Rynearson, Suess, Schnurbusch & Champion Presentation: Liens, - - PowerPoint PPT Presentation
Rynearson, Suess, Schnurbusch & Champion Presentation: Liens, Set-Asides, Medicare and Medicaid The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC calsop@alsopelderlaw.com | (314) 644-3200 www.AlsopElderLaw.com 6654
The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 1 The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC calsop@alsopelderlaw.com | (314) 644-3200 www.AlsopElderLaw.com 6654 Chippewa Street, St. Louis, MO 63109
We ofger complimentary car service for those who do not have transportation.
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Medicaid was originally authorized by Title XIX of the Social Security Act. Eligibility for Medicaid is based on section 1902(a)(10), codified at 42 U.S.C.A. §§ 1396 et seq. Since its inception in 1965, the principal purpose of the Medicaid program has been to provide medical care for individuals with low incomes and limited resources. MEDICAID IS A NEEDS-BASED PROGRAM.
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Medicaid has a right to recover benefits paid when a Medicaid recipient receives compensation from a third-party for health services incurred due to personal injury, disability or disease. This right exists to prevent a double recovery by a Medicaid recipient who receives payment from both Medicaid and a third- party.
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In Missouri, the application form for Medicaid (MO HealthNet) benefits contains the following statement: “I/We UNDERSTAND that application for and acceptance of MO HealthNet constitutes an assignment of rights to the Department
medical care from a third-party.” Authority: § 208.215.4 & .15 RSMo.
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A MO HealthNet beneficiary is compelled by statute to make an “assignment” to the state of whatever is recovered, up to what is owed, when he or she applies for benefits. This form states that if the assistance is due to an accident, the claimant must repay the agency for any benefits received. In practice, this “Assignment” functions as notice to the plaintifg that MO HealthNet has a lien against the recovery.
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The MO HealthNet application form also contains the following statement: “I/We UNDERSTAND that I/we must report any changes in circumstances within ten days of when they happen.”
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The MO HealthNet application form also contains the following statement: “I/We UNDERSTAND that I/we must provide complete information regarding any health or accident insurance benefit available to any household member and I/we must report within 30 days any accident for which medical care is received.” Authority: § 208.215.3 & .16 RSMo.
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Section 208.215 RSMo. sets out certain lien rights that arise when one of the welfare recipients of the Missouri Department
disease of the recipient.
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Medicaid liens, by statute, do require notice and now may be reduced by a court under the Medicaid statute. See § 208.215.9 RSMo. Jones by Williams v. Missouri Dept. of Social Services, 966 S.W.2d 324 (Mo.App.1998) (lien reduced, even though it accrued before statute allowing reduction was efgective); Gravier v. Missouri Dept. of Social Services, 968 S.W.2d 149 (Mo.App.1998) (insufgicient evidence to justify reduction); American Family v. Fehling, 970 S.W.2d 844 (Mo.App.1998) (reduction pursuant to proper consideration of statutory factors).
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The words “death” or “wrongful death” did not originally appear in § 208.215 RSMo., but were added by amendment to subsection 6 in 2007.
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A Florida court of appeals rules that Medicaid’s anti-lien provision does not apply to a Medicaid lien imposed on a Medicaid recipient’s property afuer the recipient dies. Estate of Hernandez v. Agency for Health Care
Betsy Hernandez died of a rare condition. Her estate filed a wrongful death lawsuit against the hospital that treated her. The hospital agreed to settle the lawsuit for $700,000, and Medicaid placed a lien on the settlement to recoup medical expenses paid on Ms. Hernandez’s behalf.
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The Medicaid agency claimed it was entitled to $262,500 before any wrongful death apportionment. The estate argued that the agency sought money allocated to survivors and that under Arkansas Department
states cannot assert a lien on portions of a settlement not allocated to medical expenses. The trial court denied the estate’s motion for a hearing, and the estate appealed. The Florida Court of Appeals, 3rd District, afgirms, holding that “the Medicaid Act’s anti-lien provision does not apply to a Medicaid lien imposed against the property of a Medicaid recipient afuer her death.” The court holds that Ahlborn and Wos v. E.M.A (U.S., No. 12-98, March 20, 2013) do not apply because Medicaid’s anti-lien provision applies only to living Medicaid recipients.
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Every participant, minor, guardian, conservator, personal representative, estate, including persons entitled under section 537.080 to bring an action for wrongful death, or his attorney or legal representative shall promptly notify the MO HealthNet division of any recovery from a third party and shall immediately reimburse the department of social services, MO HealthNet division, or its contractor from the proceeds of any settlement, judgment, or other recovery in any action or claim initiated against any such third party. A judgment, award, or settlement in an action by a participant to recover damages for injuries or other third-party benefits in which the division has an interest may not be satisfied without first giving the division notice and a reasonable opportunity to file and satisfy the claim or proceed with any action as otherwise permitted by law.
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The department of social services or MO HealthNet division shall have a lien upon any moneys to be paid by any insurance company or similar business enterprise, person, corporation, institution, public agency or private agency in settlement or satisfaction of a judgment on any claim for injuries or disability or disease benefits arising from a health insurance program to which the participant may be entitled which resulted in medical expenses for which the department or MO HealthNet division made payment. This lien shall also be applicable to any moneys which may come into the possession of any attorney who is handling the claim for injuries, or disability or disease or benefits arising from a health insurance plan to which the participant may be entitled which resulted in payments made by the department or MO HealthNet division. In each case, a lien notice shall be served by certified mail or registered mail, upon the party or parties against whom the applicant or participant has a claim, demand or cause of action. The lien shall claim the charge and describe the interest the department or MO HealthNet division has in the claim, demand or cause of action. The lien shall attach to any verdict or judgment entered and to any money or property which may be recovered on account of such claim, demand, cause of action or suit from and afuer the time of the service of the notice.
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On petition filed by the department, or by the participant, or by the defendant, the court, on written notice of all interested parties, may adjudicate the rights of the parties and enforce the charge. The court may approve the settlement of any claim, demand or cause of action either before or afuer a verdict, and nothing in this section shall be construed as requiring the actual trial or final adjudication of any claim, demand or cause of action upon which the department has charge. The court may determine what portion of the recovery shall be paid to the department against the recovery. In making this determination the court shall conduct an evidentiary hearing and shall consider competent evidence pertaining to the following matters:
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(1) The amount of the charge sought to be enforced against the recovery when expressed as a percentage of the gross amount
against the recovery when expressed as a percentage of the amount obtained by subtracting from the gross amount of the recovery the total attorney’s fees and other costs incurred by the participant incident to the recovery; and whether the department should, as a matter of fairness and equity, bear its proportionate share of the fees and costs incurred to generate the recovery from which the charge is sought to be satisfied;
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(2) The amount, if any, of the attorney’s fees and other costs incurred by the participant incident to the recovery and paid by the participant up to the time of recovery, and the amount of such fees and costs remaining unpaid at the time of recovery;
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(3) The total hospital, doctor and other medical expenses incurred for care and treatment of the injury to the date of recovery therefor, the portion of such expenses theretofore paid by the participant, by insurance provided by the participant, and by the department, and the amount of such previously incurred expenses which remain unpaid at the time of recovery and by whom such incurred, unpaid expenses are to be paid;
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(4) Whether the recovery represents less than substantially full recompense for the injury and the hospital, doctor and other medical expenses incurred to the date of recovery for the care and treatment of the injury, so that reduction of the charge sought to be enforced against the recovery would not likely result in a double recovery or unjust enrichment to the participant;
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(5) The age of the participant and of persons dependent for support upon the participant, the nature and permanency
employability and education of the participant but also the reasonably necessary and foreseeable future material, maintenance, medical rehabilitative and training needs of the participant, the cost of such reasonably necessary and foreseeable future needs, and the resources available to meet such needs and pay such costs;
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(6) The realistic ability of the participant to repay in whole or in part the charge sought to be enforced against the recovery when judged in light of the factors enumerated above.
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The Medicaid recipient requesting reduction of the lien under § 208.215.9 is not required to prove each statutory factor, nor does the trial court have to enter findings on each statutory
Medical Services, 986 S.W. 2d 149 (Mo.App. 1998). The recipient must only provide sufgicient evidence to support exercise of the trial court’s discretion. Id.
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The burden of producing evidence sufgicient to support the exercise by the court of its discretion to reduce the amount of a proven charge sought to be enforced against the recovery shall rest with the party seeking such reduction. The computerized records of the MO HealthNet Division, certified by the director or his or her designee, shall be prima facie evidence of proof of moneys expended and the amount of the debt due the state. § 208.215.10 RSMo.
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HealthNet Division’s lien proportionate to the recovery of the claimant.
injury, economic and noneconomic loss, settlement ofgers, comparative negligence as it applies to the case at hand, hospital costs, physician costs, and all other appropriate costs.
rata share of the attorney’s fees based on the Department’s
settlement agreed upon. § 208.215.11 RSMo.
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division has a statutory charge under this section against a recovery for damages incurred by a participant because of its advancement of any assistance, such charge shall not be satisfied out of any recovery until the attorney’s claim for fees is satisfied, regardless of whether an action based on participant’s claim has been filed in court.
into a compromise agreement with any participant, afuer consideration of the factors in subsections 9 to 13 of this section.
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The debt due the state provided by this section is subordinate to the lien provided by section 484.130 or section 484.140, relating to an attorney’s lien and to the participant’s expenses of the claim against the third-party.
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Brian Kinkade, Director Department of Social Services Broadway State Ofgice Building P.O. Box 1527 221 W. High Street Jefgerson City, MO 65102-1527 Telephone: (573) 751-4815
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MO HealthNet Division P.O. Box 6500 615 Howerton Court Jefgerson City, MO 65102-6500 Telephone: (573) 751-3425
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The United States Supreme Court has repeatedly held that a Medicaid agency cannot be reimbursed from a plaintifg’s settlement in excess of the portion of the settlement that is compensation for past medical care paid by the state. Arkansas Dept. of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006); Wos v. E.M.A., 133 S. Ct. 1391 (2013). This allowed many plaintifgs to obtain significant lien reductions by arguing only a small portion of his or her recovery was actually compensation for past medical care.
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Wilhoite case (unreported) held that 208.215 could not stand in light of Ahlborn because the statute failed to limit MO HealthNet’s recovery to the amount of damages recovered for medical. Lien reduction portion of 208.215 protects due process rights
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amendments to the Social Security Act allow a Medicaid agency to demand full reimbursement from any settlement even if medical expenses were not actually pled or recovered for and, regardless of any contributory negligence
made whole.
efgective date to October 1, 2017.
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Needs-Based Programs
Entitlement Programs
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For a disabled person to qualify for MO HealthNet benefits, he
“countable resources”). To qualify for Supplemental Security Income (“SSI”) benefits, the maximum is $2,000 in available resources. Other “needs-based” programs have difgering eligibility requirements, some are based on amount of income, some are based on amount of available resources, some have elements
program, for example, has elements of both.
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You should screen for the following benefits: Federal
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You should screen for the following benefits: State
* These are all needs-based government benefits, meaning there is either an asset limit or an income limit (or both). Some
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Clients ofuen don’t really understand which benefits they are
to provide notice of eligibility and the efgective date of coverage.
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payment has been made or can reasonably be expected to be made promptly under liability insurance (as defined in 42 CFR 411.50)
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In every liability settlement involving a Medicare beneficiary, the parties, including any group health plan or liability insurer, now has three distinct obligations: 1) report the settlement to CMS (the present); 2) resolve any conditional payments (the past)and 3) provide for payment of future medical expenses as a term of the settlement, taking into consideration Medicare’s interests (the future). Each obligation carries its own penalty for failure to fulfill it.
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secondary payer, whenever possible.
Medicare about ‘settlements, judgments, awards or other payment from liability insurers (including self insurers), no fault insurers and workers’ compensation’ received by or on behalf of Medicare beneficiaries,” MMSEA Section 111 Mandatory Insurer Reporting, Quick Reference Guide, Version 1, January 19, 2012.
insureds.
responsibility for medicals (ORM) or afuer paying the total payment obligation to the claimant (TPOC) in the form of a settlement, judgment, award or other payment.
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made against the settlement proceeds of a workers’ compensation or third-party liability case
power of CMS
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account the cost of procuring the judgment or settlement.
court costs. In order to properly calculate this reduction, the claimant’s attorney must provide a copy of the fee agreement along with documentation of costs incurred during litigation. 42 C.F.R. 411.37.
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loss of parental companionship claim is a property right belonging to the child, not Medicare.
factored his mother’s medical claims into the settlement
CMS.
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Parra v. PacifiCare of Arizona, No. 11-16069, holding that a private insurer operating as a Medicare Advantage Organization Plan is not permitted to bring an action in federal court seeking reimbursement for $136,630.90 from a tort settlement secured by survivors of the deceased in a wrongful death action. The Court holds that the federal statute, 42 U.S.C. § 1395y(b) (3)(A), “was intended to allow private parties to vindicate wrongs occasioned by the failure of primary plans to make payments.” This statute does not authorize a suit for reimbursement against its insured (or survivors) for reimbursement.
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Advantage Organizations, MAP’s, MAO’s or Part C
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Part A and B Medicare services (except hospice) plus additional coverage (i.e., vision, dental and sometimes Prescription drug coverage) through private companies.
Medicare.
regarding payments for services, but can set charges for out-of-pocket costs and rules for how and where to receive services.
enrolled in Medicare Advantage Plans.
Humana and Oxford. The plans typically have a third-party administrator, such as Rawlings or Trover.
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the plaintifg.
lien.
not a Medicare beneficiary and still have an existing Medicare Advantage Plan lien.
which recognized that a MAP is granted the right to a private cause of action under the Medicare Secondary Payer Act (MSPA) for reimbursement of the conditional payments it has made. (Under the MSPA, Medicare refers its cases to the Dept. of Treasury).
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In the last couple of years, four federal cases have discussed the right of a Medical Advantage Plan to obtain double damages when it has not been reimbursed for conditional payments:
December 2014). Plaintifg in a motor vehicle accident settled with the tortfeasor and held in trust monies claimed by the MAP. She files a DJ action and the MAP counterclaimed. The Court held that the MAP had the right to a private cause of action to recover the conditional payment amount. The judge found that double damages were not warranted, as the money claimed by the MAP was held in
to correspondence from the MAP tolled the 3 year statute of limitations, since MAP’s only information comes from the plaintifg beneficiary.
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(2015 WL 1191208 (S.D.Fl. 2015). Case involved a slip and fall
there was no Medicare lien, but the insurance company learned that plaintifg had a MAP. It wrote the settlement check to plaintifg, plaintifg’s attorney and Humana.
the carrier to turn the proceeds over to plaintifg’s attorney, who was to keep some of it in escrow. Humana filed suit to recover payment.
Advantage Plan the right to proceed with private cause of action for double damages under the MSPA. Currently on Appeal to 11th.
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99188, (S.D.Fl. 2015). Plaintifg, a Medicare beneficiary through a MAP, was involved in a car accident. Liberty Mutual denied PIP coverage and plaintifg’s bills were paid by the MAP, which sought recovery of the conditional payment amount and double damages. The Court held that since the Florida PIP statute recognizes that the PIP carrier can assert that the claim was unrelated, not medically necessary or unreasonable, Liberty Mutual should not face double damages for contesting the payment of claims.
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10, 2016). Both Plaintifg’s attorney and Plaintifg’s firm were sued by Humana under a private cause of action for the recovery of double
Plaintifg’s firm ignored it.
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WL 5449221 (E.D.Tenn. 2015). Cariten, a Medicare Advantage Plan (MAP), was granted the right to proceed with private cause of action for double damages against a no-fault carrier which refused to repay conditional payments made by Cariten. The Court found that under the Medicare Secondary Payer Act, a MAP is a secondary payer, and is entitled to a private right of action for failure to reimburse conditional payments made by the MAP.
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Taxpayers (SMART) Act
bill stemmed from a constituent who was in a car accident and had to wait years for a settlement on medical bills covered by Medicare
10, 2013
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MMSEA Section 111 processes
Act (42 U.S.C. 1395y(b)(2)(B))
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months afuer H.R. 1845 goes into efgect – or on October 10, 2013 (efgective date of H.R. 1845 is January 10, 2013).
process for conditional payments.
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Medicare Set-Aside Arrangements
precludes Medicare payment for services to the extent that payment has been made or can reasonably be expected to be made promptly under liability insurance.
compensation case or third-party liability case to determine if its right must be protected against a shifu to Medicare of any third-party’s liability as it relates to future medical care.
Medicare will not assume liability for future medical treatment when a third-party is responsible.
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comply with the law.
law.
various damage components of a settled claim.
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following workload review thresholds are met:
m The claimant is a Medicare beneficiary and the total
settlement amount is greater than $25,000.00; or
m The claimant has a reasonable expectation of Medicare
enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.00.
m This is not a safe harbor.
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months if any of the following apply:
m The claimant has applied for Social Security Disability Benefits m The claimant has been denied Social Security Disability Benefits but
anticipates appealing that decision
m The claimant is in the process of appealing and/or re-filing for Social
Security Disability benefits
m The claimant is 62 years and 6 months old m The claimant has an End Stage Renal Disease (ESRD) condition but does
not yet qualify for Medicare based upon ESRD.
to indicate that claimants may settle below the threshold with impunity.
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to AR, OK, TX, NM, LA).
from payment for future services whether it’s a Worker’s Compensation or liability case. There is no distinction in the law.”
Attorneys must decide based upon the facts of their case whether the Trust Fund must be protected.
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payment for future medical services does not mean that they are not funded.”
for pain and sufgering does not mean that future medicals are not funded.”
provides the best protection for the program and Medicare beneficiary.”
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Financial Management in Baltimore, Maryland
for the alleged injury related to the liability “settlement” has been completed as
be required, Medicare considers its interest, with respect to future medicals for that particular “settlement” satisfied.
the certification or a proposed LMSA for review. CMS will not provide the settling parties with confirmation that Medicare’s interest with respect to future medicals for that “settlement” has been satisfied.
physician’s certification.
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Budget advanced notice of proposed rulemaking (ANPRM) entitled “Medicare Secondary Payer and ‘Future Medicals’ (CMS-6047-ANPRM).
their obligations to protect Medicare’s interest with respect to Medicare Secondary Payer (MSP) claims involving automobile and liability insurance (including self-insurance), no-fault insurance and workers’ compensation when future medical care is claimed or the settlement, judgment, award or other payment releases (or has the efgect of releasing) claims for future medical care.”
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The CMS proposed general rule states if an “individual or Medicare beneficiary” anticipates receiving Medicare covered services afuer the date of the settlement, then such person is required to satisfy Medicare’s interest with respect to “future medicals” using any one of several options.
the settlement proceeds until exhausted.
beneficiary within 30 months of the settlement and the injury is not “chronic” as defined and the settlement amount is below a certain amount. Comments were solicited on what the threshold amount should be. This would be similar to the procedure employed in workers compensation cases.
injury related expenses to be incurred.
the settlement.
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Congress
implementation requirements.
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Medicare is not bound by the parties’ allocation of settlement funds. The court can determine whether future medical expenses are likely and the amount of the allocation necessary for a
2010); 2011 WL 43219; Finke v. Hunter’s View, 2009 WL 6326944 (D.Minn.); Schexnayder v. Scottsdale, No. 6:2009cv01390, (W.D. La); 2011 WL 3273547
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Plaintifg involved in PI case and receives Medicare Court concludes that no Medicare allocation is necessary. The settlement in this case did not arise in the worker’s compensation context and it does not indicate a particular amount to compensate Mr. Sipler for future medical expenses arising out of the accident. Tort cases involve non-economic damages and not determined by a specific formula To require personal injury settlements to specifically apportion future medical expenses would prove burdensome to the settlement process and, in turn, discourage personal injury settlements.
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The settling parties asked the Court to determine whether a liability Medicare Set-aside Arrangement (“LMSA”) was required as part of settling the claim. The Court concluded, afuer reviewing the evidence, that the parties, in fact, did not have a settlement agreement as they did not agree to every essential term. Early v. Carnival Corporation, No. 12-20478-CIV-Goodman, (S.D. Fla. February 7, 2013)
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many cases to preserve the client’s eligibility for needs- based public benefits.
defer its Medicaid lien until that client’s death.
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Generally, we are talking about a trust agreement that will, if properly drafued, render the trust assets legally unavailable to the beneficiary for public benefit purposes.
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Establish a trust which allows assets to be held and used for the benefit of a disabled person without those assets being counted as “available resources” (a.k.a. “countable resources”)
beneficiary from exploitation and poor decision making.
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Special needs trusts, even of modest amounts, can greatly enhance the quality of life for beneficiaries with disabilities. SNTs provide not only for medical expenses and therapies not otherwise covered by public benefit programs, but also for recreational items and entertainment that increases the enjoyment of life.
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General Rule:
These expenditures are treated as income to the beneficiary, so public benefits are afgected.
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1) Self-settled (created with assets of the beneficiary) 2) Third-party trusts (created and funded by someone with no duty of support to the beneficiary) Today’s discussion will focus on self-settled SNTs. If someone
benefit of beneficiary, that person should use a third-party SNT.
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1) Medicaid Payback Trust (“d4A”) 2) Qualified Income Trust (“Miller” trust) ofuen used in “income cap” states (“d4B”) 3) Pooled Trust (“d4C”) The terminology (d4A, etc.) comes from the federal enabling statute – 42 U.S.C. § 1396p(d)(4).
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The Omnibus Budget Reconciliation Act of 1993 (OBRA ‘93) codified the use of self-settled SNTs, including the Medicaid “payback” trust, the income only trust, and the pooled trust for individuals with disabilities. 42 U.S.C. § 1396p(d)(4) governs self-settled trusts and created new planning opportunities for beneficiaries under age 65. Thus, the d4A, d4B and d4C references.
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The general rule is that assets transferred to a trust are deemed available to the settlor/beneficiary for Medicaid and SSI eligibility purposes up to the amount the trustee could distribute for the benefit of the settlor/beneficiary if the trustee exercised maximum discretion in settlor’s favor.
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The exception to this rule is that assets in a self-settled special needs trust are NOT “available resources” to the beneficiary IF the trust complies with OBRA-93. In Missouri, in a personal injury context, this almost always means that we are talking about either a d4A Trust or a Pooled Trust (d4C).
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first be used to “payback” the state up to an amount equal to the total amount of medical assistance paid.
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1) Some advantages over the d4A payback SNT 2) No age 65 limitation 3) Can be established by the beneficiary as well as a parent, grandparent, guardian or court 4) Professional trustee management 5) Must include “payback” provision to the State to the extent assets remaining at death of the beneficiary are not retained by the pooled trust
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The trust beneficiary must meet the definition of “disabled” under the Social Security law – if receiving SSI or SSDI, this threshold has been met, but this requirement can be met without being eligible for SSI or SSDI (if ineligible for other reasons).
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The trust must be irrevocable.
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The trust must be established by the beneficiary’s
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guardian or court)
beneficiary’s money is first into the trust; OR
“Seed Trust”
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Missouri’s statutory authority for court approval of a pay-back trust is in Section 475.092.2 RSMo.
without appointing a conservator, as probate division under Section 511.030 RSMo. POMS SI 01120.203B.1.f
approve, a trust established by someone else
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The beneficiary must be under age 65 when the trust is established and funded.
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The assets remaining in SNT when beneficiary dies will first repay Medicaid. Also required if trust terminates while beneficiary living.
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Trust cannot benefit anyone other than the beneficiary “Sole benefit” of beneficiary
POMS elaborates on sole benefit
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When...
What...
beneficiary
proportionately
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Upon termination of the trust, all other expenses prohibited until afuer payback 1) Taxes due from beneficiary’s estate other than from assets in the trust 2) Inheritance taxes 3) Debts owed to third-parties 4) Funeral expenses 5) Residual beneficiaries (other than pooled trust)
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the trustee.
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When choosing a trustee, key factors to consider include the cost of the available parties, relative investment experience, and flexibility and bureaucracy.
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Another key consideration should be the trustee’s knowledge of public benefits programs and their regulations, as well as the beneficiary’s special needs and circumstances.
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It ofuen makes sense to split the necessary trustee roles, with a bank or trust company handling investments and accounting, a family member or social worker taking care of planning for the beneficiary and disbursements and an elder law attorney advising on public benefits issues. This can be done through multiple trustees or a single trustee advised by individuals with the necessary knowledge and experience.
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If the person who has a disability is 65 or older.
penalties may apply. If there is no person or financial institution appropriate or willing to act as trustee.
corporate trustee.
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When there is no parent or grandparent willing or able to establish the trust and it is not appropriate or feasible to go to court to accomplish this, the person who has a disability can establish his or her own pooled trust. When the cost of establishing a “stand-alone” d4A trust is excessive in light of the amount to be transferred to the trust.
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The choice of trustee is made solely by the nonprofit association administering the pooled trust. Some allow co- trustees. If the trustee is not doing a good job or is not responding to the beneficiary’s needs, there is usually no way to remove the trustee and replace with a more responsive trustee.
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The nonprofit association normally retains at least some of the funds remaining in the pooled trust account upon the death
unacceptable. The remainder of the pooled trust account might not be paid to family members or others of the beneficiary’s choice, even if it exceeds the amount that would have been paid back to MO HealthNet -- some pooled trusts keep only a portion and distribute the “afuer-payback” balance to those beneficiaries; some keep it all. Good to know up front.
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Recognizing that clients ofuen may not be the best at managing their own funds, attorneys have ofuen encouraged them to “structure” their settlements so that they receive their funds in partial distributions over many years.
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A structured settlement can ensure a consistent and predictable stream of income to the injury victim for medical and living expenses. Structures also provide significant tax advantages because the payments are not taxed. Depending on client’s income and tax bracket, the structure may provide a better fixed-income return than is otherwise available for most investors.
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In cases where the settlement is small and no professional trustee and no appropriate family member or friend is available to serve as a volunteer trustee, a structured settlement can provide a good management tool. Additionally, annuities are further ways of avoiding probate. Annuities may name a remainder beneficiary to continue to receive payments for a guaranteed number of years.
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A structured settlement can have a devastating efgect on eligibility for public benefits. If public benefits are a concern, the annuity should be paid into a supplemental needs trust.
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THE ELDER & DISABILITY ADVOCACY FIRM OF CHRISTINE A. ALSOP, LLC 6654 Chippewa Street, St. Louis, MO 63109 calsop@alsopelderlaw.com (314) 644-3200 | www.AlsopElderLaw.com
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