Elder Law | Fraser Blog

Five Stories That Matter in Michigan This Week – January 26, 2024

Michigan Amendment Imposes Reporting Requirement for Broker-Dealers and Investment Advisers to Report Financial Exploitation of Vulnerable Adults

Effective March 13, 2024, an amendment to the Michigan Uniform Securities Act (new Section 451.2533) will take effect that is intended to protect elder and vulnerable adults from financial exploitation. Among other things, the law requires broker-dealers and state-registered investment advisers to report suspected financial exploitation to a law enforcement agency or adult protective services.

Why it Matters: According to the Michigan Department of Attorney General website, more than 73,000 older adults in Michigan are victims of elder abuse, including financial exploitation.

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The DOL Issues Final Rule Creating New Standard for Classifying Workers as Employees vs. Independent Contractors

On January 9, 2024, the United States Department of Labor released its final rule on worker classification under the Fair Labor Standards Act (FLSA).

Why it Matters: This new rule, effective as of March 11, 2024, signals a return to a standard more likely to classify workers as employees than contractors. Thus, it is more likely that employers will be determined to have misclassified workers as contractors, resulting in liability. Learn more from your Fraser Trebilcock attorney.

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Michigan Federal Judge Dismisses Complaint Against Firm Client

A Michigan federal judge recently dismissed a complaint against the firm’s client represented by attorneys Thaddeus E. Morgan and Ryan K. Kauffman, for lack of subject matter jurisdiction.

Why it Matters: The complaint alleged that the firm’s client, together with another state bar, illegally conspired to prevent the plaintiff from practicing law in their respective states. However, the Eleventh Amendment prohibits a suit brought in federal court against a state, its agencies and officials, unless the state has waived its sovereign immunity or consented to being sued. The Eleventh Amendment limits federal subject matter jurisdiction, and as a result of the state bar functioning as an extension of the state’s Supreme Court, it is a state agency that possesses Eleventh Amendment immunity. Read more.

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Michigan Cannabis Sales Eclipse $3 Billion in 2023

Michigan cannabis sales total $3,057,161,285.85, via the collection of monthly reports from the Michigan Cannabis Regulatory Agency. This is a 30% increase from 2022, which saw total sales at $2,293,823,890.11.

Why it Matters: Marijuana sales remain strong in Michigan, particularly for recreational use. However, there still are significant concerns about profitability and market oversaturation that the industry is contending with.

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Client Alert: PCORI Fees Due by July 31, 2024!

In Notice 2023-70, the Internal Revenue Service set forth the PCORI amount imposed on insured and self-funded health plans for policy and plan years that end on or after October 1, 2023, and before October 1, 2024.

Why it Matters: Notice 2023-70 sets the adjusted applicable dollar amount used to calculate the fee at $3.22. Specifically, this fee is imposed per average number of covered lives for plan years that end on or after October 1, 2023, and before October 1, 2024. For self-funded plans, the average number of covered lives is calculated by one of three methods: (1) the actual count method; (2) the snapshot method; or (3) the Form 5500 method. Learn more from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Completing the Medicaid Application: Workshop Breakdown

Maneuvering through the numerous rules and regulations of Medicaid can often be a stressful time for families. The application itself seems straightforward, but every client has their own unique needs, requiring valuable insight from an experienced attorney. It’s with that in mind that Fraser Trebilcock attorney Melisa M.W. Mysliwiec will be sharing key information with other attorneys in Michigan. The presentation, titled, “Completing the Medicaid Application: A Hands-On Workshop,” will be delivered to members of the Institute of Continuing Legal Education‘s Elder Law Certificate Program on Friday, June 28, 2019.

This seminar will provide attendees with a case study and supporting documents, in which they will be able to work through in groups from start to finish. A completed sample Assets Declaration and Medicaid Application for Patient of Nursing Facility will be given as well for attendees to review and understand what is included and why.

Melisa, along with Rosemary Howley Buhl, Arthur L. Malisow, Terrence G. Quinn, and Charles S. Ofstein, will answer questions and provide advice on each step in the process to ensure attendees walk away with a completed sample Medicaid application they’ll be able to use as a model in their practice.

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 mmysliwiec@fraserlawfirm.com or 616-301-0800.

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.

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.

Workshop Wrap-Up: Completing the Medicaid Application

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. It’s with this in mind that Fraser Trebilcock attorney Melisa Mysliwiec recently shared key insights with other attorneys in Michigan. The presentation, titled Completing the Medicaid Application: a Hands-On Workshop, was delivered at the Institute for Continuing Legal Education’s 3^rd Annual Elder Law Institute, on Friday, September 15.

The seminar provided attendees with a case study about a husband and wife, second marriage, navigating the long-term care process after husband had a massive stroke requiring his admission to a nursing facility. Sample income and financial statements were provided and the attendees worked through a sample Assets Declaration. Finally, attendees worked through a sample spend down and completed a sample Medicaid Application.

Melisa, along with Rosemary Howley Buhl, Arthur L. Malisow, Charles S. Ofstein, 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.

Alzheimer’s Legal and Financial Planning Tips

If you or someone you love has Alzheimer’s disease or another dementia, it is important to put legal and financial plans in place as soon as possible.

Fraser Trebilcock Elder Law attorney Melisa Mysliwiec says that proper planning helps to ensure that the person with the diagnosis is able to contribute to important decisions about health care and long-term care, finances and property, and deciding who will make decisions on his or her behalf if he or she becomes unable to do so.

“If plans are not made early,” she says, “it may leave the family of the Alzheimer’s patient to guess as to what their loved one would have wanted or worse, it may ultimately be up to the courts to decide.”

Melisa spoke recently to a group of Alzheimer’s and dementia caregivers during a presentation at MSU Federal Credit Union. As an attorney who also volunteers with the Alzheimer’s Association, Melisa emphasized that early planning is key.

Some of the areas where our elder law attorneys can help you include:

Preparing Durable Power of Attorney for financial matters.
Exploring ways to defray long term care costs.
Assistance with Medicaid Planning and the Medicaid Application process for long term care benefits.
Protecting against elder abuse, neglect, and financial exploitation.
Handling various nursing home issues (payment, admissions, transfers, discharge, resident’s rights, and quality care).
Preparing Designations of Patient Advocate for health care matters.
Preserving assets to avoid spousal impoverishment when one spouse must enter a nursing home.
Guardianships, Conservatorships, and Protective Orders.
Exploring options for housing and living arrangements.
Estate planning through use of wills, trusts and other documents.

When it comes to Alzheimer’s disease or other dementias, these decisions must be made early in the progression of the disease because, in later stages, the person with dementia may lack the legal capacity to make decisions. An elder care attorney can best assist you through the process.

Additional Resources:

Should You Consider Long-Term Care Insurance?

It is very difficult to predict whether you or a loved one will one day need long-term care insurance. A diagnosis like Alzheimer’s disease or another dementia can drastically change your life and your financial plans. With an estimated five million Americans currently diagnosed with the disease, and a new diagnosis every 66 seconds, Fraser Trebilcock attorney Melisa M. W. Mysliwiec says it’s important to plan ahead.

“We don’t know if we’re going to get Alzheimer’s or anything like that. I think the best thing is to have your team of advisers. 30’s, 40’s, 50’s, is a good time to meet with an attorney, get estate planning documents put in place so there’s someone to act on your behalf if you become unable to,” Melisa said in an interview with WILX News 10’s Ann Emmerich. Other important advisors to have on your team include a financial planner, accountant, and insurance agent.

These critical estate planning documents include: durable powers of attorney and patient advocate designations. You’ll also want to closely review assets and your financial plans with a financial planner when considering an investment in long-term care insurance. Long-term care insurance isn’t for everyone and a financial planner can assist in making that determination. This is especially important, Melisa says, because even if you decide to buy long-term care insurance, the plan you choose will affect how much the insurance covers.

“There’s a big difference between getting a hundred dollars for help with care at home, versus paying privately in a nursing home which might be $250 or $270 dollars a day. So you really want to look at how much you can get per day and then there’s usually a cap on how many years it will pay out, too,” she said.

On average, people with Alzheimer’s live ten years with the disease, or longer, according to the Alzheimer’s Association. This means that families are left to pay for additional medical and living expenses for prolonged periods of time. So not only does the disease progressively devastate the health of the patient, it also takes a financial toll on families.

To read more about long-term health insurance, and hear one woman’s personal struggle with paying for her husband’s care after he was diagnosed with Alzheimer’s disease, read News 10’s full story here.

It’s important to note that even if you have long-term care insurance, you may ultimately have to rely on Medicaid. Recent rule changes could affect how much you receive from Medicaid without any penalties. Melisa explains why your caretaker agreement should be Medicaid-compliant, even before you decide to apply for Medicaid, in this blog.

If you have more questions about putting together a plan in case you or a loved one are diagnosed with Alzheimer’s disease, attorneys Melisa Mysliwiec and Paula M. Manderfield will be presenting on Alzheimer’s Legal and Financial Planning on Wednesday, March 8 at MSU Federal Credit Union’s East Lansing Branch, from 6-7:30 p.m. Advance registration is requested.

New Rules Make Preventative Care for Alzheimer’s, Diabetes More Accessible for Medicare Patients

New rules for Medicare services are about to take effect that will give people greater access to preventative care. The Centers for Medicare & Medicaid (CMS) decided that, beginning January 1, 2017, Medicare will pay more for cognitive and behavioral assessments, diabetes prevention programs, and to patient-centered care for people living with multiple chronic conditions and cognitive impairment conditions, including Alzheimer’s disease.

CMS says the new payment rules are part of a push by the Administration to create a health-care system that emphasizes prevention and results in better care, smarter spending, and healthier people. The additional funding will go toward care coordination and patient-centered care, mental and behavioral health care, and cognitive impairment care assessment and planning.

Clinicians will also have the opportunity to be paid more for spending more time with patients. That extra time with physicians could be critically important for patients who have multiple chronic conditions, as older adults sometimes do.

For more information from CMS about the new rules, visit its website here and blog here.

Questions? Contact us to learn more.

Fraser Trebilcock provides counsel on all matters relating to the legal planning for care and support of those needing Medicare and Medicaid. Attorney Melisa M. W. Mysliwiec focuses her work in the areas of Elder Law and Medicaid planning, estate planning, and trust and estate administration. She can be reached at mmysliwiec@fraserlawfirm.com or 616-301-0800. You can also click here to learn more about our Trusts & Estates practice.

Why Your Caretaker Agreement Should Be Medicaid-Compliant, Even If You’re Not on Medicaid

Under current Medicaid policy, what you don’t know about care contracts might actually hurt you. The definition of what is considered a care contract under Medicaid policy is broad. Currently, any arrangement under which an individual is paying for health care monitoring, medical treatment, securing hospitalization, visitation, entertainment, shopping, home help or other assistance with activities of daily living is considered a personal care contract. Further, any arrangement which pays for expenses such as home/cottage/car repairs, property maintenance, property taxes, homeowner’s insurance, heat and utilities for the homestead or other real property of the client’s is considered a home care contract. These are the types of things that allow individuals to age in place and remain in their homes as long as possible, as opposed to entering a nursing home.

The reason Medicaid’s care contract policy will harm those who don’t know about it is all payments made to caregivers for any of these types of services within 5 years of applying for Medicaid benefits will be considered a divestment for purposes of Medicaid eligibility unless a Medicaid-compliant caregiver contract was in place. Divestments are defined as transfers for less than fair market value. Divestments result in a penalty period during which Medicaid will not pay for an individual’s costs for long-term care services, home and community-based services, home help, and home health.

Most people do not anticipate entering a nursing home or needing long-term care Medicaid benefits. Even so, they are expected to know when and if this will occur, and they need to know at least 5 years in advance so that they can take the necessary precautions with respect to personal care and home care contracts, or face penalty. No one has a crystal ball that views 5 years out; therefore, the best practice is to establish Medicaid-compliant caretaker contracts for all personal care and home care contracts to ensure no penalty is assessed in the event that long-term care Medicaid is needed in the future.

Additionally, this policy applies equally to arrangements with both relatives (anyone related by blood, marriage or adoption) and non-relatives (including third-party commercial providers).

For a personal or home care agreement to be considered Medicaid-compliant (i.e. not be considered a transfer for less than fair market value [i.e. divestment] for purposes of Medicaid), each of the following must be met:

The services must only be performed after a written legal contract/agreement has been executed between the client and provider.
The contract/agreement must be dated, notarized, and signed by the provider and the client, either individually or by the client’s agent under a power of attorney, guardian, or conservator, provided that the person signing for the client is not the provider or the beneficiary of services.
No services may be paid for until the services have been provided (there cannot be prospective payment for future expenses or services).
At the time that services are received, the client cannot be residing in a nursing facility, adult foster care home (license or unlicensed), institution for mental diseases, inpatient hospital, or intermediate care facility for individuals with intellectual disabilities.
At the time that services are received, the client cannot be eligible for home and community based wavier, home health, or home help.
The contract/agreement must show the type, frequency and duration of such services being provided to the client and the amount of compensation being paid to the provider.
Payment for companionship services is prohibited.
At the time services are received, the services must have been recommended in writing and signed by the client’s physician as necessary to prevent the transfer of the client to a residential care or nursing facility.

Note, also, that there is a presumption that relatives who provide home and personal care services do so for love and affection only. Payment for home and personal care services to relatives creates a rebuttable presumption that the payment was a transfer for less than fair market value (i.e. a divestment). Therefore, even if a Medicaid-compliant caregiver contract is in place for services provided by a relative, if and when Medicaid is applied for, the Department of Health and Human Services will determine fair market value for such services by comparing the contract price to other area businesses which provide such services. If the relative’s rate was greater, it will very likely be considered a divestment. For this reason, it would be wise to compare a relative caretaker’s cost of services to other providers in the area in advance to be sure the rate is similar. Additionally, it is recommended that the documentation gathered is retained in case fair market value is contested in the future.

Questions? Contact us to learn more.

Free Program: Legal and Financial Planning for Alzheimer’s Disease

The diagnosis of Alzheimer’s disease makes planning for the future more important than ever. There are programs available that can help offset costs for families, but it’s crucial to have accurate information about legal and financial planning before making any major decisions.

Legal and Financial Planning for Alzheimer’s Disease is an interactive workshop where you will have a chance to learn about important legal and financial issues to consider, how to put plans in place, and how to access legal and financial resources near you. If you or someone you know is affected by Alzheimer’s disease or dementia, we invite you to join us at MSUFCU’s Farm Lane Branch for a free presentation with the Alzheimer’s Association.

Tuesday, December 13, 2016
MSUFCU Farm Lane Branch
4825 E. Mt. Hope Road
East Lansing, MI 48823
6:00 p.m. – 7:00 p.m.

CLICK HERE TO REGISTER

Topics covered will include:

Making legal plans that fit your needs
Legal documents you’ll need and what they mean for all of you
How to find legal and financial assistance
Practical strategies for making a long-term plan of care
Tax deductions and credits
Government programs that can help pay for care

Attorneys Paula J. Manderfield and Melisa M. W. Mysliwiec will present the workshop along with Fraser Trebilcock Marketing Director and current Alzheimer’s Association board member Julie Holton. Fraser Trebilcock is proud to present “Legal and Financial Planning for Alzheimer’s Disease” along with the Alzheimer’s Association. If you would like more information, go to alz.org or email marketing@fraserlawfirm.com.

New Rule Preserves Your Right to Sue Nursing Homes

A new rule released by the Centers for Medicare and Medicaid Services on September 28 prohibits nursing homes that receive Medicare or Medicaid funding from including binding arbitration clauses within their admissions contracts. Continue reading New Rule Preserves Your Right to Sue Nursing Homes

Tuesday, December 13, 2016 MSUFCU Farm Lane Branch 4825 E. Mt. Hope Road East Lansing, MI 48823 6:00 p.m. – 7:00 p.m.

Tuesday, December 13, 2016
MSUFCU Farm Lane Branch
4825 E. Mt. Hope Road
East Lansing, MI 48823
6:00 p.m. – 7:00 p.m.