Resources for Personal Injury and Defense Attorneys and Structured Settlement Brokers

NEW SUPPLEMENTAL NEEDS DECISIONThis is the first known published decision setting forth the extent of Medicaid’s remainder interest in supplemental needs trusts.   Upon reading the decision, one will note the importance of the decision to case settlement.   Ruben N., Appellate Division, New York State, Second Department, September 16, 2008.

Please note that after Ruben XX was decided, there was another matter in the Court of Appeals, namely Matter of Abraham XX., No. 165, COURT OF APPEALS OF NEW YORK, 2008 NY Slip Op 9005; 11 N.Y.3d 429; 2008 N.Y. LEXIS 3388, November 20, 2008, Decided.

The Court of Appeals ruled, on the facts in Abraham XX, that Medicaid is entitled to "lifetime" Medicaid. On the surface, Abraham XX appears to ultimately over-rule the Ruben XX decision, referred to below. The facts in Abraham XX was Medicaid seeking to recover "causally related" Medicaid, whereas in Ruben XX, Medicaid attempted to recover Medicaid not related to the medical malpractice action and incurred prior to the creation of the supplemental needs trust. Ruben XX remains litigated.  Medicaid succeeded in having the Appellate Division reverse its decision
in conformity with Abraham XX. Notwithstanding Abraham XX, the issues in the article below remain critical in considering supplemental needs trusts.  Ruben XX remains litigated.

Services  Provided by Jay J. Sangerman, PLLC

Death of  a party did not stop decision being rendered because death occurred after motion was argued.

MSP Directory and  NEW expedited method of obtaining Medicare liens

NEW:          DRA:    Does the Deficit Reduction Act of 2005 Have an Impact Upon Structure Settlements?

             DRA Provisions Relevant to Structured Settlements

            Analysis of DRA as Impacts Structured Settlements
                              

          AHLBORN:     Medicaid districts must permit an              allocation of the settlement for recovery of past medical                          expenses paid for by the Medicaid district.  Therefore,                              Medicaid districts can no longer claim a right to                                      recover 100% of its causally related medical payments 

 SEE LUGO, BY HON. ALICE SCHLESSINGER, SETTING FORTH APPLICABILITY OF AHLBORN, AND THAT THE DECISION REVERSES NEW YORK COURT OF APPEALS DECISIONS ON MEDICAID LIENS AND SUPPLEMENTAL NEEDS TRUSTS


CAUTION ON AHLBORN:  THE POSSIBILITY OF A HIDDEN MEDICAID LIEN.  See the New York Law Journal Article by Jay J. Sangerman, Esq. published February 16, 2007.


Medicare Secondary Payer Requirements


Medicare Set-Aside Trusts
This is a developining issue in workers compensation, no fault and liability matters other than workers compensation.

Attorney Liability for Medicare Reimbursement under the MSP Statute

Supplemental Needs Trust for Tort Claims

SNTs - Self Settled

Supplemental Needs Trusts for the Settlement of Tort Claims, Estate Planning and Protection of Inheritances

Cano and Drafting of the Supplemental Needs Trusts:  July 12, 2004 Decision by the Hon. Bertram Katz

Supplemental Needs Trusts:  The Second Decade.  NYLJ, July 24, 2004.

Supplemental Needs Trusts:  A Trap for the Unwarry Plaintiff Attorney

Dangerous Trust Drafting

Placement of Tort Awards

Structured Settlement Issues

Social Security Information and Personal Injury Settlements

Negotiating and Settling the Medicaid Lien


Special Needs Trusts:  A State to State Analysis

First Party Supplemental Needs Trusts - An Article from the New York Law Journal

Current Developments In Special Needs Trusts

Structuring of Attorney Fees

Medicaid Liens and Recoveries.  Do Liens Need to be Settled Prior to the Establishment of the Supplemental Needs

Attorney's liability to reimburse Medicare for payments made on client's behalf

Transfer of Payee in Structured Settlement
IRS statement that the payee of a structured settlement which is transferred without consideration will not effect the favorable income tax treatment under IRC 104(a)(2),   This technique, as explained in this attachment, if the life company is willing to issue such annuity, can be useful in settlement negotiations and estate tax planning.

New York State trial court anti-factoring decision.
New York State Court rules that structured settlement cannot be factored due to “no-assignment” provision in the settlement contract.

A Cautionary Note Pertaining to Retention of Supplemental Security Benefits
In the drafting of settlement agreements and court orders, as well as in the administration of special needs trusts, it is necessary to consider the SSI rules so that the payments are not considered available income or available resources to the beneficiary. 

SSI and Supplemental Needs Trusts. 
Supplemental Needs Trusts and SSI POMs.

SSA Letter Re: Assignment of Payments to a Supplemental Needs Trust. 

         
SSA 2006 Letter: Structures and SNTs

         
March 13, 2006 CMS Letter

         
Pre-Analysis

         
Analysis of SSI/CMS

This letter is in response to our request for assurance that periodic payments irrevocably assigned to a special needs trust does not create any attribution of income to an SSI and/or Medicaid recipient.  The cause for the need for assurance was that certain attorneys were erroneously claiming that periodic payments, even irrevocably assigned to an SNT, create SSI/Medicaid eligibility problems.  Proper planning for a tort settlement and payments into an SNT is a well-planned allocation between a structured settlement and upfront cash.  In order to accomplish the allocation, an analysis is necessary of the beneficiary’s immediate needs vs. long-term needs, as well as how the trust, in the particular circumstances, would be best managed.

Special Needs Trusts as a useful tool in the settlement of cases.
This is a detailed outline for professionals.

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