"And God said; 'This is the sign of the covenant which I make between Me and you, and every living creature that is with you, forever: I will set My rainbow in the cloud over the earth, that the rainbow shall be seen in the cloud..." 

Genesis 9: 12 &13

• Miscellaneous Fun, 1999-2002

 
• Office Christmas, 2001
• Disney, 2001
• Erin's 1st Old Rag, 2001
• Circus, 2002!
• Dayspring Party, 2002
• World Changers, 2002
• Pawleys Island, S.C. - 2002
• Labor Day Weekend & First School Day, 2002
• October 2002 Marriage Enrichment at Missionary Learning Center - Chamberlayne Baptist Church
• Erin's 10th Birthday Party - November, 2002
• 2002 Thompson McMullan Christmas Party
• 2002 Christmas at Home
• 2002 Sledding in N.J.
• 2002 Libby's Fashion Creation
• 2003 Busch Gardens
• 2003 Brookgreen Gardens (South Carolina)
• Brookgreen Official Website Here
• 2003 Libby's 16th Birthday
• 2003 - Our Miata!
• 2003 World Changers
• 2003 Camp Windwood Adventure - Thanks, Hugh and Tighe!
• 2003 Halloween and "Beer" Chicken!
• Sarah and Monty Python's Eric Idle (2003)
• 2003 Discipleship Youth Program at Chamberlayne - We had a blast!
• Erin's 11th Birthday Bash (11-22-03)
• New Years, 2004
• TM 2004 Spring Fling
• Rose Colored Glasses (2004)
• CBC 2004 Barbecue
• Easter, 2004 (Camping with Steve)
• Libby's Play (2004)
• Dr. Kim in the Miata!
• Dee's Dance, Mary Beth's Birthday, Some Busch Gardens, and Secret Picture of Mary Anne!
• Hakimaya, 2004 (Pawley's)
• Church Youth's Italian Feast, 2005
• Libby's Graduation and Birthday, 2005
• Mission Fuge 2005
• Pawleys Island 2005 - A
• Pawleys Island 2005 - B
• Pawleys Island 2005 - C
• Pawleys Island 2005 - D
• Celebration: 20 Years with Mary Beth

• Breaking News
• Today in History
• CBO Budget Deficit, 2004

• Shakespeare Online
• The Writer's Almanac
• Dictionary
• The Quotation Page
• Bartleby's Quotations
• Lawyers' Latin 
• Strunk's Elements of Style
• Pretty Good Jokes (from Prairie Home Companion) ("My Daddy's an accountant" 

"Really?" "Yeah. What does your Daddy do?" 
"He's a lawyer." "Honest?" "No, just the regular kind." )

• Pawleys Island Tour
• Pawleys Island Weather

• National Public Radio

I've had (and given away) several, but my favorite is the original astronaut pen.

A similar pen, the Uni Power Tank, is quite satisfactory with similar attributes. They are available at considerably less cost, and are lighter (except in zero gravity) than my old buddy, the (pictured) Fisher Astronaut.
 

Listing of available short studies at Helwys publishing for the Dayspringer Sunday School Class to consider. 
 
 
 

Click here for several helpful Medicare source documents for attorneys settling tort and worker compensation cases in this complex area of the law.

The MSP Coordination of Benefits Contractor (COB) for MSP issues in Virginia is United Government Services, LLC, P. O. Box 12201, Roanoke, Virginia  24023-2201, attention: Margie Spillen (540-767-7069), or toll free, Toll Free 1-877-768-5471.

CHECK HERE OFTEN FOR UNANNOUNCED POLICY TRANSMITTAL UPDATES

The Medicaid Manual is available in toto at the link on the left  in Portable Document Format (PDF).  Here are some specific links to oft used manual policy citations:
 

• M01 MEDICAID APPLICATION
• S08 ABD INCOME
• S11 ABD RESOURCES
• M14 LONG TERM CARE (INCLUDING SPOUSAL IMPOVERISHMENT)

The spousal impoverishment worksheet is attached to the Medicaid application for persons in long term care who have a spouse not in long term care, and who wish to avail themselves of the special protections of the federal laws to avoid impoverishment of the non-applicant spouse, the "community spouse."

 Wisconsin Department of Health and Family Services, Petitioner v. Irene Blumer, decided February 20, 2002 by a 6-3 vote, held that States may elect an "income first" rule. 

This will permit the states to interpret the federal statute (42 USC 1396r-5), which provides the option to a community spouse to elect an enhanced (increased) CSRA/CSPRA when her income is lower than the MMNA to impute the institutionalized spouse's income to the community spouse before calculating the CSRA for the community spouse.  Thus, when a couple's combined income exceeds the MMNA, the revision of the CSRA is not an available option to the community spouse. 

To the extent this election is made, it will place greater pressure on the community spouse in couples with more of their retirement tied to resources than pensions (e.g., small family business owners, etc.) to consider other options - resource transfers, conversions of resources, and even divorce.

• Click here for a direct link to the case opinion in the United States Supreme Court.

Effective April 11, 2001, Virginia  revised its Medicaid regulations pertaining to married institutionalized persons.  The text of the revision (from the Virginia Register) is set forth in this link: April 11, 2001 Regulations

When the will of the community spouse disinherited the institutionalized spouse, the institutionalized Virginia spouse (who was receiving Medicaid) was terminated based on the failure to claim the elective share under Va. Code Section 64.1-13 et seq.  A similar result was recently reported in Kansas, where the wife's agreement "accepting" the provision made for in a 1978 will, combined with her failure to elect against the will after her husband died, caused her to be treated as a joint settlor of the testamentary trust found in her husband's will.  In Miller v. Kansas Department of Social Services, decided March, 2003, the Court observed that "SRS claims her consent to the terms of her husband's will, in lieu of her taking her statutory elective share as a spouse, essentially placed her spousal share of the marital estate in the discretionary trust, which makes it an asset currently available to her for determining Medicaid eligibility. ... We agree with SRS." 
(11/11/04) Annuities will be addressed from the standpoint of resource policy under Va. Medicaid Manual Section M1140.260, effective with applications received on or after 12/1/04. 
(4/23/05) Annuities Regulations at 21 Va. Regs. Reg. 2125) - Fast tracked for applicability June, 2005 (note conflict with M1140.260).
 

July 1, 2004:  Virginia Medicaid Manual Section M1450:500 recognizes that "[o]nce an individual has established eligibility for Medicaid payment of LTC services, transfer of assets owned by the community spouse do [sic] not affect the institutionalized spouse's Medicaid eligibility."
 

Think it can't happen to you?  Click here.

CMS: "The State must, at a minimum, seek recovery for services provided to a person of any age in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution. The State may at its option recover amounts up to the total amount spent on the individual's behalf for medical assistance for other services under the State's plan. For individuals age 55 or older, States are required to seek recovery of payments from the individual's estate for nursing facility services, home and community-based services, and related hospital and prescription drug services. States have the option of recovering payments for all other Medicaid services provided to these individuals."

The Medicaid Uniform Assessment Instrument is used to determine prescreening for Medicaid payment.  For general Virginia DMAS forms used to determine eligibility for long term care and to access the free Adobe program for your computer, click here.

"The increased number of disabled elderly will exacerbate current problems in the provision and financing of long-term care services. Approximately one in five adults with long-term care needs and living in the community reports an inability to receive needed care, such as assistance in toileting or eating, often with adverse consequences.  In addition, disabled elderly may lack family support or the financial means
to purchase medical services. Long-term care costs can be financially catastrophic for families. Services, such as nursing home care, are very expensive; while costs can vary widely, a year in a nursing home typically costs $50,000 or more, and in some locations can be considerably more. 

Because of financial constraints, many elderly rely heavily on unpaid caregivers, usually family members and friends; overall, the majority of care received in the community is unpaid. However, in coming decades, fewer elderly may have the option of unpaid care because a smaller proportion may have a spouse, adult child, or sibling to provide it. By 2020,
the number of elderly who will be living alone with no living children or siblings is estimated to reach 1.2 million, almost twice the number without family support in 1990. In addition, geographic dispersion of families may
further reduce the number of unpaid caregivers available to elderly baby boomers.

Currently, public and private spending on long-term care is about $137 billion for persons of all ages, and for the elderly alone is projected to increase two-and-a-half to four times in the next 40 to 50 years—reaching as much as $379 billion in constant dollars for the elderly alone, according to one source."

• community mental health rehabilitation services;
•  targeted mental health and mental retardation case management;
•  substance abuse treatment for pregnant and postpartum women;
•  intensive in-home and therapeutic day treatment services for children and adolescents in the Early and
• Periodic Screening, Diagnosis, and Treatment Program;
•  mental retardation home- and community-based waiver services; and
• any other new or expanded mental health, mental retardation, and substance abuse services related to these services that are covered subsequently by the state Medical Assistance Plan.

 

• Prescription Drugs
• Mental Health and Mental Retardation Services
• Home & Community-Based Care Waiver Services
• Skilled Nursing Facility Care for Persons under age 21
• Dental Services for Persons under age 21
• Physical Therapy & related Services
• Clinical Psychologist Services
• Podiatrist Services
• Optometrist Services
• Certified Pediatric Nurse & Family Nurse Practitioner Services
• Home Health Services (PT, OT and Speech Therapy)
• Case Management Services
• Prosthetic Devices
• Other Clinic Services
• Hospice Services
• Medicare Premiums (Part B for Medically Needy)

For SSI POMS provisions, click here.

As of April, 2005, SSI rules do not "count" value of car, household furnishings, and personal effects regardless of value. Thus, "in-kind" income does not include gifts of clothing (or furnishings) to the beneficiary / applicant.  Click here for Table of Excluded Resources, with links to provisions excluding household goods and a motor vehicle regardless of value.

As of September, 2004, there is a continuing, but moderating, dispute regarding the requirement in the POMS (SSI policy manual) that a parent (or apparently anyone else, including a grandparent, court or guardian) establishing the trust for a disabled person under the age of 65  "have legal authority to act with regard to the assets of the individual. An attempt to establish a trust by an individual without the legal right or authority to act with respect to the assets of the individual may result in an invalid trust. NOTE: This requirement refers to the individual who physically took action to establish the trust even though the trust was established with the assets of the SSI claimant/recipient." SI 01120.203, Exceptions to Counting Trusts Established on or after 1/1/00, Section (B)(1)(e).

A technical advice memorandum from SSA Counsel now states that Region III states (including Virginia) accept a "seed" or unfunded trust established by a parent or grandparent (but not expressly a guardian) will be accepted; "[i]n short, when an agreement satisfies the requirements of 42 U.S.C. '1382b(e)(5), circumstances unequivocally show an intention that the legal estate be vested in one person, to be held in some manner or some purpose on behalf of another. Id. [sic] Therefore, Virginia courts will recognize agreements that satisfy 42 U.S.C. Sec. 1382b(e)(5) as valid trusts. ....  It is our opinion that every jurisdiction within Region III would recognize as a valid trust any agreement established pursuant to 42 U.S.C. '1382b(e)(5), including instances where a parent or grandparent establish an unfunded trust (empty trust) or a nominally funded trust (seed trust) for the purpose of receiving a competent adult SSI beneficiary's assets at a later date."

 PS 01825.052 Virginia (August 27, 2003) 

• Click here to see the POMS policy.

 
• Click here to see related POMS policy provisions for trusts and transfers of assets.

 
• Click here to see Notice of Reconsideration Denying Eligibility based upon this policy. 

 1-17-03 SSI Trust Decision Making Grid Approved by Philadelphia Region gives guidance in this complex area.

POMS SSI Trust Decision making Grid for d(4)(A) (single beneficiary) d(4)(C) and (pooled income) Trusts.

Adobe facsimile of United States Magistrate's opinion in Thompson v. Barnhart, Commissioner, (D.Ct. Vt., July 17, 2003, Case number 2-02-CV-141), holding than an irrevocable trust conforming to 42 USC 1396p (d)(4)(A) was not "irrevocable" in light of the Doctrine of Worthier Title.

• Medicaid 
• Food stamps 
• Medicare premiums are paid (all states) 

• the Desktop Guide handbook is no longer online (as of September, 2002). The "Questions and Answers" link is a series of questions and answers, with links to policy and regulatory authority, together with useful e-mail update pages, etc.; and

 
• the "Understanding SSI"  link is more detailed and is helpful to the attorney who does not specialize in this area of the law; especially helpful are the following links on the page: 

 
• Housing Arrangements
• Plans to Achieve Self Sufficiency
• Loans
• Transfer of Assets (SSI Rule)
• Trusts 
• SI 01120.200 Trusts Established Prior to 1/1/00, Trusts Established by Third Parties and Trusts Not Subject to Section 1613(e) of the Social Security Act
• 3rd party vendor payments by Trust as "In Kind Support and Maintenance"
• SI 01120.203 Exceptions to Counting Trusts Established on or after 1/1/00 (special needs trusts)
• Click here to see SSI denial based upon this policy.

     Mr. Dalle Mura stated that the allowances for guardians ad litem would be in accordance with the general allowances for court appointed counsel as set forth in the Supreme Court's Court-Appointed Counsel-Public Defender Procedures & Guidelines Manual, in Appendix A, Chart of Allowances, at page 61.

     Mr. Dalle Mura also stated that the fee for court appointed attorneys for the respondent (appointed under Va. Code § 37.1-134.12, Counsel for respondent) would be paid the same fee as is paid for counsel in a health care proceeding under Va. Code § 37.1-134.21. That fee, set forth in Va. Code §37.1-89, is a flat fee of $43.25. 

     The Court found that "[t]he evidence in this record, when considered in its totality, demonstrates that Correll was clearly capable of comprehending the seriousness of Paxton’s condition, as well as her need for constant and immediate care. In fact, Correll had cared for Paxton for years prior to her death, and had specifically cared for Paxton in relation to her weight problem and the various bedsores that she had developed over the years. Thus, we simply cannot hold that the trial court’s finding of willful and knowing neglect was plainly wrong. Indeed, testimony given during the trial established that Correll acknowledged Paxton was not being properly cared for prior to her admission to the hospital and that those ' problems' were what prompted the investigation by Bedford County Social Services."

     Va. Code § 37.1-137.1, Duties and powers of guardian, provides in pertinent part that a "guardian stands in a fiduciary relationship to the incapacitated person for whom he was appointed guardian and may be held personally liable for a breach of any fiduciary duty to the incapacitated person. A guardian shall not be liable for the acts of the incapacitated person, unless the guardian is personally negligent."

    The Court's order establishes the fiduciary relationship, and defines its limits.  The Correll case emphatically underscores the importance of counsel for the guardian (as opposed to counsel for the petitioner or the incapacitated person), and that counsel representing the proposed guardian should insist that the order specifically detail the duties and liabilities of the guardian, especially when the guardian contracts with third parties (such as congregate facilities licensed by the Commonwealth) for care of the ward.

IRS Form SS-4 (information to secure an EIN from the IRS for an estate or trust), click here
 

Note: as of July 1, 2004, Virginia recognizes that transfers by the community spouse after eligibility has been established for the institutionalized spouse "do not affect the institutionalized spouse's Medicaid eligibility."  M1450.500.  This may make transfers to an income trust or (or any other testamentary disposition) unnecessary.