The Supreme Court decision on the Affordable Care Act (ObamaCare) has tremendous implications for our practice, primarily negative, but is a huge boon to planning for persons with disabilities who have been shut out of the private insurance market in the past. Our law firm's loss is our clients' gains, and we couldn't be happier about it.
Depending on the November election, if Obama is re-elected, our clients with Special Needs Trusts will have the option to get off of public health programs, like Medicaid, and begin to pay for private health insurance from private health companies. For the reasons mentioned in the attached "Commentary", we believe there are substantial resons why this will be appealing to many. Whether, how and when to do it, however, will require a careful analysis of individual client's needs. Click the link below:
We're working on an appeal of another attorney's client's case that was lost at a Social Security Adminsitration Administrative Law Judge hearing. In reviewing the twelve page decision, we find the judge wrote the following (the typos are ALL his):
"Rather, when examined by Dr. Miguel xxxx, a psychiatrist at the request of the office of Dislikable Dtermiatnos, the claim was fully oriented and his speech was coherent and relevant. While he seemed anxious, he was attentive and denied any suicidal intention so r ideas. He also denied any homicidal ideas. There w err no signs of hallcuiotnsm delusions, bizarre behavior and his cognitive function was age aprpruioatpe. HTer ewe rno signs of hyperactive or attendtion difficulties. he knew the date, his socials ruvity number and his abstract thinking was intact. (Exhibit 9)."
Where to start. The Office of Disability Determinations, labeled not-so-inaccurately as the "office of Dislikable Dtermaitnos" is not even called that any more. And on, and on. It will make funny reading for the Appeals Council at least while we win this man's case.
The PCIP program is now cheaper - premiums have been reduced. PCIP is "Pre-existing Condition Insurance Program," a part of the Affordable Care Act (ObamaCare) that is currently available to persons who have been denied health insurance by private health insurance companies because of even minor health conditions. It also insures individuals with significant medical issues who have been without health insurance for six months or more. Some of our clilents who have funds are purchasing the PCIP health insurance (the same non-profit company that insures Congresspersons and U.S. Senators). The coverage is excellent. And the doctors are first class private physicians and hospitals - after all, Congress wrote this insurance for themselves and their families - Obama is just letting disabled persons and others previously excluded from purchasing insurance, to buy this insurance.
The new rates are significantly lower than what our law firm's group health insurance costs: for a person age 32, our office policy costs $525 per month; the PCIP plan cost is $176 per month; for an employee age 48, our plan costs us $755 per month, and the PCIP is only $270 for even better coverage.
The South Dakota Supreme Court decision attached actually pre-dates the U.S. Circuit Court of Appeals decision yesterday by a couple of weeks, but comes to the same conclusion, and further adds language that no state may avoid application of the federal rule:
“[¶ 44.] In a CMS memorandum from Gale P. Arden, Director of Disabled and Elderly Health Programs Group at the Center for Medicaid and State Operations in Baltimore, the transfer penalty and pooled trust statutes at issue in this case were clarified. See Memorandum from Gale P. Arden to Jay Gavens, Acting Assoc. Regional Adm'r, Div. of Medicaid and Children's Health (Apr. 14, 2008). In part, the memorandum stated:
Although a pooled trust may be established for beneficiaries of any age, funds placed in a pooled trust established for an individual age 65 or older may be subject to penalty as a transfer of assets for less than fair market value. When a person places funds in a trust, the person gives up ownership of the funds. Since the individual generally does not receive anything of comparable value in return, placing funds in a trust is usually a transfer for less than fair market value. The statute does provide an exception to imposing a transfer penalty for funds that are placed in a trust established for a disabled individual. However, only trusts established for a disabled individual 64 or younger are exempt from application of the transfer of assets penalty provisions ․
“Id. (emphasis added). CMS issued this memorandum because “it was brought to [its] attention that in many States ․ individuals age 65 or older are establishing pooled trusts, but the States may not be applying the transfer of assets penalty provisions as required by statute.” Id. The memorandum explain[ed] that “[i]f States are allowing individuals age 65 or older to establish pooled trusts without applying the transfer of assets provisions, they are not in compliance with the statute. [F]ederal statute requires the application of the transfer rules in this situation; it [is] not a decision for each State to make.”8 Id.”
The United State Circuit Court of Appeals for the Eight Circuit ruled today in Center v. Olson that persons age 65 and over cannot place funds in a pooled trust without serving a penalty first. This decision aligns Medicaid eligibility to the position that the Social Security Administration has taken with regard to maintaining SSI eligibility from the very first rules that come out in 1999.
To read the decision click HERE.
Although the decision will impact elders seeking to transfer costs of nursing homes to state Medicaid agencies, it does not prevent disabled persons under age 65 from retaining SSI Disability and SSI-related Medicaid. SSI payments switch automatically from "disabled" to "elderly" when the disabled individual has his or her 65th birthday. Assets deposited into an individual or pooled Special Needs Trust prior to age 65 continue to be exempt and will not prevent SSI and SSI-related Medicaid eligibility.
We remain available to attorneys and individuals seeking assistance in attaining SSI and Medicaid eligibility and understanding how this decision may or may not affect them. David@LillesandLaw.com (727) 330-7895.
When a person on SSI and Medicaid concludes a lawsuit for personal injuries, the Florida Medicaid agency swoops in and takes a big bite of the settlement or jury verdict to reimburse itself for the doctor and hospital bills caused by the person or corporation that hurt the disabled SSI/Medicaid recipient. This action is based on the Florida Medicaid Third Party Liability Act, Florida Statutes, Section 409.910.
A few years ago, the U. S. Supreme Court substantially and appropriately reduced what Medicaid can get. Click here for the Alhborn case. Florida Medicaid has resisted the Supreme Court's decision, but its position is now substantially weakened by a new U. S. Circuit Court of Appeals decision.
Based on a March 22nd U. S. Circuit Court of Appeals decision, more net settlement money is going to go to diasbled plaintiffs. The court's decision completely eviscerates the Florida Medicaid agency's defense to avoiding the reduction in the Medicaid lien based on the U.S. Supreme Court Ahlborn decision in 2006. This is going to allow substantially MORE money to go into plaintiff's Special Needs Trusts funded from Personal Injury/Medical Malpractice settlements or jury verdicts.Continue Reading...
It would be difficult to underestimate the positive impact of ObamaCare - the Affordable Care Act - on persons with disabilities. In the last two weeks, I have had three clients who were seeking a finding of "disabled" by the Social Security Administration because being found eligible for a monthly disability check would qualify them to receive health care. None of them are now that they can purchase health insurance.
The private profit-making health insurance industry will not take individuals with pre-existing health conditions. One client, a published author, had lost her health insurance when she developed Crohn's Disease. Although it was initially somewhat managed, painfully, by medications, she now needs to have many feet of necrotic intestinal tissue removed surgically from her stomach. Even though she has money, no insurance company would sell her health insurance. She has too much money for Medicaid eligibility. She will die without surgery.
Fortunately, the Obama health care plan contains the Pre-existing Condition Insurance Program (www.pcip.gov) which is a Republican idea put into Obama's Affordable Care Act. This allows her to purchase health insurance from the same private non-profit insurance company that insures U.S. Senators and Congressman. The coverage is affordable and immediate, and covers pre-existing conditions.
For more information, go to www.pcip.gov. The plan is described at www.pciplan.com and includes doctors, hospitals, medications, therapies, and everything that Congress would write for itself as a great insurance plan.
What this means, however, is that she will get her surgery, she is NOT filing a claim for SSA disability benefits, and she will not be on government-provided free Medicaid. With the surgery, we expect full recovery and she will return to work. Likewise for the other clients I recently interviewed who are dropping their claims for disability benefits and buying this health insurance instead.
More info here.
Each year the Social Security Administration announces in October if there will be any changes in the amount of payments of SSI and SSDI due to Cost of Living Adjustments. The new payments for SSI for 2012 are $698 to and individual, and $1048 to a married couple who are both on SSI. SSI is the welfare disability program for persons who were disabled since birth or who haven't paid sufficient minimum taxes to qualify.
SSA administers another program for persons with disabilities who did pay taxes. The payments for persons on Social Security Disability Insurance (SSDI) benefits are based on the amount of Social Security taxes paid during their working years.
The average benefit paid to a disabled worker, his spouse and one or more children in $1,892 per month.
See the full description of benefits see www.floridaspecialneedslaw.com/uploads/file/2012 Social Security NUMBERS.pdfre.
We recently were asked whether there were any special protections in federal or state public benefits law that would prevent Special Needs Trust assets and income distributions from them, from being counted in the disabled beneficiary's ability to pay alimony and child support to his wife and children.
Our response is found here.