Law Office of Donald D. Vanarelli Blog

T.H. was a fifty-five year old man who suffers from Asperger’s Syndrome, a developmental disability. T.H. was cared for by his parents his entire lifetime. After T.H.’s parents died, T.H.’s family applied for services on his behalf pursuant to N.J.S.A. 30:4-25.2 from the Division of Developmental Disabilities (“DDD”). DDD staff interviewed T.H. and his family. Finding a “paucity of documentation” concerning T.H.’s developmental history, and noting that most of the history derived from “anecdotal” accounts by T.H. and his family, DDD determined that T.H. was ineligible for services because he showed no evidence of substantial functional limitations in three major life areas prior to the age of twenty-two, as required under N.J.A.C. 10:46-1.3.

T.H. challenged the decision. An administrative judge and the Appellate Division of the Superior Court affirmed the denial of benefits. The NJ Supreme Court reversed, awarding DDD services and other benefits to T.H. The Court held that there is no statutory requirement that an applicant for services develop substantial functional limitations in three major life areas before age 22, and DDD’s contrary interpretation, codified in N.J.A.C. 10:46-1.3, exceeded its authority and is invalid. In addition, the Court found it to be arbitrary and inappropriate to reject the eyewitness testimony of family members as anecdotal.

A copy of the T.H. vs. DDD case can be found here - T.H. v. Division of Developmental Disabilities

The U.S. Department of Health and Human Services has issued a new notice addressing the problems that occur when a Medicaid applicant purchases a long-term care insurance “partnership” policy in one state and then applies for Medicaid in another state. See, 73 Fed. Reg. 51302-51305 (2 Sept 2008), available here.

The Deficit Reduction Act of 2005 provides that when a state calculates an applicant’s assets for purposes of Medicaid eligibility, the state may disregard an amount equal to benefits paid to the applicant under a qualifying long-term care insurance policy. The statute also allows states to exempt benefits paid under the policy from Medicaid estate recovery. The proposed rules set the standards for states that choose to enter into a reciprocity agreement to provide the same disregards and offsets for partnership policies that a Medicaid applicant purchased in another state.

All states will be deemed to be participating in the reciprocity standards unless they elect to be exempt by notifying the department in writing. States that already had partnership programs approved prior to May 14, 1993, may also elect to adopt the reciprocity standards.

According to the notice, the asset disregard procedure and calculation will be the same for every individual with a partnership policy that applies for Medicaid in a participating state without regard to whether the policy was purchased in another state. But to be eligible for the asset disregard, both the state in which the individual applies for Medicaid and the state in which the individual purchased the partnership policy must currently be participating in the reciprocity standards.

The notice also provides that if someone is determined eligible for Medicaid using a partnership asset disregard, eligibility will not be revoked if the state decides to become exempt from the reciprocity agreement. However, once a state elects exemption, the exemption applies even if the Medicaid applicant purchased the policy before the state elected exemption.

The reciprocity standards become effective January 1, 2009. The Department is accepting comments until November 3, 2008.

New Jersey’s Office of Administrative Law recently issued a significant ruling that may make it easier to qualify for Medicaid. In K.R. vs. Somerset County Board of Social Services, O.A.L Docket No. HMA 12343-07 (Aug. 25, 2008),  New Jersey’s Office of Administrative Law ruled that an account titled to a Medicaid applicant “or” another person is not disqualifying if the applicant can demonstrate that he did not contribute to the account and the other account holder did not intend to make a gift to the applicant in funding the account.

For many years, K.R. relied on his brother A.R. to meet his care and financial needs. A.R. established a bank account titled “K.R. or A.R.” to make funds available for K.R. should A.R. die suddenly. To lessen tax, the account used K.R.’s Social Security number. The Somerset County Board of Social Services determined that the account disqualified K.R. from Medicaid until closed, and that A.R.’s closure of the account triggered uncompensated transfer or “gift” penalties that disqualified K.R. from Medicaid for another year. K.R. requested a fair hearing.

The Board claimed that merely titling an account with a Medicaid applicant’s name and Social Security number automatically disqualifies the applicant for Medicaid, whether or not he ever contributes to the account. K.R. responded that both federal law and New Jersey’s own Medicaid regulations prohibit the state from disqualifying a Medicaid applicant whose name is on an “or” account but doesn’t have beneficial ownership in it.

K.R. noted that New Jersey’s Medicaid regulations treat an item as Medicaid disqualifying only if it is owned by the Medicaid applicant. New Jersey’s Multiple-party Deposit Account Act provides that an “or” account normally belongs to each party in proportion to the parties’ net contributions. Thus, an individual who never contributes to the account wouldn’t normally have ownership rights despite nominal title.

An administrative law judge held that New Jersey could not automatically treat every “or” account as Medicaid disqualifying because Supplemental Security Income (SSI) rules permit an applicant to show that he doesn’t own such an account in his name, and federal law prohibits state Medicaid eligibility methodology from being more restrictive than Social Security Administration practices in evaluating SSI eligibility. Since A.R. fully funded the account without intending to make a gift to K.R., the judge determined that the account was not owned by or available to K.R., and that A.R.’s closure of the account did not trigger Medicaid “gift” penalties.

Under the K.R. case, a Medicaid applicant is entitled to demonstrate that an account titled to the applicant and others is not Medicaid disqualifying even though New Jersey’s Medicaid regulations do not set forth rebuttal procedure. New Jersey’s Multiple-party Deposit Account Act rather than the Medicaid regulations determines whether an “or” account holder’s is an account owner. Medicaid penalties do not apply where an “or” account is closed and the Medicaid applicant isn’t an owner under New Jersey’s Multiple-party Deposit Account Act.

(I acknowledge with appreciation the Academy of Special Needs Planners website and the resources available to members which I used to compile the following list of links)

PRIMARY SOURCES:

• Social Security Administration’s Main Page: Social Security Online - The Official Website of the U.S. Social Security Administration

• Social Security Administration’s “Our Program Rules” compilation of links to the Act, regulations, rulings, and other materials: Social Security Online - Regulations

• Social Security Regulations: Code of Federal Regulations

• “SSI Law and Regulations Finder:” SSI Law and Regulations Finder

• Social Security Regulations specifically on SSI: 20 CFR Part 416

• Social Security POMS (Program Operations Manual System): SSA's Policy Information Site - POMS .

• Social Security Policy EMs: Social Security Online Policy Site: Policy EMs

• Social Security Rulings: Social Security and Acquiescence Rulings

• Social Security HALLEX - the rules for conduct of hearings at the Office of Disability Adjudication and Review (ODAR, formerly known as Office of Hearings and Appeals – OHA): HALLEX Title Page See particularly, “Conduct of Hearings”: Conduct of Hearings

• Social Security Act: Social Security Act Volume I

• To receive official notifications of new proposed rules or official notices: Regulations.gov

SSA SECONDARY SOURCES:

• SSA’s electronic book, with hyperlinks: Understanding Supplemental Security Income (SSI) — Home Page

• SSA’s public, electronic public education pamphlets, called Links to SSI Spotlights

• SSA’s “Spotlight on Resources”: Understanding SSI — SSI Spotlight on Resources

• SSA’s “Understanding your rights and responsibilities” (what you have to report to SSA): Understanding Supplemental Security Income (SSI)– Reporting Responsibilities

• SSA - Requesting a “Proof of Social Security/SSI Income Letter”: Benefits Verification

• SSA – Office Locator – where do I send the Notice of Special Needs Trust, or other documents: Local Office Search

• SSA’s “Social Security Handbook” – an electronic explanation of everything about SSA and their programs, however, the handbook does not have hyperlinks to primary sources (statutes, regulations, POMS, etc.) and, most importantly, as with any summary of a complex law, doesn’t cover all the exceptions to the rules, and therefore is not as useful as other materials cited above: Social Security Handbook

IMPORTANT WEBSITES OF ORGANIZATIONS:

• National Organization of Social Security Claimant’s Representatives - NOSSCR: NOSSCR :: National Organization of Social Security Claimants' Representatives

• National Senior Citizens Law Center: NSCLC Website

• Martin on Social Security: Martin on Social Security Treatise

• Social Security Advisory Service: Social Security Advisory Service - SSAS

SSA RESOURCES ON SPECIAL NEEDS TRUSTS AND TRUST ADMINISTRATION ISSUES:

[NOTE: There are no federal regulations issued to date by the Social Security Administration on Special Needs Trusts (SNTs). All the “law” on SNTs is found in the statutes and in the POMS cited below]

• Third Party Trusts, and trusts prior to 1/1/00 - SSA - POMS: 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 - 02/14/2008

• Special Needs Trusts under 42 USC 1393p(d)(4)(A) – general policy: SSA - POMS: SI 01120.203 - Exceptions to Counting Trusts Established on or after 1/1/00 - 08/15/2002

• SNT Exceptions to Counting Trusts as a Resource: SSA - POMS: SI 01120.203 - Exceptions to Counting Trusts Established on or after 1/1/00 - 08/15/2002

• What is a Resource Transfer: SSA - POMS: SI 01150.001 - What is a Resource Transfer - 11/08/2006

• How to do a Proper Spend-Down, e.g., SSI Personal Service Contracts, Prepayment of Food and Shelter, etc.: SSA - POMS: SI 01150.005 - Determining Fair Market Value - 08/24/2000

• SNT Administration – Spending money from a trust:

• See the regulations, at 20 CFR 416.1104 for income, and 20 CFR 416.1201 for resources.

• SSA’s “Spotlight on Trusts”: Understanding SSI — SSI Spotlight on Trusts

• POMS Magic Ten – what are the only ten items that trigger In-kind Support and Maintenance deduction: SSA - POMS: SI 00835.465 - ISM and Households - Household Costs - 02/18/97

Actually, I could only find 9 blogs in the entire State of New Jersey covering elder law issues. A list of these 9 New Jersey elder law blogs follow, in no particular order:

Elder Law Today Podcast by Yale S. Hauptman, Esq. Yale is the founder of his own law firm, Hauptman & Hauptman, P.C., located in Livingston, NJ. Yale is a member of the National Academy of Elder Law Attorneys and the New Jersey Bar Association’s Elder Law Section. He devotes most of his time to the practice of elder law and estate planning for young families. Yale’s blog includes a monthly audio podcast in which he discusses the various issues that affect seniors and their families today. A podcast is an interesting addition to a blog and Yale is the only New Jersey attorney I am aware of who offers a podcast to consumers discussing elder law issues. Yale’s blog was recently profiled in the Star-Ledger newspaper, which can be found here - Blog of the Day: Elder Law Today - NJ.com: Jersey Blogs

You and Yours Blawg by Deirdre R. Wheatley-Liss, Esq., a partner in the law firm of Fein, Such, Kahn & Shepard, PC, located in Parsippany, New Jersey. Deirdre is a Certified Elder Law Attorney (CELA), by the National Elder Law Foundation, approved by the American Bar Association, Her practice focuses on business planning law, estate planning and administration, trusts, elder law and taxation. It appears that Deirdre started blogging about elder law issues in 2005 which would make her blog the longest-running elder law blog in New Jersey.

Elizabeth Walsh Kreger : New Jersey Law Blog is, appropriately enough, by Elizabeth Walsh Kreger, Esq., a partner in the Estate Planning Group of the Stark & Stark law firm in Princeton, NJ. Elizabeth concentrates her practice in trusts and estates, estate planning, family dispute resolution, estate administration, and elder law. Though interesting and well-written, the blog may be defunct since the most recent post is dated in 2005. We hope that Elizabeth gets re-energized and begins posting to her blog again soon.

NJ Elder Law by Kenneth Vercammen, Esq., Chair of the ABA Elder Law Committee, is a Middlesex County trial attorney. His blog says he “has published 130 articles in national and New Jersey publications.” Ken’s website, http://www.njlaws.com/, indicates that he was a NJ Super Lawyer in 2007 and 2008 in municipal law and related court matters.

Nursing Home Law Blog, by associate Brian Murphy and partner David Cohen of the Stark & Stark law firm. David concentrates his practice in nursing home negligence and abuse claims, elder abuse and assisted living facility litigation. He is certified by the New Jersey Supreme Court as a Certified Civil Trial Attorney, and is the Vice Chair for the American Association for Justice’s Nursing home Litigation Group. Brian Murphy is an associate in the firm’s personal injury group.

Expert Home Care NJ - New Jersey Home Health is by Frank Esposito and David Goodman, Certified Senior Advisors (CSA), who are the owners of New Jersey’s Live In Home Care Specialists | Expert Home Care. This is one of only a few blogs anywhere covering issues relating to the field of home care. It is updated regularly and is a good and interesting source of information about home care.

Hanlon Niemann Blog | A Freehold, New Jersey Law Firm is by the partners of the Hanlon Niemann Law Firm, Christopher J. Hanlon and Fredrick P. Niemann. Although they blog about many topics, elder law is the topic of many posts so I thought that the blog deserved to be mentioned on this list. Chris is the head of the firm’s litigation department. Chris has been practicing law since 1977. Fred is the managing partner of the firm. He is a member of the National Academy of Elder Law Attorneys, the Monmouth County Probate and Estate Committee and the Monmouth County Chancery Practice Committee. He is also an approved civil mediator by the Supreme Court of New Jersey.

Jersey Estate Planning blog is maintained by Victor J. Medina, Esq., of the law firm of Medina, Martinez & Castroll in Pennington, NJ.

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. For those of you who don’t know me, I have been practicing law in New Jersey for 25 years. I am a Certified Elder Law Attorney, and an Accredited Professional Mediator. I am a co-founder of The Elder Mediation Center of New Jersey. I also have been trained in and practice Collaborative Law. I was named as a NJ Super Lawyer in 2007 and 2008 in elder law and estate planning. More information can be found on my website’s profile page - Attorney Profile: Donald D. Vanarelli and on the About page of this blog.

If readers are aware of other New Jersey elder law blogs that I’ve inadvertently omitted, please let me know and I will add them to the list. I also invite readers to comment on any of the blogs mentioned above, indicating the relevance of blog content and usefulness, as well as identifying blogs that they have found helpful in the elder law and estate planning areas.

Aging Well magazine, which is for “Professionals Promoting Positive Aging,” recently published an article I wrote on elder mediation, entitled “Keeping Family Peace Through Elder Mediation.”

The article can be found here - “Keeping Family Peace Through Elder Mediation.”

Trials, as a method of dispute resolution, have been trending downward for years. For example, the number of tort trials in the federal courts declined by 80% from 1985 to 2003. Of the 98,786 tort cases resolved in federal court in 2002 and 2003, only 1,647, or 1.7%, were decided by trial. The other 98.3% of the cases resolved in those years were either dismissed prior to trial, or settled. The situation is similar in the state courts. Nationwide, the number of tort trials decided in the state courts after a trial declined 23% from 1992 to 2001. Of the states reporting in 2004, the percentage of civil cases decided by trial in the state courts was ½ of 1%. (For those readers who love to peruse statistics, I got the above information from Center for Justice & Democracy and Bureau of Justice Statistics Civil Justice Statistics.)

There are similar outcomes in the New Jersey courts. Last year, 95,000 new civil cases were filed statewide. In addition, 68,000 new matrimonial cases were filed in the same period. Of those cases, about 29% were resolved in mediation in NJ. There is evidence that mediation lays the groundwork for settlement later even if the cases do not settle directly in mediation. The judicial report for the year July 2007 through June 2008 was recently published by the Administrative Office of the Courts, and can be found here.

Like other trial attorneys, I have literally spent weeks in trial preparation. But I have never spent anywhere near that long preparing for a mediation, settlement negotiation or other type of alternative dispute resolution session. I’m sure the same is true for other attorneys. However, since the great majority of cases are resolved before trial during mediation or in settlement negotiations while fewer and fewer cases are tried, attorneys should prepare for mediation with the same seriousness and discipline they display in preparing for trial. Clients should be informed of the unlikelihood of trial and encouraged to participate actively in preparation for mediation.

But how do you prepare for mediation? It is not something attorneys are trained for or accustomed to doing. I have some suggestions:

1. You greatly increase the chances of success in mediation when you make the mental transition from thinking like an advocate in pursuit of a “win” to thinking like a counselor seeking to create value for both parties.
2. Determine what basic information you need from the other party, if any. Think about what the other party will need from your client. Then, make a timely exchange of basic documents and information prior to the mediation.
3. Prepare your client for mediation. The client should understand ahead of time the general nature of the mediation process: what role the mediator plays, what role the lawyer plays and that confidential information may be disclosed because it is protected in the mediation. In addition, the client should have the benefit of the lawyer’s evaluation of the case, including case weaknesses. Most importantly, the client should understand that there is a real opportunity to resolve the case in the mediation.
4. Help the client identify his/her real interests by asking the client to tell you what he or she wants to achieve, listening to the answers and examining each goal identified by asking “Why”? “Why do you want to achieve that goal?” Find out what really motivates the client. Asking questions to uncover interests is like peeling the layers of an onion.
5. Listen closely to the other party during the mediation. When the other party states his/her position, they are giving you valuable information about what they want. Invite them to tell you more by asking: “Why do you want that?” “What is the problem?” “What are your concerns?”
6. Explore the possible resolutions to the dispute. Assess your client’s BATNA (Best Alternative to a Negotiated Agreement). Your BATNA is the reality your client will face if you reach no deal in the mediation. After analyzing your BATNA, calculate your reservation value, or the lowest offer you would be willing to accept.
7. Assess the other party’s BATNA. Think through the alternatives that the other party will face if no deal is reached. Using that information, calculate the other party’s reservation value.
8. Evaluate the ZOPA (Zone of Possible Agreement), or the range of all possible settlements which would be acceptable to both parties. The ZOPA falls between the reservation values of both parties.
9. Prepare a mediation game plan in advance. Decide whether you should make the first offer, how you will respond to offers made by the other side, and how you will use the joint sessions.
10. Use the mediator to educate your client about the strength and weaknesses of his/her case. If your client has unrealistic expectations, let the mediator deflate them. If your client is absolutely convinced of an outcome, let the mediator undercut that conviction. Help the mediator to conduct a similar educational process with your opponent. It might be a good idea to submit a summary of the facts and legal issues in the case to the mediator in advance.

Finally, it’s important to keep track of each mediation session. Identify what worked in the session and what didn’t work. Then, review the file prior to your next mediation session.

(I got ideas for the above suggestions from a variety of sources, including Getting to Yes, Fisher & Ury; Getting Past No, Ury; Negotiation Genius, Malhotra & Bazerman; 3D Negotiation, Lax & Sebenius; and, The Complete Guide to Mediation, Mosten)

Nina Weiss, Esq., an attorney/mediator and partner with the law firm of Serra/Weiss in Princeton, NJ, is a founding member of the Elder Mediation Center of New Jersey (EMCNJ).

Mediator Weiss was quoted in the March 2, 2008 edition of The Wall Street Journal in an article describing the growing recognition and use of elder mediation in resolving disputes involving elders and their family members. In describing the types of disputes in which mediation can be useful, the article states:

Mediation can be used to settle disagreements over living arrangements, how finances should be handled, who should be granted power of attorney, and even visitation rights among squabbling siblings. Agreements often specify the kinds of information, especially financial and medical updates, that will be provided to family members who live far away.

The Wall Street Journal article can be found at: Mediating Elder-Care Disputes - WSJ.com

The EMCNJ is a collaborative alliance comprised of independent mediators, attorneys, geriatric care managers and other eldercare professionals. EMCNJ utilizes a team approach to provide efficient, knowledgeable, and affordable alternate dispute resolution services designed to resolve the conflicts of elders, individuals living with disabilities, their families and others.

The other founding members of the EMCNJ are Attorney/Mediator Anthony Serra, Attorney/Mediator Donald D. Vanarelli and Geriatric Care Manager Marcie Cooper. Additional information on the EMCNJ can be found at: The Elder Mediation Center of New Jersey.

(I am happy to introduce my first guest blogger, Marcie D. Cooper. Marcie is a geriatric care manager with several advanced degrees and licenses, such as an MSW, LCSW, and C-ASWCM. She is the owner of her own care management company, aptly named Marcie Cooper Care Manager, LLC, located in Fair Lawn, NJ. I have worked with Marcie for many years on many elder law cases. She is top notch in her field and has become a trusted friend and advisor. Marcie is also a co-founder (with Tony Serra, Nina Weiss and me) of The Elder Mediation Center of New Jersey. She can be reached at Tel: 201-703-1699 or at marcie@GratefulCare.com. Her website is located at >www.gratefulcare.com. Welcome, Marcie, and thanks for participating)

Mediation is a process in which an impartial third-party, called a mediator, facilitates communication between parties in conflict. The mediator’s goal is to assist and encourage disputing parties to reach a voluntary and mutually acceptable agreement. Mediation offers an alternative to court-involvement and at its best, preserves relationships among participants that may have divergent goals.

The relatively new field of Elder Mediation provides dispute resolution services designed to resolve conflicts involving older adults, their families and others. The Elder Mediator works with the parties, helping them to identify their goals and priorities, to generate and explore options and to exchange information in hopes of arriving at a solution.

The kinds of conflicts that might be appropriate for elder mediation include matters with a legal basis (decision-making capability, guardianship, real estate issues, estate planning, and long-term planning); family disagreements (living arrangements, driving, second marriages or partnerships, and neglect); community disputes (landlord/ tenant, maintenance of property, pets, and wandering); bioethical matters ( medical treatment, end of life issues, and advance directive interpretation).

Who is the Mediator?

In some states, courts or legislators impose training or experience on mediators who practice in state or court-funded mediation programs. In most states, a person can offer private mediation services without taking a class, passing a test or having a special license or certification. Many private mediators have some training and experience and are associated with mediation organizations and programs.

Disciplines that have been attracted to this emerging field of elder mediation include attorneys, human service professionals, psychologists, life-coaches and business entrepreneurs. The NASW News (September 2006) included an article by Lyn Stoesen entitled “Mediation a Natural for Social Workers”.

The Role of the Geriatric Care Manager

The Elder Mediation Center of New Jersey (EMC-NJ) has developed a unique model that views the Professional Geriatric Care Manager (PGCM) as an integral part of the elder mediation process. Using an Ethical Model for elder mediation, EMC-NJ considers the professional geriatric care manager to be essential when working with parties who are in dispute and are seeking a solution involving frail or vulnerable older adults.

The Pledge of Ethics of the National Association of Professional Geriatric Care Managers guides our elder mediation practice. This approach differs significantly from other mediations models in that the PGCM is not the mediator. The PGCM supports the mediation by providing a care management assessment and formulating a plan of care that is used in the mediation process. The PGCM brings objective and professional guidance to a situation that is often fraught with emotion and disagreement. In recognizing the importance of the PGCM and the plan of care, the mediator uses the skills and recommendations of the PGCM to assist the participants in generating real options.

Ethical Principles

As a fundamental ethical ideal, autonomy represents the individual’s ultimate right to make choices in life. The NAPGCM Pledge of Ethics addresses this in our principle of self-determination. In the Ethical Model of elder medication, the PGCM develops a plan and goals based on this ideal of self-determination.

The geriatric care manager provides an evaluation to assess the extent to which the older adult has the capacity to participate in the mediation process. If it is determined that the older adult has limited capacity to participate, the care manager’s role is to provide the mediator and the parties with the voice of the older adult and to act as an advocate to uphold the principle of autonomy.

Should it be determined that the older adult lacks the capacity to fully participate in safe and appropriate decision-making, the care manager enters the mediation process to ensure that no harm is brought to the older adult. In this Ethical Model of elder mediation, the mediator is considered ‘neutral’ and the PGCM is an advocate for the best interests of the older adult.

In traditional mediation, such as divorce mediation, the parties may agree on a resolution without full knowledge of the facts and without an understanding of the risks associated with decisions that are made during the mediation. In elder mediation this could have dire consequences. The medical, emotional, safety, financial, residential, social and spiritual needs of the person most vulnerable must be considered. The professional geriatric care manager brings these issues to the table.

NAPGCM addresses the issue of loyalty to the client as a duty, even if it conflicts with the interests of others. The care manager in the ethical model of elder mediation realizes this ideal in its purist form. The NAPGCM Pledge of Ethics ensures that we strive for cooperation of all individuals involved in providing service and care. This basic tenet is shared by the innovators of the ethical approach to elder mediation.

For more information about elder mediation, visit www.eldermediationcenter.com.

We will announce the re-opening on the home page of www.dvanarelli.com very soon.

Thank you for your patience.