Marshall Parker & Associates - PA Elder Law, Estate Planning, Long Term Care Resource Center

Pennsylvania Insurance Department Petitions to Place Penn Treaty into Liquidation

Final Preneed Funeral Arrangement Regulations Submitted

DPW Clarifies Policy on Distributions from IRAs During 2009

First Party Special Needs Trust Disqualified When Used to Benefit Family Member

Take the Time…Immunize! Are You Prepared for the Flu?

Significant News from the VA Regarding “Agent Orange” Benefits

Follow Jeff Marshall on Twitter

New Consumer Workshops added to Marshall, Parker & Associates’ Line-Up

Job Opportunities at Marshall, Parker & Associates

Don’t Miss the Arthritis Foundation’s 1^st Annual BONE BASH this Friday

Pennsylvania Insurance Department Petitions to Place Penn Treaty into Liquidation

Written By: Attorney Jeffrey A. Marshall, CELA*

The Pennsylvania Insurance Department is seeking to place Allentown based Penn Treaty Insurance Company into liquidation. Penn Treaty has 120,000 Long Term Care Insurance policyholders across the US, including thousands in Pennsylvania.

PA Insurance Commissioner Joel Ario said. "Our comprehensive, independent evaluation has determined that the companies do not have the ability to pay future claims without significant rate increases that would have to be requested and approved in all 50 states. In the current circumstances, those rate increases simply would not be fair to policyholders.”

"We have instead petitioned for an orderly liquidation of all company assets in which policyholders' claim payments are our number one priority. Additionally, active long-term care policies will not be canceled, except by the policyholder, so they will be transitioned to the states' guaranty funds once an order takes effect. Guaranty funds have the right to assess other insurance companies to cover policyholder claims up to coverage limits that vary by state."

Policyholders will receive further information about the liquidation when the Pennsylvania Commonwealth Court enters the order for liquidation. In the interim, policyholders with questions on claims or non-claim matters may call, toll-free, 1-800-362-0700, ext. 3270.

Penn Treaty was initially ordered into rehabilitation last January. The liquidation means rehabilitation was unsuccessful. The rehabilitation is discussed in the January 2009 issue of The Elder Care Law Alert which is available here.

Attorney Marshall can be contacted at webmail@paelderlaw.com or at 1-800-401-4552. More information about Attorney Marshall is available on our website at www.paelderlaw.com/staff.html

Final Preneed Funeral Arrangement Regulations Submitted

Written By: Attorney Jeffrey A. Marshall, CELA*

Final Regulations governing Preneed Funeral Arrangements in Pennsylvania have been filed by the State Board of Funeral Directors. The Regulations set forth requirements for managing preneed funds and contracts. Preneed funeral funds are paid by a living person to a funeral director for the purpose of providing future funeral services and merchandise.

Among other changes, the new regulations permit customers to transfer pre-need funds to another funeral director. The regulations also ease the reporting burdens placed on funeral directors.

The final regulations and a regulatory analysis are available here. Comments on the regulations and related matters are available on the website of the Pennsylvania Independent Regulatory Review Commission here. The Commission must now approve or disapprove the final regulations. Its public meeting is set for October 22, 2009.

DPW Clarifies Policy on Distributions from IRAs During 2009

Written By: Attorney Jeffrey A. Marshall, CELA*

A key provision of the Federal Worker, Retiree and Employer Recovery Act of 2008 suspends the required minimum distribution (RMD) rules for 2009. This means that individuals who are over 70 ½ are not required to take a minimum distribution in calendar year 2009 from Individual Retirement Accounts and defined contribution retirement plans (such as Section 401(k) plans).

Since annual minimum distributions are not required for 2009, the next RMD will be for calendar year 2010. This relief (referred to as the "2009 RMD waiver") applies both to life-time distributions to IRA owners and after-death distributions to beneficiaries. Click here for an IRS notice which explains the 2009 RMD rules.

Until recently, it was unclear how the one year suspension of RMD would have on Medical Assistance Long Term Care (MA/LTC) benefits. Recently, the Department of Public Welfare (DPW) issued a policy clarification on the treatment of IRA distributions during 2009. In PMN 14935450 the Department answered the following question posed by a County Assistance Office: “Is an individual still required to take the mandatory distribution for MA LTC? Is there a set percentage?”

In its response, the DPW Division of Health Services advised that DPW will not require Medicaid recipients to take mandatory distributions during 2009. The policy clarification states:

No, there is no mandatory distribution on IRAs for 2009. The Worker, Retiree and Employer Recovery Act of 2008 allows for a waiver of IRA mandatory distributions. If an individual chooses not to take the mandatory distributions, the CAO will not require an individual to pursue the distribution in 2009. No, DPW does not require a set percentage for the mandatory distribution. If an individual continues to receive the IRA distribution, the CAO will continue to adjust the payments as income in determining eligibility for MA LTC. This policy clarification is obsolete on 12/31/09.

This policy clarification is important for low income community spouses who are receiving an income diversion from an institutionalized spouse. By not taking an 2009 RMD distribution on an IRA, a community spouse can increase the income diversion amount.

Note, the policy clarification relates to the MA/LTC income rules. The IRA of a community spouse is generally not treated as a resource for purposes of MA/LTC qualification. The resource treatment of retirement plan assets owned by an institutional individual has been subject to some variation over time among County Assistance Offices. In the past, some CAOs would only require that the Medicaid applicant/recipient spouse take required minimum distributions that were then treated as income. At present, however, retirement plan assets owned by an MA recipient are generally treated as countable resources.

First Party Special Needs Trust Disqualified When Used to Benefit Family Members

Written By: Attorney Brenda D. Colbert, LL.M, CELA*

In Hobbs v. Zenderman (10^th Cir., Sept. 1, 2009), a Federal Appeals Court has upheld a state’s determination denying Medicaid benefits because excess resources held in a first party special needs trust. The State had determined that the trust did not qualify for exemption as a resource because the funds from the trust were used to benefit family members of the special need beneficiary.

In Hobbs, a state court approved the creation of “The Steffan Hobbs Medicaid [(d)(4)(A)] Payback Trust with the intent that its assets “should not be deemed to be available to [Hobbs] for purposes of Supplemental Security Income (SSI) or Medicaid eligibility.” The Trust agreement provided that: “Expenditures may be made directly to any of [Hobbs’] family members, or any other person who takes [Hobbs] into his or her home or provides special care or attention to him, to compensate such person for the reasonable value of services provided and to reimburse such person for costs associated with shelter, care, or attention.”

Normally, assets owned by a special needs trust are not counted for purposes of SSI and Medicaid. Therefore, the child with special needs can preserve money received (in this case from a personal injury settlement in the amount of $1.1 million) for supplemental needs such as entertainment and special therapies and still qualify for Medicaid to help pay for medical expenses.

However, in this case, the Trustee used funds from the special needs trust to pay the child’s mother to care for the child, to buy an interest in the family home, to pay for home furnishings and expenses related to the maintenance and improvement of the home, and to buy life insurance on the lives of the child’s parents. The Court upheld the State of New Mexico’s conclusion that the Trust was not being administered for Hobbs’ sole benefit and was thus a countable resource.

While noting that courts in other jurisdictions may disagree, the 10^th Circuit found that §1396p(d)(4)(A) of federal Medicaid law does not impose a binding obligation on the State to exempt special needs trusts when making eligibility determinations.

Attorney Colbert leads Marshall, Parker’s Special Needs Planning Team. She can be contacted at webmail@paelderlaw.com or at 1-800-401-4552. More information about Attorney Colbert is available on Marshall, Parker & Associates’ Special Needs Planning website at www.PASpecialNeedsLaw.com

Take the Time…Immunize! Are You Prepared for the Flu?

Written By: Jerry S. Petro, Planning Specialist

The flu season is upon us and strains of the seasonal and H1N1 virus will soon be in your area. Here are some common questions and answers I’ve gathered from the Wyoming Valley Health Care Handout on Influenza and from physicians to help you prepare yourself and your family for this year’s flu season.

What is the Flu?

Influenza, commonly referred to as the flu, is a viral respiratory infection. The most common symptoms of influenza are chills, fever, sore throat, muscle pains, severe headache, coughing, weakness and general discomfort. Fever and coughs are the most frequent symptoms. In more serious cases, influenza causes pneumonia, which can be fatal, particularly for the young and the elderly.

How does the flu spread?

Flu viruses are spread mainly from person to person through coughing or sneezing by people with influenza. Flu is normally spread through the air via droplets expelled from the mouth when an infected person talks, coughs or sneezes. These droplets often land on hands and adjacent surfaces. Following proper hygiene routines can help prevent the spread of illness.

Why is the flu different this year?

There are two different types of influenza currently prevalent: the seasonal flu and the H1N1 virus. One difference is that H1N1 spreads much faster and can cause more severe illness as compared to the seasonal flu. In seasonal flu, certain people are at “high risk” of serious complications. This includes people 65 years and older, children younger than five years old, pregnant women, and people of any age with certain chronic medical conditions. About 70 percent of people who have been hospitalized with this 2009 H1N1 virus have had one or more medical conditions previously recognized as placing them at “high risk” of serious seasonal flu-related complications. This includes pregnancy, diabetes, heart disease, asthma and kidney disease.

How to protect yourself?

Get flu vaccinations!!! First check with your medical professional before receiving your vaccination.

What to do to prevent the spread of the flu?

-Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it. If you have the flu place the tissue in a zip-lock bag to help prevent the spread of the disease in your household.

-Avoid touching your eyes, nose or mouth. Germs spread this way.

-Wash your hands: Thoroughly wash your hands throughout the day with soap and water for 20 seconds (the time it takes to sing the "Happy Birthday" song twice), making sure to scrub underneath the nails and the back of the hands.

-Use alcohol-based hand cleaners that contain at least 60% Ethyl Alcohol often. Use these convenient hand cleaners after using a tissue or touching your face.

-Disinfect surfaces: Regularly disinfect the frequently-touched surfaces in your home with a disinfectant to prevent viruses from spreading from surfaces to people.

Avoid close contact with people who are sick. And if you yourself are ill, stay home to avoid spreading germs to those around you, the CDC recommends that you stay home for at least 24 hours after your fever is gone except to get medical care or for other necessities. (Your fever should be gone without the use of a fever-reducing medicine.) Keep away from others as much as possible to keep from making others sick.

Jerry can be contacted at webmail@paelderlaw.com or at 1-800-401-4552. More information about Jerry is available on our website at www.paelderlaw.com/staff.html

Significant News from the VA Regarding “Agent Orange” Benefits

Written By: Karen Griswold, Planning Specialist

On October 13, 2009, the Secretary of Veterans Affairs announced the decision to add

B cell leukemias, such as hairy cell leukemia, Parkinson’s disease, and ischemic heart disease to the list of “presumed” illnesses associated with Agent Orange. The News Release and the VA’s complete listing of illnesses recognized as being caused by the exposure to herbicides during the Vietnam War can be found at http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=1796.

The VA will pay disability compensation as well as health care benefits to Vietnam Veterans with injuries or diseases that began in or were aggravated by their military service.

All 67 counties have authorized a County Director of Veterans Affairs who provides advocacy to Veterans, service members and their families. County Veterans Affairs Directors can be located at http://www.milvet.state.pa.us/DMVA/355.htm

Karen can be contacted at webmail@paelderlaw.com or at 1-800-401-4552. More information about Karen is available on our website at www.paelderlaw.com/staff.html

Follow Jeff Marshall on Twitter

As an additional way to help you stay on top of the ever-changing world of elder and special needs law, our managing attorney is now “tweeting” on Twitter. You can follow Jeff Marshall at http://twitter.com/ElderLawGuy. Just click on that link or on the Twitter link below in this newsletter.

Jeff is giving his “followers” links to online articles he is reading on issues of importance to seniors and to people who may need long term supports and services. Here are some examples:

-Getting the Title Right on an Inherited IRA - Wall St Journal - http://tinyurl.com/yztrwys

- Making your nest egg last a lifetime. http://tinyurl.com/ybw9yaw

-Will of murdered mother of special needs children is invalid. http://tinyurl.com/yke3q8w

- Nursing Homes that Belie the Bad Image - NY Times - http://bit.ly/8NRag

- Should insurance companies be required to disclose their financial ratings to consumers? http://tinyurl.com/ykdpank

-Anti-estate tax lobby drops call for estate tax repeal. Seeks exemption of $10 million & 35% rate. http://tinyurl.com/ykx6uda

- Aiming Higher: Results from a State Scorecard on Health System Performance PA ranks 15th overall - ck your state- http://tinyurl.com/y9yyycn

- State Attorney Generals Ask CMS to Suspend Nursing Home 5 Star Rating System http://tinyurl.com/ygbkxp7

- The Grandparents Corps: A New Primary Care Model - http://tinyurl.com/y8q6svs

- Insurance Industry Fighting to Remove Kennedy's Long Term Care Plan From Health Reform - http://tinyurl.com/ydonk78

- To Roth or not to Roth - analysis of Roth IRA conversion opportunity in 2010. http://tinyurl.com/ycr28c2

For those of you who aren’t familiar with Twitter, it’s basically “micro-blogging.” Writers are forced to communicate in 140 characters or less (which is exceedingly tough for lawyers to do). You can get lots of information very quickly. It’s free to sign up. Plus, it’s fun. Sign up to be able to access all of Jeff’s “tweets.”

Marshall, Parker & Associates’ Upcoming Free Workshops

- Protect Your Home & Assets from Long Term Care Costs Saturday, October 24, 2009 from 10:00 AM until 12:00 PM at The Holiday Inn Downtown, 100 Pine Street in Williamsport

- Protect Your Home & Assets from Long Term Care Costs Saturday, October 24, 2009 from 10:00 AM until 12:00 PM at The Woodlands Inn & Resort, 1071 Highway 315 in Wilkes-Barre

-VA Aid & Attendance Benefit Workshop Wednesday, October 28, 2009 at 2:00 PM at Elmcroft of Loyalsock, 2985 Four Mile Drive in Montoursville. Call 321-9008 x.203 to register. A flier for the event is available on our website.

- How to Plan for a Child or Grandchild with Special Needs Saturday, November 7, 2009 from 10:00 AM until 12:00 PM at the Hilton Hotel and Convention Center, 100 Adams Avenue, Scranton. Contact us to register

Job Opportunities at Marshall, Parker & Associates

Marshall, Parker & Associates is currently accepting applications for the following positions:

Estate Administration Paralegal

Full Time, Wilkes-Barre Office

Qualified candidate will possess an interest in working in the Estate Administration field. The candidate must have the ability to work independently as well as within a team oriented environment and have excellent computer, written and oral communication skills. To Apply: submit resume and salary requirements to gkizis@paelderlaw.com or by mail to G. Kizis, Marshall, Parker & Associates, 1065 Highway 315, Suite 402, Wilkes-Barre, PA 18702

Information Technology Assistant

Full Time, Williamsport Office

This position will develop, implement, and maintain company-wide technology including the company websites and provide other administrative support as assigned. Applicants should have at least an Associates Degree in Information Technology or related field and strong communication skills. To Apply: submit resume and salary requirements to webmail@paelderlaw.com or mail to IT Manager, Marshall, Parker & Associates, 49 E. Fourth Street, Williamsport, PA 17701

No Phone Calls Please. Marshall, Parker & Associates is an Equal Opportunity Employer. There are no health benefits offered with these positions.

Don’t Miss the Arthritis Foundation’s 1^st Annual BONE BASH this Friday

The Arthritis Foundation, Central PA Chapter is excited to roll out its inaugural Bone Bash event on Friday, October 23, 2009 from 5:30-9:30pm a the Scottish Rite on Market Street in Williamsport.

Guests will enjoy company from honorary guest Mayor Gabriel Campana as well as a costume contest, and silent auction. Entertainment will be provided by Jake Micheals. Beer, wine and a taste of the town from local food vendors is included in the price.

Tickets are available for $55 per person, $100 per couple or $400 per table of 8.

The purpose of Bone Bash is to raise awareness about the seriousness of the arthritis, as well as raise funds to support mission driven programs. The funds raised will help to conduct research to find a cure; provide public health/educational programs for those who have this disease; and continue advocacy efforts.

The Arthritis Foundation is the only nationwide, nonprofit health organization helping people take greater control of arthritis by leading efforts to prevent, control and cure arthritis and related diseases. The Arthritis Foundation, Central Pennsylvania Chapter serves 28 Central Pennsylvania Counties.

For more information or to purchase tickets, contact Ryan Lindsey at 800-776-0746 or rlindsey@arthritis.org.

Follow Marshall, Parker & Associates’ Managing Attorney

Jeff Marshall on twitter at:

www.twitter.com/ElderLawGuy

Contacting Marshall, Parker & Associates for Assistance

Marshall, Parker & Associates is a nationally recognized law firm which provides long-term care planning, estate planning & estate administration services to Pennsylvania clients from our offices in Jersey Shore, Williamsport, Wilkes-Barre and Scranton.

Marshall, Parker & Associates is the ONLY law firm in the United States with more than two Certified Elder Law Attorneys (CELAs) on it's staff. Each of our five attorneys is a CELA. CELA status, which has been attained by only 37 attorneys in Pennsylvania, is authorized by the Pennsylvania Supreme Court. In approving the CELA professional designation, the Supreme Court found that it provides a measure of assurance to the public that the attorney has an in-depth working knowledge of the legal issues impacting the elderly,

If you or someone you know needs assistance with estate planning or with qualification for Medicaid benefits for nursing home or home care you can trust the specialists at Marshall, Parker & Associates. Please call us toll free at 1-800-401-4552 or email our Scheduling Coordinator, Lynn Wesley at webmail@paelderlaw.com.

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*Attorneys Marshall, Parker, Grebas, Weber & Colbert are certified as Elder Law Attorneys by the National Elder Law Foundation under authorization from the Pennsylvania Supreme Court.

**In addition to her law degree and CELA status, Attorney Colbert holds an advanced legal degree (LLM) in Estate Planning from the University of Miami School of Law.

Return to 2009 Newsletters

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http://www.paspecialneedslaw.com

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