TRUMPCARE?

Donald Trump is set to be inducted as the 45th President of the United States on January 20, 2017. One of the things he has pledged to do is repeal the Affordable Care Act (aka “Obamacare”). The actual plan is currently unknown, but it can be safely assumed that something will change. The Affordable Care Act is a tremendously complex set of legislation and executive orders, and trying to discuss every aspect of what might change is a fool’s errand. I want to touch on possible changes to Medicaid. Medicaid is the program whereby the state, with the assistance of the federal government, provides health care for those that cannot afford it. In Wisconsin, it takes on many forms in its subprograms (e.g. Badgercare, Family Care, Institutional Long Term Care, etc.).
President Trump may be proposing to change a portion of Medicaid to provide “block grants”. Essentially, instead of the Federal Government directly funding a portion of Medicaid on an as needed basis, it would provide a specified amount of funds to each state each year, and the state would administer the programs alone. Because the federal government currently pays more for Medicaid than the state typically does, there are fears that the funds would be mismanaged by the states, or that states will pass more stringent laws to limit Medicaid eligibility. If that happens, it would likely create a gap where people who need and can’t afford health care also can’t receive it at a free or reduced cost because they don’t qualify. Proponents say that giving states autonomy will help them to reduce overall healthcare costs. Time will tell what effect any possible changes may have.

What is Elder Law?

As someone who practices in the area of “Elder Law” I am often asked. What is elder law? The purpose of this article is to answer that question. Elder Law generally describes the clients that an elder law attorney works with: people on various spectrums of the aging process, and their families. An Elder Law attorney uses a collaborative approach, working with other professionals to ensure that a client’s unique needs are being met. This includes working with financial advisors, CPAs, banks, trust companies, insurance agents, medical professionals, social workers and case workers.

An Elder Law attorney also practices in a wide variety of areas in order to meet the client’s needs. Some of these areas include: estate planning, long-term care planning, trust administration, probate and guardianships. These areas often overlap, and include some areas that most regular estate planning attorneys provide. The difference is that an elder law attorney has a specialized focus on the issues that pertain specifically to aging clients, and how to best serve them now and in the future.

The “Cool Parents” Win

An interesting case was decided recently, on an issue that most Wisconsinites have
dealt with either as a young person growing up in the state, or as a
parent.  Wisconsin Courts decided
that until the State Legislature says otherwise, adults are allowed to allow underage
drinking parties at their homes.  (There
could still potentially be liability for the aftermath of said parties, but
that is a topic for a different article). Currently, state statute
does not allow a county or municipality to legislate on alcoholic beverages
unless the law strictly conforms with state law.  In this case, the Court of Appeals ruled that
a county ordinance prohibiting adults from hosting underage drinking parties at
their homes was stricter than the state ordinance which prohibits said parties
at a “premises” owned by the adult.  “Premises”
is defined elsewhere in state statute as a “licensed premises” which is
generally a tavern or liquor store.  As a
result, the parents prevailed.  It seems
unlikely that the state legislature intended this result when the laws were
written, but Wisconsin does have some of the most relaxed alcohol laws in the
country.  Given the culture of drinking
by people of all ages in Wisconsin, and the unfortunate results that sometimes
occur, I believe this may be on the State’s legislative agenda in the coming
session.  This is a good example of how a
single word in a law (or document) can completely change its meaning.

Medicaid Planning: Don’t Let the Nursing Home Get All Your Money

Medicaid Planning is a complex, and ever-changing exercise.  If you’re like many estate planning clients that I have met, I bet you “don’t want the nursing home to get all your money.”  There are many ways that Medicaid planning can be accomplished to make sure your heirs inherit your estate, rather than having those funds paid to a long-term care facility.

While planning ahead with a solid estate plan is perhaps the most important aspect of Medicaid planning, the application and qualification process for Medical Assistance is very confusing and complex.  Even though most social workers and health and human service employees are very helpful and knowledgeable, they will not be able to help you in transferring and retaining the correct assets in order to qualify for aid.  In addition, if you do something wrong, and you forget to mention it, the penalties for lying can be serious.

Medicaid planning is an ever-changing area of law, and new rules are created all the time.  The best advice I can give you is that if you are thinking about Medicaid planning: call someone who knows what they are doing!  Trying to navigate this by yourself, even if you are fairly sophisticated, can cause serious problems and leave you or a loved one in a financial and emotional lurch.

In closing, it is important to plan ahead, both through estate planning and when navigating through the application process.  It is not worth it to save money on attorney fees, only to make matters worse, especially when an average month in a nursing home is currently nearly $8,000.00 per month.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Misclassification of Employees as Independent Contractors

Misclassification of Employees as Independent Contractors
By Attorney Nicholas J. Vlies of Lin.Liebmann LLC

On July 15, 2015, David Weil, the Wage and Hour Division Administrator, issued Administrator’s Interpretation (“AI”) No. 2015-1, which clarified the Department of Labor’s position on independent contractors. While the AI is not binding, the AI should be considered by companies that use independent contractors.

As noted in the AI, the FLSA defines an “employee” as “any individual employed by an employer” and the definition of “employ” includes “to suffer or permit to work.” 29 U.S.C. 203(d), (g). The AI argues that the “suffer or permit” definition was “specifically designed to ensure as broad of a scope of statutory coverage as possible.” Given the broad scope of the FLSA, the AI makes clear that “most workers are employees under the FLSA . . . .” To that end, the AI suggests that the economic realities test should be applied broadly in evaluating whether a worker is an employee or an independent contractor. Specifically, when applying the economic realities test “each factor should be considered in light of the ultimate determination of whether the worker is really in business for him or herself . . . or is economically dependent on the employer . . . .” The AI emphasizes that the factors should not be applied mechanically and that no single factor is determinative, including the traditional “control” factor. The Wage and Hour Division’s interpretation on how to apply the economic realities test will, more times than not, result in a determination that a worker is an employee.

Given the above, employers should evaluate whether any workers should be classified as employees rather than independent contractors. Moreover, employers should be cognizant of the risks associated with misclassifying workers as independent contractors.

If you have any questions regarding AI No. 2015-1 feel free to call us at 920-393-1190.