Moschella & Winston, LLP Your Legal Advisor for Life

Social Security Administration pays benefits for child born of in-vitro fertilization after death of father only after court appeal

By Neal A. Winston

Jackie is a beautiful 10-year-old. Outgoing and smart, she is the child any parent would just love to have. Her mother and grandparents marvel that she is the very image of her father, Jack. Tragically, Jack died before Jackie was born. An ambulance driver, he was covering on Thanksgiving Day so that another driver could be home with his family when he was instantly killed in an intersection accident.

Jackie’s mother, Ruth, has a rare genetic disorder, and cannot naturally conceive. She received donor eggs from her sister, of which several were fertilized with Jack’s sperm in a lab and frozen after a few days. Then, after months of planning and hormone preparation, the embryo was planted in Ruth’s womb. After two unsuccessful attempts, the couple was ready to try one last time, the Monday after Thanksgiving. After the initial shock of hearing about the accident, Ruth’s first call was to the clinic to stop the embryo preparation.

The following February, Ruth proceeded with a successful preparation and implantation, and in November, Jackie was born. However, when Ruth applied for survivors benefits on Jack’s Social Security record for Jackie, she was denied. Even though Jack’s name was on the birth certificate as the father, the SSA made a determination that since Jack had not expressly stated that he would have wished to support his daughter with Social Security benefits on his earnings record if he had died before the procedure was completed, Jackie was not eligible. (more…)

Special Needs Trust Had Properly Drafted Provisions

By Neal A. Winston

A recent case demonstrates the importance of the proper planning and drafting of a special needs trust in order to keep those funds from reducing or terminating Medicaid and other public benefits. Challenging a MassHealth decision, however, should be determined on a case-by-case basis.

Spouses and children receiving court-ordered support may also be eligible for needs-based public benefits such as MassHealth (Medicaid) and Supplemental Security Income (SSI). Both programs are income sensitive, and support that is directly received, including child support to the custodial parent, can cause these benefits to be reduced or terminated. However, if a Court orders the support to be paid directly into a Special Needs Trust (SNT) drafted with certain provisions, then the support would not be countable as it goes into the trust.  Distributions from the trust can then be structured in such a way as to have minimal or no effect whatsoever on public benefits received by the beneficiaries.  (more…)

Boston Elder Law Attorney Alex Moschella describes the urgent and complex situation of getting a loved one into a nursing home

Attorney Alex Moschella describes how his firm provides “Crisis Medicaid Planning” for couples or single persons when long-term care in a nursing home is urgently needed. These are “crisis cases,” since decisions must be made immediately as to placement and determining the source of funds to pay for nursing home care — that in the greater Boston area easily averages over ten thousand dollars a month.

The firm regularly assists families facing the crushing blow of dealing with disabling conditions such as advanced Alzheimer Disease, Multiple Sclerosis, Parkinsons, or complex medical conditions. The nursing homes will not accept their loved one if  the method of payment is not determined at the outset.  (more…)

Neal Winston, Special Needs attorney, will be conducting a panel discussion addressing current benefits for the disabled and individual and pooled special needs trusts.  The panel, sponsored by NAMI of Cambridge/Middlesex, will answer such questions as:

How can I assist and protect my loved one while I am living, and after I am gone?

What do I need to know about public  benefits programs and agencies that support the disabled?

How do I create an estate plan including a special needs trust?

Come join Attorney Winston on Tuesday December 6 at 6:30 pm, Macht Auditorium, Cambridge Hospital, 1493 Cambridge Street, Cambridge, MA – free and open to the public (validated parking).

Explained by Massachusetts Social Security Disability Attorney Neal A. Winston, of Moschella & Winston LLP

The Social Security disability application process can be very lengthy and intimidating. Proving a disability requires careful documentation. A disabled person should learn how the application process works prior to applying, so that any unintentionally misleading information does not go into your record.

To learn more, please view this brief video and then contact Attorney Neal Winston for more information.

View additional videos by our Massachusetts estate planning attorneys on the Moschella & Winston YouTube Channel.

A family from a community on Boston’s North Shore, represented by Massachusetts Disability Attorney Michael Couture of law firm Moschella & Winston, recently prevailed in reversing a Massachusetts Department of Developmental Services (DDS) policy denying critical support services for their autistic son.

The purpose of the DDS Program is to prevent disabled children from living in a state-operated facility. DDS offers funding that allows the child to remain at home and be educated within the community. The program provides an array of services and supports that supplement other services that the child may be receiving, such as private health insurance or Medicaid.

The family’s oldest autistic child became eligible for Medicaid’s Adult Foster Care program (AFC) when he reached the age of 18. AFC is a Medicaid-funded program that provides care-giving services to disabled individuals in a private residence. The primary goal of this program is also to keep the disabled individual in the community and out of a publicly funded facility. Medicaid pays the caregiver a regular stipend for providing 24 hour care in a safe environment. The AFC provider in this case was the mother, which is allowable within the Medicaid regulations.

DDS terminated the autistic child’s eligibility from its program because of his participation with AFC. DDS reasoned that if paid under the AFC program, then the family would be paid for services for the child that overlapped somewhat from two support programs, and therefore the child was not eligible to participate at all in the DDS program.

Attorney Couture successfully advocated at a hearing before a DDS officer that the DDS and AFC support programs provide completely separate services to the autistic child and therefore the DDS argument was without merit. The most important factor in this case, however, was that the DDS did not follow its own contract with the family, which detailed when and why a disabled child would lose funding. Despite the agency attorney’s firm opposition, the Assistant Commissioner of the Department of Developmental Disabilities reversed the agency’s previous decision and allowed the child to remain in the program indefinitely. It is not known if this decision will be implemented by the DDS in all similar cases, or just applies to this child and his family.

Michael R. Couture is an associate at the law firm of Moschella & Winston, LLP, where he specializes in Veterans’ benefits, Veterans’ healthcare, Medicaid, Social Security, special needs law, and estate planning. He is an accredited attorney with the Department of Veterans Affairs, as well as a member of the National Academy of Elder Law Attorneys and the Massachusetts Bar Association.

Moschella & Winston, LLP will be a participant in the 10th Annual Safety & Wellness Fair for Burlington seniors being held at the Burlington Council on Aging on Tuesday. October 25, 2011 from 10 am – 1 pm.  

The goal of the fair is to provide information that will educate seniors about staying safe and healthy and residing in their homes for as long as possible, but realizing that it is not always realistic to do so, and to provide information on viable options once living safely at home is no longer feasible.

Burlington Council on Aging
61 Center Street
Burlington, Mass

By Michelle M. Mulvena, Esq.

This is the final segment in a three-part series that discusses the Medicare open enrollment period for Medicare Parts A, B, C and D. Be sure to check out Part I and Part II in the series.

As you know, the Medicare annual open enrollment period began on November 15, 2010 and runs through December 31, 2010. This is the only opportunity you will have to make changes to your Medicare plans for 2011 so it is essential to take advantage of this time frame.

The health care reform act has changed Medicare coverage. Thus it is particularly important to do your homework for your 2011 Medicare coverage.

The changes include:

1. Starting in 2011, Medicare participants will be able to receive preventive services like mammograms and colonoscopies for free.
2. The prescription drug coverage gap known as the “donut hole” will decrease until it is eliminated in 2020. This year, eligible participants who hit the donut hole received a $250 rebate check. Next year, participants will receive a 50 percent discount on the brand name prescription drugs they purchase when they hit the donut hole.
3. Free annual wellness check ups starting in 2011.

Many Medicare plans change or are eliminated every year. But this year there are an exceptional number of plans that will be discontinued. Even those with plans that are continuing should be carefully evaluated to ensure they cover the medications you need and that you can afford the premiums, deductibles and co-pays.

Resources for Medicare Beneficiaries

1. Visit www.medicare.gov. Personalized comparisons of costs and coverage plans available in your area. Multilingual Open Enrollment information and counseling is available.
2. Call 1-800-MEDICARE (1-800-633-4227) for around-the-clock assistance to find out more about coverage options. TTY users should call 1-877-486-2048.
3. Review the 2011 Medicare & You handbook. It is also accessible at www.medicare.gov and has been mailed to the homes of people with Medicare benefits.
4. Contact your local Elder Service Plan (ESP) for free one-on-one assistance. In the Somerville/Cambridge area your local Elder Service Plan is Somerville-Cambridge Elder Services, 61 Medford Street, Somerville, MA 02143-3429, 617-628-2601.
5. Get one-on-one counseling assistance from the local State Health Insurance Assistance Program (SHIP). Local SHIP contact information can be found:

• At http://www.medicare.gov/contacts/organization-search-criteria.asp
• On the back of the 2011 Medicare & You handbook or;
• By calling Medicare at 1-800-MEDICARE (1-800-633-4227; TTY, 1-877-486-2048)
• Through a listing of national stand-alone prescription drug plans and state specific fact sheets can be found at: http://www.cms.hhs.gov/center/openenrollment.asp

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Michelle Mulvena is an attorney at Moschella & Winston, a law firm specializing in legal planning and protection for individuals and families for over 30 years. She is also host of the Somerville Cable TV show, “Legally Speaking with Michelle Mulvena.” Please contact her at mm@moschellawinston.com or (617) 776-3300.

By Michelle M. Mulvena, Esq.

This is the second posting in a three part series that discusses the Medicare open enrollment period for Medicare Parts A, B, C and D. Check out the first part here.

As you know, the Medicare annual open enrollment period began on November 15, 2010 and runs through December 31, 2010. This is the only opportunity you will have to make changes to your Medicare plans for 2011 so it is essential to take advantage of this time frame.

Medicare benefits are split into four parts:

1. Part A covers hospitalization and other in-patient care.
2. Part B covers services and treatment such as doctor visits.
3. Part C is known as the Medicare Advantage plan, which includes Part A and Part B as well as extra benefits.
4. Part D is the prescription drug plan.

Beneficiaries choose either original Medicare (A and B) or the advantage plan, and can then elect to add Part D. If the beneficiary needs services not covered by these plans, they can select a Medigap plan.

Participants of Part C, Medicare Advantage, get government-provided Medicare through a private insurance company, in the form of a health maintenance organization or a preferred provider organization. It usually includes the elements of Part A and Part B hospitalization, medical care and a prescription drug plan, and often comes with extras, such as covered annual physicals.

Medicare Advantage includes specialized care for people who need a large amount of health care services. In addition participants are covered for emergency or urgent care services when traveling outside of their plan coverage area.

For Medicare Advantage participants it is especially important to pick the right plan during the open enrollment period. Unlike previous years, people enrolled in Medicare Advantage plans can no longer switch to other Medicare Advantage plans during January, February and March. However, after January 1, 2011, participants can still leave their Advantage plan and go back to original Medicare.

Right now there is a lot of information circulating out there about the open enrollment period. Buyer beware of Medicare scams and take precautions to protect your Medicare number as diligently as you would protect your social security number. Identity theft and fraud targeting seniors is in full force this time of year. Make sure you are receiving information from trusted sites such as Medicare.gov or from your local Senior Center or Elder Service Plan.

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Michelle Mulvena is an attorney at Moschella & Winston, a law firm specializing in legal planning and protection for individuals and families for over 30 years. She is also host of the Somerville Cable TV show, “Legally Speaking with Michelle Mulvena.” Please contact her at mm@moschellawinston.com or (617) 776-3300.

Medicare Open Enrollment