When Charles Laubach died in 2002, he left 29 percent of his estate in a supplemental needs trust for the benefit of his daughter, Susan Laubach. Mr. Laubach named his other daughter, Patricia Sciaretta, her husband, and a financial institution as trustees, and left the remainder of the trust to Patricia and her children. The estate planning documents at issue were created three months prior to Mr. Laubach’s death, and altered his previous will, which did not include the trust. In 2006, Susan filed suit against her sister, brother-in-law, and the attorney who drafted the trust, alleging that they conspired to force her father to execute the trust in order to prevent her from obtaining her full inheritance.

As part of her complaint, Susan argued that she was not under guardianship and that her mental health issues were not serious enough to warrant the creation of the trust. In response, the defendants requested that Susan turn over her psychiatrist’s notes as part of discovery. Susan refused to comply with the request, contending that the notes fell under a restrictive psychologist-patient privilege that prevents discovery of the notes. The defendants argued that the notes were actually covered by the less restrictive physician-patient privilege (since Susan’s therapist was a medical doctor, not a psychologist). The trial court dismissed the lawsuit after Susan continued to deny the defense request for production, and Susan appealed the dismissal.

Finding that the less restrictive physician-patient privilege applies to the notes, the Superior Court of New Jersey, Appellate Division, overturned the trial court’s dismissal of the lawsuit and forced Susan to turn over a small portion of the notes for in camera review by the trial court and eventual production to the defense. The court ordered that the notes “should not be subject to discovery except to the extent that discrete sections directly touching on [Mr. Laubach] and his alleged concerns about [Susan's] ability to care for herself and handle money.”

For the full text of this decision, go to: http://lawlibrary.rutgers.edu/courts/appellate/a0927-07.opn.html

What part, if any, have mediators in New Jersey played in this global explosion of blogging? In attempting to answer that question, I conducted an internet search to identify those New Jersey attorneys and mediators who have created blogs which focus on mediation. Since there are no Jersey blogs focusing solely on mediation, I expanded the search to those blogs in which mediation was a major topic, even if mediation was not the only topic discussed. Through that effort, I identified a total of 10 New Jersey blogs covering mediation issues and news.

Since the following 10 blogs are the only New Jersey mediation blogs I found, I have taken the liberty of bestowing on them the honor of being named “the top 10 mediation blogs in New Jersey”. It is an interesting group, and I commend our readers to review the blogs and participate in the on-going discussion by actively posting comments. That is one small way in which we who value mediation can continue to move it from a practical exercise in resolving conflict to a professional practice with underlying theoretical principles. Also, I note that most of the blogs cover divorce and family law matters. Why are most mediation practices limited to divorce law? Why aren’t there more blogs covering the mediation of disputes other than divorce and family matters?

A list of the top 10 New Jersey mediation blogs follows, in no particular order. I apologize to those whose blogs I have missed.

New Jersey Healthcare ADR Lawyer & Attorney : Healthcare Neutral. This blog discusses issues and developments at the intersection of alternative dispute resolution and healthcare law. Healthcare Neutral, LLC provides alternative dispute resolution services exclusively for the healthcare industry.

Sanns Mediation World of ADR: News about Mediation, Arbitration, Divorce Law, Elder Law, Commercial Law, Lawsuits and more in New Jersey. This blog posts information about mediation, family law, arbitration, and conflict and dispute resolution. It is published by mediator and arbitrator Marvin Schuldiner.

Njmediator’s Weblog is published by Martin Rosenfeld, Esq., an attorney / mediator with offices in Fair Lawn, NJ, who is also a rabbi.  This blog discusses mediation with a special focus on divorce and family issues. Mr. Rosenfeld says that he is “interested in sharing thoughts on why mediation makes sense for a divorcing couple.”

Alternative Dispute Resolution : New Jersey Law Blog is written by Lewis J. Pepperman, Esq., Maria P. Imbalzano, Esq. and Thomas J. Pryor, Esq., who are all partners in the Stark & Stark law firm in Princeton, NJ. The blog has a broad focus, covering issues involved in the mediation of general commercial matters as well as divorce mediation. Although well-written and interesting, the blog does not appear to be very active, with only three posts in 2008.

New Jersey Family Law blog by New Jersey attorney Charles Abut. On his website, Charles states that he is a “Lawyer-Mediator-Arbitrator” in the following areas: “Divorce and Commercial Litigation-Mediation-Arbitration”. His website, however, appears to be focused solely on family law in New Jersey.

New Jersey Divorce & Family Law is maintained by the lawyers at Medina, Martinez & Castroll, LLC in Pennington, NJ. The firm’s law practice focuses on divorce, child custody, spousal maintenance, special education rights, criminal defense for children, parental rights, father’s rights, wills & estate planning, adoption, and collaborative divorce.

New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody. The contributors to this blog are attorneys from Fox Rothschild’s Family Law Group who handle matrimonial and family law matters throughout New Jersey.  The blog provides information on topics such as alimony, child support, custody, parenting time, divorce, equitable distribution, prenuptial agreements, domestic violence, and grandparents visitation.

Law Office of Donald D. Vanarelli Blog — New Jersey Elder Law, Estate and Special Needs Planning, Mediation and Collaborative Family Law. Obviously, I must mention my own blog on this list, right? I love coming up with ideas for blog posts, trying to provide interesting content, updating website stats, and getting and responding to reader comments. I am a Certified Elder Law Attorney, and my blog focuses on the mediation of elder law, estate, probate and guardianship disputes.

Trenton Family Lawyer & Attorney : Flaster Greenberg Law Firm : New Jersey, Cherry Hill, Delaware Valley, Philadelphia is published by T. Sandberg Durst, Esq., a member of Flaster/Greenberg’s Family Law Practice Group. The goal of the blog is to inform readers on current news, trends and opinions in the field of New Jersey family law.

Collaborative in Jersey is by Kevin Kilcommons, Esq. of the law firm of Kilcommons Shanahan , LLC, located in Clinton Township. Although the main focus of the blog appears to be collaborative divorce law, the firm web site indicates that the lawyers also practice divorce mediation, so I assumed that mediation will also be a major topic of the blog posts.

Finally, I must mention an out-of-state mediation blog that has achieved a level of excellence - I mean, it is a blog that I read and enjoy: San Francisco and Northern California Mediator Nancy E. Hudgins: Civil Negotiation and Mediation. Nancy Hudgins is a San Francisco mediator and lawyer who has been practicing for 30 years. She has settled and mediated thousands of cases, and her blog shows it. Her posts are insightful and absolutely practical. Try it.

About 17 percent of nursing homes had violations that led to “actual harm or immediate jeopardy” to residents, according to the report by the inspector general to the U.S. Department of Health and Human Services (DHHS). Citations were issued for violations including infected bedsores, drug errors, resident malnutrition, and patient abuse or neglect.

About 37,150 complaints were sent to inspectors last year about nursing home conditions, of which 39 % were validated, the report said. Some 20 % of the verified complaints involved patient abuse or neglect.

Deficiency rates varied widely among states. The proportion of nursing homes cited for deficiencies ranged from 76 percent in Rhode Island to 100 percent in Alaska, Idaho, Wyoming and the District of Columbia. The percentage of nursing homes in New Jersey with deficiencies in 2007 was 92.2 %.

More than 1.5 million people live in the nation’s 15,000 nursing homes. The homes are typically inspected once a year and must meet federal standards as a condition of participating in Medicare and Medicaid, which cover more than two-thirds of their residents, at a cost of more than $75 billion a year.

The DHHS report is entitled trends-in-nursing-home-deficiencies-and-complaints.

John Balzarini entered a nursing home in March 2005, and applied for Medicaid shortly thereafter. As part of his application, Mr. Balzarini requested that his wife receive an increased MMMNA because her expenses were greater than her income. The Suffolk County Department of Social Services (DSS) approved his application, but did not increase the MMMNA, determining that Mrs. Balzarini’s expenses were “ordinary” and not “exceptional circumstances” entitling her to an increased MMMNA. Mr. Balzarini appealed.

On appeal, DSS did not dispute that Mrs. Balzarini’s monthly income of $2,445 was nearly half her monthly expenses of $4,814. Instead, DSS argued that ordinary household expenses, while legitimate, do not give rise to the exceptional circumstances necessary to increase the MMMNA. Mr. Balzarini argued that the express purpose of the Medicare Catastrophic Coverage Act was to prevent a community spouse’s everyday expenses from impoverishing them when their spouse is institutionalized.

The Supreme Court of New York, Appellate Division, overturned DSS’s decision and called for an increased MMMNA. The court found that “reasonable, ordinary expenses can be a sufficient basis upon which additional income of the institutionalized spouse may be made available to the community spouse, and that in the circumstances presented here, the DOH should have granted the petitioner’s request in part.” Furthermore, the court stated that “the statute and regulations did not intend that where housing costs exhaust the minimum monthly maintenance needs allowance, the community spouse should not be entitled to some funds with which to pay for food and other necessities of life.”

The circuitous argument for the Never Ending Penalty Period is that the penalty period for an individual who has made a transfer of assets within 60 months of applying for benefits under a home or community-based program cannot start until the applicant is receiving services under the Medicaid program. Problematic is the fact that the individual cannot receive waiver services under the Medicaid program because, under New Jersey’s Medicaid regulations, a medical assessment will not be completed and no application for such care approved until financial eligibility is determined; however, this will never occur during the look-back period because of the ineligibility period triggered by the asset transfer.

In contrast, New Jersey statute provides that if an applicant for home or community-based Medicaid services under 42 U.S.C. § 1396n(c) disposed of resources or income for less than fair market value within 36 months (or 60 months in the case of a trust) shall be ineligible for assistance for those services. The period of the ineligibility shall be the number of months resulting from dividing the uncompensated value of the transferred resources or income by the average monthly private payment rate for nursing facility services in the State as determined annually by the commissioner (currently $6,942). N.J.S.A. §30:4D-3i(15)(b).

See CMS Powerpoint Presentation provided courtesy of  NJ attorney John Callinan, Esq., in which the federal agency explains the basis for the “never ending penalty period,” available here - never-ending-penalty

In a recent administrative law case, ob-v-division-of-medical-assistance, Administrative Law Judge Joseph Paone reversed the denial of Medicaid benefits to an assisted living facility resident who had made an uncompensated trransfer within the 5 year lookback period. The applicant was told that the CMS’ “Never Ending Penalty Period” rule required the agency to impose a penalty period for the transfer which would never end while the applicant was in the assisted living facility. ALJ Paone held the rule to be an incorrect interpretation of the law, and reversed.

In New Jersey, administrative decisions are subject to plenary review by the head of the agency that issued the original decision. Therefore, ALJ Paone’s decision was reviewed by John R. Guhl, Director of the Division of Medical Assistance and Health Services, the State’s Medicaid agency. On review, Director Guhl reversed, upholding the CMS rule. Director Guhl’s decision constitutes the final agency action in the case. Director Guhl’s decision is annexed here  - final-agency-decision1. A court appeal is contemplated.

The letter from the VA informing me that I attained VA accreditation is annexed here - va-accreditation

A link to the VA website can be found here - U.S. Department of Veterans Affairs

The case can be found here - kassin-v-kassin-9-24-08

Fast Facts & Figures About Social Security, 2008 can be found here -   http://www.ssa.gov/policy/docs/chartbooks/fast_facts/2008/fast_facts08.html

Medicare’s monthly premium will be unchanged at $96.40 next year for most of the 44 million beneficiaries in the U.S. health program for the elderly and disabled. This is the first time in eight years the rate won’t rise.  Medicare fees will stay the same partly because the program’s reserves have increased, according to a statement from the Centers for Medicare and Medicaid Services.  This is only the sixth time since Medicare was created in 1965 that rates held steady for two consecutive years, said Rick Foster, Medicare chief actuary, on a press conference call. However, “[n]ow that the “catch-up increases in premiums from the past few years have been absorbed, monthly rates are likely to go up in 2010 as health costs continue to rise,” Foster said. Medicare is financed through payroll taxes, monthly premiums paid by enrollees and general government revenue.

Medicare premiums were linked to beneficiary income for the first time two years ago, part of a 2003 law that sought to slow rising benefit costs. The standard rate applies to individuals with income less than $85,000 a year. For 2009, monthly premiums will range from $134.90 for individuals with income of $85,000 to $107,000 to $308.30 for those whose income is more than $213,000.

Source: Bloomberg (September 19, 2008)

How do you help a client prepare for mediation? I suggest the following steps:

1) Get all the facts from the client through a detailed discussion.

2) Determine what the client really hopes to achieve through the dispute resolution process. Since clients do not disclose their true objectives when they are simply asked what they hope to achieve, counsel must thoroughly probe client objectives and listen carefully to client responses. Counsel should ask the client, “What is really important to you about this dispute, and why?” This question helps counsel develop settlement options based on authentic client interests instead of solely focusing on getting or giving a certain dollar amount. Prioritize client goals into three categories: essential, important and desirable. Begin to analyze client goals in order to understand the client’s true interests.

Understanding the client’s true objectives is critical to achieving settlement. As much as 53% of settlement failures are the result of one counsel or the other failing to negotiate effectively with his/her own client and failing to reach counsel-client agreement about the goals to be achieved and not because of failure to reach agreement with the adversary. Tom Arnold, “Mediation Outline: A practical How-To Guide for Mediators and Attorneys” in Alternative Dispute Resolution - How To Use it to Your Advantage, ALI-ABA (2000).

3) Explain the mediation process to the client and help the client to understand the procedural stages that are likely to development.

4) Review weaknesses and strengths of the case with the client. Be realistic. Remind the client that when you present the case at mediation you will be emphasizing your strong points but that the client must be very aware of the weaknesses in order to realistically assess settlement offers. Candidly discuss the risks of trying the case, the costs and attorneys’ fees necessary to take the case to trial, and the potential trial outcomes and consequences of those outcomes. Attorneys should tell the client what they hope to achieve in the mediation, but without unduly raising client expectations.

5) Plan for a presentation by the client during the mediation. Letting the client speak can be very effective, for several reasons. Involving the client may give him/her a cathartic and expected “day in court” experience. It can also impress the other side (hopefully positively). If the client is articulate, credible or charming, you will want him/her to speak during the mediation in order to educate the adversary about this strength as early as possible. Coach, evaluate and critique your client prior to the session.

6) Have a frank discussion with the client about the likely consequences of the failure to resolve the dispute during the mediation.  Plainly describe the upcoming dispute resolution process. Offer several possible outcomes that might be expected from that process, ranging from the best alternative to settlement that is likely to develop as well as the worst alternative that you can foresee.