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Consumers Guide to Medicaid Planning

Avatar Of Rajesh Khanna



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Americans are living longer than ever before. At the turn of the 20th century, the average life expectancy was about 47 years. As we enter the 21st century, life expectancy has increased significantly. As a result, we face more challenges and transitions in our lives than those who came before us.

One of the most difficult transitions people face is the change from independent living in their own home or apartment to living in a long term care facility or “nursing home.” There are many reasons why this transition is so difficult. One is the loss of home… a home where the person lived for many years with a lifetime of memories. Another is the loss of independence. Still another is the loss of the level of privacy we enjoy at home, since nursing home living is often shared with a roommate.

Most people who make the decision to move to a nursing home do so during a time of great stress. Some have been hospitalized after a stroke, some have fallen and broken a hip, still others have a progressive disease, like Alzheimer’s, and can no longer be cared for in their own homes.

Whatever the reason, the spouse or relative who helps a person transition into a nursing home during a time of stress faces the immediate dilemma of how to find the right nursing home. The task is no small one, and a huge sigh of relief can be heard when the right home is found and the loved one is moved into the nursing home. For many however, the most difficult task is just beginning: How to cope with nursing home bills that average more than $7000.00 per month.

How to Pay for Nursing Home Care:

One of the things that concerns people most about nursing home care is how to pay for that care. There are basically four ways that you can pay the cost of a nursing home:

1. Long Term Care Insurance – If you are fortunate enough to have this type of coverage, it may go a long way toward paying the cost of the nursing home. Unfortunately, long-term care insurance has only started to become popular in the last few years and most people facing a nursing home stay do not have this coverage.

2. Pay With Your Own Funds – This is the method many people use at first, even though with proper planning, they would not have to. Quite simply, it means paying for the cost of a nursing home out of your own pocket. Unfortunately, with nursing home bills averaging over $7000.00 per month, few people can afford a long term stay in a nursing home.

3. Medicare – This is the national health insurance program primarily for people 65 years and older, certain younger disabled people, and people with kidney failure. Medicare provides short term assistance with nursing home costs, but only if you meet the strict qualification rules.

4. Medicaid – This is a federal and state funded and state administered medical benefit program which can pay for the cost of the nursing home if certain asset and income tests are met.

Since the first two methods of private pay (i.e. using your own funds) and long term care insurance are self-explanatory, our discussion will concentrate on Medicare and Medicaid.

What About Medicare?

There is a great deal of confusion about Medicare and Medicaid.

Medicare is the federally funded and state administered health insurance program primarily designed for older individuals (i.e. those over age 65). There are some limited long term care benefits that can be available under Medicare. In general, if you are enrolled in the traditional Medicare plan, and you’ve had a hospital stay of at least three days, and then you are admitted into a skilled nursing facility (often for rehabilitation or skilled nursing care), Medicare can pay for up to 100 days.

If you qualify, traditional Medicare may pay the full cost of the nursing home stay for the first 20 days and can continue to pay the cost of the nursing home stay for the next 80 days, but with a deductible that is approximately $100 per day. Some Medicare supplement insurance policies will pay the cost of that deductible. In order to qualify for this 100 days of coverage, however, the nursing home resident must be receiving daily “skilled care” and generally must continue to “improve”

While it’s never possible to predict at the outset how long Medicare will cover the rehabilitation, from our experience, it usually falls far short of the 100 day maximum. Even if Medicare does cover the 100 day period, what then? What happens after the 100 days of coverage have been used?

At that point, in either case you’re back to one of the other alternatives… long term care insurance, paying the bills with your own assets, or qualifying for Medicaid.

What is Medicaid?

Medicaid is a benefits program which is state and federally funded and administered by each state. Sometimes the rules can vary from state to state.

One primary benefit of Medicaid is that, unlike Medicare (which only pays for skilled nursing), the Medicaid program will pay for long term care in a nursing home once you’ve qualified. Medicare does not pay for treatment for all diseases or conditions. For example, a long term stay in a nursing home may be caused by Alzheimer’s or Parkinson’s disease, and even though the patient receives medical care, the treatment will not be paid for by Medicare. These stays are called custodial nursing stays. Medicare does not pay for custodial nursing home stays. In that instance, you’ll either have to pay privately (i.e. use long term care insurance or your own funds), or you’ll have to qualify for Medicaid.

Why Seek Advice for Medicaid?

As life expectancies and long term care costs continue to rise, the challenge quickly becomes how to pay for these services. Many people cannot afford to pay $7000.00 per month or more for the cost of a nursing home, and those who can pay for a while may find their life savings wiped out in a matter of months rather than years.

Fortunately, the Medicaid Program is there to help. In fact, in our lifetime, Medicaid has become the long term care insurance of the middle class. To be the eligible to receive Medicaid benefits requires that you pass certain tests on the amount of income and assets that you have. The reason for Medicaid planning is simple. First, you need to provide enough assets for yourself and your loved ones – they too may have a similar crisis. Second, the rules are extremely complicated and confusing. The result is that without planning and advice, many people spend more than they should and their financial security can be jeopardized.

Exempt Assets and Countable Assets: What Must Be Spent?

To qualify for Medicaid, applicants must pass some fairly strict tests on the amount of assets they can keep. To understand how Medicaid works, we first need to review what are known as exempt and non-exempt (or countable) assets. Exempt assets are those which Medicaid will not take into account (at least for the time being). In general, the following are the primary exempt assets:

-Homestead and any adjacent real estate. The home must be the principal place of residence.

-Personal belongings and household goods.

-One vehicle.

-Irrevocable prepaid funeral contract.

-Burial spaces and certain related items for the applicant and spouse.

-Up to $1,500 designated as a burial fund for the applicant and spouse.

-Value of life insurance if face value is $1,500 or less.

All other assets are generally non-exempt, and are countable. Basically, all money and property, and any item that can be valued and turned into cash, is a countable asset unless it is one of those assets listed above as exempt. This includes:

-Cash, savings, and checking accounts, credit union share and draft accounts.

-Certificates of deposit.

-U.S. Savings Bonds.

-Individual Retirement Accounts (IRA), 401K, 403B, 457, Keogh plans.

-Nursing home accounts.

-Prepaid funeral contracts which can be canceled.

-Trusts (depending on the type of the trust)

-Real estate (other than the primary residence).

-More than one car.

-Boats or recreational vehicles.

-Stocks, bonds, or mutual funds.

-Land contracts or mortgages held on real estate.

While the Medicaid rules themselves are very complicated, it’s safe to say that a single person will qualify for Medicaid as long as he or she has only exempt assets plus no more than $2000.00 in countable assets.

Some Common Questions:

I’ve added my kid’s names to our bank account. Do they count all the money is the account? Yes. The entire amount is counted unless you can prove some or all of the money was contributed by the other person who is on the account. This rule applies to cash assets such as:

-Savings and checking accounts

-Credit union share and draft accounts

-Certificates of deposit

-U.S. Savings Bonds

Can’t I Just Give My Assets Away?

Many people wonder, can’t I just give my assets away? The answer is, maybe, but only if it’s done exactly right. The law has severe penalties for people who simply give away their assets to create Medicaid eligibility. For approximately every $6400.00 given away during the five years prior to the filing of a Medicaid application creates a one month penalty period under the Medicaid rules. So even thought the Federal Gift Tax laws allow you to give away up to $12,000 per year without gift tax consequences, those gifts would result in a penalty period under the Medicaid rules.

Though some families do spend virtually all of their savings on nursing home care, Medicaid does not require it. There are a number of legal strategies which can be used to protect your family financial security.

Division of Assets: Medicaid Planning for Married Couples

Division of Assets is the name commonly used for the Spousal Impoverishment provisions of the Medicare Catastrophic Act of 1988. It applies only to couples. The intent of the law was to change the eligibility requirements for Medicaid where one spouse needs nursing home care while the other spouse remains in the community, i.e., at home. The law, in effect, recognizes that it makes little sense to impoverish both spouses when only one needs to qualify for Medicaid assistance for nursing home care.

As a result of this recognition, division of assets was born.

Basically, in a division of assets, the couple gathers all their countable assets together in a review. Exempt assets, discussed above, are not counted.

The countable assets are then divided in two, with the at-home or “community spouse” allowed to keep one half of all countable assets up to a maximum of approximately $110,000. The other half of the countable assets must be “spent down” until less than $2,000 remains. The amount of the countable assets which the at-home spouse gets to keep is called the Community Spouse Resource Allowance (CSRA).

Each state also establishes a monthly income floor for the at-home spouse. This is called the Minimum Monthly Maintenance Needs Allowance. This permits the community spouse to keep a minimum income ranging from about $1,750 to $2,300.

If the community spouse does not have at least $1,750 in income, then he or she is allowed to take the income of the nursing home spouse in an amount large enough to reach the Minimum Monthly Maintenance Needs Allowance (i.e., up to at least $1,750). The nursing home spouse’s remaining income goes to the nursing home. This avoids the necessity (hopefully) for the at-home spouse to dip into savings each month, which would result in gradual impoverishment.

To illustrate, assume the at-home spouse receives $750 per month in Social Security. Also assume that her needs are calculated to be the minimum of $1,750. With her Social Security, she is $1000.00 short each month.

In this case, the community spouse will receive $1000 (the short fall amount) per month from the nursing home spouse’s Social Security and the rest of the nursing home spouse’s income will then go to pay for the cost of his care.

This does not mean, however, that there are no planning alternatives which they can pursue. Consider the following case studies:

Case Study: Medicaid Planning For Married People

Ralph and Alice were high school sweethearts. Two weeks ago, Ralph and Alice celebrated their 51st anniversary. Yesterday, Ralph, who has Alzheimer’s, wandered away from home. The police found him, hours later, sitting on a street curb, talking incoherently. They took him to the hospital. Now the family doctor has told Alice that she needs to place Ralph in a nursing home. Ralph and Alice grew up during the Depression. They always tried to save something each month. Their assets, totaling $120,000, not including their house, are as follows:

Savings account… $ 35,000

CDs… 65,000

Money Market account… 17,000

Checking account… 3,000

Residence (no mortgage)… 100,000

Ralph gets a Social Security check for $1000 each month; Alice’s check is $350. Her eyes fill with tears as she says, “At $7000 to the nursing home every month, our entire life savings will be gone in less than two years!” What’s more, she’s afraid she won’t be able to pay her monthly bills, because a neighbor told her that the nursing home will be entitled to all of Ralph’s Social Security check.

There is good news for Alice. It’s possible she will get to keep everything all of their assets and all of the income… and still have the state Medicaid program pay Ralph’s nursing home costs. The process may take a little while, but the end result will be worth it.

To apply for Medicaid, she will have to go through the Department of Human Services (DHS). If she does things strictly according to the way the DHS tells her, she will only be able to keep about half of her assets plus she will be entitled to a minimum monthly income to pay her expenses. But the results can actually be much better than that.

It is essential that Alice get advice from someone who knows the Medicaid rules. With proper advice, Alice will be able to avoid the spend-down and keep everything she and Ralph have worked so hard for.

This is possible because the law does not intend to impoverish one spouse because the other needs care in a nursing home. This is certainly an example where knowledge of the rules, and how to apply them, can be used to resolve Alice’s dilemma.

Of course, proper Medicaid planning differs according to the relevant facts and circumstances of each situation as well as the current state law. For example, some children never gain independence – they remain dependent on their parents. What can be done in such a case?

Case Study: A Trust for a Disabled Child

Margaret and Sam have always taken care of their daughter, Elizabeth. She is 45, has never worked, and has never left home. Elizabeth is “developmentally disabled and receives SSI (Supplemental Security Income). They have always worried about who would take care of her after they die. Some years ago, Sam was diagnosed with dementia. His health has deteriorated to the point that Margaret can no longer take care of him. Now she has placed Sam in a nursing home and is paying $7000 per month out of their savings. Margaret is even more worried that there will not be any money left for the care of Elizabeth.

Margaret is satisfied with the nursing home Sam is in. The facility has a Medicaid bed available that Sam could have if he were eligible for Medicaid. However, according to the information she got from the social worker, Sam is over $75,000 away from Medicaid eligibility. Margaret wishes there was a way to save the $75,000 for Elizabeth after she and Sam are gone. There is.

Margaret can consult an Elder Law attorney to set up a “special needs trust” with the $75,000 to provide for Elizabeth. As soon as she does, Sam will be eligible for Medicaid. Elizabeth won’t lose her benefits, and her security is assured.

Of course, all trusts must be reviewed for compliance with Medicaid rules. Also, failure to report assets is fraud, and when discovered, will cause loss of eligibility and repayment of benefits.

I Heard I Can Give Away $10,000 Per Year. Can’t I?

As discussed earlier, many people have heard of the Federal Gift Tax provision that allows them to give away $10,000 ($12,000 currently) per year without paying any gift taxes. What they do not know is that this refers to a Gift Tax exemption. Having heard of the exemption, they wonder, “Can’t I give my assets away?” The answer is, maybe, but only if it’s done within the strict allowances of the Medicaid rules.

So even though the federal Gift Tax law allows you to give away up to $12,000 per year without incurring tax, those gifts could result in a period of ineligibility under the Medicaid rules. Still, some parents want to make gifts to their children before their life savings is all gone. Consider the following case study:

Case Study: Financial Gifts to Children

After her 73 year old husband, Harold, suffers a paralyzing stroke, Mildred and her daughter, Joan, need advice. Dark circles have formed under Mildred’s eyes. Her hair is disheveled. Joan holds her hand.

“The doctor says Harold needs long-term care in a nursing home,” Mildred says. “We have some money in savings, but not enough. I don’t want to lose our house and all our hard-earned money. I don’t know what to do.”

Joan has heard about Medicaid benefits for nursing homes, but doesn’t want her mother left destitute in order for Harold to qualify for them. Joan wants to ensure that her father’s medical needs are met, but she also wants to preserve Mildred’s assets.

“Can’t Mom just give her money to me as a gift?” she asks. “Can’t she give away $10,000 per year? I could keep the money for her so she doesn’t lose it when Dad applies for Medicaid.”

Joan has confused federal Gift Tax law with the issue of transfers and Medicaid eligibility. A “gift” to a child in this case is actually a transfer, and Medicaid has very specific rules about transfers.

At the time Harold applies for Medicaid, the state will “look back” five years to see if any gifts have been made. The state won’t let you just give away your money or your property to qualify for Medicaid. Any gifts or transfers for less than fair market value that are uncovered in the 5 year look-back period will penalize Harold’s receipt of Medicaid benefits.

So what can Harold and Mildred do? They can institute a formal gifting plan, save a good portion of their estate, and still qualify for Medicaid. However, the gifts must not violate the Medicaid rules. Generally, if done properly, you can often save as much as one half of your assets or more through a properly designed gifting plan

But remember, when it’s given away, it’s given away. Studies have shown that “windfall” money received by gift, prize, or lawsuit settlement is often gone within three years. In other words, even when the children promise that money will be available when needed, their own “emergencies” may make them spend the money. You must consult and experienced Elder Law attorney on how to set a plan that complies with the law and achieves your goals.

Will I Lose My Home?

Many people who apply for medical assistance benefits to pay for nursing home care ask this question. For many, the home constitutes much or most of their life savings. Often, it’s the only asset that a person has to pass on to his or her children.

Under the Medicaid regulations, the home is an unavailable asset. This means that it is not taken into account when calculating eligibility for Medicaid. But in 1993, Congress passed a little-debated law that affects hundreds of thousands of families with a spouse or elderly parent in a nursing home. That law requires states to try to recover the value of Medicaid payments made to nursing home residents. This is called Estate Recovery.

Estate Recovery does not take place until the recipient of the benefits dies. Then, federal law requires that states attempt to recover the Medicaid benefits paid. In order to protect your home, you should seek assistance from an experienced Elder Law attorney.

Legal Assistance

Aging persons and their family members face many unique legal issues. As you can tell from our explanation of the Medicaid program, the legal, financial, and care planning issues facing the prospective nursing home resident and family can be overwhelming. If you or a family member needs nursing home care, it is clear that you should seek expert legal help. Where can you turn for that help? It is difficult for the consumer to be able to identify lawyers who have the training and experience required to provide expert guidance during this most challenging time.

Generally, Medicaid planning is an aspect of the services provided by Elder Law attorneys. Consumers must be cautious in choosing a lawyer and carefully investigate the lawyer’s credentials.

How do you find an Elder Law attorney that has the knowledge and experience you need? You may want to start with recommendations from friends who have received legal help with nursing home issues. Who did they use? Were they satisfied with the services they received? Hospital social workers, Alzheimer and other support groups, accountants, and other financial professionals can also be good sources of recommendations.

In general, a lawyer who devotes a substantial part of his or her practice to Medicaid planning should have more knowledge and experience to address the issues properly. Don’t hesitate to ask the lawyer what percentage of his practice involves Medicaid planning. You may want to ask how many new Medicaid planning cases the attorney handles each month. There is no correct answer. But there is a good chance that an attorney that assists with at least 3-4 nursing home placements each month is likely to be more up-to-date and knowledgeable than an attorney that helps with two placements a year. Ask whether the lawyer is a member of any Elder Law organizations. Is the lawyer involved with committees or local or state bar organizations that have to do with Medicaid planning? Does the lawyer lecture on Medicaid planning? If so, to whom? (For example, if the lawyer is asked to teach other lawyers or professionals about Elder Law and nursing home planning, that is a very good sign that the lawyer is considered to be knowledgeable by people who should know.) If the lawyer lectures to the public, you might try to attend one of the seminars. This should help you decide if this is the lawyer for you.

In the end, follow your instincts and choose an attorney who knows this area of the law, who is committed to helping others, and who listens to you and the unique wants and needs of you and your family. this email, as you were able to update and access Chief’s account.

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Right Brain Learning

Avatar Of Rajesh Khanna



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Many people learn well through their sense of sight. They can watch someone do something and then can duplicate the task with practice. Other people learn well through their sense of hearing, by listening to the instructions. Most people tend to learn best through a combination of their senses including those of seeing, hearing and doing. Doing is kin-esthetic or our sense of feeling. Other learning moments rely strongly on taste and smell such as when someone is striving to be a chef. For most of us, it is the feeling/doing experience that helps us to truly integrate new information and skills. Once we actively participate in whatever we are learning we progress more easily.

Many years ago I worked as an adapted P.E. Teacher in San Diego, California. Some of my students were “severely emotionally disturbed.” I remember one eight year old boy who was unable to write his name. His teacher didn’t know how to help him succeed since all of his previous efforts had failed. One day, I wrote the boy’s name upon the ground with chalk in great big letters. I asked him to walk on top of each letter, tracing them with his body movement. Each time he did, I asked him to say the letter. After this experience he knew how to spell his name. He simply needed to integrate this information kin-esthetically. He was relaxed and having fun. This is right brain learning.

It is natural to learn through our senses. We see, hear, smell, taste and feel. These signals are received by the body before reaching the brain with conscious awareness. Children will visually study an object with great intensity. They touch things to their cheek or to their lips. They often smell or taste things. Why do infants put everything in their mouth? It is because they are learning about the world around them through their tongue. They touch and feel in much broader ways because it is natural. They learn through their senses first and then they learn how to think. We are all this way. Sensory learning is primary and logical learning is secondary. When we use more or our mind’s natural abilities for learning we have greater resources for creating successful results.

There are four parts to the learning process:

1. The teacher’s part is that of sharing the information.

2. The student’s part is to focus on what is happening.

3. The student’s part is to receive and hopefully integrate the new information.

4. The student’s part is to recall the information when needed, such as when taking a test or when useful in a real life situation.

Regarding #1, the teacher’s part of sharing information, it is interesting to note that when we are children in kindergarten we are cheerfully led to learn new things through engaging our senses. We learn our ABC’s through song, we learn the months and how many days they have through a rhyme “30 days has September, April June and November… ” We learn simple addition and subtraction by counting items such as blocks or sticks as we move them from one place to another. We are actively engaged through sensory awareness.

Some of these tactile learning skills remain through first and second grade but often by the third grade most teaching shifts from right brain teaching to left brain teaching. This means it changes from primarily sensory learning to secondary logical learning. Now we are taught to memorize the times tables, or names or dates and math is nothing more than numbers on paper. There is a better way.

Learning through right brain sensory awareness is primary.

Learning through left brain intellectual concepts is secondary.

Studies show that when children engage in right brain activities such as music or dance, they do better with left brain activities such as math and English. When we teach children through right brain approaches, they are more stimulated and excited. Rather than feeling bored they can learn in a way that is engaging and pleasing.

Let’s look at #2, the student’s ability to focus. The lack of this ability is often labeled as ADD or ADHD. I feel strongly that it is unrealistic to expect a young child to sit in a chair for many hours every day as his or her brain is fed information. Many children are given medication so that they can manage to fit into this very unnatural mold. Young animals are active and energetic naturally. Another common influence behind this problem is that of a lack of sleep. When children are tired they have to overstimulate themselves just so that they can remain awake.

Consider a young child who has spent most of his or her time at home where the environment tends to be peaceful. Even with siblings, the amount of external stimulation is limited. Now this same child is three or four or five years old and they are placed in a room with twenty or twenty-five other children. This child hasn’t any experience with learning how to block out so much external stimulation. Even if the room is quiet, many children are highly sensitive and they can feel the abundance of energy in the classroom.

Why do we expect that all children can automatically focus in the classroom when most of them have never had a chance to learn how to do so?

Right Brain and Strength of Memory

Using the following story, I’d like to build upon the idea of using sensory learning for greater integration of information and for ease of recalling the information at a later time. When we use our senses it makes it easier to recall the information when needed.

“You’re riding your bike and you see a shiny piece of quartz crystal on the ground. You stop and pick it up. You hold it up to the sunlight and you can see a small rainbow deep inside. Now you come to a large fountain with something unusual on top. The water is flowing down into 3 pools. There are pennies and coins in each pool. You make a wish and toss your piece of quartz crystal in the water. It sparkles in the water.”

Sensory Integration

* You’re riding your bike – Imagine this in your mind’s eye. Feel it. What kind of bike is it? What color is your bike?

* You see the shiny quartz crystal – What shape, size etc.

* You hold it up to the sunlight – Feel the sun shining on your face.

*You see a small rainbow inside – Describe it to me. (See it.)

* You come to a fountain with something unusual on top. What’s on top? Describe it to me. (See it)

* The water is flowing down into 3 pools of water filled with pennies and coins (See it. See the coins shimmering beneath the water. Feel the water splashing on your face.)

* Imagine making a wish and throwing your crystal in the water where is sparkles in the sunlight.

I tell this story two or three times while asking the child to be engaged through his or her imagination. Then, I ask the child to tell me the story. Most children find this is easy for them to do and they tend to be quite accurate in recalling the key elements. This is independent of how much time passes. Even weeks later, they are still able to retell the story with relative ease.

I have used the following ideas to help children learn to focus more effectively:

Laser Beam

First, we talk about laser beams. A laser bean takes scattered electrons that randomly flow and it moves them all in one direction. Rather than being scattered the electrons form a line of energy, a laser that is powerful enough to burn a hole through steal or gentle enough to do delicate eye surgery. What started from scattered chaos becomes focused and useful.

Then we talk about how the mind is like that. It can either be scattered or it can be like a laser beam. When it’s like a laser beam, it has a lot of power. I further mention that when they are listening to their teacher or focusing on school work, that is the best time for their mind to be like a laser beam. Then we can engage in the following activity:

Laser Beam Activity

Sit directly across from the child you are helping, eye to eye when possible. Tell him or her to be like a laser beam. All they can do is to focus on you and your voice. No matter what else happens around them, they are more focused on you and what they are learning. Now retell the short story.

Next we add some external stimulation. I have another person stand behind the child who is seated. This person’s job is to be a distraction. They can talk or jump or clap etc. They continue to do this while you re-tell the story. You can give the suggestion, “No matter how much goes on around you, you focus more like a laser beam. You focus like a laser beam and nothing bothers or disturbs you.” This continues several times through and each time the level of distractions are increased. Lastly, have the child tell you the story to see how well they were able to focus on you, independent of the distractions. This process can be repeated with other stories and great results can be found when we use information that the child needs to learn for school. We can take their most challenging subject area and turn it into a successful and enjoyable experience.

Following is a real life example to show how this same sensory learning can work in more advanced learning situations for adults.

I worked with a client who was in her fifty’s when she decided to start a new career. She wanted to become an accountant. She felt overwhelmed with the amount of information she needed to learn and was greatly concerned about being able to pass her test. Now, nothing can be further away from creative influences than that of accounting and numbers, yet we were able to use right brain strengths in her learning process.

In her imagination we created a neighborhood. In the first house lived a single mother with two children. We placed the necessary tax information on the door and around the house. We threaded it into this single mother’s life. Next store was a man who worked at home. Again, we imagined this man, what he did and what tax benefits he earned for working at home. For example, “He’s allowed to write off ‘x’ percentage of his utilities” became an image of his lights throughout the house, each one displaying the number representing the allowed percentage for tax benefits. Soon we had an entire neighborhood complete with clues for most of the needed information.

I am happy to say this client past her test the first time through! She felt calm and capable throughout. The information she needed was easy to recall and instead of being stressed she had a enjoyable time.

These few examples demonstrate ways of bringing right brain, sensory processing into learning. Here are a few basic thoughts to keep in mind as you progress:

* Make the images as real as you can – feel like it is really happening.

* The sillier the image the easier it is to recall the information. (Think about the Geico gecko.)

* Connect one idea to another so that they form a storyline.

* Make up a song or a rhyme to remember the information.

* Relax and enjoy the process!

When we use more of our mind for learning, then learning is fun and easy. Relaxation and enjoyment allow for new information to be integrated and accessed far more easily. Imagine how different our educational system would be if we decided to embrace this natural way of learning! Are you ready to experience what your brain can do for you?

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Which States Allow Criminal Record Expungement?

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With so many laws being passed and repealed every day, it’s hard to keep up. And although most people are unaware of new laws being passed in their state, there is one new law that many cannot afford to ignore. Criminal expungement is now legal in several states within the country. This new law allows past criminals to seal or restrict their past arrests and convictions from public view. There are endless benefits to this law, but not all states have approved it yet. Continue reading to learn more about criminal record expungement and which states have approved the law.

Expunging Criminal Records

The new criminal record expungement laws have the ability to change people’s lives in a dramatic way. With certain criminal records weighing over a person’s head and lingering on their public record, there are certain consequences. Aside from criminal stigma and judgement, a criminal record can hold a person back from any benefits that require a background check. This includes applying for a loan, renting an apartment, getting a job, and more. Now, in cooperating states, people have the opportunity to have these past criminal records sealed or restricted from the public, with the exception of police and government officials. This allows people to take advantage of certain benefits, like better jobs and home loans, and live a better life.

Most states have adopted this new criminal record expungement law, but some are still lingering on the back burner. Since most states have not approved and passed this new law, it is more efficient to list the ones that have so far. Here is a list of states that allow expungement:

  • Indiana
  • Arizona
  • California
  • Colorado
  • Connecticut
  • Florida
  • Illinois
  • Missouri
  • New Hampshire
  • New Jersey
  • New York
  • Oregon
  • Ohio
  • Utah
  • Texas
  • Tennessee
  • Washington

Although these states have approved the law, it is not a permanent law. They have only approved it for a trial period. And since there are several opposed to this law, there is no telling when or if it will get repealed. This means it is important to take advantage of this opportunity while it lasts. The only catch is that not everyone will qualify for criminal record expungement. There are guidelines that one must meet to be eligible to conceal or expunge their records. This is why it is necessary to hire a licensed criminal attorney for accurate and professional help. A person can only file one time in their life, and just one mistake can take that chance away. A lawyer can determine your eligibility and ensure everything is carried out precisely.

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The Business Legal Checkup – Preventive Advice For the Legal Health of Your Business

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More than 250 years ago, Benjamin Franklin famously said, “An ounce of prevention is worth a pound of cure”. He was advising Philadelphia homeowners to insure their homes against fire to avoid catastrophic losses. Franklin’s advice is just as applicable today to the legal issues of your business.

In this article, we explain a new legal service, Canadian Business Legal Checkup, an audit of legal matters affecting your business. Business Legal Checkup is a diagnostic tool most small and medium size businesses could use to verify if legal aspects of their operation comply with the law and to minimize risk, litigation and expense. When the Business Legal Checkup is completed, the business owner receives a lawyer’s report red-flagging matters which need correction, improvement or further legal advice.

A closer look at the Business Legal Checkup

Your business is built on a foundation of laws and legal procedures. As a prudent business owner, you have probably considered the following legal matters:

o You had to incorporate your business. The corporation has been properly set up. All shares are properly issued. Directors and officers have been appointed. The corporate minutes and register are up-to-date.

o You and other directors of the corporation know exactly what your duties and liabilities are. All directors are protected from liability by sufficient insurance coverage.

o You have a shareholders’ agreement so that all shareholders know their roles. All partners are treated fairly. There is an orderly method for valuation and termination of the corporation. You understand the minority shareholders rights requirements of the Business Corporations Act.

o You filed a business registration and have a system to renew it before expiry and you have registered any business names that you are using.

o You filed trademark, patent and copyright applications to protect the intellectual property of your business.

o Your URL (web address) is trademarked. You have audited your website to check for breaches of privacy law, defamation and technology law issues. Your online sales portal is set up to avoid legal problems with privacy law, identity theft and contract issues.

o Your licencing and registrations are up-to-date. If your salespeople have to be registered or licenced, you have a system to ensure that their registrations are up-to-date and that their regulatory requirements are being monitored.

o You have a long term lease for your plant or office. You had your lease vetted by a lawyer. You know what it says, including the extra rent the landlord can demand. You know the deadline for your right to renew.

o You use several legal standard forms and contracts in your business. These have all been vetted by a lawyer to comply with applicable laws including the PPSA, the Interest Act, the Consumer Protection Act, the Sale of Goods Act, the Mercantile Law Amendment Act and the Bills of Exchange Act and contract law.

o If you extend credit, you know that your service charges don’t exceed the “criminal rate of interest”.

o You know prohibitions against misleading advertising and unfair competition in the Competition Act.

o You understand the privacy legislation and you have a system to ensure that you comply each time you collect, use, or disclose personal information.

o Your employees have signed agreements which spell out the length of notice they are entitled to receive if you terminate their employment. You know who is entitled to how much and what to do if you decide to terminate an employee, whatever the reason. You understand your obligations under the Employment Standards Act.

o Your employees have all signed non-competition covenants and non-solicitation agreements to prevent them from taking away your best clients, business procedures, best employees and trade secrets if they leave to set up shop on their own.

o You have a procedure to prevent violation of the Human Rights Code and you know the protected grounds of discrimination. You also understand all of the elements of sexual harassment and you know how to deal with it.

o You know your company’s rights and obligations under the Workplace Safety Insurance Act and the Occupational Health and Safety Act.

o You have liability and multi-peril insurance and you know what it covers.

o Your manufacturing and distribution processes are set up to avoid potentially devastating product liability and class action lawsuits. You have minimized risks.

o You keep up-to-date with changes in the law which affect the corporate, contractual, insurance and employment law issues in your industry.

o You have complied with the filing requirements for income taxes, sales taxes and GST. You have had your business and municipal tax assessment vetted.

o You know what precautions to take to help prevent litigation.

o If you are about to get involved in litigation, you have an action plan to maximize your chances of success and to keep the cost in check. When hiring a lawyer, you know what you need and what to expect.

Stop the presses – before we continue – do we hear you saying there are many items on this list that you haven’t looked after, that you haven’t thought of or which could be updated?

We’re not surprised. In our experience, small and medium-sized business owners don’t get around to dealing with many important legal issues involved in organizing their business relationships with partners, shareholders, customers, employees and government and in preventing or managing the risk of expensive litigation. Often, agreements are not fully thought through.

Small business owners tend to do only what they absolutely have to do to comply with the law and are reluctant to spend money for top drawer legal services when an inexpensive shortcut appears to do the trick. Your focus is getting your business up and running, getting your product to market, making sales and keeping costs down. You could be lucky and run your business for years without anything going wrong.

Fair enough, but if you disregard preventive legal measures like the ones mentioned, your business is like a driver without a seatbelt in a car that has never been serviced —in other words, a catastrophic accident waiting to happen.

Here are two examples of business legal nightmares that could have been easily avoided with a program of preventive law such as the Business Legal Checkup. These are actual cases, decided in Ontario courts:

o A Toronto RV dealer sold a motor home to a customer. After using it for a couple of weeks, the customer complained that the salesperson had misled him about a “rental program” and brought the motor home back and refused to make any payments. The dealer sold the motor home as a used vehicle and suffered a $25,000 loss for which it sued the customer.

The Ontario Court of Appeal decided that customer was entitled to return the RV and cancel the contract because the salesman’s Motor Vehicle Dealers Act registration expired and was not renewed. This made the contract illegal. The RV dealer didn’t have a system to check if all their salespersons’ registrations were current. The dealer not only lost $25,000 but also had to pay about $30,000 to their own lawyer and almost that much in legal costs to the customer’s lawyer. A Business Legal Checkup could have saved this business most of the $100,000 and a lot of aggravation.

o A southwestern Ontario company was a wholesale distributor of car alarm systems, which started as a basement operation and developed into a successful business. The owner used contract forms he found on the internet. Why pay a lawyer when forms were right there for the taking? His standard form contracts had statements that he didn’t fully understand but if they were on the internet, they must be OK. He didn’t have a lawyer check them. The standard form agreements didn’t create a problem for several years.

The distributor extended credit to CAG, a company owned by a Mr. Don for more than $90,000 worth of car alarms. He wasn’t worried about payment because Mr. Don signed the standard form contract — the one he found on the internet for free — which stated that Mr. Don was personally liable for everything CAG ordered. When CAG went out of business, the distributor sued Mr. Don. The Ontario Court of Appeal dismissed the claim against Mr. Don because the personal liability clause in the standard form agreement was unclear and was capable of two meanings. The distributor didn’t recover his $90,000 and had to pay legal fees to his own lawyer and costs to Mr. Don’s lawyer. A Business Legal Checkup could have saved him almost $150,000 and possible financial ruin.

These examples are the tip of the iceberg. As you read this article, you can probably think of other examples that affected your business. In each case, it’s more than the legal expenses that are at stake. The business owner has to devote time and sleepless nights to the legal dispute and loses time from running the business.

How does a Business Legal Checkup work?

o You will be asked to complete some forms to provide confidential information about your business.

o You will have a discussion with the lawyer to assess the scope of the Business Legal Checkup. For example, it doesn’t cover tax law, environmental law or succession planning unless special arrangements are made.

o A basic Business Legal Checkup will provide a diagnostic review of the legal status of the following issues in your business: (1) Set up and governance of your corporation; (2) Relationships among the owners of the business; (3) Relationships with employees; (4) the contracts and forms used in the business; (5) Competition Law and Illegal Advertising; (6) Intellectual Property, Trade Secrets, Confidentiality and Privacy; (7) Safety and risk management; (8) Risk analysis and efficient management of existing litigation; (9) Internet Issues; (10) Regulatory licencing issues.

o A Business Legal Checkup can also be customized to meet the business owner’s specific requirements. This may require consultation with outside legal experts.

o In preparation for the Business Legal Checkup, you will be asked to provide documents and information concerning each category of the analysis.

o After the documents have been reviewed by a lawyer, consultation may be required with other lawyers. Further clarifications may be required from you and other senior officers of your business.

o A report will be prepared explaining the status of each topic and red-flagging issues which require attention and indicating their level of urgency.

o When the Business Legal Checkup report is ready, the business owner may prefer to have the Business Legal Checkup lawyer or legal team present the findings orally. An oral presentation followed by a Q&A session can assist the business owner to plan the next steps efficiently.

o The Business Legal Checkup legal team will facilitate referrals to lawyers who are specialized in resolving the legal problems identified by the Business Legal Checkup.

How much will a Business Legal Checkup cost?

For a small startup business with less than five employees, operating out of a single location and having only one business entity, a Business Legal Checkup can usually be completed for about $5,000 to $7,500 if there are no unusual problems.

Who needs a Business Legal Checkup?

Every business needs to know whether its legal processes are efficiently compliant with the law. Public corporations are obliged to provide certain levels of legal compliance to government and regulatory bodies. A small private corporation does not have the same levels of mandatory compliance but failure to do so voluntarily is like the proverbial ostrich with its head in the sand.

A Business Legal Checkup is also useful for a business owner who is considering the sale of his business or for a prospective purchaser of a business. Minority shareholders could insist on a Business Legal Checkup annually or bi-annually to ensure that management and the majority shareholders are meeting their obligations to the corporation.

A Business Legal Checkup may also be a credibility tool for a business seeking financing or government contracts. Unlike a financial audit, ISO9001 and ISO 14400 compliance standards, the Business Legal Checkup is a confidential report to management only and expressly excludes reliance by outside parties. If an outside party, such as a lender or investor, will receive a copy of the report, the Business Legal Checkup legal team must be informed in advance so that concerns relevant to these outside parties can be taken into account.

Where can my business get a Business Legal Checkup?

So far as we know, the Business Legal Checkup, as a fixed-price legal diagnostic tool for private small and medium-sized businesses is a new legal service in Canada. Interested business owners are invited to contact us for information.

Benjamin Franklin’s famous advice has evolved. A Business Legal Checkup can be much weightier than an “ounce of prevention”. It could provide “tons” of preventive advice to save your business from damaging or catastrophic expense. The Business Legal Checkup will also provide the business owner with peace of mind which, as another saying goes, is “worth its weight in gold”.

October 2008. © Igor Ellyn and Orie Niedzviecki

This article is for information only and not legal advice.

Igor Ellyn, QC, CS and Orie Niedzviecki, Partners

Ellyn Law LLP, Business Litigation Lawyers, Toronto

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What Is an IP Phone?

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An IP Phone is a telephone that operates on a data network instead of traditional telecoms networks. It is designed as a networking device, running over the TCP/IP suite of protocols, where the speech is digitized and encapsulated in a series of IP (Internet Protocol) packets for transmission over copper or fibre transmission lines. An IP Phone is more traditionally referred to as a VoIP (Voice over Internet Protocol) phone because it is because it uses technology that come under the general heading of VoIP.

VoIP telephone calls can be made over the Internet or private IP networks run by companies and organisations. Just like traditional telephony, VoIP needs to use signalling and control protocols for the setup, control and clearing of the calls. SIP (Session Control Protocol) is the most popular control protocol in use today, and most commercial IP Phones support SIP. On the Internet, Skype is the most popular Voice over IP system, but it is proprietary and doesn’t support Industry standard protocols.

Voice over IP technologies also support multimedia as well as voice, and there are many video applications that are supported by VoIP.

In order for the IP phone to operate in a digital network then the analogue speech input via the microphone must be digitised so that it can be packetized ready for transmission on the IP network. There are many variations of the processes for digitization and they generally come under the heading of a Codec (Coder / Decoder). One codec that is also used in the digital telephone networks is the ITU-T G.711 codec, which digitises the analogue speech through a process of sampling and quantization. The first part of the process is PCM (Pulse Code Modulation), where the analogue speech is sampled at a constant rate of 8khz to produce 8 bit binary words which represent the original analogue speech. It must be noted that when the binary data is reconverted to an analogue form at the receiver, there is a drop in quality due to what we call quantization error. Other popular codecs include G.729, G.726 and G.723, and a lot of IP phones support multiple codecs.

Traditional telephones can be used on VoIP systems provided an intermediate device is used to provide conversion and connection to the data network. These devices come under the heading of Analogue Telephone Adapters or ATA.

VoIP Phones can communicate directly with each other over a data network, but they are often used with an IP PBX which is a hardware or software device that emulates the operation of a traditional PABX as used in the Telecommunications industry. The IP PBX will provide such functionality as registration services for the phones, proxy services and supplementary services such as Call Divert, Call Forwarding, Ring Groups and Voice mail. Indeed an IP PBX should be able to provide all the services currently supplied by traditional PABXs.

Just like any other IP networking device such as a PC or Server, an IP Phone needs some basic configuration parameters such as a valid IP Address, Network Mask an MAC Address. The phones can be manually configured with IP Addresses or can be supplied with IP Addresses from a DHCP (Dynamic Host Configuration Protocol) server like most network devices in our IP networks today.

VoIP Phones need a power supply, just like any other network device and in recent years technology has been developed to supply these phones with DC power direct from network connection with the local switch. The power is passed down the Ethernet patch cables using the previously unused copper pairs within the cable. A standard known as IEEE 802.3af was released in 2003 and it can provide up to 15.4 watts of DC power to each device direct from the switch port. The standard was updated in 2009 as IEEE 802.3at to provide up to 25.5 watts of power per device.

IP Phones have to compete with other network protocols in our packet based data networks, but because they are conveying Real-Time information in the form of speech, they must be afforded some kind of special handling or prioritisation in the network. The methods of affording some network protocols prioritisation over others is known as QoS (Quality of Service). In other words, we must minimise the amount of delay across the network for the IP Packets containing the digitised speech. Too much delay across the network will result in a two way conversation being difficult to manage, rather like talking over a Satellite phone where the delay to and from the satellite makes the conversation difficult unless the users are disciplined and understand the problems. Variable delay, often referred to as packet switching delay, is where the delay between individual packets varies in sympathy with network conditions. This type of delay normally comes under the heading of jitter, and there are a number of techniques that can be employed to alleviate the effects of jitter.

There are many manufacturers of IP Phones, and if you are purchasing a VoIP Phone then you must ensure that it supports the standards supported elsewhere in your network such as the correct codecs, inline power standard and of course the features that you require.

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Traffic Tickets

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What are traffic tickets?

Traffic tickets are writs issued by the traffic police officers to road users whenever they cross traffic rules. The road users who receive these writs range from motorists, car drivers to bus drivers. These traffic ticket cases are heard in the traffic courts and the tickets are issued there.

Types of traffic tickets

Traffic tickets are generally issued for two major types of traffic crimes namely,

1. Moving violation

2. Non-moving violation

Moving violation is defined as those traffic crimes that are committed when the vehicles are in motion. The most frequented type of moving violation is over-speeding, that is, when a motorist exceeds the speed limit of that road or highway.

Non-moving violations are those traffic violations that are committed when the vehicle is stationary. The most common non-moving violation is the parking violation, that is, when the vehicle is parked in a no-parking zone or if the vehicle is parked in an unlawful way.

Two-wheeler riders are prone to commit moving-violations more than four-wheeler drivers commit the same. At the same time, four-wheeler drivers (car owner, in particular) are prone to commit non-moving violation like parking violations.

Levels of traffic tickets

There are different levels of traffic tickets given to those who commit traffic crimes. The punishment level depends upon the intensity of the crime committed.

The most common punishment given for traffic crimes are for those who do parking violations. Generally, traffic police issue a small amount as fine to those who park their vehicles in “no parking” zones or if they park them in unlawful ways. Issuing fines are the least severe writs given to the offenders. However, the amount of money charged as fine will also vary depending upon the severity of the crime.

Crimes like over-speeding, disobeying the lane rules, traveling in one-way roads, careless and reckless driving, disturbing the public while on the drive and damaging public properties etc are a few notable ones that result in fines. There are chances that these crimes may be upgraded by the traffic officials to traffic courts rather than settling off through traffic tickets. This usually depends on the demeanor of the driver.

Traveling without a valid license, traveling in uninsured vehicles, possessing fake registration identities for the vehicle and road taxes for the vehicles left unpaid etc are some of the crimes that are settled only in traffic courts. In such cases, the traffic police officials issue a traffic ticket to the concerned driver and summon them to the traffic courts on specific days. Failure to obey this is considered a serious crime and may result in the person being detained.

The above mentioned crimes and traffic ticket issuing methods are followed in a majority of the countries. The list includes the United States, Canada, Cuba and other countries of North America, England, Scotland, France Italy and Germany among others. Certain other countries like India, Pakistan, China, Russia etc follow a similar kind of strategy expect for the fact that they do not issue tickets but settle of the issues through on the spot fines. Some countries around the world use a “traffic points” system wherein the drivers accumulate points for each crime they commit and at a point of time when they reach an unacceptable level, their license stands canceled and serve a permanent infraction from riding vehicles any further.

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Social Media Integration With Your Business in a Digital Era

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Social media is evolving in a big way, and everyday we are presented with a report that displays the impact of social networking channels like Facebook, Twitter, YouTube, LinkedIn, Blogs, community forums and others on small and large businesses alike. It is transforming business in every way. Business models are changing with more access, choice and maturity in the cloud or on the SaaS platform.

Thus it not only transforms brands but also impacts the brand/customer relationship like no other communication method used previously. It’s simply about finding the best way to communicate with a customer. With the slow economy, customers are becoming more cautious in their approach and want to be better informed before they use a service or buy a product. They have access to a plethora of information that can be sourced online.

Businesses have moved to exploit social networks to reach an audience that was untapped before. It is bound to consume all areas of marketing strategy because of its ambiguity and ubiquitous nature. But how exactly companies will go about capturing information dispersed across multiple media platforms is anyone’s guess.

There is nothing new in the social media we are using. It is the same content that has been in use: images, audio, video and text. It is how we utilize it and open up new channels of communication.

Take the Marketing Initiative

Instead of thinking of social media as a technology, think of it as a communication tool wherein you can connect with the customer and build a long term relationship. It’s simple: shifting conversations to a different medium; allowing for easier updating of content; and reaching a wider audience.

Every organization needs a social media implementation and integration framework.

a) Managing Content Aggregation – At the onset, businesses need to better understand market behavior and interaction within their marketplaces. Deploying Google Alerts, Twitter Search,Radian6, and PR Newswire’s Media Metrics to track conversations and instances associated with key words helps in understanding the market better.

b) Audience Reaction – Based on the reactions to their content on these social networking sites, companies can respond and improve the content, define future launches or engagements and connect.

c) Data Analytic Metrics – It is a managed service for multiple social media channel monitoring and reporting activity in order to show the trend, usually in the form of friends, followers, conversations, traffic and reach.

d) Enterprise Integration – Any department affected by external activity will eventually socialize. Organizational transformation will gravitate towards a top-down hierarchy of policy, education, and empowerment across the entire organization and provide on-going support for content development and community building initiatives. Enterprise integration links social analytics with existing CRM and BI tools.

Incorporating social media solutions into your client’s or company’s existing content strategy does not have to be a painful process. By hearing and observing the responses and interactions of the customer, we can touch on the pain points, source new ideas, foster improvements, learn and integrate a sense of purpose into our social media programs, thus opening the door to new possibilities.

Any individual or organization that sells products or offers services should value open communication as a goal. If your client or company does not have one, social media integration might be a good starting point.

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