Four New Things

Michigan Launches ABLE Accounts

Michigan will unveil details about it’s ABLE program November 1. ABLE is the Achieving Better Life Experience  ACT that each State can implement, and that allows for tax-free savings accounts to be established for persons with disabilities.  Click here for an update on the Michigan account, written by our own Chris Smith (who was instrumental in the drafting of the Michigan law).

New LTC Ombudsman

As previously discussed, the State Long Term Care Ombudsman has relocated from inside State government to a legal services agency, the Michigan Advocacy Program; and long time ombudsman Sarah Slocum is retiring. The Michigan Advocacy Program has announced that they have hired Salli Pung as the new State Ombudsman.

Ms. Pung has previously acted as the state’s Nursing Facility Closure Coordinator.  Ms. Pung. has also served as the Program Manager in the MI Health Link program. In addition, Ms. Pung  was formerly a Senior Program Manager at the Center for Long Term Care at the Michigan Public Health Institute and the Director of Education at the non-profit Michigan Association of Homes and Services for the Aging. .

New DOL Rules Establish Fiduciary Duties

The Federal Department of Labor has issues new regulations designed to increase consumer protections in the context of obtaining financial advice with respect to their retirement funds. The critical change is the imposition of a “fiduciary” duty on the financial advising industry, which will require them to act in the consumer’s best interests.  These rules should dramatically alter the conduct of investment advisors who push clients into high commission products that are not necessarily in the client’s best interest.  As discussed on this blogsite before, the sale of high commission products (most notably, annuities) to older investors at chicken dinner seminars is one of the primary forms of financial exploitation that older adults have faced.  While this change only applies to retirement accounts, it is hoped that the change will disincentive such conduct across the board.  The Feds appear to be willing to take on the financial services industry in a manner that state lawmakers are not.  To read more about these changes, click here and here.

New Regulations re NH Rights

And more good news from the Feds in that the Centers for Medicare and Medicaid Services recently released new nursing home regulations designed to improve (provide more protections) in the discharge process. To read all 700 pages, click here.

I was fortunate to sit in on a presentation on this topic by Alison Hirschel, Director of the Michigan Elder Justice Initiative, my takeaways were:

  • The normal protections for discharge remain in place even when the resident has been sent to the hospital or pysch ward. That means, sending people to the psych ward isn’t a way for nursing homes to avoid the discharge rules.
  • Pre-dispute arbitration clauses are now banned.
  • Before a discharge is allowed, it must be demonstrated that the facility accepting the resident can meet their needs.

All good.

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A Bridge Too Far

bridge

When clients come in with really difficult problems, we all try to come up with creative solutions to get them out of the jam. But there is a line where “creative solutions” ends and “WTF give it a try, there’s nothing to lose” begins.  File this unreported COA case in that second bin.

Lyle was on Medicaid and had an exempt homestead. He only owned 50% of the home because well prior to applying for Medicaid, he had made his home joint with his child, Steven.  The language of the deed however clearly created a tenancy-in-common, meaning that Lyle and Steven each owned 50%.  Lyle died and the State of Michigan filed a claim for estate recovery against Lyle’s 50%, claiming nearly $50,000.

Attorney consulting on the estate recovery issue, decides that the solution is to go to court and have the deed “reformed” so that upon Lyle’s death, the entire ownership interest went to Steven, as would have been the case had the deed been drafted to provide for survivorship rights. The argument, which is probably exactly true, is that Lyle no doubt believed that the deed he signed meant that his house would go to Steven when he died.  The local judge went along with the reformation/strategy/scheme/charade, but, unsurprisingly, the Attorney General (representing the Department of Health and Human Services) appealed.  The Court of Appeals reverses the trial court, and holds that Lyle’s 50% is in his estate and subject to the estate recovery claim.

So, while I’m sure many of us can appreciate the “nothing to lose” thinking that went into the effort (and I suspect I would have given the idea some consideration), the fact is that the Attorney General is on a roll in Medicaid cases that go up to the appellate courts, and the result from the COA in this case shouldn’t be a surprise. If so inclined, read the case by clicking here.

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