Divorce, Custody, and Child Support for Parents of Children with Special Needs: Medicaid Waivers (Part II)

By: Demian J. McGarry, Esq.

This is the second in a series of blogs Curran Moher Weis attorneys will be publishing on divorce and child support involving children with special needs.  Please see Part I for the first blog on this important topic.

Medicaid waivers can be a critical element in the care plan for a physically and/or intellectually challenged child.  Parents going through custody and child support disputes need to be aware of the benefits available to them under various Medicaid waivers, how they may affect their support obligations and what to be aware of when negotiating a support agreement.

Virginia established a new Medicaid waiver program in 2017—the Commonwealth Coordinated Care Plus (CCC+) program. The CCC+ program provides managed long-term service and support programs designed to offer a comprehensive set of services that address all of the Medicaid participating enrollee health care needs.  The program provides care management, care coordination and person-centered care through an integrated and interdisciplinary team approach.

There is an eligibility screening for the CCC+ Waiver.  Fortunately for families with intellectually and physically challenged minors, only the child’s income is counted, not the combined family income. This opens up the program to middle and high income families that otherwise might otherwise go bankrupt providing care for their severely physically and/or intellectually challenged child.   Virginia’s CCC+ person-centric assessment and interdisciplinary plan of care determination essentially identifies the appropriate mix of clinical and social services needed for the child.

While the Medicaid-based CCC+ multidisciplinary person-centered clinical assessment and plan of care can help support the evaluation of private health care insurance coverage determinations, such determinations are independent of Medicaid findings.  The CCC+ program requirements recognizing the availability of third-party (private insurance) liability (coverage and payment) on behalf of a child continue to be a function of communication between the CCC+ program, the parents, the insurance company, and the child’s case management officials.  The availability of private insurance coverage for a service will not disqualify a child from the program so long there are other needs of the child not covered by private insurance.

Under Virginia law, responsibility for unreimbursed medical expenses is by default, apportioned pro rata to the parents according to income shares.  Parents going through custody or support litigation may dispute what is reasonable and necessary.  If a child is enrolled in the CCC + program, the appropriate level of service determinations now rests with the program’s professional case management team, which is primarily responsible for defining the level of care that is considered adequate, appropriate, reasonable and necessary.

For example, a child can be approved for 12 hours of Licensed Practical Nurse (LPN) care per day provided.  If a parent wanted 24 hours of LPN care, they would not be able to “double up” on the service and pay out-of-pocket as the child would then lose those 12 hours allotted to them.  That is because the professional case management team has already determined that 12 hours of LPN care per day is what is reasonable and necessary.  Parents negotiating settlement agreements for the care of their intellectually or physically challenged child need to be aware of this condition so as to not contract for providing the same type of care beyond what has been established by the program. Doing so risks losing the service altogether.

Part I of this blog series defined the attendant and respite care services that are available to children under the program.  Attendant and respite care are not nursing services, so the hours provided for these care giving services would be in addition to any nursing hours.

However, the program pays a set rate for attendant and respite caregivers depending on whether the child is located in Northern Virginia or the rest of the Commonwealth.  The parent cannot subsidize the rate of the caregiver or insist on the same caregiver each time; otherwise, they can also lose the benefit entirely.  This poses a challenge in higher-cost-of-living areas if a parent wants a high quality and more consistent caregiver who may demand a higher hourly rate.  A court can deem respite and attendant are reasonable and necessary independent of the approval of such care by the program.

When negotiating agreements on the allocation of reasonable and necessary expenses for physically and intellectually challenged children, the parties should clearly define whether or not they consider respite and attendant care to reasonable and necessary.  If they do, they should consider whether they agree to accept whatever amount of services the program may provide for, or if they go outside the program, a cap at the amount the higher payor parent would be liable for.

These issues are highly complex and distressing to parents.  We at Curran Moher Weis are here to ease that burden. Contact us today to meet with an experienced family law attorney who can help guide you through a divorce or custody issues pertaining to your and your child’s needs.

DOES CHILD SUPPORT COVER PRIVATE SCHOOL TUITION?

By Demian J. McGarry, Esq.

Around the country, children – and their parents – are settling back into school routines for the year, whether at public, private, charter or other schools. For parents who have, or want, their child(ren) in private schools, but are also considering or undergoing a divorce or child support case at this same time, they often want to know whether and how those costs would be covered by child support.

At Curran Moher Weis, I and my fellow attorneys regularly help parents navigate school choice in child support cases. Here is what you need to know:

There are typically two situations to consider – either you have a child or several children already in private schools, or you want your child to attend private school in the future, such as upon graduation from elementary school to middle school or middle school to high school.  You and the other parent may or may not agree on the choice of private school or whether your child should go to private school at all. Faced with the many other costs of separation, as existing and new financial obligations are divided out, how do you continue to pay for private school or ask for coverage of the costs in the future? And can a parent be required by court order to pay for or contribute towards private school tuition?

As is the case with many aspects of divorce and child support cases, there is no straightforward answer. There are a host of factors a court considers for deciding whether a noncustodial parent should be ordered to contribute to a child’s private school expenses.

Primarily, those factors include:

• The availability of satisfactory public schools;
• The child’s prior attendance at private school;
• The financial circumstances of the parties;
• The child’s special emotional or physical needs, religious training and family tradition.

These also do not factor to the same degree, nor in isolation, in the court’s decision. Prior or current enrollment in a private school at the time the request for contribution is sought, weighs heavily on the court’s decision. A court does not want to disrupt the continuity of a child’s education and educational environment that includes the child’s peers and school-related extracurricular activities. However, that has to be weighed against the financial circumstances of the parties and the other factors listed.

If your child is not yet enrolled in private school, but you want him/her to be, it is a tougher road to haul to convince a court to add private school tuition on top of a child support obligation.  In this scenario, the other factors come into play as well, such as the quality of the public schools in the area and any special emotional or physical need of the child. The court does not take the degradation of public schools lightly. In these situations, it is often useful to secure an educational consultant to serve as an expert who can provide an objective comparison of the schools to explain what unique need the proposed private school can meet for the child(ren) that their public school cannot. Those unique needs could be related to academics, safety or mental well-being, such as in the case where a public school had repeatedly failed to rectify a bullying situation for the child.

When private school is considered in litigation, it is often the case that the parent desiring private school over a hesitant parent will have to compromise in some way, either by accepting a reduced monthly child support or spousal support award in exchange for the other parent’s contribution to private school, or taking a reduced interest in marital property they would otherwise be entitled to in exchange for the other parent paying for or contributing to private school. To avoid the uncertainty and additional strain that comes with litigating private school cost, it behooves parents to try and reach an agreement on their own.

There are, of course, a litany of other questions to be considered and thus, issues to be navigated. In preparing an agreement, parties need to be mindful of not only the current private school attended or sought after, but any future change. There have been cases where an agreement binds a parent to pay for a particular school and then when a parent seeks to change the private school, is unsuccessful because the parties’ agreement did not anticipate or leave open that possibility. The agreement should include the scope of the obligation:  Will it be only for K-4, K-6 or K-12?  Do the parents want to put a cap on the obligation?  Do you want the parent to pay their obligation directly to the school or to you?  Does the school selection have to be mutual, and if so, can the other parent veto a choice without justifying the reasonableness of their decision?

Finally, if a parent is concerned about the future costs or their own future circumstances, it is important to include a clause that states the court has jurisdiction to modify the private school obligation in a future support proceeding. Otherwise, the parties may be bound by the black letter of their contract and a harsh result could occur with a parent being on the hook who may not be financially able to shoulder the cost.

Fortunately, there is a well- developed body of law on private school tuition contribution, and the experienced domestic relations attorneys at Curran Moher Weis can help guide you in reaching a settlement or litigating your objectives regardless of which side of the issue you may happen to ascribe. Learn more about our talented family law attorneys, and contact us here to set up a consultation.

WHAT YOU NEED TO KNOW ABOUT FUNDING EXPENSES DURING A SEPARATION

Separation and divorce can be described by a lot of different adjectives, but “cheap” is not one of them. In a separation, a family goes from living in one household to all of a sudden, living in two households, with two mortgages or rents to pay, two sets of utility bills and a host of other doubled or more complex set of shared expenses.  A party may also find themselves having to pay spousal or child support on top of household expenses. How can this dynamic be sustained financially until a final divorce and settlement is reached?

Know What Funds are Available

A good starting point for someone going through a separation is to know what available funds you can draw from and when.  This blog will shed a bit more light on that:

When possible, expenses should be paid out of current income as opposed to savings or other types of accounts.  When that is not possible, utilizing funds from a savings account, selling off securities and investments and even taking a premature withdrawal from your retirement accounts are less ideal but viable backup options.

If there has been no court order entered yet, you may draw down on bank accounts and investment accounts provided it is for a legitimate marital purpose.  Legitimate marital expenses include rent, mortgage, utilities, childcare, groceries or personal grooming items and/or attorney’s fees.  Conversely, during a separation, one should not utilize proceeds from bank and investment accounts for purely discretionary spending such as on vacations, luxury merchandise purchases, tattoos, cars or boats.  This type of spending may be considered what is legally called “waste” or “dissipation,” which means one spouse has used marital property for his or her own benefit and a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. That definition means waste and dissipation can occur before or after the separation, and the party making such expenditures would have to account for lost assets in the final property distribution of a divorce. In these cases, it does not matter whether an account is separately titled or joint – only that the account contained “marital funds.”

Retirement accounts should be the account that is tapped into for marital expenses only as a last resort for many reasons.  With the exception of single annual withdrawals that are replaced within 60 days, there is the automatic premature withdrawal penalty of 10% plus tax penalties depending on your bracket for taking funds out of an Individual Retirement Account (IRA) or 401K prior to age 59.5.  As an example, someone in the 33% tax bracket who withdraws $49,500 from a retirement account prior to age 59.5 can expect to net just $31,000 from the withdrawal.  Unless absolutely necessary to stay afloat, withdrawing from your retirement account is financially imprudent.

Pendente lite Order

Another important point to know if you are considering or in the midst of a separation is that once a divorce action has been filed, a court may enter what is known as a pendente lite Order. This defines the temporary obligations of the parties when it comes to spousal support, child support and payment of household expenses.  The Virginia law on these temporary Orders was amended in 2016 to provide that unless a party can show good cause, all obligations must be paid out of post-separation income.  The restriction now severely limits a spouse’s ability to use assets to provide for support and household expense needs during a separation.

The decision to utilize marital assets to pay for household expenses must be made with careful consideration, with current income being the ideal source for obligatory spending.   Discretionary spending from what would be considered marital assets or accounts should be done with caution, and with the knowledge of how that lost money will be handled in an eventual divorce. Seeking the input of a financial advisor, accountant or attorney is highly recommended before taking any significant action that has an effect on the marital estate.

Learn more about separations in Virginia here. For more information on what to know during a separation or divorce, contact one of our highly knowledgeable and skilled attorneys at Curran Moher Weis.

Top Challenges You’ll Face When Filing for Custody in Virginia

Child custody invokes strong emotions and intense personal interest from all parties involved.  Matters involving the best interests of one’s child or children can have serious consequences.  Money is fungible and can come and go — your children are your children.

3 Keys to a “Successful” Virginia Divorce

The late and highly respected attorney Betty Thompson, a monumental force in modernizing Virginia family law, was known for telling clients at their initial consultations that “the only won cases are cases resolved out of court.” Having clerked for her during law school, that phrase has stuck with me ever since. Each case is different and there are situations where a trial is unavoidable. However, your attorney should work with you along the way to see if a successful resolution out of court is possible.

Tips on How to Approach Divorce

So what can you do to ensure that your divorce is as close to successful as possible?