November 1, 2012

My daughter, Emma, asked me to be a guest speaker for her 7th grade Career Exploration class.  I was terrified I would either bore or depress them to death.  Other parents had already spoken to the class, which prompted her nervously to ask me questions like, “Mom, are you going to have a power point?”  “Um, no,” I responded.  She then commented that one mom built tanks, one handed out sunglasses with “US Navy” on them, and another brought in Hershey bars the size of a small dog.  Clearly, the gauntlet had been thrown, and I had to produce big time.

Armed with movie-theater sized boxes of candy, as soon as I got to the front of the classroom a sweet girl piped up, “Love your shoes!”  I liked her immediately.  Not to be outdone, the boy sitting next to her, a future lady-killer, shouted, “Love your outfit!”  He can now date my daughter in 4 years.  I knew I had them, and it was gonna be good.  Emma was my Vanna White, and handed out the candy to whomever asked a question.

Instead of lecturing, I invited them to ask me anything.  What ensued was a jam-packed hour of insightful, challenging, and thoughtful questions, including, “If you weren’t a lawyer, what else would you do?”  I answered, “I would totally do a retro-hard-to-find clothing store,” which they made fun of endlessly for using the word “totally” ala Valley Girl, even though it was way before their time.  “Did you ever feel like giving up?” “What was your most interesting case?”  “What was your biggest success?”  “How do you spend time with your family?”  “What is your biggest challenge?”  Afterward, the teacher confessed she had been worried about the presentation.  I suspect she feared it would be dullsville.  She said she was amazed at the kids’ enthusiasm and great questions.

I remain irked that I have not yet made the Super Lawyer’s list.  However, Emma came home after school and told me that the rest of the day kids were telling her, “Your mom was awesome!” and that she thought I was awesome too.  I thought, who needs Super Lawyers?  I am Awesome Mom.


May 22, 2012

A must have resource, May 13, 2012

By Michele P. Fuller

This review is from: Administering the California Special Needs Trust: A Guide for Assisting a Person with a Disability as Trustee of a Special Needs Trust (Paperback)

As a special needs planning attorney and director of a non-profit that administers special needs trusts this book is an essential resource for me, my staff, and clients. While written for California trustees of special needs trusts, these trusts in particular are written to conform to federal statutes and policy. Each state may have its own culture, but it is extremely helpful and in fact, very little is only applicable to California. I recommend this exhaustive guide to colleagues and clients as it is very well written without getting mired down in legalese.


September 27, 2011

Special Education Enhancement Millage
On Tuesday, November 8, Chippewa Valley residents will be asked to approve a ballot proposal for a Special Education Enhancement Millage. The proceeds from the 1.2 mill proposal will be used to protect and enhance both special education and general education programs in our district. Every penny will stay in Macomb County and our school district to help local students.

Macomb County’s 21 school districts are now losing $103 million in funding each year compared to 2008 levels from cuts in state per-pupil aid, declines in local property taxes as home values decreased, and the loss of money from federal and other sources. The total equals about $785 for each of the 131,000 students countywide. Here in Chippewa Valley we are losing more than $12.7 million.

The funds from this proposal would continue to help finance programs for all our district’s special education students, plus those with more serious impairments who are attending up to 18 MISD regional and center-based programs.

One in seven Macomb County students currently receives special education services. Last year we provided services to 1,793 special needs students. In recent years, there has been a significant increase of learners with autism, children born with low-birth weight, and other cognitive impairments and health-related issues that require additional services from the Macomb Intermediate School District.

Chippewa Valley, like other districts in Macomb County, is finding it increasingly difficult to fund special education programs while avoiding budget cuts to general education programs. If approved by voters, the new funds would partially offset the district’s funding losses by helping finance local special education programs. This in turn will free up some general fund dollars for programs that will benefit all Chippewa Valley students.

If the proposal is approved Chippewa Valley would receive an additional $3.3 million in funding or approximately $206 per student. Although this represents only about a third of what we are currently losing annually, it will go a long way to help restore and preserve programs.

According to the county equalization department, the average cost of the proposal for a Macomb County homeowner is about .20 cents per day or $71.56 annually (Clinton Township is about .20 cents per day and Macomb Township is about .28 cents per day based on the average residential taxable value). For many homeowners the increase could be much less or nothing at all depending on federal and state tax deductions and rebates. Chippewa Valley residents can calculate their actual cost of the special education proposal at www.mytaxcalc.com/MacombISD.

You must be registered by October 11 to vote in this election. Forms are available in every school office or the Secretary of State website at www.michigan.gov/sos.

The Chippewa Valley school community has a proud legacy of supporting their local schools and the quality education we provide. Please remember to vote on Tuesday, November 8!

Find out more by going to chippewavalleyschools.org. Have a question about the proposal? Call us at 723-2240.

June 2, 2011

For those of us who do not regularly practice elder law and Medicaid planning, there was a significant change to the State Medicaid policy, referred to as the Bridges Eligibility Manual, or the BEM’s.  The rules are all easily accessible on-line at www.mich.gov or simply google search Bridges Eligibility Manual and the proper site will be at the top.

There were two major changes to the BEMs which became effective April 1, 2011 that effect the inaccessibility of jointly owned property and the ability to fund a pooled special needs trust for individuals over age 65.  Another major proposed policy was recently announced which is anticipated to become effective July 1, 2011 which effectively incorporates estate recovery into the Medicaid program.  These changes will greatly impact the need for even general estate planners to become familiar with elder law planning techniques to prevent an unnecessary and devastating result for clients and their families.

The rules governing jointly owned property is under BEM 400-Assets.  Formerly, a jointly owned parcel of real estate was rendered “unavailable” and therefore not counted  as a resource as long as the joint owners were not added within the 60 month look-back period and were unwilling to sell their share.  The most common applicability to this rule was when mom or dad is applying for long term care Medicaid assistance.  This rule prevented the family cottage up north or condo down south from being a countable asset or forcing the sale of the property.

However, as of April 1, 2011 the new rule governing joint property is as follows:

“BEM 400 9 of 42 ASSETS

An asset is unavailable if an owner cannot sell or spend his share of an asset:

• Without another owner’s consent, and
• The other owner is not in the asset group, and
• The other owner refuses consent.

Exception: In SSI-related MA, when ownership is shared by an SSI related child and his parent(s) and parental asset deeming applies, refusal to sell by either the child or the parent(s) does not make an asset unavailable.

Exception: Jointly owned real property is only excludable if it creates a hardship for the other owners; see hardship in this item.”

The problem is proving a hardship exists for the remaining owners.  It is akin to seeing a unicorn.

The second major change in the BEMs which became effective April 1, 2011 is particularly troublesome to my practice as it effects the ability for disabled individuals over age 65 to fund a pooled trust.

Historically, Michigan was very liberal in allowing pooled trust funding.  However, that general policy seemed to change in late 2008 when a worker in the Medicaid Policy Unit began advising eligibility specialists to assess a divestment penalty for the funding of the trust.  The penalty determinations were infrequent and generally successful on appeal.

Perhaps in response to the many successes at the ALJ level, DHS issued a policy change effective April 1, 2011 as follows:

“The trust contains the resources of a person who is disabled (not blind), and under age 65 per BEM 260. See Transfers to an Exception B trust in this item.”

There are several problems with the new policy.  First, the state policy is supposed to follow and implement the federal policy in 42USC§1396(p)(d)(4)(C), which does not reference an age limit for individuals funding a pooled trust.  Further, BEM 260 defines disability and does not contain a reference to age either.

In response, the Elder Law and Disability Rights Section (ELDRS) of the State Bar is working with legislators to develop a statute to allow funding into a pooled trust without penalty and working with policy makers, lobbyists and families in an attempt to remedy this policy.  The ELDRS section is fresh from a victory regarding enforcement of PEME (pre-eligibility medical  eligibility policy and may take up this issue next.

Other states are facing the same issues.  The State of Maryland will implement their pooled trust act which will be effective October 1st of this year.  The bill is simple and to the point, and allows execution and funding of a pooled trust regardless of age.  This issue was also successfully litigated in Wisconsin.  A federal district court in North Dakota also weighed in on this issue, but it was not directly on point as the issue in that case was really centered on the ability of the non-profit trustee to retain trust assets after death.

Finally, the long awaited and highly dreaded estate recovery act has come to Michigan in the form of BEM 400.  The proposed BEM was recently issued as indicated below, comments are to be forwarded to DHS no later than June 6, 2011 and will become effective July 1, 2011 as follows:

“BEM 400 7 of 42 ASSETS

The federal government requires Medicaid to recover money that it paid for services from the estates of Medicaid beneficiaries who have died. Medicaid will only recover the amount Medicaid paid for a beneficiary. This is estate recovery. The state will not seek recovery of certain Medicare cost-sharing benefits.

What is an estate?

An estate includes all property and assets that pass through probate court.

Example: homes, cars, insurance money and bank accounts.

Who is subject to estate recovery?

Medicaid beneficiaries who are age 55 or older.

Are there exceptions to estate recovery?

The state may decide not to recover money if it creates an “Undue Hardship” or if any of the following people lawfully live in the beneficiary’s home

• Beneficiary’s spouse.

• Beneficiary’s child who is under the age of 21, blind, or permanently disabled.

• Beneficiary’s sibling who has an equity interest in the home and was living in the home for at least 1 year immediately before the beneficiary’s death.

• A survivor who:

•• was living in the beneficiary’s home for at least 2 years immediately before the beneficiary went into a medical facility: and

•• provided care so the beneficiary could stay at home during that period.

What is an undue hardship?

An undue hardship exists when:

• The estate is the sole source of income for the survivors, such as a family farm or business; or

• The estate is a home of modest value; or

BEM 400 8 of 42 ASSETS

• A survivor would become or remain eligible for Medicaid if recovery occurred.

How does estate recovery work?

When a Medicaid beneficiary age 55 or older dies, the state sends an estate recovery notice to the estate representative or heirs. The estate recovery notice tells them:

• the state plans to file a claim;

• how much the state will claim;

• how to apply for an undue hardship waiver.

If no exceptions apply, then the state will file a claim with the estate.

How to apply for an undue hardship waiver?

An Undue Hardship application must be completed. Applications are available from the following sources:

• online at www.michigan.gov/estaterecovery

• by email at miestaterecovery@hms.com

• by sending a letter to P.O. Box XXXX.

The completed application must be received no later than 60 days from the date of the estate recovery notice. Send copies of any documents the notice specified. The state will determine if a waiver is warranted.”

This new rule will certainly prompt administrative changes in probate court filings and DHS will likely be an interested party on probate estates for individuals over age 55.  Interestingly, this new rule may in fact revitalize a sagging estate planning practice as estate recovery can be completely avoided through a well-crafted, but simple plan. Proper drafting of Lady Bird deeds and other historically “elder” law techniques will need to be mastered by even the general practitioner in order to prevent the State of Michigan from becoming the unintended primary beneficiary of an estate.

The governor’s budget has assessed approximately Ten Million Dollars in potential revenue for the state.  While the estate recovery bill was being debated in the state legislature, there was varying statistical analyses of state revenue generate through estate recovery.  All states except Michigan have some form of estate recovery.  In our discussions at the Elder Law council and probate council meetings, after state employees and overhead is paid for to collect these assets, there is generally a loss to the state.  The state may end up being the largest homeowner in Michigan.

If you wish to submit comments to DHS regarding the implementation of the policy, please forward your comments to

Attn: Lisa Trumbell
PO Box 30479
Lansing, Michigan 48909-7979
E-mail: trumbelll@michigan.gov

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