SCOTUS Rules State Medicaid Programs Can Recoup a Larger Share of Personal Injury Settlements

Suppose you were injured due to another person’s negligence and your medical expenses were paid in whole or part by Medicaid. In that case, the state has a legal right to recover the funds it spends on your care from a personal injury settlement or award. In a case involving a Florida teen catastrophically injured more than a decade ago, the United States Supreme Court has ruled that state Medicaid programs can recover the amounts paid from settlement funds reserved for future medical expenses.

In 2008, a truck struck 13-year-old Gianinna Gallardo, leaving her in a persistent vegetative state. The state’s Medicaid agency provided $862,688.77 in medical payments on Gallardo’s behalf. Her parents sued the parties responsible, and the case eventually settled for $800,000, of which about $35,000 represented payment for past medical expenses. The settlement also included funds for Gallardo’s future medical expenses, lost wages, and other damages.

The state Medicaid agency claimed it was entitled to more than $300,000 in medical payments from this settlement, including money specifically allocated for Gianinna’s future medical expenses.

Gianinna’s parents then sued the agency in federal court, arguing that Florida should be able to recover monies only from that portion of the settlement allocated for past medical expenses in accord with a prior Supreme Court ruling.

A U.S. District Court ruled for Gianinna, and the Medicaid agency appealed. The Court of Appeals reversed the lower court’s decision. Ultimately, the Supreme Court agreed to hear the case

In a 7-2 decision, the Supreme Court agreed that Florida could recover from the proceeds allocated to Gianinna’s past and future medical care. Justice Clarence Thomas, who wrote the majority opinion, noted that Medicaid law “distinguishes only between medical and non-medical care, not between past (paid) medical care payments and future (un-paid) medical care payments.”

Justices Sonia Sotomayor and Stephen Breyer dissented. They argued that accepting Medicaid shouldn’t leave a beneficiary indebted to the state for future care that may or may not be necessary.

If you or a family member are receiving care through Medicaid and expect a settlement, it would be wise to contact our office and learn if Medicaid will zero in on you or your estate for past, present, and future medical expenses.

Top Six Reasons to Delay Having an Estate Plan

Despite two years of COVID, two-thirds of Americans still lack an estate plan

It doesn’t make sense but is true. While we’ve never so closely known life’s fragility and know the importance of having a will, trust, or Power of Attorney, only a third of Americans have actually sat down with an estate planning attorney to create their estate plan. Many people equate estate planning with estate tax planning. Nothing can be further from the truth. Estate planning, simply stated, is making sure your assets end up with those you want to receive them

Why is this still so difficult for the average person, who stands to benefit both during and after their lifetime and whose family will be far better protected if they have an estate plan?

Mortality. Who wants to think about dying or what their family will do after they are gone? No one. But not addressing your estate plan could leave your family in a world of trouble. Estate taxes are the least of it. What if your estranged sister and brother-in-law inherit everything you own? Without a valid will, clearly stating how you want your assets distributed, it could happen.

We don’t have enough assets to need a will. People of modest means need a will, sometimes even more than people with significant wealth. You have assets worth protecting if you own a home, a retirement account, and a bank account. Without a will, those assets will pass according to the laws of your state. Remember, wealth is relative. Regardless of the value of your estate, preserving assets is the goal.

It’s expensive. Not having a will is far more costly. Without a will, administering your estate can cost more and is more closely supervised by the courts than if you had a will. An administrator’s powers are much more limited when there is no will than the powers of an executor under a will. The court will likely require an estate administrator to post a surety bond to protect the estate heirs. A bond can cost thousands of dollars per year until the estate is settled. When there is a will, the settlement of an estate is easier. If there is no will, a court proceeding known as an Accounting is required.

I don’t have time. Having a will made is something you make time for, just as you make time to see family and enjoy your favorite streaming shows.

Creating a comprehensive estate plan, including a Power of Attorney, Health Care Proxy, HIPAA Release Form, and a Living Will, helps your loved ones avoid arguing about your wishes if a serious medical emergency occurs. It will also save the time and cost of your loved ones from going to court to be named your guardian to act in your best interest. Your healthcare providers can decide based on your expressed wishes, but only if you have completed the proper healthcare documents. Otherwise, your adult children or healthcare providers will determine your end-of-life care; and it may not be the decision you want.

It’s too overwhelming. An estate planning attorney will walk you through the information you need to gather and help guide you and your loved ones through the process. They’ll tell you what you need and why. You have only to follow their instructions.

I have so many questions. We have answers. We are highly experienced estate planning attorneys and have worked with people like you to help them put their wishes into their estate plans and prepare for the future.

Medicare Open Enrollment

Medicare Open Enrollment Season and Our Free Medicare Consultations

Open enrollment for Medicare Advantage plans and Part D prescription coverage begins on October 15 and ends on December 7, 2020. When it’s over, whatever decisions you may have made will be set in stone for a full calendar year.

Mistakes are costly, especially for people who require multiple prescriptions. Also, if you do not enroll in Medicare when you are eligible, there is a 10% increase in premiums for every year you failed to enroll (i.e., if you enroll in Part B or D three years late, your annual premium is increased by 30%) for the rest of your life.

Among changes you can make include switching from original Medicare, Part A for hospital insurance and Part B for medical coverage to a private Medicare Advantage plan. You can also change from one Medicare Advantage plan to a different one. And you can join a prescription drug plan under Medicare Part D.

It’s very tempting to shrug your shoulders and go with the same plan you had last year. Don’t. Plan changes, networks change, doctor’s participation in networks change. The plan you had last year might not work this year.

Medicare is challenging to navigate. Over the years, we have made a point of speaking with clients about their Medicare plan when we meet during the enrollment season. In recent years, we’ve noted that it has become even more complicated. This especially true of Medicare Part D. Currently, there are over thirty different Part D plans available on Long Island.

The Center for Medicare and Medicaid Service, the federal agency which runs the programs, introduced the Medicare Plan Finder to assist seniors in August 2019. Unfortunately, the Finder had numerous technical glitches and incorrect information; many seniors could not access the Finder. It proved a hardship to seniors. There were reports of Inflated costs and higher premiums. Complaints came from Medicare enrollees, consumer advocates, U.S. Senators, state insurance commissioners, and even the insurance brokers who sell these plans.

As a public service to assist Seniors in making an informed decision about their Medicare coverage, our office is offering complimentary consultations by phone, video conference, or in office.

We are attorneys. We are not an insurance agency or broker and sell no product. Our review is impartial. We want to help seniors avoid mistakes. Medicare is confusing. We are pleased to help.

A few steps to take, as described by CNBC in the article “Medicare open enrollment is coming up. Three steps to save money this fall.”

1 – Know your plan. Look for a piece of mail from Medicare, “Annual Notice of Change.” This letter will have information about changes to coverage and costs, including premiums, deductibles, and co-pays. If you do not participate in Medicare, you will not receive the letter.

2 – Gather up all of your medical expenses from the last year and a list of the doctors you see regularly and the medications you take. If you use a single pharmacy, they will gladly give you a printed list. You’ll need that to figure out which one will be best for you in 2021.

3 – Your modified adjusted gross income (“MAGI”) from two years ago determines your premiums for Medicare Part B. MAGI includes capital gains, Social Security, and required minimum distributions from retirement funds and 401(k) plans. Your 2019 income determines the premium you’ll pay in 2021. It’s too late to do much about that now, but if you can curtail income in 2020, you may reduce Medicare costs.

We invite you to call our office and request a free consultation to discuss your Medicare coverage. Call our office at 516-307-1236.

 

Documents in New York State May Now Be Signed Remotely – Call for an Appointment

The Law Firm of Stephen J. Silverberg is continuing to provide our clients and their families with all the services they have come to rely on us for. We are using telephone, email and video services to stay in touch with clients and members of our team.

Now that the Governor of New York has issued Executive Order 202.7, we are able to help clients have documents notarized remotely, as long as certain procedures are followed.

If you were in the midst of having Power of Attorney, Deeds, Trusts or other documents prepared and were waiting to have them notarized, please call our office and we can set up a video conference to ensure that they are completed in a timely manner.

Please note that this is something that can only be done between now and April 18, 2020, so call our office at 516-307-1236 to make sure you don’t miss this deadline.

Our office and you will need to be able to interact during the call and you or the person who is signing the document must be physically located in New York State.

Please call us at 516-307-1236 if you have any questions. We are continuing to operate our practice and serve our clients. Be well, and we look forward to hearing from you.

Senior man shoveling snow in front of split level house

New York and Florida Snowbirds – Estate Plans Are Not One-State-Fits-All

My snowbird friends and neighbors are no doubt enjoying their southern Florida break even more this week, as Long Island remains in a deep freeze. But there’s more that separates the two states than temperature. I represent clients who live in New York, others who live in Florida and snowbirds who travel back and forth between the two states. I regularly advise clients who want to be Florida residents on the procedure they need to follow.

Many clients believe that if they are out of New York State for at least 183 days a year, they can become Florida residents. Unfortunately, it is not that simple. With the recent change to the estate and income tax laws, the New York State Department of Taxation and Finance has established a separate department to investigate New York residents who try to change their residency to Florida. Buying a round-trip airline ticket in October to return in April will make it virtually impossible to claim Florida residence, even if you do spend over 183 days in Florida.

The same estate plan that may work well for a couple during the portion of the year they live in New York may become a problem if they own a second home in Florida.

Under the laws of every state, real property is governed by the law of the state in which it is located. While the estate of a New York resident is probated in New York, if the decedent owns a home in Florida and the property title is in her name, her executor will need to file a secondary probate proceeding in Florida. This is known as an ancillary proceeding and is governed by Florida law. Over the years, I have had to bring numerous ancillary probates in Florida because of improper planning.

There are strategies to avoid this problem.

One is to own the Florida property with another person (usually a spouse) as tenants with rights of survivorship. This means that when one owner dies, the remaining owner automatically becomes the sole owner. However, if the sole owner is a New York resident, upon their death, an ancillary probate is necessary.

Another strategy is to transfer the residence to a revocable trust. This can be done whether the house is owned by two people or owned by a single person. This is a clean transaction and usually there are no estate or income tax implications.

There are pros and cons to these options, which need to be addressed.

Another issue facing snowbirds: ancillary documents, such as a Durable Power of Attorney, Living Will and Health Care Proxy. These documents are usually state-specific. In the past, Florida refused to recognize out-of-state documents. Over the past few years, the situation has improved. However, I always recommend snowbirds have both New York State and Florida documents.

If it sounds like a lot of trouble and expense, consider what would happen if you were in Florida for a few months and your or your spouse became sick. Without having an up-to-date Living Will for Florida, the doctors will decide what kind of end-of-life care your loved one would receive, even if you know it differs from what you and your spouse had always talked about. It’s far easier to have these documents prepared correctly and have them accessible than to have to fight with doctors and hospitals during a very difficult time.

If you are enjoying the warmth of Florida but are concerned about your estate plan, please call the office at 516-307-1236 to schedule an appointment by video, by phone, or when you return to New York.