Thanks to Kyra Crusco at the New Hampshire Family Law Blog for calling my attention to the fact that Nancy Van Tine, one of the very best and most experienced family law practitioners in Boston, has just started a new Massachusetts divorce law blog, the Massachusetts Divorce Law Monitor. Also my friend Steve Zlochiver, another excellent, experienced family law attorney in the Boston area, recently called my attention to the fact he too now has a blog, the Massachusetts Divorce Lawyer Blog. Add 'em to your blogroll, bookmark 'em, subscribe to their feeds. I'm always happy to see more blogs from which I will be able to borrow (steal?) ideas for my own blog!
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Recession, Pink Slips, and Child Support
Yes, we're in a recession, and that's obvious in family court, where pink slips have resulted in more child support modification cases: Fighting Over Child Support After the Pink Slip Arrives - NYTimes.com.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Gay Marriage Coming Soon to Vermont? New Hampshire?
New England continues to be center stage in the gay marriage debate.
Both Vermont and New Hampshire each have legislative proposals that were recently approved by one of their legislative bodies to legalize gay or same-sex marriage. See yesterday's New York Times article, Gay Marriage, Set Back in One State, Gains in a 2nd - NYTimes.com.
New Hampshire's House of Representatives just narrowly approved its gay marriage bill this past Thursday, and its Senate may consider a similar bill but prospects do not appear to be good in this more conservative-leaning state. Vermont's Senate overwhelmingly approved its own bill the Friday before last, and its House is already actively considering a similar proposal. But both states have governors who are likely to veto the bills if they come before them. Governor Jim Douglas of Vermont has already stated he will veto the Vermont bill if it comes to his desk.
Vermont was the first state to legalize gay and lesbian civil unions. New Hampshire only created civil unions this past year. If the other legislative bodies also approve the bills in each state, and then can override the probable vetoes by their governors, then we will see a further expansion of gay marriage in this region.
It would hardly be a surprise to see one of these New England states become the next to join Massachusetts and Connecticut, as the only states currently and fully santioning the legal formation of gay and lesbian marriages. My bet would be on Vermont. Maybe not this year, but eventually.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Both Vermont and New Hampshire each have legislative proposals that were recently approved by one of their legislative bodies to legalize gay or same-sex marriage. See yesterday's New York Times article, Gay Marriage, Set Back in One State, Gains in a 2nd - NYTimes.com.
New Hampshire's House of Representatives just narrowly approved its gay marriage bill this past Thursday, and its Senate may consider a similar bill but prospects do not appear to be good in this more conservative-leaning state. Vermont's Senate overwhelmingly approved its own bill the Friday before last, and its House is already actively considering a similar proposal. But both states have governors who are likely to veto the bills if they come before them. Governor Jim Douglas of Vermont has already stated he will veto the Vermont bill if it comes to his desk.
Vermont was the first state to legalize gay and lesbian civil unions. New Hampshire only created civil unions this past year. If the other legislative bodies also approve the bills in each state, and then can override the probable vetoes by their governors, then we will see a further expansion of gay marriage in this region.
It would hardly be a surprise to see one of these New England states become the next to join Massachusetts and Connecticut, as the only states currently and fully santioning the legal formation of gay and lesbian marriages. My bet would be on Vermont. Maybe not this year, but eventually.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
N.M. v. Division of Medical Assistance and Health
Services and Monmouth County Board of Social Services 02-26-09
A-0828-07T1
Under an amendment to the statutes governing the federal
Medicaid program enacted as part of the Deficit Reduction Act of
2005, the value of an annuity purchased for the sole benefit of
the "community spouse" may be considered in determining whether
the resources of the "institutionalized spouse" exceed the
"resource limit" for Medicaid eligibility.
Services and Monmouth County Board of Social Services 02-26-09
A-0828-07T1
Under an amendment to the statutes governing the federal
Medicaid program enacted as part of the Deficit Reduction Act of
2005, the value of an annuity purchased for the sole benefit of
the "community spouse" may be considered in determining whether
the resources of the "institutionalized spouse" exceed the
"resource limit" for Medicaid eligibility.
New Twitter account - Follow us
The Law Office of Jonas M. Grant, P.C. is now on Twitter - which means you can "follow" us by signing up as one of our followers here, and receive occasional updates, including notification of new blog posts here - typically about four per month - and you can of course stop "following" at any time.
Our Twitter page can be found here:
Twitter: Law Office of Jonas M. Grant, P.C.
For those who prefer, there is also a free subscription available for the Atom feed for this blog.
See also:
Our Twitter page can be found here:
Twitter: Law Office of Jonas M. Grant, P.C.
For those who prefer, there is also a free subscription available for the Atom feed for this blog.
See also:
The University of Louisville's law alumni magazine
The vast majority of MoneyLaw's readers will never see the University of Louisville's law alumni magazine. I don't believe in law porn. Even if I did, I don't have the money to transmit any substantial amount of law porn in interstate commerce. But I am proud of the magazine and invite you to download the 2008-09 edition.
Best Divorce Cartoon
A colleague, who happens to be a psychotherapist and not a lawyer, just gave me a copy of the following New Yorker Divorce Cartoon a few days ago. The cartoon is very good and to publish it here I would have to pay more than I am willing to pay for the license, so if you want to see it, you will have to follow my link. But I may have to order a print of this myself.
The cartoon, by Mick Stevens, appeared in the January 12, 2009 New Yorker, and was part of the magazine's Caption Contest. It appeared with the following winning caption, suggested by reader Ann Seger of Chicago, Illinois: "For a divorce case, that went smoothly."
By the way (and to relate this to my last post), if this cartoon looks like it could serve as the illustration for your impending divorce, you are definitely not a candidate for do-it-yourself divorce.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
The cartoon, by Mick Stevens, appeared in the January 12, 2009 New Yorker, and was part of the magazine's Caption Contest. It appeared with the following winning caption, suggested by reader Ann Seger of Chicago, Illinois: "For a divorce case, that went smoothly."
By the way (and to relate this to my last post), if this cartoon looks like it could serve as the illustration for your impending divorce, you are definitely not a candidate for do-it-yourself divorce.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
A Fool for a Client? More on DIY Divorce
Now it is often said that he who represents himself has a fool for a client. But is that always true? When something very important is at stake, the answer is usually yes.
However, I was just quoted in today's Boston Globe, by relationship columnist Meredith Goldstein, in her short piece DIY divorce: Is it a good idea? - The Boston Globe. I appear in the article as the attorney who surprised the reporter by favoring do it yourself (DIY) divorce in some cases. Unfortunately, given the shortness of the article, my view that most divorces require legal representation, and that DIY divorces are only advisable, or even possible, in a limited number cases where there is really little in dispute, probably did not come through clearly enough. But the important counterpoint was provided by Attorney Laurie Israel, my friend from Brookline. Of course I think there are important truths in the comments by both of us.
If you're interested in the subject, see my previous post Massachusetts Divorce & Family Law Blog: NOLO, Its New Divorce Blog, and Do It Yourself Divorce and also see the Massachusetts Trial Court Law Library's blog post from back in January, discussing and linking to the Massachusetts Supreme Judicial Court's recent report on self-represented litigants: Massachusetts Law Updates: Self-Represented Litigants Report.
The fact is many people are taking their divorces, and family law representation, into their own hands, whether we like it or not. As a result our court system is reacting. Eventually, perhaps, there will be more unbundling of legal services, after the current experimentation with such unbundling of legal services in a few counties in Massachusetts has been sufficiently tested so that the results will give a greater degree of comfort to the judges, lawyers and clients who are trying this out, and consequently also to those of us who have not yet tried this out.
I do not believe one size fits all.
The longer I practice, and the more people I see, the more I am convinced that some people need no lawyers, while others should use a mediator, others could make very brief and efficient use of attorneys outside of court (unbundled legal services), others would be wise to choose collaborative lawyers, and still others should use more traditional divorce lawyers, and yes, sometimes even very aggressive trial lawyers who will have to take their cases all the way to trial.
I do imagine that some day it will not seem odd to find other trial lawyers, like me, who can openly acknowledge that many people should in fact handle their divorces on their own, or with minimal help from a mediator or a few attorneys outside of court.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
However, I was just quoted in today's Boston Globe, by relationship columnist Meredith Goldstein, in her short piece DIY divorce: Is it a good idea? - The Boston Globe. I appear in the article as the attorney who surprised the reporter by favoring do it yourself (DIY) divorce in some cases. Unfortunately, given the shortness of the article, my view that most divorces require legal representation, and that DIY divorces are only advisable, or even possible, in a limited number cases where there is really little in dispute, probably did not come through clearly enough. But the important counterpoint was provided by Attorney Laurie Israel, my friend from Brookline. Of course I think there are important truths in the comments by both of us.
If you're interested in the subject, see my previous post Massachusetts Divorce & Family Law Blog: NOLO, Its New Divorce Blog, and Do It Yourself Divorce and also see the Massachusetts Trial Court Law Library's blog post from back in January, discussing and linking to the Massachusetts Supreme Judicial Court's recent report on self-represented litigants: Massachusetts Law Updates: Self-Represented Litigants Report.
The fact is many people are taking their divorces, and family law representation, into their own hands, whether we like it or not. As a result our court system is reacting. Eventually, perhaps, there will be more unbundling of legal services, after the current experimentation with such unbundling of legal services in a few counties in Massachusetts has been sufficiently tested so that the results will give a greater degree of comfort to the judges, lawyers and clients who are trying this out, and consequently also to those of us who have not yet tried this out.
I do not believe one size fits all.
The longer I practice, and the more people I see, the more I am convinced that some people need no lawyers, while others should use a mediator, others could make very brief and efficient use of attorneys outside of court (unbundled legal services), others would be wise to choose collaborative lawyers, and still others should use more traditional divorce lawyers, and yes, sometimes even very aggressive trial lawyers who will have to take their cases all the way to trial.
I do imagine that some day it will not seem odd to find other trial lawyers, like me, who can openly acknowledge that many people should in fact handle their divorces on their own, or with minimal help from a mediator or a few attorneys outside of court.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Sun deviled
Arizona State University, under president Michael Crow, aspired to become the New American University. ASU would enroll 100,000 students by 2020. It would eliminate disciplinary boundaries, spur research, fuel the economy, and serve the deserving and the underserved. Then the bottom dropped out:
[President Michael Crow] increas[ed] enrollment by nearly a third to 67,000 students, lur[ed] big-name professors and start[ed] interdisciplinary schools in areas like sustainability, projects with partners like the Mayo Clinic and Sichuan University in China, and dozens of new degree programs.But this year, Mr. Crow’s plans have crashed into new budget realities, raising questions about how many public research universities the nation needs and whether universities like Arizona State, in their drive to become prominent research institutions, have lost focus on their public mission to provide solid undergraduate education for state residents.
These days, the headlines about Arizona State describe its enormous cuts.
The university has eliminated more than 500 jobs, including deans, department chairmen and hundreds of teaching assistants. Last month, Mr. Crow announced that the university would close 48 programs, cap enrollment and move up the freshman application deadline by five months. Every employee, from Mr. Crow down, will have 10 to 15 unpaid furlough days this spring.
Describing the $88 million hit that ASU has been asked to sustain since June 2008, the ASU Sun Devil declared, "The New American University has died; welcome to the Neutered American University."
Michael Crow and Arizona State are not alone. Jane Wellman, executive director of the Delta Project on Postsecondary Costs, Productivity and Accountability, identifies a nationwide "trend line" in “states disinvesting in higher education.”
Read the rest of this post . . . .Prestige and the idea of the public research university may be the first victims of multilateral educational disarmament. As Tamar Lewin of the New York Times reports,
not every university can be in the top 20. And in a time of shrinking state budgets, undergraduates at public universities will most likely pay the price in higher tuition, larger classes and less interaction with tenured professors. So it is a real question how many public research universities the nation can afford, and what share of resources should go to less expensive forms of education, like community colleges.
Say it ain't so, Joe!
Legal education is by no means immune to the clash between academic ambition and economic reality. Law schools over the last generation have increased selectivity, identified or sharpened their research mission, and endeavored to have faculty do as little teaching as possible. Here are some of the things we have done in the legal academy, mostly in pursuit of prestige and rankings:
- We've slashed enrollments, to the extent that endowments or cash on hand (rarely) or our parent institutions' failure or reluctance to adopt resource-centered management (more often) has enabled us to trade forgone tuition revenues for marginally lower student-teacher ratios.
- We've created centers, institutes, summer programs, dual-degree programs, LL.M. programs, and lecture series, often without regard to return on investment and, indeed, most typically as unfunded mandates.
- We've doubled down on these expenditures by sending out tons of law porn to demonstrate just how conspicuously we can engage in extracurricular consumption.
- We've dived headlong into an extremely expensive interdisciplinary movement whose benefits are uncertain but whose long-term costs (especially in tenured faculty salaries) are substantial and possibly crippling.
- We've lowered the expected teaching load, at least at (relatively) elite institutions, from twelve to ten semester hours per year — so aggressively that some top-tier teaching candidates refuse to interview at schools that retain, for understandable economic reasons, the twelve-credit norm.
Nothing is irredeemable till it is past. Legal education would do well to heed the lessons that Michael Crow, one of the most visionary academic leaders of our time, has had to learn during times of extreme budgetary retrenchment in Arizona. Let us do our very best to translate dollars into concrete education results, being ever mindful that student tuition is the economic benchmark for everything we do as educators. In Sun Devil country and elsewhere, we may yet find our way out of the desert.
ABA GP Solo ELDER LAW COMMITTEE Newsletter Spring, 2009
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. The Legal Authority for Requiring a Medicare Set-Aside Arrangement
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009
1 The Legal Authority for Requiring a Medicare Set-Aside Arrangement.
s Medicare Secondary Payer Act The authority for the Centers for Medicare and Medicaid Services (CMS) to require consideration of a plaintiff’s future medical expenses is found in the Medicare Secondary Payer Act (MSPA). Under the MSPA Medicare is generally precluded from paying the beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a worker’s compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. Medicare payments are conditional on reimbursement from the primary payer. The requirements for Medicare Set-Aside Arrangements (MSA) have developed over the years in a series of memoranda issued by CMS. The MSPA applies to both past and future medical expenses.
s Medicare, Medicaid and SCHIP Extension Act of 2007. Historically, CMS has enforced the provisions of the MSPA only in worker’s compensation cases. However, the passage of the Medicare, Medicaid and SCHIP Extension Act of 2007 requires all insurers, third party administrators for group health plans, self-insured plans, and self-administered plans to identify situations where the plan is or has been a primary plan to the Medicare program. There is a civil penalty of $1,000 per day for non-compliance. The plan shall determine whether a claimant is entitled to benefits under the Medicare program. If the claimant is determined to be so entitled, the plan must submit a report including the identity of the claimant and such other information as the secretary shall specify.
0. The reporting requirements for group health plans being January 1, 2009. The reporting for liability cases begins July 1, 2009. The report includes the contact information for the personal injury attorney.
s CMS Regional Coordinator Pronouncement. According to Sally Stalcup, Region VI, MSP Regional Coordinator, CMS, “At this time, the Centers for Medicare and Medicaid Services (CMS) is not soliciting cases solely because of the language provided in the general release. CMS does not review or sign-off on counsel’s determination of the amount to be held to protect the Trust Fund in most cases. If we do, however, urge counsel to consider this issue in settling the case and recommend that their determination as to whether or not the case provided recovery funds for future medicals (emphasis added) be documented in their records. Should they determine that future services are funded, these dollars must be used to pay for future otherwise Medicare covered case-related services. There is no formal CMS review process in the liability arena as there is for worker’s compensation. On rare occasions, when the liability is large enough or other unusual facts exist within the case, the CMS Regional Office will review the settlement and help make a determination on the amount to be available for future services.”
s Anticipated Impact of the Medicare, Medicaid and SCHIP Extension Act of 2007. The likely outcome of the reporting requirements of the Medicare, Medicaid and SCHIP Extension Act of 2007 is that insurance companies will begin to require MSAs in third party liability cases. There is no reason for insurance companies to run the risk of failing to establish an MSA.
The Theory Behind a Medicare Set Aside Arrangement.
s Contrived Shift. Under the Medicare Secondary Payer Act, Medicare makes conditional payment for medical expenses for beneficiaries with the understanding that Medicare will be paid when the beneficiary receives payment from a third party. Medicare is opposed to any settlement that results in a contrived shift to Medicare of responsibilities of a claimant’s future medical care. In settling claims, Medicare’s interest must be considered. The solution to the problem of burden shifting is to establish a Medicare Set-Aside Arrangement (MSA).
s Past and Future Medical Bills. Medicare has a right of recovery for past medical bills up to the date of the settlement. The Medicare Secondary Payer Act also applies to third party liability situations in which the settlement or award includes payment for future medical expenses. Medicare is not bound by the release with respect to an allocation for future medical expenses. If Medicare determines that the injured party will have future medical expenses then a Medicare Set-Aside Arrangement is expected.
When is an MSA Required?
While the MSPA clearly establishes a requirement that Medicare’s interest be considered in liability cases, there are no rules or regulations under the MSPA. While there are no rules in Worker’s Compensation (WC) cases either, CMS has issued memos advising the establishment of MSA’s in WC cases, but there are no requirements. Obtaining CMS’ approval of a proposed MSA does provide assurance to the parties that the set aside amount is acceptable to CMS. The prudent course of action might be to follow those in liability cases. While an MSA is always required, it is not necessary to submit an MSA proposal to CMS:
• the settlement exceeds $25,000 and the claimant is currently
eligible for Medicare; or
• the settlement is for more than $250,000 and the plaintiff can
reasonably be expected to become eligible for Medicaid
within 30 months.
If an individual is in the process of filing, appealing or re-filing for SSDI, that person is included in the 30-month window notwithstanding the fact that a previous application may have been denied and have not been appealed. An individual who is 62 years and 6 months of age could be eligible within 30 months, and an individual suffering from End-Stage Renal Disease (ESRD), but who does not yet qualify for Medicare based on ESRD, would also be considered a person having a “reasonable expectation” of Medicare enrollment within 30 months.
If it is absolutely clear that there will be no future medicals as a result of the injury subject to the litigation, then no MSA is required.
It is important to note that a beneficiary may not waive his right to future Medicare in order to avoid establishing an MSA.
In determining whether the $250,000 threshold is met, if there is a structured settlement the value of the structure rather than the cost is used. Also, in determining whether the $250,000 threshold is met, past medicals, future medicals, attorney’s fees and costs are included.
What is the Risk to the Personal Injury Attorney for Failing to Establish an MSA?
s Double Damages. Plaintiff’s attorneys who fail Medicare’s interest are potentially responsible for double damages. CMS is authorized to bring an action “against any entity” including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received any portion of a third party payment directly or indirectly, if those third party funds – rather than Medicare – should have been paid for the injury-related medical expenses.
0.
s Potential Malpractice. In addition, there is a malpractice risk. Plaintiffs who have not established an MSA and who file future claims for Medicare may have those claims denied. CMS has taken the position that where no MSA has been established, the entire settlement can be considered for future medicals and Medicare will not pay the plaintiff’s medical bills until an amount equal to the entire settlement has been spent for the plaintiff’s medical care. Each personal injury attorney must decide how much risk he or she is willing to accept in order to avoid establishing an MSA.
How is the Set-Aside Amount Determined?
There are companies who will calculate the set-aside amount. The amount is determined by evaluating past medical treatment, current medical condition, and the probability of future medical needs, as well as other factors. Future medicals are limited only to those expenses that Medicare would pay that are related to the injury. Medicare does not pay all medical expenses. There are some services that are not covered; there are deductibles, co-payments and maximums per spell of illness. The MSA need not contain monies for those services that would not be covered by Medicare. In calculating the set-aside amount the plaintiff’s life expectancy is considered. It is often useful to obtain a rated age as a part of this process. The rated age shows that a person’s actual life expectancy may be considerably shorter than their actuarially life expectancy, so that less money is required to be set aside.
Once a Medicare Set-Aside amount is calculated in a worker’s compensation case, it is submitted to Medicare for approval. While CMS maintains that a set-aside is necessary in liability cases, there is no mechanism for approval at this time.
CMS is not bound by an allocation for future medicals made by the parties in the settlement agreement. CMS may disregard any such allocation and make its own calculation as to the cost of future medicals.
The cost of future prescription drugs must be considered in calculating the set-aside amount.
Administering the MSA.
There are four possibilities for administering an MSA:
s Self-Administered Accounts. These accounts are usually small accounts and are administered by the claimant. No formal agreement is necessary. The claimant must follow the same accounting rules as a professional administrator, but it is likely that most claimants will not comply, but the liability of the personal injury lawyer should terminate when the MSA is established.
s Custodial Account. A larger account is usually administered by a custodian. These are professional organizations that have expertise in medical claims administration. They charge a fee and are recommended where financially justified.
s Medicare Set-Aside Trusts. A Medicare Set-Aside Trust is a formal trust with a trustee. These are usually used for large accounts. They are also used in connection with Special Needs Trusts if the plaintiff is receiving means-tested public benefits such as SSI, Medicaid, Food Stamps, Veterans Benefits or Section 8 Housing.
s Pooled Trusts. In smaller cases where the plaintiff is receiving any of these means-tested public benefits, a Pooled Trust may be considered. A Pooled Trust is operated by a non-profit. The plaintiff’s money is pooled with other persons’ money for investment purposes, but each member has an individual sub-account. Whenever a trust or a Pooled Trust is used, a sub-trust is established for the Medicare Set-Aside funds.
Chart
No Public Benefits Public Benefits
Small Settlement
Self Administered
Pooled Trust
Large Settlement
Custodial Agreement/ Professional Administrator
Stand Alone Special Needs Trust
Note: As used above the term “Public Benefits” applies to only means tested public benefits where there are financial eligibility rules pertaining to income and/or assets of the beneficiary and/or his or her family or household. These benefits typically include SSI, Medicaid, Veteran’s Benefits, Section 8 Housing and Food Stamps. For purposes of the chart, public benefits does not only include SSDI and Medicare, but a MSA will always be required if the plaintiff is receiving or will receive these benefits.
How does a Structured Settlement fit into an MSA?
s Seed Money. An MSA must include seed money with is a cash amount equal to the amount of monies calculated to cover the first surgery procedure and/or replacement and two years of annual payments.
0.
s Structured Settlement. If there is a sizable MSA, the balance is usually funded with a structured settlement. The structured settlement is usually payable in annual installments. The remainder of the Set-Aside is divided by the remainder of the claimant’s life expectancy and the structured pays annual deposits into the MSA based on a “anniversary date” which cannot be more than one year after the settlement date. If the funds paid into the MSA from the structured settlement are exhausted before the next “anniversary date” Medicare pays until such time as the next structured settlement payment is received
0.
Recommendations for Personal Injury Attorneys.
• Recommendations for Personal Injury Attorneys wanting to protect themselves against the risk of future claims by Medicare or malpractice claims by clients are as follows:
0.
• Since no rules currently exist for third party liability cases,
follow the WC rules with respect to MSA.
• Arrange for the calculation of a Medicare Set-Aside amount.
• Submit the proposal to CMS. It is unlikely that CMS will respond,
but the personal injury attorney should be off the hook so far as his
or her obligation to consider Medicare’s interests.
• Establish an MSA and fund it with the amount calculated.
• Advise the plaintiff in writing with respect to the rules.
• Advise the client in writing of the potential for the denial of future
medical care coverage for the injury subject to the litigation.
• Paper your file.
__________________________________________
42 U.S.C.§1395y(b)(2); 42 CFR §46(d)(d)
2 42 U.S.C. §1395y(b)(2)(A)(ii)
3 42 U.S.C.§1395y(b)(2)(B)
4 42 U.S. C. 1305, Medicare, Medicaid and SCHIP Extension Act of 2007
5 Sally Stalcup, Region 6 MSP Regional coordinator
6 42 U.S.C. §1395y(b)(2)(B)(ii); 42 CFR §411.24
7 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001; Medicare Secondary Payer – Worker’s Compensation (WC) frequently Asked Questions; (undated) Thomas L. Grissom; Medicare Secondary Payer-Worker’s Compensation (WC) information May 7, 2004; Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions, October 15, 2004; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions July 11, 2005; Part D and Worker’s Compensation Medicare Set-Aside Arrangements questions and answers, December 30, 2005; Worker’s Compensation Medicare Set-Aside Arrangements (WCMSAs) and revision of the Low Dollar Threshold for Medicare beneficiaries, October 25, 2006; Questions and Answers for Part D and Worker’s Compensation Medicare-Set Aside Arrangements, July 24, 2006
8 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001
9 Medicare Secondary Payer-Worker’s Compensation (WC) frequently asked questions (2)
10 Medicare Secondary Payer (MSP)- Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003
11 42 U.S.C. 1395y(b)(3); 42 CFR§411.24(c)(2)
12 Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions A-5, October 15, 2004
13 Id
0.
__________________________________________
Quick Screen
Medicare Set-Aside Arrangements
Is the client receiving SSI or SSD at the time of settlement? □ Yes □ No
Has the client applied for SSDI, or has client applied and been denied but anticipates appealing the decision? □ Yes □ No
Is client in the process of appealing and/or refilling for SSDI benefits? □ Yes □ No
Is client age 62 years 6 months of age or older at the time of settlement □ Yes □ No
Does client suffer from end stage renal disease but does not yet qualify for Medicare based on ESRD? □ Yes □ No
Is the settlement in excess of $250,000? □ Yes □ No
Note: If client is already receiving Medicare, the threshold is $25,000.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
Tuesday, April 28, 2009 5:30 PM to 9:30 PM
Pines Manor, Edison
Featuring:
THOMAS D. BEGLEY, JR., ESQ.,
2004 Clapp Laureate
Certified as an Elder Law Attorney by the ABA Accredited National Elder Law Foundation
Past Chair, NJSBA Elder & Disability Law Section
Author: "How to Develop and Manage a Successful Trusts & Estates/Elder Law
Practice" (NJICLE)
Co-Author: "Profitable Law Firm Management" (NJICLE)
Begley & Bookbinder, PC (Moorestown)
KENNETH A. VERCAMMEN, ESQ.
Chair, ABA General Practice Division Elder Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates (Edison)
KATHLEEN A. SHERIDAN, ESQ.
Law Offices of Kathleen A. Sheridan, PC (Ship Bottom)
MARTIN A. SPIGNER, ESQ.
M. Spigner, PC (Cranbury)
Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice. Register today!
Everything you need to know about elder law & estate administration including: • Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client? • Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms • Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms • Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters • Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists • Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules …and more
Tuition fees Reg. Fee Reg. Type
General Tuition (REG) $159.00 REG
NJICLE Season Tickets (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS*) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $135.00 YL
Paralegals (PAR) $109.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JU
NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION
Audio packages are available 2 weeks after the last date of the seminar.
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009 2:00pm -3:30pm
ABA Annual meeting Chicago
Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Joan Burda, Esq.
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Charles Sabatino, director of the ABA's Commission on Law & Aging
Parag Patel, Esq. Iselin, NJ
Elder Law program Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.
_______________________
WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Who We Are- ABA GP Solo ELDER LAW COMMITTEE
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. The Legal Authority for Requiring a Medicare Set-Aside Arrangement
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009
1 The Legal Authority for Requiring a Medicare Set-Aside Arrangement.
s Medicare Secondary Payer Act The authority for the Centers for Medicare and Medicaid Services (CMS) to require consideration of a plaintiff’s future medical expenses is found in the Medicare Secondary Payer Act (MSPA). Under the MSPA Medicare is generally precluded from paying the beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a worker’s compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. Medicare payments are conditional on reimbursement from the primary payer. The requirements for Medicare Set-Aside Arrangements (MSA) have developed over the years in a series of memoranda issued by CMS. The MSPA applies to both past and future medical expenses.
s Medicare, Medicaid and SCHIP Extension Act of 2007. Historically, CMS has enforced the provisions of the MSPA only in worker’s compensation cases. However, the passage of the Medicare, Medicaid and SCHIP Extension Act of 2007 requires all insurers, third party administrators for group health plans, self-insured plans, and self-administered plans to identify situations where the plan is or has been a primary plan to the Medicare program. There is a civil penalty of $1,000 per day for non-compliance. The plan shall determine whether a claimant is entitled to benefits under the Medicare program. If the claimant is determined to be so entitled, the plan must submit a report including the identity of the claimant and such other information as the secretary shall specify.
0. The reporting requirements for group health plans being January 1, 2009. The reporting for liability cases begins July 1, 2009. The report includes the contact information for the personal injury attorney.
s CMS Regional Coordinator Pronouncement. According to Sally Stalcup, Region VI, MSP Regional Coordinator, CMS, “At this time, the Centers for Medicare and Medicaid Services (CMS) is not soliciting cases solely because of the language provided in the general release. CMS does not review or sign-off on counsel’s determination of the amount to be held to protect the Trust Fund in most cases. If we do, however, urge counsel to consider this issue in settling the case and recommend that their determination as to whether or not the case provided recovery funds for future medicals (emphasis added) be documented in their records. Should they determine that future services are funded, these dollars must be used to pay for future otherwise Medicare covered case-related services. There is no formal CMS review process in the liability arena as there is for worker’s compensation. On rare occasions, when the liability is large enough or other unusual facts exist within the case, the CMS Regional Office will review the settlement and help make a determination on the amount to be available for future services.”
s Anticipated Impact of the Medicare, Medicaid and SCHIP Extension Act of 2007. The likely outcome of the reporting requirements of the Medicare, Medicaid and SCHIP Extension Act of 2007 is that insurance companies will begin to require MSAs in third party liability cases. There is no reason for insurance companies to run the risk of failing to establish an MSA.
The Theory Behind a Medicare Set Aside Arrangement.
s Contrived Shift. Under the Medicare Secondary Payer Act, Medicare makes conditional payment for medical expenses for beneficiaries with the understanding that Medicare will be paid when the beneficiary receives payment from a third party. Medicare is opposed to any settlement that results in a contrived shift to Medicare of responsibilities of a claimant’s future medical care. In settling claims, Medicare’s interest must be considered. The solution to the problem of burden shifting is to establish a Medicare Set-Aside Arrangement (MSA).
s Past and Future Medical Bills. Medicare has a right of recovery for past medical bills up to the date of the settlement. The Medicare Secondary Payer Act also applies to third party liability situations in which the settlement or award includes payment for future medical expenses. Medicare is not bound by the release with respect to an allocation for future medical expenses. If Medicare determines that the injured party will have future medical expenses then a Medicare Set-Aside Arrangement is expected.
When is an MSA Required?
While the MSPA clearly establishes a requirement that Medicare’s interest be considered in liability cases, there are no rules or regulations under the MSPA. While there are no rules in Worker’s Compensation (WC) cases either, CMS has issued memos advising the establishment of MSA’s in WC cases, but there are no requirements. Obtaining CMS’ approval of a proposed MSA does provide assurance to the parties that the set aside amount is acceptable to CMS. The prudent course of action might be to follow those in liability cases. While an MSA is always required, it is not necessary to submit an MSA proposal to CMS:
• the settlement exceeds $25,000 and the claimant is currently
eligible for Medicare; or
• the settlement is for more than $250,000 and the plaintiff can
reasonably be expected to become eligible for Medicaid
within 30 months.
If an individual is in the process of filing, appealing or re-filing for SSDI, that person is included in the 30-month window notwithstanding the fact that a previous application may have been denied and have not been appealed. An individual who is 62 years and 6 months of age could be eligible within 30 months, and an individual suffering from End-Stage Renal Disease (ESRD), but who does not yet qualify for Medicare based on ESRD, would also be considered a person having a “reasonable expectation” of Medicare enrollment within 30 months.
If it is absolutely clear that there will be no future medicals as a result of the injury subject to the litigation, then no MSA is required.
It is important to note that a beneficiary may not waive his right to future Medicare in order to avoid establishing an MSA.
In determining whether the $250,000 threshold is met, if there is a structured settlement the value of the structure rather than the cost is used. Also, in determining whether the $250,000 threshold is met, past medicals, future medicals, attorney’s fees and costs are included.
What is the Risk to the Personal Injury Attorney for Failing to Establish an MSA?
s Double Damages. Plaintiff’s attorneys who fail Medicare’s interest are potentially responsible for double damages. CMS is authorized to bring an action “against any entity” including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received any portion of a third party payment directly or indirectly, if those third party funds – rather than Medicare – should have been paid for the injury-related medical expenses.
0.
s Potential Malpractice. In addition, there is a malpractice risk. Plaintiffs who have not established an MSA and who file future claims for Medicare may have those claims denied. CMS has taken the position that where no MSA has been established, the entire settlement can be considered for future medicals and Medicare will not pay the plaintiff’s medical bills until an amount equal to the entire settlement has been spent for the plaintiff’s medical care. Each personal injury attorney must decide how much risk he or she is willing to accept in order to avoid establishing an MSA.
How is the Set-Aside Amount Determined?
There are companies who will calculate the set-aside amount. The amount is determined by evaluating past medical treatment, current medical condition, and the probability of future medical needs, as well as other factors. Future medicals are limited only to those expenses that Medicare would pay that are related to the injury. Medicare does not pay all medical expenses. There are some services that are not covered; there are deductibles, co-payments and maximums per spell of illness. The MSA need not contain monies for those services that would not be covered by Medicare. In calculating the set-aside amount the plaintiff’s life expectancy is considered. It is often useful to obtain a rated age as a part of this process. The rated age shows that a person’s actual life expectancy may be considerably shorter than their actuarially life expectancy, so that less money is required to be set aside.
Once a Medicare Set-Aside amount is calculated in a worker’s compensation case, it is submitted to Medicare for approval. While CMS maintains that a set-aside is necessary in liability cases, there is no mechanism for approval at this time.
CMS is not bound by an allocation for future medicals made by the parties in the settlement agreement. CMS may disregard any such allocation and make its own calculation as to the cost of future medicals.
The cost of future prescription drugs must be considered in calculating the set-aside amount.
Administering the MSA.
There are four possibilities for administering an MSA:
s Self-Administered Accounts. These accounts are usually small accounts and are administered by the claimant. No formal agreement is necessary. The claimant must follow the same accounting rules as a professional administrator, but it is likely that most claimants will not comply, but the liability of the personal injury lawyer should terminate when the MSA is established.
s Custodial Account. A larger account is usually administered by a custodian. These are professional organizations that have expertise in medical claims administration. They charge a fee and are recommended where financially justified.
s Medicare Set-Aside Trusts. A Medicare Set-Aside Trust is a formal trust with a trustee. These are usually used for large accounts. They are also used in connection with Special Needs Trusts if the plaintiff is receiving means-tested public benefits such as SSI, Medicaid, Food Stamps, Veterans Benefits or Section 8 Housing.
s Pooled Trusts. In smaller cases where the plaintiff is receiving any of these means-tested public benefits, a Pooled Trust may be considered. A Pooled Trust is operated by a non-profit. The plaintiff’s money is pooled with other persons’ money for investment purposes, but each member has an individual sub-account. Whenever a trust or a Pooled Trust is used, a sub-trust is established for the Medicare Set-Aside funds.
Chart
No Public Benefits Public Benefits
Small Settlement
Self Administered
Pooled Trust
Large Settlement
Custodial Agreement/ Professional Administrator
Stand Alone Special Needs Trust
Note: As used above the term “Public Benefits” applies to only means tested public benefits where there are financial eligibility rules pertaining to income and/or assets of the beneficiary and/or his or her family or household. These benefits typically include SSI, Medicaid, Veteran’s Benefits, Section 8 Housing and Food Stamps. For purposes of the chart, public benefits does not only include SSDI and Medicare, but a MSA will always be required if the plaintiff is receiving or will receive these benefits.
How does a Structured Settlement fit into an MSA?
s Seed Money. An MSA must include seed money with is a cash amount equal to the amount of monies calculated to cover the first surgery procedure and/or replacement and two years of annual payments.
0.
s Structured Settlement. If there is a sizable MSA, the balance is usually funded with a structured settlement. The structured settlement is usually payable in annual installments. The remainder of the Set-Aside is divided by the remainder of the claimant’s life expectancy and the structured pays annual deposits into the MSA based on a “anniversary date” which cannot be more than one year after the settlement date. If the funds paid into the MSA from the structured settlement are exhausted before the next “anniversary date” Medicare pays until such time as the next structured settlement payment is received
0.
Recommendations for Personal Injury Attorneys.
• Recommendations for Personal Injury Attorneys wanting to protect themselves against the risk of future claims by Medicare or malpractice claims by clients are as follows:
0.
• Since no rules currently exist for third party liability cases,
follow the WC rules with respect to MSA.
• Arrange for the calculation of a Medicare Set-Aside amount.
• Submit the proposal to CMS. It is unlikely that CMS will respond,
but the personal injury attorney should be off the hook so far as his
or her obligation to consider Medicare’s interests.
• Establish an MSA and fund it with the amount calculated.
• Advise the plaintiff in writing with respect to the rules.
• Advise the client in writing of the potential for the denial of future
medical care coverage for the injury subject to the litigation.
• Paper your file.
__________________________________________
42 U.S.C.§1395y(b)(2); 42 CFR §46(d)(d)
2 42 U.S.C. §1395y(b)(2)(A)(ii)
3 42 U.S.C.§1395y(b)(2)(B)
4 42 U.S. C. 1305, Medicare, Medicaid and SCHIP Extension Act of 2007
5 Sally Stalcup, Region 6 MSP Regional coordinator
6 42 U.S.C. §1395y(b)(2)(B)(ii); 42 CFR §411.24
7 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001; Medicare Secondary Payer – Worker’s Compensation (WC) frequently Asked Questions; (undated) Thomas L. Grissom; Medicare Secondary Payer-Worker’s Compensation (WC) information May 7, 2004; Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions, October 15, 2004; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions July 11, 2005; Part D and Worker’s Compensation Medicare Set-Aside Arrangements questions and answers, December 30, 2005; Worker’s Compensation Medicare Set-Aside Arrangements (WCMSAs) and revision of the Low Dollar Threshold for Medicare beneficiaries, October 25, 2006; Questions and Answers for Part D and Worker’s Compensation Medicare-Set Aside Arrangements, July 24, 2006
8 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001
9 Medicare Secondary Payer-Worker’s Compensation (WC) frequently asked questions (2)
10 Medicare Secondary Payer (MSP)- Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003
11 42 U.S.C. 1395y(b)(3); 42 CFR§411.24(c)(2)
12 Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions A-5, October 15, 2004
13 Id
0.
__________________________________________
Quick Screen
Medicare Set-Aside Arrangements
Is the client receiving SSI or SSD at the time of settlement? □ Yes □ No
Has the client applied for SSDI, or has client applied and been denied but anticipates appealing the decision? □ Yes □ No
Is client in the process of appealing and/or refilling for SSDI benefits? □ Yes □ No
Is client age 62 years 6 months of age or older at the time of settlement □ Yes □ No
Does client suffer from end stage renal disease but does not yet qualify for Medicare based on ESRD? □ Yes □ No
Is the settlement in excess of $250,000? □ Yes □ No
Note: If client is already receiving Medicare, the threshold is $25,000.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
Tuesday, April 28, 2009 5:30 PM to 9:30 PM
Pines Manor, Edison
Featuring:
THOMAS D. BEGLEY, JR., ESQ.,
2004 Clapp Laureate
Certified as an Elder Law Attorney by the ABA Accredited National Elder Law Foundation
Past Chair, NJSBA Elder & Disability Law Section
Author: "How to Develop and Manage a Successful Trusts & Estates/Elder Law
Practice" (NJICLE)
Co-Author: "Profitable Law Firm Management" (NJICLE)
Begley & Bookbinder, PC (Moorestown)
KENNETH A. VERCAMMEN, ESQ.
Chair, ABA General Practice Division Elder Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates (Edison)
KATHLEEN A. SHERIDAN, ESQ.
Law Offices of Kathleen A. Sheridan, PC (Ship Bottom)
MARTIN A. SPIGNER, ESQ.
M. Spigner, PC (Cranbury)
Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice. Register today!
Everything you need to know about elder law & estate administration including: • Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client? • Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms • Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms • Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters • Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists • Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules …and more
Tuition fees Reg. Fee Reg. Type
General Tuition (REG) $159.00 REG
NJICLE Season Tickets (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS*) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $135.00 YL
Paralegals (PAR) $109.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JU
NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION
Audio packages are available 2 weeks after the last date of the seminar.
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009 2:00pm -3:30pm
ABA Annual meeting Chicago
Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Joan Burda, Esq.
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Charles Sabatino, director of the ABA's Commission on Law & Aging
Parag Patel, Esq. Iselin, NJ
Elder Law program Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.
_______________________
WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Who We Are- ABA GP Solo ELDER LAW COMMITTEE
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
Testing the complete lawyer
Being a lawyer is more than "thinking like a lawyer." So much more.The LSAT at best tests certain aspects of "thinking like a lawyer."
So why not devise a test to assess the rest of what it means to think and act like a lawyer, what it really means to be a lawyer?
Sheldon Zedeck and Marjorie M. Shultz are trying to do just that:
To find out what applicant traits should figure in admissions decisions at law schools, [Zedeck and Shultz] coordinated individual interviews, focus groups and ultimately a survey of judges, law school professors, law firm clients and hundreds of graduates of Berkeley’s law school.It will be interesting to see what happens when Zedeck and Shultz apply their test over time and to a deeper pool than Berkeley alumni.
They asked, among other things, “If you were looking for a lawyer for an important matter for yourself, what qualities would you most look for? What kind of lawyer do you want to teach or be?”
The survey produced a list of 26 characteristics, or “effectiveness factors,” like the ability to write, manage stress, listen, research the law and solve problems. The professors then collected examples from the Berkeley alumni of specific behavior by lawyers that were considered more or less effective.
Using the examples, Professor Shultz and Professor Zedeck developed a test that could be administered to law school applicants to measure their raw lawyerly talent.
Instead of focusing on analytic ability, the new test includes questions about how to respond to hypothetical situations. For example, it might describe a company with a policy requiring immediate firing of any employee who lied on an application, then ask what a test taker would do upon discovering that a top-performing employee had omitted something on an application.
Dine and Dump
Advice columnist Meredith Goldstein of the Boston Globe had a great column this past week on "finding the perfect dumping grounds," exploring the art of picking the right restaurant in which to break up with your partner:
Finding the perfect dumping grounds - The Boston Globe.
Taking one's spouse to a nice restaurant and breaking the news over dinner is probably a better way to break up than completely surprising your spouse by sending a constable to serve him or her with divorce papers. Still, I don't know. There are some obvious, potential problems, as noted in the article. Indeed, there are many ways to break up, and probably none is easy.
Apparently Zagat has already published guides to the best restaurant dumping grounds in New York and Los Angeles. If you can't wait for Zagat to get around to publishing its guide for Boston, for now you'll have to read Meredith Goldstein's column for her ideas on the best dumping grounds here in Beantown. What would the criteria be, you wonder? What would make a restaurant a good place to dump your partner?
Well, one of the more interesting criteria, mentioned by the Zagat people and in the Boston Globe column, is the accessibility of exits. You've heard of the phrase "Dine and Dash"? If this style of dumping one's partner really catches on, maybe we will need even more the phrase "Dine and Dump" or even "Dine and Dump and Dash."
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Breaking away
It's the thirtieth anniversary of one of my all-time favorite movies, Breaking Away. As this musical tribute suggests, it's an extremely sentimental movie about growing up, intergenerational conflict, class warfare, and an underdog who (in the parlance of European pop music) ultimately gets everything but the girl — and doesn't crash and burn over that outcome. F. Scott Fitzgerald, eat your heart out. Even though I now run the asylum after having served several unhappy sentences in American higher education, and even though the pickup line par excellence has shifted from Posso ofrirti qualcosa da bere, signorina? to Σ'αγαπώ πολύ, κορίτσι μού, I still love Breaking Away. Always did, always will.
Breaking Away also unlocks a puzzle that has long tormented MoneyLaw: how do we know we're winning? Dave Hoffman recently touched this nerve in his response to my post on Shane Battier:
The problem with the Moneylaw approach to faculty rewards is that it has failed to fully define what universities are designed to maximize. That's not an easy question to answer, obviously, and I don't think there's just one approach. For a few law schools, like Florida-Coastal, that answer is obvious: to make money. For others, law school's function as a profit center within a larger university umbrella. . . . But for most law schools, the ultimate criterion of faculty success is just unclear. Giving students a return on their investment is much of it, but it's not the whole story, since tuition doesn't pay nearly all the bills. We've responsibilities to alumni donors, to the State, to the Bar, etc. Shane Battier just needs to help his team win games. We don't know what winning is. We don't know what game we're playing. And who's our team again?It truly is wonderful when you realize that the movement you need is already on your shoulder. The answer to Dave Hoffman's challenge, and to MoneyLaw's conundrum, lies in this classic scene from Breaking Away:
Read the rest of this post . . . .
In a MoneyLaw world, law schools win if their students — at graduation, five years out, whenever — don't ask for a refund. Here's the thought experiment that explains what I mean: Imagine that every law student, upon matriculation, gets a magic button. At any moment, before and after graduation, if a student wishes that she or he had done anything but go to law school, that student can mash the magic button and thereby get a refund. Of course, the legal education and everything it confers — the degree, the subsequent bar passage (if any), the eventual career (again, if any) — will vaporize in that instant.
For every student who would elect this option, MoneyLaw regards this choice as a devastating loss for the school in question. This is what it means to "win" in higher education: running your school so that your students and graduates never regret having set foot on your campus.
In concrete, operational terms, this means that specific law school policies (and corresponding MoneyLaw metrics) are valid to the extent that they advance the ultimate goal of lifelong alumni satisfaction. From this point of view, U.S. News rankings, SSRN downloads, Westlaw hits, and subjective evaluations of law porn all fall short of the gauges of satisfaction in the Law School Survey of Student Engagement. And a MoneyLaw dean would do well to track how effectively she or he is persuading graduates to remain involved, on terms akin to those of the baseball concept of value over replacement player, or VORP.
And with that, I need to sign off so that I can head out for alumni meetings along the Eastern seaboard. Arrivederci amici.
Is There A Dog There?
The tail wagging the dog idea has made it into Moneylaw on a number of occasions. I am beginning to wonder if there is a dog still there. USN&WR rankings determine what law schools do ranging from admitting transfer students, lowering class size, and employing their students, at least temporarily.SSRN has created the cult of the download. Narrow lists so everyone is on a top ten or gerrymandering a category so you can create your own top ten. Rankings of professors and schools are generated on the basis of downloads which you can manipulate yourself.
Teaching evaluations have result in altering teaching styles not in the direction of ensuring that today's students are even better prepared than their predecessors but so the teacher can score a higher number. Some faculty obsess over a tenth of a point here and there. I've had colleagues freely admit that they decided to be funnier to raise evaluations.
Foreign programs have gone from opportunities for students to products that are sold to them oft times in hopes that the professor will get to go and not because there is some gaping hole in educational opportunities for students.
The writing requirement which I suppose at one time was instituted in hopes that people with freedom to study law would "discover" things much like scientists. has largely been diluted to a hurdle, almost a form of hazing, in order receive tenure. 7000 plus articles a year, few of which are read and even fewer of which are written because of inspiration. Instead there is a great deal of casting about -- what can I write about now? Does this edited book of readings count even if Elgar says they will do it for me? Is it refereed if someone asked me to do it for a symposium?
Grades are inflated in part because, as it has been expressed at my school, 1) We have to give high grades so our students can compete. 2) It hurts the students' feelings to get a C (and increasingly a B). Students ask why not raise grades even more so they can be even more competitive. Maybe they have a point.
If you peel away all of the tails, would we find a dog? I assume this means 1) teachers who do their best to produce students to whom they would entrust the fates of future clients -- even their parents- regardless of the impact on evaluations, 2) writing only when you feel a pressing need to express something that may actually make a difference, 3) honestly evaluating every program to determine what it produces for the students and other stakeholders, 4) admitting students (at least to a state school) so the subsidization is fairly given to those with promise regardless of the USN&WR-affecting LSAT.
My sense is that we would find a dog. My fear is that it may be a chihuahua.
Nigerian Email Scam Targets Lawyers & Their Client Trust Accounts
Law.com reports that a new variation of the standard so-called Nigerian, 419, or advance fee email scam has been targeting lawyers. Phony clients allegedly seeking to collect funds from stateside customers contact a U.S. attorney seeking collections assistance. As soon as the attorney has accepted the representation, the customer immediately agrees to pay (how often does that happen!?), often in two partial payments to be timed one right after another. The check then received will usually be a forged cashier's check, payable to the attorney, and from which the attorney is told to deduct his fee (which the client may not be too concerned about the amount of, another red flag).
The author suggests that attorneys avoid becoming victims by:
June 2009 update: The State Bar of California has issued a fraud alert to California attorneys on this topic:
The author suggests that attorneys avoid becoming victims by:
- Researching clients using Google and other sources before accepting the matter
- Contacting any attorney or other party that has supposedly referred the matter to the lawyer
- Accepting overseas, especially Chinese, clients only if their story makes logical sense and upon the payment of a retainer
- Responding to any initial inquiries not known to be fraudulent, but which are suspected to be, making sure to point out clearly that an advance deposit against fees/costs is always required
- Taking any suspected fraudulent check to the issuing bank for analysis - they will often be able to identify small details that make the forgery obvious
- If a large payment is received upon behalf of a "client", even if by a cashier's check, holding the funds at least two weeks for clearance before disbursing the funds
Dear ,Another example:
Request for Legal assistance
This is an official request for legal representation on behalf of XXX Co.Ltd.
We are a textile company with principal business in garment manufacturing and trading.
We are presently incapacitated due to international legal boundaries to exert pressure on our delinquent customers and we request for your services accordingly. We got your contact information from the Online Lawyers Directory as a result of our search for a reliable firm or individual to provide legal services as requested.
After a careful review of your profile as well as your qualification and experience, we are of the opinion that you are capable and qualified to provide the legal services as requested.
On behalf of XXX Co.Ltd, Please accept my sincerest appreciation in advance for your willingness to render your services as we look forward to your prompt response to our request.
Thank you.
Attention Counsel,
XXX CO., LTD. is a manufacturing company with its head office in Japan, and branches all over Asia continent. The management of XXX CO., LTD. requires your legal representation for our North American delinquent customers. We are looking for a reputable attorney to represent us in North America in order for us to recover monies due to our organization by overseas customers, and as well follow up with these accounts. In order to achieve these objectives a good and reputable law firm will be required to handle this service.
We understand that a proper Attorney client agreement must be entered into by both parties.
Your consideration of our request is highly anticipated, and we look forward to your prompt response.
Yours Truly,
XXX
June 2009 update: The State Bar of California has issued a fraud alert to California attorneys on this topic:
STATE BAR ISSUES FRAUD ALERT TO CALIFORNIA ATTORNEYS
MEDIA CONTACT: Diane Curtis 415-538-2028 diane.curtis@calbar.ca.gov
San Francisco, May 29, 2009 —
The State Bar of California today issued a warning to attorneys to beware of international Internet scams purporting to hire U.S. lawyers to collect large debts.
Despite efforts to publicize the scams over the last year, Bank of America Vice President Blossom Dunng said attorneys continue to be targeted. In four separate cases since the start of the year, Bank of America attorney customers lost hundreds of thousands of dollars from counterfeit checks.
"As bank officials say, 'Know who you're doing business with,'" said State Bar President Holly Fujie. "If you deposit a check for $500,000, you had better have a clear idea where that money is coming from."
The scammers often use the names of real companies to gain credibility and use e-mail addresses that seem to have a connection to the companies. The State Bar itself has received such bogus solicitations:
"This is an official requisition for your legal consultation services on behalf of _________," one e-mail sent to the bar said. "We are presently incapacitated due to international legal boundaries to exert pressure on our delinquent customers in USA and we request your services accordingly."
"We got your contact information from the state of USA lawyers Directory as a result of our search for a reliable firm or individual to provide legal services as requested. After a careful review of your profile as well as your qualification and experience, we are of the opinion that your [sic] are capable and qualified to provide the legal services as requested."
If an attorney responds, the process begins and at some point the attorney receives a legitimate-looking check - sometimes even what appears to be a cashier's check - for the supposed debt. The attorney is asked to subtract his retainer and then send a check for the rest to the client.
In 2006, one attorney had a $2 million loss. This year, Dunng said, checks from the attorneys to the phantom clients range from $75,000 to half a million dollars.
Dunng, treasury services manager who handles all 8,800 Bank of America Client Trust Accounts, said the customer, not the bank, is responsible because it is common practice for the bank to make deposited funds immediately available to good bank customers.
"Attorneys should be the last people to fall for these scams," said Fujie. "Be careful!"
Scott Wilson, FBI special agent in Cleveland, says scams change so quickly that it's very difficult to keep up with them. Still, law firms that have been victimized or contacted as part of what looks like a fraud scheme should report the incidents. If a law firm has lost money in a fraud scheme, contact the local FBI office, says Wilson. If firms or lawyers have not lost money but believe they have been targeted by scammers, they should make a report to the Internet Crime Complaint Center at www.ic3.gov.
To view a story in the California Bar Journal about attorney victims of Internet scams, go to www.calbar.ca.gov, and check the California Bar Journal archives for July 2008.
Founded in 1927 by the state legislature, the State Bar of California is an administrative arm of the California Supreme Court, serving the public and seeking to improve the justice system for more than 80 years. All lawyers practicing law in California must be members of the State Bar. By May 2009, membership reached more than 222,000.
Steady stroke
MoneyLaw likes sports, and it likes statistical analysis. I also think that lessons learned in athletic pursuits can pay dividends in education, in law, and in life.
All of which makes this news item all the more noteworthy, especially as regular season play comes to a close in college basketball. Throughout the last half century in basketball, "one thing has remained remarkably constant: the rate at which players make free throws." Read all about it in The Cardinal Lawyer.
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