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North Carolina’s Response to the Opioid Crisis Continues to Build Steam

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As the nation struggles to deal with the staggering human and economic costs associated with the crises of opioid addiction and misuse, North Carolina is on the vanguard of the response.

The centerpiece of this effort is the Strengthen Opioid Misuse Prevention Act, more commonly referred to as the STOP Act.  Passed unanimously by both houses of the General Assembly on June 28, 2017 and signed into law by Governor Cooper on June 29, 2017, the STOP Act limits first time prescriptions for most opioids to no more than 5 days for acute pain, and 7 days for post-surgical pain.  It will require medical providers to check North Carolina’s Controlled Substance Reporting System database (CSRS) to confirm that the patient is not receiving inappropriate medications from other sources, and will require electronic prescriptions for such drugs by 2020.  The STOP Act also strengthens the CSRS, including provisions requiring pharmacies to report opioid transactions more quickly, and expands the availability of the opioid antagonist naloxone, in an effort to reduce the harm from opioid overdose.  But, recognizing the value of opioids in the correct settings, the STOP Act does not apply to medications administered in an inpatient setting, nor does it prevent follow up prescriptions for longer terms when medically appropriate.

In concert with the STOP Act, other efforts to confront the opioid crisis include the North Carolina Department of Health and Human Services’ Prescription Drug Abuse Advisory Committee, and the North Carolina Industrial Commission’s Opioid Task Force, which seeks to recommend rules and guidelines addressing the use of opioids in the context of workers’ compensation claims.

For more information on how North Carolina is addressing the opioid crisis, you may want to review the state’s Opioid Action Plan:  https://www.ncdhhs.gov/opioids

Select NC Industrial Commission Filings Now Require An Attorney

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As of Monday, September 18, 2017 the North Carolina Industrial Commission will no longer allow adjusters to file or respond to the below documents, as the North Carolina State Bar has determined that it constitutes the unlicensed practice of law.  Therefore, if you wish to file or respond to any of the below documents, an attorney will have to be retained in order to do so:

  • Form 24 Application to Terminate or Suspend Benefits
  • Motion to Compel Cooperation with Medical Treatment or Vocational Rehabilitation
  • Response to Form 23 Application to Reinstate Benefits
  • Response to Form 18M, Form 28U
  • Response to any Motions filed by Plaintiff or Plaintiff’s Attorney, including a Motion to Compel Medical Treatment, Motion to Compel Rule 607 or Discovery Responses, Motion to Compel Second Opinion.

Please contact any of our workers’ compensation attorneys if you have any questions.

Expectations & Reality – Long Term Care

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A joint venture between the Associated Press (AP) and the NORC at the University of Chicago (if you’re curious about what NORC means, visit this page, and anticipate confusion) released the results of a national survey it conducted related to the population’s understanding of long-term care and the impact it has on families.  This is a follow-up to a survey it conducted in 2013 related to peoples’ understanding of long-term care.

The results of the survey may be surprising to some, but not to folks that have experienced a situation related to the care of a loved one.  Some key points from the survey:

  1. The US Department of Health & Human Services estimates that 70% of people who reach the age of 65 will need some form of long-term care.
  2. Six in 10 Americans aged 40 or older have experience with long-term care, either as caregiver, recipient, or person paying for care.
  3. Americans aged 40 or older who have experienced long-term care issues are more likely to be concerned with planning for long-term care for themselves and not relying on family.
  4. One-third of Americans in that same age bracket are very concerned about not doing enough planning to provide for their own care, but two-thirds indicate that they’ve done little to no planning.
  5. Americans lack information about ongoing living assistance, but what information they do have the tend to get from friends, family, or co-workers, even though they place much more trust in the information they receive from professionals.

There are additional critical points in the survey, including how the nation will pay for the growing care needs of its aging population.

But the big takeaway for me, as an elder law attorney, is this: there are professional sources of information on these issues, from attorneys to elder care groups to financial planners, that can be tapped for often-times minimal or no cost to provide education and understanding related to these issues.  There is no reason to face these problems without planning or direction.

Some basic points to consider:

  1. Have you talked about your long-term care desires with your family?  If so, have you talked about how to pay for them?  For example, if you want to stay at home, have you advised in which order assets should be consumed, and which ones should not be (if any)?  Or if you’d like to move into an independent or assisted living home, have you discussed paying for care?
  2. Do you have the basic estate planning documents in place that will allow family to make decisions on your behalf?  Power of Attorney?  Health Care Power of Attorney?  Living Will?  Have you explained your wishes to your family?  If not, DO SO.
  3. Have you considered long-term care health insurance?  Many insurance companies nowadays offer policies that are long-term care/whole life insurance combinations, meaning you can get more than just care coverage from your investment.  Many long-term care policies also include home-health riders, allowing coverage for in-home care.  Talk to an insurance professional about these options.
  4. Have you considered planning to protect assets in the event you need long-term care?  As the survey indicates, 72% of the folks that have received some sort of long-term care have incomes of $50,000 or less.  Our experience has shown that many of these people do not have the types of long-term savings or assets to pay for ongoing care, and when the assets they do have run out, they’re normally left needing Medicaid assistance.  The laws related to the Medicaid program allow for planning to preserve some of your assets.  Talk to an attorney (like me) that understands these rules and what can be done.
  5. Finally, don’t wait until you’re faced with a crisis situation to do something.  We deal with these situations regularly, and they’re never good.  So, if you’re reading this blog, make an appointment with an attorney to talk about things.  The consultation fee is worth the peace of mind.

Gifting, Taxes, and Long Term Care

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One of the more common concepts that clients get confused about is taxes on gifts to children or grandchildren, and how it all works together when you’re thinking about planning for Medicaid or long-term care.  This normally happens with our older clients who are getting to a point where paying for care is a concern.  The conversation normally goes something like this:

Client: “I want to give my kids $50,000.00 each.  I know I can give some amount away each year to my kids and the government won’t count it, right?”

Me: “You’re allowed to give $14,000 to an individual without incurring any gift tax liability.”

Client: “So they can’t come back and get it if I need to go into the nursing home?”

And this is where the confusion begins.  Many clients confuse the rules related to taxes on gifts with the rules related to gifts related to the Medicaid lookback, or they assume that one rule covers everything.  Unfortunately, this isn’t the case.

The website “The Motley Fool” has a good, succinct article about when a person should consider making gifts to heirs.  The article, which can be found here, has as straightforward an explanation of gifts and taxes as I’ve seen.  It also raises a good point, namely, have you considered how you are going to pay for long-term care after you’ve made these gifts?

The important points to remember are:

  1. Gifts made for tax purposes are not always protected from the Medicaid lookback rules, if such gifts are made within five years of applying for Medicaid assistance.  This five year period is also called the “lookback” period, and it is what it says.  Social Services is looking back through your financial history to determine whether you have made gifts of assets that should have instead been used to pay for your long-term care.  There are certain situations in which you may be able to overcome this presumption, but the safe rule of thumb is that Social Services will count those gifts against you.
  2. If you have your cost of care covered, either with long-term care insurance, or with other assets, remember to take into consideration the assets you are gifting.  Gifts of stocks or real property can result in adverse tax consequences down the road for the recipient.  Why?  Because generally speaking, gifts during the life of the donor (donor is the person making the gift) retain the basis of the donor in the hands of the donee (the person receiving the gift).  In English?  OK, OK.  Let’s say I bought 5,000 shares of stock in ABC Corporation for $1.00 each 20 years ago.  My basis in these shares is $5,000.00.  If today they are worth $10.00 per share, and I sold them, I would have a taxable gain of $45,000.00.

If I give the shares away to my sister when they are worth $10.00 per share, my sister’s basis would not be $50,000.00, it would be what I paid for them: $5,000.00, meaning that if my sister were to sell the shares, she would be taxed on the $45,000.00.

If I retained my shares, and gave them to my sister via my Will when I died, she would receive the shares with the basis “stepped up” to the value of the shares the day I died.  So if when I died, the shares were worth $100 per share, my sister’s basis would be $100 per share.  If she sold the stock that same day, she would owe no taxes on the money received from the sale.

So what does this mean?  If you’re going to make gifts, think about the type of asset you’re giving.  If it’s something you didn’t pay much for but is worth an awful lot now, consider holding onto that asset and passing it at death, or consulting with us regarding better ways to plan for tax consequences.

Where does this tie in with the Medicaid lookback rules?  If you’re worried about protecting assets for long-term care and/or Medicaid eligibility, but want to make sure that your beneficiaries retain the advantages of a stepped-up basis in the asset, consider estate planning that will do both.  There are several different ways to ensure that assets will not be subject to estate recovery should you need Medicaid assistance, while retaining the step-up in basis provided by an on-death transfer.  Irrevocable trusts and gift deeds reserving life estate are one common way of doing this, but it needs to be done properly, and it needs to be part of an overall plan that will leave you with the assets you need and access you need to be able to live comfortably during retirement.

If you have questions about these issues, or need advice about planning for long-term care, talk to an attorney who deals specifically with these matters.

Is the Medicaid Look Back Period Five Years or Seven?

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This is another question that’s started cropping up lately in client meetings.  We’ve had many clients come in under the impression that the look back period for transfer of assets under the Medicaid rules is now seven years.  Much to their relief, this is not the case.

The last change related to an increase in the look back period came in 2005 with the Deficit Reduction Act.  Provisions in that Federal law required the look back period to move from three years to five years for all transfers, beginning in 2007.  That transition was not fully implemented until 2012.  Which is to say, changes to the look back period don’t happen overnight.

So don’t fret.  If you hear someone say the look back period is seven years, let them know they’ve obtained some incorrect information, and tell them to consult with an Elder Law attorney familiar with Medicaid and the look back period before they make a mistake.