Take Simple Steps Early to Protect Your Most Important Asset: The Family Home

On August 1, 2016, Ohio changed its Medicaid regulations regarding the treatment of the home. Federal and State Medicaid laws recognize that the family home is often times the largest asset of an individual, and Medicaid rules account for the reality that the family home is critical to the well-being of a spouse, a child, or other family members. Still, the changes in the law make protection of the house even more difficult and cumbersome. Now more than ever, early planning involving the relatively simple act of transferring the home into an irrevocable trust can ensure that the home will remain in the family for generations, regardless of the need for long-term care.

Medicaid defines the “Home” as any real property in which an individual has an ownership interest and is the individual’s principal place of residence. A “principal place of residence” is the home to which a person would intend to return if they were absent, like in the case of a stay in a rehab facility or a nursing home.

Generally, the family home that is considered the principal place of residence by an individual or a married couple is an excluded resource, regardless of value. However, the new rules state that the home is no longer considered to be the principal place of residence and will be countable if the individual does not intend to return home. However, the rule states that a “temporary” absence from the home does not affect the exclusion of the home as

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Good News for Families: Ohio Department of Medicaid Freezing Level of Care Waiver Disenrollments for Six Months

The Ohio Department of Medicaid has announced that, for six months, it will freeze disenrollments from three Ohio Medicaid Waiver programs regarding people it alleges no longer meet the “level of care” required to participate in the program. Why is this important?

In Ohio, Medicaid Waiver programs allow people with serious care needs to receive care outside of an institution. For instance, a person can stay in their home instead of a group home or nursing facility. This allows people to have her needs met in the community, usually at a cost savings to the state.

The three waiver programs with the freeze in disenrollments are: 1) the Ohio Home Care Waiver, 2) the Passport Waiver, and 3) the Assisted Living Waiver. The Ohio Home Care Waivers serves individuals with physical disabilities and unstable medical conditions who are under the age of 60.1 The Passport serves people 60 and older in a community setting such as their home or a loved one’s home.2 The Assisted Living Waiver provides funding to pay for an individual age 21 or over to live in an assisted living facility.3

Many families over the past year have received shocking news that a loved one who receives care in their home or in another setting, like an apartment, is being disenrolled from the Medicaid Waiver program.   Each year, to remain in the Waiver program, an individual has a new assessment. This year, across the state, families have received notices saying that their loved

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Caring for Caregivers

Many of my clients are caregivers. They are often caregiving for their children with disabilities or for their elderly parents. Others are more distant relatives who have taken it upon themselves to care for their loved one. Although their situations vary greatly, I see many recurring themes. I see strength, compassion, and selflessness on a grand scale. I see struggle, grief, and a unique optimism that finds joy in the little moments. I would like to touch on some of those struggles and offer some solutions and hope.

Society fails to recognize the great sacrifices made by caregivers across the country. Approximately 34.2 million people in the United States are caregivers for an adult age 50 or older, according to a 2015 AARP report. About half are caring for a parent. Some caregivers retired early, reduced their hours to part-time, or quit their jobs entirely to care for their loved one. Unpaid family caregivers contribute $470 billion worth of care to the US economy. What I personally find the most frustrating is that this sacrifice is assumed by society and often goes unthanked and unrecognized. Caregivers often feel a sense of duty to sacrifice their careers, their time, and often, their own health. This results in martyrdom of our most kind and deserving citizens. Not only should we as a society better appreciate and care for our caregivers, but we must support caregivers in caring for themselves.

There are a few different ways to get support as a caregiver.

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Can I Trust That Life or Death Decision?

For years, I have been helping people complete durable powers of attorney for healthcare, living wills, and do-not-resuscitate (DNR) orders. Collectively, these documents are called “advance directives.” They give directions about the care desired in advance of the need for that care. Advance directives allow you to select whether or not you want your healthcare providers to stop giving you “life-sustaining treatment” when you are in a “permanently unconscious state” or a “terminal condition.” Additionally, a living will and a DNR order allows you to tell healthcare providers and emergency medical service providers that you do not want to have CPR given to you in those cases when your heart has stopped beating (cardiac arrest).

Inevitably these questions come up during my discussions with people about their advanced directives: “What if my health care providers are making a mistake?” “How can someone stop a mistake from being made?” The answer is that there are checks and balances built into the laws that control how your advance directives operate. Let me explain.

First, I think it’s important to make sure you understand the meaning of some of the terms in your advance directives. A “permanently unconscious state” means, that to a reasonable degree of medical certainty, determined using reasonable medical standards, your doctor and one other doctor who has examined you, determine that you are irreversibly unaware of your environment and you have a total loss of cerebral functioning. In a permanently unconscious state you have no capacity for pain or

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New Guardianship Rules: What About Those Plans?

The Supreme Court adopted extensive amendments to the Guardianship Rules, which were effective June 1, 2015. Among these amendments is the requirement for all guardians to file an “Annual Plan” with the Probate Court. This new requirement has raised a number of questions:

  • What should be in these Annual Plans?
  • How is the Annual Plan different from the Guardian’s Report?
  • How is the Annual Plan different from service plans, such as Individual Service Plans developed by local boards of developmental disabilities?
  • What should be included in an Annual Plan?

What are the Rules?

Rule 66.08(G) states:

A guardian of a person shall file annually with the Probate Division of the Court of Common Pleas a Guardianship Plan as an addendum to the Guardian’s Report. A guardian of an estate may be required to file an annual guardianship plan with the Probate Division of the Court of Common Pleas. The Guardianship Plan shall state the guardian’s goals for meeting the ward’s personal and financial needs.

Several points are worth noting:

  • All guardians of person are required to file an annual plan;
  • Individual courts have discretion to require annual plans from guardians of estate;
  • The rule specifies that the guardian’s plans be filed annually and attached as an addendum to the guardian’s report (a different form – see below);
  • Filing a guardian’s report does not meet the requirement for a guardian’s plan.

How Does the Guardian’s Plan Differ from the Guardian’s Report?

The Guardian’s Plan

The Guardian’s Plan is only required by

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The ABLE Act: Current Developments

You have probably heard of the Achieving a Better Life Experience (ABLE) Act, enacted in December 2014. In the past year alone, plenty of developments have taken place to ensure successful implementation of the Act in Ohio. In writing this article, I want to explain just how extraordinary the ABLE Act is to people with special needs and focus on the current developments in implementation.

ABLE accounts are financial accounts that can be established by or for a person with special needs. The person must have a disability as determined by the Social Security Administration or some equivalent disability determination. The disability must have occurred before the person reaches age 26.

The money in ABLE accounts does not count against the person’s eligibility for Supplemental Security Income (SSI), Medicaid, Supplemental Nutrition Assistance Program (SNAP or “food stamps,”) Section 8 housing, and other means tested public assistance programs. ABLE accounts can be used to pay for “qualified disability expenses” and the expenditures from the accounts will not impact benefit eligibility.

A person can have only one ABLE account. Annual contributions to an ABLE account are limited to $14,000 (in 2015). If the able account balance exceeds $100,000, the person’s SSI benefits are suspended until the account goes below $100,000. No other benefits are suspended. The maximum amount that can be held in and able account is approximately $414,000.

Any money left in an ABLE account at the death of the owner of the account must be used to pay back the

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What is Due Process?

In the world of special education, DUE PROCESS is like a mini trial. One party “files due process” against the other, and then there is a hearing with witnesses and evidence presented. An Independent Hearing Officer (IHO) is appointed by the Ohio Department of Education to hear the case and decide who wins and what they get. Either party can appeal the decision to state court.

Due process is available to any student with a disability who has an Individual Education Program (IEP). It is also available where a school district refuses to evaluate a student to see if they qualify for special education and related services.

Typically, it’s the parents of a child with special needs who will initiate a due process proceeding against a school district, but there are some rare situations in which the district will file due process against the parents. The individuals filing due process–again, this is typically the parents–have the burden of proof. This means that they have to prove to the IHO that Individuals with Disabilities Education Act (IDEA) laws have been violated and that their child is entitled to something from the district. For this reason, and some others, the proceedings are stacked in favor of the district.

The trend we are seeing in due process matters is that the IHO will “split the baby,” meaning that they may find that the school district did not provide a free appropriate public education (FAPE), but instead of requiring the district to pay for

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