What is PASRR?

I’ve been asked a couple of times this week about admission to adult care facilities and this thing called “PASRR”… what is it?  Well, let’s check it out at the NC Health and Human Services website​.

​As always, if you have questions about VA benefits, Medicaid, or Estate planning, please give us a call!  919-883-2800

North Carolina Pre-Admission Screening and Resident Review (PASRR)
Who is subject to PASRR Screening?
The PASRR is a required screening of any individual who is being considered for admission into a Medicaid Certified Nursing Facility or Adult Care Home regardless of the source of payment. Please see the specific informaition below for each program.


Federal law (42 CFR 483.128) mandates that states provide a Level I screen for all applicants to Medicaid-certified nursing facilities to identify residents with serious mental illness (SMI), mental retardation (MR), or a related condition (RC). For residents with no evidence or diagnosis of SMI, MR, or RC, the initial Level I screen remains valid unless there is a significant change in status.
Referred to as the Level I or identification screen, specific diagnostic and functional questions about an individual are raised to identify those persons with mental illness, mental retardation, and conditions related to mental retardation. The Level I and, when required, the Level II screens must be performed prior to nursing facility admission (excluding those situations discussed in Section II.D.ii of this manual).
The Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (DMH/DD/SAS) PASRR Unit is the agency which will make final determinations regarding appropriateness of placement and need for specialized services and, in cases where specialized services are determined as necessary, the DMH/DD/SAS will arrange for provision of those services.


The Level II screening is triggered by evidence of a serious mental illness (MI), mental retardation (MR) or condition related to mental retardation (RC) as defined by state and federal guidelines. The purpose of the Level II screening is to determine if the individual has any special needs due to his/her identified condition that need to be addressed in a nursing facility or if those special needs are so significant that they cannot be met in a nursing facility and can only be met in a psychiatric hospital or a specialized facility dedicated to the care of the developmentally disabled. For those suspected of meeting state and federal PASRR criteria for MI or MR/RC, Level II screens must be performed both prior to admission (PAS) to assess for both NF placement appropriateness and specialized service needs.​

Proposed regulations offer guidelines for new state – sponsored ABLE accounts for people with disabilities

Proposed Regulations Offer Guidelines for New State-Sponsored ABLE Accounts for People with Disabilities
IR-2015-91, June 19, 2015


— The Internal Revenue Service today released proposed regulations implementing a new federal law authorizing states to offer specially-designed tax-favored ABLE accounts to people with disabilities who became disabled before age 26.
The Achieving a Better Life Experience (ABLE) account provision was signed into law in December 2014. Recognizing the special financial burdens faced by families raising children with disabilities, ABLE accounts are designed to enable people with disabilities and their families to save for and pay for disability-related expenses.
The new law authorizes any state to offer its residents the option of setting up an ABLE account. Alternatively, a state may contract with another state that offers such accounts. The account owner and designated beneficiary of the account is the disabled individual. In general, a designated beneficiary can have only one ABLE account at a time, and must have been disabled before his or her 26th birthday. The law provides what it means to be disabled for this purpose.
Contributions in a total amount up to the annual gift tax exclusion amount, currently $14,000, can be made to an ABLE account on an annual basis, and distributions are tax-free if used to pay qualified disability expenses.  These are expenses that relate to the designated beneficiary’s blindness or disability and help that person maintain or improve health, independence and quality of life. For example, they can include housing, education, transportation, health, prevention and wellness, employment training and support, assistive technology and personal support services and other expenses.
In general, an ABLE account is not to be counted in determining the designated beneficiary’s eligibility for many federal means-tested programs, or in determining the amount of any benefit or assistance provided under those programs, although special rules and limits apply for Supplemental Security Income (SSI) purposes.
The proposed regulations, available today for public inspection at www.federalregister.gov, provide guidance to state programs, designated beneficiaries and other interested parties on a number of issues. For example, the proposed regulations explain the flexibility the programs have in ensuring an individual’s eligibility for an ABLE account. They also indicate that the IRS will develop two new forms that ABLE account programs will use to report relevant account information annually to designated beneficiaries and the IRS — Form 1099-QA for distributions and Form 5498-QA for contributions.

Until the issuance of final regulations, taxpayers and qualified ABLE programs may rely on these proposed regulations.

The IRS welcomes comments. Comments must be received by Sept. 21, 2015, and may be submitted electronically, by mail, or hand delivered to the IRS. A public hearing is scheduled for Oct. 14, 2015, at the IRS Auditorium, 1111 Constitution Ave. NW, in Washington. See the proposed regulations for details on submitting comments or participating in the public hearing. More information can be found at Tax Benefit for Disability: IRC Section 529A.

Asset Protection Trusts

An article recently published by WealthCounsel addresses the use of Asset Protection Trusts.  Technically, they discuss self-settled trusts, in which your assets are used to fund the trust and you retain a beneficial interest.  We can’t do that in North Carolina exactly that way, so we use a version that irrevocably transfers those assets out of your name and interest and the trust makes your family and children the beneficiaries.

Both strategies are important estate planning tools.  In our experience, the irrevocable asset protection trust​ is an essential part of estate planning even if you are not worried about VA benefits or Medicaid… there is still a place for planning wealth transfer to your heirs in a controlled, predictable, and protected manner.

If you’d like more information, check out this article.  And, give us a call to discuss your estate planning needs.  You will find us to be caring compassionate attorneys, passionate about Estate Planning and Elder Law, and focused​ on VA benefits and Special Needs Trusts.

Gray Divorce – a new trend?

An interesting, and some say alarming, trend among the aging population is divorce.​  The term coined for it is “Gray Divorce.”  It describes divorce after many years of marriage, and the statistics are quite surprising.  According to Susan L. Brown and I-Fen Lin, sociologists at Bowling Green State University in an article by the Washington Post, more than half of divorces are to people over age 50 and one in ten are over age 65.

This presents interesting long term implications for health care because people without established social patterns often are less healthy.  And, divorced couples are also often less wealthy.  The article asks, “As they age and experience health declines, who’s going to take care of them? Especially if they’re not able to afford the level of care that others with more economic resources have?”​

The reasons for this trend are not clear and it isn’t ​​limited to the USA.  Whether it is simply a facet of the Baby Boomers​ will remain to be seen over the next generations.​  Brown also posits that it might be longevity related saying “…divorce can be the collateral damage from increased life spans.”

Gerontologist Karl Pillemer, author of “30 Lessons for Loving: Advice From the Wisest Americans on Love, Relationships and Marriage,”  surveyed more than 700 women and men age 65 and older. He finds that a willingness to share new interests in midlife and beyond is critical.  And, he argues in a WSJ article (here)​ that embracing your spouses interests could make a difference.

One thing is for certain … unless there is a change in how we relate to one another as we age, the trend will be with us for a while, and it will cause changes to health care, estate planning, the legal system, taxes, and spirituality.

Home for Thanksiving? Observe your elders for signs of aging

When you are visiting your parents for holidays, the event can be a great time of welcome and reunion.  And, in the midst of the excitement, food, and fellowship, there might be important opportunities to see how well your parents are doing.  And, it could make all the difference in their lives.

We all believe we will live forever, and we wish it even more so for our parents.  When our parents age, we may find it hard to recognize, or we might make excuses for them.  “Stress of the holidays” is not a good enough reason for some behaviors. Forgetting names of loved ones or wandering away during the meal might be extreme examples, but there are subtle ones too.  For example, retelling the same stories over and over, or not being able to follow the well-worn recipe of the family dish might be signs of aging.

You can probe, gently, to see how they are doing, and you can observe their surroundings.  Do you see mail stacking up?  Or, unpaid bills?  Or, twenty un-heard voicemail messages? Is there no milk in the fridge but a dozen pounds of butter in the freezer?  Do you see things out of place, such as odd objects in the closet?  Are some of yesterday’s pills left in the pill box. or did you find some on the floor?

Neighbors and friends might also be helpful to determine if mom or dad is leaving the house, or getting to favorite places, such as church.  When mom says she still gets to church every week, but the ladies at church all say “Elsie!  It’s been ages! How are you?” you might have a clue as to how she is really doing.

There are many resources available to you on the Internet and from trusted professionals.  A good conversation about future plans might include discussions about end-of-life issues.  To complement those discussions, we offer the Five Wishes health care document as part of our service to you and your family. You can find information here at their website or here on our blog.

Observe and think about what you are seeing.  Talk to your other family members if you are concerned.  Now might be the time to begin the hard conversations about what is next, and about life decisions.  It really is never too early, but it can be too late.

Why an “analysis” prior to applying for VA benefits?

Our clients come to us for a variety of services and products.  Not everything we do is as simple as a “document” because every case really is unique.  It takes planning, and listening, and discussion to understand the issues and help plan the best way to address the client’s (or the family’s) needs and wants.  For example, not every client can apply to the VA for disability.

For our Veteran benefit clients, proper planning means that we first review the three “M’s” – Military,Monetary, and Medical.  A good applicant must meet several qualifying criteria.  As for the first point, failure to have served during certain periods of war will invalidate the application.

Then, it isn’t always exactly clear what benefit is needed.  Sometimes, the client’s disability might or might not be service connected.  The “analysis” process includes determining what the disability is, how it came about, how it affects the client’s life, and how she or he should be compensated.  We review medical records as necessary and gather the right documents and doctor reports.  For many, the disability can’t be linked to service, or proof of in-country service in Vietnam is lacking. In most cases, we can help sort that out. We also review the client’s medical needs to see about qualification for a higher level of benefits, such as “Aid & Attendance.”

Finally, while service connected disability has  no monetary qualifier, the VA does have some criteria for making their pension decisions. They look very closely at the finances and they are in contact with the IRS and Social Security.  Obtaining VA Benefits for pension means that the veteran needs help due to low net income.  We analyze the finances and can often make specific suggestions that improve the likelihood of a successful application.

We believe that a careful analysis is great insurance for your future application, if you decide to go ahead and apply.  Some applications have simple mistakes that limit or prevent qualification – these may be avoidable with the help of an experienced attorney.  In addition, some clients need to coordinate Medicaid and VA benefits.  That is an area that needs careful and dedicated attention.

We perform an analysis​ of our client’s situation prior to your deciding whether to file an application.  Whomever you choose to assist you with your VA benefits application should do the same.

Will planning change for Medicaid asset recovery?

When an Elder Law attorney works with  a client to plan how to reduce the frighteningly high costs of long term care, the goal is to help that client develop plans that result in the best care, using the best resources, for as long as possible, using every legal means at our disposal.  Planning tools used by many Elder Care attorneys often includes provisions for careful management of your assets and placement of those assets in different vehicles, including trusts.  We work with other trusted professionals, using several tailored strategies.  Some strategies have the effect of reducing your countable estate which can address both tax issues and qualification for public benefits, such as Medicaid.

In some states, Medicaid​ agencies have expanded powers to reach into your estate after your death to recover the funds they spent on your care.  ​It is an exciting and ever-changing see-saw battle between the legislators and advocates for planning.  As the advocates find a way to plan (which saves our clients some of their assets), the state legislatures find ways to reduce it (which saves Medicaid some of the costs).

Recent significant changes in Wisconsin took effect in August 2014.  These changes include the ability of Wisconsin Medicaid to reach into Family trusts and other non-probate assets to recover their costs.  “Probate assets” means those assets you own which are given to your heirs in your Will, such as the house, personal possessions, and funds or stocks that you own at your death.  “Non-probate” assets transfer directly to your beneficiaries and generally include such things as trusts, “pay on death” (POD) accounts, IRAs with beneficiaries, and life insurance, just to name a few common ones.   Reaching into non-probate assets is a new approach because those had traditionally been assumed safe from recovery.

The Wisconsin rules are interesting because they change the playing field in very important ways.  North Carolina does not have such far-reaching recovery , yet, but that could change over the next few years.  If you have had a plan set up in the past, we advise that you think about seeing your Elder Law attorney to check in.  If you are wondering about when to plan, our best advice is do it sooner rather than later!

Which method will protect your assets most effectively is hard to know without a crystal ball, but an Elder Law attorney can help you make the best plans that meet your needs … now and in the future.

New Advance Directives – Make your wishes known

Advance Directives are useful tools, if not essential ones, for telling your loved ones and doctors how you want to be treated when you are near death.  You can specify when the directives take effect, and what sort of food, nutrition, and other services you want to have. Advance directives are part of every estate plan we put together for our clients, and you should be sure your plan includes them.

But, traditional advance directives are limited and … well, traditional.  We have begun to use the “Five Wishes” forms for our clients.  This form acts as both the Health Care Power of Attorney (which designates your health care Agent) and the Advance directive.  But, what makes the Five Wishes form unique is the last three wishes.  These describe how you want to be treated, cared for, and remembered.  Do you have a favorite saying or scripture verse?Do you want people to hold your hand?  You have a whole new way to communicate this to your family.

Our clients like this new form, and you might too.  Check it out at Five Wishes​ or come in to discuss it with us.

Same Sex Couples gain right to marry in North Carolina

You know the rules have changed, and same sex couples have the same rights in marriage as other couples.  Perhaps you have been fortunate enough to get married in the past few days since the Fourth Circuit and Supreme Court decisions.  If so, congratulations!

Getting married is a big step, and one that often calls for new estate planning documents.  Now, all married couples should take a look at their wills and trusts, create wills and health care documents that support their marriage and future plans, and ​think about how to structure IRAs and beneficiaries.

The  intestacy laws (what happens if you die without a will) in North Carolina have not been changed yet.  So, it is important that you do set up a will and/or trust to protect your partner and your assets.  See a qualified estate planning attorney for this.

If you are considering how your assets will flow to your children and grandchildren, these same sex marriage related changes can affect distributions.  Visit your estate planning attorney to discuss how the changes affect your will and estate plans.

The Elder Law Attorneys at the our practice can advise you on each of these estate issues.

Turning off your ICD

Summary of an Article by Cigna Insurance and information​ from the American Heart Association

What is an ICD?

An ICD (implantable cardioverter-defibrillator) regulates your heart beat.  It is always checking your heart rate and rhythm. If the ICD detects a life-threatening rapid heart rhythm, it tries to slow the rhythm to get it back to normal. If the dangerous rhythm doesn’t stop, the ICD sends an electrical shock to the heart to restore a normal rhythm.

Your ICD may also work as a pacemaker. It can fix a heart rate that is too fast or too slow. It may do so without using a shock.

How does your ICD help you?

Your ICD can save your life.  It regulates your heart, and was implanted because your heartbeat may have been irregular, or for other reasons.  Even though an ICD can help fix heart rate or rhythm problems, you may not want this at the end of life.

Should you consider turning off your ICD?

Many people consider turning off their ICD when their health goal changes from living longer to getting the most comfort possible at the end of life. The shocks the ICD delivers are painful. Not being shocked will make you more comfortable at the end of life.

What happens if the ICD is turned off?

Turning off an ICD is easy and it isn’t painful.  Your doctor will use a computer to reprogram the ICD so that it doesn’t give you shocks.
Turning off the ICD won’t cause death, and it won’t make you feel worse. But because the ICD won’t give you a shock if you have a life-threatening heart rhythm, this type of heart rhythm could lead to death.

If your ICD is combined with a pacemaker, you can elect to turn off the ICD or the pacemaker, or both.  Turning off a pacemaker means your heart might not pump blood as well as it should. This could make you feel worse instead of more comfortable.  Depending on your heart condition, turning off a pacemaker could result in death.

Who makes the decision?

You make the decision about whether or not you want to turn off your ICD.  This is not an easy decision to make, so you should involve your family, your doctor, your spiritual adviser, and your friends.

How can I direct my  loved ones to turn off the ICD?

The decision to turn off your ICD is part of the medical treatment you want at the end of life. You can put this information in your advance directive**To be sure, Make sure your advance directive permits the tuning off or removal of a pacemaker​ or ICD.  Call us if you’d like to add this to your advance directive.

Turning off your ICD is legal, and it isn’t considered suicide. The decision to leave on or turn off your ICD is a medical decision you make based on your values.It’s your decision. You can change your mind at any time.

** Advance directives, also referred to as living wills, can address a number of issues, such as whether a patient wants to receive artificial respiration, dialysis, tube feeding or artificial hydration, or donate an organ in the event of death. The document may also include a do-not-resuscitate-order, which instructs doctors not to perform C​PR if the patient stops breathing or their heart stops.

“An advance directive provides a clear statement by the patient of his or her wishes with respect to his or her health care,” said William Roach Jr., Esq., an American Heart Association volunteer and co-author of Medical Records and the Law, now in its fourth edition. “This helps to avoid disputes that can arise among family members concerning how to treat an incapacitated relative and gives direction to healthcare providers concerning the level of care to provide the patient.”

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