Estate Planning & Probate/Elder Law Joint MCLE Meeting

DuPage Judicial Center - ARC 10/10/17

11:45 AM – Noon Welcome/Introductions Karen Mills, Estate Planning & Probate Section Chair

A few words from our lunch sponsor, Thomas Puccinelli, RICP Associate Vice President – Investment Officer from Wells Fargo Advisors

Noon – 1:00 PM Program

The ABC's on Long Term Care Issues: 26 Tips for Real Life Linda Strohschein - Strohschein Law Group, LLC & Elder Law Vice Chair See Attached for Speaker Bio

As Estate Planning attorneys and Financial Planners, we are well versed in Wills, Trusts, Powers of Attorney and many other kinds of planning documents. But do you know what to do when your parents need nursing home care? Perhaps you are not aware of the need to ask about inpatient or outpatient status at the hospital, which may cause your loved ones to incur a higher-than-necessary hospital bill and forego much needed rehabilitation. When placement is necessary, do you know the differences between all of those "senior residences" in their community? Knowing a little bit about long term care issues, such as Medicare and Medicaid, Long Term Insurance and facility contracts, can be helpful to spot critical issues for both your clients and your family members.

Next Meetings: 11/14/17 – “Basic Probate: Legal Shortcuts and Giving Value for the Fees You Charge” Presented by James Reichardt

12/12/17 – “Refresher GAL Adoption & Probate Training” Presented by Sean McCumber & Louis Aranda

DCBA Events: 10/19/17 – Happy Hour at Cooper’s Corner

10/19/17 – Lawyers Lending a Hand – DuPage Convalescent Center

10/25/17 – Run, Hide or Fight – Courthouse Safety & Security: The one lunch time program that may actually save your life - Presented by the DuPage County Bar Association, Eighteenth Judicial Circuit Court Security Committee and the DuPage County Sheriff.

View & Print All CLE Certificates through the DCBA Website:

Manage Profile -> Professional Development (under content & features) and choose the icon to the left of each meeting to print your certificate directly or choose to have them emailed to you to save to your computer (you MUST be logged in to view this feature)

DCBA OnDemand CLE is Now Powered by IICLE The Illinois Institute for Continuing Legal Education (IICLE®) and the DuPage County Bar Association (DCBA) are excited to offer a new IICLE®Share collaboration to provide DCBA members a high quality and reliable online learning experience. Please visit the DCBA Website for more information

Linda Strohschein, Principal Attorney

STROHSCHEIN LAW GROUP, LLC

ABC’S OF LONG TERM CARE: 26 TIPS FOR REAL LIFE

Appeals for Medicaid

•45-60 day decision requirement – gone!

•File via mail, fax, email (read receipt)

•Confirm receipt within 60 day deadline

•Calendar periodic updates no more than 30 days out

•Calendar updates with client too

•Pre-Appeal Conference

•Statement of Facts

Medicare Part B (and A, C and D, too!)

• Alphabet soup for A,B,C and D

• Plan Names for Supplemental Coverages (A through N, skipping three in between)

• Cards in your wallet – Original Medicare, supplemental insurance, prescription drug

• Medicare A – hospital coverage

• Medicare B – doctor services and outpatient care

• Medicare C – private coverage in lieu of Original Medicare

• Medicare D – prescription drugs

Contract Review

•Appears innocuous to the resident and their family

•Not usually explained very well at all

•Many sign without even looking at it!✓Responsible Party

✓Agent Signature

✓Restrictions on Quality of Care

Distinct Part Facility• Entire, physically-

identifiable unit

•May be certified for Medicare, Medicaid or dually participating in both programs

• Lay person will not know to ask about different parts of the facility or that their loved one is in a Medicare only bed.

FOIA request to the Illinois Department of Public Health to identify exactly which beds are approved for Medicaid.

Eviction from a Long Term Care Facility

Only six legitimate reasons for being discharged from a nursing home:1. The resident has failed to pay2. The resident no longer needs nursing home

services3. The resident’s needs cannot be met in a nursing

home4. The resident’s presence in a nursing home

endangers others’ safety5. The resident’s present in a nursing home

endangers others’ health6. The nursing home is going out of business

Facilities – Different Types

•Private Duty vs Skilled Care at Home

• Independent vs. Assisted Living Community

•Supportive Living Community

•Sheltered Care vs Nursing Home

•Short Term Rehabilitation vs Long Term Care

•Continuing Care Retirement Community

Gifting for Medicaid Purposes

•Annual Exclusion Gifts

•Penalty Period or Waiting Period

•Partial Return of the Gift Doesn’t Help Much

•Gifting is NOT Illegal

Health Care & HIPAA

•What are the things I want my health care agent to know?

•What kind of decisions can my agent make?

•Whom should I choose to be my health care agent?

•What will happen if I do not choose a health care agent?

•What if there is no one available whom I trust to be my agent?

•What do I do with this form once I complete it?

•What if I change my mind?

•What if I do not want to use this form?

Irrevocable Trusts

•Medicaid Variety: Access to income but not principal

•Veteran’s Variety: No access to income or principal

• Inside or Outside of 60 month lookback

•Old Irrevocable Trusts – what to do with them?

Jimmo v. Sebelius

•“Your loved one is no longer making progress”

•“She has plateaued and is being discharged from Medicare on Tuesday”➢Therapy should be provided if the therapy improves

the resident’s condition, maintains the resident’s condition or slows the decline of the resident’s condition.

➢Lawsuit filed – January 2011

➢Settlement – January 2013

➢Resolution of Non Compliance - March 2016

➢Corrective Action Plan – February 2017

Know Who Your Client Is

➢ Client is often incapacitated

➢ Entire family comes to the meeting – yikes!

➢ Did they choose you?

➢ Did you accept a fee?

➢ Did you prepare an engagement letter?

Long Term Care Insurance

•Elimination Period of the Policy

•Daily Benefits

•Starting a Claim for the Client

•Back Up Reminder Notices for Non-Payment of Premiums

•Use It or Lose It Policies

MMAI & MLTSS

•Medicare-Medicaid Alignment Initiative• Started in 2010 with the passage of the Affordable Care Act• SMART Act in Illinois in 2012• Enrollment started in 2015• Still a pilot program – not rolled out everywhere• Full Medicare and Full Medicaid beneficiaries

•Medicare Long Term Supports & Services• Assistance with bathing, dressing, eating, etc.• Provided by a caregiver support in the home, a supportive living

facility or skilled nursing facility

• Pick one: MMAI or MLTSS• If no MLTSS services, recipient can disenroll in MMAI

Notice of Decision

•Notices are not sent out as often as they should be so be prepared

•Direct all information to you so it doesn’t go to the patient in the nursing home!

•Request all notices the family receives

•Ask the family to pay attention to all paperwork

•Notice of Involuntary Discharge – 10 day window to appeal

Observation Status

• Billing code which is similar to outpatient status✓ Too sick to go home, but

✓ Not sick enough to be admitted

✓ Significantly impacts insurance coverage

• What can you do if you are under Observation Status?✓ Ask daily for admission status

✓ Talk to treating physician

✓ Call Primary Care Physician

✓ Ask Discharge Planning for assistance

✓ Arrange for home health services

✓ Appeal hospital bill and nursing home bill if timely

Planning Ahead for Medicaid Penalty

• Spending Habits will impact Medicaid Application

• Cash Withdrawals/Cash to Pay Monthly Bills

• Gifting of Assets

• Facility is a For Profit Company – know who they are protecting in the long run!

• Evaluate five years worth of financial statements BEFORE applying

• Get copies of checks and deposits over $1,000

Queen Bee

Responsible Party

• Nursing Home cannot require family member to become financially responsible for the bill

• Be wary of the “Responsible Party” language in the contract

• Review the contract carefully!

• Resident should sign if at all possible

Special Needs Planning

Combination of education, personal care, advocacy and protection from exploitation including practical advice to maximize the quality of life for the disabled person.

❖ Preserve public benefits

❖ Supplement lifetime financial support

❖ System of advocacy

❖ Establish the team

❖ Social and recreational activities

Transfer on Death Instrument

• Post Death Transfer of the House

• Valuable Option in a Medicaid Situation

• Avoid Creditors

• Multiple Owners

Undisclosed Transfers

• Medicaid Applications are evaluated by Department of Human Services (DHS) or audited by the Office of Inspector General (OIG)

• They are going to catch all of the transfers in the 60 month look back period

• Dig deeper!

Veteran’s Benefits

• Consecutive active service for 90 days

• At least one day during a period of war

• Medical expenses which routinely exceed the amount of income

• Significant benefits to Veteran or his spouse

Waiver Program in Illinois

Services that allow disabled individuals to remain in their home or in a community setting instead of an institution.• Children and Adults with Developmental Disabilities

• Medically Fragile/Technologically Dependent

• Elderly

• Brain Injury

• Disabilities

• HIV/AIDS

• Supportive Living Facilities

• Support Waiver

X Roads of Estate Planning & Elder Law

Elder Law is really a focused area of Estate Planning involving:

✓asset protection (for nursing home costs and otherwise)

✓Medicaid applications and appeals

✓Medicare issues

✓Guardianship

✓disability/incapacity issues

✓elder abuse (including fraud recovery)

✓avoiding fraudulent transfers

✓and much, much more.

Why Do We Do This?

➢ We do this kind of planning because our families rely upon us for guidance that they cannot get anywhere else.

➢ Our loved ones want to remain as independent as possible, but often don’t know how to make that happen for themselves, and sometimes, compromising safety in order to do so.

It’s a ZOO Out There!

Protecting What Matters

Advocating for your loved ones when they need care at home or in a hospital or nursing home setting is truly protecting what matters most. Your loved one will not be able to advocate for themselves and families sometimes do not even know what questions to ask.

Questions?

Strohschein Law Group, LLC

455 Dunham Road, Suite 200

St. Charles, Illinois 60174

(630) 377-3241

www.StrohscheinLawGroup.com

Conference rooms are now

available on the second floor

of the DuPage County Bar

Center .

Single conference rooms accommoda ng 8‐12 people

are available for $50 per hour (3 hour minimum).

Special package for media on and arbitra on sessions,

three conference rooms at a daily rate of $400.

DCBA Members enjoy a 50% Discount

Convenient loca on adjacent to the DuPage Courts

(126 South County Farm Road in Wheaton)

Ample Parking

Wireless internet and beverages included.

(Catering op ons available)

Looking for mee ng space in

DuPage County?

Make our home yours!

For details or to reserve your space, contact

Ann Mar n or Robert Rupp at 630‐653‐7779.