Top 5 Things You Should Know About Constitutional Law

When we ask ourselves what kind of country we want to live in, one of the first thoughts we have is, “What should be allowed, and what shouldn’t?” In a nation that is governed by 23,000 pages of criminal law alone, how do we decide what laws we want to live by? It all comes down to what is written in the Constitution of the United States, and how it is interpreted through constitutional law.

What Is Constitutional Law?

No one can write a law that is in conflict with what the Constitution says, and that is where constitutional law comes in.

The Law of the Land

Constitutional law is the body of law that deals with interpreting the Constitution and applying its decrees to practice in real-life situations, some mundane and others extremely consequential. In the United States, the Constitution is the supreme law of the land.  It outlines what powers the different branches of government have, and what rights the citizens have. The Constitution has the final word in all questions of how our government and legal systems work – end of story.

Murky Waters

In the real world, however, there are arguments and differing opinions over specific aspects of the Constitution, and resolving them is not always as simple as dusting off the document and checking it to see which side is getting it right. Two people (or two areas of government, or two companies, or one person and the government, etc.) can read the same document, and each can think that the law is on their side.

Furthermore, there may seem to be contradictions within the Constitution itself, which can rouse questions about enforcing existing national, state, and local laws. New laws also have to be checked for constitutionality as well.

Constitutional law aims to untangle these questions and figure out what is in line with what the Constitution says and what is not. But, what does the Constitution say?

What Constitutes the Constitution?

The Constitution is invoked every day by pundits on cable news outlets, politicians on the campaign trail, and advocates arguing their stance on one issue or another. There is much more in the text than the commonly quoted bits and pieces that turn up so often in soundbites. Here is a quick rundown of what is covered in the constitution:

The Original Seven Articles

These form the bulk of the original document, drafted by the founders in 1787 and ratified by all of the original thirteen colonies by 1789.

Articles 1-3:

Articles 4-6:

Article 7:

A Living Document

Right from the get-go, the founders got to work adding amendments to the Constitution, and we have been adding more ever since with the latest amendment being ratified in 1992.

The first ten amendments to the Constitution are known collectively as the Bill of Rights. They restrict government power and guarantee specific rights to the population. The First Amendment, for example, guarantees freedom of religion and restricts government from imposing any religion on the population. Other amendments in the Bill of Rights address gun ownership, the right to a speedy trial by jury, and protection against unwarranted search and seizure.

The remaining seventeen amendments can be grouped into three main categories:

Expansion of civil rights:

There are amendments outlawing slavery, guaranteeing women's suffrage, and abolishing Jim Crow policies.

Government processes and procedures:

These address questions of how the government will go about its business and deal with things like term limits and what happens if the President is unable to carry out his or her duties.

Governmental authority:

The eighteenth amendment, banning alcohol sales in the United States (the only one to be repealed), is included here, as well as others dealing with the reach of government authority.

The Need for Constitutional Law

Clearly, there is a lot to untangle in the Constitution. To further complicate the issue, the original document was signed into law well over 200 years ago. Inevitably, situations are going to arise that cause confusion about how best to apply the letter of the law, and inevitably, there will be lawyers involved.

How to Apply the Constitution?

There are five main approaches to figuring out how best to apply the Constitution.

Look at the Text: Ideally, all you need to do is read the text and do what it says. You may need to get around some old-fashioned language and follow some complicated thought processes, but otherwise, hopefully, the answer is in the document.

Structure and Logic: Sometimes, it is helpful to consider an individual amendment in the context of the entire constitution. For example, the eighteenth and twenty-first amendments only make sense if you consider that one repealed the other. Further, if there is any lack of clarity around one of the first ten amendments, consider that as part of the Bill of Rights, it is there to enshrine the rights of citizens.

Original Intent: The question of what the Founding Fathers originally intended when writing a part of the Constitution is a common, and complicated, dilemma. It is a useful question to the extent that their intention can help clarify the law itself, but it can be difficult to find the line between what they may have had on their mind, but still chose not to enshrine into law, and what they intended the words that they actually did enshrine into law to mean. For example,  if an amendment states that “any person has equal protection under the law” even though, at the time, many did not wish for women to have equal protection under the law, it may be true that many would not have wished the law to include women, thinking that “person” would be understood to refer to men only. However, the word that they chose to write was “person,” (and not “man” or “male”), which even then could be understood to include women. Therefore, we cannot say that the law should not apply to women;  they chose the word “person,” and that is what we go by.

Precedent: Here you would look at what has already been decided by previous courts and apply that decision to another situation. Precedents and the thought processes behind them can shed a lot of light on the issue at hand, but should never supersede what is actually written in the Constitution.

Policy: The question here is, “What impact will this have on the real world?” This approach is a bit tricky, as here you begin with the result that you want, and try to make it work within the Constitution. This should be the last approach, taking a back seat to an impartial reading of what the document says.

Top 5 Things You Should Know About Constitutional Law

There Is Always an Issue:

At any given time, there are plenty of important issues being worked out nationally, and one way to set policy is through the courts. Look no further than the cases involving money in politics, LGBT civil liberties, and religious freedom, or the debate about online file sharing.

Court Cases Matter:

A lot of important court cases involving the constitutionality of certain laws have shaped our policy for years and affect our lives today. Here are a few you may know: Roe Vs. Wade, in 1973, held that women have a constitutional right to choice; and Miranda Vs. Arizona, in 1966, gave us the “Miranda Rights” by guaranteeing that citizens are informed of their right against self-incrimination.

But Some Are Boring:

Take Fischer vs St. Louis (1896), about milk distribution; or Northwestern States Portland Cement Co. Vs. Minnesota (1959), about interstate tax laws. No offense, constitutional law professors.

It’s Not All About the Supreme Court:

While commonly regarded as the branch that interprets the Constitution and the place we should bring constitutional matters to be decided, the Supreme Court is not the sole guardian of our Constitution. Each branch of government is equally responsible to abide by the Constitution as they see fit, independent of the others, and nowhere in the Constitution itself does it say that the Supreme Court innately has more authority to interpret the law than the others. In fact, not only are all three branches of government bound by this responsibility but...

It's In Your Hands:

As citizens, we too have the authority to interpret the Constitution. The point is made explicitly in the first three words of the document itself, “We the People.” It is our right and responsibility to uphold the law of the Constitution by voting, jury duty, political advocacy, and all forms of civic participation.

So Get Out There!

The Constitution is one of the most important documents in our nation and guarantees us our rights and liberties. It is the backbone of our legal system, outlines how our government should work, and tells us who has the power to do what. If you have something to say about the Constitution, say it! You can get informed by viewing the Constitution itself here: https://www.usconstitution.net/const.pdf

Will You Need A Probate Lawyer? And Other Questions Answered

There are so many possessions that have to be dealt with upon a person’s death. The deceased person's bank accounts, credit cards, property, vehicles, debt, jewelry, everything has to be accounted for and properly distributed to the heirs of his or her estate. A probate lawyer can be a great help to a surviving family in grief when it is time to deal with the legal ramification of property, debt, and possession post-mortem.

Will or No Will

A decedent is a person who has died. An executor is a rightful heir and decision maker for the estate of the decedent. An administrator is the person in charge of the affairs of the decedent estate when there was no will drafted. If a living will was established, the probate process will be much less painful than if there was no will.

When someone dies with a will, the estate or probate lawyer can be contracted to advise the heirs on their legal rights and how the probate process works. The lawyer should be able to verify critical facts, for instance, ensuring that the deceased was not under duress at the time that he or she drafted the living will.

Intestate is the status of a deceased person that did not have a signed will for the surviving family members, heirs, and attorneys to use in probate. Each state has its own intestacy laws regarding property, no matter what the deceased wishes. Typically, under most states' intestacy laws, the surviving spouse receives all property and assets.

Other family members may hire a trust lawyer to contest this if the spouse was estranged or not deemed fit to heir these possessions. Without contest, whether the administrator of the estate hires a lawyer or not, the assets and property will be distributed according to the particular state law.

Without a living will, an estate administrator will need to procure renunciations from other proposed heirs to the estate. These renunciations are agreements from the other heirs that they legally release their rights to administer to the estate, and the administrator will carry on the business of the estate solely and fairly. An administrator may also choose to hire a lawyer at this stage to file their renunciation statements with the state probate court. From here a lawyer will also assist with the administration of estate probate processes like securing and appraising property, paying debts, clearing debts, managing estate funds, etc.

What Is Probate?

Probate is the process of distributing assets and property to the descendants of the deceased. Part of the probate process is clearing debt, paying taxes and managing liquid assets on behalf of the estate, the estate heirs and beneficiaries. The more valuable an estate is the more likely you are to have a probate lawyer allocate those estate possessions.

What Is a Probate Lawyer?

A probate lawyer is an attorney that handles estate planning, wills, and legal manners concerning an estate of a deceased person.

When to Use a Probate Lawyer?

Sometimes things get messy in probate, especially with large estates. A good estate lawyer can clean up that mess and protect the rightful heirs. Many people are not aware of how many claims are made in probate court against any estate. Sometimes creditors are not as forgiving as one would expect in times of death and they have the legal right to file a claim against an estate to recuperate the entirety of their debt. These things are foreign to most layperson so the administration of a trust lawyer is advised in those instances. The goal of the heirs and the estate lawyer should be to fulfill the wishes of the deceased.

For the Living

While living, you should hire an estate lawyer to draft a legal will according to your specifications. This will help your heirs when you become a decedent by creating a legal document permissible in probate court that is unlikely to be challenged. Sometimes family members are not all on one accord, a lawyer can reduce the friction of having to decide who gets what when it is time to divide the family possessions.

Probate is usually a slow process. With so many possessions to account for, document, and assess, the process can last well over a year. An effective lawyer will alleviate all the obstacles that stand in the way of the decedent wishes being carried out in probate court.

Many questions will arise during the probate process and the court clerks are not always as helpful as one would like them to be. When you have a probate lawyer, they will get all of your questions answered, either from their experience in the field or by leveraging their relationship with the court and its clerks to offer you the answers you seek. A good lawyer will walk you through the details of the process so he or she is sure you understand all things occurring during the probate process.

All the filing and technical details will be the lawyer's job to inform and explain to you, while handling them for you. Mistakes get made and you do not want to extend the long and stressful probate process by making those mistakes in your time of grief. You are paying the lawyer to file all the proper paperwork without making the mistakes that cost time and resources.

As an Executor

As an executor or administrator of an estate you have to continue to handle your personal business while making sure the business of the decedent does not interfere with the probate process. Your lawyer will be used in this instant to pay bills, settle debt, and clear taxes. According to probate laws, an estate has a designated amount of time to settle debt. Your lawyer should ensure that you meet all these deadlines.

Your lawyer will also protect you as an executor or administrator of an estate from getting sued by your fellow beneficiaries. A lawyer cannot prevent a lawsuit directly, but by making sure you are on top of the details in the probate process, the chances of getting served with a lawsuit are minimal.


How to Hire a Probate Lawyer

  • When hiring a service as vital to your family as a probate lawyer, you should first ask friends and family for a referral
  • If you do not get a contact from your circle of influence you should do a google search and only value sites that offer customer testimonials
  • Google itself has a 5 star system and comments from customers, however, Google is not usually abundant with ratings
  • Facebook pages: If you are very precocious you can message some of the people that left reviews and ask them about their experience with the particular lawyer
  • Avvo is also a quality resource in your search for a qualified and experienced probate lawyer


How to Avoid Probate

In some rare occasions you can plan your estate to prevent having to go through the probate process. In many instances this will require an estate or trust lawyer. However, these options are not available for the heirs of an estate. If you want to save your family time, money, and energy, choose from the list below when completing your estate planning:

  • Make all of your property joint ownership- when a person dies the property will automatically transfer to joint owners of property
  • Assign your beneficiaries for assets such as life insurance, bank accounts, retirement funds, and investments
  • Obtain a living trust, which protects property from having to enter into probate and passes it directly to whoever you designate


Conclusion

The probate process can be long, drawn out, and emotionally draining. You can outsource this work to a lawyer who will provide experienced counsel and carry out your wishes concerning your estate. A probate lawyer is not a necessity, however, a probate lawyer can save you a lot of time in probate court and take a load of stress from your shoulders.

Whether you are estate planning for your family after you are no longer here or if you are the executor of an estate and want to make sure you do right by your family, it is a good call to consult with a probate lawyer. Some estate lawyers can give you enough guidance in one consultation for you to be able to hire them or have the steps to plan your will, estate, or distribute the assets to your family without using legal representation. Every family is different, and each has its own nuances.

Take these into account and decide whether you want to deal with probate on your own or hire that work out to a trained and certified professional. The fees associated with hiring a competent and experienced lawyer can greatly outweigh the time and energy the probate lawyer saves you. Look through our website for more tips on hiring lawyers for your specific needs.

Job Opportunities

Widelaw.com is owned and operated by Legal Data Services LLC and publishes over 700 different web based properties in 400+ markets in the United States.  Legal Data Services, LLC provides lead generation marketing services for attorneys in over 1700 markets nationwide and has a comprehensive network of sites geared toward practice areas such as DUI, Bankruptcy, Personal Injury, and Criminal Law.

Legal Data Services, LLC is headquarter in Nashville TN with employees based in 41 states. We do offer health insurance, 401k, and other related benefits to our full time employees.

We are in the process of developing a larger network of websites to cover an additional 300 markets and we are hiring staff in 17 states. Please note some of our staff members are home based or telecommute positions and these type jobs are only suited for motivated employees that can work well without supervision.

Patch Legal Data Services is an equal opportunity employer. Minority’s and disabled persons are encouraged to apply. We do require criminal background checks for all applicants. Felony convictions do not eliminate applicants but they can be considered in the hiring process.

Below is a current list of job opportunities we have available.

Noroxin

Rights of Persons with Disabilities

Many older people are unable to manage their daily activities as well as they once
did. Others have disabilities that have worsened with age. Two major federal laws, the
Americans with Disabilities Act and the Fair Housing Amendments Act, protect people
with physical or mental disabilities from discrimination in virtually every aspect of their
lives. In addition, these laws require employers and the providers of services to modify
their rules and policies, and physical environment, to meet the needs of persons with
disabilities.

Q. Who is protected by these laws?

A. Both the Americans with Disabilities Act (ADA) and the Fair Housing
Amendments Act (FHAA), protect people with mental or physical impairments that limit
their ability to perform one or more major life activities. These activities include walking,
seeing, hearing, taking care of personal or health needs or doing everyday chores. The
laws also protect people who are perceived to have a disability, or whose family members
or friends are disabled.
Neither law protects people who threaten the safety or health of others, or whose
behavior would result in substantial damage to the property of others. Nor do the laws
protect current users of illegal drugs.

 

Q. What situations does the Americans with Disabilities Act cover?

A. The ADA protects people with disabilities against discrimination in
employment, public transit and public accommodations (such as hotels, restaurants, banks,
schools and senior centers). It generally does not cover housing (but the FHAA does, see
below) although it does cover some non-housing activities that are based in a housing
facility, such as meal or activity programs to which the public is invited.

 

Q. What situations are covered by the Fair Housing Amendments Act?

A. The FHAA applies to almost all housing transactions. Most importantly for the
purposes of this chapter, the law prohibits landlords from refusing to rent to older people,
or asking them to move, simply because they need assistance with certain activities.

The law does not apply to rental buildings that contain fewer than four units, and where the
owner also lives in the building. Examples of prohibited discrimination include:
· refusing to rent to a family whose member has a mental illness;
· requiring applicants for senior housing to provide a doctor’s letter stating that they are
in good health and can live on their own;
· denying a resident who uses a wheelchair or a walker access to a communal dining
room;
· evicting a tenant because he or she is receiving homemaking help or other services.

 


 

Q. What does “reasonable accommodation” mean

A. Reasonable accommodations are changes in rules or procedures that are
reasonable under the circumstances, and give a disabled person equal opportunity to
participate in a specific activity, program, job or housing situation. They are very
individualized, and can often be worked out informally by the people involved. Examples
include: providing large-print notices, leases or other written materials;
· giving a job or housing applicant more time to fill out an application;
· waiving a no-pets rule for a tenant with a mental disability who is emotionally
dependent on his or her pet, or waiving a no-guest rule for a tenant who needs a live-in
aide;
· assisting a customer who needs help with packages, or with opening and closing doors,
or even with dialing a telephone.

 

Q. What are reasonable modifications?

A. Reasonable modifications are changes to the physical structure of a building or
property, which are reasonable under the circumstances, and which give a person with
disabilities equal access to the premises. Examples include:
· widening doorways and installing ramps;
· replacing doorknobs with lever handles;
· installing grab bars in bathrooms.

 

Q. Who pays for these alterations?

A. In an apartment or other housing program, the landlord pays for alterations to
the common areas, such as hallways, entrances, and meeting rooms. The tenant is
responsible for the costs of modifications inside the apartment. Alterations to public
facilities, hotels, and other programs covered by the ADA are paid for by the owner of the
facility.

 

Q. How do I go about getting some changes made in my apartment?

A. Although many housing providers are familiar with the FHAA, and are working
to make sure that their buildings are accessible, they may not be aware of accommodations
that would make life easier for individual tenants. All you need to do is request the
changes; if they are reasonable, they should be honored. Remember that you are
responsible for the costs of physical alterations inside your own apartment. Also, you may
be required to return the premises to their original condition when you move.

 


Q. What do I do if I believe I am being discriminated against?

 

A. These laws can be enforced through court action or by filing a complaint with
an administrative agency.
If the discrimination involves housing, call the U.S. Department of Housing and
Urban Development’s Fair Housing Complaint Hotline at 1-800-669-9777.
If the discrimination involves employment, public accommodations,
telecommunications or public transit, contact the U.S. Department of Justice, Office on the
Americans with Disabilities Act, Civil Rights Division, at 1-800 514-0301 (voice), or 1-
800 514-0383 (TDD).

Zanaflex

Your Right to Health and Long Term Care Benefits

The federal government provides a program of basic health care insurance for
older and disabled individuals called Medicare. Practically everyone who has a work
history and is sixty-five and older is eligible for Medicare, even those who continue
working after age sixty-five.

The federal and state governments together also provide a comprehensive medical
benefits program, called Medicaid, for qualified low-income people. Medicare and
Medicaid are not the same, though some older people qualify for both. Medicaid coverage
rules vary from state to state, but Medicare is the same all over the United States.
The questions that follow examine Medicare and Medicaid, as well as private
“Medigap” insurance commonly used to supplement Medicare coverage. The section then
turns to long-term care benefits under public programs and under private long-term care
insurance.
Since Medicare and Medicaid came into being in 1965, they have been revised
many times. More revisions are certain. Current information is available from your local
Social Security Administration office. Other groups such as the American Association of
Retired Persons, local legal services programs, senior centers, and area agencies on aging
also provide useful information.

 

 


Q. What is the basic structure of the Medicare program?

 

A. The Health Care Financing Administration, a branch of the U.S. Department of
Health and Human Services, is the federal agency responsible for administering the
Medicare program. Regular Medicare has two main parts. The hospital insurance part, or
“Part A,” covers medically necessary care in a hospital, skilled nursing facility, or
psychiatric hospital, home health care, and hospice care.
“Part B,” or the medical insurance benefits part, covers medically necessary
physician’s services, no matter where you receive them, outpatient hospital care, many
diagnostic tests, and a variety of other medical services and supplies not covered by Part
A.The exact coverage rules and limitations are complex. The actual coverage
determinations and payments to providers of care are handled by insurance companies
under contract with Medicare. These insurance companies are referred to as “fiscal
intermediaries” under Part A and “carriers” under Part B. They determine the appropriate
fee for each service. That is why regular Medicare is referred to as a “fee for service”
program.
Medicare beneficiaries also have the option of joining a Managed Care
Organization (MCO) or care option permitted under “Medicare + Choice.” Managed care
organizations provide or arrange for all Medicare covered services and generally charge a
fixed monthly premium and small or no co-payments. They may also offer benefits not
covered by Medicare, such as preventive care, for little or no additional cost.
Denials of Benefits
Never accept a denial of benefits without further questioning. Unfair denials of
Medicare benefits occur with surprising frequency. Medicare beneficiaries who appeal
unfair denials have a substantial likelihood of success on appeal. Your appeal rights are
explained below

 

Q. What does Medicare cost me?

A. Part A coverage is provided free to all individuals sixty-five and older who are
eligible for social security (even if they are still working). If you are not eligible for social
security benefits, you can enroll in Part A after age sixty-five, but you will have to pay a
sizable monthly premium.
Part B is available to all Part A enrollees for a monthly premium that changes
yearly. The Social Security Administration office can tell you the cost of the current
premium. Under both Parts A and B, beneficiaries must pay certain deductibles and coinsurance
payments, depending on the type of service, unless you are enrolled in a
managed care organization. “Deductibles” are payments you must make before Medicare
coverage begins. “Co-insurance payments” are percentages of covered expenses that you
are responsible for paying. These amounts can change from year to year.
If you meet certain income and resource tests, your state’s Medicaid program will
assist you in paying your share of Medicare costs. The income and resource tests are more
generous than the limits for regular Medicaid eligibility, so even if you are not eligible for
Medicaid, you may still be eligible for help as a “Qualified Medicare Beneficiary” (QMB)
or a “Specified Low-Income Medicare Beneficiary” (SLMB).

 


Q. I will turn sixty-five soon, but I do not plan to retire then. Am I still going
to be able to receive Medicare benefits?

 

A. Yes, but you must file a written application. This can be done in two different
ways. Your “initial” enrollment period begins three calendar months before your sixtyfifth
birthday month, and extends three months beyond your birthday month. You can
enroll at any time during this seven-month period. Your benefits will begin on the first day
of the month in which you turn sixty-five.
If you do not enroll during this time, you can enroll during the “general”
enrollment period, which runs from January 1 to March 31 of each year. However, you
will pay a higher monthly premium if you delay enrollment beyond your initial enrollment
period.
If you are working and are covered by your employer’s health insurance program,
or if you are covered under your spouse’s plan, Medicare is the secondary payer after the
other insurance pays. If you haven’t enrolled in Medicare and you lose the other insurance,
you may sign up for the Medicare program during a “special” seven-month enrollment
period that begins the month the other program no longer covers you.
To make sure you receive maximum coverage without penalty, talk to your
employer’s benefits office or your local Social Security Administration office.

 

Q. Is Medicare only for older adults?

A. No. In addition to older social security recipients, younger persons who have
received social security disability benefits for more than twenty-four months are eligible,
as well as certain persons with kidney disease.
Protecting Your Rights When You Contact Public Agencies
Remember to note the name of the person with whom you speak, the date of your
conversation, and the content of the conversation. This is useful if you later need to
challenge the information provided.
Signing Up for Medicare
Enrolling in Medicare is no problem for most people. Everyone who is turning
sixty-five and applying for social security or railroad retirement benefits is automatically
enrolled in Medicare Part A. If you are receiving these benefits before turning sixty-five,
you should receive a Medicare card prior to the month you turn sixty-five. The Medicare
benefits normally begin on the first of the month in which you turn sixty-five.
If you are under sixty-five and receiving disability benefits, your enrollment in
Medicare will begin automatically as soon as you have been receiving benefits for twentyfour
months.If you are planning to work beyond age sixty-five and are covered by your employer’s
health insurance program, you must still file a written application through your local
Social Security Administration office.

 


Q. What does Medicare Part A (hospital insurance) cover?

 

A. Medicare Part A helps pay for medically necessary hospital care, skilled
nursing care, home health care, and hospice care as described below:

1. Hospitalization. This includes:

· a semiprivate room and board,

· general nursing,

· the cost of special care units, such as intensive care or coronary care units,

· drugs furnished by the hospital during your stay,

· blood transfusions,

· lab tests, X-rays and other radiology services,

· medical supplies and equipment,

· operating and recovery room costs, and

· rehabilitation services.

The coverage period for hospitalization is based upon a “benefit period.” A benefit
period begins the first time you receive inpatient hospital care. It ends when you have
been out of a hospital and have not received skilled nursing care for sixty days in a row. A
subsequent hospitalization begins a new benefit period.
On the first day of hospitalization during a benefit period, the patient is responsible for
a sizable inpatient hospital deductible ($776 during 2000). If you are hospitalized more
than once during a benefit period, the deductible does not have to be paid for the other
hospitalizations during the same benefit period. After the deductible, Part A pays for all
covered services through the sixtieth day of hospitalization. From the sixty-first through
ninetieth day, coverage continues but the patient is responsible for a daily co-insurance
payment. After the ninetieth day, Medicare covers up to sixty extra days (called “reserve
days”) during the lifetime of the patient. The patient pays a sizable co-insurance payment
during reserve days.
If psychiatric hospitalization is needed, Part A helps pay for a lifetime maximum of
190 days of inpatient care in a participating psychiatric hospital.

2. Skilled Nursing Facility inpatient care following a hospitalization of at least three
days. Your condition must require on a daily basis skilled nursing or skilled
rehabilitation services, which, as a practical matter, can only be provided in a skilled
nursing facility. You must be admitted within a short time (usually thirty days) after
you leave the hospital, and the skilled care you receive must be based on a doctor’s
order.
Most nursing home residents do not require the level of nursing services considered
skilled by Medicare. Consequently, Medicare pays for relatively little nursing home care.
In addition, not every nursing home participates in Medicare or is a skilled nursing
facility. Ask the hospital discharge staff or nursing home staff if you are unsure of the
facility’s status.The coverage period for skilled nursing facility services is limited to 100 days. In a
benefit period, Medicare pays for all covered services for the first twenty days. For days
twenty-one through 100, the patient is responsible for a sizable coinsurance payment.

 


Medicare helps pay only for “skilled” nursing home care. Medicare does not pay
for “custodial” care. However, the distinction is often fuzzy, and many Medicare denials
based on a finding of custodial care can be successfully appealed. Generally, care is
considered custodial when it is primarily for the purpose of helping the resident with daily
living needs, such as eating, bathing, walking, getting in and out of bed, and taking
medicine. Skilled nursing and rehabilitation services are those that require the skills of
technical or professional personnel such as registered nurses, licensed practical nurses, or
therapists. Care that is generally non-skilled may nevertheless be considered skilled when,
for example, medical complications require the skilled management and evaluation of a
care plan, observation of a patient’s changing condition, or patient education services.

 

3. Home Health Care. Medicare covers part-time or intermittent skilled nursing care;
physical, occupational, and speech therapy services; medical social services; part-time
care provided by a home health aide; and medical equipment for use in the home. Both
Part A and Part B of Medicare cover some home health care. Medicare does not cover
medications for patients living at home, nor does it cover general household services
or services that are primarily custodial.
To be eligible for home health care services you must meet four conditions,
presented in simplified terms here. First, you must be under the care of a physician who
determines you need home health care and sets up a plan. Second, you must be
home bound, although you need not be bedridden. Third, the care you need must include
intermittent skilled nursing, physical therapy, or speech therapy. Finally, your care must
be provided by a Medicare-participating home health care agency.
The coverage period for home health care is unlimited with no deductible or coinsurance
payment (except for durable medical equipment) as long as you continue to
meet all four conditions.

4. Hospice Care A hospice is an agency or organization that provides primarily pain
relief, symptom management and supportive services to people with terminal illness.
Hospice services may include physician or visiting nurse services, individual and
family psychological support, inpatient care when needed, care from a home health
aide, medications, medical/social services, counseling, and respite care for family
care-givers
To be eligible for hospice care, a patient must have a doctor certify that he or she is
terminally ill (defined as a life expectancy of six months or less); the patient must choose
to receive hospice care instead of standard Medicare benefits; and the hospice must be a
Medicare-participating program.
The coverage period for hospice care consists of two ninety-day periods, followed
by a thirty-day period, and when necessary, an indefinite extension. There are certain coinsurance
payments required under the hospice benefit, but no deductibles.

 


Q. What does Medicare Part B (medical insurance) cover?

 

A. Medicare Part B covers a wide range of outpatient and physician expenses
regardless of where they are provided–at home, in a hospital or nursing home, or in a

private office. Covered services include:

· doctors’ services, including some services by chiropractors, dentists, podiatrists, and
optometrists;

· outpatient hospital services, such as emergency room services or outpatient clinic care,
radiology services, and ambulatory surgical services;

· diagnostic tests, including X-rays and other laboratory services, as well as some
mammography and pap smear screenings;

· durable medical equipment, such as oxygen equipment, wheelchairs, and other
medically necessary equipment that your doctor prescribes for use in your home;

· kidney dialysis;

· ambulance services to or from a hospital or skilled nursing facility;

· certain services of other practitioners who are not physicians, such as clinical
psychologists or social workers;

· many other health services, supplies and prosthetic devices that are not covered by
Medicare Part A (Part B also covers some home health services.)

Medicare does not cover:

· routine physical examinations;

· most routine foot care and dental care;

· examinations for prescribing or fitting eyeglasses or hearing aids;

· prescription drugs that do not require administration by a physician;

· most cosmetic surgery;

· immunizations except for certain persons at risk;

· personal comfort items and services;

· any service not considered “reasonable and necessary.”
Recently, Medicare Part B began covering certain preventive services under
certain circumstances. These services include:

· certain vaccinations such as those for flu, pneumonia, and hepatitis B;

· prostate cancer screenings;

· pap smear and pelvic examination;

· mammograms;

· diabetes monitoring;

· colorectal cancer screening; and

· bone mass measurements.

A. For Part B benefits, you must pay a $100 annual deductible. Then Medicare
generally pays 80 percent of Medicare-approved amounts for covered services for the rest
of the year. You pay the other 20 percent of the approved amount. There is no cap on the
patient’s share of the cost. If you are a Medicaid recipient or a qualified Medicare
beneficiary (QMB), then your physician must accept “assignment.”
If a physician or other provider charges you more than the Medicare-approved
amount, then your liability depends on whether the provider accepts assignment.
“Accepting assignment” means that the provider agrees to accept the Medicare-approved
amount as payment in full. This means that your liability is limited to the annual
deductible and 20 percent co-payment. If the provider does not accept assignment,
generally you must pay for any excess charge over the Medicare-approved amount, but
only up to certain limits. The government presently sets the limit on physician’s charges at
115 percent of the Medicare-approved fee schedule. Doctors who charge more than these
limits may be fined, and you should get a refund from the doctor.
Here is an example of the difference accepting assignment can make: Mrs. Jones
sees Dr. Brown on June 1 for medical care. She has already paid her $100 annual
deductible for covered Part B medical care this year. Dr. Brown charges $230 for the visit.
The Medicare-approved amount for such services are $200. If Dr. Brown accepts
assignment, Mrs. Jones must pay a
· $40 co-payment (that is, 20 percent of the $200 approved).
If Dr. Brown does not accept assignment, Mrs. Jones must pay:
· $40 plus the $30 excess charge. Her Payment = $70.
Note that Dr. Brown’s actual charge ($230) is within 115 percent of the Medicare
approved amount ($200) and is therefore permissible

 


Doctors and suppliers who agree to accept assignment under Medicare on all
claims are called Medicare participating doctors and suppliers. You can get a directory of
Medicare participating doctors and suppliers from your Medicare carrier. The directory is
also available for your use in Social Security Administration offices, state and area
agencies on aging, and in most hospitals.

 

 

Q. How are Medicare claims filed and paid?

A. For Part A benefits, the provider submits the claim directly to Medicare’s fiscal
intermediary (the insurance company). The provider will charge you for any deductible or
co-insurance payment you owe. For Part B claims, doctors, suppliers and other providers
are required to submit your Medicare claims to the Medicare carrier (the insurance
company) in most cases, even if they do not take assignment. The provider will charge
you directly for any deductible, co-insurance, or excess charge you owe. If you belong to a
Medicare participating Managed Care Organization (MCO), there are usually no claim
forms to be filed, nor any deductible or co-payment for any covered services, or the
amount is small.

Signing Up for Medicare

Part B If you are receiving Part A coverage, you will automatically be enrolled for
Part B coverage as well. If you don’t want Part B coverage, you must notify the Social
Security Administration. Also, anyone sixty-five and older can buy Part B coverage.
Enrollment periods are similar to those for Part A. Your Part B premium will be deducted
from your monthly social security check.

 


Q. What if I disagree with a Medicare decision? How can I appeal?

 

A. You have the right to appeal all decisions regarding coverage of services or the
amount Medicare will pay on a claim. If your claim has been denied in whole or in part, it
is usually a good idea to appeal, especially if the basis of denial is unclear. A surprisingly
high percentage of denials are reversed on appeal. In any case, the appeal will make clear
the reason for the denial.
Medicare Parts A and B have different procedures for appealing and several steps
in the appeal process. After the initial levels of review, Parts A and B both include the
option of a hearing before an administrative law judge and even review by a federal court
if sufficient amounts of money are at stake.
Key tips in appealing Medicare decisions:

· Denials by any Part A provider (hospital, nursing home, home health care agency, or
hospice): Do not accept oral denials. You should be given a written notice of
non coverage from the provider explaining why the provider believes Medicare will not
pay for the services. This is not an official Medicare determination. You should ask
the provider to get an official Medicare determination. The provider must file a claim
on your behalf to the Medicare fiscal intermediary if you ask for an official
determination. If you still disagree, you may make use of several additional appeal
steps if minimum threshold amounts of money are in dispute.

· Hospital coverage denials: Hospital coverage decisions are normally made by Peer
Review Organizations (PROs). PROs are groups of doctors and other health care
professionals under contract with the federal government to review care given to
Medicare patients. When you are admitted to the hospital, you will receive a notice
called An Important Message From Medicare that explains the role of PROs and
describes your appeal rights. If you disagree with a PRO decision, the initial review
will occur very quickly, usually within three days. You cannot be required to pay for
hospital care until third day after you receive a written denial of Medicare coverage.

· Part B coverage denials: These decisions will be made by the Medicare carrier. After
your doctor, supplier, or other provider sends in a Part B claim, Medicare will send
you a notice called Evaluation of Your Medicare Part B Benefits. The notice tells you
what charges were made and the amount Medicare approved and paid. It also shows
the amount of any copayments, deductibles, or excess charges that you are responsible
for paying. The notice gives the address and telephone number for contacting the
carrier and an explanation of your appeal rights. You have six months from the date of
the decision to ask the carrier to review it. If you still disagree, you may make use of
several additional appeal steps if minimum threshold amounts of money are in dispute.
Always be conscious of time limits for filing appeals (normally sixty days from the
date of the notice). You may lose your rights if you wait too long. You may want to get
assistance with your appeal from a legal services office or a private attorney, particularly
if large medical bills are involved. Nonlawyer volunteers and non lawyer staff members of
legal service programs help a number of people with benefit appeals without charging
fees.

 


Q. Do I need any other insurance coverage besides Medicare?

 

A. Yes. Most older persons need to purchase a supplemental (or “Medigap”) insurance
policy to cover some of the costs not covered by Medicare. However, there are exceptions,
explained below.
In addition, if you can afford it, you may also want to consider purchasing a longterm
care insurance policies, because Medicare and Medigap policies do not cover longterm
care. Long-term-care insurance is discussed in the next section.

 

Q. Who doesn’t need a Medigap policy?

A. While most people need Medigap coverage, you may already have enough coverage
without it if you belong to one of the four groups below:

1. If you are already covered by Medicaid, you do not need a Medigap policy.
Medicaid covers the gaps in Medicare and more.

2. If you are not eligible for Medicaid, but your income is low, you may be eligible
for help in paying Medicare costs under the Qualified Medicare Beneficiary (QMB)
program. Under QMB the government will pay your Medicare Part B premiums and
provide supplemental coverage equivalent to a Medigap policy if your income and assets
fall below a qualification amount (one that is more generous than Medicaid’s).
To apply contact the local office of your state Medicaid program.

3. If you get retiree health coverage through a former employer or union, you
may not need Medigap insurance. But this coverage may not provide the same benefits as
Medigap insurance and may not have to meet the federal and state rules that apply to
Medigap. Examine the coverage, costs, and stability of your coverage to determine
whether it is a better option than Medigap.

4. If you belong to an HMO, you probably do not need a Medigap policy, since
HMO coverage is normally comprehensive. But do not be too quick to give up your
Medigap coverage if you are just joining a Medicare HMO. If you can afford it, keep it
long enough to be sure you are satisfied with the HMO. If you become dissatisfied with
the HMO, you have the right to disenroll from it at any time. But if you have already
given up you Medigap coverage, you may not be able to get it again or get the same price.

 

Q. How do I find a good Medigap policy?

A. Since 1992, all Medigap insurance has had to conform to standardized benefit plans.
There are ten possible standardized plans, identified as Plan A through Plan J. Plan A is a
core package and is available in all states. The other nine plans have different
combinations of benefits. Check with your state department of insurance for additional
information. Many states provide buyers guides.
Purchase only one Medigap policy. Multiple policies will almost always provide
overlapping coverage for which you will pay twice but receive the benefit of only once. In
evaluating policies, decide which features would best meet your health needs and financial
situation. Prescription drug coverage, for example, may be right for you if you are on
continuing maintenance medications, even though such coverage may be expensive. When
you compare policies of the same type (A through J), remember that benefits are identical
for plans of the same type. For example, all type G plans have essentially the same
benefits. However, the premiums and potential for premium increases may differ greatly.

 


Q. When should I get a Medigap policy?

 

A. Buy a Medigap policy at or near the time your Medicare coverage begins, because
during the first six months that you are sixty-five or older and enrolled in Medicare Part B,
companies must accept you regardless of any health conditions you have, and they cannot
charge you more than they charge others of the same age. After this one-time period, you
may be forced to pay much higher premiums for the same policy due to your health status.
During this open enrollment period, companies may still exclude pre-existing conditions
during the first six months of the policy.
Different enrollment rules apply to persons under sixty-five who are eligible for
Medicare because of disability.

 

Q. What if I have an “old” Medigap policy and am considering a replacement? Is
that a good idea?

A. If you have a Medigap policy that pre-dates the standardized plans (before 1992), you
may not need to switch policies, especially if you are satisfied. Some states have special
regulations allowing beneficiaries to convert older policies to a standard Medigap plan.
Check with your state insurance department or health insurance counseling service for
details.
Beware of illegal sales practices. Both federal and state laws govern the sale of
Medigap insurance. These laws prohibit high pressure sales tactics, fraudulent or
misleading statements about coverage or cost, selling a policy that is not one of the
approved standard policies, or imposing new waiting periods for replacement policies. If a
sales agent offers you a policy that duplicates coverage of your existing policy, the
duplication must be disclosed to you in writing. If you feel you have been mislead or high
pressured, contact your state insurance department, your state’s health insurance
counseling program, or the federal Medicare Hotline at 1-800-MEDICARE (1-800-633-
4227).

EVALUATING AMEDIGAP POLICY

Obtain a free copy of the booklet Guide to Health Insurance for People with Medicare
from your local Social Service Security Administration or from the Consumer Information
Center, Department 70, Pueblo, CO 81009 (719) 948-3334 or at the website at

www.pueblo.gsa.gov. This guide:

· explains how Medigap insurance works;

· explains the ten standardized plans;

· tells how to shop for Medigap insurance;

· lists addresses and phone numbers of state insurance departments of state insurance
departments and state agencies on aging. Most states offer free insurance counseling
services.

 


Q. What is Medicaid?

 

A. Medicaid is a medical assistance program for poor older or disabled persons
whose income and assets fall below certain levels set by federal and state law. Unlike
Medicare, which offers the same benefits to all enrollees regardless of income, Medicaid
is managed by individual states, and the benefits and eligibility vary from state to state.

 

Q. Is it possible to receive both Medicare and Medicaid?

A. Yes, if you qualify for both programs. Even if you do not qualify for Medicaid,
the Medicaid program may still assist you in paying for all or part of the Medicare
premium, deductibles and co-insurance payments if you meet the special income and
resource tests under the “Qualified Medicare Beneficiary” (QMB) program or the
“Specified Low-Income Medicare Beneficiary” (SLMB) program.

 

Q. If I qualify for Medicaid, what sorts of services do I get?

A. Medicaid covers a broad spectrum of services. Certain benefits are mandated by
federal law. They include:

· inpatient and outpatient hospital services doctors’

· nurse practitioners’ services inpatient nursing home care

· home health care services

 · laboratory X-ray charges.

Other services may include private duty nursing; services from podiatrists,
optometrists and chiropractors; mental health services; personal care in your home; dental
care; physical therapy and other rehabilitation; prescription medications; dentures;
eyeglasses; and more. In all cases, you may receive these service only from a Medicaidparticipating
provider. As with Medicare, providers may choose whether or not to
participate in Medicaid, and they must meet certain standards.
Some states have contracted with managed care organizations to provide
comprehensive care to Medicaid-eligible individuals.

Qualifying for Medicaid

Medicaid programs in each state have different standards to determine whether
needy individuals are eligible for assistance. All states require that older adults be at
least age sixty-five, blind or disabled, and that they meet income and asset tests. In
most states, persons eligible for Supplemental Security Income (SSI) or Temporary
Assistance to Needy Families (TANF) are automatically covered. Most states also
cover some people whose income falls below a certain level after they “spend down”
their income on medical bills. Medicaid eligibility rules are so complicated that it is
advisable for older persons with low incomes or with high medical expenses to talk
with someone with expertise in Medicaid–such as a legal services lawyer, paralegal,
or social worker, or a private attorney experienced in handling Medicaid issues.

 


Q. Does owning a home disqualify me from Medicaid?

 

A. No. All states exempt your home as an asset as long as you or your spouse
lives in it. If you must leave your home in order to receive nursing home care or other
long-term care, the state may still exempt it, but state asset exemption rules differ from
state to state and can be complex. Besides your home, all states allow you to keep a
very limited amount of cash and personal property.

 

Q. What does Medicaid cost me?

A. Medicaid does not require you to pay premiums or deductibles like Medicare.
Providers may not charge Medicaid patients additional fees beyond the Medicaid
reimbursement amount. However, states are permitted to impose a nominal deductible
charge or other form of cost-sharing for certain categories of services and prescription
drugs. No Medicaid recipient may be denied services by a participating provider because
of the patient’s inability to pay the charge.
Individuals whose income or assets exceed the state’s permissible Medicaid
amount may be eligible for Medicaid only after “spending down” their income or assets to
a poverty level by incurring medical expenses. These “spend down” amounts can be very
high, especially for nursing home residents whose income far exceeds the Medicaid
eligibility level but who face enormous monthly expenses for care.

 

Q. How do I apply for Medicaid?

A. Contact the state or local agency that handles the Medicaid program. Its name
will vary from place to place. It may be called Social Services, Public Aid, Public
Welfare, Human Services, or something similar. You can also call your local agency on
aging or senior center for information.
When you apply, you will have to document your financial need in detail, as well
as your residency. The application form can be lengthy and complex, but the Medicaid
agency can help you complete it. If you are homebound, a Medicaid worker can be sent to
your home to help you apply. If you are in a hospital or other institution, a staff social
worker should be made available to help you apply. Don’t let inability to get to the public
agency keep you from seeking assistance. Since the start of benefits is linked to your date
of application, it is important to establish an application date as soon as you need
Medicaid assistance. Almost any written request with your signature may be enough to
establish your application date, even if you have not yet completed the full application
form. The effective date can be retroactive, up to three months.

 

Q. How are Medicaid claims filed and paid?

A. Medicaid providers always bill Medicaid directly. The state Medicaid program
reimburses providers according to the state’s particular reimbursement formula. Providers
cannot charge you additional amounts for covered services, but states may opt to charge
you small deductibles or fees for certain items such as prescriptions.

 

Q. If I disagree with a decision made by my Medicaid program, what can I
do?

A. You have the right to appeal all decisions that affect your Medicaid eligibility
or services. When a decision about your Medicaid coverage is made, you should receive
prompt written notice of the decision. This will include an explanation of how you can
appeal the decision. The appeal process includes a right to a fair hearing before a hearing
officer. You may need a lawyer or public benefits specialist experienced in Medicaid law.

 


Q. What federal programs will pay for long-term care in a nursing home?

 

A. Medicare does not pay for a significant amount of nursing home care. Coverage
of skilled nursing care, as described above under “Medicare,” is narrowly
defined and limited to twenty days of full coverage and a maximum of eighty additional
days with a large co-insurance payment.
Medicaid, on the other hand, pays a substantial portion of the nation’s nursing
home bill (over 40 percent). Medicaid, however, pays only when most other funds have
been depleted. Medicaid will cover nursing home expenses if your condition requires
nursing home care, the home is certified by the state Medicaid agency, and you meet
income and other eligibility requirements to receive this benefit.
Many persons who normally are not eligible for Medicaid become eligible after a
period of time in a nursing home. This happens because the high cost of nursing home
care forces many individuals to spend down their assets and income to a level that
qualifies them for Medicaid in many states. The rules and availability of this option vary
from state to state.
The Department of Veterans Affairs (VA) pays for some nursing home care for
veterans in VA facilities and private facilities, but the benefit is limited to the extent that
resources and facilities are available. Priority is given to veterans with medical problems
related to their military service, and to very old veterans of wartime service, and very poor
veterans. Contact your local VA office for more information.

 

Q. What if I don’t want to live in a nursing home? Are home care services
available under Medicare or Medicaid?

A. Yes, but to a limited extent.
The home health care benefit under Medicare focuses mainly on skilled nursing and
therapeutic services needed on a part-time or intermittent basis. The benefit is described
above under “Medicare.”
Medicaid home health care is usually quite limited, too. But in addition to home
health, several state Medicaid programs also provide “personal care” services to Medicaideligible
individuals who need help with normal activities of daily living, such as dressing,
bathing, toileting, eating, and walking. Many states also have instituted Medicaid “waiver”
programs that allow the state to use Medicaid dollars for home and community based
services that would not normally be covered under Medicaid. These waiver programs
usually target persons who would otherwise have to live in a nursing home. Some of the
services covered under Medicaid waiver programs include personal care, adult day care,
housekeeping services, care coordination and management, and respite care. Respite care
enables primary care-givers to take a break from their responsibilities. Check with your
local office on aging or department of human services about the options available in your
state.

 


Q. What happens if my husband needs nursing home care but I am still able
to live independently? Will all our income and assets have to be used for his support
before Medicaid will help pay expenses?

 

A. If your spouse resides in or may be entering a nursing home, Medicaid has
special rules that allow the spouse remaining in the community (community spouse) to
keep more income and assets than permitted under the regular eligibility rules. The
specifics vary from state to state, but the general structure is as follows:
The community spouse can keep all income, no matter how much, that belongs
exclusively to the community spouse. Joint income is another story. The state may require
all or part of joint income to help pay nursing home expenses, depending upon the
particular state’s rules.
Most of the income of the nursing home spouse is considered available to pay for
nursing home care. However, a portion of the nursing home spouse’s income may be kept
by the community spouse as a “minimum monthly maintenance needs allowance” if the
community spouse’s income is below a spousal allowance figure set by the state. States
must establish a spousal allowance of at least 150 percent of the poverty level for a twoperson
household. Thus, for 2000, this calculation results in a minimum spousal allowance
of $1406 per month that could be kept by the community spouse (Alaska and Hawaii have
higher figures). States also permit the community spouse to keep a shelter allowance, if
shelter costs (rent, mortgage, taxes, insurance and utilities) exceed a specified amount.
Assets or resources are treated quite differently. The state applies a two-step rule.
First, Medicaid counts all resources owned by either spouse. This inventory will exclude a
few resources. The excluded resources are: your home, household goods, personal effects,
an automobile, and a burial fund of up to $1,500.
Second, from the total countable resources, Medicaid permits the community
spouse to keep one-half, as long as the one-half falls between a specified floor and ceiling
amount, adjusted yearly. If the one-half falls below the floor (about $16,824 in 2000), the
community spouse may keep more of the couple’s resources up to the floor amount. If the
one-half exceeds the ceiling (about $84,120 in 2000), the excess will be considered
available to pay for the cost of nursing home care. Thus, the community spouse is
permitted to keep no more than the ceiling amount even if it equals far less than half of the
couple’s assets.
Another special rule applies to your home. Even though your home is an excluded
resource, the state, in limited circumstances, can place a lien against your home equal to
the amount of nursing home expenses paid. The rules are complicated and vary by state;
the advice of a lawyer experienced in Medicaid law is advisable. Moreover, almost all
these rules have hardship exceptions in special circumstances.

 

Q. If I have assets that exceed my state’s Medicaid eligibility requirements,
can I transfer these to my children or to a trust in order to qualify? After all, these
are assets I intend to leave to my children when I die.

A. The law on transferring assets before making a Medicaid application is
complex. Such transfers can result in a period of ineligibility for Medicaid benefits.
Several strategies are available to shelter or preserve some of your assets, but there are a
number of legal, financial, ethical, and practical consequences to any such transfer of
property. Anyone considering such transfer should seek advice from a lawyer experienced
in Medicaid law.

 


Q. Must children pay for parents in nursing homes?

 

A. There is no legal obligation for children to pay for their parents’ care. Only a
spouse may be held legally responsible to help pay for the cost of nursing home care, and
as a practical matter, the responsibility is often difficult to enforce against an unwilling
spouse. If Medicaid enters the picture, the special rules for spousal responsibility
described above will apply.
Children sometimes feel pressured to help pay for a parent’s nursing home cost
because of the shortage of nursing home beds, especially Medicaid covered beds. Some
nursing homes give preference to admitting “private pay” patients over Medicaid patients
because private-pay rates are often higher than the amount Medicaid pays. While
admission priority for private pay patients is permissible in some states, it is illegal in
others. In all states, federal law prohibits nursing homes from requiring a private payment
from families, or a period of private payment, prior to applying for Medicaid coverage.
Federal law also prohibits nursing homes from requiring patients to waive their rights to
Medicare and/or Medicaid.

 

Q. What is long-term care insurance?

A. Long-term care insurance helps pay for nursing home care and usually home
care services for a period of two or more years. Long-term care insurance is still a
relatively new type of private insurance, so the features of this type of insurance continue
to change frequently. For example, newer policies may cover assisted living facilities,
adult day care, respite care, or other long – term care services.
Most individual policies are available for purchase only to persons between ages
fifty and eighty-four, and a medical screening of applicants is typically required. Not
every older person needs or can afford a long-term care insurance policy. Policies are
appropriate for those with substantial income and assets to protect, and who desire to buy
this form of protection against the potential costs of long-term care.
Most long-term care policies are structured as indemnity policies. That is, they pay
up to a pre-set cap for each day of a covered service. The specific provisions of these
policies should be closely examined before purchasing one, since the possible conditions
and limitations on coverage can be complex.
How much health insurance do I need?
Some people covered by Medicare think they need several additional policies to
cover Medicare gaps, specific diseases, and long-term care. That is probably not a good
strategy. Chances are the policies would duplicate too many benefits to justify the cost.
That is why insurance companies are no longer permitted to sell duplicate Medicare
supplement policies. The consumer may purchase only one of the A-J policies.
The best recommendation for someone on Medicare, who is not also on Medicaid,
is to purchase one good “Medigap” policy, and possibly one long-term care insurance
policy if you can comfortably afford the cost of a good long-term care policy. Lower
income persons are likely to qualify for Medicaid if they need long-term care, so
purchasing private long-term care insurance may be a waste of money.

 


Q. How are the costs of a long-term care policy determined?

 

A. The cost of the premium is determined in part by your age, the extent of
coverage you purchase, and your health history. Age is clearly the single greatest factor
because the risk of needing long-term care increases significantly with age. The premium
for a seventy-five year old can be double or triple that for a sixty-five year old.

 

Q. How do I evaluate a long-term care policy?

A. Compare more than one policy side by side. Your state’s insurance department
should have names of companies offering long-term care insurance. Many states are
beginning to set minimum standards and consumer protection guidelines for these
policies. In addition, federal law provides favorable tax treatment of federally qualifies
long-term are policies — that is, policies that meet minimum federal standards.
Guides for evaluating long-term care insurance may be available from your state
insurance department or state office on aging.

Keep in mind the following tips in evaluating policies:

· Make sure your policy will pay benefits for all levels of care in a nursing home,
including custodial care.

· A good policy will pay benefits for assisted living and home care, including in-home
personal care. Personal care refers generally to help with activities of daily living, such
as dressing, bathing, toileting, eating, and walking.

· Consider whether the amount of daily benefits will be adequate now and in the future.
Many policies give you a range of daily benefit amounts to choose from. Make sure
the policy has an “inflation adjustor” under which benefits increase by a certain
percentage each year to keep pace with coverage. The “right” amount depends in part
on the amount of assets you have to protect inflation.

· Do not assume that more years of coverage is always better. Some policies offer
benefit options of six, seven, or more years. It is possible to buy too much coverage.

· Avoid policies that exclude coverage of pre-existing conditions for a lengthy period.
Six months is considered a reasonable exclusion period for pre-existing conditions.

· Policies should allow payment of nursing home or home health benefits without
requiring a prior period of hospitalization as a condition of coverage.

· Most policies impose waiting periods that restrict the starting time of benefits after you
begin receiving nursing home care or home care–twenty to ninety days is a common
waiting period. A longer waiting period will lower the premium cost. First day
coverage will increase your premium.

· Be sure your policy covers victims of Alzheimer’s disease and other forms of
dementia. About half the residents of nursing homes suffer some form of dementia.

· Be sure that the premium remains constant over the life of the policy and that the
policy is guaranteed renewable for life.

· Buy a policy only from a company that is licensed in your state and has agents
physically present in your state. Out-of-state mail order policies often leave you
powerless to remedy problems if anything goes wrong.

 

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Pensions

 

Q. Is my employer or union required to set up a pension plan?

A. No. The law does not obligate an employer to have a pension plan. While many
small companies do not have pension plans, most large employers and unions do. Most
pensions are governed by rules of the Employee Retirement Income Security Act of 1974
(ERISA), which sets minimum standards for pension plans that already exist and new
pension plans that are created. Small companies can set up simple pension plans for their
employees called “SEPs.” These plans require very little paperwork.

 

Q. Does ERISA apply to all pension plans?

A. No. It does not cover pension plans for federal, state, and local public
employees, nor for church employees. Most ERISA provisions apply to plan years
beginning in 1976. As a result, it does not protect workers who stopped working or retired
before 1976. However, the terms of an employee’s pension plan, as well as state law, do
offer some protection.

 

Q. What are the different types of pension plans?

A. There are two major kinds, and they are quite different. One kind, called a
defined-benefit plan, guarantees you a certain amount of benefits per month upon
retirement. For example, a defined-benefit plan might pay you ten dollars a month per
year of service. Under that plan, a person who retires after ten years of service would
receive $100 per month in pension benefits.
Under the other kind of plan, called a defined-contribution plan, the employer
and/or the employee contribute a certain amount per month during the years of
employment. The amount of the benefit depends on the total amount accumulated in the
pension fund at the time of retirement. And that amount depends not only on how much
you and your employer contributed, but on how much that money earned when it was
invested.
Typically, pension trustees invest the fund’s money in stocks, real estate, and other
generally safe investments. If those investments do well over the years, the fund grows
and your monthly benefits may be relatively high. But if the investments do poorly, the
fund may not grow much or may even shrink. In that case, your monthly benefits may be
far smaller. (See a later section in this chapter on the requirement that plans
make prudent investments.)
Even in the defined-contribution plan, your benefit will be determined by some
formula that takes into account your age, how long you worked for the employer, and how
much you were paid.
The choice of defined-benefit or defined-contribution plan is not yours to make.
The employer decides.

 

Q. I am fifty-five years old and I want to retire now. Can I start collecting my
pension at once?

A. Maybe. All pensions set a “normal” retirement age, often sixty-five. They
usually set a minimum retirement age as well, perhaps fifty-five, sixty or sixty-two. Check
with your pension plan administrator. You may be able to collect benefits now or you may
have to wait until you are older. Remember that benefits are usually calculated partly on
the basis of your age. The younger you are when you retire, the smaller the benefits, but
presumably you will get them for a longer period.

 

 



Q. Do I get to choose how my pension will be paid to me?

 

A. Yes, to some extent.The most common type of payment is called the joint and survivor annuity. It pays
the full benefit to a married couple until one dies, then pays a fraction of the full benefit to
the survivor as long as he or she lives. The fraction typically is half or two-thirds. The
Retirement Equity Act of 1984 requires this kind of disbursement unless the worker’s
spouse signs a waiver. The waiver permits payment of a higher benefit, but only as long as
the retired worker lives. When he or she dies, the benefits end and the surviving spouse
gets no more.
The joint and survivor annuity may allow you some options. You might be able to
have benefits guaranteed for a certain number of years. For example, if the guarantee is for
fifteen years, benefits would be paid as long as one or both spouses are alive. But if both
die before fifteen years have passed since retirement, benefits would continue to be paid to
their beneficiary until the 15th year. Other guarantees might be for longer or shorter
periods; the longer the guarantee, the lower the benefit.
There are some other kinds of pension disbursements as well. One pays a fixed
amount for a fixed number of years, which means you could outlive your benefits and get
nothing in your oldest years. Another pays all your benefits in a single lump sum when
you retire, which could cost you a lot in income taxes.

 

Q. Will my pension benefits rise over the years?

A. Perhaps. Your union may negotiate cost-of-living increases with your employer.
Or a non-union employer may increase benefits voluntarily. But generally your benefits
are frozen at the level they were when you retired. You will also probably be collecting
social security benefits, however, and those benefits do rise with the cost of living.

 

Q. What if I get sick after retiring? Will I still have health insurance?

 

A. Companies are not required to continue to provide health insurance after
retirement. But when they have promised to do so, some courts are requiring them to keep
that promise. Under a 1985 federal law known as COBRA (“Consolidated Omnibus
Budget Reconciliation Act”), you must be notified when you retire that you may continue
coverage, but your employer may require you to pay the premiums. Coverage generally
lasts for eighteen months after you stop working, but may be extended up to twenty-nine
months if you are found eligible for social security disability or Supplemental Security
Income (SSI) disability benefits. You will also be eligible for Medicare at age sixty-five or
possibly earlier if you qualify for disability under social security or SSI.

 

Q. Can my company’s pension plan cover some employees but not others?

A. Yes. Some companies establish pension plans only for certain kinds of workers.
A plan might cover assembly line workers, for example, and not file clerks. There might
or might not be a separate plan for the clerks. But a plan cannot discriminate against
employees who are not officers, shareholders, or highly compensated. For example, a
supermarket’s plan could not include only the company’s president and top executives
while excluding the managers, baggers, and cashiers. The Internal Revenue Service (IRS)
determines whether a plan is complying with these complicated “nondiscrimination” rules.

 

 

 


Q. What rules govern when an employee can participate in a pension plan?

A. ERISA sets up two criteria for when employers must permit workers to begin
earning credit toward pensions. The employer must permit the earning of credit toward a
pension if the worker is at least twenty-one years old and has worked for the employer for
at least one year. ERISA calculates a year of employment as 1,000 or more hours of work
in twelve months. Once employees satisfy these two requirements, they must be allowed
to begin accruing credits that will affect the amount of their pensions.
Of course, as with all ERISA requirements, these are the minimums allowed by
law. Individual pension plans can have more generous credit-earning policies. For
example, they can permit beginning employees to start earning pension credits from their
first day on the job, and they can permit workers younger than twenty-one to earn pension
credits also.

 

 

Q. Once I become a participant, how do I know what my rights are under the
plan?

A. ERISA requires that participating employees be given detailed reports and
disclosures. Within either ninety days of becoming a participant or 120 days of the plan’s
beginning, the employee must receive a summary plan description. This gives details of
the employee’s rights and obligations, gives information on the trustees and the plan’s
administration, sets conditions for participation and forfeiture, and outlines the procedure
for making a claim and the remedies available to employees who appeal claims that are
denied.A summary of the plan’s annual financial report must also be distributed. If you do
not receive a summary, you should ask the plan’s administrators for it. Or you can obtain
one by writing the Department of Labor, PWBA, of Public Disclosure Room, Room N-
5638,2000 Constitution Ave., Washington, D.C. 20210

 

Q. How are years of accrual determined?

A. After you meet the participation requirements, each year you work for an
employer counts as a year of accrual time. A year is defined as 1,000 or more hours of
work in twelve months. You can work the 1,000 hours at any time during the twelve
month period; it need not be evenly distributed during the year. Days taken for sick leave
or for paid vacation count toward the 1,000-hour minimum.
It is important to note that, depending on your company’s policy, the first year you
work for an employer does not have to count toward your years of accrual. Thus, your
years of accrual will not always equal the number of years you worked for an employer.

 

Q. If I stop working for an employer and later return, do I get credit for my
previous years of service?

A. That depends on the length of this break in service. An employer can discount
the years of your previous service if two conditions are met: First, your break lasts five or
more continuous years: and second, your break is longer than the years you previously
worked for the employer. If, for example, after six years of work, you took a seven-year
break in service, you may be out of luck. However, an employer can have more lenient
rules than the ones set out by ERISA. These rules on breaks in service are complex, so you
should consult an expert if you think they apply to you.

 

 


Q. Is my right to collect my pension guaranteed?

 

A. You always have the right to money you contributed to the pension fund. If you
leave a company after only a few years, that money should be paid back to you in a lump
sum. If you work for the employer long enough, you will have “a vested interest” in your
pension, meaning your benefits cannot be denied even if you quit. If the total value of
your pension is $3500 or less, your plan can require that you take it as a lump sum
payment.

 

Q. When are my pension rights vested?

A. Amendments to ERISA in 1989 changed the vesting rules. Now, your pension
rights must either vest completely after five years–meaning that you have a right to 100
percent of the benefits you have earned–or partially after three years of service. Complete
vesting after five years is called cliff vesting. If you work less than five years under cliff
vesting, you are not entitled to any pension benefits. Partial vesting is called graded
vesting. Under this system, your rights become 20 percent vested after three years of
service, 40 percent vested after four years, and so on up to 100 percent vested after seven
years.
With graded vesting, you have the right to 20 percent of your earned benefits after
three years and 100 percent after seven years. Under the other system, you have no rights
to benefits until five years, and then you have rights to collect full benefits.
You do not get to choose which vesting method applies. The employer decides.

 

Q. I want to change jobs. May I take my pension benefits with me to my new
job
?

A. Generally, if you change jobs before your pension has vested, you usually lose
all the benefits you built up in your old job, although your employer must refund money
you put into the fund. If you change jobs after your benefits have vested, you are entitled
to those benefits. You may put (or “roll over”) those funds into an IRA or some other type
of retirement program (to avoid taxation) or transfer the funds to the new employer’s
pension plan if possible. It is often not possible, though some unions have reciprocal
agreements that allow you to change employers and transfer your benefits. There are also
some state or nationwide pension systems that allow job changes with continued
participation in a unified pension program (such as Teachers Insurance and Annuity
Association, known as TIAA-CREF).

 

Q. What if I join an employer at age sixty-two and retire at age sixty-five?

A. ERISA assures older employees that their rights will completely vest at normal
retirement age, regardless of the number of years they have worked for an employer.
Also note that since 1988, employers have been required to make contributions to
the plan for workers aged sixty-five and over.

 

Q. If I retire and begin receiving my pension, can I still work?

A. Yes. You can retire, collect your pension, and work full- or part-time. However,
if you work for the same employer that is paying your pension, you are limited to fewer
than forty hours a month.

 

 


Protection Against Being Fired Right Before Your Pension Vests

 

ERISA prohibits an employer from firing you or otherwise treating you unfairly in
order to stop the vesting of your pension rights. However, the burden is on you to show
that you were not fired for legitimate reasons but because your employer did not want to
guarantee you a pension.

 

Q. Can my employer change an existing pension plan?

A. Yes. ERISA permits an employer to change the way in which future benefits
are accumulated. However, the employer may not make changes that result in a reduction
of benefits that you have already accrued. In addition, ERISA specifically prohibits plan
amendments that alter vesting schedules to the detriment of employees.

 

Q. What protection does ERISA offer when my company is sold or taken
over?

A. This area of law is not entirely clear. In a growing number of cases, “successor
liability” is found and the company must continue the plan. If such liability is not found,
your new employer is under no obligation to continue an existing pension plan. The new
employer can go without a plan, set up a new plan, or continue the existing plan. If the
new employer decides to continue the plan, however, ERISA requires that previous years
of service be counted.
And you still have a right to all the benefits earned under the old employer. If the
new employer abandons the plan, though, you will not continue to earn benefits.

 

Q. Do I have a right to know how my pension plan is investing money?

A. Yes. You should receive a summary of the plan’s annual financial report. Each
year, a report summarizing the plan’s financial operations must be made to both the
Internal Revenue Service and the Secretary of Labor.
Also, ERISA requires that the people in charge of investing your plan’s money use
care, skill, and prudence and invest only in the interest of participants and beneficiaries. A
requirement for investment diversity minimizes the risk of losses. ERISA forbids several
investment practices. For example, the pension directors cannot invest more than 10
percent of the fund in the employer’s stock or real property. They cannot personally buy
the fund’s property or lend the fund’s money to their friends.

 

Q. What should I do if those in charge of investing my plan’s money violate
ERISA?

A. First, you should contact the nearest office of the U.S. Department of Labor.
Then, if needed, ERISA permits you to file a lawsuit in federal court to enforce its rules.

 


Q. I am worried about my pension plan going broke. Do I have any protection
against such a disaster?

 

A. You might have some protection. ERISA established the Pension Benefit
Guaranty Corporation (PBGC). If your company has a defined-benefit plan, it must pay
insurance premiums to the PBGC. If the plan goes broke, the PBGC will pay vested
benefits up to a certain limit, but it may not pay all you are owed. If the pension plan is
still functioning but in danger of going broke, the PBGC will step in and take control. It
will use the plan’s remaining money and the insurance premiums paid by other plans to
keep your benefits flowing.
Certain pension benefits are not covered, particularly for highly paid people and
for those who retire before being eligible for social security.
If your plan is of the defined-contribution type, the PBGC will not get involved. If
that plan goes broke, you may be out of luck. You should keep an eye on how the
administrators are handling the fund’s money, because ERISA requires that plan trustees
act in the best interests of participants. Trustees can be sued by the Secretary of Labor or
plan participants if they act improperly.

 

Q. When must I begin to collect my pension?

A. Each plan sets a normal retirement age. However, if you choose to retire later,
you must begin collecting your pension by April 1 of the year after you turn seventy and
one-half years old.

 

Q. Does the amount of social security payments I collect affect my pension
benefits?

A. It might. Some pension plans allow a reduction of benefits depending on how
much you receive from Social Security. You should check with your plan’s administrators.
Under federal law, plans subtracting social security payments from pension benefits must
leave you with at least half your pension. However, the law applies only to years worked
after 1988.
Claiming Your Pension
Each individual plan establishes the procedure for submitting pension claims. To
find out about your plan’s filing procedure, check the plan summary provided by your
employer. To claim your pension, follow the procedure. You should then receive a
decision about your claim.

 

Q. If I do not agree with the decision on my claim, how do I appeal?

A. The claims and appeal processes are regulated in ERISA. The plan summary must also
contain information on the plan’s appeal process. All plans must give written notice of
the claim decision within ninety days of receipt of the claim. If the plan notifies you
within ninety days that it needs an extension, one ninety-day extension is allowed. If
you do not receive a written decision by the deadline, consider your claim denied.
If your claim is denied, the decision must give specific reasons for the denial. You
then have sixty days to file a written appeal. The plan must make available important
documents affecting your appeal, and you must be allowed to submit written support
for your claim. The plan then has 120 days to issue a written decision on the appeal.If you are still dissatisfied after going through this process, you have the right to
sue in federal court to recover unfairly denied benefits. However, you may not get the
opportunity to present additional evidence in court, so be sure to submit all relevant
information and documentation in your appeal to the trustees. If you need to file a
court case, the Pension Rights Center has referral lists of attorneys with expertise in
this field. (See the resource list at the end of this chapter.)

 

 Q. What if I die before retiring? What are my spouse’s rights to my pension?

A. If you are vested and if you have been married for at least a year, your spouse is
entitled to pension benefits. Typically, he or she will receive an immediate annuity for
the rest of his or her life. However, if you and your spouse have executed a written
waiver of survivor benefits, your spouse will not be entitled to survivor benefits.

 

Q. What are a divorced person’s rights to an ex-spouse’s pension benefits?

A. In order to be eligible, the divorced person must have been married to the worker for at
least one year. The pension rights of divorced spouses are governed by state law. In
most states, these benefits are part of the marital property divided during the divorce.
If a divorced spouse is granted a share of pension benefits either through a property
settlement or a court order, he or she can collect the appropriate sum when either
· the worker has stopped working and is eligible to start collecting the pension (even if
he or she hasn’t yet applied for it);
· or the worker has reached the earliest age for collecting benefits under the plan and is
at least age fifty.

viagra

The Rights of Older Americans

IN THE PAST, most of us viewed sixty-five as the age of retirement. Today, more
people are choosing to continue working full or part-time well into their seventies or even
eighties. Many even change their careers in later life. The contributions of older workers
testify to their vitality.

 

I. Age Discrimination on the Job
The Age Discrimination in Employment Act (ADEA) ensures that older workers
receive equal and fair treatment in the workplace. It protects most workers forty years of
age and older from arbitrary age discrimination while on the job. It also seeks to support
the employment of older persons based on their ability rather than age. See
the chapter titled “Law and the Workplace” for a detailed discussion of the
ADEA.

 

Age Discrimination on the Job

 

Pensions

 

Social Security and Supplemental Security Income

 

Your Right to Health & Long-Term Care Benefits

 

Housing and Long-Term Care Options

 

Rights of Persons with Disabilities

 

Right to Control Your Own Affairs

 

Finding Legal Help

 

The Older Americans Act and Services

 

Where to Get More Information

online pharmacy Tegretol

When and How to Use a Lawyer-2

 

Q. Can counseling solve some problems?

A. Yes. Sometimes problems that seem to be “legal” may be helped or prevented by other means.
Many groups offer guidance and counseling for personal problems arising in marriage, child rearing,
and managing finances. Private counselors or members of the clergy also may provide such help.

 

Q. What is a small claims court?

A. Disputes over money are common, but often the amount of money at issue does not justify hiring
an attorney or using scarce judicial resources. Small claims court is a streamlined forum where
people can air their dispute and have it decided promptly and fairly. Most states have procedures
that allow people to represent themselves in court if the total amount of their claim is under a certain
dollar amount. The cost is minimal, procedures are simple, and there is usually little delay. Keep
small claims courts in mind if your problem is not very complicated and your losses are relatively
small–in the hundreds or low thousands. The next chapter provides guidance on how to file and
pursue a small claims lawsuit.

 

Q. A friend recommended that I try a local dispute resolution center. What does this
offer?

A. For the right kind of case, these centers can be a quick, low-cost (or free) alternative to formal
legal proceedings. These online casino spielautomaten will also be discussed in the next chapter.
Help From Lawyers

 

Q. I understand that, under certain circumstances, going to a lawyer may be unnecessary.
Are there specific cases when I should see a lawyer?

A. Yes, there are matters best handled by a lawyer. While these matters are sometimes hard to
recognize, nearly everyone agrees that you should talk with a lawyer about major life events or
changes, which might include:
· being arrested for a crime or served with legal papers in a civil lawsuit;
· being involved in a serious accident causing personal injury or property damage;
· a change in family status such as divorce, adoption, or death;
· a change in financial status such as getting or losing valuable personal property or real estate, or
filing for bankruptcy.

 

Q. Is there another way to determine whether I need to hire a lawyer?

A. Yes. One way is to look at how other Americans have answered the question. In a recent study
of Americans over the age of 18, researchers for the American Bar Association found almost half
had used a lawyer in the past five years. The most common legal matters taken to lawyers involved
· real estate transactions (12%)
· drawing up a will (11%)
· as a party to a lawsuit (11%)
· divorce/separation (9%)
· probate/estate settlement matters (6%)
· child support/custody matter (5%)
· draw up an agreement/contact (5%)
Other fairly common matters requiring a lawyer’s help included traffic matters, insurance claims,
bankruptcy, auto accidents, and being a complainant or defendant in a criminal proceeding.
Source: Perceptions of the U.S. Justice System (Chicago: American Bar Association, 1999).

 

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Product Liability-2

Breast Implant Litigation

There have been literally thousands of lawsuits filed by women who have undergone
breast implantation and now allege that the implants contributed to a wide range of health
problems, ranging from cancer and autoimmune diseases to joint pains and interference
with cancer detection. In addition to saying that both silicone breast implants and other
artificial implants were responsible for adverse-health effects in them, women have
alleged that the implants also caused miscarriage and harmful effects in their children,
some of them because they were breastfed. The suits generally say that the manufacturers
were negligent and that they knew the product was defective. Because this is a new area of
tort law, it is important to contact a personal injury lawyer if you think you may have a
claim.

 

Q. I was injured because of a brake defect in a used car I bought. May I
recover from the dealer?

A. At least one used car dealer has been subject to a negligence action slots online for failing to
inspect or discover such defects. But courts are split on whether dealers in used goods
should be subject to strict liability. Holding them strictly liable appears to be a minority
position.

 

What You Should Do If You Are Injured By a Product

Keep the evidence. If a heating fixture ruptures and injures someone in your family, keep
as may pieces of the equipment as you can find and disturb the site as little as you can.
Make note of the name of the manufacturer, model and serial number. Keep any
packaging or instructions. Keep any receipts showing when and where the product was
purchased. Take pictures of the site and of the injury. Make a record of exactly when the
incident occurred and under what circumstances. Be sure you have accurate names and
addresses for all doctors and hospitals treating the injured victim.