Elder Law Blog

Tuesday, November 15, 2016

Will Trump Dump Medicaid on the States?

How will elder care be affected when Donald Trump becomes president and a Republican-controlled Congress convenes in January?  We should prepare for potentially severe budget cuts in Medicaid and other programs affecting seniors and people with disabilities, according to news sources, experts, and advocates

Read more . . .

Tuesday, October 20, 2015

New Rules Proposed for Veterans Aid and Attendance Pension

New Rules Proposed for Veterans Aid & Attendance Pension


Sweeping changes to the Veterans Aid and Attendance Pension may be implemented soon.  The Department of Veterans Affairs (VA) has published proposed new rules that would clarify the amount of property and income a veteran or widow can have to be eligible for the pension.  In addition, the proposed rules would implement a look back period and a penalty for giving away property during the 36 months before applying for the pension. Transfers to trusts would also be penalized, with few exceptions.  Furthermore, the purchase of an annuity to reduce net worth could be penalized if the annuity would not have been in the claimant’s financial interest but for the claimant’s application for the pension.


The proposed rules would also limit the definition of Activities of Daily Living (ADL’s) for purposes of medical eligibility and unreimbursed medical expenses that can be deducted from income.  ADL’s would include assistance with dressing, bathing, toileting, transferring, and eating, but not medication administration and other instrumental activities of daily living.  The home care hourly rate would be capped at a national average rate.  Payments to independent living facilities would not be deductible medical expenses.


In response to the proposed rules, the Assisted Living Federation of America (ALFA) submitted comments to the VA, suggesting three changes to the proposed rules.  First, ALFA commented that the proposed rule regarding ADL’s is “excessively limiting by eliminating two frequent reasons seniors move into assisted or memory care communities:  the inability to ambulate on their own, and inability to administer their own medications “.  ALFA recommended that VA expand the definition of ADL’s and allow room and board at an independent living facility to be a deductible medical expense if certain conditions are met.  Finally, ALFA suggested that VA consider other sources in setting the limit for the home care hourly rate, including an industry cost survey and differences in rates across the country.


For several years, legislation has been filed in the U.S. Congress to implement a look back period for the pension, however the legislation has never been passed.  Instead, VA is using the rule-making process to implement a look back period and other far-reaching changes.  The final rules are scheduled to be published in fiscal year 2016, which began October 1st.  For more information, please contact The Stone Law Firm at 713.434.6310.

Monday, September 28, 2015

Conference Focuses on Special Needs Children Transition to Adult Care

Most parents of special needs children in the U.S. believe their children are not adequately prepared to transition to adult health care, work, and independence.  Consequently, the transition from pediatric to adult-based care for special needs children is the focus of the 16th Annual Chronic Illness and Disability Conference, Oct. 1-2, organized by Baylor College of Medicine and Texas Children’s Hospital, which will provide information on health care, legal, financial, employment, and residential issues.  The target audience includes youth/young adults with chronic illness and their parents/guardians, as well as physicians and health care providers.  The conference website and brochure are available at


Tuesday, September 22, 2015

Recent Changes in Elder Law

On this first day of autumn, the Stone Law Firm is launching a new series of blogs on Recent Changes in Elder Law.


Veterans Aid and Attendance Pension

Proposed new rules for the Veterans Aid and Attendance Pension could make sweeping changes to the pension, if implemented.  The proposed new rules would add a 36-month look-back period and a penalty for gifting property, similar to Medicaid.  Another goal of the new rules is to clarify the maximum amount of assets that the veteran or widow can have in order to qualify.  Medical eligibility criteria may also be tightened.  The rules may be implemented as soon as October 1st or later in February, 2016.  We do not know what the final rules will be or whether pending applications will be grandfathered.


Texas Medicaid

With the legalization of same-sex marriage by the U.S. Supreme Court, the Texas Medicaid Nursing Home program has extended spousal impoverishment protections to all married couples, including same-sex married couples.  Spousal impoverishment protections are designed to protect the finances of the beneficiary’s spouse by providing a minimum monthly income to the spouse and allowing the spouse to keep one-half or more of the couple’s assets.


A Medicaid rule change has occurred in regard to Applied Income, or the co-payment that a beneficiary pays to the nursing home.  Medicaid will no longer exclude as an expense the withholding of taxes from Social Security and pension checks.


Estate Planning, Advance Directives, Guardianship

The Texas Legislature has enacted changes to the Statutory Durable Power of Attorney, Directive to Physicians, and Appointment of Agent for Disposition of Remains.  In addition, the Legislature added certain patient protections to the controversial futile care law by providing a medical standard for the withdrawal of pain medication and artificially administered nutrition and hydration. 


The Legislature also approved statutory changes that emphasize the use of less restrictive alternatives to guardianship, which deprives an incapacitated person of many legal rights.


Future blogs will provide additional details and updates on changes in elder law.  For more information contact Nancy Stone at 713.434.6310.



Wednesday, December 24, 2014

Holiday Greetings & Medicare's 50th Birthday

This holiday season we celebrate the opportunity to work with you and your family on elder law, disability, and estate matters.  We greatly appreciate your continued support and wish everyone, especially those who have suffered a loss this year, a peaceful holiday and a New Year filled with hope.

Medicare's 50th birthday in 2015 is drawing attention to the state of health care for older and disabled adults.  While Medicare is more protective than insurance plans that cover people under age 65, a recent survey by the Commonwealth Fund found that the U.S. lags worldwide in health care for those over 65, as reported in a New York Times article this month. The survey compared seniors' health care in the U.S. with that of Australia, Canada, France, Germany, the Netherlands, New Zealand, Norway, Sweden, Switzerland, and the UK. Here are the survey's findings reported by the Times, with quotes by Robin Osborn of Commonwealth Fund:

'■ Our older population is sicker. We lead the list in the proportion of people over 65 who have two or more chronic diseases (68 percent report hypertension, heart disease, diabetes, cancer, etc.) and who take four or more prescription drugs (53 percent). Only a third of seniors in the United Kingdom have multiple chronic conditions. (The survey didn’t include residents of nursing homes or other care facilities.)

“One thing we know contributes to this is not having an ongoing, stable source of health insurance throughout your life,” Ms. Osborn said. Before they became Medicare-eligible, American seniors may have forgone preventive treatments or let conditions worsen because they couldn’t afford care.

■ Older Americans still struggle to pay for health care. Nineteen percent said that in the past year, cost was a barrier that prevented their seeing a doctor, undergoing a recommended test or treatment or filling a prescription. In only one other surveyed nation (New Zealand, at 10 percent) did that proportion reach double digits.

Among American seniors, 21 percent had out-of-pocket medical expenses that topped $2,000 and 11 percent had problems paying their medical bills. In Norway and Sweden, 1 percent had problems paying; in Germany, 3 percent.

“As good as Medicare is – it provides excellent coverage over all – it still isn’t as protective as the coverage people get in other countries,” Ms. Osborn said. Its deductibles and cost-sharing requirements still leave many Americans scrambling to afford drugs and doctors – which also cost more here.'


Tuesday, September 9, 2014

"3-Strikes" Plan to Protect Seniors in Nursing Homes

"3-Strikes" Plan Spurs Nursing Home Regulation Debate

By Edgar Walters, published in the Texas Tribute, September 7, 2014


At a hearing in August to evaluate the state agency responsible for Texas’ elderly residents, State Sen. Charles Schwertner singled out seven of the 1,200 nursing homes licensed by the Department of Aging and Disability Services.


“These seven facilities are the worst of the worst,” said Schwertner, a Republican from Georgetown. At the hearing, he proposed a “three-strikes” rule that would force the state to close nursing homes found to have the highest-level violations of federal quality standards on three separate days over 24 months.


The department “needs to have this direction from the Legislature that we are serious about protecting our seniors,” said Schwertner, an orthopedic surgeon and chairman of the Senate Health and Human Services Committee. His recommendation emerged from a once-per-decade evaluation of the agency that is stirring arguments about whether the state should do more to supplement federal regulation of the nursing home industry, which in Texas serves nearly 94,000 people. Lawmakers are expected to tackle this issue during the 2015 legislative session.


Nursing facilities have been quick to push back against Schwertner’s proposal. “The nursing home sector remains one of the most heavily regulated settings in health care by both state and federal agencies,” said Kevin Warren, president of the Texas Health Care Association, which advocates for the industry. The state already has “authority in the current regulatory framework to identify infractions, impose financial penalties and require facilities to correct violations within the agency’s state and federal oversight responsibilities,” he said…


AARP Texas has endorsed Schwertner’s proposal and other recommendations that expand the state’s capacity to sanction negligent nursing homes because “almost nothing is being done to improve their performance or to penalize them,"…


Full Story


Thursday, April 10, 2014

Fewer Physicians Accepting Medicaid Patients

It’s often thought that the battle of Medicaid ends after being accepted – once admitted into the program, low income families should be able to receive the health care they need. Unfortunately, in certain areas of the U.S., families aren’t being accepted by the physicians in their zone, leading some ill patients to travel further distances, or to forego not receiving the preventive care they need.

Depending on where a Medicaid beneficiary lives, it can become extremely difficult to be accepted by a primary care physician. Even in areas where there is a large concentration of physicians, some doctors aren’t willing to accept Medicaid patients because Medicaid reimburses physicians at a lower rate than Medicare and private insurance.  Access to preventive health care by Medicaid beneficiaries can be even more challenging in rural areas. 

Attempting to find out how challenging it can be to obtain an appointment in a poor area of Mississippi, researchers posed as patients (half covered under Medicaid, half covered under private insurance) and called different practices. Researchers found that 47 percent of the new Medicaid patients were accepted by the doctors, whereas about 75 percent of new patients with private insurance were accepted. These margins alone exemplify the difficulty one can face as a Medicaid patient. 

People who need Medicaid coverage tend to be sicker and to need the care of physicians most.  Without being able to receive the care they need, most Medicaid beneficiaries members put off symptoms, and ignore the obvious signs. This can lead to worsening conditions. For example, patients with diabetes who don’t get treated can go into a diabetic coma, which requires emergency care and , if receiving the appropriate care, could have been is completely preventable with appropriate medical care.

SImilarly, in the Medicaid nursing home program, Medicaid reimburses facilities at a lower rate than Medicare and private insurance.  Consequently, nursing homes limit the number of Medicaid patients they will admit, making it difficult for a patient to find a facility.  Nursing homes often have waiting lists for the limited number of Medicaid beds in the facility.  The process of finding a Medicaid facility and securing a Medicaid bed can be very stressful for the spouse or family of a patient who requires 24-hour nursing care and cannot be cared for safely at home.

The Stone Law Firm supports patients' families by helping them find quality nursing homes and available Medicaid beds.  We handle all aspects of Medicaid planning and applying for Medicaid coverage of long-term care, including in-home services.

Tuesday, April 8, 2014

Income, Estate and Gift Taxes

Only seven days left to file a 2013 income tax return on time.  If you are required to file a tax return, part of your Social Security benefits may be taxed if you have other income.  If one-half of your Social Security benefits plus your other income is between $25,000 and $34,000 (single), or $32,000 and $44,000 (married), up to 50% of your Social Security benefits may be taxable.  If your "combined income" is more than $34,000 (single) or $44,000 (married), up to 85% of your benefits may be taxed.  Here is an article on Taxation of Social Security Benefits.  There is also a tax credit for individuals who are disabled and elderly.  IRS Publication 524 provides more information on the tax credit.

Congress has permanently set the estate tax exemption at $5 million per individual and $10 per couple.   The exemptions, which have been increased for inflation,  are $5.34 and $10.65 million respectively in 2014.  The lifetime gift tax exclusion is also $5 million or $5.34 million in 2014.  Any number of gifts of up to $14,000 per individual per year can be given without counting toward the lifetime gift tax exclusion.

Monday, March 10, 2014

Problems in Medicaid Managed Care

Pitfalls Seen in a Turn to Privately Run Long-Term Care,” published in the New York Times March 6, 2014, is timely as Texas prepares to shift administration of Medicaid nursing home services from state government to private insurance companies as early as September, 2014.  

Across the county, Medicaid long-term care has been privatized rapidly by state leaders to curb rising Medicaid costs as the elderly population expands, life expectancy increases, and the incidence of chronic, disabling conditions grows.  On average, Medicaid spends five times more on long-term care for an aged and disabled beneficiary as it does on a beneficiary in children’s Medicaid; aged and disabled beneficiaries comprise 6% of the Medicaid population yet consume one-third of Medicaid spending, according to the New York Times.  At least 26 states have implemented programs in which publicly funded Medicaid long-term care is managed by private, for-profit insurance companies. 

In the managed care model, Medicaid pays a flat monthly rate per beneficiary to a private insurance plan to cover and coordinate the beneficiary’s care.  The goal is to provide the most appropriate care in the least restrictive setting at the most reasonable cost.  Managed care plans achieve cost-savings by substituting Medicaid home care services, where appropriate, for care in a high-priced nursing facility.  The savings achieved by expanded use of home care is intended to save taxpayer dollars and counterbalance the higher care costs of beneficiaries who require nursing facility services.

Previously, there was little Medicaid funding available to provide less expensive home and community-based care.  The Medicaid managed care model offers an opportunity to end the bias toward facility care in Medicaid, to make in-home care more accessible, and to enable elderly and disabled Medicaid beneficiaries to remain at home in the community for as long as possible. 

Insurance companies, however, must also deliver profits to investors.  As the New York Times documents, managed long-term care plans have denied care to Medicaid beneficiaries who required more expensive nursing home care or more intensive home care services.  Managed long-term care plans have cherry-picked healthier seniors, including hundreds of beneficiaries who were not impaired enough to be eligible, while denying access to the most impaired.  Furthermore, the involvement of private insurance companies may not result in cost-savings for taxpayers.  In Minnesota, a 2011 audit found the state had overpaid insurers $207 million for expenses that included high executive salaries and a luxury box at a sports stadium.

Tuesday, March 4, 2014

HHSC To Host Medicaid Information Sessions

The Texas Health and Human Services Commission is holding a series of information sessions across the state. The sessions are regarding several Medicaid managed care initiatives.

The 2013 legislature had approved a few expansions of Medicaid managed care.

Fine more information here

Tuesday, June 11, 2013

Medicare Coverage and the New Health Care Law

Beware of scams that urge Medicare beneficiaries to purchase a “qualified health plan” (QHP) in the new health insurance marketplace.  Medicare beneficiaries should not purchase a QHP.  Medicare beneficiaries may enroll in Medicare Savings Programs and Medicaid, if eligible, via the online marketplace that opens October 1, 2013.  The following plans, however, will not be available for purchase on the exchange:  Medicare drug plans, Medicare Advantage plans, and Medicare supplement or Medigap plans. For more information on Medicare coverage and the ACA, follow this link to the Center for Medicare Advocacy’s website:


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Attorney Nancy Stone assists clients with Elder Law, Medicaid Planning, and Estate Planning throughout Harris County, TX. I am now based in Sugar Land and serve all of Houston, Harris County, Bellaire, Jersey Village, Cypress, West University, The Heights, Pearland, Alvin, Sugar Land, Missouri City, Kingwood, Humble, The Woodlands, Spring, Tomball, Richmond, Rosenberg Pasadena, Baytown, La Porte, Clear Lake, Texas City, Katy, Friendswood, Stafford, as well as Fort Bend County, Brazoria County, Montgomery County, Galveston County, Liberty County, Chambers County, Waller County and throughout Southeast TX.

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