Monthly Archive for November, 2007

Medicare’s Overspending Habits

Published on November 30, 2007 in SSI/SSDI/Medicare. 0 Comments

This really burns me up.

Today’s New York Times is running an article called, “Oxygen Suppliers Fight to Keep a Medicare Boon.” The title is somewhat obtuse as it obscures the underlying bad habits of Medicare and their frequent overpayment for everything from oxygen equipment to walking canes.

Despite enormous buying power, Medicare pays far more. Rather than buy oxygen equipment outright, Medicare rents it for 36 months before patients take ownership[...].

[...]

Medicare spends billions of dollars each year on products and services that are available at far lower prices from retail pharmacies and online stores, according to an analysis of federal data by The New York Times. The government agency has paid above-market costs for dozens of items, a comparison of Medicare figures with retail catalogs finds.
[...]

[L]ast year Medicare spent more than $21 million on pumps to help older and disabled men attain erections, paying about $450 for the same device that is available online for as little as $108. Even for a simple walking cane, which can be purchased online for about $11, the government pays $20, according to government data.

And as if this isn’t bad enough:

But when officials and politicians have tried to cut these costs, they have often encountered a powerful foe: the companies that sell these devices, who ask their elderly customers to serve, in effect, as unpaid lobbyists, calling and writing to their representatives in Congress, protesting at rallies, and even participating in political attacks against individual lawmakers who take on the issue.

So first they mislead the elderly who need these services by telling them that the government is going to wholly do away with these benefits rather than just fix them (which is patently untrue) and then they recruit the same group of people to work for free to perpetuate the very system that is harming them by its inefficiency. Outrageous.

The worst lobbying offenders are:

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Larry King Life Settlement Update

Published on November 30, 2007 in Estate Planning, Insurance and Recent Cases worth noting. 0 Comments

Joel A. Schoenmeyer of the Death & Taxes Blog (one of my favorites) writes here about Mr. King’s life settlement woes and makes a good distinction that I had thus far failed to point out:

Note that the type of life insurance settlement mentioned in the article is not the same as a viatical settlement, which was a concept that became popular about a decade ago. Viatical settlements were used in cases of terminally ill individuals (such as individuals with AIDS), to free up money for treatment, etc.

By contrast, life insurance settlements are used by individuals who are not terminally ill, individuals who have existing policies on which they no longer want to pay the premiums.

Thanks Joel – good to see you posting again!

Also, I’m about to be quoted in the National Underwriter in their impending article on Mr. King and life settlements… Stay tuned!

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Medicare Reimbursement For Hospice Providers

Published on November 27, 2007 in Estate Planning, Gaurdianships/Conservatorships and SSI/SSDI/Medicare. 1 Comment

This story from today’s NYT is another in the long line of disturbing stories about Medicare payback requirements:

Hundreds of hospice providers across the country are facing the catastrophic financial consequence of what would otherwise seem a positive development: their patients are living longer than expected.

Over the last eight years, the refusal of patients to die according to actuarial schedules has led the federal government to demand that hospices exceeding reimbursement limits repay hundreds of millions of dollars to Medicare.

The charges are assessed retrospectively, so in most cases the money has long since been spent on salaries, medicine and supplies. After absorbing huge assessments for several years, often by borrowing at high rates, a number of hospice providers are bracing for a new round that they fear may shut their doors.

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Brooke Astor Update

Published on November 26, 2007 in Recent Cases worth noting. 0 Comments

Kim Dayton, Editor of the Elder Law Prof Blog and Professor of Law at William Mitchell College of Law writes here about Brooke Astor’s “son and one of her former lawyers [being] indicted on criminal charges stemming from the stewardship of her financial affairs and the handling of her will.”

[A]ccording to people who have been briefed on the situation, her son, Anthony D. Marshall, 83, and the lawyer, Francis X. Morrissey Jr., have been told to surrender to authorities on Tuesday morning [...]. A Manhattan grand jury has been hearing evidence from witnesses since early last month, following an investigation by the district attorney’s office into the management of Mrs. Astor’s fortune by Mr. Marshall and Mr. Morrissey’s role in the signing of the third amendment to her will. The exact charges against the two men were not known late this afternoon. But in Mr. Marshall’s case, they are probably related to millions of dollars in cash, property and stocks that he obtained over the years in his role as steward of his mother’s finances. As for Mr. Morrissey, the charges are probably tied to the signature on an amendment to Mrs. Astor’s will that was made in March 2004. The possibility of forgery has been raised by a nationally known handwriting expert. The indictment marks the first time criminal charges have been filed in the legal battle surrounding Mrs. Astor’s fortune and well-being.

Full details from the NYT available here.

Thanks Kim!

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Presidential Candidates and Their Lawyers

Published on November 26, 2007 in Uncategorized. 0 Comments

Molly McDonough of the ABAJournal.com writes a funny and good-for-trivia-post here about who is representing whom among the current crop of presidential candidates.

Thanks Molly. Good Trivia!

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Lawyer Perks vs. Lawyer Lifestyle

Published on November 23, 2007 in Uncategorized. 0 Comments

From an article in yesterday’s NYT:

The benefits for lawyers have burgeoned in recent years as firms pull out the stops to attract top-notch talent. While perks for the partners have always been common, many are now finding their way to associates — young lawyers who have not yet made partner.

This is asked against the background of the tough outlook for students who aren’t at a top-tier law school and the widening gap between their likelihood of (early) success and those who are the targets of such recruiting efforts (e.g. the ivy leaguers).

The benefits go beyond the laptops and BlackBerrys, late-night rides home, Friday beer-and-pretzel fests and sports tickets that are standard fare at many large and midsize law firms. Many of the new perks recognize a lifestyle change that law firms are just coming to grips with.

[...]

“Money is not the only thing that drives these lawyers right now,” said Marina Sirras, who runs a recruitment firm in New York for lawyers. “They want to be able to have a family and enjoy their family. This has never been as hot an issue.”

And,

Fried, Frank, Harris, Shriver & Jacobson, a 600-lawyer firm based in New York, offers employees a service akin to a personal issues coach and psychotherapist through a deal with Corporate Counseling Associates of Manhattan. The consulting firm has a battery of staff psychologists and social workers to provide advice on issues including stress, anxiety, depression and divorce.

So what are the real justifications for these perks? Is it the emergence of a work/life congruence (“They want to be able to have a family and enjoy their family”) that firms are now realizing is necessary for balanced happiness (which maybe equals retention) or is it just the simple battle for the best of the newest crop of law-school-youth?

[Warning Commentary]
Pardon me being blunt: The “lifestyle” justification is just a cover. Doesn’t it seem disingenuous for a firm to offer personal issues coaches and psychotherapists when the its more than likely that its the firm (and the firm’s environment and demands) that is causing them to need these services?

Jaime Heller of the WSJ.com Law Blog asks some other relevant questions: “Why is the gulf between legal haves and have-nots seemingly so wide? Many aspiring JDs would do nearly anything for these 160k jobs. Meanwhile, the top-school grads who land them not only get the salary and resume stamp, but also these perks. Is this all on the merits? Is there a talent differential that justifies this outcome?“).

As an average student at a third-tier law school, I enjoyed seeing the latter two questions. These questions need to be asked especially when everyone acknowledges that success in law school does not correlate to success in private practice.

If you have a job you enjoy you are better off than most. For that, and many other reasons, I give thanks this year to my blessed station in life.

Happy Thanksgiving all!

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UPDATE: The Capacity of The Vegetative State

Published on November 20, 2007 in Powers of Attorney & Health Care Proxies. 0 Comments

Yesterday I posted about an October 15, 2007 article from the New Yorker entitled, “Silent Minds”, that addressed what (fMRI) scanning techniques are ostensibly able to tell us about patients in a vegetative state. I spoke at some length with a friend of mine who has a great deal of knowledge in field of cognitive neuroscience and he urged caution.

Specifically, he spoke to a researcher’s ability (or inability) to “know” things with certainty especially where one is studying cognitive processes. With regards to the scanning techniques discussed in the article he said (and I’m paraphrasing) that so much is still unknown about the brain and the very nature of human consciousness, that statements of such certainty like those made in “Silent Minds” simply are not credible.

Though certain areas of the brains of individuals in a vegetative state and otherwise healthy individuals may respond similarly to external stimuli doesn’t mean that the individual in the vegetative state is “thinking”, “comprehending” or “aware of” that stimulus in the same way that a healthy person is. The brain’s hardwired (my word) pathways through which information travels may be fully intact in both the brains of individuals in a vegetative state and the otherwise healthy but the leap from such a physical correlation to a cognitive conclusion is simply not warranted. He also said:

“In the realm of cognitive neuroscience, statements of certainly should be treated with healthy skepticism. In a field in which entire bodies of knowledge are supplanted on a regular basis, accepting as absolute what is believed today can make planning for tomorrow difficult.”

And his quote is particularly apt for us estate planners. This subject is of such great import that sensitive treatment should be the norm and the watchword for all who work in our field.

Thanks again Mr. Hendershot for posting to this article.

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The Capacity of The Vegetative State

Published on November 19, 2007 in Estate Planning and Powers of Attorney & Health Care Proxies. 0 Comments

Neil E. Hendershot of the PA Elder, Estate & Fiduciary Law Blog writes here about an October 15, 2007 New Yorker article entitled, “Silent Minds”, by Jerome Groopman, that addressed comprehensively (Mr. Hendershot’s word) “what scanning techniques are revealing about vegetative patients.”

Claims by by Adrian Owen, a young British neuroscientist, include: some patients in a vegetative state recognize their loved ones’ photographs, comprehend speech, and are able to perform complex mental tasks on command.

Whenever pictures of Bainbridge’s family flashed on the screen, an area of her brain called the fusiform gyrus, which neuroscientists had identified as playing a central role in face recognition, lit up on the scan.***

The patients’ brains were scanned while they listened to a recording of simple sentences interspersed with meaningless “noise sounds.” The scans of some of the patients showed the same response to the sentences as scans of healthy volunteers[.]***

Owen’s final experiment was the most ambitious: a test to determine whether vegetative patients who seemed able to comprehend speech could also perform a complex mental task on command. He decided to ask them to imagine playing tennis.***

The woman had to be able to hear and understand Owen’s instructions, retrieve a memory of tennis—including a conception of forehand and backhand and how the ball and the racquet meet—and focus her attention for at least thirty seconds. To Owen’s astonishment, she passed the test.***

I’m more than skeptical (despite an austere hope) about such claims and the methods used to reach them, so I’ve sent the article to neuroscientist-friend of mine for his opinions… Nonetheless, I thought to post it now for your edification and comments.

…To Be Continued…

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Trustee’s and Their Duty to Inform

Published on November 13, 2007 in Trust Administration and Trust Litigation. 0 Comments

Juan Antunez, of The Florida Probate Litigation Blog posts here about the duty of a Florida Trustee to report and includes a great quote from this article (PDF, or at 40 Real Property, Probate and Trust J. 373 (Summer 2005)), by author and Denver, Colorado, trusts-and-estates attorney Kevin Millard:

To be able to enforce the trustee’s duties, the beneficiary of a trust must know of the existence of the trust and be informed about the administration of the trust. If there were no duty to inform and report to the beneficiary, the beneficiary might never become aware of breaches of trust or might be unaware of breaches until it is too late to obtain relief. In addition, providing information to the beneficiary protects the trustee from claims being brought long after events that allegedly constituted a breach, because the statute of limitations or the doctrine of laches will prevent the beneficiary from pursuing stale claims. As a result, the duty to inform and report to the beneficiary is fundamental to the trust relationship.

Juan writes:

At it’s core, the job of trustee is as much about keeping beneficiaries adequately informed as anything else. Most trust litigation can be traced back to a trustee’s inability to adequately explain him or herself to the trust beneficiaries.

And I completely agree. We’ve had cases come to us here solely because one of the trust beneficiaries feared the Trustee (who maybe wasn’t even appointed yet) was not going to communicate with them after the trust was funded.

Ohio imposes an analogous duty to the Florida’s statue in R.C. § 5808.13 Duty To Inform And Report.

(A) A trustee shall keep the current beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, a trustee shall promptly respond to a beneficiary’s request for information related to the administration of the trust.

(B) A trustee shall do all of the following:

    (1) Upon the request of a beneficiary, promptly furnish to the beneficiary a copy of the trust instrument. If the settlor of a revocable trust that has become irrevocable has completely restated the terms of the trust, the trust instrument furnished by the trustee shall be the restated trust instrument, including any amendments to the restated trust instrument. Nothing in division (B)(1) of this section limits the ability of a beneficiary to obtain a copy of the original trust instrument, any other restatements of the original trust instrument, or amendments to the original trust instrument and any other restatements of the original trust instrument in a judicial proceeding with respect to the trust.
    (2) Within sixty days after accepting a trusteeship, notify the current beneficiaries of the acceptance and of the trustee’s name, address, and telephone number;
    (3) Within sixty days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, notify the current beneficiaries of the trust’s existence, of the identity of the settlor or settlors, of the right to request a copy of the trust instrument, and of the right to a trustee’s report as provided in division (C) of this section;
    (4) Notify the current beneficiaries in advance of any change in the method or rate of the trustee’s compensation.

(C) A trustee shall send to the current beneficiaries, and to other beneficiaries who request it, at least annually and at the termination of the trust, a report of the trust property, liabilities, receipts, and disbursements, including the source and amount of the trustee’s compensation, a listing of the trust assets, and, if feasible, the trust assets’ respective market values. Upon a vacancy in a trusteeship, unless a cotrustee remains in office, a report for the period during which the former trustee served must be sent to the current beneficiaries by the former trustee. A personal representative or guardian may send the current beneficiaries a report on behalf of a deceased or incapacitated trustee.

(D) A beneficiary may waive the right to a trustee’s report or other information otherwise required to be furnished under this section. A beneficiary, with respect to future reports and other information, may withdraw a waiver previously given.

(E) The trustee may provide information and reports to beneficiaries to whom the provided information and reports are not required to be provided under this section.

(F) Divisions (B)(2) and (3) of this section apply only to a trustee who accepts a trusteeship on or after the effective date of this section, to an irrevocable trust created on or after the effective date of this section, and to a revocable trust that becomes irrevocable on or after the effective date of this section.
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This section has been the cause of much debate in Ohio over whether or not these responsibilities present too much a of a burden for a Trustee and attempts have already been made to either reform this statue or repeal it entirely. Stay tuned.

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Alternative Minimum Tax (AMT) Update

Published on November 11, 2007 in Uncategorized. 0 Comments

Yesterday Edmund L. Andrews, of the New York Times published a piece called House Backs Tax Relief Bill, but Fate in Senate Is Unsure.

The bill, approved by the house Friday [November 9, 2007], would shield about 21 million people from the alternative minimum tax next year, and pay for it in part by ending tax breaks for private equity funds, hedge funds and other partnerships.

But the bill, approved 216 to 193, faces a highly uncertain future in the Senate. Republicans are staunchly opposed to any tax increases, and some Democrats are torn between appealing to their party instincts and alienating some of their big contributors.

The alternative tax has exploded in the last six years and is set to hit people with incomes as low as $50,000 – something it was never intended to do.

“The A.M.T. is crazy; it was never meant to apply to middle-class taxpayers,” said Representative Jim McCrery, Republican of Louisiana.

Warning: political commentary:

What is really crazy is President Bush’s threatened veto of the bill:

President Bush has already threatened to veto the bill, which also includes extensions of several other tax provisions, if it includes higher taxes that would shift more of the tax burden to the wealthy. He argues that Congress should freeze the alternative minimum tax without trying to make up the $50.6 billion revenue loss for the 2007 tax year.

In other words, the current bill is revenue neutral but, wary of increasing taxes on the wealthiest 1% of the people in the country, the President thinks its better to increase the deficit – and let portions of the middle-class bear the burden for a shortsighted bill that was intended to help them.

If Congress fails to act within the next few weeks, the alternative minimum tax will hit 21 million families with an average tax increase of $2,000 on their 2007 tax returns.

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