Phone: 617.951.3100
Fax: 617.951.9929

What Is An Estate Plan Anyway?

on . Posted in Estate Planning Blog

     Maybe you've decided that this is the year when you create an estate plan - your financial advisor has "complete estate plan" on your to-do list at your regular check ins, your friends and family members have told you they recently "had their estate plan done," or an article you read mentioned the importance of a comprehensive estate plan.

     Often, people know they need to "have an estate plan done," without knowing exactly what that means. Estate planning is a process that will, in most cases, result in the creation of certain estate planning documents. There are five basic documents that are often part of a core estate plan:

1.    Will (and, if minor children, an Emergency Guardianship Proxy);

2.    Revocable Trust;

3.    Health Care ProxyHIPAA Authorization and Living Will;

4.    Durable Power of Attorney; and

5.    A Declaration of Homestead.

     Many people who call our office tell us they are calling because they "need a will" or "someone said they should have a trust." It is true that almost all adults in Massachusetts need a will, and many could benefit from the appropriate type of trust. However, these documents are just the end products of the estate planning process.

     During the estate planning process, you learn about the basic documents listed above (and maybe a few others, depending upon your needs), share your family's goals, values and concerns with your estate planner, and thoroughly review the type and amount of assets you own and expect to own. Your financial advisor, insurance advisor and accountant, if you have them, are often part of this process. Estate planning also continues beyond producing and having you sign those documents - your estate planner will talk with you about how to make each document, and your overall plan, most effective.

     If you are interested in talking further about your estate plan, please contact any of the attorneys in Pabian & Russell, LLC's Estate Planning practice group at 617-951-3100.


Medicare “Improvement Standard” Education Campaign to Finally be Implemented

on . Posted in Elder Law Blog

As Aging Life Care™Managers, we often assist our clients who have been hospitalized to find the best skilled nursing facility for rehab services before going back home. Under Medicare regulations, patients are entitled to up to 100 days of rehabilitation in a skilled nursing facility following a three day hospital stay.    Many seniors are under the misconception that they are guaranteed to get a full 100 days of rehab in a skilled nursing facility, but this is often not the case.  They are surprised when they receive a notice that they are “ready for discharge” after only two or three weeks.  Often, the facility will use language stating that the patient has “plateaued” or “will no longer improve” from skilled services as the rationale for discharge.

In January, 2013, the United States District Court for the District of Vermont approved a Settlement Agreement in the matter of Jimmo vs. Sibelius. This case alleged that an “Improvement Standard”, unsupported in Medicare regulations, was being applied to determine the length of coverage of rehabilitation services based on the patient’s lack of potential of functional improvement.  This case and Agreement upheld that there was no indication in the Medicare regulations that improvement or potential for improvement should be applied in determining coverage for rehabilitation services.  From the Settlement Agreement, “A beneficiary’s lack of restoration potential cannot, in itself, serve as the basis for denying coverage, without regard to an individualized assessment of the beneficiary’s medical condition and the reasonableness and necessity of the treatment, care, or services in question. Conversely, coverage in this context would not be available in a situation where the beneficiary’s care needs can be addressed safely and effectively through the use of nonskilled personnel. Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves.”

As care managers, we followed this ruling closely, and we were shocked to find out that, in practice, very few facilities were complying with this ruling.  When we asked providers about the change, they were either unaware of the change, or willfully continuing to use thenon-existent “Improvement Standard” to base their determination of length of rehab services. 

In August, 2016, The Federal judge overseeing the Settlement Agreement in the case, now named Jimmo vs. Burwell, ordered the Secretary of Health and Human Services to submit a Corrective Action Plan to address the inadequate implementation of the Settlement Agreement terms, specifically the Education Campaign.  On February 2, 2017, she ruled on the content of the Corrective Action Plan. “The Corrective Action Plan will include a new CMS webpage dedicated to Jimmo, a published Corrective Statement disavowing the improvement standard, a posting of Frequently Asked Questions (FAQs), and new training for contractors making coverage decisions.  In addition, and significantly, the Court largely adopted the Corrective Statement drafted by plaintiffs, and ordered the Secretary to conduct a new National Call to explain the correct policy.” This campaign is to be completed by September 4, 2017.

As Aging Life Care Managers, we were pleased to see this corrective action ordered, and look forward to seeing our clients get their full Medicare benefits in a rehab facility.  However, we do not assume that all facilities will readily implement this change.  Aging Life Care Managers can be an important partner and advocate for elders and their families in many situations, but we are particularly effective in advocating for our clients when their rightsmay not be fully respected.  A professional, objective, experienced voice can be important for the client when they may also be dealing with illness, disability, pain, and concern for their future.  A care manager can also provide guidance through the spectrum of care, including rehabilitation services, medical care, housing, and community care options.  We providerecommendations for appropriate levels of care, connections to quality providers, and a strong voice of advocacy when needed! We are also involved locally, regionally and nationally in policy advocacy through our National professional organization, the Aging Life Care Association.  Please visit our websites at and  to learn more!

Engaging Independent Contractors Requires Caution Under Massachusetts Independent Contractor Law

on . Posted in Corporate Law Blog

Many businesses engage independent contractors to bolster their workforce without adding permanent employees, and many individuals desire the flexibility of providing services as an independent contractor. Engaging independent contractors in Massachusetts is risky business, however, because our strict wage laws can result in significant liability on part of businesses using independent contractors - even if both parties desire this arrangement.

Under Massachusetts General Laws c. 149, x. 148B (the “MICL”), an individual performing any services is an employee unless (1) he or she is free from control and direction in connection with the performance of the services, both under his or her contract for the performance of service and in fact; AND (2) the service is performed outside the usual course of the business of the employer; AND (3) he or she is customarily engaged in an independently established, trade, occupation, profession or business of the same nature as that involved in the service performed. 

Note that all three prongs must be met for an individual to be properly categorized as an independent contractor under Massachusetts wage laws. 

For example, a tax preparation company that engages additional tax preparers during tax season cannot properly categorize them as independent contractors because tax preparation is within the usual business of the employer.  Conversely, a law firm that engages a bookkeeper to maintain its financial records and pay bills is properly categorized as an independent contractor because bookkeeping services are outside of the usual business of the law firm; provided that the bookkeeper is free from control and direction in connection with the performance of the services and is customarily involved in this occupation (thus satisfying all three prongs).

The risk of misclassification is serious and may result in liability for overtime pay and other wage claim liability as well as other civil and criminal liability depending on whether or not the IRS test and the tax withholding and unemployment compensation tests are met. 

The Attorney General’s Office issued Advisory 2008/1 which lists the following factors as “strong indications of misclassification”:

  •   providing services that are not reflected on the employer’s business records
  •   providing services “off the books’, “under the table”, in cash or providing no documents reflecting payment
  •   insufficient or no workers’ compensation coverage
  •   failure to provide 1099s or W-2s by any entity
  •   provision of the contracting entity of equipment, tolls and supplies or requiring the purchase of materials from them
  •  failure of alleged independent contractors to pay income taxes or employer contributions to the Division of Unemployment Assistance

If a Massachusetts business desires to engage independent contractors, it should analyze these relationships in light of the MICL and the 20 prong IRS test.  If it proceeds with the engagement, a written contract indicating that the contractor is free from supervisory direction or control is critical. 

For more information regarding this topic, please contact Pabian & Russell’s corporate department. 

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