Felt comfortable during my visit

After finding Fred Niemann on the internet and watching many of his videos, I knew his firm was knowledgeable in more than just Wills and estate planning.  Once I had the chance to meet with Fred Niemann, he was friendly and interested in my needs.  After talking with many local firms, I was very glad I had chosen the firm of Hanlon Niemann & Wright.
– Walter Sobieski

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Don’t Blow It! You Can Still Make a Late and Inexpensive Portability Election to Eliminate and/or Reduce Future Estate Death Taxes

estate death tax“Portability” (I’ll explain its definition later in the blog) allows the personal representative of an estate to preserve a deceased spouse’s unused federal estate and/or gift tax exemption amount for later use by the surviving spouse which may be applied against future gifts by the spouse and/or his or her federal taxable estate upon death.

In order to preserve portability, a personal representative is required to make an election on a timely filed IRS Form 706, following the death of the first spouse. If Form 706 is not filed within nine months of a decedent’s death or within 15 months if a request for an extension of time to file the return was timely obtained, a personal representative may be permanently prevented from preserving portability.

Recently, the IRS enacted Rev. Proc. 2017-34, which provides a permanent simplified method for the estates of decedents to obtain an extension of time to elect portability. This new revenue procedure states that if a portability election has not been timely made, a personal representative may do so on the latter of January 2, 2018 or the second anniversary of the decedent’s date of death, assuming certain administration requirements are met.

To make a late portability election under Re. Proc. 2017-34, the following conditions must be met; (a) the decedent must be survived by a spouse; (b) the decedent must have died after December 31, 2010; (c) the decedent must have been a citizen or resident of the United States on the date of death; (d) the executor must not have been required to file an estate tax return undersection 6018(a) of the Code (as determined based on the value of the gross estate and adjusted taxable gifts and without regard to the need to file for portability purposes); € the executor must not have filed an estate tax return; (f) the person permitted to make the election must file a complete and properly prepared Form 706 on the latter of January 2, 2018, or the second annual anniversary of the decedent’s date of death; and (g) the Form 706 must state at the top that the return is “FILED PURSUANT TO REV. PROC. 2017-34 TO ELECT PORTABILITY UNDER  § 2010(c)(5)(A).”

How It Works

Making a late portability election is recommended for most estates that meet the above criteria, even if a surviving spouse’s assets do not exceed the present federal estate and gift tax exemption amount, in large part because we cannot predict what Congress might do in the future, nor is it possible to foresee what could become of a client’s assets whether through good fortune or growth. It is feasible that congress will, in the future, adjust the exemption amount or another aspect of the existing estate tax laws to the detriment of future beneficiaries, or that the client could come into a large cash reward.

For many taxpayers, preserving portability may ultimately prove to be unnecessary. However, for certain taxpayers, it could result in substantial tax savings upon death. Rather than “wait and see” what happens in the future, counsel representing estates of decedents who are survived by a spouse should immediately consider a portability election while it is guaranteed and does not require the expense and uncertainty of attempting to obtain a late portability election in the future.

To discuss your NJ Estate Probate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Probate Administration Attorney

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No Contest Clause in Will Can Be (Un)enforceable in New Jersey

Many clients want to avoid challenges to their Last Will and Trust.  They are generally concerned about some family member who is “all about the money”.  They’re thinking their Will should include a no-contest clause to protect their good kids from greedy or unstable siblings, other children, etc.  Perhaps over the years there’s been hints that assets in the family really came from other donors, etc.  Parents envision others going after what he/she thinks is theirs and making the lives of beneficiaries miserable after the person is gone.

Unfortunately (or fortunately, depending upon your position) a no-contest clause is not enforceable in New Jersey. Also known as an in terrorem clause, it specifies that any interested party who contests an estate plan automatically gets nothing. The clause can be unenforceable whether included in a will or a trust. Even when a no-contest clause is valid, it does not apply to someone who is excluded from an inheritance; it applies only to beneficiaries whose inheritances will be forfeited if they challenge the estate.

One suggestion to reduce the threat of a challenge is to create a trust rather than rely on a will. A private document, a trust does not need to be filed with the probate court. Because it is not public and is not open to ready inspection, a trust tends to be more difficult to challenge than a will. The best way to protect kids and loved ones from a will contest case is to get advice from a competent and experienced estate probate and litigation attorney who actively does estate planning.  He/she deals with these kinds of problems all the time and can suggest strategies to minimize the chances of bad people creating problems, or of prevailing if they do.

Contact me personally today to discuss your New Jersey estate planning, Last Will, trust and contest matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County New Jersey Will Contest Attorney

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Understanding the Differences in the Many New Jersey Medicaid Programs

By Fredrick Niemann, Esq.NJ Medicaid Eligibility Attorney

NJ MedicaidAs an elder law attorney, I regularly work in the State Medicaid programs that provide long term care benefits.  I categorize these programs primarily as institutional Medicaid and community waiver Medicaid under the MLTSS Program (Managed Long Term Support Services).

Institutional Medicaid covers long term care in a nursing home.  New Jersey is a no “maximum income limit state with a medically needy program”.  What this means is that we have two (2) institutional Medicaid programs within the main institutional Medicaid program.  Confusing isn’t it? The first program is the “Medicaid Only” program which is for residents who have income below the maximum income limit (currently $2,205.00 gross income per month in 2017-2018).  For those with income greater than $2,205.00 (even by $1), there is the Medically Needy Waiver program provided the applicant does not have additional income which exceeds the Medicaid reimbursement rate (the rate that which Medicaid pays the nursing home which is generally between $5000.00 and $6000.00 per month.

The community waiver program(s) that New Jersey elder law attorneys frequently work in are for the long term care of elderly persons. These programs have been rolled into a program called MLTSS.  These programs include Assisted Living Medicaid and Home Based Medicaid.  There are many other smaller Medicaid programs that are very infrequently used.  It is important to understand that no 2 Medicaid programs are exactly alike as far as the rules and regulations are concerned.  There are many similarities.  But, there are also many differences.

One thing that is common to all New Jersey Medicaid programs is that Medicaid is a needs based program, meaning that one has to meet certain financial requirements in order to be eligible.  There is an income limit test plus a maximum resource test.

One more point to consider is that Medicaid is a combination federal/state program.  Congress passed some basic laws and has allotted money to New Jersey if it offers Medicaid to certain eligible residents.  The state must follow these basic rules but New Jersey is responsible to administer its own Medicaid program.  It is also free to offer additional Medicaid programs beyond what the federal government requires.

Federal Law has led to many variations from state to state when comparing Medicaid programs and how the rules are applied.  For example, New York’s Medicaid programs differ in very significant ways from New Jersey’s Medicaid programs.  Because the federal government provides no oversight to be sure that its rules are being followed, in some cases the states blatantly ignore those rules.  It is left to the elder law attorneys to challenge the State when it flagrantly disregards the clear law.

Contact me personally today to discuss your New Jersey Medicaid eligibility matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

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How Can An Annuity Protect Your Assets From New Jersey Medicaid Laws?

By Fredrick P. Niemann, Esq. a New Jersey Medicaid Attorney

Medicaid AnnuityAnnuities are really confusing.  But in today’s medical world, you may hear that annuities can be “Medicaid friendly.” What exactly is a “Medicaid friendly annuity”?  Simply stated, they are funds converted into an annuity that Medicaid treats as an exempt resource and only as income which allows for (sometimes) immediate Medicaid approval for nursing home, assisted living and home based care.  Under New Jersey law, a traditional commercial annuity does nothing to protect assets from the cost of long term care.  In fact, without careful planning, simply investing in an annuity will result in the unnecessary loss of assets and a denial of Medicaid benefits. Understanding why this is requires some understanding of estate planning, elder law, and annuities. By taking the time to understand annuities you can easily save tens if not hundreds of thousands of dollars. Planning for disability will greatly increase the likelihood of having something to pass on to heirs, while at the same time reducing stress and maximizing one’ own independence.

What is a Commercial Annuity?

Annuities can be either assets or income streams. Alone that doesn’t mean much.  Stay with me.  When initially purchased, most annuities are like certificates of deposit with a longer term and a greater penalty for early withdrawal. Such annuities are assets and are said to be “deferred “or immediate.  An immediate annuity means money can be taken out right away.  Deferred annuities do not pay out interest right away.

I continue our discussion on annuities in a future post(s).

Contact me personally today to discuss your New Jersey Medicaid matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

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Federal Medicaid Law Prevents a Nursing Home from Billing You Directly

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, Monmouth County, NJ Elder Law & Medicaid Attorney

NJ Medicaid, Elder Law

NJ Medicaid, Elder Law

I read an interesting case, which frankly brought up an issue I had not contemplated which is; must a medical service provider (i.e., a doctor, hospital x-Ray technician) bill a Medicare/Medicaid patient directly for services etc. rendered rather than Medicare or Medicaid directly?  I pretty much assumed that if you are eligible for Medicare or Medicaid and receiving services, there would be no reason for a nursing home or other medical provider to bill anyone but Medicare/Medicaid, otherwise, the provider would go unpaid.  Apparently, in this case, the patient was a plaintiff in a fairly substantial personal injury lawsuit and the hospital billed the patient directly rather than Medicaid to which he had become eligible after the lawsuit was filed which brings us to the origin of the conflict.  The article is interesting because it lays out the circumstances under which medical providers can and cannot privately bill individuals for medically related services rather than Medicare/Medicaid.  I have given you excerpts of the opinion for your review.

Here’s The Law

Federal Medicaid law precludes direct patient billing in specific instances.  Section 1396a(a)(25)(c) of the law prohibits medical providers from “substitute billing” and “balance billing”.  A medical provider engages in substitute billing when it already has accepted payment from Medicaid but tries to refund the payment in order to bill the patient directly, usually because Medicaid reimbursements are often much lower than the provider’s  “customary fee[s],”. “Balance billing occurs when a provider accepts payment from Medicaid and then seeks to recover from the patient the balance between that payment and the customary fee.”  Thus, § 1396 a(a)(25)(C) becomes relevant once the provider has billed Medicaid and accepted payment for services proved to be beneficiary.  The law does not bar a provider from taking a chance that a Medicaid-eligible patient has a non-Medicaid source of payment for the medical services rendered.  The provider may opt to attempt collection directly from the patient or a liable third party instead of seeking a certain but likely reduced payment from Medicaid.

To discuss your NJ Elder Law Medicare and/or Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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The New Jersey Medicaid Application Process: It’s Tough!

By Fredrick P. Niemann, Esq. a Freehold, Monmouth County New Jersey Medicaid Application Attorney

The Medicaid application process differs state to state. In New Jersey, the county Medicaid office is generally available to answer questions about, qualifying for Medicaid, as well as the ins and outs of the application process.  But good luck getting a live person or a call back, especially in Essex, Camden and Mercer counties.

You have one option when completing a Medicaid application:

  • You can mail in your application. Mail ins have recently been approved in virtually all counties.
  • Complete an application in person at the county Medicaid office in Freehold, Toms River, Trenton, New Brunswick, Elizabeth, etc.. Check the address of your county Medicaid office.
  • A phone application is never permitted!

Information to Have on Hand for Your Medicaid Application

When completing your Medicaid application, you will need the following:

  • Birth certificate or driver’s license
  • Social security card or proof of alien status.
  • Paystubs, Social Security statements, Supplemental Security Income, Veteran’s Benefits, or other retirement income or tax return to prove your income.
  • Proof of any financial assets available to you.
  • Proof of disability – If you are completing a Medicaid application because you’re disabled, your doctor may need to submit documentation as specified on your Medicaid application.
  • Proof of residence.
  • Your red, white and blue Medicare card or other proof of insurance.

Contact me personally today to discuss your New Jersey Medicaid application.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

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Local agencies gearing up for new Medicaid recipients

Local social services agencies continue to prepare for the registration of new Medicaid-eligible residents in the New Year.

It could mean adding new staff to handle the influx as well as a reduction in state funding expected to be covered with the new federal dollars, officials said.

Effective Jan. 1, an estimated 1,900 Culpeper County residents could become eligible for health coverage through Medicaid per the Affordable Care Act expansion approved earlier this year by the Virginia General Assembly.

Rappahannock Rapidan Community Services Board Director Jim LeGraffe gave a presentation on the topic last week at the Culpeper County Board of Supervisors meeting. The agency provides services as well in the surrounding counties, where residents will also be newly eligible to get Medicaid – 1,600 in Fauquier, 700 in Madison, 1,200 in Orange and 300 in Rappahannock, according to LeGraffe.

Supervisor Sue Hansohn asked how his agency was gearing up to handle the new caseloads.

“How many more employees will you need and will the state pay for that?” she asked.

LeGraffe responded by saying community services board statewide would experience a reduction in state allocations to cover the estimated $200 million cost to Virginia to expand the program. He noted his agency “accepts patients regardless of their inability to pay.”

Providing expanded Medicaid access to these same patients will “fill up that void,” LeGraffe said, of the federal government’s pledge to pay at least 90 percent of the expansion cost.

“That is the big hope,” he said, adding, “Hope is not a strategy.”

LeGraffe said his agency would work closely with Culpeper County Department of Social Services to get newly eligible residents enrolled in the health coverage program as quickly as possible “so we are able to maintain a funding stream.” The Medicaid expansion will allow the local community services boards to bill the federal program for the additional patients not previously covered.

Hansohn reiterated her worry that staff would be inadequate to handle the new caseload.

“With the same number of people serving additional folks, it’s going to be rough,” she said.

LeGraffe said his agency would continue to recruit for any needed positions.

Of Rappahannock Rapidan Community Services Fiscal 2019 budget of $26.4 million, 36 percent or $9.5 million comes from Medicaid fees paid on behalf of clients already covered by the program, he said.

Per Virginia’s plan to expand Medicaid, hospitals will be taxed to generate revenue for the state’s 10 percent share of the roughly $2 billion annual cost. Under the Affordable Care Act, newly eligible for Medicaid are people with incomes up to 138 percent of the federal poverty level—$16,750 a year for an individual and $28,700 for a family of three.

Culpeper Human Services Director Lisa Peacock said her agency is preparing for its role in the Medicaid expansion.

“We will be ready when enrollment begins,” she said.

Eligibility Supervisor Teresa Jenkins said enrollment would be done at different levels beginning Jan. 1. People already enrolled in mental health coverage through the Governor’s Access Plan who meet the new income guidelines will automatically be enrolled for Medicaid directly at the state level, she said.

Additional enrollments will take place at the central processing unit in Richmond based on identified targeted groups, Jenkins said, while other applications will be processed through the Marketplace when someone applies for their services.

Other populations will be part of a mass mailing in October to food stamp recipients not on Medicaid and will be able to respond to the local agency or state central processing unit to sign up, she said.

In addition, starting in November citizens may make application online, at the call center or at the local agency and those applications will be processed by the local DSS office, according to Jenkins.

It will likely result in new employees needing to be hired.

“We are gearing up for the additional potential Medicaid recipients in our local office and the man power to be able to process the applications,” Jenkins said. “DSS is currently advertising to hire additional staff that will needed and educating the community on what the new guidelines are. We have received some phone calls on the new category and I am sure that will increase closer to the release date of the program.”

Madison County DSS is currently advertising online to hire a benefit program specialist I with a job title to include the processing of Medicaid applications “within strict timeframes.” The annual salary advertised for the position is $27,366.

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Hubbell hears about local providers’ Medicaid ‘disaster’

Democratic candidate for governor Fred Hubbell, left, listens as Mid-Iowa Community Action Health Services Director Gloria Symons makes a point about Medicaid reimbursement at a meeting Friday in the public library’s conference room.

Democratic candidate for governor Fred Hubbell got an earful from one local provider who serves a large number of Medicaid patients.

Substance Abuse Treatment Unit of Central Iowa Executive Director Vicki Lewis called the state’s Medicaid program, run by two managed care companies, “a disaster.” Hubbell met with representatives from SATUCI, Mid-Iowa Community Action and Center Associates Friday at the Marshalltown Public Library.

He asked them to tell of their experiences in dealing with the two managed care companies hired by the state to run the state-funded Medicaid program.

Because of the kind of clients served and agency services provided, the three had equally different levels of experience.

One common denominator is that they are not-for-profit, and rely on prompt and accurate reimbursements from the managed care companies.


Medicaid privatization as it is now known was established in 2015 by former Gov. Terry Branstad. Branstad eliminated Iowa’s state-run Medicaid organization and replaced it with oversight from three private managed-care companies.

He and many Republican legislators claimed they would be more cost-efficient in running Medicaid, theoretically saving tax dollars. Initial estimates were savings of $100 million with no reduction in Medicaid services. The $100 million was later revised to $50 million.

The three MCOs were Amerigroup Iowa Inc., AmeriHealth Caritas Iowa Inc. and United Healthcare Plan of the River Valley Inc. AmeriHealth departed, leaving Amerigroup and United Health Care.

Providers’ perspective

“In my experience this entire Medicaid adventure has been a disaster,” Lewis said. “We are not new to managed care, we were under Magellan for 20 years. But now we are living with two (care providers) and unpredictable situations. We never know what is going to be paid and what will not be paid … we are having the most problems with United Health Care.”

Lewis said SATUCI found it necessary to hire an additional employee to manage billing because the MCO system remains complex. In previous meetings, Lewis said SATUCI derives significant amount of overall agency income from Medicaid reimbursement. SATUCI provides substance abuse disorder treatment outpatient and education in Hardin, Marshall, Poweshiek and Tama counties.

Rates substance abuse agencies may charge for care were set 20 years ago by Magellan, which significantly compounds the problem, Lewis said.

“The rates are disastrous to begin with,” she said. “We are paid 30 percent less than those who work in mental health settings get paid.”

Lewis predicted that some agencies will be forced to close. Hubbell said some have.

Health Services Director Gloria Symons said MICA manages a dental care program for low-income residents in Story County. She said cuts and changes in reimbursement levels to the program has made it a challenge “keeping the doors open.”

“We are having to raise other funds to serve clients,” she said. “We are serving some who have had no dental care. Some are in their 40s or 50s, and they have had no dental care for years.”

Symons said at one time MICA was being reimbursed $700 for an individual’s care. The MCOs have since reduced that to $400 or $300 per person. Symons said approximately 2,000 persons were served by MICA annually.

Raise for MCOs

The managed care companies have been in the news recently, as state officials recently authorized a 7.5 percent raise to Amerigroup and United Health Care.

The agreement will keep United Health Care and Amerigroup in Iowa, but it will mean state leaders must come up with

about $103 million more than last fiscal year, according to the Des Moines Register. The new agreements cover the current fiscal year, which began July 1. The increase in state spending is more than double the 3.3 percent increase the state agreed to for last fiscal year.

Overall, the new contracts will give the two companies raises of 8.4 percent in state and federal money, totaling $344 million.

The companies have complained about losing hundreds of millions of dollars in Iowa due to reimbursement rates they said were set far below their costs when the shift to private management began in 2016. AmeriHealth Caritas, bailed out of the project last fall after failing to get the contract terms it sought from Iowa officials.

Hubbell said Iowans are becoming dissatisfied with Medicaid management by the two MCOs.

“Approximately 650,000 Iowans are on Medicaid,” Hubbell said. “They have relatives, friends and others who are experiencing these issues … we have 40,000 Iowans who have had benefits reduced … 14 mental health providers who have been driven out of business. The access to health care is clearly declining in our state.”


Contact Mike Donahey at 641-753-6611 or mdonahey@timesrepublican.com

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