for residents: The law v. Real Life, Nursing home admissions process, source of payment, the "responsible party" problem, discharge/transfer when Medicare coverage ends, discontinuing skilled services when Medicare coverage ends, involuntary transfers, evicting the "problem" resident

MassNAELA Newsletter
2009_01_04

Vol. 96
Jan. 22, 2009

Mandatory Arbitration Clauses in Nursing Home Admission Agreements (involving commerce, fraud, consumer)

NAELA Journal

Vol. 3 Number 2
2007

Memo: Nursing Home Arbitration Agreements: A Response from Elder Law Attorneys; Miller v. Cotter (SJC enforced voluntary arbitration agreement between a nursing home resident and a facility in a wrongful death case)

MassNAELA Newsletter

Vol. 85
Apr. 30, 2007

Nursing Home - Collections

Relentless Pursuit: Claims Against Third Parties in Nursing Facility Collection Cases
(guardian, conservator, admissions)

NAELA Journal

Vol. 1 Spring 2005

East Longmeadow Management Systems, Inc Hampden County d/b/a East Longmeadow Skilled Nursing Center vs. Judith S. Wilson, F/K/A Judith Anne Skipton
Hampden County Superior Court Docket 88-704

Memorandum Of Decision And Order issued Nov. 20, 2009 allowing nursing home's motion for summary judgment, and denying cross motion for summary judgment by surviving spouse of nursing home resident. Mass. Gen Laws ch. 209, § 1 explicitly expanded common law standard, imposing joint and several liability for necessaries on both spouses. Widow can be held liable for the full cost of necessaries furnished to nursing home resident (husband) prior to his death. Material facts remain in dispute as to the expenses owed and on the issue of possible insurance coverage for those expenses, so the Court will not award summary judgment on those matters.

Nursing Home - Discharge

The Rights Of Massachusetts Nursing Home Residents: Legalities Vs. Realities

Advocating for residents: The law v. Real Life, Nursing home admissions process, source of payment, the "responsible party" problem, discharge/transfer when Medicare coverage ends, discontinuing skilled services when Medicare coverage ends, involuntary transfers, evicting the "problem" resident

Fair Hearing Decision proposed discharge of a non-MassHealth eligible nursing home resident because there is "no payment source."
(John commented: good decision in bad situation, where neither the facility nor the resident was at fault, but rather the five-year bar on eligibility for aliens.)

MassNAELA Newsletter

Vol. 76
Oct. 26, 2005

Fair Hearing Decision whether sufficient cause to discharge re: behavior

MassNAELA Newsletter

Vol. 66
Apr. 27, 2004

Nursing Home - Private Room

Family "supplemental" payments for private room in a SNF

MassNAELA Newsletter

Vol. 84
Jan. 23, 2007

93A demand letter, nursing facility's response, attempt to "surcharge" a MassHealth resident or move resident from private room she occupied for more than 3 years.

MassNAELA Newsletter

Vol. 78
Feb. 28, 2006

Nursing Home - Standard of Care

Does the Nursing Home Reform Law Matter? Establishing the Standard of Care in Nursing Facility Cases

NAELA Quarterly

Vol. 16 Issue 2
Spring 2003

Pain Management: Advising and Advocating for Good Care; Seeking Redress and Accountability for Inadequate Care

NAELA Quarterly

Vol. 15 Issue 4
Fall 2002

Nursing Home Litigation and the Elder Law Attorney
(chemical restraint, pressure sore, malnutrition, wandering, falls)

NAELA Quarterly

Vol. 14 Issue 2
Spring 2001

Litigating the Pressure Sore Case Against a Nursing Home

NAELA Quarterly

Vol. 12 Issue 4
Fall 1999

Topic

Title (keywords)

Publication

Date

Topic

Title (keywords)

Publication

Date

Penalty Period

Fair Hearing Decision: calculation of penalty period; "reverse half loaf" technique attempted
(DMA recalculation of commencement date of penalty period upheld.)

MassNAELA Newsletter

Vol. 85
Apr. 30, 2007

Pet Trusts

Benefit Your Clients and their Pets

NAELA News

Vol. 18 Issue 4
2006

Practice of Elder Law

MassNAELA Public Policy Litigation Committee Referral Criteria, Procedures, and Form
Discussing the factors to consider in each potential case: Importance of legal issue to clients of NAELA members, Review for Chance of Success, Screen for Bad Facts, Timing and Resources.

2009 MassNAELA Handouts, Brief Bank
2009_09_04

NAELA News

Vol. 20 Issue 5
2008

NAELA News

Vol. 20 Issue 5
2008

Death Comes to the Attorney
(succession plan, choosing an assisting attorney, attorney's duty to plan, updated office manualRule 1.3)

NAELA Journal

Vol. 3 Number 2
2007

Are You Ready for your 2:30 Appointment?

NAELA News

Vol. 18 Issue 1
2006

Address Medicaid's Institutional Bias and Expand Your Practice
(property tax abatement form letter)

NAELA News

Vol. 18 Issue 1
2006

Lawyering for Older Clients: A New Paradigm
(hospice, refusing treatment, ethical will, fiduciary, litigation, real estate, investment, insurance, advance medical directive)

NAELA Journal

Vol. 1 Number 2
2005

Relevance of the NAEL Aspirational Standards to Malpractice Liability
(legal malpractice)

NAELA Journal

Vol. 2 Number 1
2006

From the Elder Friendly Law Office to the Elder Friendly Courtroom
(lighting, room temperature, see, hear)

NAELA Journal

Vol. 2 Number 2
2006

Putting the "Elder Care" In Elder Law

NAELA
Quarterly

Vol. 13 Issue 2
Spring 2000

Responding to the Grieving Client

NAELA News

Vol. 12 Issue 1
Feb. 2000

Power of Attorney

Navigating the Uniform Power of Attorney Act

NAELA Journal

Vol. 3 Number 1 2007

Planning With Special Needs Youth Upon Reaching Majority: Education and Other Powers of Attorney
(Parental Role, IDEA, autism)

NAELA Journal

Vol. 1 Number 1 Spring 2005

Ethical Considerations in Potential Elder Abuse Cases

NAELA Quarterly

Vol. 16 Issue 4
Fall, 2003

Private Pay - MassHealth

Fair Hearing Dec, Nursing Home Provider Regs: nursing homes to immediately reimburse plaintiffs amounts paid privately for periods covered by Medicaid.

MassNAELA Newsletter

Vol. 87
Sep. 5, 2007

Promissory Notes

Cuddemi v. Dehner, Director of Office of Medicaid
Essex Superior Court, ESCV 2007-02177 January 20, 2010

Vacating MassHealth decision and entering judgment for the plaintiff, who is executor of his father's estate. Decedent's spouse gave $20,000 business loan to son which was sealed by a promissory note that MassHealth should have included in Community Spouse Resource Allowance of decedent's spouse. She had only $60,000 in other countable assets. MassHealth cannot count the $20,000 loan as a transfer, so decedent has coverage for nursing home care through date of his death.

Sable v. Velez Civ. No.  09-2813 (U.S. District Court, D.N.J. Oct. 16, 2009)
Six applicants for Medicaid long-term care benefits loaned funds to their respective children, in return for otherwise qualifying promissory notes. Federal  Court found a factual issue in whether the promissory notes were "trust-like instruments" that would be countable resources subject to the imposition of a disqualification period. The Court remanded the case to New Jersey Medicaid with instructions to determine whether or not the loan recipients had agreed to hold the loaned funds in a fiduciary capacity,  for their parents' benefit.

New Jersey Medicaid had contended the promissory notes were "legal instruments or devices similar to a trust" and therefore countable resources upon which loans New Jersey Medicaid then imposed disqualification periods.

Applicants had asked for  injunctive relief, under Sec. 1983, to enjoin New Jersey Medicaid from imposing disqualification periods on otherwise Medicaid qualifying promissory notes. Applicants asserted that the New Jersey regulation was more restrictive than the Federal Medicaid Act permits under 42 U.S.C. §§ 1396a(a)(10)(C)(i)(III); 1396a(r)(2)(A)(i). Both sides moved for summary judgment.

The Court denied both motions, but agreed with applicants' contention that they have standing to sue under Sec. 1983 and need not exhaust state administrative remedies prior to bringing suit. Compare:  Hobbs v. Zenderman (10th Cir. 2009) (no right to sue under §1983 and Mendez v. Brown, 311 F. Supp. 2d 134 (D. Mass. 2004) (district court cases that found a civil right enforceable under § 1983).

Wilson vs. Director of the Office of Medicaid
Suffolk Super Court decision affirming MassHealth eligibility denial of applicant who transferred remainder interest in New Hampshire property to children.

Children executed a promissory note for an amount secured by a mortgage in applicant's favor. MassHealth contended that the note has no value, because the children may  not fulfill their obligations to pay, and, in the event that they default, there may not be anyone to bring suit against the children or foreclosure proceedings against the property interest put up as security.

Hearing  officer rejected applicant's valuation expert and determined that the note  has value as between Wilson and her children, but has no fair market value  for MassHealth purposes. Hearing Officer gave applicant 30 days to  respond in writing to MassHealth's valuation evidence and legal arguments,  so decision did not deny due process.

Medicaid letter (08/20/2007) and memo regarding the treatment of a private promissory note in an eligibility determination of long-term care benefits. Fair Hearing Decision regarding private promissory notes.

MassNAELA Newsletter

Vol. 88
Oct. 30, 2007

Clark vs. Director of the Office of Medicaid
Memorandum Of Decision And Order On Plaintiff's Motion For Judgment On Pleadings.

Middlesex superior Court overturns MassHealth's finding of a disqualifying transfer, where the applicant's spouse received fair market value.

The value of the transfer is set by the note obligation that equals or exceeds the fractional property interest transferred. The period allowed to pay for the transfer of the 44% of the property was actuarially sound and the newly structured transaction cured the original disqualifying transfer.

Amended promissory note had an express provision making it not cancelable upon death.

Family members and estate planners can rely on MassHealth regulation as allowing transfers between family members as long as the expressed conditions of the regulation are met.

Nothing in the regulations require a mortgage as security for a promissory note.

The regulation does not make family members ineligible to meet the conditions required for promissory notes. 2009_08_01

Clark v. Denher, Director Of The Office Of Medicaid
Case Commentary Memorandum - October 5, 2009 2009_08_01A

2009 MassNAELA Handouts, Brief Bank
2009_08_01

2009_08_01A

Topic

Title (keywords)

Publication

Date

Topic

Title (keywords)

Publication

Date

Real Estate - MassHealth - Home Ownership

Home Ownership Options for Seniors

Dinner Meeting Handout

Jan 22, 2008

Residency - MassHealth

Fair Hearing Decision applicant satisfied residency requirement; Florida

MassNAELA Newsletter

Vol. 75
Sep. 13, 2005

Chludzenski v. DPW Essex Superior Court (home outside MA that is residence of community spouse is exempt)

MassNAELA Newsletter

Vol. 57
Mar. 6, 2003

Reverse Mortgage

A Closer Look at Life Estates, Long Term Care Planning & Reverse Mortgages

Dinner Meeting Handout

Oct. 30, 2007

Reverse Mortgage Counseling

Dinner Meeting Handout

Oct. 30, 2007

GAL report on a Petition for a Reverse Mortgage.

MassNAELA Newsletter

Vol. 73
Apr. 26, 2005

Revocable Trust - Medicaid

Fair Hearing Decision: calculation of CSRA, at time of app primary residence owned in trust, and later transferred back to com spouse and rendered non countable.

MassNAELA Newsletter

Vol. 82
Oct. 25, 2006

Topic

Title (keywords)

Publication

Date

Separate Support - MassHealth Eligibility - IRA - Retirement Account

Transfer of an IRA pursuant to a legal separation

MassNAELA Newsletter

Vol. 73
Apr. 26, 2005

Special Needs Trust - Supplemental Needs Trust

Hobbs v. Zenderman (10th Cir. 2009)
Federal Appeals court affirms summary judgment in favor of New Mexico Medicaid. The state may regard 1396p(d)(4) trust as a countable resources, and plaintiff cannot challenge termination of SSI and Medicaid in § 1983 suit.

New Mexico Medicaid ruled $2,000 / month payments to mother from $1.1 million (d)(4)(a) trust for care of her severely disabled child, and other trust expenditures for home expenses, were not for beneficiary's sole benefit.

Mrs. Hobbs helps son with dressing, bathing, monitors for seizures, transports him to school, trains school personnel to deal with child’s disability. Trust funds also used to purchase 50% interest in the Hobbs' home, furnishings, homeowner insurance, maintenance, improvement, life insurance on parents. Payments to Mrs. Hobbs were not for the sole benefit of Hobbs." A trust is considered established for the sole benefit of a spouse or disabled child if trust benefits no one but that individual, at the time the trust is established or any time in the future.

Rejects district court cases that found a civil right enforceable under § 1983.  See Mendez v. Brown, 311 F. Supp. 2d 134 (D. Mass. 2004).

MassNAELA Newsletter
2009_04_02

Vol. 97
Apr. 16, 2009

NAELA News

Vol. 20 Issue 6
2008

NAELA News

Vol. 20 Issue 5
2008

Fair Hearing Decision discussing determination of eligibility date when assets used to fund special needs pooled trust post application date

MassNAELA Newsletter
2008_01_05

Vol. 90
Jan. 22, 2008

The Uniform Trust Code and Special Needs Trusts

NAELA
News

Vol. 19 Issue 4
2007

Special Needs Trust Checklist
(Prescription Drug Assistance Programs, Health Care Services, Nutrition Services, Nutrition Services, Heat and Utility Services)

NAELA
News

Vol. 19 Issue 3
2007

Drafting Part One: Concepts Strategies and Specific Language

Elder Law Inst XII
Suffolk 2006

Page 13

Third Party Special Needs Trusts Eligibility Rules - Public Benefits Programs
(Bailout Clause, provisions for residence)

Elder Law Inst XII
Suffolk 2006

Pages 17, 83, 85

Trust Structural Matters

Elder Law Inst XII
Suffolk 2006

Page 39

Some Dos, Don'ts and Maybees (Considerations) in Drafting Special Needs Trusts
(Distribution clauses, stand alone revocable SNT, amendment clauses to preserve eligibility, housing clauses, various distribution clauses, administration of trusts)

Elder Law Inst XII
Suffolk 2006

Pages 49, 245

Tax Session - What Every Estate Planner Must Know About Third Party SNT's
(sample conduit trust language, example of trust taxation; Qualified Disability Trusts QDT)

Elder Law Inst XII
Suffolk 2006

Page 169

The Greater Asset Protection Self Settled Special Needs Trust (Alaska Trust; Delaware Trust)

NAELA Journal

Vol. 1
Spring 2005

Impact of the Uniform Trust Code on Special Needs Trusts

NAELA Journal

Vol. 1 Number 2
2005

Preserving Public Benefits in Physical Injury Settlements: Special Needs Trusts and Beyond
(workers compensation, medicare, self-administered, tax considerations, attorney's fees, medicaid annuities, special funding issues)

NAELA Journal

Vol. 2 Number 2
2006

Basic Strategies for SSI Planning. testamentary trusts, differences between SSI and Medicaid

NAELA Journal

Vol. 1 Number 2
2005

"Trigger Provisions" Creating Special Needs Trust

NAELA News

2007

Special Needs Trust Planning d(4)(a) Trusts and How to Administer One

Dinner Meeting Handout

Apr. 30, 2007

Tax Issues in Medicaid Planning
(gift tax, crummey powers, capital gains income only trusts, trust funding)

NAELA Quarterly

Vol. 17 Issue 4
Fall 2004

Minimizing Income Taxes with "Qualified Supplemental Needs Trusts
(Trust Taxation Rules, Irrevocable SNT, Administrative Powers, Grantor Trust, Independent Trustee; DNI Distributable Net Income, Qualified Disability Trusts QDT)

NAELA Journal

Vol. 1
Spring 2005

Petition to Establish Sup Needs Trust, with report on court's action

MassNAELA Newsletter

Vol. 58
Apr. 29, 2003

Designating a Special Needs Trust: A Three Step Approach to Maintain Benefits and Reduce Taxes
(trust funding, IRA, SSI, deductible expense)

NAELA Quarterly

Vol. 15 Issue 2
Spring 2002

Selecting and Advising Trustees of Special Needs Trusts

NAELA Quarterly

Vol. 15 Issue 2
Spring 2002

Distribution Standard for the Special and Supplemental Needs Trust
(mandatory support, discretionary support, precatory language)

NAELA Quarterly

Vol. 14 Issue 3
Summer 2001

The Dark Side of Pooled Trusts

NAELA Quarterly

Vol. 14 Issue 3
Summer 2001

Creating Housing Choices for Disabled Beneficiaries by the Use of Supplemental Needs Trust

NAELA Quarterly

Vol. 15 Issue 3
Summer 2002

SSI

Social Security Administration ALJ Decision transfer of assets from SSI applicant

MassNAELA Newsletter

Vol. 77
Nov. 29, 2005

SSI Trust and Transfer Rules
(good checklist and ideas for funding, distributions)

NAELA Quarterly

Vol. 17 Issue 2
Spring 2004

Topic

Title (keywords)

Publication

Date

Testamentary Trusts

Testamentary Trusts: The Hidden Jewel
(previously published in Lawyers Weekly)

MassNAELA Newsletter

Vol. 78
Feb. 28, 2006

Transfers

Vol. 97 - Apr. 16, 2009

Andrews v. DMA: Suffolk County Superior Court (MassHealth Applicant paid her daughter and son-in-law $100,000 for home improvement services; funds were a disqualifying transfer of the applicant's assets)

MassNAELA Newsletter

Vol. 85
Apr. 30, 2007

Post Eligibility Transfers

NAELA Journal

Vol. 3 Number 1
2007

Protecting Transferred Assets

MassNAELA Newsletter

Vol. 75
Sep. 13, 2005

Fair Hearing Decision transfer assets in satisfaction of debts or for services rendered

MassNAELA Newsletter

Vol. 64
Jan. 14, 2005

Trusts

A. Attardo v. R. Attardo, Suffolk Probate and Family Court, No. 08E0056GC1, J. John Smoot.
Complaint In Equity To Reform Irrevocable Trust: Elder purchased  a home for his son and placed it in trust, naming his son as beneficiary in exchange for rent and repayment of the mortgage, neither of which the son/defendant fulfilled. The Court found the trust to be null and void and returned ownership to the elder. Sadly, the elder passed away two weeks before the decision was rendered.

Changing Trust Situs for Income Tax Savings

NAELA News

Vol. 17 Issue 4
Aug. 2005

Drafting Trusts for Maximum Asset Protection from Creditors
(revocable living trust, testamentary trust, spendthrift trusts, doctrine of merger, mandatory distributions, five and five powers, support trusts,spray trusts discretionary trusts, intentionally defective grantor trusts, split interest trusts)

NAELA Quarterly

Vol. 17 Issue 4
Fall 2004

Topic

Title (keywords)

Publication

Date

Topic

Title (keywords)

Publication

Date

Veterans Benefits

VA Nursing Homes, Community Health Benefits, Soldiers Homes

Dinner Meeting Handout

Sep. 5, 2007

Insight into the VA's Aid & Attendance Program

Dinner Meeting Handout

Sep. 5, 2007

Practicing Veterans Law in the Modern Era

Dinner Meeting Handout

Sep. 5, 2007

Topic

Title (keywords)

Publication

Date

Wills - Document Execution

Law office procedures

MassNAELA Newsletter

Oct. 26, 2004

Are In Terrorem Clauses No Longer Terrifying? If So, Can You Avoid Post Death Litigation with Pre Death Procedures

NAELA Journal

Vol. 2 Number 2
2006

Topic

Title (keywords)

Publication

Date

Topic

Title (keywords)

Publication

Date

Topic

Title (keywords)

Publication

Date