Planning Strategies and Divestments in Medicaid Planning: A Workshop

Navigating through the many rules and regulations of Medicaid can often be a stressful time for families. The application process itself can be one of the biggest hurdles to overcome, as well as the post-planning that occurs after Medicaid eligibility is obtained. It’s with these difficulties in mind that Fraser Trebilcock attorney Melisa Mysliwiec recently shared key insights with other attorneys in Michigan on how to help families maneuver through the challenging aspects of Medicaid. The presentation, titled “Hands-On Medicaid Part II: Planning Strategies and Divestment”, a follow-up to last year’s workshop, was delivered following the Institute for Continuing Legal Education’s 4th Annual Elder Law Institute, on Friday, September 14.

The seminar provided attendees with a case study about a husband and wife, second marriage for both, navigating the post-planning that is required during the presumed asset eligibility period after the husband obtained Medicaid eligibility to help pay for his long-term nursing home care. Subsequently, attendees were face with a change in circumstances; the husband died and the wife requires long-term nursing home care. Sample income and financial statements were provided and the attendees worked through a sample spend down and completed a Medicaid Application.

ICLE 4th Annual Elder Law Institute

Melisa, along with attorneys Rosemary Howley Buhl, Howard H. Collens, Erin L. Majka, and Terrence G. Quinn, answered questions and provided thorough advice on each step in the process. The well over 100 attendees were able to walk away with a completed sample Medicaid Application and supporting documents.

In addition to presenting on this topic on Friday, Melisa also moderated the plenary sessions of ICLE’s 4th Annual Elder Law Institute on Thursday, September 13. These sessions covered a broad range of topics that allowed attendees to walk away with critical updates and detailed insights in the area of guardianships and conservatorships, government benefits, and use of protective orders in the realm of disabilities planning and elder law.

Attorney Melisa Mysliwiec


If you would like to talk with an attorney about putting legal plans in place, contact attorney Melisa M. W. Mysliwiec. Melisa focuses her work in the areas of Elder Law and Medicaid planning, estate planning, and trust and estate administration. She can be reached at or 616-301-0800.

Client Alert: IRS Releases Early Drafts of ACA Employer Reporting Forms & Instructions

IRS Releases Early Drafts of ACA Employer Reporting Forms & Instructions (1094-B, 1094-C, 1095-B, and 1095-C)

The Internal Revenue Service (“IRS”) has released early drafts of the instructions and health insurance coverage reporting forms required to be filed under the Affordable Care Act.

As provided in previous Client Alerts, information reporting requirements are applicable under two Internal Revenue Code (“Code”) sections as follows:

  • Section 6055 for insurers, self-insuring employers, and certain other providers of minimum essential coverage; and
  • Section 6056 for applicable large employers.

By way of background, the IRS requires applicable large employers and sponsors of self-insured health plans to report on the health coverage offered and/or provided to individuals beginning calendar year 2015. Although the reporting requirements extend to other entities that provide “minimum essential coverage” (such as health insurance issuers), this Client Alert focuses on the requirements imposed on employers.

Employers who are deemed applicable large employers, as well as employers of any size who offer self-funded health coverage, must carefully review and study these instructions, which set forth numerous details, definitions and indicator codes that must be used to complete the requisite forms. The instructions address the “when, where and how” to file, extensions and waivers that may be available, how to file corrected returns, and potential relief from penalties imposed for incorrect or incomplete filing.

The IRS utilizes information from these returns to determine which individuals were offered minimum essential coverage, whether individuals were eligible for premium tax credits in the Marketplace, as well as to determine any penalties to be imposed on employers under Pay or Play (Code section 4890H; Shared Responsibility for Employers Regarding Health Coverage, 26 CFR Parts 1, 54, and 301, 79 Fed. Reg. 8543 (Feb. 12, 2014)). Due to the impact of proper reporting, a clear understanding of these forms and instructions are essential.

Code section 6056 applies to applicable large employers (generally employers with at least 50 full-time employees, including full-time equivalent employees). Information with respect to each full-time employee (whether or not offered coverage) must be reported on Form 1095-C. Transmittal Form 1094-C must accompany the Forms 1095-C; all the Forms 1095-C together with the Transmittal Form 1094-C constitute the Code section 6056 information return that is required to be filed with the IRS. For applicable large employers who self-insure, there is a separate box to complete which incorporates the information required under Code section 6055.

Code section 6055 applies to employers of any size who self-insure. Non-applicable large employers with self-funded plans must report their information on Form 1095-B, as well as on Transmittal Form 1094-B. All of the Forms 1095-B together with the Transmittal Form 1094-B constitute the Code section 6055 information return that is required to be filed with the IRS. Again, if the employer who self-insures is also an applicable large employer, the employer will instead use Forms 1095-C and 1094-C, which include a section for self-insured plans.

Employers subject to these requirements must report in early 2019 for the entire 2018 calendar year.

Additionally, employers must provide informational statements to the individuals for whom they are reporting. Form 1095-C or Form 1095-B (as applicable) may be used as this informational statement.

The links to the Draft Instructions are below:

2018 Drafts for Applicable Large Employers (Code Section 6056):

2018 Drafts for Employers who Self-Fund (Code Section 6055):

These draft instructions and forms reflect only minor changes, such as a few formatting modifications and the reflection of indexed penalty amounts for reporting failures. Additionally, the draft instructions for Forms 1094-B and 1095-B also now state that health insurance issuers and carriers are encouraged (but not required) to report coverage in catastrophic health plans enrolled in through the Marketplace for months in 2018.

The remainder of the provisions remain intact.

There is no current indication of filing deadline relief, so it is essential to ensure your reporting and collection of data procedures are intact.

If you should have questions regarding employer reporting requirements or other ACA mandates, the Employee Benefits team at Fraser Trebilcock can assist.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2018 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or

[Client Reminder] October 15 Deadline: Medicare Part D Notice of Creditable (or Non-Creditable Coverage)

Medicare Part D notices (of either creditable or non-creditable coverage) are due for distribution prior to October 15th.

Under the Medicare Modernization Act of 2003, employers who offer prescription drug coverage to any Medicare Part D eligible individuals must notify those individuals whether the offered prescription drug coverage is creditable coverage, meaning whether the coverage is expected to pay on average as much as the standard Medicare prescription drug coverage. Medicare Part D eligible individuals may include active employees, COBRA beneficiaries, retirees, and any of their spouses and dependents. This requirement is applicable to all employers, regardless of size or funding mechanism.

Due to the difficulty in ascertaining what all spouses, dependents, employees, retirees and COBRA beneficiaries may be entitled to Medicare based on age, disability or ESRD, many employers find it easiest to provide a blanket notice of creditable (or non-creditable) coverage to all individuals who are offered the employer’s prescription drug coverage. Medicare Part D notices must be provided to Medicare-eligible individuals prior to October 15th of each year.

The initial notices were due by November 15, 2005 and have been modified numerous times. The newest model notices and guidance were issued for use after April 1, 2011. Therefore, any notices sent from this point forward must conform to the new guidelines. Use of the former model notices will not suffice.

Downloads to the updated guidance (including links on how to determine creditable coverage status) can be found on the CMS website HERE. Downloads to the updated Creditable Coverage Notice and Non-Creditable Coverage Notice (both in English and Spanish) can be found on the CMS website HERE.

As a reminder, there are five instances in which such notice must be provided:

  1. Prior to an individual’s initial enrollment period for Part D;
  2. Prior to the effective date of enrollment in the employer’s prescription drug coverage;
  3. Upon any change in the plan’s creditable status;
  4. Prior to the annual election period for Part D (which begins each October 15); and
  5. Upon the individual’s request.

Providing the notice above is important as a late enrollment penalty will be assessed to those persons who go 63 days or longer without creditable coverage (for example, if they enroll in an employer’s prescription plan which is not as valuable as the Part D coverage instead of enrolling directly in the Medicare Part D coverage).

If the employer’s plan does not offer creditable prescription drug coverage and if the Part D eligible person enrolls in that plan instead of the Part D plan for at least 63 days, a permanent late enrollment penalty of 1% of the premium is added to the Medicare premium for each month the person does not enroll in Part D.

Please contact us if assistance is needed with the Notices of Creditable (or Non-Creditable) Coverage or with questions regarding the method of distribution.

Reminder: Submit Medicare Part D Notice to CMS

As discussed above, group health plans offering prescription drug coverage are required to disclose to all Part D-eligible individuals who are enrolled in or were seeking to enroll in the group health plan coverage whether such coverage was “actuarially equivalent”, i.e., creditable.

The regulations also require group health plan sponsors with Part D eligible individuals to submit a similar notice to the Centers for Medicare and Medicaid Services (“CMS”). Specifically, employers must electronically file these notices each year through the form supplied on the CMS website.

The filing deadline is 60 days following the first day of the plan year.

At a minimum, the Disclosure to CMS Form must be provided to CMS annually and upon the occurrence of certain other events including:

  1. Within 60 days after the beginning date of the plan year for which disclosure is provided;
  2. Within 30 days after termination of the prescription drug plan; and
  3. Within 30 days after any change in creditable status of the prescription drug plan.

The Disclosure to CMS Form must be completed online at the CMS Creditable Coverage Disclosure to CMS Form web page HERE.

The online process is composed of the following three steps:

  1. Enter the Disclosure Information;
  2. Verify and Submit Disclosure Information; and
  3. Receive Submission Confirmation.

The Disclosure to CMS Form requires employers to provide detailed information to CMS including but not limited to, the name of the entity offering coverage, whether the entity has an subsidiaries, the number of benefit options offered, the creditable coverage status of the options offered, the period coverage by the Disclosure to CMS Form, the number of Part D eligible individuals, the date of the notice of creditable coverage, and any change in creditable status.

For more information about this disclosure requirement (instructions for submitting the notice), please see the CMS website for updated guidance HERE.

As with the Part D Notices to Part D Medicare-eligible individuals, while nothing in the regulations prevents a third-party from submitting the notices (such as a TPA or insurer), the ultimate responsibility falls on the plan sponsor.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2018 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or