Many clients and their families find themselves in a situation where they have had a stay in a hospital and then are discharged to a skilled nursing facility for rehabilitation and therapy.  For many this is a short-term need, and they are able to participate in therapy and return to their lives in the community.  The length of stay differs for each individual as do their needs; however, many are advised of the “100 days” for which Medicare will pay and are then shocked when they are advised 2 weeks later that they or their loved one are being “discharged,” because Medicare will not pay.

The 100 Medicare days are a rehabilitative benefit covered under Medicare Part A.  In actuality, Medicare pays the cost of skilled nursing care for the first 20 days.  After day 20, there is a daily co-insurance amount of $170.50 per day. Many individuals are never aware of the $170.50 daily cost, because their Medicare supplement plan covers that cost.  It is correct that skilled nursing care benefits under Medicare and Medicare supplements extend for a maximum of 100 days per spell of illness.  However, should the patient not meet certain standards, then the number of days of coverage may be much shorter than 100.

Unfortunately, there is a misconception among skilled nursing facilities and other providers that Medicare coverage only extends if the patient is improving or otherwise progressing in therapy.  If the patient has “plateaued,” then Medicare will no longer cover the cost of skilled nursing care.  However, this is incorrect and can and should be protested or otherwise appealed.

This incorrect “improvement standard” has been an issue nationwide for years and was the subject of a class action suit which was settled in the 2013 case Jimmo v. Sebelius.[i]  In the 2013 case, the Center for Medicare and Medicaid Services (“CMS”) agreed that the policy for Medicare payment was not an improvement standard. In actuality, Medicare should continue coverage if the patient was either making improvements or if skilled services are necessary to provide care which is necessary to prevent or slow further deterioration, regardless of the patient’s ability to improve or progress. This settlement did not reflect any change in Medicare policy; instead, it simply clarified the Medicare policy as it currently existed. In addition to the clarification, CMS agreed to revise policy direction and educate providers about the correct standard to apply.

Despite the 2013 settlement, in 2017, the issue was again brought before the federal courts. A federal judge found CMS to be in breach of the 2013 settlement agreement.  The judge required CMS to take corrective action to ensure that the appropriate standard applied, which in turn, was to assure coverage to individuals needing skilled care services and who were entitled to coverage under Medicare.  As part of the corrective action, CMS published a new web page with appropriate clarifications.[ii]      

With appropriate application, many individuals should receive care which is paid for by Medicare, regardless of their ability to “improve.” Despite this federal case and guidance issued by CMS, many clients and their families hear the term “discharge” long before 100 days of coverage.  Should this occur, there are several options to consider.  The first is whether the provider is inappropriately applying the standard.  Is the provider indicating that the patient has “plateaued” or otherwise not in need of therapy services?  If this is the case but the patient still has a skilled need such as gastronomy feeding, overall management and evaluation of a care plan, or assessment of a changing medical condition, then the patient or their family should discuss the issue with the facility or provider.  If the facility or provider refuses to cooperate, then the issue may be appealed.  The Center for Medicare Advocacy, a non-profit organization dedicated to advancing access to comprehensive benefits provided by Medicaid for older adults and people with disabilities, has developed a self-help toolkit to assist patients and their families with appeals based on this issue.[iii]

If the provider is correct and skilled care is not needed, then the patient and their family should consider what care their loved one will need.  If the loved one needs 24-hour care and they are not currently living at home, then options and settings should be considered. The patient or their family may request for them to stay at the facility in a long-term care bed.  This stay may not need to be permanent, but some individuals need additional time to recuperate from an illness, and some families need additional time to prepare appropriate living space and arrange care.  It is important to know that, whatever the patient and family decision may be, the discharge planner at every facility is required to make a safe and appropriate discharge plan.

Unfortunately, early discharge or termination of Medicare services still happens regularly.  However, patients and their families armed with appropriate knowledge may be able to extend coverage and services available to themselves or their loved ones, thus improving  their quality of life and longevity.

[i] https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/Downloads/Jimmo-Settlement-Agreement.pdf

[ii] https://www.cms.gov/Center/Special-Topic/Jimmo-Center.html

[iii] https://www.medicareadvocacy.org/take-action/self-help-packets-for-medicare-appeals/

Ask Kit Kat: Prairie Dogs

Hook Law Center: Kit Kat, what can you tell us about preservation activities in the West to protect prairie dogs and other animals of the Great Plains?

Kit Kat: Well, this really is a story of hard work and persistence which will pay off handsomely for many animals of the Great Plains. The Humane Society of the United States (HSUS) has a Prairie Dog Coalition which for years has worked to protect habitat for animals on the Great Plains such as prairie dogs, black-footed ferrets, burrowing owls, and others. It took seven years, but the Prairie Dog Coalition finally secured a two-year grant from the Pittman-Robertson Wildlife Restoration Act to research the animals on the Great Plains.  The grant will allow study in 12 states, Mexico, and Canada, to determine optimal soil types, types of vegetation and climate zones, so the target animals will be able to thrive in the future. With the data gathered, conservationists and planners will be able to make informed decisions based on scientific information. The grant, known as Homes on the Range, began in the fall of 2018 and will continue into 2020.

There is some urgency to the project. In the past 100 years, prairie dog numbers have declined by more than 95 percent. In turn, this has affected as many as nine species which depend on the prairie dog for survival. For example, borrowing owls use prairie dog burrows and black-footed ferrets need prairie dogs as one of their food sources. According to Sterling Krank, an environmental scientist with the Prairie Dog Coalition, “We’ve got to do better than always reacting. Let’s figure out a way to work together to create opportunity net gains on the ground. That’s where we make a real difference for wildlife.” This new grant, hopefully, will do just that!

(Emily Smith, “Team effort to conserve grasslands,” All Animals, January/February 2019, p. 15)

After you have filed your tax return you may be anxiously awaiting your refund and wondering what the status is. Fortunately, with just a few clicks, you can track the status of your federal and state tax refunds online.

The Internal Revenue Service “IRS” has an online tool called, “Where’s My Refund,” that will allow you to track the status of your return from receipt to completion. You can begin checking the status of your return as soon as 24 hours after you electronically file your Federal return (or four weeks after paper filing your return). Simply log onto https://www.irs.gov/refunds and make sure you have the following information handy, your social security number, your filing status (i.e. Single, Married Filing Joint, etc.) and the exact refund amount you anticipate receiving.

The IRS issues most refunds in three weeks (21 business days) if you electronically filed your return and up to six weeks if you paper filed. Your refund may be delayed if you opted to receive your refund as a check versus direct deposit. Other reasons your tax refund may be delayed can include:

1. Errors or incomplete tax return.
2. You claimed certain tax credits including Earned Income Tax Credit or Additional Tax Credit.
3. You are affected by identify theft or fraud.
4. Or the tax return needs further review in general.

If more than 21 days has passed since you electronically filed your Federal return or six weeks after you mailed a paper return you can call the IRS at 1-800-829-4477 to speak with an agent.

The Virginia Department of Taxation also allows you to check your state refund online. You can check the status of your return 72 hours after electronically filing or four weeks after paper filing your return. To do so, go online to: https://tax.virginia.gov/wheres-my-refund.

Ask Kit Kat: Zebra Stripes

Hook Law Center: Kit Kat, can you tell us why zebras have those interesting stripes?

Kit Kat: Well, scientists don’t know exactly the complete story as of yet, but they have gained some preliminary insights. The consensus is that the stripes ward off flies which can carry serious diseases.

Studying zebras is not the easiest thing to do. In the wild, it is extremely difficult to get close to them. So, some scientists in Britain were very clever, and devised a way to create the look of a zebra on an ordinary horse. They designed a camouflaged-lightweight wrap which covered the entire horse, except for its head and legs. The flies still attacked the uncovered parts of the horse, but the area which was covered with the wavy stripes was not attacked. The stripes seemed to have the effect of disorienting the flies, as if their vision, which tends to have low acuity, could not process what they were seeing. Therefore, they veered away from the camouflage and did not bite those areas. Dr. Martin How of the University of Bristol in Britain and one of the researchers on the project compares the zebra stripes to a barber pole. When the  barber pole rotates, it makes it seem as if the stripes are moving up or down. So, as the fly zooms in to its prey, the zebra’s stripes and the stripes in the camouflage wrap appear to be moving in unfamiliar directions. The fly is confused, and so zooms away.

The researchers are planning further tests to refine their observations. Do different patterns and thicknesses have the same effect? “By playing around with those variables, we’ll be able to get inside the head of the fly, or the eye of the fly, to work out what’s sort of confusing to it, says Dr. Tim Caro, another researcher from Britain on the project. (JoAnna Klein, “Why Do Zebras Have Stripes? Scientists Camouflaged Horses to Find Out,” Science section, The New York Times, 2-20-19)

A recent New York Times article described the plight of a gentleman who turned 65, but failed to enroll in Medicare because he was already enrolled in a health insurance plan through his employer[i]. While this plan of action is fine under certain circumstances, he was subsequently laid off from his employer and later learned that the coverage he received under COBRA did not exempt him from the complicated Medicare enrollment rules and the penalty for not enrolling in a timely manner.

The Basics of Signing Up

If you claim Social Security benefits before your 65^th birthday, enrollment in Medicare Part A (hospitalization) and Part B (outpatient services) is automatic. If you have not yet applied for Social Security before your 65^th birthday, you must take proactive steps with regard to Medicare to avoid problems.

Medicare offers an initial enrollment period around your 65^th birthday – beginning three months before your birthday, including the month of your birthday, and continuing for the three months after your birthday. If you miss this window, you will be subject to a late enrollment surcharge equal to 10 percent of the standard Part B premium for each 12 months of delay – a penalty that never ends. Late enrollment also exposes you to significant gaps in coverage while waiting for coverage under Medicare, because late enrollees must wait until the next General Enrollment Period, which runs from January 1^st to March 31^st each year, with coverage not beginning until July 1^st.

Common Mistakes

1. Relying on employer coverage – People who are actively employed at age 65, and their spouses, can delay enrollment in Medicare as long as they are “actively” employed by the employer. COBRA does not count as active employer group coverage. In addition, if you work for a company with 20 or fewer employees, Medicare becomes the primary payer, so you must sign up when you turn 65.
2. Having a Health Savings Account – HSA’s can only accept contributions from people enrolled in high-deductible health plans and Medicare does not qualify as a high-deductible health plan. Although you can continue to withdraw from an HSA while enrolled in Medicare, you should stop contributing to one six months prior to your Medicare enrollment date to avoid tax penalties.
3. If you are insured under the Affordable Care Act – you must switch to Medicare at age 65, because marketplace coverage is considered secondary to Medicare. Otherwise, you will have to wait until the General Enrollment Period, leaving you exposed to coverage delays plus penalties.
4. If you are on Retiree Coverage – similar to marketplace coverage, retiree coverage is always secondary to Medicare. A common error is turning down Part B Medicare coverage in the belief that the supplemental retiree coverage is primary. Again, failing to enroll in Medicare at age 65 will expose you to coverage delays and penalties.

In light of the foregoing, a simple rule of thumb would be to always consider Medicare to be your default, primary coverage.

[i] https://www.nytimes.com/2019/01/31/business/medicare-enrollment-how-to-sign-up.html

Ask Kit Kat: Coyotes Near Us

Hook Law Center: Kit Kat, what can you tell us about coyotes who infringe on human’s territory?

Kit Kat: Well, they’re only doing what comes naturally. Humans have drastically reduced the number of wolves countrywide, so this has allowed coyotes to flourish. Coyotes can be found in every state except Hawaii. Coyotes can live in the desert, in swamps, and in urban areas. They’re extremely adaptable. Coyotes won’t purposely seek humans out, but sometimes their territory  overlaps with ours.

What can we do to more peacefully co-exist? There are several things actually. First of all, don’t attract them by leaving trash cans unsecured. That’s an invitation to pick up easy meals. Also, don’t let small pets like cats and small dogs roam outside without supervision. Small domesticated animals resemble squirrels, mice, etc. To them, they’re all fair game.  Next, coyote pups are born in the spring. If you know a den is nearby, avoid it. Coyote parents take their role seriously. They mate for life, and they’re protective of their offspring. If they sense that humans are getting too close, they may follow you, to get you away from their pups. Lastly, if you do encounter a coyote at close range, you can wave your arms, throw sticks, etc. They’ll get the picture, and probably leave you alone. They rarely attack humans. In fact, there has only been one fatality ever recorded in the United States from a coyote attack. That’s a pretty good record, if you ask me!  (Nancy Lawson, “The Misunderstood Coyote,” All Animals, January/February 2019, p.38-39)

We see many instances where a nursing home has discharged a patient against the wishes of the family of the client. Most will accept the discharge because they do not understand their rights. Among the numerous stories I have heard, a few of the common reports I received are that the facility said the patient could not remain in the nursing home because Medicare would no longer pay (without explaining other financial options that may be available), that they could not keep their loved one because they are not a “memory care unit,” the patient is “difficult,” or that there are no “long-term care beds available.” All of these explanations are intended to mislead a patient or family into accepting an undesired discharge.

The Nursing Home Reform Act must permit a resident to remain in a facility unless one of the following applies:

1. The transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the facility.
2. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility.
3. The safety of individuals in the facility is endangered.
4. The health of individuals in the facility would otherwise be endangered.
5. The resident has failed, after reasonable and appropriate note, to pay for services.
6. The facility ceases to operate.

In understanding these exceptions, it is important to note that a nursing home is required to provide all necessary care, and even with difficult patients, cannot require a patient of their family to privately pay for additional care. Meeting the patient’s needs is the responsibility of the facility and a care plan must be developed to accommodate such needs.

If the conditions under the Nursing Home Reform Act are met, the facility will still have the responsibility of ensuring a safe discharge or transfer. An unsafe discharge would be one that does not provide for a long-term solution for substituted care services. We often see unsafe discharges were family cannot provide the necessary care, whether due to skills or time, and the resident cannot afford to pay for the necessary care. 

So, what options are there if you are facing an unlawful discharge? You should let the facility know that you are aware of the discharge rights, that you will not be accepting the discharge. Further, if the facility is expecting you to act on behalf of the patient, you should refuse to pick the patient up for discharge. If the facility continues to press for discharge, you should required the facility’s physician to sign off on the discharge, and let the facility and the physician know that they will be held accountable for any harm suffered by the patient due to an unlawful discharge. In my experience, this will usually stop the discharge; however, if the facility continues to press for discharge, Robert Fleming and Lisa Nachmias Davis, authors of the Elder Law Answer Book, indicate the patient should suggest the nursing home administrator inform the facility’s insurance carrier about the discharge and that the patient should immediately notify the local long-term care ombudsman. Fleming and Davis further point out that this can, “… be a game of ‘chicken,’ where the nursing home believes the family will, in fact, step up and take care of the individual who is delivered to the child’s home, and is willing to risk the repercussions if harm comes to the individual as a result. The family has to resist the pressure and be willing to contact police if the tactic is tried, resulting, presumably, in an emergency placement in a new facility.“

Ask Kit Kat: Paws in Need

Hook Law Center: Kit Kat, what can you tell us about “Paws in Need?”

Kit Kat: Well, this is an online resource for pet owners who have emergencies, and who need help in paying for extraordinary veterinary costs. It was started by Gina Highfield of Hampton, VA. Gina has been helping animals in the Hampton Roads, VA area for at least 6 years. Gina is known for establishing and running a Facebook group of over 30,000 called Lost & Found Pets that helps reunite lost animals and their owners. Through this project, she became aware of a need to help pet owners who had large, unexpected veterinary bills. Thus, she established a second organization to help with this goal called “Paws in Need.”  Gina says, “We never want to see a family have to euthanize or surrender their pet due to money.”

One such recent recipient of the “Paws in Need” Fund is a dog named Pirate who lives in Portsmouth, VA. Pirate darted out into a road recently and was hit by a car. His left front leg had to be amputated. The veterinarian had estimated the cost to be approximately $2,500. “Paws in Need” contributed $250; another group called Animal Resources of Tidewater gave $200. Pirate’s owners, the Worthingtons, gave $300, and the family has set up a payment plan to pay for the rest of the expenses.

“Paws in Need” will not cover routine expenses like spaying/neutering or yearly vaccinations, but it will assist with those large, unexpected pet emergencies. It also provides emotional support to the families of ill or injured pets. Dana Worthington, Pirate’s owner, says, “She (Highfield) gave us hope and opened up the door to all of these different resources so that I was able to make an informed choice for the healthcare of my dog. I wouldn’t have been able to do that without her.” (Saleen Martin, “ ‘ Paws’ help pet owners fund costly life-or-death surgeries,” The Virginian-Pilot, January 31, 2019, p.1 & 4)

When we meet with clients, one issue that comes up often is end-of-life care. While it’s certainly an unpleasant thought, it is important to face the possibility that you may become unable to make decisions about your healthcare at some point. Whether you suffer from dementia and gradually become incapacitated or you experience a stroke or terrible accident and the change is more sudden, if you cannot make decisions yourself, someone is going to have to take on that responsibility for you. Perhaps most importantly, whoever is making these decisions for you will need guidance on what your wishes would be in certain situations. For example, if you were in a terminal state with no hope of recovery, would you want to be kept alive artificially through assisted respiration, feeding tubes, and other mechanisms? If so, how long would you want to be kept alive?

Many people confuse the terms “Living Will” and a “Do Not Resuscitate” Order (commonly called a DNR). A Living Will is simply a statement of your wishes. In this document, you can state whether you would like to have life-prolonging procedures such as artificial nutrition and hydration continued if you were in a vegetative state with no hope of recovery. You can also state whether you prefer to be buried or cremated and give direction as to whether you would like your body or organs to be donated for either scientific or medical purposes. This document works with your healthcare power of attorney – your agent under that document must follow your wishes as laid out in the advance medical directive.

On the other hand, a DNR is a written physician’s order to withhold resuscitation from a patient in the event of cardiac or respiratory arrest. Resuscitation measures that can be withheld under a DNR Order include cardiac compression, intubation, artificial ventilation, defibrillation, and other related procedures (Virginia Code § 54.1-2982).  Instructions to implement a DNR order are typically given by whoever is legally permitted to make medical decisions on behalf of a patient in the hospital – whether that person is the next of kin as defined by Virginia law or is someone appointed under a Healthcare Power of Attorney.

While Living Wills typically remain in effect until the person who implemented it passes away or executes a new one, DNR orders typically are revoked if a patient makes a full recovery and leaves the hospital. That means that a new DNR would need to be implemented if there were another hospitalization.

Another important document that is related to both Living Wills and DNR Orders is the Healthcare Power of Attorney. This document allows you to appoint one or more people who will work with your doctors to make healthcare decisions on your behalf should you become incapacitated. An agent under a healthcare power of attorney has a variety of powers and responsibilities, including the ability to decide which course of treatment is best for you, whether you should enter a long-term care facility, and which doctors should be consulted as to your care. If you have a Healthcare Power of Attorney, your agent will be the one who decides whether to instruct the doctor to issue a DNR Order or not.

If you don’t have a Healthcare Power of Attorney, Virginia law provides for a list of priority “surrogate decision-makers.” First on the list is your guardian (if one has been appointed), then your spouse, then any adult children you may have (Virginia Code § 54.12986).  Often, this list does not align with whom many people would want making medical decisions for them if they became incapacitated.

Although no one enjoys facing the possibility that they may become incapacitated, it is important that you make your wishes known. Doing so cannot only provide reassurance to your family, because they know what your wishes are; but, it can also guarantee you have a voice in deciding who should make medical decisions for you in the event that you cannot make them on your own.

Ask Kit Kat: Westminster Kennel Club Dog Show

Hook Law Center: Kit Kat, what can you tell us about the Westminster Kennel Club Dog Show which was held last week in New York City?

Kit Kat: Well, it’s a wonderful competition that has been held 142 times! This year’s opened on Feb.11, 2019. The first Westminster Kennel Club Dog Show opened in 1877 at Gilmore’s Garden, which later became known as Madison Square Garden. The show has grown over the years from 1,200 dogs to nearly 3,000 dogs from all 50 states. Originally, a 3-to4-day competition, it is now completed in 2 days. The name “Westminster” was chosen by its founding group as a tribute to their favorite hotel and bar—the Westminster Hotel near Union Square. Though the hotel is long gone, it still lives on in the name of the dog show. The dog show in its early days focused on hunting dogs. Other than the Kentucky Derby, it is the second-oldest continuously run sporting event in the United States. This year marks the 70^th year that the event has been televised.

Not many know that the Westminster Dog Show has a junior division for dog handlers who are between the ages of 9-18. It is known as the Junior Showmanship competition. The kids themselves are evaluated, perhaps more so, than their dogs. They have to work as a team. One girl, Rylie May of Hillsboro, Kansas, is now 18, but in her first competition at a 4 H show at age 9, she competed with a 6-month old puppy, who dragged her everywhere. She’s learned a lot since then. May entered her Australian shepherd this year. They didn’t get to the finals, but she was really proud of her dog, Toby. She said, “It’s taught me a lot about responsibility. It’s a lot of hard work. It’s putting the dog’s needs before your own.” (Claudio E. Cabrera, “How the Westminster Dog Show Got Its Name,” The New York Times, Feb.12, 2019/Amy Wang,”At this Westminster Dog Show competition, it’s the humans who are judged, ”The Washington Post, Feb.11, 2019)

When one spouse is facing a long-term care need, the initial focus is on the health needs of the spouse who will need long-term care (the “institutionalized spouse” or “IS“); yet, once the care needs have been determined and placement or home care is secured, then the focus necessarily turns towards the needs of the spouse who does not need care (the “community spouse” or “CS”).  Without planning or education, it is possible for all funds, including income and savings, to be expended on the institutionalized spouse, leaving the community spouse with little or nothing.

For individuals needing long-term care, there are a number of ways to pay for care, all of which should be considered when facing such a large expense.  Should one spouse need nursing care for a long period of time, then it is wise to consider Medicaid as an option to assist in paying for care.  Many have misconceptions about the Medicaid program, and there are numerous myths about Medicaid and nursing care. The realty for many is that Medicaid payment of nursing care expenses is the only way that both an institutionalized spouse and a community spouse can be cared for both physically and financially.  Most importantly for married couples, federal Medicaid policy takes the needs of a spouse into account and offers financial protections specifically for the community spouse.

There are a number of requirements for Medicaid eligibility but of most concern is the “income” and “asset” requirements. Practically speaking, income is considered to be amounts paid regularly to the applicant, such as social security, retirement pensions, or annuity payments.  While the definition of income can be much more complex than described here, generally, so long as the applicant’s monthly income is less than the private pay rate of the nursing facility, then the applicant meets the income requirement for Medicaid.  If the individual takes advantage of Medicaid’s home and community-based waiver services, then the income in Virginia is $2,313 and North Carolina is $1,012.  Note that, for purposes of eligibility, only the income of the spouse applying for benefits is relevant.  Therefore, if the spouse remaining in the community has income which exceeds either the private pay rate of the nursing facility or the above waiver limits, then the applicant still meets the income requirements.  Unfortunately, often it is the institutionalized spouse who has the greater income.  While the community spouse’s income is not considered for eligibility, it is considered when looking at what the institutionalized spouse may need to contribute towards his or her cost of care.  Federal Medicaid policy requires that each state create a Minimum Monthly Maintenance Needs Allowance (“MMMNA”) and, if the community spouse’s income falls below the MMMNA amount, then the institutionalized spouse will be directed to contribute an amount from his or her income to the community spouse in order to provide that the community spouse has income of at least the MMMNA. In addition, there are circumstances in which an even greater contribution from the institutionalized spouse may be allowed if the community spouse can demonstrate a need.  Currently the MMMNA for Virginia is $2,057.50 and North Carolina is $2,058.

Even more concerning than monthly income, is often what happens to a couple’s assets (“assets”) if one spouse has a long-term nursing care need.  As with income, federal Medicaid policy includes protections for a couple’s assets, ensuring that the spouse remaining in the community may continue to have assets to use for his/her needs. Unlike with the income requirement for eligibility, Medicaid policy does consider the assets of both spouses for eligibility purposes. However, there are two key factors which protect the community spouse.  The first is that certain assets are excluded when reviewing eligibility requirements; essentially, some assets just don’t count. A prime example and of great importance is the couple’s primary residence.  Examples of other assets which don’t count are funerals or burial arrangements, the value of one vehicle, term life insurance, certain annuity contracts, certain loan arrangements, and more.    In addition to allowing certain assets to not count, the community spouse is allowed to keep a percentage of the couple’s combined countable assets up to a maximum of $126,420 (the same in both Virginia and North Carolina).  There was some concern toward the end of last year that this CSRA allowance would no longer apply to home and community-based services; however, Congress has agreed to continue to make allowances for the CSRA even in a home setting.  This amount is known as the Community Spouse Resource Allowance (“CSRA”). Therefore, Medicaid policy allows a community spouse to continue to maintain countable assets up to the CSRA in addition to an unlimited amount of non-countable assets. 

Thus, a community spouse can be financially protected, even if  his/her spouse needs nursing care. Unfortunately, many couples fear financial ruin of chronic illness and have considered drastic measures such as gifting away their property or getting a divorce; or, they mistakenly think that this type of planning needs to be done five years before nursing home placement .  However, this advance planning is not necessary, and no such extreme measures are required to protect a spouse remaining in the community.

Ask Kit Kat: Orca Calf in Northwest

Hook Law Center: Kit Kat, what can you tell us about the newest orca calf born in the Pacific Northwest?

Kit Kat: Well, this is very good news indeed!  A new orca calf was spotted in mid-January 2019 in Admiralty Inlet, at the north end of Puget Sound. Observers are not sure whether it’s male or female, but it belongs to the L pod, and will be known as L124 for now. At the time of sighting, it appeared to be about 3 weeks old. No calves born to this pod have survived to adulthood since 2015, so everyone is hoping for the best. The L pod has shrunk to 35 in number.  A decline in the Chinook salmon population, its main food source, appears to be the reason for the decline, as well as water pollution. Other groupings of orcas who do not live so close to industrialized areas are faring better.

L pod, along with J and K pods, comprise a group known as the Southern Residents. In its heyday, the Southern Residents numbered about 100. Today, there are approximately 75. J pod became famous last year, when one of its calves died shortly after birth and her distraught mother, J35, pushed her corpse around for 17 days using her nose, before letting her go. J35 may soon lose her mother, J17, who appears to be hungry and weak, according to Melisa Pinnow, a biologist with the Center for Whale Research, which is based in Washington State. Orcas must swim to feed and survive. When they can no longer do that, they die. The Southern Residents are organized around the females. Grandmothers live with their daughters and help young mothers raise their calves. Older females even go through menopause like humans do.

Washington State established a task force last year to look at what could be done to help the orcas. Among the recommendations were 1) to remove certain dams to let rivers take their natural course, 2) to remove net pens of farmed salmon, and 3) to cut back on salmon  consumption, generally. Time will tell whether these recommendations will have a positive impact. (Jacey Fortin, “Orca Cal Offers Hope for a Fading Group in the Pacific Northwest,” The New York Times, Jan. 17, 2019)

Due in large part to the ever informative Google search bar, estate planning attorneys often see clients who undertake to draft or revise their own estate planning documents  (or leave written instructions to their executor) in an effort to save a few dollars on attorneys’ fees. While it is true that a holographic (i.e., handwritten) will can be a valid will admitted to probate in the Commonwealth of Virginia, there are far too many instances in which handwritten notes—regardless of the writer’s intention—cause more harm than good.  Indeed, a simple codicil (an amendment to a will) or an entirely new will can cost ten times less than what it would cost to petition the court to have the note declared a will or an amendment to a testator’s will after death.

For example, imagine your father passed away and you find two documents in his safety deposit box. First, a simple will leaving everything to his “descendants.” Second, a handwritten note which states, “I wish to remove Sam named as my son entirely from this will—no benefits.” The note is initialed and dated after the date of the will. So what is an executor to do? Does Sam receive anything from the estate? The problem is now that your father has passed away, one can only look to the evidence to attempt to determine whether he intended to modify his will or whether he was simply leaving a handwritten note.

Unfortunately, absent a private agreement amongst beneficiaries, there is only one way to find out—submit the writing to the court and argue your position. Indeed, a note which was very similar was submitted to the Chesapeake Circuit Court probate clerk for probate. The clerk found that the handwritten note was not a validly executed codicil, and the executor of the estate appealed the clerk’s order to the Circuit Court where litigation ensued. The case was ultimately appealed to the Supreme Court of Virginia. The Supreme Court held that the records supported the Circuit Court’s ruling that the writing was not a codicil, nor intended to be a codicil. See Irving v. DiVito, 294 Va. 465 (2017).  Regardless of whether the decedent intended the writing to be a codicil or just a handwritten note, there is absolutely no question that the litigation over the writing cost a significant amount more than a new will or codicil would have cost.

Whatever you do, do not write on your estate planning documents and do not leave handwritten notes without consulting with your attorney. When in doubt, always seek the advice of your attorney.

Ask Kit Kat: Victories for Animals

Hook Law Center: Kit Kat, what can you tell us about the latest victories that animals have won recently to protect their rights?

Kit Kat: Well, this is indeed something to shout about! The two most notable were in California and Florida. Florida I have already talked about in a previous article. Greyhound racing will finally come to an end there in 2020 when dog racing is no longer required at racetracks to keep gambling open. Florida has 11 of the United States’ remaining 17 greyhound tracks. The remaining 6 are not likely to survive on such a small scale.

Which brings us to the victory in California. This is truly something to celebrate, because California is such a large state that its decisions affect a large audience. With the world’s 5^th largest economy, this change in culture is bound to have a huge impact. On Nov. 6, 2018, 62% of the voting public approved a measure called Proposition 12 making it illegal to sell eggs, pork, and veal from any farm which cages baby calves, pigs nursing piglets, and hens which are producing eggs. The so-called factory farms have been dealt a huge blow.  This means, that any products raised in California, which treat baby animals inhumanely, will not be allowed to be marketed in California.  This is extremely important, because California tends to be a trendsetter, and it has such a huge population. The egg and meat industries were against Proposition 12, but the Humane Society of the US and other groups lent their support, and they triumphed! (Karen E. Lange, “Voters demand landmark changes for animals,” All Animals, January/February 2019, p. 10-11)

It has been a little over a year since the 2017 Tax Cuts and Jobs Act was signed into law. Although many of us do not yet know how the changes will affect our personal income tax returns this year, there is some certainty as to how estate planning and estate taxes are affected – at least until 2026, when the new and higher estate tax exemption will revert to 2017 levels. For now, the estate and gift tax exemption is $11.4 Million per individual. This means that a person can gift or bequeath up to $11.4 Million without incurring an estate or gift tax. What did not change with the Act are the rules involving income tax basis for gifts and inherited property. What this means is that the donor of a lifetime gift of an asset also transfers their tax basis in that asset to the donee. On the other hand, a decedent’s gift at death causes the basis to be stepped up (or down) in the hands of the heirs to the fair market value as of the date of death. Although roughly 99 percent of Americans will not owe a transfer tax, careful planning is needed to ensure their loved ones do not incur significant income taxes when they sell property they receive as a gift or inheritance. Careful planning, or planning changes, could also be needed to unwind some of the estate tax planning techniques that were written into older estate plans.

For example, many estate plans for married couples drafted before 2010, when the federal estate and gift tax exemption ranged from $600,000 in 1997 to $3.5 Million in 2009, included provisions for the creation of a “credit shelter trust” (sometimes referred to as “family trusts” or “bypass trusts”) upon the first spouse’s death. In order to preserve the first spouse’s exemption, the first $600,000, for example, of the deceased’s spouse’s $2 Million estate funded the credit shelter trust, and the balance of $1.4 Million passed to the surviving spouse. In 2019, that same $2 Million estate would pass entirely to the credit shelter trust, leaving nothing within the control of the surviving spouse. Not only that, but property held in credit shelter trusts generally does not receive a stepped-up basis when the surviving spouse dies. This will likely cause the descendants to have to pay income tax on capital gains from the subsequent sale of assets.

Although there are some good non-tax reasons for having a credit shelter trust in place, it is worth the effort to have older estate plans reviewed to make sure this approach still meets your needs. If the first spouse has already passed away and you find yourself with a funded credit shelter trust, there are some options for unwinding the otherwise irrevocable credit shelter trust. For example, depending on the terms of the Will or Trust giving rise to the credit shelter trust and the intent of the deceased spouse, the credit shelter trust can be rescinded as long as all of the beneficiaries of that trust agree and/or a court order is obtained.

As with any significant changes in the law or in life, it is important to dust off that estate planning binder and have your documents reviewed by an experienced estate planning attorney.

Ask Kit Kat: Boy and Dog Reunited

Hook Law Center: Kit Kat, what can you tell us about the boy from North Carolina who has cancer, is now in Utah for treatment, and was reunited with his dog recently?

Kit Kat: Well, this is a feel-good story, if I ever heard one! Perryn Miller is an 8-year old boy from North Carolina who was visiting family in Salt Lake City, Utah over the holidays. While in Utah, Perryn experienced some extreme headaches. After a trip to the emergency room, it was discovered that Perryn was suffering from stage 4 glioblastoma, an advanced form of brain cancer. He had surgery right away, but the family has chosen to stay in Utah for more treatment. All was going well there, but Perryn was heartsick about not having his 8-month old German shepherd named Frank with him. His grandmother who lives in Spotsylvania County, VA, which is south of Fredericksburg, VA, sought help on Facebook about the logistics of transporting Frank to Utah, so Perryn and Frank could be together.

To the rescue came Bob Reynolds of Ladysmith, VA. He didn’t know the Miller family, but he wanted to help. Bob’s working history had included being a long-haul truck driver and a summertime ranger at Yellowstone National Park. The thought of a long distance trip did not daunt him. So he set out on Jan. 3, 2019 at 4:30 AM from Ladysmith and arrived in NC at 10 AM to pick up the dog Frank. 52 hours later (Jan.5), they had made it all the way to Salt Lake City! Bob said Frank was the perfect rider. He played with his toys or napped, and if he had to go to the bathroom, he’s nudge Bob’s right arm. When the duo drove into the driveway of the home where Perryn and his family were staying in Utah, Frank walked right up to the front door, like he’d been there hundreds of times. When the Millers opened the door, Frank “just went crazy,” according to Bob. Bob has even volunteered to take Frank back home, when the time comes they feel they can return to North Carolina. Stay tuned to this developing story. (Adele Uphaus-Conner, “Man reunites dog with boy sighting cancer,” The Free Lance-Star as printed in The Virginian-Pilot, Jan.21, 2019 p,3)

Many clients come into the office with a preconceived determination of which estate planning documents they need. Some clients believe their plan is overly simple or that they have too few assets to consider a trust (or any estate planning tool for that matter). Other clients enter our offices having heard that they “must have a trust.” It is important to understand, however, that selecting the correct estate planning tool depends on each individual’s unique situation, and there is no one size fits all solution. Understanding the pros and cons of each document allows the client to determine which tool should be used.

The most common reason clients utilize a trust is to avoid probate. In Virginia, probate assets are those assets that fall into the estate and are controlled by the terms of a will or the laws of intestate succession. In simple terms, the assets that fall into a probate estate are those assets held by an individual at the time of their death that do not pass automatically to another person or entity at death.

When probate is necessary, basic costs of administration include recordation costs and probate tax (which are $1.33 per $1,000 worth of probate assets) charged by the court, costs of any necessary surety bonds, and the costs charged by the Commissioner of Accounts to review necessary filings.  As the value of the estate increases, so do the costs of administration. Many clients, as a result, desire to avoid probate to the greatest extent possible.

Attorneys often use inter vivos trusts (most commonly a Revocable Living Trust) to avoid probate. The most important part of the trust, however, is not the document, but funding. It is critical that after a trust is established that assets be retitled into the name of the trust or that the trust be designated as a beneficiary of the assets held in an individual’s name. How you accomplish such funding can be complicated, particularly when retirement accounts are involved. In the event funding does not occur, the asset will fall into the estate, and, as a result, attorneys often drafts wills that pass assets from the estate to a trust.Clients will also use a trust when control over assets would be beneficial. While some clients may desire control to ensure disposition of assets pass through the bloodline without interference, trusts are even more critical when there is a complex family situation. These complex situations often include blended families, family members with disabilities, or creditor issues.

If a client’s dispositive provisions and family situation are simple, a trust may not be necessary to avoid probate. Instead, an attorney may recommend updating deeds to provide transfers at death, holding assets with rights of survivorship, or completing beneficiary designations. With this approach, the assets will pass to the intended recipient outside of probate and a will is utilized as a fail-safe in the event an asset is not effectively transferred after the owner has passed.

Everyone, regardless of the size of his or her estate, should have an estate plan that provides for surrogate-decision making authority during lifetime (think Power of Attorney and Advance Medical Directive) and disposition of assets at death. To discuss which estate planning tools may be right for you and your family, contact the attorneys at Hook Law Center.

Ask Kit Kat: Repeal of Put Bull Ban in Missouri

Hook Law Center: Kit Kat, what can you tell us about Springfield, Missouri where the citizens recently overturned a ban of owning pit bulls or pit bull-mixes?

Kit Kat: Well, this is very interesting and sad at the same time. Pit bulls are not inherently vicious or aggressive dogs, but they have gained a reputation for being so, because many of them have been bred to engage in dog fighting as a sport or for profit. In October 2017, the city council of Springfield, Missouri by a slim majority had enacted a ban on anyone owning the breed. It was an unusual law in that the punishment for violating the law could be seizure of the dog and euthanasia. In less than a year (August 2018), this unjust law, was put on the ballot as one of many issues during the city election cycle. Breed-specific legislation (BSL) seeks to treat particular breeds of animals differently than others in their class. Unfortunately, this is not the only case of BSL in the country.

 It was a great day for pit bulls when the ban on owning pit bulls or pit bull-mixes was overturned by a whopping 68% of the town’s citizens. “This victory is the result of the  tireless efforts of a coalition of local advocates who took action to put this question on the ballot and give voters the opportunity to preserve their right to adopt any breed of dog they choose,” according to Andy Briscoe, Director of State Legislation, Central Region, for the ASPCA.  Hooray for the citizens of Springfield, Missouri!  (“Springfield, MO, Overwhelmingly Repeals Pit Bull Ban,” ASPCA Action, Issue  3, 2018, p.6)

Most of us assume that our children or other family members will help take care of us when we get older. Many seniors rely on their spouse or children to help manage their finances, monitor their health, and perform everyday tasks that they are no longer able to perform themselves. However, for some seniors, this is not an option. In fact, almost 22% of seniors are “solo seniors” – those age 55 or over who are unmarried and do not have children living nearby.[1]

For this group, navigating the unique struggles of life as a senior citizen can be very difficult – especially if they do not have a plan in place.  If you feel that you may become a “solo senior,” there are steps that you should take now to prepare for what could happen if you are unable to care for yourself.

Reconsider Your Living Situation

According to a recent survey, more than half of “solo seniors” have no one to call if they are confined to bed or if they need someone to drive them home from a medical procedure. If this is a concern for you, you may want to consider changing your living situation. If you live alone in a house in the suburbs and you fall in the bedroom, for example, it could be hours or even days before someone discovers that you are in distress. However, if you live in a senior apartment or independent living community, you will be a part of a larger group of people who are also in your situation and who will be more likely to check in on each other.

Even if you decide to stay at home, it is important for you to build a network of people who will look out for you in the event that something happens. Whether you become better acquainted with your neighbors, get to know friends from church or a social club, or even hire a geriatric care manager to see to your needs, it is vital that you have a community around you who will be able to recognize that you need help and provide the help that is needed when the time comes.

Put a Strong Estate Plan in Place

Everyone over the age of eighteen needs (at a minimum) an advance medical directive and financial power of attorney. However, for “solo seniors,” this need is even more critical. An advance medical directive allows you to appoint someone who has the authority to make medical decisions for you and outlines your wishes for end-of-life care. A financial power of attorney allows you to appoint someone to manage your finances for you if you are unable to manage them on your own. Without these documents in place, if you become incapacitated, it may be necessary for someone to petition a court to become your guardian and conservator, so they can make these decisions for you – and that person might not be who you would have wanted making those decisions.

If you are a “solo senior,” you may be wondering who you can name on these documents. It is true that most clients name spouses or children, but other options include siblings, nieces and nephews, family friends, and even financial advisors and attorneys.  

Another decision to make is who will inherit your assets upon your death. Many “solo seniors” may consider leaving money to charities or nonprofit organizations. If this is the case, there may be special planning to be done and various documents to be taken into consideration. It is always a good idea to seek the advice of an experienced estate planning attorney when having these documents prepared.

There are many difficult decisions that seniors must make, and for “solo seniors,” these decisions can be even more challenging. It is important to make sure you have a plan now, so that when the time comes, you can enjoy your senior years rather than worrying about who will take care of you if something should happen. Building a network of friends, family, and trusted professionals such as financial advisors, elder law and estate planning attorneys, and geriatric care managers can help you transition smoothly into life as a “solo senior.”

[1] All statistics in this article are from the following source: Elizabeth O’Brien, A Solo Senior’s Guide to Happiness, Money Magazine, November 2018, at 53.

Ask Kit Kat: Bongos at Norfolk, VA Zoo

Hook Law Center: Kit Kat, what can you tell us about the newborn bongos at the Virginia Zoo in Norfolk?

Kit Kat: Well, until I had read the article about them, I was not really sure what bongos are. Bongos are critically endangered animals from eastern, western, and central Africa. They belong to the antelope species, but they have whitish stripes on their side and long, spiraled horns. In short, they are magnificent creatures. Norfolk is fortunate to have them. Bongos are herbivores, and as adults measure around 5 feet tall. They are endangered in their native habitat due to poaching, habitat destruction, and diseases common to livestock.

Two calves were born on Dec. 26, 2018 to two different mothers. Johnny was born to 12-year old Juni and Bob. Johnny is about 2 feet tall, and his weight is about 44 pounds. Later in the day, mother Jesi (a 3-year old) went into labor, but after having problems, was delivered  of her calf through cesarean section. Her calf is a female named Charlie. Charlie also is 2 feet tall, but her weight is about 48 pounds. Charlie has been bottle-fed, since Jesi is still recovering from her surgery. Charlie appears to be thriving with this mother-substitute.

The number of bongos in the Virginia Zoo’s Okavango Delta exhibit is now 8. Baxter was born in March 2018, and a female named Joy was born Dec.25, 2017. The zoo said no visitors will be allowed to see the newborn calves until they are bigger and stronger. They will keep the public updated as to the calves’ progress via Facebook. (Katherine Hafner, “Virginia Zoo gets a pair of bongos for Christmas,” The Virginian-Pilot, January 3, 2019, pg.3)